Riggs v. AirTran Airways, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 8, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DORIS A. RIGGS,

Plaintiff - Appellant,
No. 06-3250
v.

AIR TRAN AIRW AYS, IN C.,

Defendant - Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. No. 04-CV-1306-M LB)

Lawrence W . W illiamson, Jr., Shores, W illiamson and Ohaebosim, L.L.C.,
W ichita, Kansas, for Plaintiff - Appellant.

Carolyn L. M atthews (and Jay F. Fowler, on the brief), Foulston, Siefkin, L.L.P.,
W ichita, Kansas, for Defendant - Appellee.

Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Doris Riggs appeals the district court’s entry of

summary judgment against her on her claim that Defendant-Appellee AirTran

Airways, Inc., (“AirTran”) terminated her in violation of the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C. § 621. The district court concluded

that M s. Riggs had failed to bring forth sufficient evidence to create a jury

question as to whether AirTran’s asserted nondiscriminatory reason for

terminating her was actually a pretext for age discrimination. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

Background

AirTran employed M s. Riggs as an at-will customer service agent in

W ichita, Kansas from April 19, 2002 to June 19, 2003. M s. Riggs’s duties

included working at the front ticket counter, the gate counter, and on the ramp

loading and unloading luggage. Aplt. App. at 40. At the time of the incident

leading to her termination, M s. Riggs was 67 years old. Aplee. Supp. App. at 17.

M s. Riggs was supervised by Gina D olieslager, the manager of A irTran’s

W ichita station. M s. Dolieslager was over forty years old at the time M s. Riggs

was terminated. Aplt. App. at 72. On two occasions prior to the termination, M s.

Dolieslager allegedly commented on M s. Riggs’s age. The first took place when

M s. Dolieslager discussed her mother’s heart surgery, and M s. Riggs revealed that

she was the same age as M s. Dolieslager’s mother. Id. at 38. M s. Dolieslager

responded that M s. Riggs did not look as old as she was. Id. M s. Riggs did not

take offense at the comment and did not feel the need to report the incident. Id.

Subsequent to that exchange, M s. Dolieslager assisted M s. Riggs with luggage

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and commented that M s. Riggs was too old to be lifting heavy bags. Id.

Although this comment embarrassed M s. Riggs, she did not report the incident.

Id. at 39. Additionally, M s. Dolieslager complained about AirTran’s seniority

policy, under which M s. Riggs was given seniority over other employees who had

begun work on the same date because of her age. Id. at 233-34.

The events leading to M s. Riggs’s termination occurred on June 5, 2003.

That morning, M s. Riggs and four other AirTran employees–Tammy Spero-M ally,

Judith Beddow, Paul Lawrence, and Jeff Baird–checked in a large group of

children belonging to a M ennonite choir. Aplt. Br. at 3-4. After having checked

in most of the group with some difficulty, M s. Riggs was approached by a woman

asking her to check in a girl who was running late. M s. Riggs informed the

woman that she was unable to check in passengers unless they were present. Id.

at 4. The woman became upset, and her behavior frightened M s. Riggs. Id.

Although M s. Dolieslager was not present at the gate that morning, she

learned about the choir’s check-in later in the day when M r. Baird told her he had

been “embarrassed to be in an AirTran uniform” because he heard passengers

discussing how rudely they had been treated by AirTran employees. Aplt. App. at

75, 229. M s. Dolieslager then “talked to Doris, I talked to Tammy, I talked to

Judi and asked them what the heck’s going on.” Id. at 75. According to M s.

Dolieslager, M s. Beddow and M s. Spero-M ally both stated that M s. Riggs was

“the one being rude,” and M s. Riggs admitted “well, I might have been a little

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short with them . . . but those damn kids wanted all their seats switched around

and I wasn’t about to do that.” Id. M s. Riggs, however, only remembers telling

her supervisor that “we had a rough time with this bunch, getting them on and

getting them out.” Id. at 228.

Four days later, Jessica Senn, the choir group’s travel agent, sent an email

to Bill Howard, AirTran National Sales Director, complaining about the way

AirTran employees treated the group during check-in at the W ichita airport. Id. at

123-24. She wrote:

The choir and myself are very upset with AirTran and the way we
were treated upon check-in.

