Beaird v. Seagate Technology, Inc.

LUCERO, Bеfore TACHA and Circuit be taken into account.” Appellants’ App. DANIEL*, Judges Judge. District at 228. submitted to the district In affidavit LUCERO, Judge. Circuit court, Services, Seagate’s Director of Human from a in force This case arises reduction Yandell, on this scheme. Lowell elaborated (“RIF”) in 1993 defendant instituted Sea- Yandell, According operational require- gate Technology, a manufacturer of employ- the total number of ments dictated computer equipment. As result of ees to be cut within each code. Thereaf- RIF, employees than more ter, employee performance determined which City facility Many Oklahoma were laid off. employees lay-off would number the final of the laid-off had worked at the employee’s performance one total. Where City facility for more than a dec- Oklahoma another’s, length ranking equal plaintiffs in had ade. Some of the this case If service was used as a tiebreaker. two twenty years seniority they than more when seniority, employees had identical the em- go. Twenty-seven employ-

were let former ployee day born on the earliest of the month Seagate ees sued for violation of various was selected first. laws. federal and state antidiscrimination RIF, plaintiffs voluntarily purposes For mea- Some of the dismissed claims, ways. Employees granted performance court sured in two their and the district subject summary judgment recently been to formal as to most of the who had lay- disciplinary proceedings wеre chosen for others. The became final when any remaining plaintiffs off before other within their settled and dis- * Daniel, Wiley designation. Honorable Y. United States District Colorado, sitting by Judge for the District of II no such documented If there were code.1 actions, Seagate stated that disciplinary argue Appellants first the district writ- employee’s most recent considered allowing error in court committed reversible rating, which was performance evaluation ten reply plaintiffs Seagate to file a after re- For all of one to five. on a scale measured summary sponded Seagate’s motion for perfor- recent written plaintiffs, the most denying oppor- judgment, while compiled in a were “CHA- mance evaluations tunity surreply. file a The substance of July that also report, PA” dated (1) parts: Seagate’s reply is three their final evaluation. lists the date of performance point totals incon- existence of cases, evaluated on some were performance ratings sistent with the used point scale that was converted zero-to-500 plaintiffs’ RIF effect on selection had no corresponding performance into a evaluation (2) RIF; plaintiffs’ previous attack on for the one-to-five scale. CHAPA RIF potential as a criterion for the use RIF, principally that the alleged Plaintiffs precludes assertions that consideration now them, illegal was a applied properly potential; consider the RIF did not Seagate mоved for discrimination. (3) voluntary discrimina- dismissal of lay-off asserting that all decisions judgment, many plaintiffs suggests tion claims RIF accordance with the were made in strict remaining plaintiffs likewise have no val- response, In outlined above. guidelines id claims. by intro- disputed that contention ducing Seagate evaluation document parties disagree as to what standard argued that this Plaintiffs their Exhibit 53. apply to the district of review we should they have been re- should document showed reply Ap- brief. decision to allow court’s employees who were not place of tained pellants argue that we should review the criteria, off; including po- laid that the RIF They de novo. con- district courts’s decision history, disciplinary were used tential and jurisdic- error is tend that the district court’s seniority was not selectively; that strict and and, thus, requires regardless tional reversal applied. Additionally, prejudice. any showing of of of their number appellants argue that some then allowed to The district court by prejudiced the district court’s were fact brief, explained the reply file a they material to which had reliance on new reiter- nature of Exhibit 53 and preliminary respond. Seagate con- opportunity to no had been consis- that the RIF criteria ated review the district tends that we should tently applied. Plaintiffs moved to strike of discre- for an abuse alternative, court’s decision or, to reply Seagate’s brief court Seagate argues that the district tion. surreply. The district court denied file a allowing acted within its discretion Thereafter, the district court motions. both allowing without company reply file a brief to summary judgment with re- granted further, and, that no surreply plaintiffs a appel- appellants. As to spect to all of the as a result of the prejudice unfair occurred Henson, Clark, Bush, Bobo lants re- court’s consideration district prima facie that a court concluded district ply- had not been made. of discrimination case eight appellants, it con- respect to all With Procedure 56 Rule of Civil legitimate Federal Seagate’s RIF was a

cluded that court to allow requires the district implicitly nondiseriminatory for termination reason opportunity to re nonmoving party carry their bur- appellants had failed to summary judgment is entered spond allow a before presenting facts that would den of 56(c) (“The mo ap- against it. Fed.R.Civ.P. that the RIF was to conclude factfinder days before at least 10 Eight plain- tion shall be served plied pretextual in a manner. hearing. The adverse for the the time fixed timely appealed. tiffs discipline within received more serious as en- or had performance criterion was defined 1. This Appellants’ App. year "first compassing who had received the RIF. See one days warnings" the RIF selections within 90 summary reply party prior day hearing may moving judgment in a serve affidavits.”); allowing opposing party opposing Corp. brief without Celotex v. Ca trett, “supervision respond, fits best within this U.S. (1986) (“[District litigation” Consequently, framework. we re cоurts are L.Ed.2d 265 managing trial court’s its docket and view the widely acknowledged possess power supervising parties respect in this for an summary judgments sponte, so enter sua only. abuse of discretion Walter v. Mor losing party long as the was on notice that Cf. (10th Cir.1994) (hold ton, 1240, 1244 her she had to come forward with all of evidence.”). ing trial court did not abuse its discretion circuit, “[i]t our is settled law summary judgment giving denying without noncompliance provisions with the time