Tharon Paup v. Gear Products, Inc.

FILED
United States Court of Appeals
Tenth Circuit

June 19, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

THARON PAUP; CAROL J.
SHUFFITT; GWEN COFFELT,

Plaintiffs-Appellants,
No. 07-5164
v.
(D.C. No. 4:05-CV-214-TCK)
(N.D. Okla.)
GEAR PRODUCTS, INC., a
corporation,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before MURPHY, HARTZ, and GORSUCH, Circuit Judges.

Gear Products, Inc. discharged Gwen Coffelt, Tharon Paup, and Carol

Shuffitt in 2001. The three former employees filed suit contending that the

company based their discharge on impermissible age discrimination in violation

of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(“ADEA”). The district court granted summary judgment to Gear Products, and

the plaintiffs now seek reversal of that disposition.

*
This order and judgment is not binding precedent except under the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.
 Before we reach the merits of the plaintiffs’ ADEA claims, Gear Products

submits that Ms. Coffelt’s claim should be dismissed because she failed to

disclose it as an asset in her personal bankruptcy proceedings. In the company’s

view, Ms. Coffelt should not be allowed to keep for herself an asset she had a

duty to reveal and potentially remit to her creditors during her bankruptcy. Our

precedent compels us to agree and so we affirm the entry of summary judgment

against Ms. Coffelt on this basis. Arriving at the merits of Ms. Paup’s and Ms.

Shuffitt’s remaining ADEA claims, and viewing the facts adduced at summary

judgment in the light most favorable to the employees, we conclude that those

plaintiffs have advanced a prima facie case of age discrimination and proffered

evidence from which a reasonable trier of fact could find Gear Products’s

nondiscriminatory reasons for their discharge pretextual. At the end of the day,

then, we reverse the district court’s entry of summary judgment against Ms. Paup

and Ms. Shuffitt but affirm its entry against Ms. Coffelt.

I

A

From its Tulsa, Oklahoma production facility, Gear Products sells power

transmissions and gears used in the forestry, construction, and utilities industries.

In early 2001, the company began to experience a series of financial setbacks.

Responding to its difficulties, the company asked for voluntary resignations, cut

back on overtime, reduced its workforce by way of attrition, and consolidated

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vacant positions. Despite its efforts, Gear Products’s parent company, Blount

International, Inc. (“Blount”), instructed Gear Products that it needed to reduce its

operating costs further by undertaking what became a series of three reductions in

force (“RIF”) that led to the discharge of approximately 39 (out of some 170 or

so) employees.

In the particular RIF that gives rise to the suit before us, Gear Products’s

third, Blount told Gear Products that, despite all the company’s prior efforts and

two earlier RIFs, at least three more employees had to go. Tim Simmons, the

company’s Fed.R.Civ.P. 30(b)(6) corporate representative, offered the following

as his understanding of how Gear Products responded.

Gear Products’s President, Tom Brenton, called a meeting with his

management committee to decide which employees would be discharged. Besides

Mr. Brenton, the committee included Mr. Simmons, the company’s controller,

human resources manager Robin Bond, vice-president of engineering Steve

Copeland, quality manager Dick Gregory, as well as sales and marketing vice

president Jeffrey Schmale. The committee was informed that Gear Products’s

core business would be best insulated from adverse effects if the RIF were limited

to the company’s eight administrative or clerical employees, a pool that included

the plaintiffs. The committee then agreed to rank each of the eight employees on

a five-point scale in each of the following categories: flexibility, sense of

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urgency, initiative, self-starter, multitasking abilities, accuracy, and attitude. The

three lowest-ranked employees would be released.

After committee members finished scoring each employee, the committee

disbanded while either Mr. Brenton or Ms. Bond compiled the scores. The scores

were as follows, together with each employee’s age at the time, and the three

plaintiffs before us noted in bold:

Name Score Age
Sally Farmer 28 points 50
Alissa Tanner 19.5 points 33
Brian Callendar 19 points 36
Bill Vickers 19 points 50
Gwen Coffelt 18.5 points 63
Tharon Paup 15 points 58
Peggy West 15 points 58
Carol Shuffitt 10 points 59

When the other committee members returned, they were told that Ms.

Shuffitt, Ms. Paup, and Ms. Coffelt would be discharged. They were not

informed of the employees’ scores in the rankings. Neither were they informed

that Ms. Bond or Mr. Brenton deviated from the plan to discharge the three

lowest-ranked employees by selecting Ms. Coffelt, rather than Ms. West, for

discharge.

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 B

Believing their terminations were based on unlawful age discrimination, the

plaintiffs filed suit before the Oklahoma Human Rights Commission (“OHRC”). 1

In response to the suit, Ms. Bond (evidently) prepared a document entitled the

“Overview Matrix,” which purports to explain why each employee was

terminated. 2 The Overview Matrix tells a somewhat different story about the

plaintiffs’ termination than the one the company’s corporate representative, Mr.

Simmons, offered as his understanding.

For Ms. Paup, the Overview Matrix represents that the company informally

approached her with the idea of transferring her from her current position as

purchasing coordinator to a position she had held previously. Had she “shown

any interest in returning to her original position,” she would likely not have been

terminated. App. at 106. But she indicated her reluctance to move. According to

the Overview Matrix, the company then decided that, “while [her] work

1
The OHRC is empowered under 74 Ok.St.Ann.§ 953(e) to receive and
investigate complaints of discrimination. The OHRC can recommend ways of
eliminating injustice occasioned by the discrimination and can serve as
conciliator; it has no independent method of enforcing its determinations. Id. If a
complainant before the OHRC receives a “reasonable cause” determination, he or
she can pursue the claim through the Equal Employment Opportunity Commission
(pursuant to a work-sharing agreement) or invoke the right to sue under Title VII
(as plaintiffs did in this case).
2
At least, Mr. Simmons testified that he “believe[d]” that the Overview
Matrix was prepared by Ms. Bond. App. at 318. We have no indication other
than his testimony as to who else at Gear Products might have contributed to the
drafting of the document.

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performance was good,” it had to terminate her because “her position was

recognized as one that had to be eliminated to cut costs, at least temporarily.” Id.

Because it could not lay off Ms. Paup until another employee, whose work Ms.

Paup had temporarily taken over, returned from FMLA leave, the company

decided to delay the layoffs.

As for Ms. Shuffitt, the company asserts in the Overview Matrix that “the

decision to eliminate [her] position was made mainly due to the fact that her

position was one that would have the least negative impact on the organization as

a whole.” Id. at 116. The Overview Matrix notes some performance issues Ms.

Shuffitt had been having – such as talking too much with others and not learning

necessary software skills – and references her low score in the rankings process

undertaken by the management committee. The company explored placing Ms.

Shuffitt in a sales secretary position as it was non-expendable, but ultimately

decided against doing so because of the steep learning curve that would be

involved. Another option the company explored was to place Ms. Shuffitt in the

switchboard operator position, which was also deemed non-expendable.

However, another employee, Ms. West, excelled in that position, and Ms. Shuffitt

had indicated previously that she resented doing tasks she perceived as beneath

her; Ms. West thus was retained for the position over Ms. Shuffitt.

Finally, regarding Ms. Coffelt, the Overview Matrix begins by noting that

her position was “highly administrative” and that “some things were done by [her]

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because she desired to have control of all processes.” Id. at 121. “Due to the

economic times,” the company could not “afford the luxury of someone who

checked and re-checked.” Id. When the company informed Ms. Coffelt that it

was eliminating her position, she asked for the position of a CAD designer.

However, transferring her to that position would require extensive training, and

the company explains that “[w]hile we would have liked to have had the time to

train Gwen [Coffelt], it was not feasible under these circumstances.” Id.

When confronted with the Overview Matrix at his deposition, the

company’s corporate representative stated that he had no knowledge of the facts it

contains. Neither does the document identify the individuals who purportedly

made the decisions described by the Overview Matrix, speaking instead in the

voice of the indeterminate “we.” When asked whether there is “any way the

company could know whether those things happened or didn’t happen . . . other

than the document itself” the company’s corporate representative replied simply

“other than the document itself,” implying no. Id. And when asked “[a]s far as

you know, there is no way for the company to determine who the actors [are that]

were involved; is that true?” he answered “[t]hat’s correct.” Id.