***

W hile beginning the check-in process at about 6:00 or 6:15
AM , two ladies appeared at the counter from the back room. One of
the ticketing agents, Gina, was extremely rude and failed to be of
good service to us. The other agent was rude, but not as bad as Gina
- I do not have the other w oman’s name. She had long dark hair.
Gina seemed to “ramrod” around and I even witnessed her snipping
at the supervisor and telling him how things should be done. Gina
then proceeded to yell at some of the passengers, pounded her hands
on the counter and yelled “next” during the check in process before
the other passengers could even step away from the counter and even
went as far [as] to tell some of the children passengers that they can’t
get on this flight from W ichita to Atlanta. Obviously in the name of
the group, Children’s Choir, you can tell that the majority of the
passengers were minors and they couldn’t fly alone without an adult.
M any of these kids had never flown before. Parents of the
Children’s Choir trusted the group leaders/chaperones with their kids
on this trip.

***

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 I being the travel agent am inclined to say that I will not sell Airtran
ever again for groups. This group spent a lot of money for this trip
and if this is how they’ll be treated on AirTran, I DO NOT want any
of my other groups to experience this. M y clients deserve better.

***

W e expect action to be taken immediately and something to be done
about this situation.

Id.

W hen M s. Dolieslager learned of the complaint on June 13, 2003, she

contacted M s. Senn to find out more about the employee identified as “Gina”

because the only employee named Gina (M s. Dolieslager herself) had not been

working at the ticket counter that morning. M s. Senn’s description of “Gina”

only fit M s. Riggs. Id. at 76. M s. Dolieslager then discussed the incident a

second time w ith M s. Beddow and M s. Spero-M ally. She did not, however,

discuss M s. Senn’s complaint with M s. Riggs, who was on vacation at the time.

M s. Dolieslager then spoke with Amy M orris, the manager of employee

relations and diversity, and recommended that M s. Riggs be terminated.

According to M s. M orris, a supervisor recommending termination should ensure

that the complaining customer was being truthful and investigate the incident to

accumulate all the facts before bringing the matter to her attention. Id. at 93-94.

This investigation typically included obtaining the accused employee’s side of the

story. Id. at 93. M s. M orris testified that she approved M s. Riggs’s termination

for two reasons: (1) M s. Riggs was rude to customers and (2) M s. Riggs

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impersonated her supervisor by saying that she was Gina. Id. at 90.

M s. Riggs was informed of her termination when she returned to work from

her vacation on June 19, 2003. A peer review panel subsequently upheld the

termination decision. M s. Riggs then filed suit against AirTran, alleging a

violation of the ADEA, intentional infliction of emotional distress, and tortious

interference with contractual relations. The district court dismissed the claim of

intentional infliction of emotional distress, and M s. Riggs withdrew her claim of

tortious interference with contractual relations. The district court subsequently

granted AirTran’s motion for summary judgment, determining that M s. Riggs

failed to meet her burden of producing evidence sufficient to show that AirTran’s

proffered reason for the termination was pretextual.

Discussion

W e review the district court’s grant of summary judgment de novo,

applying the same standard used by the district court. Timmerman v. U.S. Bank,

N.A., 483 F.3d 1106, 1112 (10th Cir. 2007). Summary judgment is appropriate

only if “there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c). In

making this determination, we view the evidence in the light most favorable to

M s. Riggs, the non-moving party, and draw all reasonable inferences in her favor.

Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1164 (10th Cir. 2007) (en banc).

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 Under the ADEA, an employer cannot “discharge any individual . . .

because of such individual’s age.” See 29 U.S.C. § 623(a)(1). Thus, a plaintiff

suing under the ADEA must prove that the challenged employment action was

motivated, at least in part, by age. See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 141 (2000). The plaintiff may carry this burden either by

presenting direct evidence of the employer’s discriminatory intent or by

presenting circumstantial evidence creating an inference of a discriminatory

motive using the tripartite M cDonnell Douglas burden-shifting analysis. See

Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002).

Under M cDonnell Douglas, the plaintiff first bears the burden of proving a

prima facie case of discrimination. M cDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). If the plaintiff successfully proves a prima facie case, the

employer must articulate a legitimate, nondiscriminatory reason for the adverse

employment action. Id. Once the employer identifies a legitimate reason for its

action, the burden shifts back to the employee to prove that the proffered

legitimate reason was a pretext for discrimination. See Reeves, 530 U.S. at 148.

Of course, at the summary judgment stage, the parties bear burdens of production

rather than burdens of persuasion. See Timmerman, 483 F.3d at 1113.

