Bittel v. Pfizer, Inc.

FILED
United States Court of Appeals
Tenth Circuit

January 9, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

GENE BITTEL,

Plaintiff - Appellant, No. 07-3311
v. (D. Kansas)
PFIZER, INC., (D.C. No. 6:06-CV-01195-JTM)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.

Plaintiff-Appellant Gene Bittel was terminated from his employment with

Defendant-Appellee Pfizer, Inc. (“Pfizer”) in June 2005. Bittel alleges he was

terminated because of his age in violation of the Age Discrimination in

Employment Act (“ADEA”) and various Kansas employment discrimination

statutes. Pfizer contends it terminated Bittel because of multiple violations of

corporate policy which called his integrity into question and placed Pfizer at risk

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of violating FDA regulations and Pharmaceutical Research and Manufacturers of

America (“PhRMA”) guidelines. While Bittel acknowledges he violated some

company policies, he claims the policy violations were pretextual and he was

actually terminated because of his age. In support, Bittel argues the following:

the company gave varying explanations of his policy violations and the reasons

for his termination; some of the allegations against him were exaggerated, untrue,

or based on nonexistent policies; his younger supervisor’s conduct demonstrated

age-based animus towards Bittel; and Pfizer’s regional workforce as a whole was

getting younger when he was terminated. The district court granted summary

judgment in favor of Pfizer, concluding Bittel had not created a genuine issue of

material fact as to pretext. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we affirm the district court. The evidence, viewed in the light most favorable to

Bittel, only casts doubt on some of the purported policy violations cited by Pfizer

and does not create a genuine issue of material fact as to pretext.

I. Background 1

1
The pertinent facts to this appeal are all taken from the Appendix filed by
Appellant Bittel, which contains the entirety of the record before the district court
when it ruled on the motion for summary judgment. Pfizer filed a Supplemental
Appendix with additional evidence that was not before the district court in order
to “correct and clarify factual misstatements” in Bittel’s opening brief. Because
summary judgment is proper in the absence of the additional evidence in the
Supplemental Appendix, Bittel’s motion to strike the Supplemental Appendix is
granted and the Supplemental Appendix is hereby stricken from the record.

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 Bittel was born in 1955. He became a pharmaceutical sales representative

in 2001 with Pharmacia, Inc., and became a Pfizer employee in 2003 when Pfizer

acquired Pharmacia. His territory covered the northwestern third of Kansas. For

most of Bittel’s tenure at Pfizer, his supervisor was Bill Giltner. Giltner is twelve

years younger than Bittel. Bittel was the oldest sales representative on his sales

team.

In April 2004, Bittel received a regional sales award. Around the same

time, however, Giltner and Giltner’s supervisor, Kevin Malone, placed Bittel on

an immediate action plan, a remedial plan to correct perceived deficiencies in

Bittel’s selling ability. According to Bittel, Giltner was a demanding and

abrasive supervisor. In June 2004, Bittel claims Giltner told him he did not

deserve the sales award he had won. Giltner also allegedly told Bittel that Bittel

“had no respect for [Giltner] because [Bittel] was so much older than he.”

Shortly thereafter, Bittel was placed on a more drastic probationary plan, a

performance improvement plan, due to perceived sales deficiencies. Bittel claims

these probationary measures were imposed despite his achievement of nearly

100% of his sales goals for the year 2004. At the end of the year, Bittel was

taken off formal probationary status, but Giltner indicated Bittel should take part

in various organized promotional activities. Giltner also took extensive notes

regarding Bittel’s job performance and perceived deficiencies, including such

things as his dress and language at company meetings. Giltner took more notes

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on Bittel than he did on any other employee, although he took notes on thirty to

forty percent of his employees. Bittel testified Giltner’s managerial style drove

another employee to quit. A coworker testified Giltner was demanding of

everybody.