brief). opportunity reply to file movant 56(c) deprives authority of Rule the court of summary grant judgment the motion for the abuse of discretion stan Under opposing party unless the has waived this dard, “a trial court’s decision will not be Venable, requirement.” Osbakken v. [we have] disturbed unless definite and (10th Cir.1991). Here, appellants F.2d firm conviction that the lower court has made analogize Seagate’s reply to an initial sum a clear error of or exceeded the motion, mary judgment suggest that permissible choice in the circum bounds authority grant court had ho district sum Norman, City McEwen v. stances.” (cid:127) mary judgment allowing plaintiffs without (10th Cir.1991) (quoting 1553-54 opportunity respond to the new mate Ortiz, 1161, 1164n. United States v. rials. (10th Cir.1986)). Appellants contend that “permissible Rule 56 neither authorizes nor court no forbids district had choice” reply party moving surreply accepted brief but to allow a once it had judgment. specific Seagate’s reply. In the absence feder- the materials in That con rule, Having accepted al the Federal Rules of Civil Procedure tention is incorrect. brief, permit judges regulate practice reply federal to “in in the district court fact had two law, any permissible manner consistent with federal rules courses of It action. could either 2075, or, §§ adopted permitted surreply granting under 28 2072 in U.S.C. and a movant, and local summary judgment rules of the district.” See Fed. for the it could 83(b). relying any R.Civ.P. the local of the Under rules have refrained from on new ma Oklahoma, reply Western District of authorized terial contained in the brief. 83(a), “[rjeply under Fed.R.Civ.P. ... briefs 56(c) requires nonmoving Rule the encouraged may only are not be filed party given to be notice and a reasonable upon application and leave of Court.” opportunity respond to sum movant’s (1997). case, LR7.1(g) In this the district Celotex, mary judgment materials. 477 See properly court’s actions are viewed as stem- 326, (holding U.S. 106 S.Ct. 2548 that ming authority granted by from the Rule 83. summary judgment is to if be entered Although statutory there is no clear nonmovant on notice that it must come for evidence); Osbakken, prescription appellate as to the of standard ward with all its 931 review, permissive language the (holding purpose ten-day of Local F.2d at 37 that of 56(c) 7.1(g) provisions period Rule and of of in provide both Federal Rule is to nonmovant implies give opportunity prepare Rule 83 that we must the district with defense to sum appropriate Thus, appeal. mary judgment). par court deference moving on when a Underwood, 552, 558-59, ty v. reply Pierce 487 U.S. advances in a evi new reasons and (1988). support summary 108 101 490 in S.Ct. L.Ed.2d dencе of its motion for Moreover, especially judgment, nonmoving party is common for is the “[i]t should be involving broadly opportunity granted respond. sues what can be labeled an See Cia. Caribe, Caribbean, ‘supervision litigation’ given of ... to be Petrolera Inc. v. Arco Cir.1985). (1st abuse-of-discretion review.” Id. at n. 1. How here, ever, presented question grants summary The that if of deter the district court mining may judgment whether the relying district court con for the movant without on party arguments sider evidence and issues the in raised the new materials and the mov-

H65 brief, 91 L.Ed.2d 202 abuse its discre- S.Ct. reply it does not ant’s (1986). “Only disputes might that surreply. over facts by precluding a tion of the under the affect the outcome suit jurisdictional. It is is not issue governing properly preclude law will en- the 56(e) Rule lacks that court true under try summary judgment.” of Id. summary judgment until authority to enter the filing days have run from ten eight appellants All raise claims has been requirement once that motion. But age Age under the Discrim discrimination issue, is the court does and the motion met Employment ination Act accepts jurisdiction simply because it lose (“ADEA”), §§ 29 U.S.C. 621-634. We assess 56(c) Rule reply brief from movant. burden-shifting these claims under requires if the court relies on simply Douglas Corp. framework McDonnell brief, arguments reply new materials or Green, 411 U.S. re may it not forbid nonmovant (1973). prima L.Ed.2d To make out id. sponding to these new materials. See discriminatory discharge facie under case case, we are not convinced that the ADEA, by a a claimant affected RIF or any relied on new materials district court (1) prove: is the pro must that she within Seagate’s reply brief. arguments contained (2) doing age group; tected she definitively, issue We need not resolve the (3) work; satisfactory was dis she however, dis- we conclude that the work; charged despite adequacy of her granted not have trict court should (4) that there is some evidence em any on appellants even against ployer intended discriminate her arguments the evidence the basis all Ingels v. reaching its RIF decision. See court the court. Had district before Corp., 42 Thiokol Cir. refusing appel- its discretion abused 1994). The fourth element be estab opportunity respond any reply lants “through lished circumstantial evidence argument, or would not brief materials favorably less than treated today. affect our decision employees during younger [RIF].” Id. Ill Establishing prima facie case age the ADEA creates Summary judgment discrimination under should presumption discriminatory intent that genuine as to granted “there no issue when by asserting may rebut a fa moving party ... the defendant any material fact and cially nondiscriminatory for the em judgment of law.” reason to a as a matter entitled 56(c). may reviewing Id. ployee’s district termination. The Ped.R.Civ.P. if summary summary she can grant judgment, then resist court’s decision proffered that reason light present favor evidence that view the most we belief,” pretextual, unworthy “i.e. see nonmoving party. Kaul v. Ste was able Cir.1996). Aurora, City 451 Randle v. 69 phan, 1212 83 F.3d (10th Cir.1995), or introduces evi otherwise substantive law at issue determines motivе, illegal discriminatory see id. given dence of facts material case. are Inc., 453.2 Liberty Lobby, 477 U.S. at v. Anderson employees force that the not have the with this stan- other does The dissent takes extensive issue all, Nonetheless, imagines. have well- After standard is dissent Randle dard. Circuit, eight employ pro- RIF and fired the other itself instituted a in this