C

Eventually plaintiffs received authorization to sue from the OHRC and

brought this age discrimination suit in federal court. After two years of

discovery, Gear Products moved for summary judgment on the basis that the

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plaintiffs failed to establish a triable question of age discrimination. The

company also moved for summary judgment against Ms. Coffelt on the basis of

judicial estoppel. Gear Products noted that, following the filing of this lawsuit,

Ms. Coffelt declared bankruptcy but failed to disclose her ADEA claim as a

potential asset in any relevant portion of her bankruptcy pleadings; the company

argued that Ms. Coffelt should not be permitted to “hide” a potentially valuable

lawsuit from her creditors while pursuing it for herself.

The district court denied summary judgment on judicial estoppel grounds,

but granted it on the merits of plaintiffs’ ADEA claims. After Gear Products filed

its motion for summary judgment, but before the district court’s ruling, Ms.

Coffelt reopened her bankruptcy proceedings, disclosed her ADEA lawsuit, and

successfully moved to have a bankruptcy trustee substituted for her in this suit.

In light of these developments, the district court found estoppel inappropriate.

The trustee, the court noted, had done nothing wrong and was pursuing the claim

for the benefit of Ms. Coffelt’s creditors. The court saw no reason to punish the

trustee and Ms. Coffelt’s creditors for any wrong committed only by Ms. Coffelt.

The court cautioned, however, that had Ms. Coffelt remained a party before it, it

might have applied judicial estoppel. Turning to the merits of plaintiffs’ ADEA

suit, the district court granted Gear Products’s summary judgment motion,

holding that the company had offered legitimate reasons for its behavior and that

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plaintiffs had failed to present evidence from which a reasonable jury could find

those reasons pretextual.

Ms. Paup and Ms. Shuffitt now appeal. Ms. Coffelt, but not her

bankruptcy trustee, also seeks to appeal. After assessing the district court’s

summary judgment decision, the trustee declined to pursue this matter further on

behalf of Ms. Coffelt’s creditors. Under 11 U.S.C. § 554(c), 3 Ms. Coffelt’s

ADEA claim reverted back to her for her own personal benefit, and it is she

(alone) who appeals the disposition of her claim.

II

Prior to reaching the merits of the plaintiffs’ ADEA claims, Gear Products

urges us to revisit the question of judicial estoppel with respect to Ms. Coffelt.

The company does not question the district court’s decision to permit a trustee to

pursue her ADEA claim. But, the company argues, Ms. Coffelt should not be

permitted to reinsert herself into this suit and pursue it on her own behalf. Our

precedent compels us to agree.

A

Judicial estoppel is an equitable doctrine aimed at “protect[ing] the

integrity of the judicial process by prohibiting parties from deliberately changing

3
11 U.S.C. § 554(c) states in pertinent part: “[A]ny property scheduled
under section 521(1) of this title not otherwise administered at the time of the
closing of a case is abandoned to the debtor and administered for purposes of
section 305 of this title.”

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positions according to the exigencies of the moment.” New Hampshire v. Maine,

532 U.S. 742, 749-50 (2001) (citation and internal quotations omitted). Where a

party successfully asserts a position in a legal proceeding, he or she may not

assert a contrary position in later proceedings “simply because his [or her]

interests have changed.” Id. at 749.

While the doctrine is discretionary, we have generally applied it when three

factors are met. Id. at 750. First, “a party’s subsequent position must be clearly

inconsistent with its former position.” Eastman v. Union Pacific R.R. Co., 493

F.3d 1151, 1156 (10th Cir. 2007) (internal quotation marks omitted). Second, a

party must succeed “in persuading a court to accept that party’s former position,

so that judicial acceptance of an inconsistent position in a later proceeding would

create the perception that either the first or second court was misled.” Id.

(emphasis, brackets, and internal quotation marks omitted). Third, we must find

that “the party seeking to assert an inconsistent position would gain an unfair

advantage in the litigation if not estopped.” Id. In evaluating these factors at

summary judgment, we view the facts, and all reasonable inferences that can be

drawn from them, in the light most favorable to the party against whom estoppel

is sought. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir.

2008).

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 1

In asking whether Ms. Coffelt has taken “clearly inconsistent” litigation

positions, Eastman, 493 F.3d at 1156, we look to the information Ms. Coffelt

supplied in her bankruptcy petition and compare it with the actions she took in

her ADEA case. After receiving a federal right to sue letter from the OHRC, Ms.

Coffelt exercised that right by filing her ADEA claim in federal court on

April 20, 2005. Less than six months later, and in the midst of discovery, Ms.

Coffelt and her husband filed for Chapter 7 bankruptcy. As part of her petition,

Ms. Coffelt was required to complete a Statement of Financial Affairs. Question

4 asked Ms. Coffelt to “[l]ist all suits and administrative proceedings to which the

debtor is or was a party within one year immediately preceding the filing of this

bankruptcy case.” App. at 146 (emphasis added). Despite the fact that she had

filed her lawsuit just six months earlier, Ms. Coffelt checked the box “None,” and

then signed under penalty of perjury that her statements were accurate. Id. at 146,

150. Her position in the bankruptcy court was thus inconsistent with her position

before the district court: she represented to her creditors that she had no pending

lawsuit while pursuing just such a suit for her own benefit.

Ms. Coffelt does not explain why she failed to disclose her ADEA suit.

She does not assert, for example, that she was confused about the meaning of the

question. Or that she forgot about her ADEA suit when compiling her petition.

See Eastman, 493 F.3d at 1157 (judicial estoppel may not apply if the “party’s

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prior position was based on inadvertence or mistake”). Neither could she readily

do so. Ms. Coffelt apparently understood the meaning of “suit” well enough to

file one after the OHRC notified her that she had such a right. See id. at 1159

(plaintiff understood the meaning of “suit” because he listed two collection suits

against him in the same petition in which he omitted a suit from which he could

gain financially). And she filed her ADEA suit less than six months before her

bankruptcy petition, so it would be difficult indeed “to believe that such a sizable

claim could have been overlooked when [she] was filling in the bankruptcy

schedules.” Id. (internal ellipsis omitted).

2

We next ask whether Ms. Coffelt “succeeded in persuading” a court to

accept her inconsistent position such that the situation “create[s] the perception”

that the bankruptcy court was misled. Id. at 1156. Our concern is not so much

with whether Ms. Coffelt acted with some nefarious motive as it is with whether

her actions led the bankruptcy court “to accept [her] position, so that judicial

acceptance of an inconsistent position in a later proceeding” would introduce the

“risk of inconsistent court determinations and thus pose . . . [a] threat to judicial

integrity.” New Hampshire, 532 U.S. at 750, 751 (internal citation omitted); see

also Eastman, 493 F.3d at 1159 (the fact that a debtor’s conduct was the result of

being “‘unsophisticated’ and ‘unschooled’” or the result of his or her attorney

having “‘bl[own] it’ is insufficient to withstand application of the doctrine”).

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 We find such concerns present here. Based on her incomplete bankruptcy

disclosures, the trustee appointed to administer Ms. Coffelt’s estate concluded

that she did not have any assets, a position the bankruptcy court subsequently

adopted when it granted Ms. Coffelt a “no asset” discharge. App. at 159-60. This

discharge relieved Ms. Coffelt of her debts without her having to reimburse her

creditors. See id. at 391. Yet, in her ADEA litigation, Ms. Coffelt claimed an

asset for herself that predated her bankruptcy – she, rather than her creditors,

sought the full benefit of this pre-petition asset. We have previously held that

just such a result gives rise to “the obvious perception” that the bankruptcy court

was misled. Eastman, 493 F.3d at 1159. This perception is made even more

apparent because Ms. Coffelt disclosed her ADEA claim to her creditors and the

bankruptcy court only when her failure to do so was revealed by Gear Products’s

summary judgment motion.