Bittel claims he was required to host a teleconference for health care

practitioners in early 2005. He made arrangements to co-host a teleconference

with another representative, but was told by Giltner he would not be considered

the “host.” On short notice, Bittel arranged a separate teleconference, but on the

day of the teleconference he learned the facility he had reserved lacked a

telephone line. Improvising, he instead passed out printed copies of slides which

would have been presented had the teleconference taken place and asked the

doctors to listen to the teleconference on their own time. Pfizer claims this was a

violation of the company’s policies, which closely regulate the form and content

of information disseminated to health care practitioners. 2

This violation was reported to Giltner by another sales representative who

had been present at the meeting. Without mentioning the violation, Giltner later

emailed all of the sales representatives and requested a list of the teleconferences

they had hosted so he could award them points as part of a bonus program called

ACE. Bittel responded and claimed credit for the botched teleconference. Giltner

2
If the information is not accurate or even-handed for example, Pfizer
could violate FDA regulations and PhRMA guidelines.

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awarded Bittel the ACE points even though he had already been informed that the

teleconference had violated company policy.

Concerned about the teleconference and other perceived violations of

company policy, Giltner and Malone arranged a meeting with Bittel. Bittel claims

he was not told the purpose of the meeting. Bittel also claims Giltner told him he

did not plan on attending the meeting. When Bittel arrived, however, Giltner was

present. Bittel says this caused him to lose his composure. Bittel was questioned

about the teleconference and told several different versions of what went on

before telling the truth. During the meeting, Bittel also admitted to copying the

teleconference onto a personal CD, which he was told was a violation of Pfizer

policy. At the end of the meeting, he claims he was never given a warning or told

he was no longer in good standing. After the meeting Malone recommended

firing Bittel and drafted a “final warning letter,” but the letter was never sent to

Bittel. The following day, Giltner called Bittel on two separate occasions. First,

Giltner told Bittel he would not receive a merit pay increase based upon his 2004

sales. Second, Giltner told Bittel his expense report was overdue. Bittel believes

the calls were timed to harass him.

Just over a week after the meeting, Bittel organized, with two other sales

representatives, a “journal club,” an informal periodic meeting where medical

practitioners present recent medical developments to each other. Pharmaceutical

representatives sometimes sponsor these gatherings, and Pfizer policy allows for

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the payment of honoraria to the speakers as long as the audience includes

practitioners who are not co-workers of the speaker. Audience members are not

entitled to payment. For this event, the sales representatives invited practitioners

from multiple clinics, but the only ones who actually attended were co-workers of

the speaker. The representatives paid the speaker anyway, and also paid the

audience members. Bittel informed Giltner of the event after it had taken place.

Giltner reported the incident to Pfizer’s corporate compliance attorneys, but they

recommended no discipline of the participating representatives because the policy

had evidently generated confusion. The other sales representatives who put on

the event were younger than Bittel.

Another Pfizer promotional activity is the awarding of grants for

educational events, including continuing medical education seminars. The sales

representatives complete grant applications and the applications are submitted to

Pfizer for approval. The approval process takes some time, and Bittel claims

doctors are not always able to clear their schedules far enough in advance to

allow Pfizer to process the grant applications before the event takes place. One

solution to this problem is to place a false date on the grant application—if the

event is really going to take place in two weeks, the representative indicates it

will take place in four weeks in order to allow sufficient time for approval.

Bittel claims forward-dating was common practice, although after he was

terminated he admitted it was a violation of PhRMA guidelines. Pfizer points out

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Bittel was unable to provide the name of a single other representative who

engaged in forward-dating. Alison Combs, who worked at a foundation which

requested grants from Pfizer, told Bittel she had forward-dated grant applications

for other sales representatives, but she could not remember who they were. Bittel

also presented e-mails he sent to Giltner which Bittel claims prove Giltner was

aware of forward-dating. The e-mails show that Giltner approved a grant

application for an event with one date, and then approved an agenda for the event

which indicated it would take place on an earlier date.