and Randle established RIF, legally pursuant valid dis- ees reasons, to that both refutation of the vides a clear and reasoned Indeed, yet decided to add Henson argument. Henson the dissent’s sent’s entirely illegitimate legitimate how that RIF list hypothetical, illustrates see Dissent Furthermore, Seagate’s treatment of easy into once Randle's clear reasons. it is to fall error law employees as a invali According the dis- other cannot matter prescription is abandoned. sent, that otherwise reasonable inference allow Hen- date the it would not be reasonable to against showing See Furnco jury Henson. proceed on a discriminated case to to a son’s 567, 579, Waters, Corp. 98 v. 438 U.S. employee of Constr. been the had Henson (1978). At 57 L.Ed.2d nine his code who was terminated from lay-off eight younger judgment, years treatment of old. But over Bobo, Bush, plaintiffs Beaird, ger positions Five of the ones similar is sufficient — argue Clark presumption and Johnson —also their create a rebuttable of discrimi- Branson, product inclusion within the RIF was the of natory intent....” 853 F.2d at intentional racial discrimination violation 771. We have not further described such Act, Rights of Title evidencе, VII the Civil U.S.C. leaving thus unanswered such 2000e-2(a)(l), § § U.S.C. 1981. In questions single younger as whether a em- addition, discharge that her Beaird asserts ployee position in a retained similar is suffi- gender constituted discrimination in violation element, cient to establish the fourth or how of Title VII. AU these claims are assessed position similar a must be in order to be Douglas under the same McDonnell order of so, relevant under To Branson. do we re- (ADEA Branson, proof. See F.2d at 770 fourth-prong turn to Branson’s fundamental subject and Title VII claims both to McDon- requirement that the “evi- introduce Douglas proof); nell indirect method of Ran- dence, direct, circumstantial or from which a dle, § (assessing 69 F.3d at 450 1981 claims might reasonably factfinder conclude that the framework). Douglas under McDonnell employer intended to discriminate in reach-

ing (quoting the decision at issue.” Id. A Corp., v. Williams General Motors (5th Cir.1981)). interpret To The district court ruled that four of standard, we look in turn to the basic func- Bush, plaintiffs Bobo, Clark and Hen — prima tion of the plaintiffs facie case within prima son—failed to establish facie cases Douglas proof, the McDonnell order of mind- age discrimination. The district court also burden-shifting ful that framework “al- plaintiffs Bobo, ruled that three Bush and — age lows prevail victims of discrimination to prima Clark —failed to establish facie cases presenting any without age evidence that appar of racial discrimination. There is no determining employer’s was a factor in the dispute appeal ent on these plaintiffs Montagne motivation.” La v. American each established the first three elements of a Prods., Convenience prima facie age case ‍‌‌‌​‌​‌​‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​​‌​‌‌​‌‌​‌‌​‍of race and discriminat (7th Cir.1984). 1409-10 ion.3 appears The district court to have based its decision on the fourth element— prima A facie case of discrimination is one is, that none of these had presumption sufficient to raise of intention- shown favorably treated them less Mary’s al discrimination. St. Honor Ctr. younger nonminority than their or counter Hicks, 509 U.S. 113 S.Ct. parts. 1082-84, Appellants’ App. (1993). L.Ed.2d 407 Left unanswered disagree. Although 1093. We this circuit defendant, presumption mandates a fully has not defined the fourth element of a discrimination, id., finding of intentional see prima facie case of discrimination the con prima facie case “eliminates the RIF, text of a that element was more than most nondiscriminatory common reasons for plaintiffs. satisfied as to each of these plaintiffs rejection,” Dep’t Texas Com- Burdine, complete munity Our most statement of the v. 450 U.S. Affairs Branson, 1089, fourth (1981), element to date is namely 101 S.Ct. 67 L.Ed.2d 207 holds: employer qualifications “Evidence that a fired “lack of or the absence of a an. qualified youn- older vacancy but retained sought,” the International simply explain away legitimate cannot report, indicating the infer- threes on the CHAPA their mendacity ence of Seagate to be drawn from the fact that Seagate’s requirements. work met Henson was firing operation- claimed Henson’s given rating report a of two on the CHAPA indi- ally necessary hiring while at the same time four cating nearly requirements. that his work met people job. other to do the same See at infra Nevertheless, Henson insists that his work was may likely 1174. It make discrimination a less 897, satisfactory, Appellants’ App. see which is termination, cause of Henson's but the dissent satisfy prima sufficient to this element of the explain why does not it renders discrimination a case, Wyo. facie see MacDonald v. Eastern Mental legally impermissible conclusion. Ctr., 1115, (10th Cir.1991). Health 1121 Finally, discharged. all four were protect- 3. All four were members of the relevant Bobo, groups. ed Bush and Clark all scored

H67 States, plaintiff which is to the v. United relieve burden Brotherhood Teamsters very 44, 1843, having to what is 324, uncover difficult to n. 97 S.Ct. 431 U.S. discriminatory (1977). uncover —evidence intent.” specifically, L.Ed.2d More the WLS-TV, v. F.2d Oxman 454-55 Douglas of the McDonnell second element Cir.1988). (7th plaintiff “quali prima facie the case—that fied,” Douglas, 411 McDonnell U.S. course, case, Of in a RIF the fourth element —that 93 S.Ct. 1817—and the actually to a plaintiff point cannot continu “position open,” perform the remained id.— vacancy position ing because her has been “Elimination of these this elimination role. however, can, point eliminated. She to cir sufficient, is reasons for the refusal to hire employer cumstances that show explanation, absent other to create an infer her, could retained but chose instead discriminatory ence that was a the decision younger employee.4 a to retain In such Teamsters, one.” 431 U.S. at 358 n. 97 circumstances, vacancy” “lack of cannot ex S.Ct. 1843. plain employment the contested decision prefers the employer to retain a prima The raises an facie case inference younger employee position in a for which precisely because the two discrimination once qualified. though is Even cer nondiseriminatory most reasons for common exigencies explain RIF tain cases employment an adverse decision are elimi employer’s action such circum nated, decision, “if otherwise unex stances, exigencies analyzed are best “these plained, likely than not on [is] more based stage employer puts at the where the on impermissible the consideration of factors.” nondiseriminatory evidence of reason Burdine, 254, 101 450 U.S. at S.Ct. 1089 Branson, discharge.” 