3

The final question before us is whether, if Ms. Coffelt were allowed to

pursue her ADEA claim, she “would gain an unfair advantage” over her

bankruptcy creditors. Id. at 1156. It is here that Ms. Coffelt mounts her primary

defense against the application of judicial estoppel. She argues that, while she

may not have disclosed this lawsuit in her initial bankruptcy petition, she did

(eventually) reveal the suit. In light of the fact that she ultimately disclosed the

suit and gave her trustee the chance to pursue it for her creditors’ benefit – a

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chance the trustee ultimately abandoned – she argues there is nothing “unfair” in

allowing her to proceed with this appeal.

Whatever we might make of Ms. Coffelt’s argument were we writing on a

blank slate, it is foreclosed by our precedent. In Eastman we applied judicial

estoppel to preclude an appeal in virtually identical circumstances, holding that a

party should not be allowed to “‘back up’ and benefit from the reopening of his

[or her] bankruptcy only after [the] omission had been exposed.” Id. at 1160. If

debtors could do so, they would have little incentive to be “completely truthful”

in their initial disclosures. Id. at 1159. Instead, they would have a non-trivial

incentive to try to game the system by disclosing civil lawsuits in their

bankruptcy proceedings only when they must, not when they should. Id.

We see no way fairly to distinguish Eastman’s holding or rationale in Ms.

Coffelt’s case. In Eastman, just as here, a personal injury plaintiff, Wayne

Gardner, moved to reopen his bankruptcy proceedings and disclose his personal

injury claim only after his personal injury attorney discovered that Mr. Gardner

had misled the bankruptcy court by concealing his lawsuit. Id. at 1154. A

bankruptcy trustee then intervened in Mr. Gardner’s stead in the personal injury

suit, settled with two defendants, recouped enough assets to make Mr. Gardner’s

creditors whole, and eventually abandoned any claims against the remaining

defendants. Id. at 1155. At that point, Mr. Gardner sought to reenter the suit and

appeal an adverse ruling, stressing that he had rectified his initial failure to

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disclose, that his trustee had abandoned the suit, and that his creditors had been

made whole. Id. at 1155, 1160. We nonetheless applied judicial estoppel to

preclude his appeal, noting that any other result would encourage debtors to

disclose assets only when they are “caught concealing them.” Id. at 1160.

Exactly the same circumstances save one pertain here. Unlike Mr. Gardner, Ms.

Coffelt seeks to pursue damages for her own benefit in a case for which her

creditors have received and will receive nothing. Surely this cuts even further

against allowing Ms. Coffelt to proceed.

III

This still leaves Ms. Paup’s and Ms. Shuffitt’s appeal of the district court’s

summary judgment dismissal of their ADEA claims. An ADEA claim arises when

an employer “discharge[s] an[] individual . . . because of such individual’s age.”

29 U.S.C. § 623(a)(1). Because Ms. Paup and Ms. Shuffitt rely on circumstantial

evidence to prove their claim, we analyze whether summary judgment is merited

in accord with the framework suggested by McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973). Under McDonnell Douglas, the plaintiffs bear the

burden of establishing a prima facie case of age discrimination. If they succeed

in doing so, the defendant must come forward with some legitimate, non-

discriminatory reason for the adverse employment action. If the defendant

shoulders this obligation, the burden shifts back to the plaintiffs to present

evidence from which a reasonable factfinder could conclude that the employer’s

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offered reason is pretextual. See Hinds, 523 F.3d at 1195. In this, as in all

summary judgment dispositions, our review of the district court’s decision

granting summary judgment to Gear Products is de novo, viewing the facts, and

all reasonable inferences those facts support, in the light most favorable to Ms.

Paup and Ms. Shuffitt as the non-movants. Id.

A

To make out a prima facie case of age discrimination under McDonnell

Douglas, plaintiffs affected by a RIF must show that they (i) were within a

protected age group, (ii) were doing satisfactory work, (iii) were discharged

despite the adequacy of their work, and (iv) have some evidence the employer

intended to discriminate. Id. at 1195. The prima facie hurdle is not an onerous

one, see Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005), and in

our case only the second and fourth elements are at issue; it is undisputed that

Ms. Shuffitt and Ms. Paup fell within the protected age group and were

discharged.

On the second element, plaintiffs have put forth evidence, in the form of

their lengthy tenures at Gear Products and their survival of two prior RIFs, that

they were doing satisfactory work. Gear Products argues that at least Ms. Shuffitt

was performing inadequately, stressing that she was previously counseled about

tardy work product, gossiping with coworkers, and unacceptable time spent away

from her desk. But, however considerable Gear Products’s evidence and though it

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may be relevant to later stages of the McDonnell Douglas inquiry, at the prima

facie stage Ms. Shuffitt need only provide “some evidence of good performance”

to carry her burden. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420

(10th Cir. 1991). That much she has done.

On the fourth element, plaintiffs have presented evidence that they were

terminated during a RIF process in which similarly situated younger employees

were retained. Our precedent is clear that “a plaintiff who is fired pursuant to

a[n] RIF and who held a similar position to a younger retained employee can

satisfy the fourth element.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1167

(10th Cir. 1998); see also Hinds, 523 F.3d at 1195-96. Mr. Simmons and the

Overview Matrix both describe the pool of employees considered for termination

as consisting of eight employees occupying administrative and clerical support

positions. App. at 85-86, 102. Of the employees retained from this pool, none

was older than the plaintiffs, and four were younger. While Gear Products

stresses that two of the similarly situated employees were younger than Ms. Paup

by only eight years, and that such an age difference is insignificant as a matter of

law, in Whittington v. Nordham Group Inc., 429 F.3d 986, 995 (10th Cir. 2005),

we rejected an employer’s argument that a difference of five years is legally

insignificant; of course, if five years can be significant, so can eight. Because

Ms. Paup and Ms. Shuffitt were terminated in a RIF process in which younger,

similarly situated employees were retained, they have satisfied the fourth element.

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 As to Ms. Paup, Gear Products replies that, because the company first hired

her when she was already within the age class protected by the ADEA (Ms. Paup

was forty-five when hired), a reasonable factfinder could not infer that the

company would later discriminate against her on the basis of age. In support of

this contention, the company cites Kadas v. MCI Systemhouse Corp., 255 F.3d

359 (7th Cir. 2001). In that case, a 54-year-old plaintiff “was hired specifically

to service a large health care client of the defendant.” Id. at 360. A few weeks

later, the employer lost the client, discontinued its health-care practice, and then

discharged the plaintiff only five months after he had been hired. Id. Affirming

the district court’s grant of summary judgment to the employer, the Seventh

Circuit observed that

it is eminently reasonable to doubt that . . . a worker hired at an age
well beyond that at which the protections of the age discrimination
law click in and terminated within months, that is, before he is
appreciably older, was a victim of age discrimination. A company
that didn’t want 54-year-olds on its payroll would be unlikely to hire
one rather than to hire one and promptly fire him, thus inviting a
lawsuit because terminated workers are much more likely to sue than
ones who have merely not been hired, because of the greater
difficulty of proving damages in the latter case.

Id. at 361–62 (citations omitted).

While we agree entirely with the Seventh Circuit’s analysis, we disagree

with Gear Products that it pertains to Ms. Paup. Unlike Mr. Kadas, Ms. Paup

worked for Gear Products not for a matter of mere months, but for thirteen years,

and she had become “appreciably older” by the time she was terminated. Age is

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unusual in that it is a protected class in which an employee becomes more

susceptible to unlawful discrimination over time. Simply because an employer

harbors no age animus toward forty-five year-old employees does not necessarily

mean it feels the same about fifty-eight year-old employees. Moreover, Mr.

Kadas was hired and fired by the same manager, and it would be eminently

unreasonable to think that the manager became “ageist” overnight. By contrast,

Ms. Paup had many managers over the course of her tenure at Gear Products, and

was under the management of a new president at the time of her termination.