In May 2005, Bittel informed Giltner he had submitted a forward-dated

grant application and wanted to know if forward-dating was still permitted.

Giltner directed Bittel to contact the person who handled grant applications. He

did so, and was told he would be contacted if there was a problem resolving the

issue. He never heard anything else regarding the matter. In fact, the matter had

been referred to Pfizer’s attorneys for review.

On June 30, 2005, Bittel was terminated. A successor was not immediately

hired because a hiring freeze was in effect, but five co-workers, all of whom were

younger than Bittel, picked up Bittel’s workload. Another sales representative

significantly younger than Bittel was hired in October of 2005 and served Bittel’s

former territory.

In the sixteen-month period following Bittel’s termination, Pfizer hired or

re-hired twenty new sales representatives in Kansas, only two of whom were over

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the age of forty. By contrast, it terminated nineteen people over the same period,

five of whom were over the age of forty. Over a longer period from January 1,

2004, through September 2006, eleven of thirty-one terminations were people

over the age of forty, with two additional thirty-nine year-olds fired during that

period.

Following his termination, Bittel brought suit in the United States District

Court for the District of Kansas against Pfizer pursuant to the ADEA, 29 U.S.C.

§§ 621-634, the Kansas Acts Against Discrimination, Kan. Stat. Ann. §§ 44-1001

to -1044, and the Kansas Age Discrimination in Employment Act, Kan. Stat. Ann.

§§ 44-1111 to -1121. Pfizer moved for summary judgment on all three statutory

claims. Analyzing the ADEA claim and the state law claims in the same manner, 3

the district court granted the motion for summary judgment. The district court

concluded Bittel had made out a prima facie case of age discrimination but had

failed to prove, under the McDonnell Douglas burden-shifting framework,

Pfizer’s proffered reasons for termination were pretextual. Bittel appeals this

ruling.

II. Discussion

3
Kansas courts look to federal standards in evaluating state law employment
discrimination claims. Rebarchek v. Farmers Coop. Elevator, 35 P.3d 892, 898
(Kan. 2001); Beech Aircraft Corp. v. Kan. Human Rights Comm’n, 864 P.2d 1148,
1151-53 (Kan. 1993).

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 This court reviews the district court’s grant of summary judgment de novo,

applying the same standard applied by the district court. Sanders v. Sw. Bell Tel.,

L.P., 544 F.3d 1101, 1104 (10th Cir. 2008). Summary judgment is appropriate

when there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). When applying this standard,

this court views the evidence and draws reasonable inferences in the light most

favorable to the nonmoving party. Sanders, 544 F.3d at 1105.

The ADEA protects employees over the age of forty from being discharged

or otherwise subject to discrimination because of their age. 29 U.S.C.

§§ 623(a)(1), 631(a). The employee’s age must be a determining factor in the

employer’s decision. Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir.

1996). In certain cases, such as when written policies are being challenged,

plaintiffs can prove age discrimination directly. Sanders, 544 F.3d at 1105. In

other instances, plaintiffs must rely upon indirect or circumstantial evidence of

discrimination. Id. Such claims of indirect discrimination are evaluated under

the McDonnell Douglas burden-shifting framework. Id.; see also McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell

Douglas framework, a plaintiff must initially make out a prima facie case of

employment discrimination. Hinds v. Spring/United Mgmt. Co., 523 F.3d 1187,

1195 (10th Cir. 2008). If the plaintiff presents a prima facie case, the employer

then has the burden of showing a legitimate, non-discriminatory reason for the

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adverse employment action. Id. If the employer makes this showing, the burden

shifts to the plaintiff to prove the proffered justification was pretextual. Id.

Here, Bittel acknowledges he has only indirect evidence of discrimination, and

therefore the McDonnell Douglas analysis applies.