853 F.2d at 771. Waters, (quoting Corp. v. Furnco Constr. 57 L.Ed.2d 957 U.S. 98 S.Ct. instance, plaintiff pursu For who is fired (1978)). Thus, element the fourth of Bran- a RIF position ant to and who held similar parallel to son should be understood younger employee satisfy can to a retained Douglas fourth element of McDonnell Krause v. the fourth element. See Dresser eliminating vacancy” legitimate as a (10th “lack of Indus., Inc., 674, 677 Cir. nondiseriminatory employ motive for the 1990) prima facie case (holding that estab ment decision. the first three elements Once fifty-two employer year where fires lished satisfied, have been that elimination is all RIF, but pursuant old accountant to retains required give prima to a that is rise facie positiоn); younger employee one in similar Branson, 853 F.2d at 771 n. 5 case. Corp., F.2d Hajoca Herold proof (indicating higher quantum Branson, re no Cir.1988); at 771 quired prima (“Evidence facie case in RIF establish employer qualified fired that an situation). language The used Branson younger older but retained ones require plain should be understood positions sufficient to similar create produce age was a presumption discriminatory tiff deter in rebuttable mining employer’s factor in the motivation. require tent and to articulate decision.”). understanding effectively company’s would fuse The Such reasons its prima pretext steps of facie and McDon decision to its workforce does not in reduce choice Douglas pur legitimate employer’s to fire “obviate[ ] nell central itself method, protected pose Douglas from the class rather behind the McDonnell course, prima younger employee need not he Of with reference facie cases 4. outside the discrimination, ADEA-protected O’Connor gender class. See v. Consoli- of race and Corp., dated Coin 517 U.S. S.Ct. opposite Caterers 116 only point members of the sex need 1307, (1996). 1310, L.Ed.2d 433 But the 134 Again, purposes for or of races. different younger insignificantly employee be cannot convenience, analysis plaintiff’s prima of a our younger employee evidence that such an context ADEA facie case in the RIF addresses was retained would be insufficient create an entirely applicablе gender- claims—but it is illegal pur- Id. For inference of discrimination. well. claims as race-based convenience, poses "younger” we refer to em- insignificantly ployees we mean “not where younger" employees. (7th Cir.1986) 584, younger employee. than the (holding “Lack of vacan- 785 F.2d 586-87 cy” thereby eliminated as a nondiscrimina- comply failure of defendant to with its tory explanation plaintiffs for that dismissal policy jury own RIF allowed to conclude RIF and, assuming the first three elements are pretextual). was But minor inconsistencies met, prima a facie case has been shown.5 application of RIF criteria too jury insubstantial to allow a reasonable

Here, the evidence in the record estab pretextual. RIF infer that the See Lu- lishes that for plaintiffs each of the four (10th above, Corp., cas v. Dover 857 F.2d younger noted at least one and/or Cir.1988). nonminority employee was retained in the job example, same code. For code Second, plaintiff can adduce evidence Bobo, to which Bush and Clark all that her evaluation under the defendant’s Smith, belonged, Terry thirty-seven a white deliberately RIF criteria was falsified or ma- year-old employee Appel was retained. See nipulated so as to effect her or termination 276X, App. lants’ at 172-73. adversely employment otherwise alter her belonged, younger Henson numerous See, e.g., status. Gustovich v. AT & T Com- employees were retained. id. at See 208-09. munications, Inc., (7th 56(c), Under Rule a movant fоr Cir.1992) (“To progress, make judgment has “pointing the burden of out to up implying had to come with evidence the district ... court absence [the] of evi performance support nonmoving dence to evaluations had been party’s Celotex, ‍‌‌‌​‌​‌​‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​​‌​‌‌​‌‌​‌‌​‍325, 106 case.” See ‘cooked’ order to U.S. S.Ct. do the older work- ers.”). regard prima case, 2548. With to the facie appellants All this case make carry movant in this case unable to claims of this kind. One method of demon- its burden. strating manipulation or falsification of evalu- produce ation supervisor is to evidence

B responsible assessing performance her displayed ageist animus. Seagate advances the RIF and implementing facially its criteria as a nondis Third, plaintiff criminatory can adduce evi lay reason for its decision to off plaintiffs. generally dence that the RIF is company pretex- more has therefore instance, met its burden step plaintiff may under the second tual. For establish Douglas. McDonnell Furr employer actively sought replace Cir.1996), (10th Technology, number of RIF-terminated with — denied, U.S.-, rt. 117 S.Ct. Bush, ce new hires. bring Bobo and Henson all (1997). case, 136 L.Ed.2d 608 In a RIF claims of this nature. Statistical evidence can demonstrate in three may, circumstances, in certain be relevant to ways.6 principal purpose. See Fallis v. Kerr-McGee Cir.1991). Corp., 944 F.2d First, argue she can that her own however, Contrary to argument, defendant’s termination does not accord with the RIF statistical evidence cannot defeat the supрosedly employed. case, criteria In this claim of an individual where the appellants certain employee contend that had plaintiffs case rests on non-statistical evi potential been according considered racially dence. “A balanced work force can employer’s formula, they own RIF would not immunize an liability been retained. This kind specific Furnco, can some cases acts of suffice to substantiate discrimination.” Co., pretext. See Christie v. Foremost Ins. atU.S. prima

5. The fired can make a facie 6. We do not foreclose other methods of demon- showing qualified case without she is as or more strating pretext. plaintiffs’ arguments, Most than are who retained. To the however, extent typology will fit within the discussed otherwise, suggested Appel- district court see below. Branson, App. lants' it was in error. See 853 F.2d at 771 n. 6.

