Sanders v. Southwestern Bell Telephone, L.P.

FILED
United States Court of Appeals
Tenth Circuit

October 15, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMIE K. SANDERS, an individual;
DENISE J. COFFEY, an individual;
KARIE H. BROOKS, an individual,

Plaintiffs - Appellants,

v. No. 06-5199

SOUTHWESTERN BELL
TELEPHONE, L.P., a Texas
corporation; SOUTHWESTERN BELL
COMMUNICATIONS,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D. Ct. No. 4:03-CV-00452-CVE-FHM)

N. Kay Bridger-Riley, Bridger-Riley & Associates, P.C., Tulsa, Oklahoma, for
Plaintiffs-Appellants.

Mary L. Lohrke (Kimberly Lambert Love with her on the brief), Titus, Hillis,
Reynolds, Love, Dickman & McCalmon, Tulsa, Oklahoma, for
Defendant-Appellee.

Before TACHA, McKAY, and TYMKOVICH, Circuit Judges.

TACHA, Circuit Judge.
 Plaintiffs-Appellants Jamie Sanders, Denise Coffey, and Karie Brooks

appeal the district court’s entry of summary judgment in favor of Defendant-

Appellee Southwestern Bell Telephone, L.P. (“SWBT”) on their claims of age and

sex discrimination. They also appeal the court’s dismissal of co-defendant

Southwestern Bell Communications (“SBC”) for improper service. We have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM in part and REVERSE in

part.

I. BACKGROUND

SWBT experienced a significant loss in customers after September 11,

2001. As a result, SWBT’s Oklahoma Construction and Engineering (“C&E”)

organization underwent three separate reductions in force (“RIFs”) of first-level

managers. The RIFs were conducted in the fall of 2001, spring of 2002, and fall

of 2002. The plaintiffs survived the first two RIFs but not the third, which is the

only RIF at issue in this appeal.

Dan McNeely headed the Oklahoma C&E organization during the fall 2002

RIF. First-level managers in the Oklahoma C&E organization reported to their

Area Managers, who in turn reported to Mr. McNeely. In the fall of 2002, SWBT

determined that the Oklahoma C&E organization had twenty-two first-level

managers and one Area Manager more than business needs required. The

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plaintiffs do not dispute the business necessity of the resulting RIF.

SWBT’s Management Staffing Guidelines (“MSG”) set forth procedures for

conducting RIFs. As part of the fall 2002 RIF, and in accordance with the MSG,

all first-level managers in the Oklahoma C&E organization were first grouped by

job title and work location. Mr. McNeely, with input from the Area Managers,

then determined the geographic areas where a smaller number of managers could

handle the existing workload. The groups with surplus workers, or “affected

work groups,” included Managers-Engineering in the Oklahoma City/Stillwater

area, Managers-Construction in the Oklahoma City/Stillwater area, and Managers-

Engineering in the Enid area.

To determine which managers would be selected for the RIF, and consistent

with the MSG, managers in each affected work group were placed into one of four

“bands”—Bands A, B, C, and D—based on their most recent performance

evaluations. Band A was the highest; Band D was the lowest. No manager within

any affected work group, however, fell into Band D.

Next, five Area Managers ranked all Band C managers in each affected

work group against one another. Those managers who ranked lower than the

number of managers designated for retention in the affected work group were

considered to be “at risk” for a layoff, or “surplus.” The highest-ranked at-risk

manager, however, could be “saved” from being laid off if a higher-ranked

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manager in her affected work group either voluntarily quit or accepted a job in a

non-affected work group, or a different organization within the company.

As a Manager-Engineering in the Oklahoma City/Stillwater area, Ms.

Sanders fell into an affected work group. She was placed into Band C based on

her 2001 performance evaluation. Sixteen other people in this affected work

group were also placed into Band C. The five Area Managers ranked Ms. Sanders

fifth from the bottom. Because only four managers were designated as surplus,

Ms. Sanders was not considered to be at risk at that time. Later, however, and

pursuant to the MSG, one Area Manager accepted a voluntary demotion to

Manager-Engineering. This demotion necessitated the layoff of an additional

manager from this affected work group, which caused Ms. Sanders to be at risk

for surplus. 1

Ms. Coffey’s position was in the affected work group consisting of

Managers-Construction in the Oklahoma City/Stillwater area. Her most recent

performance evaluation placed her in Band C. The Area Managers ranked Ms.

Coffey last out of the six people in Band C, which put her at risk of being

1
At the time of the ranking meeting, the seventeen managers in Band C
ranged in age from forty-two to fifty-five. Ms. Sanders was forty-eight. She was
younger than each person ranked below her, and she was younger than half of the
people ranked above her. Indeed, the top-four-ranked individuals were all older
than Ms. Sanders. Of the seventeen total managers, five (including Ms. Sanders)
were women. Two women were ranked above Ms. Sanders; two were ranked
below her. Thus, all but two of the men were ranked above Ms. Sanders.

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surplussed. 2

Ms. Brooks was one of two people in the affected work group consisting of

Managers-Engineering in the Enid area. She was placed in Band C; the other

manager, a younger man, was placed in Band B. Because it had previously been

determined that one person in this work group would be laid off, Ms. Brooks was

considered at risk.

On November 13, 2002, Ms. Sanders and Ms. Brooks met individually with

their supervisor, Area Manager Rick Wooten. Ms. Coffey met with her

supervisor, Area Manager Mike Harris. The supervisors informed the plaintiffs

that their positions were being eliminated or consolidated with another position,

and gave them the option of either terminating their employment immediately or

staying on for thirty days to apply for other positions within the company.

According to Ms. Sanders, Mr. Wooten told her during this meeting that she was

being surplussed because of her age.

Ms. Sanders ultimately accepted another position with SWBT in Plano,

Texas. Ms. Coffey and Ms. Brooks were unable to locate another position and

were laid off in December 2002. Ms. Sanders was forty-eight years old, Ms.

Coffey was forty-five, and Ms. Brooks was fifty-six.

2
At the time of the ranking meeting, the six managers in Band C ranged in
age from forty-five to fifty-five. Ms. Coffey was the youngest, and she was the
only woman.

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 The plaintiffs filed suit against SWBT and SBC, alleging that they were

surplussed because of their age in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621–634, and because of their sex in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. After

discovery, SWBT and SBC moved for summary judgment. Before ruling on the

motion, the district court sua sponte dismissed SBC for insufficient service of

process. The court then granted summary judgment in favor of SWBT, reasoning

that the plaintiffs had failed to demonstrate that SWBT’s nondiscriminatory

justification for their layoffs was pretextual. The plaintiffs appeal the order of

summary judgment and the dismissal of SBC. 3

II. SUMMARY JUDGMENT

A. Standard of Review

We review summary judgment decisions de novo, applying the same legal

standard as the district court. Simms v. Okla. ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). Summary

3
The plaintiffs’ complaint asserts several additional claims, all of which
were either dismissed under Fed. R. Civ. P. 12(b)(6) or decided in favor of SWBT
in the district court’s summary judgment order. The plaintiffs have explicitly
abandoned most of those claims on appeal. The two claims which the plaintiffs
have not explicitly abandoned—a common-law tort claim, see Burk v. K-Mart
Corp., 770 P.2d 24 (Okla. 1989), and Ms. Coffey’s sex-discrimination claim
based on equal pay—are waived due to inadequate briefing on appeal. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005).