Now, all this is not to say Gear Products lacks a triable argument that any

inference of age discrimination in the RIF process is disproven by the company’s

practice of hiring people in the ADEA’s age protected class. It is only to say that

Gear Products’s plausible trial argument is insufficient to defeat Ms. Paup’s

prima facie case.

B

Because Ms. Paup and Ms. Shuffitt have cleared the hurdle of establishing

a prima facie case, the burden shifts to Gear Products to advance a legitimate

nondiscriminatory reason for its discharge decision. To succeed does not require

much. Gear Products “need not persuade the court that it was actually motivated

by the proffered reasons,” but must merely “set forth, through the introduction of

admissible evidence, the reasons for the plaintiff’s [termination].” Texas Dept. of

Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981).

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 Gear Products has met its burden in this case. Before us, Gear Products

explains that it discharged Ms. Paup because her position “was completely

eliminated because it was primarily clerical in nature and the responsibilities of

the position could be easily absorbed by others or eliminated in their entirety.”

Appellee. Br. at 24. Its explanation is supported by citations to the Overview

Matrix, in which the company explains that, “[w]hile Tharon[] [Paup’s] work

performance was good, her position was recognized as one that had to be

eliminated to cut costs.” App. at 106. As for Ms. Shuffitt, the company’s brief

asserts that her discharge was based on the fact that her position “was eliminated

because it was not a full-time position. It was determined that the minimal duties

of the executive administrative assistant position could be easily absorbed by

others or eliminated in their entirety.” Appellee Br. at 27-28. Here again the

company’s explanation is supported by a citation to the Overview Matrix, which

confirms that “[t]he decision to eliminate Carol[] [Shuffitt’s] position was made

mainly due to the fact that her position was one that would have the least negative

impact on the organization as a whole.” App. at 117. In no uncertain terms, then,

Gear Products asserts before us that it terminated Ms. Paup and Ms. Shuffitt

based on the legitimate and nondiscriminatory reason that their positions were

expendable. 4

4
For Ms. Shuffitt (but not Ms. Paup) the Overview Matrix also references
her weak performance scores in the management committee’s ranking process.
(continued...)

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 Plaintiffs respond in part by challenging the admissibility of the Overview

Matrix on which Gear Products’s proffered business justifications rely. And

plaintiffs surely have something of a point. The Overview Matrix is supported by

neither an affidavit nor a declaration from an individual with personal knowledge

of the facts it contains, as required in summary judgment practice. See Fed. R.

Civ. P. 56(e)(1). Worse still, the document itself never identifies any person who

made any decision (again, speaking only in the indeterminate plural voice, “we”)

and it was prepared by the company not in the ordinary course of business but in

anticipation of, even in the midst of, litigation before the OHRC. Despite these

glaring deficiencies, however, it is debatable whether plaintiffs’ adequately raised

their evidentiary objection to the document. 5 Given this, and given that Gear

4
(...continued)
Nevertheless, the Overview Matrix does not indicate that the company considered
Ms. Shuffitt’s performance a principal reason for her termination. See App. at
117. Neither does the company indicate in its brief before us that her
performance, as opposed to the expendability of her position, was a reason for her
termination.
5
Before the district court the plaintiffs objected to the Overview Matrix as
“hearsay that has not been identified by testimony from its originator.” App. at
176. On appeal, the plaintiffs protest that the Overview Matrix is “neither
identified, authenticated nor shown to be based on personal knowledge.” Id. at
337. These objections are arguably different, focusing on hearsay before the
district court and authentication on appeal – hence the question whether the
plaintiffs have satisfied a “basic principle” of evidentiary challenges on appeal:
that the specific ground for such a challenge be the same as the one raised before
the district court. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331
(10th Cir. 1984). At the same time, one could well argue that the plaintiffs’
district court objection focused not just on hearsay but also on whether the
(continued...)

- 21 -
Products’s defense fails even with the Overview Matrix, we assume without

deciding that the Overview Matrix is admissible.

C

At step three of the McDonnell Douglas inquiry, the burden shifts back to

Ms. Paup and Ms. Shuffitt to show that a reasonable jury could find Gear

Products’s proffered reasons pretextual. The plaintiffs may meet their burden by

establishing that the reasons are “so incoherent, weak, inconsistent, or

contradictory that a rational factfinder could conclude the reasons were unworthy

of belief.” Young v. Dillon Co., 468 F.3d 1243, 1250 (10th Cir. 2006). Gear

Products explains that Ms. Paup and Ms. Shuffitt were discharged largely on the

basis that their positions could be eliminated with the least impact on the

company. We do not quibble with the reasonableness or legitimateness of a

layoff decision premised on the expendability of positions. But there remain

several reasons, taken together, why a reasonable jury might discredit Gear

Products’s proffered explanations.

First, the only putative evidence the company cites in support of its

explanations is the Overview Matrix. But, as we’ve noted, it appears this

document was prepared by Ms. Bond in response to this very lawsuit. Even

5
(...continued)
Overview Matrix was “identified,” another term used in Fed. R. Evid. 901 for
authentication. And it is certainly plain that the Overview Matrix has never been
properly authenticated.

- 22 -
assuming its admissibility, the circumstances surrounding its creation could surely

cause a reasonable factfinder to view it with a degree of skepticism. See Hertz v.

Luzenac America, Inc., 370 F.3d 1014, 1020 (10th Cir. 2004) (in context of

employment retaliation claim, stating that the “business significance of [a]

document outside the litigation context” is a factor indicative of the document’s

trustworthiness under the business records exception to the hearsay rule); Certain

Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000)

(“The absence of trustworthiness is clear . . . when a report is prepared in the

anticipation of litigation because the document is not for the systematic conduct

and operations of the enterprise but for the primary purpose of litigating.”); cf.

Jaramillo v. Colo. Judicial Dep’t., 427 F.3d 1303, 1311 (10th Cir. 2005) (“The

timing of the change [in the employer’s explanation for its decision] has been

found to support the inference of pretext when it occurs after significant legal

proceedings have occurred.”).

Second, the Overview Matrix also fails to name any of the decisionmakers

who purportedly made the decisions it describes, speaking instead as if all

decisions were made only by an impersonal “we.” A crucial factor in the

termination process, then, is left a mystery, and we are provided no justification

for why the company was unable or unwilling to name names. This fact, too,

casts a shadow of doubt over Gear Products’s explanations. See Coburn v.

Rockwell Automation, Inc., 2007 WL 1892091, at *10 (6th Cir. 2007) (in

- 23 -
employment age discrimination suit, holding that “[a] reasonable jury could infer

that if [employer] cannot even give a straight answer about who recommended

[plaintiff] for the RIF list, it is trying to hide something”); cf. Tinker v. Sears,

Roebuck & Co., 127 F.3d 519, 523 (6th Cir. 1997) (inconsistent statements by

different managers as to “who was actually responsible for the decision to fire”

plaintiff raised genuine issue of material fact regarding employer’s proffered

reason for terminating plaintiff).

Third, the company was unable to supply any individual whose testimony

might mend these infirmities. Quite the opposite. When Gear Products’s own

Rule 30(b)(6) corporate representative, Mr. Simmons, was directed to portions of

the Overview Matrix, he disavowed personal knowledge of the facts it contained.

See App. at 318, 324. And when specifically asked whether anyone in the

company might know whether discussions referenced in the Overview Matrix

actually happened, or whether someone might be able to identify the relevant

decisionmakers the Overview Matrix leaves unnamed, he answered in the

negative. Id. at 324. Cf. Hulbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286 (11th Cir. 2006) (recognizing “an employer’s failure to articulate clearly

and consistently the reason for an employee’s discharge may serve as evidence of

pretext,” and finding lack of documentation of articulated reasons for discharge

suggestive of pretext).

- 24 -
 Fourth, Mr. Simmons testified that his understanding had been that the

plaintiffs were chosen for discharge for reasons altogether different from, and

incongruous with, the reasons asserted in argument before us and provided in the

Overview Matrix. The company, pointing to the Overview Matrix, explains that

the two employees were terminated primarily because their positions were

expendable; for Ms. Paup, the Overview Matrix goes so far as to state explicitly

that her performance was good. Yet, the company’s corporate representative

testified that, at the time of the employees’ terminations, he believed the

employees were chosen solely on the basis of their poor performance, as

determined in the management committee’s ranking process. Mr. Simmons was

unable to explain or reconcile the different rationales offered by Gear Products.

