FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 27, 2012
Elisabeth A. Shumaker
Clerk of Court
JAMES R. JONES,
Plaintiff-Appellant,
and
RONNIE R. WHITE; LEW A. No. 12-5002
PRICKETT, (D.C. No. 4:09-CV-00146-GKF-FHM)
(N.D. Okla.)
Plaintiffs,
v.
THE NORDAM GROUP, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
James R. Jones appeals from the district court’s order granting summary
judgment on his claims for unlawful age discrimination in favor of his former
employer, the NORDAM Group, Inc. (“NORDAM”). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
NORDAM manufactures and repairs parts and interiors for aircraft. The
company is divided into several divisions. The NORDAM Transparency Division
(“NTD”) manufactures transparent parts, such as windows, flight simulator screens,
and helicopter bubbles. The NTD is further divided into departments, which include
the Maintenance Department and the Production Department. NORDAM presented
evidence that it periodically reduced its NTD workforce in 2008 and early 2009 after
one of its major customers reduced its orders and eventually went bankrupt. See
Aplee. Supp. App. at 114, 139-40, 145. Thirty-nine NTD employees lost their jobs at
NORDAM during that time period. See id. at 114.
James R. Jones and the two other plaintiffs, Ronnie R. White and Lew A.
Prickett, lost their jobs at NORDAM in 2008. Prior to the first reduction in force
(“RIF”) on July 24, 2008, Mr. Jones and Mr. Prickett had each worked for a number
of years as a Maintenance Mechanic A (“MMA”) in NTD Maintenance, where they
and two other MMAs were supervised by Mr. White. Mr. Jones testified at his
deposition that he was transferred to Production, where he had no prior experience, a
week or so before the July 24, 2008 RIF. Id. at 150, 154-55, 157. He said that a few
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weeks before the transfer, see id. at 155, he had told Jennifer Darling in Human
Resources (“HR”) that he would like to transfer to Production because he “felt like
[he] wasn’t getting either the consideration or the respect in the maintenance
department that [he] should get,” id. at 152. He discussed a transfer with Kenny
McCollum, a supervisor in the Production department. Id. at 154-55. Mr. Jones
stated that after the transfer, he “reported to” and “worked for” Bert Freeman, who
was a “lead” in Production. Id. at 150-51.
Mr. Jones and Mr. Prickett were terminated on July 24, 2008, and Mr. White
was terminated on September 10, 2008. All were at least fifty-six years old at the
time of discharge. The two other MMAs—both considerably younger employees—
were retained when Mr. Jones and Mr. Prickett were terminated. Aplt. App.
at 276-77. Although NORDAM said that Maintenance positions were being
eliminated, Mr. Jones produced evidence showing that another NORDAM employee
under a different title immediately assumed almost all of Mr. White’s supervisory
duties, and that other employees filled the two MMA positions vacated by Mr. Jones
and Mr. Prickett after Mr. White was terminated. Id. at 201-02, 212-13, 230, 234,
253.
NORDAM presented evidence that Ron Kuegler, the Production manager,
made the decision to terminate Mr. Jones. He had ranked Mr. Jones last among his
Production employees in terms of skills and experience. Aplee. Supp. App.
at 276-78, 280, 283, 285-86. Eric Clower, who had become the Acting Director of
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Operations for Transparency a few days before the first RIF, made the decision to
terminate Mr. Prickett and Mr. White. Id. at 220, 225-27.
Plaintiffs filed a joint complaint alleging that NORDAM’s purported reason
for their terminations was a reduction in force, but that NORDAM filled their
Maintenance positions with younger, less experienced employees. They claimed that
NORDAM had violated the Age Discrimination in Employment Act (ADEA),
29 U.S.C. §§ 621-34, and Oklahoma public policy regarding wrongful discharge,
see Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989). NORDAM filed a separate
motion for summary judgment as to each plaintiff. Plaintiffs filed a joint response.
After a hearing, the district court orally granted summary judgment in favor of
NORDAM against Mr. Jones and denied the other two motions. Mr. Prickett and Mr.
White settled with NORDAM and are not parties to this appeal. Mr. Jones appeals.