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judgment is appropriate if there is no genuine issue as to any material fact and the

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

“When applying this standard, we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.” Simms,

165 F.3d at 1326.

B. Proof of Discrimination

A plaintiff alleging discrimination may prove her case by direct or

circumstantial evidence. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136

(10th Cir. 2000). Direct evidence is evidence from which the trier of fact may

conclude, without inference, that the employment action was undertaken because

of the employee’s protected status. See Riggs v. AirTran Airways, Inc., 497 F.3d

1108, 1117 (10th Cir. 2007) (“Direct evidence is evidence, which if believed,

proves the existence of a fact in issue without inference or presumption.”)

(quotations omitted). For example, we have stated that an employer’s policy,

discriminatory on its face, is direct evidence of discrimination. See Ramsey v.

City and County of Denver, 907 F.2d 1004, 1007–08 (10th Cir. 1990).

Usually, however, a plaintiff will not have direct evidence of discrimination

and will establish her claims through circumstantial evidence. In that instance,

we analyze the plaintiff’s claims under the McDonnell Douglas framework to

determine whether the defendant is entitled to summary judgment. See

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Adamson v. Multi

Community Diversified Servs., Inc., 514 F.3d 1136, 1145–46, 1148 (10th Cir.

2008) (applying McDonnell Douglas to discrimination claims brought pursuant to

the ADEA and Title VII). Under the McDonnell Douglas analysis, a plaintiff

“bears the initial burden of setting forth a prima facie case of discrimination.”

Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). After the

plaintiff makes a prima facie case, the burden shifts to the employer to give a

legitimate, nondiscriminatory reason for its employment decision. See Morgan v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). “If the employer comes

forward with a nondiscriminatory reason for its actions, the burden then reverts to

the plaintiff to show that there is a genuine dispute of material fact as to whether

the employer’s proffered reason for the challenged action is pretextual—i.e.,

unworthy of belief.” Id. (quotations omitted). A plaintiff who demonstrates

pretext gets “over the hurdle of summary judgment.” Id.

1.

Ms. Sanders has produced direct evidence that she was surplussed because

of her age. She testified that Mr. Wooten, who had been part of the team

responsible for ranking her fifth from the bottom among Band C managers in her

affected work group, told her that her age—not her job performance—was the

cause of her surplus.

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 It is undisputed that when Mr. Wooten informed Ms. Sanders that her job

was being eliminated, he provided her with a document that listed, by job title and

age, the number of employees selected for layoff and the number who were being

retained. This information is required to be given to employees by the Older

Workers Benefit Protection Act, which is part of the ADEA. According to Ms.

Sanders, however, and contrary to the purpose of the ADEA paperwork, Mr.

Wooten pointed to the document, explained that she was being surplussed because

of her age, and stated that this was necessary to prevent age discrimination.

Although SWBT has put forth evidence that calls Ms. Sanders’s

recollection of events into question, it is not our province at the summary

judgment stage to weigh the evidence or make credibility determinations. Utah

L’house Ministry v. Found. for Apologetic Info. & Rsch., 527 F.3d 1045, 1050

(10th Cir. 2008). If the jury believes Ms. Sanders’s testimony, it could

conclude—directly, without the aid of any favorable inferences—that the reason

for her surplus was her age. Accordingly, SWBT is not entitled to summary

judgment on Ms. Sanders’s age-discrimination claim. 4

4
The district court concluded that “[g]iven the different versions of this
conversation between Wooten and Sanders, this evidence is at most
circumstantial.” The court then analyzed Ms. Sanders’s age-discrimination claim
under the McDonnell Douglas framework and held that Ms. Sanders had not met
her burden to show that SWBT’s reason for surplussing her was pretextual.
Because Mr. Wooten’s alleged statement is direct—not circumstantial—evidence
(continued...)

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 2.

The plaintiffs’ remaining claims are supported by circumstantial evidence

and therefore must be analyzed under McDonnell Douglas. As to these claims,

we agree with the district court that the plaintiffs have established prima facie

cases of both sex discrimination and age discrimination. 5 We also agree with the

district court that SWBT has articulated a legitimate, non-discriminatory reason

for the plaintiffs’ surplus: the RIF. The central issue in this appeal, then, is

whether the plaintiffs have provided evidence of pretext. We conclude they have

not.

Generally, “[a] plaintiff demonstrates pretext by producing evidence of

such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

4
(...continued)
of age discrimination, the district court erred in analyzing her claim under
McDonnell Douglas.
5
All three plaintiffs are women. All received performance evaluations
rating them as “average” and praising specific efforts each had made. All three
were surplussed, causing them to leave an affected work group in which SWBT
retained at least one male manager. The three plaintiffs thus have established a
prima facie case of discrimination based on sex. See Sanchez v. Denver Pub.
Sch., 164 F.3d 527, 531 (10th Cir. 1998). As to Ms. Coffey’s and Ms. Brooks’s
age discrimination claims, because both plaintiffs are also over the age of forty
and left affected work groups in which a significantly younger manager was
retained, they have similarly established a prima facie case of age discrimination.
Id.

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reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005)

(quotations omitted). When the employer’s proffered reason for its action is a

RIF, evidence tending to show that the RIF is merely a pretext for the plaintiff’s

surplus may take several forms. First, the evidence may demonstrate that the

plaintiff’s surplus is inconsistent with the RIF criteria articulated by her

employer. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1168 (10th Cir.

1998); see also Sanchez v. Philip Morris Inc., 992 F.2d 244, 247 (10th Cir. 1993)

(“It is conceivable that a plaintiff . . . could be so overwhelmingly better qualified

than another applicant that on this evidence alone a trial court could properly find

pretext”); Beaird, 145 F.3d at 1169 (citing Sanchez for the proposition that

“[t]here may be circumstances in which a claimed business judgment is so

idiosyncratic or questionable that a factfinder could reasonably find that it is

pretext for illegal discrimination.”). Relatedly, evidence showing that the

employer inconsistently applied its RIF criteria may also support a finding that

the plaintiff was terminated for discriminatory reasons. See Beaird, 145 F.3d at

1173–74. Other procedural irregularities in the RIF process may similarly evince

unlawful discrimination. See Whittington v. Nordam Group Inc., 429 F.3d 986,

994 (10th Cir. 2005). This, of course, is not an exhaustive list of the types of

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evidence that may support a finding of pretext, and we do not limit a plaintiff to

any particular method of proof. Rather, when assessing whether a plaintiff has

demonstrated pretext such that a jury could conclude that discrimination was the

true reason for the adverse employment action, we consider the evidence as a

whole. See Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002).

We understand the plaintiffs in this case—either individually or

together—to argue that the RIF was only a pretext for unlawful discrimination

because: (1) their qualifications did not warrant their placement in Band C; (2)

SWBT inconsistently applied its ranking criteria; (3) an Area Manager was

permitted to take a voluntary demotion that resulted in Ms. Sanders’s job loss;

and (4) women and older employees were disproportionately affected by the RIF.