Neither could he explain why Ms. Coffelt, rather than Ms. West, was discharged

despite her higher performance rankings. Mr. Simmons insisted that he

understood the firings would be based solely on the committee’s rankings,

without deviation, but of course deviation there was. We have, then, the

company’s Rule 30(b)(6) representative testifying to an understanding of the

reasons for the employees’ terminations that is altogether different than the

reasons Gear Products proffers to us today; and whose own understanding also

suffers from unexplained difficulties. See Whittington, 429 F.3d at 994 (An

- 25 -
“indication of pretext is that [defendant-employer] was inconsistent in the reasons

it provided for termination.”). 6

In concluding that these factors, taken together, suffice to suggest pretext,

we do not mean to suggest that a company can never change its mind, even in the

midst of a RIF process, about the factors that it wishes to consider in deciding

whom to terminate. Neither do we suggest that a company may not have more

than one legitimate reason for terminating an employee, or that such reasons may

not be inconsistent. At trial, the question before the jury will be whether Gear

Products engaged in age discrimination, and a defendant is normally free to

pursue inconsistent lines of defense to refute the conclusion that its actions were

motivated by ageism. It is thus conceivable that at trial Gear Products will argue,

and even argue successfully, that, whether it fired employees for poor

performance or for expendability, it did so without age-based animus.

6
To be sure, Gear Products does not ignore the management committee’s
rankings process in its brief before us. It references the process at a number of
instances, for example in its fact section and when seeking to refute Ms. Shuffitt’s
prima facie case by arguing her performance was unsatisfactory. See Aplt. Br. at
26; supra at 16-17. But, in no uncertain terms, in its legal argument section the
company asserts that its legitimate, nondiscriminatory reason for firing both Ms.
Paup and Ms. Shuffitt was that their positions could be eliminated with minimal
repercussions on the business. Aplt. Br. at 24, 27-28. See Dixon v. Kirkpatrick,
553 F.3d 1294, 1302 (10th Cir. 2009) (in suit alleging wrongful termination in
violation of free speech rights, court of appeals did not consider reasons for
plaintiff’s termination asserted in fact section but not legal argument section of
defendant’s brief).

- 26 -
 The fact remains, however, that we are now at summary judgment, obliged

to apply the McDonnell Douglas framework. And we have repeatedly held that

employees may meet their summary judgment burden of showing pretext under

McDonnell Douglas by demonstrating that their employer’s proffered business

justifications are so incoherent, weak, inconsistent, or contradictory that a rational

factfinder could conclude the reasons were unworthy of belief. This showing of

pretext, of reason to disbelieve, by definition, “does not require a plaintiff to offer

any direct evidence of actual discrimination.” Timmerman v. U.S. Bank, N.A.,

483 F.3d 1106, 1113 (10th Cir. 2007). For this and other reasons, some have

criticized McDonnell Douglas as improperly diverting attention away from the

real question posed by the ADEA – whether age discrimination actually took

place – and substituting in its stead a proxy that only imperfectly tracks that

inquiry. See, e.g., Wells v. Colo. Dept. of Transp., 325 F.3d 1205, 1221-28 (10th

Cir. 2003) (Hartz, J., concurring); MacDonald v. E. Wyo. Mental Health Ctr., 941

F.2d 1115, 1122-23 (10th Cir.1991) (Seth, J., concurring); see generally

Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. 503

(2008). But McDonnell Douglas of course remains binding on us. And here we

have a confluence of factors suggesting precisely the sort of pretext necessary for

the plaintiffs to survive summary judgment under that decision’s terms – a

company whose only evidence supporting its proffered explanation for the firings

is contained in a document prepared in response to litigation; a document

- 27 -
purporting to explain termination decisions that leaves key decisionmakers

unnamed; a company representative who has no personal knowledge of facts

within this document; and the same representative who testifies that his

understanding had been that employees were terminated for reasons different than

the ones the company proffers to us today (yet whose competing understanding

also suffers from another admitted difficulty).

It is only in light of these (rather unusual) circumstances, when viewed in

their totality, that we conclude that a reasonable jury could well decide that Gear

Products’s proffered business reasons are not worthy of credence. And while the

facts of this case are perhaps unusual, they are hardly novel. In Dominguez-Cruz

v. Suttle Caribe, Inc., 202 F.3d 424 (1st Cir. 2002), the employer told the

employee at the time of his termination that his position was being eliminated and

that his termination was not performance-based. Id. Later, in response to

litigation, the employer switched gears and asserted that the employee’s

termination was wholly performance-motivated. Id. The First Circuit held,

precisely as we do today, that while “[a] company may have several legitimate

reasons to dismiss an employee,” when it “at different times, gives different

explanations, a jury may infer that the articulated reasons are pretextual.” Id. at

432. For other cases involving similar fact patterns and results in our own circuit,

see Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479 (10th Cir.

1996) (plaintiff could show pretext in part because employer gave inconsistent

- 28 -
explanations of criteria used in evaluating plaintiff’s performance); Goldstein v.

Sprint United Mgmt. Co., 2008 WL 2914967 at *5 (10th Cir. 2008) (“Because

evidence that an employer gave inconsistent reasons justifying its challenged

action is an indication of pretext, such a showing would ordinarily be enough to

survive summary judgment.”) (internal citations and quotation marks omitted);

Hare v. Denver Merchandise Mart, Inc., 2007 WL 3230907, at *7 (10th Cir.

2007) (plaintiff could show pretext “by pointing to an apparent contradiction in

the testimony of those involved in the decision to terminate him”).

***

Ms. Coffelt’s failure to disclose her ADEA claim in her initial bankruptcy

proceeding bars her from pursuing that claim now, and the district court’s grant of

summary judgment as to her is affirmed. Because Ms. Paup and Ms. Shuffitt have

shouldered their burden of establishing a fact issue about whether Gear Products’s

legitimate business reasons are pretextual, the district court’s grant of summary

judgment with respect to them is reversed.

Affirmed in part and reversed in part.

ENTERED FOR THE COURT

PER CURIAM

- 29 -
07-5164 - Paup v. Gear Products, Inc.

HARTZ, Circuit Judge, concurring and dissenting:

I concur in the judgment, except that I think it would be better practice to

remand the judicial-estoppel issue for the district court to resolve in the first

instance. Granting judgment on the ground of judicial estoppel is a matter of

discretion, and the district court is better equipped than we are to devise the most

equitable remedy for Ms. Coffelt’s misconduct. See Eastman v. Union Pac. R.R.

Co., 493 F.3d 1151 (10th Cir. 2007) (affirming district court exercise of

discretion in applying judicial estoppel).

I agree with the majority opinion’s disposition of the discrimination claims

but my analysis is sufficiently different that I write separately.

I. BACKGROUND

A. The RIFs

GP, a wholly-owned subsidiary of Blount International, Inc., operates a

production facility in Tulsa, Oklahoma. In February 2001 Blount informed GP

that it needed to reduce operating costs to break even and directed GP to

undertake a RIF. On February 14 GP terminated 26 employees, aged 21 to 67.

GP’s financial struggles continued into the summer, and Blount informed GP that

it needed to further reduce its workforce. On October 2, GP terminated eight

more employees, this time aged 34 to 66. During both RIFs, GP told department

managers that a specified number of positions needed to be cut and asked the

managers to determine who would be let go.
 GP initially thought that the October 2 RIF would be the last, but later that

month Blount instructed GP to terminate three more employees. GP’s new

President, Tom Brenton, held a meeting to plan the termination process. It was

decided that GP could best absorb the loss of administrative employees and

therefore limited the pool to be considered to eight employees whose duties were

predominately administrative or clerical. The pool included Shuffitt, Coffelt, and

Paup.