A. Prima Facie Case

The initial burden of proving a prima facie case under McDonnell Douglas

is not onerous. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Additionally, due to the wide range of forms discrimination can take in the

employment context, the precise elements of a prima facie case vary from one

setting to the next. Id. at 253 n.6. In this case, the parties agree the proper

elements of a prima facie case are: (1) the plaintiff was a member of the protected

age group at the time of discharge, (2) the plaintiff was doing satisfactory work,

(3) the plaintiff was discharged, and (4) the discharge occurred under

circumstances giving rise to an inference of discrimination. See Hysten v.

Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1181 (10th Cir. 2002).

Bittel satisfies the first and third elements of the prima facie case, since his

age and the nature of the employment action are not at issue. Pfizer also

concedes that Bittel meets his prima facie burden for the second element with his

own declaration that his work was satisfactory. The only remaining issue,

therefore, is whether Bittel has met the fourth element. Pfizer argues Bittel has

failed to prove this element because the only evidence he has to support a claim

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of discrimination are the events leading up to his termination, a “stray remark,”

and the more favorable treatment of non-similarly situated employees.

A plaintiff can prove the fourth prong of the prima facie case by showing,

inter alia, “preferential treatment given to employees outside the protected class.”

Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005) (quotation omitted). Bittel

has presented evidence sufficient to meet his burden at the prima facie stage.

Without considering the proffered reasons for Bittel’s discharge, and considering

the evidence in the light most favorable to Bittel, he was treated more harshly

than younger sales representatives for what appeared to him to be similar policy

violations. Additionally, after Bittel was terminated, his job duties were assumed

by younger employees. These facts are enough for Bittel to present a prima facie

case of age discrimination.

Pfizer has proffered a nondiscriminatory reason for terminating Bittel: it

claims his repeated policy violations called his integrity into question and placed

Pfizer at risk. Bittel concedes this is sufficient to meet Pfizer’s burden at the

second stage. At the third stage of the McDonnell Douglas analysis, Bittel must

present evidence to raise a genuine issue as to whether this proffered reason was

pretext for age discrimination. Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th

Cir. 2008). Bittel may prove pretext by presenting evidence showing “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons” that a jury could infer the employer

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actually acted out of a discriminatory motive. Bryant v. Farmers Ins. Exch., 432

F.3d 1114, 1125 (10th Cir. 2005) (quotation omitted). To determine whether the

plaintiff’s burden has been met, this court must consider all of the plaintiff’s

evidence as a whole. Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir.

2004).

Bittel presents several reasons why Pfizer’s proffered reason was pretext

for age discrimination. First, Bittel contends Pfizer’s explanations of his policy

violations and its stated reasons for his termination have been inconsistent, and,

moreover, its use of subjective criteria suggests pretext. Second, he argues Pfizer

has exaggerated or fabricated policy violations. Third, he contends his

supervisor’s pattern of treatment suggests age animus. Fourth, he presents

statistical data regarding the ages of individuals hired and fired by Pfizer in

Kansas, which he claims indicate age bias.

1. Inconsistent Explanation of Policy Violations and Reasons for
Termination.

Bittel’s first contention is Pfizer’s explanations of his policy violations and

stated reasons for termination have shifted over time. This, he argues,

demonstrates Pfizer’s stated rationale for terminating him was pretextual. Bryant,

432 F.3d at 1125. To show the explanations of the policy violations shifted over

time, Bittel points to statements by Pfizer personnel that he was not disciplined

for any of the policy violations cited as grounds for his termination. Bittel also

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points to a supposed inconsistency in the testimony of Malone, the regional

manager, regarding the reason for his termination. At one point, Malone testified

Bittel was discharged because the totality of his policy violations created an

integrity issue. At another point Malone testified Bittel was terminated because

of the journal club and forward-dating incidents. Moreover, Bittel argues,

integrity is a subjective criterion for evaluating employees, and the use of

subjective criteria can be evidence of pretext. Garrett v. Hewlett-Packard Co.,

305 F.3d 1210, 1217 (10th Cir. 2002). Finally, Bittel argues other employees

were not disciplined for the same or similar conduct.