Band Placement

Ms. Sanders and Ms. Brooks contend that SWBT was not justified in

placing them in Band C based on their performance and qualifications relative to

employees who were placed in higher bands. It is undisputed, however, that

SWBT determined band placement based on an employee’s most recent

performance evaluation; that a notation on the performance evaluation from the

employee’s manager stating that the manager “concur[s] with [the employee’s]

accomplishments as written or the achievements as documented” was viewed by

the Area Managers as demonstrating average performance warranting placement

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in Band C; and that the performance evaluations of Ms. Sanders and Ms. Brooks

contained this notation. Unlike the evaluations of managers who were placed in

Band A or Band B, neither of these plaintiffs’ evaluations included comments

from their supervisors indicating their performance was “superior or “above

average as compared to his/her peers.” To the extent these plaintiffs contend that

they are more qualified or for other reasons should have been placed in a higher

band, we have held that “[i]t is the manager’s perception of the employee’s

performance that is relevant, not plaintiff’s subjective evaluation of his own

relative performance,” Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.

1996), and that a plaintiff “cannot defeat summary judgment by claiming that she

would have been retained if different RIF criteria had been used.” Beaird, 145

F.3d at 1169. Thus, the plaintiffs’ claims on this point are not sufficient to

demonstrate pretext.

Because this is Mrs. Brooks’s only argument on pretext, we affirm the

district court’s entry of summary judgment on both her age and sex discrimination

claims. Further, because Ms. Coffey was the youngest person in the construction

group’s Band C, and because there is no evidence that her band placement was

determined by her age, we affirm the district court’s entry of summary judgment

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on her age discrimination claim. 6 Thus, the only remaining claims are Ms.

Sanders’s and Ms. Coffey’s sex discrimination claims.

Inconsistent Application of RIF Criteria

6
Ms. Coffey contends that her job title (and resulting function) was
different from other job titles included in her affected work group. Although not
acknowledged by Ms. Coffey, we have stated that pretext may be shown by
evidence that the employer designed a RIF to impact certain protected
employees—which may be the case when an employer limits the RIF to certain
groups of employees without articulating a rational justification for those
categorizations. See Beaird, 145 F.3d at 1170–71. If that were the case here, the
fact that Ms. Coffey was the youngest employee in Band C would not be
sufficient to entitle SWBT to summary judgment on her claim of age
discrimination. But Ms. Coffey has not put forth any evidence that SWBT did not
consider her job to be equivalent to others it included in the affected work group
of Managers-Construction in the Oklahoma City/Stillwater area. It is undisputed
that under the MSG, corporate managers determine the parameters of an affected
work group based on job title, similar job functions, geography, lines of
organization, or other definable attribute, based on the needs of the business.
SWBT determined that Construction-Engineers and Construction-Contract
Coordinators would be pooled together to form an affected work group. Ms.
Coffey does not present any evidence (indeed, she did not depose anyone
concerning the decision to make this grouping) that calls this business judgment
into question. Nor does she suggest that the effect or purpose of this particular
grouping was to subject older employees to the RIF. Rather, Ms. Coffey herself
contends that SWBT should not have made this grouping simply because,
according to her, her job as a Contract Coordinator is different than that of an
Engineer. SWBT, however, is not precluded from grouping different jobs
together, so long as it deems them sufficiently similar in some type of way that
would make it appropriate, based on the needs of the business, to do so. In short,
Ms. Coffey’s personal belief does not call into question the propriety of SWBT’s
decision. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1171 (10th Cir. 1998)
(“Appellants may believe that [a corporation’s] job coding should be by job
qualification, not function performed, but it is not our place to disturb that kind of
business judgment.”).

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 Ms. Sanders argues that the Area Managers did not consider RIF criteria

uniformly when they were determining employees’ rankings within Band C of her

affected work group. We have stated that the selective use of RIF criteria—to

evaluate some employees’ potential but not others’, for example—“constitutes

limited evidence of pretext.” Beaird, 145 F.3d at 1174. The record, however,

does not support Ms. Sanders’s assertion.

SWBT policy, as articulated by the MSG, is to rank employees subject to

the RIF (in this case, those falling into Band C) according to their “performance,

skills, experience, and training.” In addition, Mr. McNeely circulated a guide to

his Area Managers that listed subsets of the MSG categories. For “skills,” the

guide listed “management skills,” “technical skills,” “supervisory skills,”

“effectiveness with others,” “ability to handle a broader scope,” and “promotional

possibility.” Id. Mr. McNeely also stated in his affidavit that the skills category

included consideration of skills “above and beyond those required for the job.”

Similarly, Area Manager Mike Harris testified that “skills would be the things

that you had that made you capable of doing your job, [including] any

cross-experience that you might have.” As to the MSG’s other two ranking

categories, Mr. McNeely’s memo stated that the “experience” category

encompasses “NCS” and “equivalent work experience.” The “training” category

includes “formal company training” and “formal technical or trade school.”

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 On September 26, 2002, the Area Managers held a meeting and ranked all

of the Band C employees in affected work groups. Their ranking decisions were

unanimous. Because there is no contemporaneous document detailing the reasons

for each employee’s particular ranking, Mr. Wooten—one of the Area Managers

who participated in the ranking meeting—provided an affidavit in this case that

explained why each employee was ranked higher or lower than Ms. Sanders.

For example, the first-ranked employee in Band C in Ms. Sanders’s

affected work group “had been in his engineering position longer than Ms.

Sanders, and his skill level was considered to be greater than Ms. Sanders.” The

second-ranked employee “had construction experience and was considered to be

more versatile than Ms. Sanders.” The sixth-ranked employee “had been

promoted . . . from his cable splicing technician job. Even though he had not

been an engineer as long as Ms. Sanders, he was able to learn his job very quickly

due to his outside technical background. His skills were considered to be greater

than Ms. Sanders.” These explanations are consistent with SWBT’s RIF policy,

as outlined in both the MSG and the guide provided by Mr. McNeely.

Ms. Sanders appears to argue, however, that SWBT did not apply its RIF

criteria consistently and uniformly across all of its employees. As evidence, she

points out that she had been in an engineering position for more time than at least

one person ranked ahead of her in Band C. She thus concludes that SWBT did

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not consider her tenure when ranking her against that employee.

There is, however, no evidence to suggest that SWBT failed to consider her

tenure. According to Mr. Wooten’s affidavit, she was ranked lower than the other

employee because he “had an outside construction background and prior

supervisory experience. . . . His outside construction background enabled him to

independently complete jobs. Ms. Sanders was not as autonomous.” Although

Ms. Sanders may have been in an engineering position longer than the other

employee, an employee’s tenure as an engineer was only one of many possible

ranking criteria in the MSG categories of “performance, skills, experience, and

training.”

We therefore do not agree with Ms. Sanders’s position. The descriptors

used in Mr. Wooten’s affidavit are entirely consistent with the criteria set forth in

Mr. McNeely’s ranking instructions. This fact distinguishes the present case from

Beaird because SWBT’s ranking method did not deviate from its stated policy.

See Beaird, 145 F.3d at 1173–74.