Shuffitt had been hired by GP in 1976 as an executive secretary to the

president and remained in that position throughout her time with GP (although in

2000 her title changed to executive administrative assistant). Coffelt was hired in

1988; her duties were primarily administrative and clerical but she also did some

drafting. During her final two years with GP, she worked as a document

administrator and her duties were primarily administrative. Paup was hired in

1988 as a production-control clerk in the manufacturing department, and later

moved into a buyer/planner position in that department. During the February

2001 RIF, GP informed Paup that her position was being eliminated; she then

accepted the offer of a purchasing-coordinator position, which was predominantly

clerical.

A six-member management team met to decide who would be terminated.

Chairing the team was Brenton, who had been hired from another company to

take over as GP President three or four months earlier. The other team members

-2-
were Human Resources Director Robin Bond, Vice-President of Engineering

Steve Copeland, Quality Manager Dick Gregory, Sales and Marketing Vice-

President Jeffrey Schmale, and Controller Tim Simmons, who had been in charge

of Tulsa operations for a few months after the February RIF until Brenton’s

arrival in June or July. The team was provided with a sheet (apparently prepared

by the Human Resources Department) with columns for each of the eight

employees being considered. Under each employee’s name were rows with

entries on date of hire, education, additional experience and training, and other

skills.

Simmons, who was designated by GP under Fed. R. Civ. P. 30(b)(6) as the

person to testify on its behalf about the terminations, described the terminations

in his deposition. He said that the management team decided to rank the eight

employees in the pool and terminate the three with the lowest scores. Each team

member assigned each employee in the pool a score ranging from one to five (five

being the highest) in the following categories: (1) flexibility, (2) sense of

urgency, (3) initiative, (4) self-starter, (5) multitasking abilities, (6) accuracy, and

(7) attitude. The team did not discuss the meanings of the seven categories or

how to go about assigning points in a category, and Simmons acknowledged that

the ratings were subjective in that they were “not quantifiable by someone else.”

Aplt. App. Vol. I at 89. Moreover, the record contains no explanation of how

each of the six team members had sufficient information to rate each of the eight

-3-
employees. Human Resources Director Bond would have had some information

on every employee but President Brenton had worked for GP only three or four

months, and the other members of the team headed different departments for

which the eight employees may or may not have worked. Nor had employee

performance been a matter of discussion among GP managers. Simmons testified

that he had heard that in 1998 Shuffitt had been written up for visiting too much,

but he had heard no other criticism of any of the Plaintiffs. He explained that

managers “don’t make a habit of criticizing or critiquing employees openly.”

Aplt. App. Vol. II at 336.

Brenton and Bond compiled the scores after the others had left the room.

The compiled scores were as follows:

AVERAGE
NAME SCORE AGE
Sally Farmer 28 Points 50
Alissa Tanner 19.5 Points 33
Brian Callendar 19 Points 36
Bill Vickers 19 Points 50
Gwen Coffelt 18.5 Points 63
Tharon Paup 15 Points 58
Peggy West 15 Points 57
Carol Shuffitt 10 Points 59

Brenton and Bond then called the others back to announce that Paup, Coffelt, and

Shuffitt would be terminated. They did not disclose to the others the scores or

why they had departed from the rankings to keep West. Nor was there any further

discussion of each employee’s skills as they related to GP’s needs.

-4-
 At the time of Plaintiffs’ terminations, GP had a layoff policy that provided

seniority rights. Simmons at first testified that he did not know whether anyone

had “utilized” the policy during the 2001 layoffs, id. Vol. I at 88, and that the

document had not been produced to him during the October layoff. (The record

does not indicate whether anyone whom Simmons supervised was laid off during

one of the RIFs. But the list of GP employees terminated in 2001 includes only

two who may have been laid off while working under him as controller, and both

had less than a year’s seniority.) Shortly thereafter, however, Simmons added

that “[t]he HR manager was part of that process, and certainly was aware of the

policy; and would have been responsible for ensuring we comply.” Id. He stated

that he believed that the policy had been followed in the October 2001 RIF, and

to illustrate compliance he pointed out that after Paup’s position had been

eliminated in the February RIF, she was permitted to take a different position.

(Her supervisor at the time, Brian Shrum, testified that he had laid off Paup

because he was told that he had to lose one of his three people and Paup was the

least senior and least experienced.) In any event, Simmons admitted that

seniority was not considered by the management team in terminating Plaintiffs.

On October 26, 2001, Coffelt and Shuffitt were terminated, and Paup was

placed on layoff status (but never reinstated). When Coffelt asked Human

Resources Director Bond whether she had been terminated because of her age,

Bond replied, “[Y]ou know, I can’t answer that.” Id. Vol. II at 296. Also, as

-5-
Coffelt was leaving the building, Copeland helped her carry her belongings to her

car and said, “[S]omebody needs to get a good lawyer.” Id. at 297.

B. State Administrative Proceedings

Plaintiffs filed charges of discrimination with the Oklahoma Human Rights

Commission (OHRC), claiming that they had been discriminated against because

of their age. Each plaintiff alleged that she had been replaced, or her duties

assumed, by a younger employee who was not more qualified.

In response to the charges, GP asserted that the decision to terminate

Plaintiffs resulted from the plummeting economy and was made after objectively

considering each employee’s individual performance and the skills of the

employees relative to each other. GP said that it had considered moving Paup

back to the planning position that she had previously occupied so that she would

avoid the layoff. But because she had refused that move during the first October

RIF less than a month earlier, it decided to lay Paup off and transfer some of her

duties to Bill Vickers (50 years old), who was “better qualified, more experienced

and ranked higher in the factors utilized by the Committee to establish the best

performers in the departments . . . .” Id. Vol. I at 209. GP explained that it had

terminated Shuffitt because she scored a full five points lower than any other

ranked employee. Even so, GP had considered moving her to the sales-secretary

position (but determined that she lacked the skills necessary for the position) and

to the switchboard position (but she had indicated an “intense dislike” for the

-6-
position, id. at 217, and “resented being asked to do anything she perceived as

‘beneath’ or ‘not part of’ an Executive Administration position,” id. at 218). GP

decided to fill the switchboard position with Peggy West (57 years old), who

excelled in the position and had “shown a willingness in the past to take on more

duties.” Id. at 217. As for Coffelt, GP asserted that her position was

predominantly administrative and “could be eliminated with virtually no impact

on [its] business.” Id. at 200. Although it conceded that some of her duties were

transferred to Sally Farmer (age 50), it noted that Farmer had scored highest on

the management team’s rankings. Coffelt had asked to be retained in a CAD

Designer position (apparently a drafting job), but GP determined that she would

be unable to perform all the functions without extensive training. GP asserted

that it had never considered Plaintiffs’ ages in making its determinations.

In December 2004 and January 2005 the OHRC found that all three

Plaintiffs were terminated on the basis of age. Plaintiffs filed this claim in

district court on April 20, 2005.

II. ANALYSIS OF ADEA CLAIMS

Paup and Shuffitt contend that GP discriminated against them by

terminating them on the basis of age. Under the ADEA it is “unlawful for an

employer . . . to discharge any individual or otherwise discriminate against any

individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). “When

a plaintiff alleges disparate treatment, liability depends on whether the protected

-7-
trait (under the ADEA, age) actually motivated the employer’s decision.” Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (internal quotation

marks omitted). “That is, the plaintiff’s age must have actually played a role in

the employer’s decisionmaking process and had a determinative influence on the

outcome.” Id. (brackets and internal quotation marks omitted). Where, as here, a

plaintiff lacks direct evidence of discriminatory intent, she may carry her burden

“by presenting circumstantial evidence in accord with the familiar McDonnell

Douglas burden-shifting framework.” Hinds v. Sprint/United Mgmt. Co., 523

F.3d 1187, 1195 (10th Cir. 2008); see McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–04 (1973). Under McDonnell Douglas the plaintiff must first

establish a prima facie case of age discrimination. If she satisfies her burden, the

employer must then proffer a legitimate, nondiscriminatory reason for the

discharge. If it does so, “the burden shifts back to the plaintiff to show that

employer’s proffered justification is pretextual.” Hinds, 523 F.3d at 1195.