As for the statements of Pfizer personnel that Bittel was not disciplined for

any of his individual policy violations, this is not strong evidence of pretext.

Regardless of the form of discipline taken for each violation, the evidence shows

each was treated as a potential policy violation when it occurred. After the

teleconference incident Bittel was summoned to a meeting in Denver, interrogated

about the incident, and told he had violated company policy. Similarly, the

journal club and forward-dating incidents were referred to Pfizer’s attorneys

shortly after they took place, indicating those events were treated as policy

violations when they occurred.

Malone’s testimony was not internally inconsistent regarding why Bittel

was terminated. Malone testified the journal club incident and the forward-dating

incident were the two offenses precipitating Pfizer’s decision to terminate Bittel’s

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employment after Pfizer had developed concerns about Bittel’s integrity due to

the teleconference incident. This testimony is wholly consistent with Malone’s

statement that Bittel was terminated because all of his policy violations suggested

he had integrity issues that could put Pfizer at risk. Furthermore, in this context,

Pfizer’s integrity determination was premised wholly upon Bittel’s

misrepresentations to Pfizer and his violation of objective corporate policies.

Therefore, Pfizer did not rely upon subjective criteria in deciding to terminate

Bittel and its integrity explanation is not probative of pretext.

Bittel’s evidence regarding disparate treatment also fails to demonstrate

pretext. As for the teleconference incident, Bittel was the instigator of the event.

He alone distributed unapproved materials, improperly requested ACE reward

points, and lied about the incident to his supervisors. He therefore was not

similarly situated to the other employees involved in the incident. Rivera v. City

& County of Denver, 365 F.3d 912, 924 (10th Cir. 2004) (holding that employers

may view dishonesty as more serious than other policy violations). As for the

journal club incident, even assuming he was similarly situated to the other

employees involved, the evidence established that all of the employees were

treated similarly following the incident since none of the employees were

disciplined. Regarding the forward-dated grant application, Bittel was unable to

discover a single other employee who had forward-dated a grant application, so

he could not present evidence that he was treated more harshly than similarly

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situated employees for that supposed violation. In summary, Bittel did not show

he was treated differently than other employees for similar actions, either because

the actions he engaged in were qualitatively different or because he simply lacks

evidence of disparate treatment.

2. Exaggerated or Falsified Policy Violations.

Bittel also argues Pfizer has exaggerated or falsified his supposed policy

violations. He attacks, in various ways, the journal club speaker fee policy, the

policy prohibiting sales representatives from using homemade promotional

materials (the “anti-homemades policy”), and the policy prohibiting forward-

dated grant applications. He argues the policies currently cited by Pfizer were

either nonexistent or ambiguous at the time he supposedly violated them,

demonstrating pretext.

As to the journal club policy and the anti-homemades policy, Bittel argues

they were confusing. He claims the journal club policy was unclear as to whether

speaker fees were permitted when medical personnel were invited from different

clinics but the only actual attendees were members of the speaker’s clinic. For

the anti-homemades policy, Bittel argues the written policy did not explicitly

prevent the electronic duplication of approved promotional materials.

Interpreting the evidence in the light most favorable to Bittel, we can assume for

the purposes of summary judgment that these policies were ambiguous to sales

representatives in Bittel’s position. Bittel’s interpretation of company policy,

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however, is irrelevant. Instead, the proper inquiry is whether Pfizer honestly

believed Bittel had violated its policy and acted in good faith upon that belief.

See Rivera, 365 F.3d at 924-25 (explaining that the relevant inquiry is whether an

employer acted in good faith upon honestly held beliefs). Bittel has not presented

any evidence to demonstrate Pfizer did not actually believe he had violated these

policies. Therefore, any ambiguity is not probative of pretext.

Next, Bittel claims the forward-dating policy was selectively enforced.