Moreover, Mr. Wooten’s affidavit is not evidence that SWBT inconsistently

applied the RIF criteria. His affidavit’s purpose is merely to illustrate why a

specific employee was ranked higher than Ms. Sanders, not to provide a

comprehensive list of all the ranking criteria assessed by SWBT’s Area Managers.

That the affidavit is selective in its detail is no indication that the RIF was

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similarly selective. Again, this fact distinguishes this case from Beaird. See id.

(explaining that selective use of RIF criteria in identifying employees to be laid

off is evidence of pretext).

Voluntary Demotion of an Area Manager

Ms. Sanders also takes issue with the voluntary demotion of Rick Griffith

from an Area Manager to a Manager-Engineer. We do not consider this to be

evidence of pretext.

The Area Managers, including Mr. Griffith, knew that SWBT would be

retaining only thirteen of the seventeen Band C Managers-Engineering in the

Oklahoma City/Stillwater area. At the Area Managers’ ranking meeting in

September, the managers unanimously ranked Ms. Sanders thirteenth. Thus, at

that time, she was considered “safe” from the RIF. After the ranking meeting,

SWBT enacted a policy whereby an Area Manager who is subject to a RIF may

take a voluntary demotion to an engineer position rather than risk being laid off.

Also at this time, the Area Managers who had ranked the engineers knew that one

of them (the Area Managers) would be laid off pursuant to the fall 2002 RIF. As

the most junior Area Manager, Mr. Griffith considered himself to be the most

likely candidate to lose his job, so he volunteered to be demoted to a Manager-

Engineering. This demotion necessitated the surplus of an additional engineer

from the group. Ms. Sanders, as the next-lowest ranked engineer, was selected to

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be surplussed.

Although Ms. Sanders contends that Mr. Griffith “basically was able to

pick who was going to be surplussed as a result of his stepping down,” we find

nothing about his decision or the enactment of the policy itself that is indicative

of pretext. Because the voluntary-demotion policy was not enacted until after the

ranking meeting, at the time Mr. Griffith ranked Ms. Sanders he thought she

would be retained. Further, there is no evidence that suggests Mr. Griffith took a

demotion because he wanted Ms. Sanders, as a woman, to be surplussed.

Therefore, his transfer into Ms. Sanders’s engineering group does not call into

question the nondiscriminatory purpose of the RIF as asserted by SWBT.

Statistical Evidence

There were 102 first-level managers in the Oklahoma C&E group prior to

the fall 2002 RIF. Nineteen were women and eighty-three were men. Ten of the

nineteen women, or 52%, were surplussed. Eleven of the eighty-three men, or

13%, were surplussed. Ms. Sanders and Ms. Coffey suggest that sex

discrimination can be inferred because a greater percentage of women were

selected for the RIF.

“Statistics taken in isolation are generally not probative of age

discrimination.” Doan v. Seagate Tech., Inc., 82 F.3d 974, 979 (10th Cir. 1996)

(quotations omitted). Specifically, “[s]tatistical evidence which fails to properly

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take into account nondiscriminatory explanations does not permit an inference of

pretext.” See id. Thus, “[s]tatistical evidence that does not adjust for the various

performance evaluations and departmental rankings of the employees included in

the statistical pool” is insufficient to establish pretext. See Pippin v. Burlington

Res. Oil & Gas Co., 440 F.3d 1186, 1197–98 (10th Cir. 2006).

The district court correctly noted that the plaintiffs’ statistical evidence

does not take into consideration nondiscriminatory explanations for the

disparity—for example, differences in various individuals’ job performance,

experience, and training. Because the statistics fail to account for these variables,

they do not constitute evidence of pretext. See id. (in RIF case, statistical

evidence that fourteen of nineteen terminated employees were over forty years old

is not evidence of pretext because the statistics do not account for individuals’

skills or prior performance); see also Rea v. Martin Marietta Corp., 29 F.3d 1450,

1456 (10th Cir. 1994) (“Plaintiff’s statistical evidence compares only the ages of

employees retained with the ages of those laid off. . . . Plaintiff’s statistical

evidence fails to eliminate nondiscriminatory explanations for disparate

treatment—i.e., that those laid off had lower performance evaluations and

rankings than those retained—and therefore does not permit an inference of

pretext.”); Furr v. Seagate Tech., Inc., 82 F.3d 980, 987 (10th Cir. 1996) (not

permitting an inference of pretext where “[p]laintiffs’ statistics grouped all

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employees together regardless of specialty or skill and failed to take into account

nondiscriminatory reasons for the numerical disparities.”).

III. DISMISSAL OF SBC

A plaintiff must serve a defendant with a summons and a copy of the

complaint within 120 days after the filing of the complaint. Fed. R. Civ. P. 4(m).

If service is not made within 120 days, the court:

on motion or on its own after notice to the plaintiff[,] must dismiss
the action without prejudice against that defendant or order that
service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service
for an appropriate period.

Id. We review for abuse of discretion the district court’s dismissal of a defendant

for improper service. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000).

Here, the district court sua sponte dismissed SBC for insufficient service of

process and was therefore required to give prior notice to the plaintiff under Rule

4(m). 7 Among other things, the notice requirement affords the plaintiff the

opportunity to show good cause for improper service. See Espinoza v. United

States, 52 F.3d 838, 841 (10th Cir. 1995) (“The preliminary inquiry to be made

under Rule 4(m) is whether the plaintiff has shown good cause for the failure to

7
The court’s order indicates that SBC had moved for dismissal. In fact,
SBC had not done so. Rather, SWBT had stated in footnotes to several of its
filings that “SBC Communications, Inc. has not yet been served. . . . SBC
Communications, Inc. [was not] the Plaintiffs’ employer. Plaintiffs’ employer
was SWBT.”

-21-
timely effect service.”). “If good cause is shown, the plaintiff is entitled to a

mandatory extension of time. If the plaintiff fails to show good cause, the district

court must still consider whether a permissive extension of time may be

warranted.” Id. Indeed, a court must expressly consider a plaintiff’s argument

regarding good cause, because “[w]ithout anything in the record to indicate how

the district court made its determination with respect to the good cause exception

. . . appellate review is impossible.” ARW Exploration Corp. v. Aguirre, 45 F.3d

1455, 1459 (10th Cir. 1995).

In this case the district court did not notify the plaintiffs of its intention to

dismiss SBC for improper service. In its order of dismissal, the district court also

concluded, without explanation, that the plaintiffs had not served SBC and had

not shown good cause regarding their failure to do so. Because the district court

did not give the plaintiffs an opportunity to argue that they did, in fact, serve SBC

or that they had good cause not to, the district court abused its discretion in sua

sponte dismissing SBC.

IV. CONCLUSION

We REVERSE the entry of summary judgment in favor of SWBT on Ms.

Sanders’s age discrimination claim. Because none of the plaintiffs have

demonstrated that SWBT’s RIF was a pretext for sex discrimination, we AFFIRM

the district court’s entry of summary judgment in favor of SWBT on those claims.

-22-
We similarly AFFIRM the summary judgment order as to Ms. Coffey’s and Ms.

Brooks’s age discrimination claims. Finally, we REVERSE the district court’s

sua sponte dismissal of SBC as a defendant and REMAND for further proceedings

not inconsistent with this opinion.