1169 Lucas, just nondiscriminatory. See 1. Ruth Noran wise— at 1403. 857 F.2d only appellant fired Noran is the that she job Seagate claims code 1432. does not immunize all principle But this require operational pursuant fired was judicial potential judgments” from “business employ lay-off of ten that dictated the ments illegal review for discrimination. See San only employ code. As the ees from Inc., 244, Philip Morris 992 F.2d 247 chez job code with a score of two on ee from this (10th Cir.1993) (when employer invokes busi for report, she was selected first the CHAPA context, judgment rule in discrimination ness termination. reality of the entire situation must be “[t]he pieces are of evidence There two examined”). a doctrine would defeat Such finding together support a record that purpose of the ADEA. See Mon the entire (1) plaintiffs’ ease: Exhibit pretext tana, 106; F.2d at v. Pabst 869 Graefenhain (2) 53; performance a final evaluation (7th Co., 13, n. Brewing 827 F.2d & 8 April 1993. Exhibit submitted dated Cir.1987), grounds by overruled on other Co response Seagate’s motion by plaintiffs in (7th Theatres, Inc., v. Plitt 860 F.2d 834 ston summary judgment, an undated docu- Cir.1988). may There be circumstances “Employees for RIF ment headed Identified which a claimed business is so Using Pooling.” For Noran’s Statewide idiosyncratic questionable or that a factfinder code, employees ranked it lists eleven reasonably could find that is a perfor- ascending according to their order Sanchez, illegal discrimination. See 992 F.2d Noran is listed points mance evaluation. 247; Thornbrough v. Columbus & Green third, points. Appel- with a total of 240 See R.R., Cir.1985), ville 760 F.2d App. at 795. lants’ Hicks, grounds by overruled on other listed, only in fact 407; the eleven four were Of 125 L.Ed.2d U.S. 113 S.Ct. According Seagate, Textron, Inc., the evalua- laid off. n. Loeb v. (1st Cir.1979). in Exhibit 53 were irrelevant more, however, tions listed Without performance final criterion se- because the grade points performance over can choice perfor- RIF purposes lected for reasonably thought pre not be to evidence performance points. than grade mance rather simply no inference of foul text. There is Seagate Noran’s Additionally, claims that play about that choice. because, by appropriately dismissed ease question than But Noran does more made, No- final RIF decisions were the time argues further that Exhibit 53 choice. She rating in Exhibit 53 performance ran’s listed improperly manipulated shows re- replaced a later and lower had been evaluation, performance her final CHAPA view, points for a which scored Noran at 180 rating, in points for a two gave her 180 grade of two. performance CHAPA to ensure her termination. Under order summary judg cannot defeat Noran criteria, point score RIF had Noran’s been by claiming that she would have ment unaltered, would have had CHA- stood she if RIF criteria had been retained different three and been retained. Of PA score of to conduct its choose used. course, Noran cannot establish criteria of according preferred to its RIF demonstrating opportunity for ma- the mere is, grade as performance performance —that would To allow her to do so nipulation. points we will opposed performance —and effectively incorrectly require a de- —and — of defendant’s busi not disturb that exercise Here, prove nondiscrimination. fendant to . Seagate Tech judgment See Doan v. ness however, evi- produced further Noran has (10th Cir.1996), nology, necessary inference that raises the dence — denied, U.S.-, 684, 136 cert. manipulation. (1997). if it That is so even L.Ed.2d 608 performance final contains a The record points that the scale would appears to Noran April of Noran dated evaluatiоn perfor tool of represented a better App. at 265. But she did Appellants’ not re The ADEA does mance evaluation. July see id. until receive its results decisions quire business days Seagate agree Seagate three after had we with its choice of her, conclusively performance decided to terminate properly see id. criteria cannot evi- might only point at 775. Even that pretext. dence opportunity employer for misconduct but for opinion Nor is that discrimination Clark’s portion fact the relevant of Exhibit pervasive Seagate sufficient to estab- 53, having points, which lists her as pretext. specific lish examples Without 28, evidently compiled on or after June discrimination, such Clark’s views are “mere (showing See id. at that Exhibit 53 and, thus, conjecture” an insufficient basis on Owens, point Lashley contains scores for deny summary judgment. which to See McCartney, all of which are dated June Branson, at 772. From the record table). words, on the CHAPA other us, before the instances of claimed discrimi- Seagate more than two months after claims describe, nation that she does such as her completed to have 180-point/grade-two supervisor, mistreatment can be performance ostensibly evaluation that led to speculatively discriminatory attributed to an- termination, company Noran’s was de- imus, “speculation ... will not suffice for scribing having her on internal documents as Doan, evidence.” 82 F.3d at 977. points. That latter score would have argument final Clark’s is based in grade-three ranking resulted CHAPA comparison on a Mary between herself and legitimate and Noran’s retention. One infer- McCartney, employee job a white in retained Seagate ence is that resolved to alter the employees code 1432. Had the two been April score for Noran’s evaluation June after code, job McCartney the same would have legitimate pur- 1993. That inference of been laid-off before Clark because she scored poseful manipulation permit is sufficient to performance three her final evaluation Thus, jury pretext.7 genu- to find there are and was the less senior of Seagate the two. ine preclude issues of material fact that argues comparisons job across codes are entry summary judgment against Noran. probative employees 2. Rosa Clark similarly-situated. different are not codes company plaintiffs’ insists that it is the appellants Clark is one of four fired obligation Seagate’s pooling to show that job Seagate code 1433. claims that job into purposes codes for operational requirements called for fifteen justified. RIF was not lay-offs job in this code. Clark received a performance grade of three on the CHAPA entirely is not correct. When an report. employee job Because no in her code employer’s job categori- RIF criteria include lower, Seagate scored identified those to be zation, employer explain must the basis sеniority. laid off reverse order With categorization for that finding or risk a years 22.77 seniority, of credited Clark was pretext. T, Bell v. AT & 946 F.2d Cf. junior employ terminated as the tenth most (10th Cir.1991) (recognizing that ‍‌‌‌​‌​‌​‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​​‌​‌‌​‌‌​‌‌​‍where ee with a rating. three employer decides to limit RIF to certain attempts rely