II. DISCUSSION
“We review a district court’s grant of summary judgment de novo, applying
the same legal standard as the district court.” Twigg v. Hawker Beechcraft Corp.,
659 F.3d 987, 997 (10th Cir. 2011). “Summary judgment is appropriate ‘if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “In
applying this standard, we view the evidence and the reasonable inferences to be
drawn from the evidence in the light most favorable to the nonmoving party.” Id.
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The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire or
to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis added). The Supreme
Court has clarified that the phrase “because of” requires but-for causation. Jones v.
Okla. City Pub. Schs., 617 F.3d 1273, 1277 (10th Cir. 2010) (discussing Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)). We have said that, consistent with
Gross, “an employer may be held liable under the ADEA if other factors contributed
to its taking an adverse action, as long as age was the factor that made a difference.”
Id. (internal quotation marks omitted).
Where, as here, “there is no direct evidence of discrimination, . . . we evaluate
[the appellant’s] ADEA claim using the three-step framework outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).” Simmons v. Sykes Enters.,
Inc., 647 F.3d 943, 947 (10th Cir. 2011). “Under this framework, the plaintiff must
initially establish a prima facie case of discrimination.” Id. “If the plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate some
legitimate, nondiscriminatory reason for its action.” Id. “Should the defendant carry
this burden, the plaintiff must then have an opportunity to prove by a preponderance
of the evidence that the legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.” Id.
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The parties agree that Mr. Jones made out his prima facie case of
discrimination and that NORDAM proffered a nondiscriminatory reason for his
termination—that he had the least experience and skills in the Production job to
which he had recently been transferred. The parties dispute whether Mr. Jones
showed that NORDAM’s proffered reason for his termination was a pretext for age
discrimination.
We have recognized that “[o]ur relevant inquiry for determining pretext is
whether the employer’s stated reasons were held in good faith at the time of the
discharge, even if they later prove to be untrue.” Id. We will find pretext only if
“plaintiff can show that the employer’s explanation was so weak, implausible,
inconsistent or incoherent that a reasonable fact finder could conclude that it was not
an honestly held belief but rather was subterfuge for discrimination.” Id. at 947-48
(internal quotation marks omitted). It is important to note that “[i]n making this
determination we look at the facts as they appear to the person making the decision
to terminate.” Id. at 948 (emphasis added) (internal quotation marks omitted). We
are not “a super personnel department that second guesses employers’ business
judgments.” Id. (internal quotation marks omitted).
In his summary judgment opposition and his brief here, Mr. Jones fails to
acknowledge his own deposition testimony stating that he had been transferred to
Production—at his request—several days before the RIF. He does not acknowledge
that our standard of review requires us to focus on the person who made the
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termination decision, Ron Kuegler, the Production manager. Mr. Jones does not
argue that someone other than Mr. Kuegler decided to terminate him. He also does
not contest his last-place ranking in terms of skills and experience in his Production
job. And he conceded in the district court that “in 2008 the NTD suffered a decline
in business volume that justified a RIF in production personnel.” Aplt. App. at 113
(emphasis in original). Rather, he argues in this appeal that he was still assigned to
Maintenance when he was terminated and that NORDAM’s actions therefore
demonstrate pretext.
Mr. Jones points to evidence adduced from Jennifer Darling, the HR employee
with hands-on responsibility for the July 24, 2008 RIF. Aplt. App. at 158.
Ms. Darling sent an email on that day indicating that Mr. Jones was assigned to
Maintenance and was supervised by Ron White. Id. at 141. She later testified at her
deposition that Mr. Jones already had been voluntarily and permanently transferred to
Production before July 24. Aplee. Supp. App. at 238.
The district court ruled that Mr. Jones was no longer an MMA in NTD
Maintenance at the time of his termination, but was working instead in the
Production department and was chosen for the RIF by a Production manager because
he had the least skills and experience compared to the other Production employees.
Although Ms. Darling testified at her deposition that Mr. Jones had been moved into
a Production position but “was still formally titled as a Maintenance Mechanic A,”
Aplee. Supp. App. at 238, Mr. Jones was unable to contest that he had been
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transferred and was working in Production when he was fired. He was also unable to
contest that Production manager Kuegler made the termination decision.
The reason Mr. Kuegler gave for including Mr. Jones in the RIF is
nondiscriminatory, and Mr. Jones has offered no evidence to show that the reason
lacked good faith.
The judgment of the district court is AFFIRMED.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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