-23-
McKAY, Circuit Judge, concurring in part and dissenting in part.

In this summary judgment case, I view the applicable law and the record

differently from the majority and must, therefore, respectfully dissent. I agree

with the majority that this is a circumstantial case, and I agree with the majority’s

disposition of all claims except the gender discrimination claims of Ms. Sanders

and Ms. Coffey, and I conclude Ms. Sanders has established sufficient

circumstantial evidence of age discrimination in addition to her direct evidence to

survive summary judgment.

We are required to consider the totality of the circumstantial evidence when

considering claims of pretext. Beaird v. Seagate Technology, Inc., 145 F.3d

1159, 1174 (10th Cir. 1998). If the proffered evidence, when viewed in the

aggregate, is “sufficient to raise a genuine doubt about a [d]efendant’s

motivation,” we may conclude a plaintiff “has met the requirements necessary to

a showing of pretext.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1220

(10th Cir. 2002) (internal quotation marks omitted). “A showing that the

employer’s justifications for its behavior are pretextual permits a finding of

intentional discrimination, but does not compel it.” Exum v. U.S. Olympic

Comm., 389 F.3d 1130, 1135 (10th Cir. 2004).

Generally, “[a] plaintiff demonstrates pretext by producing evidence of

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.”

Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (internal

quotation marks omitted); Garrett, 305 F.3d at 1217. “[E]vidence of pretext may

include, but is not limited to . . . prior treatment of plaintiff; . . . disturbing

procedural irregularities (e.g., falsifying or manipulating . . . criteria); and the use

of subjective criteria.” Garrett, 305 F.3d at 1217 (final alteration in original)

(internal quotation marks omitted).

Specifically, in Beaird v. Seagate Technology, Inc., we delineated three

principal ways a plaintiff can demonstrate pretext in a RIF case. 145 F.3d at

1168. In my view, two of them apply in this instance. “First, [a plaintiff] can

argue that her own termination does not accord with the RIF criteria supposedly

employed,” 1 even when an employer gives a business judgment reason for

changing its RIF criteria midstream. Id. Although an employer “may choose to

conduct its RIF according to its preferred criteria” rather than criteria previously

documented by the employer, the employer’s application of or deviation from the

documented RIF criteria is not immune to judicial review and may be “so

idiosyncratic or questionable that a factfinder could reasonably find that it is a

1
In Beaird, the RIF criteria supposedly employed were the procedures
described in the employers handbook. See id. at 1162. Beaird was analyzing a
termination not in accord with that policy. See id. at 1168.

-2-
pretext for illegal discrimination.” Id. at 1169. Selective application of

documented or undocumented RIF criteria may indicate pretext. See id. at

1173–74.

Here, as in Beaird, Defendant claims to have followed its written RIF

criteria. Specifically, Defendant’s four main RIF criteria are listed in the MSG as

“performance,” “skills,” “experience,” and “training.” (R. at 370, Management

Staffing Guidelines at 9.) The MSG expressly allows Defendant to add RIF

criteria, and Mr. McNeely did so in a ranking considerations instruction sheet he

sent to area managers. The ranking considerations sheet listed specific

subcategories of the four general RIF criteria listed in the MSG for area managers

to consider when ranking Band C managers. After litigation ensued, Defendant

provided affidavits from several managers listing RIF subcategories previously

undocumented in the MSG or on the ranking considerations sheet as their reasons

for ranking certain employees above others within Band C. Although these

reasons were certainly related to the four main RIF criteria, in my view, they were

not consistent with the written subcategories found in Mr. McNeely’s ranking

instructions. I refer to these criteria as the “undocumented RIF criteria” because

they were not specifically documented in any of the contemporaneous documents

relied on by Defendant when ranking employees.

The second method a plaintiff can employ to demonstrate pretext in a RIF

-3-
case is to present evidence that her “evaluation under [a] defendant’s RIF criteria

was deliberately falsified or manipulated” to affect her employment status

negatively. Id. at 1168. “One method of demonstrating manipulation or

falsification of evaluation is to produce evidence that a supervisor responsible for

assessing her performance displayed ageist [or gender] animus.” Id.

In addition to these principal methods for demonstrating pretext, our cases

explain three other relevant indications of pretext. First, “[w]hen an employer’s

RIF criteria include job categorization, an employer must explain the basis for

that categorization or risk a finding of pretext.” Id. at 1170. Second, the extent

of apparent procedural irregularities with respect to the employee’s selection for

the RIF may indicate pretext. Whittington v. Nordam Group Inc., 429 F.3d 986,

994 (10th Cir. 2005); see also Plotke v. White, 405 F.3d 1092, 1104 (10th Cir.

2005); Garrett, 305 F.3d at 1220. Third, inconsistencies in an employer’s

explanation of the reasons for its negative employment action may also indicate

pretext. Id.

Thus, in analyzing Plaintiffs’ claims, the court should focus its pretext

analysis on the aforementioned five categories: (1) selective application of RIF

criteria, (2) manipulation of employee evaluations under RIF criteria, (3)

inadequate employer explanation for job categorizations, (4) RIF procedural

irregularities, and (5) inconsistent employer reasons for surplussing.

-4-
 Circumstantial Evidence as to Ms. Sanders

Ms. Sanders produced circumstantial evidence related to age and gender

discrimination in four of the five pretext categories the court should consider. I

conclude Ms. Sanders has produced evidence supporting a finding of pretext in

three of those four categories.

Selective Application of RIF Criteria

To survive summary judgment in this category, Ms. Sanders needed to

show Defendant’s application of or deviation from its RIF criteria was so

“idiosyncratic or questionable that a factfinder could reasonably find that it is

pretext for illegal discrimination.” Beaird, 145 F.3d at 1169. Deviation from

documented RIF criteria alone does not support an inference of pretext. However,

selective or non-uniform application of either documented or undocumented

criteria may be sufficient to support such an inference.

When an employee provides sufficient circumstantial evidence to support a

finding of pretext due to an employer’s selective application of its chosen RIF

criteria, the employer may then attempt to meet the Reeves burden of providing

abundant and uncontroverted evidence that no discrimination occurred to rebut

the employee’s pretext claim and to preserve the employer’s claim of being

entitled to summary judgment. I would hold that an employer has provided

abundant and uncontroverted evidence of its non-discriminatory RIF criteria

-5-
application if the employer can document an observable pattern of RIF criteria

application that shows the employer applied the same criteria to a large majority

of its at-risk employees. When, as I see in this case, an employer selectively

applies any RIF criteria favoring a minority of employees, who then finish with a

higher rank than those surplussed, I would hold an employer did not meet its

burden of presenting abundant and uncontroverted evidence of no discrimination

to preserve its claim for summary judgment.

In this case, Defendant’s MSG states repeatedly that managers should use

criteria such as performance, skills, experience and training as benchmark RIF

criteria. 2 Early in litigation, Defendant explained managers ranked Band C

employees “from high to low based on their performance, skills, experience, and

2

Organizations with a surplus condition must identify those employees
who will be surplussed.
Criteria such as performance, skills, experience and training,
remain key to the selection of managers for staffing the organization.
...
In order to evaluate employees, the following steps must be followed
and documented as indicated:
1. Those managers in an affected work group potentially subject to
being declared surplus should be selected based on criteria such as
performance, skills, experience and training. Initially, employees
should be assigned to one of . . . four bands:
...
Managers should be listed in order from high to low based
upon criteria such as performance, skills, experience and training . . .
.
(R. at 370, Management Staffing Guidelines at 9.)