Clark on groups, Exhibit is incumbent on to ex- limitation). plain indicates that she would have been reason for that “Other- rely wise, retained had points chosen to on sophisticated employer could immun- identify lay-offs.8 above, alone to liability by As noted ize placing minority itself from 7. The summary judgment.”). dissent's alternative inference—that "Ex Nowhere docs the dis- explain why hibit 53 contains mistakes and purposeful inconsistencies sent an inference of ma- any preliminary nipulation per document would contain sc unreasonable. attempting compile large when a business is workforce,” amounts of data on its Dissent at 8. She also notes that certain within certainly permissible, 1180 is despite but it is not having our her code were retained lower Tucci, among instance, point role to chose reasonable inferences. See scores. Michelle was a Corp., Brown v. younger, white who Parker-Hannifin (10th Cir.1984) ("Where despite having only points different ultimate was retained points —30 pre inferences drawn from the evidence appraisal. fewer than Clark—on her final parties, Appellants' sented App. case is not one for at 173. similarity job that mere of title is employees with with the suffi group in a grounds cient to conсlude that differential seniority banding em- while all other greater groups pretextual. of the two treatment is seniority group in less another ployees with (to Fallis, pre at 745 F.2d establish situation, at risk termination. that Cf. not of text, plaintiff geologist has to burden show the process ranking not of within it is the younger geologists that held to lower stan suspect, the for- is but instead groups that responsibilities”). had same or dard “duties The same groups of itself.” Id. mation the Likewise, assertion, any the mere without present to in- logically extends the principle evidentiary support, employees that pooled employ- the stance which performed is two codes the same tasks insuf job into codes and then determined the ees summary judgment. ficient to defeat See job lay-offs made in each number of to be 56(e). Fed.R.Civ.P. identifying employees the to be code before points Seagate Clark also to internal go. let the memo about RIF from Human Resources Seagate proffered has a reason for its cate- potential that which notes: “The exists with- requirements gorization. Operational dictat- grades employees several of that like number company that reduce the of ed the sets, longer employees may skill service be job employees performing certain functions. employees, released and lesser service lesser Thus, claims, employees were cate- grades, and lesser be retained.” skills could according job every gorized to codes in which Appellants’ App. at 581. Like the See simi- essentially title, the employee “performed same larity job certainly suggestive of this is Appellants’ App. pretext, at See 315. of but is insufficient without more to set tasks.” separation reason, job the codes establish Seagate having that it be- offered First, pretextual. and as there no plaintiffs’ to that com- comes burden show to indication that the above statement refers job similarly- are parisons across codes Second, does, even if it the those codes. Furr, situated individuals. See at separation with the same “skill so, 988; Doan, plain- To 82 F.3d at 979. do separated not the sets” does indicate they “essentially did tiffs must show the may It groups perform the same functions. type employees they work” same as employees can indicate that one set of do the point purposes comparison. See jobs, actually it but not that does so. other’s Fallís, showing at That 745. would Appellants may Seagate’s job believe that employer’s categoriza- demonstrate job coding by qualification, not should be job by pretextual. code was tion place performed, but is not our function burden, suggests To this Clark meet judgment. kind disturb that of business legitimacy of her itself admitted However, by submitted Clark comparison McCartney. In its CHAPA Critically, Jerlene does not stand alone. code, McCartney’s job report, Seagate lists Bobo, job both Bush and Mildred within code A,” Appel- “Shpg/Rec as Clk see Str RIF, at the time of testified that job cоde, 1433, App. at lant’s and Clark’s Carolyn they employees, two Muse trained Sr,” “Shpg/Rec Appellants id. Str Clk Hunter, then re- who and James Russell job code consists argue this shows that positions. Appel- placed them in their job higher job grades9 of the same classi- at Hunter was App. lants’ 496-98. Yet fication, employ- and that both codes contain job see at placed in code id. Appel- “performing place- the same duties.” ees 170.10 see at Muse’s Muse id. 17; Appellants’ App. Reply job generally lants’ Br. see raises ment in another case, differ- questions about the claimed functional 441. That but we doubt Appel- grades entirely perfor- Hawna.” See both referred a "Russell Job are distinct from 9. however, "Hawna,” employ- grades. App. was not mance The former refers to an lants’ at 497. positional given job grouping; simply transcription spelling, rank ee’s within their but is fact, job capabili- reporter; they the latter to an of their were not assessment made person spell ties. counsel to name asked they confusion, Despite apparent identified. court, Appellants' App. at testimony clearly see district and Bobo’s does Bush Seagate, character- identify They see id. at have both the two Hunter as one of trainees. job But Hunter on enees between codes. all them scored three the CHAPA job placed very into the code that report, legitimately and all can estab- three argue pretextually separated from their age by pоinting lish and race discrimination purposes own code for of discrimination. On