M s. Riggs presses two contentions on appeal. First, she argues that the

district court is not constitutionally permitted to determine whether other

employees were “similarly situated” in conducting the pretext analysis on

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summary judgment. Second, she contends that the evidence presented was

sufficient to raise a genuine issue of material fact regarding whether she was

terminated because of her age. W e address each argument in turn.

I.

M s. Riggs first urges us to reverse the grant of summary judgment because

“the lower court here has stepped into the role of fact finder and violated [the]

Seventh Amendment.” 1 Aplt. Br. at 15. At bottom, she argues that “allowing

judges in discrimination cases to make factual distinctions as to who is ‘similarly

situated’ and whether alleged violations were close enough to a plaintiff’s

violations for the purposes of summary judgment is not constitutional.” Id. Her

argument begins w ith M cD onnell Douglas itself, which she describes as an effort

by the Supreme Court to make it easier for plaintiffs alleging discrimination to

get their claims before the finder of fact. Id. at 19; see also Iadimarco v. Runyon,

190 F.3d 151, 161 (3d Cir. 1999) (“[T]he basic point of the M cDonnell Douglas

burden-shifting regime [is] to make it easier for employees to bring claims that

would otherw ise be extraordinarily difficult to prove.”); E.E.O.C. v. G-K -G , Inc.,

39 F.3d 740, 747 (7th Cir. 1994) (same). In her view, M cDonnell Douglas was a

case about “the order and allocation of proof in a private, non-class action

challenging employment discrimination.” A plt. Br. at 20 (quoting M cDonnell

1
The Seventh Amendment provides in relevant part that “[i]n Suits at
comm on law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved . . . .” U .S. Const. Amend. VII.

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Douglas, 411 U.S. at 800 (emphasis added)). Therefore, she argues, parties bear

only a burden of production at the summary judgment stage; that is, they must

merely come forward with some evidence which, if believed, would allow them to

carry their burden of proof at trial.

However, M s. Riggs contends that our precedent has not remained faithful

to M cD onnell Douglas: “A s it stands, courts require a plaintiff to persuade a court

that the plaintiff has proven pretext. This requires the court to weigh the facts.”

Id. at 22. “For instance, if a court, as the lower court here, chooses to believe a

defendant’s argument that the defendant can distinguish offenses or that other

individuals are not similarly situated; [sic] the court’s ruling violates the

constitution . . . .” Id. at 27-28. In other words, M s. Riggs contends that only the

fact-finder may judge whether other employees were similarly situated.

As M s. Riggs notes, M cD onnell Douglas reviewed the district court’s entry

of judgment in favor of the defendant after trial. The Supreme Court ordered the

case remanded so that “on the retrial respondent [can] be given a full and fair

opportunity to demonstrate by competent evidence that the presumptively valid

reasons for his rejection were in fact a coverup for a racially discriminatory

decision.” M cDonnell Douglas, 411 U.S. at 805. M s. Riggs is also correct that

several subsequent applications of the M cDonnell Douglas burden-shifting

framew ork by the Supreme Court have followed full trials. See, e.g., Reeves, 530

U.S. 133; St. M ary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Patterson v.

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M cLean Credit Union, 491 U.S. 164 (1989); Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248 (1981).

However, this does not mean that M cDonnell Douglas is inapplicable at the

summary judgment stage. The summary judgment analysis is “the threshold

inquiry of determining whether there is the need for a trial–whether, in other

words, there are any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in favor of either party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal purposes of

the summary judgment rule is to isolate and dispose of factually unsupported

claims or defenses . . . .”). In the employment discrimination context, there is no

need for a trial if one party has failed to produce sufficient evidence to carry its

burden of persuasion. It is therefore appropriate for a court to reference the

burdens of proof articulated by M cDonnell Douglas in determining whether the

parties have come forw ard with sufficient evidence to make a trial necessary.

See, e.g., Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006) (“Thus, all

that remains before us is to decide whether a genuine issue of material fact exists

as to whether Dillon’s proffered reason for discharging M r. Young was

pretextual.”) (emphasis added).

Our cases have sometimes used general terms like “establish” or “show” in

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describing the burden of production (as the district court did here 2 ) rather than

specifically explaining that, at summary judgment, the nonmovant is only

required to bring forth evidence tending to establish or show the material fact at

issue. However, we have commonly used the word “proffer” in describing the

defendant’s obligation to produce evidence of a legitimate nondiscriminatory

reason for the adverse action, see Zamora, 478 F.3d at 1165, and this word

accurately describes the burden on the plaintiff at the summary judgment stage, as

well; she must proffer some probative evidence that would be sufficient to sustain

her burden of persuasion at trial, but she need not offer conclusive proof to the

court in order to withstand summary judgment.