-6-
training.” (R. at 181, Def. SWBT’s Mot. for Summ. J. and Br. in Supp. at 10.)

Mr. McNeely claims he followed the MSG process for the RIF and instructed area

managers to rank Band C employees using performance, skills, experience, and

training criteria. Two of Defendant’s area managers, Mr. Alfred Saenz and Mr.

Mike Harris, also claimed they used the four primary documented RIF ranking

criteria.

Mr. McNeely also sent managers a ranking considerations sheet with a list

of subset categories for the four main criteria to use when ranking their Band C

managers. 3 The ranking considerations sheet explained that, because Defendant

had already used the performance criterion to calculate the band ratings, managers

should use only the remaining three RIF criteria and their subcategories for

ranking purposes. The ranking considerations sheet expressly instructed area

managers to “[u]se the Skills, Experience and Training sections below in order to

help in determining the ranking of the C band.” (R. at 233, Ranking

Considerations at 1.)

Defendant claims it used its RIF criteria to rank Ms. Sanders and the other

3
The subcategories for skills consisted of management skills, technical
skills, supervisory skills, effectiveness with others, ability to handle a broader
scope of responsibility, and promotional possibility. Experience subsets were
years of service and equivalent work experience. Training subcategories were
formal company training, formal technical or trade school, and any degrees
earned in school.

-7-
employees in her group. However, Defendant’s specific explanation, proffered

after litigation ensued, for why certain employees were ranked above Ms. Sanders

included several factors not listed in either the MSG or on the ranking

considerations sheet provided by Mr. McNeely. Specifically, Defendant proffered

twelve categories of undocumented criteria and one category of documented

criteria to explain why twelve of Ms. Sanders’ peers, four of whom were younger

and male, six of whom were older and male, and two of whom were younger and

female, were ranked ahead of her. Although this fact alone does not support an

inference of pretext, the record strongly supports an inference that Defendant did

not apply these criteria uniformly to each employee when ranking twelve

employees ahead of Ms. Sanders. In my view, using criteria not listed on the

ranking considerations sheet and not considering all three content areas as

instructed constituted a deviation from the RIF criteria “supposedly employed.”

Beaird, 145 F.3d at 1168. I conclude Defendant then applied its chosen RIF

criteria selectively.

The highest level of selectivity Defendant employed was when it applied

six of the twelve undocumented criteria only once to six different employees

ranked above Ms. Sanders and did not apply any of those six undocumented

-8-
categories to any of the other eleven employees ranked ahead of Ms. Sanders. 4

Defendant applied three of the undocumented criteria to only two other

employees. 5 Defendant applied one undocumented criterion to three other

employees who outranked Ms. Sanders. 6 At best, the largest number of

employees out of the twelve ranked ahead of Ms. Sanders that Defendant applied

undocumented criteria to was five employees. 7

Moreover, I am of the view that this inference of a selective, non-uniform

approach is uncontroverted by the record. Indeed, there is little to no evidence

from the area managers’ meeting indicating they discussed the undocumented

criteria at all. The sketchy notes from that meeting support an inference that they

did not uniformly apply their chosen criteria to a large majority of at-risk

employees.

4
These criteria were as follows: having a civic engineering background,
learning the job quickly, having a technical splicing background, being
experienced in cable repair, having experience in the control management center,
having outside plant technical experience, and having drafting and CAD
experience.
5
The three undocumented criteria used only twice were as follows: having
longer time in an engineering position, installation and repair experience, and
construction experience.
6
The one undocumented criterion Defendant applied to three employees
was having outside plant technical experience.
7
These two criteria were having greater skill level and being more
versatile.

-9-
 Specific examples of employees who outranked Ms. Sanders according to

these undocumented criteria are as follows. First, Defendant ranked Mr. Michael

Heatley higher than Ms. Sanders using the undocumented criteria of having

“greater” skills. Even though Mr. Heatley did not have an extensive engineering

background, he was considered to have greater skills because he learned quickly.

(R. at 304, Harris Aff. 4 ¶11.) Yet the record indicates Defendant used Ms.

Sanders to train new engineers rather than Mr. Heatley, whom Defendant

indicated had greater skills.

Second, Defendant listed outside construction background as the

undocumented criteria for ranking Mr. Alton Miller ahead of Ms. Sanders. Ms.

Sanders trained Mr. Miller in 2002 when he was on a PIP for misconduct in his

prior supervisory position. Mr. Miller had less time in his engineering position

than Ms. Sanders. He had three months’ experience in 1983 and eight months’ in

2002 contrasted with Ms. Sanders’ ten years as an engineer. Length of time as an

engineer was one of the undocumented criteria area managers used to place Ms.

Sanders below some of her other peers, yet they did not uniformly apply that

same criteria when comparing her to Mr. Miller. In addition, Ms. Sanders’

productivity was nearly three times higher than Mr. Miller’s. Productivity was

another undocumented RIF criterion Defendant used in its considerations when

ranking employees because it appeared in handwritten notes from the ranking

-10-
meeting next to Ms. Sanders’ name.

Third, like Ms. Sanders, Mr. Woody Harjo had no outside plant technical

experience, but Defendant retained him. Defendant ranked Mr. Harjo higher than

Ms. Sanders and Ms. Nancy Bounds, who was also surplussed. According to the

undocumented criteria, Ms. Bounds, like Ms. Sanders, was ranked lower because

of having no outside plant experience. Even though neither Ms. Sanders, Ms.

Bounds, nor Mr. Harjo had outside plant technical experience, Mr. Harjo was

retained for his drafting and CAD background which Defendant claimed made

him more versatile than either Ms. Sanders or Ms. Bounds. (R. at 305–06, Harris

Aff. 5–6 ¶11.) Ms. Bounds had a drafting background, and as noted above, Ms.

Sanders supervised drafting clerks. The record does not indicate if Ms. Sanders’

or Ms. Bounds’ drafting experience included CAD work.

Thus, the non-uniform application of undocumented RIF criteria when

cross-comparing employees during ranking, little to no evidence from the area

managers’ ranking meetings indicating that they discussed the undocumented

criteria at all and, finally, the existence of only sketchy notes regarding the

criteria they did discuss when ranking employees all would combine to provide a

reasonable juror with sufficient circumstantial evidence to support a finding of

pretext in this area. In my view, Ms. Sanders’ circumstantial evidence of this

selective application strongly supports an inference of pretext.

-11-
 Finally, because Defendant applied each of its chosen RIF criterion to less

than a large majority of ranked employees, I conclude it did not provide abundant

and uncontroverted independent evidence of non-discrimination and, therefore,

cannot preserve its claim for summary judgment in this area.