younger, white retained observation, personal two wit- basis Clerk’s, therefore, code 1432. Like their they nesses from code 1433 testified that present genuine claims issues of material fact jobs perform trained someone to their entry summary preclude sufficient to of person they placed trained in judgment against them. job code 1432. That is sufficient for rea- jury Seagate’s sonable to find differentiation addition, by pretext In Johnson establishes pretextual. of the two codes raising the inference that her final CHAPA score, consequence, McCartney’s Ap- aAs retention which is dated June see genuine creates a issue of material fact suffi- pellants’ App. manipu- at have been preclude entry summary judg- cient to of lated. Plaintiffs submitted a number of against ment Clerk’s claim of race discrimi- Evaluations,” 631-764, “Employee see id. at However, Seagate correctly nation. observes including July one for Johnson is dated comparison McCartney that Clark’s to can- 13, 1993, which is the claimed date of after support age not a claim of discrimination evaluation, her final CHAPA id. at 631. This McCartney years was 66 old at the document lists Johnson’s “Last Performance RIF, years time of the fifteen older than 28,1992, Rating,” dating from December aas But, having Clark. established a sufficient four, and states that Johnson has since “con- job basis to find the differentiation of codes perform tinued rating to at the same level.” pretextual, 1433 and 1432 Clark can substan- discrepancy startling, only Id. The is and not age by point- tiate her claim of discrimination to us.11 More than two weeks after the ing any employee job to retained in code performance evaluation which on she, senior, younger 1432 who is than less Johnson, lay-off claims to have based its of and report. rated as a three 'on the CHAPA company describing, her as continu- shortage employees. There is no of such ing perform to rating. at a four Johnson’s Appellants’ Thus, App. at 170-72. there are necessary submission raises the inference of genuine preclude issues of material fact that pretext, and her entry claims therefore survive summary judgment against age claim judgment.12 Clerk’s discrimination. motion for Bobo, 3. Mildred Jerlene Bush and Claudia 4. Maudie Beaird Johnson Clark, job in Like these Beaird was code three were all from selected for terminated, termination from code which fifteen were os- testimony referring ized the why as to the James written: wouldn’t it?” Id. That re- "Yes— placed Russell Hunter code and sponse, appears by which to have been written appellants challenge do not this characterization Seagate, compare Appellants’ App. someone at at appeal. on We see no reason not to follow the (demonstrating 590 with id. at 582 that other unanimous of this characterization evidence. incorporated such annotations are into later document), nothing drafts of the same does to July 11. In an internal memo dated suspicion mendacity alleviate raised Department the Human Resources 2505. suggest was involved discrimination has 1990 incident. The evidence Beaird Margaret 5. Jones support Human in this claim is that the employed job in Jones was code department responded adequately Resources 1032, 1990; employees from total that not which a of 116 complaints to her but does by Seagate operational off were laid to meet department mean the determined discrimina- requirements. Jones scored three on the tion was involved. report; score CHAPA others with that were anomaly point Beaird does out the between retained, Seagate but had all worked for which, code; 53, job for her lists Exhibit longer period pointing time. from Aside Eugene for termination with a score Fischer point lower to retained with three, 796, Appellants’ App. at see and noted, scores, which, not as we have does report, which rates Fischer as CHAPA pretext, argu two establish Jones makes 203, four, see id. at therefore determines support her ments claim. anomaly That does itself his retention. not First, points she use suggest pretext. Seagate claims to have selective Seagate RIF performance ap- potential as a criterion. the latest available used RIF criteria purposes, that claims to have followed the list- praisals for RIF which means handbook, Appellants’ in its see lay-offs may differ those listed ed final from 219, that, unequivocally evidencing pretext. App. But at which states Exhibit 53 without Seagate fully will take into explain purposes, for RIF Seagate’s position does not requirements, perfor- “operational rating of account Fischer’s His CHAPA retention. potential. 2, Where these factors 1992. id. mance is dated November See four three, into 53, rating equal, length of service will be taken gives his are Exhibit which Yet, identifying compiled after account.” Id. at 321. evidently well that date job off in code rating be laid it a three for Walter because contains Johnson, opera- first the criteria of report Seagate utilized dates CHAPA If requirements performance. 796. tional June 1993. See id. from. equal, they to seniori- two were looked those anomaly The therefore raises inference po- considering without ty as tie-breaker latest, Exhibit 53-listed score that Fischer’s Thus, their selection tential. See id. at preexisting four- ignored in favor of a policy. from stated deviated their method lay-off. rating, preventing his That thus because, disadvantaged That deviation Jones for Fischer’s retention stated reason three-performer see potential, with id. as a mean, pretextual howev have been does if have been laid-off Sea- she would not job er, lay-off that same Beaird’s those in her potential had to rank gate used Certainly, suspect. employ code is also on the final who also scored three apply objective RIF criteria er’s failure listings. CHAPA party may establish a third sometimеs equal, things being that deviation RIF employer guided Other was not Here, however, might pretext. case. criteria in an individual evidence, appears effectively Seagate abandoned None of this when considered policy considering potential. pre- separately, provides its stated See a clear indication of However, uniformly applied, required at 220-21. If that shift id. text. we are to consider evidence, in policy would not evidence totality of such circumstantial previ- required no to follow its Hidalgo Agen- see v. Overseas