In an employment discrimination case, evidence of disparate treatment is

2
The district court described its application of M cDonnell Douglas as
follow s:

Defendant has conceded for the purposes of this motion that plaintiff
can establish a prima facie case. The burden then shifts to defendant
to establish a legitimate reason for plaintiff’s termination. Defendant
has asserted that it terminated plaintiff for being rude to the choir
group and impersonating her manager, Gina D olieslager. The court
finds that defendant has met its burden in establishing a legitimate
nondiscriminatory reason. The burden now shifts back to plaintiff to
demonstrate that defendant’s reason is pretext for illegal
discrimination.

R. Doc. 64, at 6 (emphasis added). Context matters, and it is clear to us that the
district court understood that the parties merely bear burdens of production at the
summary judgment stage. See, e.g., id. at 9 (“Plaintiff may also establish pretext
by presenting evidence of age-related comments to demonstrate that defendant’s
reason for termination was false.”) (emphasis added).

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only relevant if the plaintiff can show that he or she “was treated differently from

other similarly-situated employees w ho violated work rules of comparable

seriousness.” Timmerman, 483 F.3d at 1120. Of course, at the summary

judgment stage, the plaintiff need only produce evidence that similarly situated

employees were treated differently. W e have held that “[s]imilarly situated

employees are those who deal with the same supervisor and are subject to the

same standards governing performance evaluation and discipline.” Aramburu v.

Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).

M s. Riggs contends that she carried her burden of production by offering

evidence regarding disciplinary actions taken against six other employees who

were supervised by M s. Dolieslager. She argues that the district court’s rejection

of this evidence involved the impermissible factual determination that these w ere

not “similarly situated” employees. However, we reject the premise of this

argument–that the district court actually made a factual finding.

It is true that “[w]hether two employees are similarly situated ordinarily

presents a question of fact for the jury.” George v. Leavitt, 407 F.3d 405, 414

(D.C. Cir. 2005); see also Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.

2000) (same). However, at summary judgment, the court must determine whether

“plaintiff has adduced enough evidence to support a finding that the [other

employee] and plaintiff were sufficiently similarly situated to support an

inference of discrimination.” M andell v. County of Suffolk, 316 F.3d 368, 380

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(2d Cir. 2003). W ithout such evidence, the jury is not entitled to draw an

inference of discrimination. See E.E.O.C. v. Flasher Co., 986 F.2d 1312, 1319-20

(10th Cir. 1992). Thus, a motion for summary judgment in an employment

discrimination case is no different from a motion for summary judgment in any

other civil action: the court acts as a gatekeeper, granting judgment as a matter of

law unless the plaintiff has adduced relevant and probative evidence sufficient to

support a jury verdict in his or her favor. This does not require a factual finding,

nor does it abridge the Seventh Amendment jury trial right. See Anderson, 477

U.S. at 250.

Accordingly, we reject M s. Riggs’s argument that the district court

improperly weighed evidence in determining that other employees were not

similarly situated. The district court was plainly allowed to make the

determination that M s. Riggs did not produce sufficient evidence of disparate

treatment to create a genuine issue of material fact for trial. W e address whether

this determination w as correct below.

II.

M s. Riggs next argues that the district court erred in concluding that she

failed to come forth with sufficient evidence to create a genuine issue of material

fact. She contends both that she produced sufficient direct evidence of

discrimination to withstand AirTran’s motion for summary judgment and that she

produced sufficient circumstantial evidence to survive under the M cDonnell

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Douglas burden-shifting framew ork. W e disagree.

A.

“Direct evidence is evidence, which if believed, proves the existence of a

fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476

F.3d 847, 855 (10th Cir. 2007). Stated differently, “[d]irect evidence

demonstrates on its face that the employment decision was reached for

discriminatory reasons.” Danville, 292 F.3d at 1249. In contrast, “[s]tatements

of personal opinion, even when reflecting personal bias or prejudice, do not

constitute direct evidence of discrimination, but at most, are only circumstantial

evidence of discrimination because the trier of fact must infer discriminatory

intent from such statements.” Hall, 476 F.3d at 855.