RIF Procedural Irregularities

I am of the view that Ms. Sanders provided circumstantial evidence of RIF

procedural irregularities in two areas. First, Ms. Sanders points to Mr. Griffith’s

participation in the ranking meeting in which Ms. Sanders was ranked thirteenth

in the Band C pool of employees. The area managers knew before the ranking

meeting Defendant would retain a specified number of first-level managers in

Bands A–C. In fact, Defendant planned to retain all Band A and B managers but

only thirteen Band C managers. The evidence supports an inference that Mr.

Griffith knew he was likely to be surplussed from his position as an area manger

because he was the least senior area manager. After participating in the ranking

meeting, Mr. Griffith requested, pursuant to a policy adopted after the ranking

meeting, a voluntary demotion from an area manager to a first-level manager in

Ms. Sanders’ group to avoid being surplussed as an area manger during the RIF.

Even though he was demoted, Mr. Griffith experienced no change in salary. I

agree with the majority that Mr. Griffith’s demotion does not, by itself, provide

support for a finding of pretext under irregular RIF procedures because Defendant

-12-
is entitled to use its business judgment to create policies regulating transfers and

to transfer employees according to those policies for legitimate business purposes.

Moreover, the record provides no evidence that Mr. Griffith’s demotion was not

conducted pursuant to a legitimate business decision.

Nevertheless, in my view, an inference of pretext arises from Mr. Griffith’s

participation in the area managers’ ranking meeting at a time he knew his job was

vulnerable and knew he might be transferring into the group of employees he

helped to rank. Mr. Griffith was a decision maker at the meeting in which

Defendant ranked Ms. Sanders thirteenth, after twelve other individuals who were

either male or younger than Ms. Sanders, or both. I find Mr. Griffith’s

involvement in the decision to rank Ms. Sanders thirteenth to be irregular when he

knew she would be the next person surplussed if the total size of her manager

group increased. That knowledge and Mr. Griffith’s subsequent request for a

transfer to Ms. Sanders’ group combine to constitute a procedural irregularity that

provides some support for a finding of pretext under the totality of the

circumstances standard.

Second, Ms. Sanders provided circumstantial evidence of a procedural

irregularity with respect to one topic of possible discussion at the area managers’

ranking meeting. That topic was age. Mr. Wooten claimed he did not know the

ages of the engineers who reported to him and that age was not a factor in the

-13-
rankings, yet his notes from the meeting indicated six pension-eligible employees

with a star. Although pension eligibility is not necessarily connected to age, it is

sufficiently related under the circumstances of this case, to allow a reasonable

juror to infer the area managers discussed age when discussing pension eligibility

during the meeting. While this evidence, standing alone, would be insufficient to

support a finding of pretext, under the totality of the circumstances standard, a

reasonable juror could examine it along with the other evidence and infer from it

that the area managers discussed age at the meeting.

Inconsistent Employer Reasons for Surplussing

If an employer offers inconsistent reasons for surplussing, we consider “(1)

the timing of the change in position and (2) the evidentiary basis for the new

rationale.” Jamarillo, 427 F.3d at 1311. A change in explanation occurring after

significant legal proceedings have occurred supports an inference of pretext. Id.

Defendant gave numerous reasons at different times for surplussing Ms.

Sanders. First, Mr. Wooten allegedly told Ms. Sanders directly that she was

surplussed because of her age. However, in his affidavit and on his ranking

notes, Mr. Wooten indicated Ms. Sanders’ productivity was the problem.

Defendant elsewhere stated that Ms. Sanders’ lack of outside plant technical

experience, work experience, and technical skills were the factors that led to her

being surplussed. For instance, Mr. Harris stated that “Ms. Sanders’ ranking was

-14-
primarily attributable to her non-technical background. A technical background is

extremely valuable to an engineer’s working knowledge of outside plant facilities.

Ms. Sanders was at a disadvantage since she did not have outside plant

experience.” (R. at 304, Harris Aff. 4 ¶11.)

Defendant provided its age and productivity reasons during the RIF process

both in Mr. Wooten’s conversation with Ms. Sanders and in the notes from the

ranking meeting. However, Defendant’s later, inconsistent explanation was

provided after Ms. Sanders filed suit. I find this change in explanation supports a

finding of pretext because Defendant’s rationale changed after significant legal

proceedings had occurred.

Conclusion as to Ms. Sanders

Viewing the evidence in the light most favorable to Ms. Sanders and under

the totality of the circumstances standard, I conclude Ms. Sanders has produced a

strong case of circumstantial evidence to support a finding of pretext. I am of the

view that Defendant has not produced abundant and uncontroverted evidence

showing discrimination did not occur and cannot preserve its claim of being

entitled to summary judgment as a matter of law. Therefore, I would reverse and

remand on both Ms. Sanders’ age and gender discrimination claims.

Circumstantial Evidence as to Ms. Coffey

Ms. Coffey produced circumstantial evidence of discrimination in four of

-15-
the five categories the court should analyze. However, because Ms. Coffey was

not ranked against any younger employees, I agree with the majority that her age

discrimination claim cannot survive summary judgment. I therefore analyze the

circumstantial evidence only with regard to her gender discrimination claim.

Selective Application of RIF Criteria

In Ms. Coffey’s case, as in Ms. Sanders’, I find Defendant’s explanation for

its rankings is based on specific criteria undocumented in the MSG or on the

ranking considerations sheet. Like Ms. Sanders, Ms. Coffey claims Defendant

selectively applied its undocumented RIF criteria to preserve jobs for male

employees.

The five undocumented criteria Defendant proffered for ranking five men

ahead of Ms. Coffey were having engineering experience, managing the job well,

being more versatile, getting along better with a boss, and having outside

technical experience. Defendant also considered supervisory experience, one of

the documented criteria found on the ranking considerations sheet. Like Ms.

Sanders, Ms. Coffey provides sufficient circumstantial evidence to support a

finding of pretext in Defendant’s selective application of its chosen RIF criteria.

Specifically, Defendant applied three of the five undocumented criteria

only once to three different employees ranked ahead of Ms. Coffey and did not

apply those same criteria to the other two employees ranked ahead of Ms.

-16-
Coffey. 8 Defendant applied the other two criteria to only two employees ranked

ahead of Ms. Coffey. 9 Defendant applied none of these undocumented criteria to

a large majority of at-risk employees.

Specific examples of the selective applications are as follows. Defendant

ranked Mr. Roger Cox ahead of Ms. Coffey using one undocumented criterion. It

stated Mr. Cox had a diverse working background and was thus more versatile

than Ms. Coffey. Defendant cites to this criterion only one other time, when

describing Mr. Steven Parrot. There is no mention of this undocumented criterion

for any of the other three candidates ranked ahead of Ms. Coffey. Thus, the court

has no way of knowing whether any of the other candidates ranked ahead of Ms.

Coffey also had a more diverse work background. In my view, therefore, it was

not uniformly applied.

Defendant also ranked Mr. Rolland King higher than Ms. Coffey because

he managed his job well and because his boss was not having problems with him

like Mr. Harris claimed he was having with Ms. Coffey. These two

undocumented RIF criteria do not appear in the record in regard to any other

8
The three undocumented criteria Defendant used only once were having
engineering experience, managing the job well, and getting along better with a
boss.
9
These categories were being more versatile and having outside technical
experience.