While Bittel acknowledges forward-dating of grant applications violates PhRMA

guidelines, he claims forward-dating was common practice because it was often

difficult to line up speakers far enough in advance to meet the grant approval time

frame. Interpreting the evidence in the light most favorable to Bittel, we will

assume sales representatives had previously forward-dated grant applications with

Giltner’s knowledge and tacit approval.

If falsifying the date of the grant application were the sole reason for

Bittel’s termination, then the inconsistency in applying the policy might create a

genuine issue as to pretext. See Spulak v. K Mart Corp., 894 F.2d 1150, 1155

(10th Cir. 1990). As the facts stand, however, this violation came shortly after a

string of other policy violations, including the improper distribution of slides at

the teleconference, the untruthful statements about what went on during the

teleconference, the duplication of the CD, the request for ACE reward points, and

the payments to the speaker and participants at the journal club. Even if a

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plaintiff casts doubt on one of an employer’s proffered explanations for the

discharge, an employer is still entitled to summary judgment unless the plaintiff

“casts substantial doubt on many of the employer’s multiple reasons [such that]

the jury could reasonably find the employer lacks credibility.” Tyler v. RE/MAX

Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). Bittel has, at best, cast

doubt on whether he was treated consistently as to the forward-dating incident,

but he has not proven this justification was so false as to cast doubt on Pfizer’s

credibility. This evidence thus does not raise a genuine issue as to pretext

regarding the remaining policy violations.

3. Giltner’s Animus Towards Bittel.

Bittel also presented evidence regarding negative treatment by Giltner, his

supervisor. Bittel claims this treatment was so antagonistic it suggested

impermissible animus on Giltner’s part. Because Giltner was his supervisor and

involved in the decision-making process regarding his termination, Bittel argues

Giltner’s animosity is evidence of discrimination on the part of Pfizer.

Bittel offers several examples of Giltner’s animosity. The first example,

and in Bittel’s view the most significant, is Giltner’s remark that he believed

Bittel did not respect him because of his age. In order to establish pretext, Bittel

must show a nexus between the comment and the adverse employment action.

Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000); Cone v.

Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (“Isolated

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comments, unrelated to the challenged action, are insufficient to show

discriminatory animus in termination decisions.”). The comment by Giltner was

not a “stray remark” because it was directed towards Bittel and was made by an

individual involved in determining Bittel’s employment status. See Tomsic v.

State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479 (10th Cir. 1996). However,

the comment was made over a year before Bittel was terminated. Between the

comment and the termination, Bittel was placed on, and removed from, a

performance improvement plan, and Bittel also committed all of the policy

violations cited by Pfizer as grounds for his termination. Under these

circumstances, the comment is simply too far attenuated from Bittel’s termination

to be probative of Pfizer’s motivation. See Antonio v. Sygma Network, Inc., 458

F.3d 1177, 1184 (10th Cir. 2006) (holding that racial remark made by one person

involved in termination decision ten months before termination was too remote to

support a finding of pretext).

Bittel argues there was other evidence of Giltner’s animus. Bittel points to

evidence that Giltner took extensive notes on him and berated, harassed, and

humiliated him. Shortly after Bittel won his sales award, Giltner put him on an

immediate action plan and later a performance improvement plan, which Bittel

believes was an effort to force him out of the company. After Bittel was removed

from his performance improvement plan due to improved sales figures, Bittel

contends Giltner tried to force him out of the company by setting him up to

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commit the policy violations. Specifically, Bittel argues Giltner pressured him

into setting up the teleconference on short notice, solicited Bittel’s ACE points

request without telling Bittel he knew the teleconference had not occurred as

planned, ambushed Bittel at the post-teleconference meeting with Malone, forced

Bittel to put on a journal club, and did not inform Bittel he had violated Pfizer

policy by forward-dating the grant application. Taken together, Bittel contends

these actions constituted a concerted effort by Giltner to engineer Bittel’s

termination and replacement with a younger, more submissive employee.