M s. Riggs argues that there is a causal nexus between the discovery of her

age and the “adverse treatment” she received. Aplt. Br. at 36. She explains:

M s. Dolieslager only began treating [M s. Riggs] differently
after learning of her age. Additionally, M s. Dolieslager also began
interfering with M s. Riggs’ duties after she learned of M s. Riggs’
age. This goes beyond the mere statements of opinion. M s.
Dolieslager actually acted on her bias.

Id. (internal citations omitted). As noted above, this “adverse treatment”

consisted of the following: M s. Dolieslager noted on one occasion that M s. Riggs

was as old as her mother; M s. Dolieslager told M s. Riggs at least once that she

was too old to be moving heavy luggage; and M s. Dolieslager admittedly tried to

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assign M s. Riggs to work at the less-demanding gate rather than the ramp. 3 Id.

Although it is difficult to see this treatment as anything less than benevolent, at

the summary judgment stage w e assume that it was unfavorable to M s. Riggs.

Nevertheless, we fail to see a direct link between this treatment and the

termination decision. Notably, M s. Riggs has failed to produce any evidence of

context, so we do not know when these events transpired or whether they have

any temporal proximity to the termination. Likew ise, nothing in M s.

Dolieslager’s statements or actions relates M s. Riggs’s age to any dissatisfaction

with her work. In other words, the finder of fact would need to draw an inference

in order to determine that the outward manifestations of M s. Dolieslager’s alleged

age bias motivated her to terminate M s. Riggs. Our precedent makes clear that

evidence is not “direct” if an inference of discrimination is required. See, e.g.,

Hall, 476 F.3d at 855 (“A statement that can plausibly be interpreted two different

ways–one discriminatory and the other benign–does not directly reflect illegal

animus, and, thus, does not constitute direct evidence.”) (quoting Patten v. W al-

M art Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002)). Therefore, we conclude

that M s. Riggs did not produce sufficient direct evidence of discrimination to

withstand summary judgment.

3
Indeed, M s. Dolieslager testified that M s. Riggs asked not to work the
ramp and “I didn’t want to lose [M s. Riggs] because she was good on gate. So I
worked around it. I kept her off the ramp as much as I could . . . .” Aplt. App. at
264.

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 B.

W ithout direct evidence of age discrimination, M s. Riggs’s claim must rely

on circumstantial evidence and proceed under the M cDonnell Douglas burden-

shifting framework. AirTran concedes that M s. Riggs can establish a prima facie

case, and M s. Riggs does not dispute that AirTran has articulated a legitimate,

nondiscriminatory reason for terminating her. Thus, M s. Riggs must produce

evidence from which a reasonable jury could conclude that the reason given by

AirTran was a pretext for age discrimination.

Pretext can be shown by “such w eaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unw orthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Rivera v. City & County of Denver, 365

F.3d 912, 925 (10th Cir. 2004). W e do not ask whether the employer’s reasons

were wise, fair or correct; the relevant inquiry is w hether the employer honestly

believed its reasons and acted in good faith upon them. Timmerman, 483 F.3d at

1120. “Even a mistaken belief can be a legitimate, non-pretextual reason for an

employment decision.” Piercy v. M aketa, 480 F.3d 1192, 1200 (10th Cir. 2007).

Thus, we consider the facts as they appeared to the person making the decision,

and we do not second-guess the employer’s decision even if it seems in hindsight

that the action taken constituted poor business judgment. Id. “The reason for this

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rule is plain: our role is to prevent intentional discriminatory hiring practices, not

to act as a ‘super personnel department,’ second guessing employers’ honestly

held (even if erroneous) business judgments.” Dillon, 468 F.3d at 1250.

Evidence of pretext may take a variety of forms. See Patterson, 491 U.S. at

187; Kendrick, 220 F.3d at 1230. M s. Riggs contends that she has met her burden

of production by making four proffers of pretext. First, she argues that AirTran

failed to follow its policies and customs, indicating that the termination decision

was not made in good faith. Second, she argues that M s. Dolieslager’s use of

subjective criteria in making the termination decision is indicative of pretext.

Third, she contends that M s. Dolieslager treated similarly situated employees

differently. Finally, M s. Riggs claims that inconsistencies and contradictions in

documentation and testimony demonstrate pretext. Our task is to determine

whether a reasonable jury could disbelieve AirTran’s asserted reasons for

terminating M s. Riggs based on this evidence. See M organ v. Hilti, Inc., 108

F.3d 1319, 1323 (10th Cir. 1997).