A. Prima Facie Case

“To make out a prima facie case of age discrimination, . . . a plaintiff

affected by a RIF [must] show that . . . she (i) was within a protected age group,

(ii) was doing satisfactory work, (iii) was discharged despite the adequacy of . . .

her work, and (iv) has some evidence the employer intended to discriminate

against . . . her in reaching its RIF decision.” Id.; see also Beaird v. Seagate

Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). Plaintiffs may satisfy this

-8-
fourth element “through circumstantial evidence that the plaintiff was treated less

favorably than younger employees during the RIF.” Beaird, 145 F.3d at 1165

(brackets and internal quotation marks omitted). Only the second and fourth

elements are at issue in this case; it is undisputed that Plaintiffs fall within the

protected age group and were discharged.

The second element (performing satisfactory work) is disputed only with

respect to Shuffitt. To make a threshold showing, Shuffitt need only provide

“some evidence of good performance.” Denison v. Swaco Geolograph Co., 941

F.2d 1416, 1420 (10th Cir. 1991). As the district court noted, “There is evidence

that Shuffitt was employed for at least fifteen years in the ‘top’ clerical position

in the company, had survived two previous RIFs, and was considered (but

rejected) for a move to a different position during the late October 2001 RIF.”

Op. & Order at 8. GP contends that this evidence is negated by her ranking by

the management team—the lowest of all eight employees by a full five

points—and the multiple instances in which she had been counseled about tardy

work product, gossiping with coworkers, and unacceptable time spent away from

her desk. But as the district court correctly explained, “this goes to the ‘weight of

the evidence of satisfactory performance’ and not to Shuffitt’s ‘initial burden to

produce such evidence.’” Id. at 8–9 (quoting Denison, 941 F.2d at 1420).

Accordingly, Shuffitt satisfied the second element of her prima facie case.

-9-
 On the fourth element (evidence of intent to discriminate), GP contends

that neither Paup nor Shuffitt presented such evidence. It argues that each GP

employee was subject to the same review process and rating system. But, as this

court stated in Hinds, “[i]t is the fact that the employer scrutinized both [the

younger and older employees] during the RIF and decided to retain similarly

situated younger employees while discharging an older employee that gives rise

to an inference of discrimination.” 523 F.3d at 1196; see also Beaird, 145 F.3d at

1167 (“[A] plaintiff who is fired pursuant to a RIF and who held a similar

position to a younger retained employee can satisfy the fourth element.”). GP

decided to evaluate eight employees with similar duties (administrative/clerical)

and terminated Paup, Shuffitt, and Coffelt. Of the five retained employees, none

was older than Plaintiffs—four were younger and the fifth was about the same age

as the youngest terminated employee (Paup was 58 and West was one month shy

of 58).

GP argues that under O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308 (1996), the age difference between Paup and Bill Vickers (who allegedly

assumed Paup’s duties) was insufficient to establish intent because it was

insignificant (Paup was 58 and Vickers 50). Although in O’Connor the Supreme

Court stated that “an inference [of discrimination] cannot be drawn from the

replacement of one worker with another worker insignificantly younger,” id. at

313, it did not expand on what constitutes significant. In Whittington v. Nordham

-10-
Group Inc., 429 F.3d 986, 995 (10th Cir. 2005), the court rejected the contention

that a five-year difference was insignificant as a matter of law. It suffices that

Paup alleged that she had been “treated less favorably than [an employee eight

years her junior] during the RIF.” Beaird, 145 F.3d at 1165 (brackets and internal

quotation marks omitted).

I am also unpersuaded by GP’s argument that its nondiscriminatory motive

is established conclusively by its rejected offer to Paup of a different position

during the early-October RIF. The offer was not repeated in late October when

she would have known that taking the other position was her only way to stay

with the company.

GP’s final argument against the fourth element of Plaintiffs’ prima facie

case is that Paup and Coffelt were within the protected class when they were hired

(they were 45 and 50 respectively), suggesting that it did not discriminate against

them on the basis of age. In support it cites Kadas v. MCI Systemhouse Corp.,

255 F.3d 359 (7th Cir. 2001). In that case a 54-year-old plaintiff “was hired

specifically to service a large health care client of the defendant.” Id at 360. A

few weeks later, the defendant lost the client. Then the defendant decided to

discontinue its health-care practice altogether, and terminated the plaintiff under a

RIF only five months after he had been hired. Id. Affirming the district court’s

grant of summary judgment to the defendant, the Seventh Circuit observed that

it is eminently reasonable to doubt that . . . a worker hired at an age
well beyond that at which the protections of the age discrimination

-11-
 law click in and terminated within months, that is, before he is
appreciably older, was a victim of age discrimination. A company
that didn’t want 54-year-olds on its payroll would be unlikely to hire
one rather than to hire one and promptly fire him, thus inviting a
lawsuit because terminated workers are much more likely to sue than
ones who have merely not been hired, because of the greater
difficulty of proving damages in the latter case.

Id. at 361–62 (citations omitted). This case is readily distinguishable from that of

Mr. Kadas; Paup and Coffelt had worked for GP for substantially longer (Paup for

nine years, and Coffelt for 13) and had become “appreciably older” by the time

they were terminated. Although GP’s arguments against the fourth element of the

prima facie case have substance and could persuade a jury in its favor on the

ultimate issue of discrimination, I agree with the district court that Paup and

Shuffitt established that element.

B. Nondiscriminatory Reasons and Evidence of Pretext

GP advances the following nondiscriminatory explanations for terminating

Plaintiffs: GP terminated Plaintiffs as part of an overall RIF that had, up to that

point, claimed the jobs of 34 employees. During its final RIF, GP decided that it

could best absorb the loss of three employees whose primary duties were

administrative or clerical (a pool of eight employees). After ranking the

employees and considering the needs of the company and the capabilities of each

employee, GP terminated Paup, Shuffitt, and Coffelt. Paup had ranked in the

bottom three and had refused to change positions during the first October RIF.

Shuffitt had received the lowest score of the group by a full five points, and

-12-
occupied only a part-time position. GP considered placing her in another

position, but ultimately did not do so because of her lack of familiarity with the

programs and her unwillingness to perform certain duties. Although Coffelt did

not rank in the bottom three, GP decided to retain Peggy West over Coffelt

because West could operate the switchboard (which was not self-executing) and

Coffelt’s administrative duties could be easily absorbed. Moreover, even though

Coffelt had started her GP career as a draftsperson, she would need extensive

training before she could contribute in that capacity; therefore, GP did not move

her to that position.

In light of this explanation, Plaintiffs could avoid summary judgment only

by producing evidence that GP’s explanation was pretextual, that is, “unworthy of

belief.” Beaird, 145 F.3d at 1165 (internal quotation marks omitted). “Pretext

can be shown by such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-

discriminatory reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.

1997) (internal quotation marks omitted).

Plaintiffs state that they offered the following evidence of pretext: (1) GP

has a history of age discrimination; (2) GP has offered inconsistent reasons for its

decisions; (3) GP did not follow its layoff policy; (4) GP did not adhere to the

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ranking process agreed upon by its management; (5) statements by managers

intimated that Plaintiffs were terminated based on age; and (6) the OHRC

determined that GP discriminated against Plaintiffs. Other than to state baldly

that Paup and Shuffitt have presented no evidence of pretext, GP’s brief in this

court offers no response to these arguments. (Although the brief addresses the

merits of Coffelt’s ADEA claim, it says nothing about her pretext arguments.)

Nevertheless, I address each item of evidence in turn. The first lacks merit. The

remaining five, however, establish a genuine issue of material fact.

First, Plaintiffs contend that “[GP] had a history of cutting heads by getting

rid of the old people.” Aplt. Br. at 9. In support of this allegation, they provide

only Shuffitt’s deposition testimony that after her termination she was told by

Joan Dake (who had been office manager in 1993 but was no longer employed at

GP) that in 1993 an executive “had been brought [to GP] to eliminate the older,

longer tenured people.” Aplt. App. Vol. II at 257–58. Shuffitt’s testimony fails

because it is hearsay and thus inadmissible “in support of, or in opposition to,

summary judgment.” Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir.