-17-
person ranked higher than Ms. Coffey. Thus, they were not uniformly applied. In

addition, Mr. Harris’ statement that he was having problems with Ms. Coffey is

possibly in conflict with Mr. Harris’ evaluation of Ms. Coffey just nine months

before when he wrote, “Ms. Coffey continues to learn and grow in her job. She

works well with others and is a team player.” (R. at 311, Exhibit 7-B at 2.)

Finally, Defendant ranked Mr. John Starwalt higher than Ms. Coffey

because he had more engineering experience and an outside technical background.

The record indicates Defendant applied the engineering experience criterion only

to Mr. Starwalt, and it applied the outside technical background criterion only to

one other person ranked higher than Ms. Coffey. Again, I conclude Defendant

selectively applied undocumented RIF criteria.

Accordingly, I am of the view that Ms. Coffey has provided sufficient

circumstantial evidence to support a finding of pretext in Defendant’s selective

application of undocumented RIF criteria. Because I see no observable pattern of

RIF criteria application to a large majority of Defendant’s at-risk employees, I

conclude Defendant has not produced abundant and uncontroverted evidence of

non-discrimination and thus cannot preserve its claim for summary judgment in

this area.

Manipulation of Employee Evaluation

A reasonable juror can draw an inference that an employer has manipulated

-18-
its evaluation of an employee under its RIF criteria if the record indicates

evidence of gender animus on the part of a supervisor with power to assess an

employee’s job performance. See Beaird, 145 F.3d at 1168. Inherent gender

animus can warp a supervisor’s evaluation of an employee. In this case, Mr.

Harris was Ms. Coffey’s immediate supervisor, and Ms. Kaylan Collins stated

that she personally overheard Mr. Harris make “sexist remarks about female

employees/managers.” (R. at 1003, Collins Aff. 2 ¶10.) Ms. Collins’ statement

alone is sufficient to support a finding of pretext in this area.

Moreover, Ms. Coffey presented other evidence that, viewed in the light

most favorable to her and under the totality of the circumstances, provides some

support for an inference of pretext in this category. For instance, Ms. Coffey

stated in her affidavit that Mr. Harris scrutinized female employees more closely

than male employees. She claimed a male employee noticed the same behavior in

Mr. Harris and mentioned it to her. Ms. Coffey also claimed that Mr. Harris

rarely encouraged her in her work, and she believed he did not want to deal with

women. Finally, Ms. Coffey stated in her deposition that another female

employee had been told by Mr. Harris that she was a nice looking woman, and

that if she dressed up and went for an “after hours’ interview” with the hiring

manager, he thought she could probably get the job she was seeking. (R. at 759,

Coffey Dep. 109:11–15.)

-19-
 Inadequate Employer Explanation for Job Categorization

Defendant grouped employees in Ms. Coffey’s job category by job title,

Manager–Construction. That job title included two subsets: construction

managers, who supervised Defendant’s internal cable technician employees, and

contract coordinators, who oversaw outside independent contractors in fulfilling

Defendant’s cable work orders. Ms. Coffey was a contract coordinator, as were

three of the five employees against whom she was ranked. The record indicates

that a fourth employee was a construction manager, but there is a dispute

regarding whether the fifth employee was a construction manager or a contract

coordinator.

The Defendant’s MSG required it to group employees according to their

“affected work group,” which the MSG defined as a portion of the organization at

the same level, job title, similar job function, geography, and line of organization.

(R. at 471, P’s. Combined Resp. to D’s. Mot. for Summ. J. at 15; R. at 363, MSG

at 2 (Note).) Defendant argues it permissibly grouped construction managers and

contract coordinators under the same job title because they had the same job

function. Ms. Coffey asserts her day-to-day functions as a contract coordinator

differed significantly from that of a construction manager. For example,

construction managers worked with Defendant’s internal crews of cable

-20-
technicians and provided supervision for them. Whereas Ms. Coffey, as a

contract coordinator, had no supervisory authority and worked with several

independent contractors at various job sites on any given day to ensure their

compliance with Defendant’s contracted work orders.

This contrast is important because Defendant’s explanation for ranking two

employees above Ms. Coffey—the two employees who were or who were alleged

to be construction managers—included the criterion of prior supervisory

experience, which Ms. Coffey allegedly could not obtain as a contract

coordinator. Based on Defendant’s use of this criterion to rank construction

managers over Ms. Coffey, in my view, Defendant’s grouping of the two job

subsets under one title could support a finding of pretext.

RIF Procedural Irregularities

Ms. Coffey alleges Defendant applied a permissible RIF procedure in an

irregular manner. Specifically, Defendant allowed its area managers to reevaluate

all employees prior to the RIF if the managers thought a reevaluation was

necessary. In so doing, they had the latitude to raise or to lower an employee’s

rating. 10 This was likely to affect the employee’s risk of being surplussed, given

10
Absent evidence that the area manager’s subjective power to raise or
lower any employee’s evaluation lapses once a RIF is declared, we must assume
that power continues.

-21-
that only employees rated as “average” and therefore placed in Band C were

vulnerable during this RIF. The reevaluating procedure itself was not irregular.

However, Ms. Coffey argues, and I agree, that she has provided sufficient

evidence to support an inference that her supervisor used this procedure in an

irregular manner.

Mr. Harris reevaluated one of Ms. Coffey’s younger, male peers who had

been rated as “average” before the RIF, and raised him to an “above average,”

Band B rating, thus saving him from possible surplussing. Yet, Mr. Harris did not

lower the ranking of another male employee, Mr. Dewayne Hendricks, who had

demonstrably poor performance during the RIF period. The action or inaction

standing alone would not suffice to show irregularity. However, a jury could find

it to be irregular that Mr. Harris exercised his power to improve his evaluation of

one employee, based on his subjective determination that the employee’s

performance merited reappraisal, yet did not exercise that same power to

reevaluate another employee once he learned about that employee’s

mismanagement during the RIF period. 11 In my view, Ms. Coffey has provided

11
I must note that Defendant disputes Mr. Harris’ knowledge of the
employee’s misbehavior during the RIF period. However, we must view the facts
in the light most favorable to Plaintiffs in this appeal from summary judgment.
According to Ms. Brooks’ deposition testimony, Mr. Hendricks reported Mr.
Harris told him during the RIF process that “if his production did not improve,
(continued...)

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sufficient evidence to support a finding of pretext based upon this procedural

irregularity.

Conclusion as to Ms. Coffey

Viewing this evidence in the light most favorable to Ms. Coffey and under

the totality of the circumstances standard, I conclude Ms. Coffey has produced

sufficient circumstantial evidence in all four categories for which she produced

evidence to support a reasonable juror’s finding of pretext as to gender

discrimination. In addition, I find Defendant has not produced abundant and

uncontroverted evidence showing discrimination did not occur and, therefore,

cannot preserve its claim of being entitled to summary judgment as a matter of

law.

For the reasons stated, I would hold that both Ms. Sanders and Ms. Coffey

are entitled to trial on the gender claim and that Ms. Sanders has presented

additional circumstantial support for her age claim.

11
(...continued)
that [Mr. Harris] could easily put his name on the list and take [Ms. Coffey] off.”
(R. at 912, Brooks Aff. 137:1–8.) This testimony creates a triable issue of fact on
this point.

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