1.

M s. Riggs first points to evidence that M s. Dolieslager did not follow

company policy in terminating her. W hile there is no evidence that AirTran has a

written policy against terminating an employee without seeking their response to

a complaint, M s. M orris testified that she would have done so under the

circumstances in this case. Aplt. App. at 94. However, M s. Dolieslager did speak

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with M s. Riggs–and several other employees–about difficulties w ith the choir

group’s check-in on the day that it occurred. Id. at 75, 83. Once she received

M s. Senn’s complaint and learned the full extent of the group’s dissatisfaction

with the service it received, she did not further discuss the incident with M s.

Riggs because M s. Riggs w as on vacation and because M s. Riggs w as the only

employee fitting M s. Senn’s description of “Gina.” Aplee. Br. at 6. Although

allow ing M s. Riggs to complete her side of the story would seem to be the most

fair way of addressing the situation, we cannot say that M s. Dolieslager’s failure

to do so in these circumstances constitutes a “disturbing procedural irregularity”

sufficient to prove pretext. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,

1220 (10th Cir. 2002). There are certainly infractions warranting summary

termination, but deciding whether this was one of them w ould require us to act as

a super-personnel department, not a court. Regardless, this evidence does not

suggest that AirTran’s stated reasons for terminating M s. Riggs were false.

In a similar vein, M s. Riggs contends that it was company policy for the

station manager to tell an employee that he or she was being terminated but that

M s. Dolieslager did not inform her of the termination. This is hardly a disturbing

procedural irregularity, and we fail to see how it implicates the material issues in

the case. Evidence about who informed M s. Riggs of her termination is not

probative of whether the reasons given for the termination were pretextual.

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 2.

M s. Riggs next contends that the subjectivity M s. Dolieslager had in

deciding what information would be considered in making a termination decision

is sufficient to support an inference of pretext. Aplt. Br. at 44. “Courts view

with skepticism the use of subjective evaluations in making termination

decisions.” Plotke v. W hite, 405 F.3d 1092, 1106 (10th Cir. 2005); see also

Garrett, 305 F.3d at 1217-18 (holding that subjectivity by the decisionmaker is

relevant evidence of pretext). However, the existence of subjective criteria alone

is not considered evidence of pretext; rather, the existence of other circumstantial

evidence may provoke a stronger inference of discrimination in the context of

subjective evaluation standards. See Pippin v. Burlington Res. Oil & Gas Co.,

440 F.3d 1186, 1195 (10th Cir. 2006).

Here, M s. Dolieslager had wide latitude in investigating M s. Senn’s

complaint and determining which facts to provide to M s. M orris in recommending

M s. Riggs’s termination. M s. Riggs contends that this subjectivity, coupled with

the evidence of how M s. Dolieslager treated M s. Riggs after learning her age, is

sufficiently indicative of pretext to survive summary judgment. Aplt. Br. at 44.

However, we have recognized that there is a level of subjectivity inherent in any

evaluation process. See Santana v. City & County of Denver, — F.3d— , 2007 W L

1502264, at *4 (10th Cir. 2007). The important question is not whether the

investigation was highly structured but whether M s. Dolieslager had unfettered

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discretion in determining the appropriate punishment. M s. Riggs has not come

forward with evidence that other employees who committed similar offenses w ere

not terminated, and she has not pointed to any evidence showing that M s.

Dolieslager deliberately withheld information from M s. M orris or otherwise

misrepresented her honestly held belief that M s. Riggs was the employee

identified as “Gina” by M s. Senn. Thus, M s. Riggs has not proffered evidence

from which a jury could permissibly infer that M s. Dolieslager used her latitude

in investigating the customer complaint to act on her alleged age bias.

3.

M s. Riggs next contends that AirTran treated her less favorably than other

similarly situated employees. “Similarly situated employees are those who deal

with the same supervisor and are subject to the same standards governing

performance evaluation and discipline.” Timmerman, 483 F.3d at 1120 (quoting

Aramburu, 112 F.3d at 1404). W e have held that evidence that similarly situated

employees received different treatment than the plaintiff is indicative of pretext.

See, e.g., id.; Kendrick, 220 F.3d at 1230.

In opposing summary judgment, M s. Riggs pointed to six AirTran

employees who she claimed received more favorable treatment from M s.