1995).

Plaintiffs’ second, third, and fourth arguments for pretext are interrelated

and will be discussed together. GP had a written layoff policy, which ordinarily

requires consideration of an employee’s length of service. See Christie v.

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Foremost Ins. Co., 785 F.2d 584, 586–87 (7th Cir. 1986) (employer’s failure to

comply with its own policy allowed jury to infer pretext). It provided:

In the event of a layoff, company-wide length of service will be
considered in determining who will be laid off. However, in the
event special skills are required for the smooth operation of the plant
or office, the Company will reserve the right to retain employees
based on required skill, ability and experience as opposed to length
of service. The Company reserves the right to retain the employee
whose skills and abilities best meet the requirements of the job. The
evaluation of these abilities will rest with Supervision and
Management.

Aplt. App. Vol. I at 105. If the RIF decision had been based on “company-wide

length of service,” all three Plaintiffs would have been retained in the RIF.

To be sure, the policy allowed GP “to retain employees based on required

skill, ability and experience as opposed to length of service.” Id. That provision

could justify limiting the second October RIF to administrative and clerical

employees, whose positions were deemed less necessary than others to the

survival of the Company. But it could not have been the basis for deciding

among the eight employees considered by the management team. The criteria on

which the team members were to rate the employees were flexibility, sense of

urgency, initiative, self-starter, multitasking abilities, accuracy, and attitude.

These criteria are hardly a proxy for “required skill, ability, and experience.” Id.

(emphasis added). At best they are the icing on the cake that distinguishes a

boss’s favorite employee from those who are merely capable. The policy also

says that “[GP] reserves the right to retain the employees whose skills and

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abilities best meet the requirements of the job.” Id. Perhaps this language could

be construed to mean that GP can always keep its best employees and lay off the

others. If so, the layoff policy was essentially an empty promise, providing no

advantage to seniority (except in the unusual situation of equal ability). A more

reasonable construction of the sentence in its context is that it refers to peculiar or

special skills or abilities. In any event, GP’s brief offers nary a word of

explanation of the meaning of the policy. In this circumstance, I would not

assume that the policy has the meaning most supportive of summary judgment.

Moreover, the uncontradicted testimony in the record is that seniority was

not considered at all in determining whom to lay off. And even if GP had the

right to decide simply to retain its best employees, the method utilized was so

irregular that pretext could be inferred even if there had been no layoff policy.

This court has held that the use of subjective criteria in employment decisions can

be evidence of pretext. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210,

1217–18 (10th Cir. 2002). That proposition clearly applies here; the method

employed in terminating Plaintiffs goes beyond subjectivity to approach utter

irrationality. Not only were the seven criteria—flexibility, sense of urgency,

initiative, self-starter, multitasking abilities, accuracy, and attitude—matters of

subjective judgment; but the management team made no attempt to define any of

these criteria so that the members would be rating the same qualities. And, most

remarkable of all, there was no reason to believe that anyone on the management

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team, with the possible exception of the Human Resources Director, could be

sufficiently informed of each employee’s performance to make intelligent

assessments. For each of the employees (who were among 128 Tulsa employees

at the time), most of the team members were not in that employee’s chain of

supervision; President Brenton had been with GP only a few months; and those in

management had a practice of not “criticizing or critiquing employees openly,”

Aplt. App. Vol. II at 336 (Simmons testimony), so, for example, Simmons had

heard about no criticism of any of the Plaintiffs other than a 1998 write-up of

Shuffitt. The likelihood of manipulation is clear. In that circumstance, a plaintiff

is not required to produce evidence that a decisionmaker admitted discriminating,

see Garrett, 305 F.3d at 1217–18, although, as we shall see, two of the

decisionmakers came close.

Furthermore, President Brenton, perhaps assisted by Human Resources

Director Bond, did not even follow the criteria for the RIF that the management

team had agreed upon. The team had decided that the three employees with the

lowest scores should be terminated. When Brenton and Bond were supposed to

announce the result of their tabulations, however, they stated only that the three

Plaintiffs would be discharged. They did not report their tabulations or their

departure from the criteria decided upon in discharging Coffelt instead of the

lower-scoring West. Their failure to explain their action to the other members of

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the management team is most peculiar, and GP’s brief makes no attempt to justify

the failure.

What GP does do is give its explanations for why Plaintiffs were the ones

terminated. I agree that those explanations are plausible. But GP does not

explain how those reasons were arrived at through the management-team

decisionmaking process. A jury could reasonably doubt the proffered

explanations when they have no apparent connection to the criteria used by the

management team and they were not provided by Brenton and Bond to the other

team members as reasons for their departure from the agreed-upon procedure. I

agree with the district court that GP’s explanations for the terminations did not

change substantially from the EEOC proceedings to the court proceedings; but

there is a clear disconnect between their explanations in court and the deposition

testimony concerning the decisionmaking process at the time of the RIF.

In this context, substantial weight should be accorded to statements by two

members of the management team to Coffelt when she was terminated. Coffelt

testified (1) that when she asked Human Resources Director Bond whether she

had been terminated because of her age, Bond replied, “[Y]ou know, I can’t

answer that,” Aplt. App. Vol. II at 296, and (2) that when she was leaving the

building, Copeland helped carry her belongings to her car and said, “[S]omebody

needs to get a good lawyer.” Id. at 297. GP does not address these allegations in

its brief. The second statement is somewhat ambiguous, although a rather strange

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remark for a manager to make to a freshly fired employee. But the first is simply

unreal. What reason could the Human Resources Director have for not telling an

employee that her firing was unrelated to age, particularly when, as here, the

Director had full knowledge of the firing decision? The jury could readily infer

that Bond was explaining that her loyalty to GP (or fear of losing her job)

prevented her from telling the truth. See Hicks v. Brown Group, Inc., 902 F.2d

630, 650 (8th Cir. 1996), vacated and remanded on other grounds, 499 U.S. 914

(1991). To be sure, these statements were made only to Coffelt, not to the other

Plaintiffs. But when an employer is shown to have discriminated against a

discharged employee on the basis of age, a jury is not required to disregard that

evidence when evaluating whether it was just coincidental that the other two

employees discharged at the same time were the oldest of the remaining

employees under consideration. Once the jury finds that an employer acted with

discriminatory animus with respect to one employee in a RIF, it can reasonably

extrapolate to a finding that the same animus infected the decision to lay off the

other two employees most likely to be subject to that animus. Schulz v. Hickok

Mfg. Co., Inc,. 358 F. Supp. 1208, 1212 (N.D. Ga. 1973) (“While it is true that

the only question in this action is whether defendant discriminated on the basis of

age in its discharge of one particular employee, plaintiff Schulz, evidence of the

defendant's behavior in similar cases is decidedly relevant to the court's

determination of the reasons behind plaintiff's discharge.”); see also Bingman v.

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Natkin & Co., 937 F.2d 553, 557 (10th Cir. 1991) (in ADEA case, evidence of

termination of 60-year-old employee one year after plaintiff’s termination was

relevant to intent).

Plaintiffs’ final item of evidence is the OHRC’s finding of discrimination.

Such a finding may be admissible under Fed. R. Evid. 803(8). See Chandler v.

Roudebush, 425 U.S. 840, 864 n.39 (1976) (“Prior administrative findings made

with respect to an employment discrimination claim may, of course, be admitted

as evidence at a federal-sector trial de novo.”). The district court did not exclude

that finding as inadmissible evidence; it merely disagreed with the finding. Such

weighing of evidence is impermissible in ruling on a summary-judgment motion.

See Nat’l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 742–743 (10th Cir.

2004). The OHRC decision adds to the weight of evidence against GP.

In sum, on the record before this court a jury could reasonably infer that

GP’s proffered reasons for discharging Plaintiffs had such “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions,” Morgan, 108

F.3d at 1323, that they were unworthy of belief. Summary judgment was

therefore improper.

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