Although Giltner took more notes on Bittel than he did on anyone else, he

took notes on thirty to forty percent of his team, and Bittel did not present

evidence that older employees were singled out for note-taking. On the contrary,

the evidence suggests Giltner was tough on all of his employees. While Bittel

argues his placement on a performance improvement plan is evidence of pretext,

at least one other individual under the age of forty was placed on a performance

improvement plan despite sales numbers as high as Bittel’s. The probative value

of Bittel’s placement on a performance improvement plan is also significantly

diluted by his subsequent removal from it. In summary, Bittel has scant evidence

that Giltner’s negativity towards him was motivated by age bias, and even less

evidence that this bias was the reason for his termination. See Honce v. Vigil, 1

F.3d 1085, 1089 n.1 (10th Cir. 1993) (stating tenant could not prove disparate

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treatment based upon sex when landlord was “equally nasty” to all tenants and

evicted tenants of both sexes).

Bittel’s theory about Giltner masterminding his termination by setting him

up for failure is sheer speculation. Bittel has failed to show Giltner made any

special demands upon him. The events Bittel was “forced” to host, namely the

teleconference and the journal club, were events that all sales representatives

under Giltner were expected to organize. Gilter asked all of his employees to

submit requests for ACE points. Assuming Giltner misled Bittel about his

presence at the meeting following the teleconference incident, it would be pure

conjecture to conclude Giltner did so with the intent to surprise Bittel into lying

about his activities. Bittel has not presented sufficient evidence to permit this

court to infer the existence of a concerted plan to induce Bittel’s policy

violations.

4. Statistical Evidence.

Bittel cites statistics regarding the ages of individuals who are hired and

fired at Pfizer and claims they demonstrate age bias. While this statistical

evidence may not be sufficient to raise an issue as to pretext when considered in

isolation, Bittel claims it should be viewed in conjunction with the rest of the

evidence as probative of pretext. In order to be probative of discrimination,

statistical evidence must “eliminate nondiscriminatory explanations for the

disparity.” Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991).

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 Bittel’s statistics show that older workers were terminated at a greater rate

than they were hired, and younger workers were hired at a greater rate than they

were terminated. These statistics, however, do not show disparate treatment of

older workers because they control for neither the ages of applicants who were

not hired nor the ages of employees who were not terminated. If more young

people are applying for jobs, for example, Pfizer would probably hire them in

greater proportion than older people. Likewise, if Pfizer’s existing workforce is

skewed towards older workers, it would be unsurprising for more older employees

to be terminated. These are nondiscriminatory explanations for the statistical

variations that must be eliminated if the statistics are to be probative of

discrimination. Id. at 746-47. Because Bittel did not rule out these possible

explanations for the hiring and termination rates, his statistical data are not

probative of pretext.

5. Considering the Evidence as a Whole.

To survive summary judgment, Bittel need not raise a genuine issue as to

pretext with any individual piece of evidence. Rather, his claim survives if all of

his evidence, taken together, creates a genuine issue as to pretext. Annett, 371

F.3d at 1241. A great deal of the evidence Bittel presented, however, is not

probative of pretext. The only evidence that is probative of pretext is: the

ambiguity of the speaker fee and homemades policies, the past practice of

forward-dating grant applications, and Giltner misleading Bittel on several

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occasions. None of this evidence exculpates Bittel’s violation of the

teleconference policy, his untrue statements when asked about the teleconference,

his improper request for ACE points, or his improper payments to non-speakers at

the journal club. Bittel was terminated shortly after he violated a series of Pfizer

policies, some of which Pfizer claims could have exposed it to serious liability for

violating federal regulations or PhRMA guidelines. A rational factfinder could

come to only one conclusion regarding Bittel’s termination: he was terminated

because of this spate of policy violations, not his age. Because Bittel did not

raise a genuine issue of material fact as to pretext and Pfizer was entitled to

judgment as a matter of law, the district court was correct in granting summary

judgment in favor of Pfizer.

III. Conclusion

For the foregoing reasons, Pfizer is entitled to summary judgment and the

judgment of the district court is therefore AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

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