Dolieslager than she did because they were allowed to respond to the allegations

against them. The district court determined that three of these employees could

not be similarly situated because they had not violated workplace rules of

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comparable seriousness. See Timmerman, 483 F.3d at 1121. One, Eric Arndt,

was terminated for using offensive language with his supervisor and failing to

clock in and out. Two others, Amy Tattershall and M ichelle H ill, were

terminated after they drove a company vehicle into a gate and lied to their

supervisor about it. Although all three were customer service agents younger

than M s. Riggs, the district court distinguished their terminations because their

misconduct did not involve customers. Regardless of whether the offenses

comm itted by M r. Arndt, M s. Tattershall and M s. Hill were “egregious and

immediately terminable” as M s. Riggs claims, see Aplt. Br. at 47, no evidence

suggests that the employer considered these offenses to be as egregious as

customer mistreatment. 4

M s. Riggs also alleges that A licia Bulla is a similarly situated employee.

However, the record does not disclose any details about M s. Bulla’s behavior, nor

does it indicate what discipline she ultimately received. M s. Beddow’s hearsay

statement that M s. Bulla “would sometimes get a little rude and short with a

passenger,” see Aplt. App. at 293-94, is not sufficient to show that M s. Bulla and

M s. Riggs were similarly situated.

Finally, M s. Riggs notes that M s. Dolieslager interviewed two of her

4
M s. Riggs contends that “Defendant did not identify rudeness to a
customer as an egregious act that w ould warrant termination.” Aplt. Br. at 47.
However, she bears the burden of producing evidence that these employees were
similarly situated, see W atts v. City of N orman, 270 F.3d 1288, 1293 (10th Cir.
2001), so AirTran’s failure to counter her insufficient evidence is immaterial.

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younger coworkers–Tammy Spero-M ally and Judith Beddow –regarding M s.

Senn’s complaint. The district court concluded that these employees were not

similarly situated because M s. Dolieslager questioned them as witnesses, not

suspects. M s. Riggs contends that this ruling involved an impermissible weighing

of the evidence, alleging that the record contains evidence from which a

reasonable jury could conclude that these women were questioned as suspects.

Aplt. Br. at 46-47. She supports this contention by citing her own testimony that

M s. Spero-M ally and M s. Beddow told her that M s. Dolieslager had asked them

whether they identified themselves as “Gina.” Aplt. App. at 232.

However, in that same testimony, M s. Riggs admitted that she was not

present during this conversation. 5 Id. Accordingly, her hearsay testimony is

inadmissible “in support of, or opposition to, summary judgment.” Starr v. Pearle

Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (noting that “[o]ther circuits

have held that a court may not consider hearsay evidence in depositions submitted

to defeat summary judgment and the Supreme Court impliedly adheres to this

rule”); see also Young, 468 F.3d at 1252 (statements revealing racial animus were

not admissible in establishing pretext because they were made to other employees

and subsequently conveyed, second-hand, to the plaintiff). W ith no admissible

evidence that M s. Spero-M ally and M s. Beddow were interviewed as suspects, no

5
Indeed, M s. Beddow testified that she was never accused of
impersonating the station manager. Aplt. App. at 291.

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reasonable jury could conclude that they were similarly situated.

4.

Finally, M s. Riggs claims that inconsistencies in testimony and

documentation support the inference that AirTran’s reasons for her termination

were pretextual. Although M s. Riggs does not directly identify which documents

were improperly introduced or what testimony was inconsistent, see Aplt. Br. at

47, her argument apparently centers around three pieces of evidence: (1) a

memorandum about her failure to attend a meeting regarding ramp safety; (2) M s.

M orris’s testimony regarding whether she provided employee training; and (3)

M s. Dolieslager’s testimony regarding whether she was responsible for addressing

performance deficiencies. This evidence has no bearing whatsoever on the

incident with the choir group or M s. Dolieslager’s belief that M s. Riggs was the

employee who identified herself as “Gina.” A ccordingly, this evidence is

insufficient to create a jury question regarding pretext.

C.

M s. Riggs also submits that the district court failed to consider the

evidence as a whole in granting summary judgment. See Aplt. Br. at 39. Our

review of the record satisfies us that the district court properly considered the

evidence presented using the M cDonnell Douglas framework. In any case, we

have considered all of M s. Riggs’s contentions as a whole in our de novo review

of the district court’s grant of summary judgment, and we have concluded that

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summary judgment was properly entered in favor of AirTran.

A FFIR ME D.

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