Condado Ins. ously policies. Unisys cies, (1st Cir.1997); stated Jones (10th Cir.1995). But, Corp., 54 F.3d Graefenhain, 827 F.2d at and that does potential altogether. did not abandon question Seagate’s proffered explanation for indicating There is material in the record Jones’s termination. Jones can therefore that, codes, potential in some was fac- sufficiently substantiate her claims to survive RIF Appellants’ tored into the decision. See summary judgment. Moreover, App. at 775-79. on at least a Finally, question, there remains the unad occasions, potential number of was used court, dressed district whether manager greater where a could document the timely. Jones’s are claims defendant potential employee. of a less senior See id. objects that Jones’s claims are barred be inference, at 776. That raises an albeit not a they Equal Em cause were filed with the one, strong potential was used selective- ployment Opportunity Commission ly younger employees. to benefit Mo- Cf. (“EEOC”) days more than 300 after Callaway, hammed v. notified her that she was to be included Cir.1983) (“disturbing procedural irregulari- 626(d)(2) 633(b); §§ the RIF. See U.S.C. & pretext). Accordingly, ties” 907, Gressly, see also Aronson v. ignore decision Jones’s recorded (10th Cir.1992) (“A timely filing with the potential pre- constitutes limited evidence of prerequisite EEOC is a to a civil suit under text. ADEA.”); Kmart, Inc., Hulsey ... argument Jones’s second is a based on (10th (ADEA Cir.1994) 555, F.3d claims one-page, hand-written submission dated on accrue date notified of adverse 28, 1993, July “Rating and headed Devia- action); employment Appellant’s App. at 145 tions,” going which lists Jones a as from (Jones August on notified that she four, performance grade of which would have RIF); would be terminated under id. at 133 retention, three, grade resulted her to a (Jones’s EEOC, charge July dated

which did result in her termination. See id. 1994). at report 627. Because the CHAPA her lists (or agree point last three We that Jones’s claims were evaluations as threes not thereof), equivalent period, within see id. at docu- filed the stated but that does this necessarily ment they raises inference Jones not mean are time-barred. a rating suppressed timely filing achieved four that was Because the of a discrimination purposes including charge jurisdictional her in the RIF.13 with the is a EEOC not strengthened by 13. "get The inference is a series of to be terminated the fore- apparently prepared by Seagate manage- job employed Henson was It state law. does. 276X. Nine were terminated from age-based Appellants’ claims are barred alleged operational this section because of they because are based on their status rather requirements. 276X As the actions, and the ADEA than their report, a have scored two on the CHAPA provides adequate remedy for the dis the first to terminated. Henson was charged. List v. Anchor crimination See prior lay-off Henson testified that Co., Mfg. Paint 910 P.2d 1014-15 “during got lay-off and the time we our no- (Okla.1996). tice,” Seagate advertising open positions job gender-based Appellants’ App. code. Beaird’s state claims also within his by Although the record. fail. an earlier ease had allowed 519. That claim is borne out (open position job public policy for racial discrimination See id. at 578 Henson’s suits posted inadequacy of of Title code that was on June still because the relative 28,1993); remedies, Browning-Ferris, July (August see Tate v. open on id. at 857-60 VII Inc., (Okla.1992), open positions P.2d 1223 postings of at least three 833 grade). Supreme A factfin- Court of Oklahoma has held that in Henson’s code and legitimately post-Tate to Title VII have ren- der could therefore conclude amendments remedial, adequately hiring positions into similar dered the statute thus that wrongful in vio- very barring at the time it claimed the suits for termination to Henson’s public policy against positions such as Henson’s was lation of Oklahoma’s elimination Marshall v. operationally required. gender That conclusion is discrimination. See OK laying Seagate argues off from code that Henson could not have ble reason for bluntly, argue convincing- any positions because of his 276X. Put it is hard to obtained these hiring very ly rating. that simultaneous elimination of two But it is the existence those operationally ability similarly-situated positions re- jobs, regardless or odds of is of Henson’s them, quired. acquiring questions ostensi- suit, Inc., has In a once Leasing, P.2d discrimination Rental & (Okla.1997). showing prima facie of discrimination made presump has rebutted the and the defendant Marshall, light appellants’ of List by showing legiti with a tion created post- fail. The race-based claims must also mate, nondiscriminatory reason for the em similarly improve Tate Title VII amendments (as decision, has held ployment this Circuit claims, for race-based the remedies available majority today) if the does must therefore bar suits for and Marshall employee then advances evidence wrongful termination in violation of state nondiscriminatory alleged rea defendant’s public against racial discrimination. policy (i.e. belief), unworthy pretextual sons are Indus., v. Cassel WEBCO Cf. employer the defendant cannot succeed (N.D.Okla.1996) (“[List’s] 1409, 1412 F.Supp. Ingels summary judgment stage. See v. analysis applies equally wrongful dis (10th Corp., 42 Thiokol F.3d Cir. brought pursuant charge eases that could be 1994). proposition that an em I believe the VII, available to Title because the remedies summary judg ployer can succeed at never under Title are identical to those afford VII showing upon plaintiffs ment ADEA.”)'. ed not, as we inconsistent with Rule 56 and is Supreme presumed, dictated Court V precedent. appellants, exception All with summary my It is conclusion that to defeat Beaird, present evidence of sufficient judgment employment in an discrimination genuine issues of material fact to establish (1) suit, plaintiff present evidence that must entry precluding genuine fact as to creates a issue of material against their federal claims of discrimination. employer’s stated reason was whether the Beaird, regard to the district court’s With actually what motivated grant summary judgment Seagate is (2) juror could from which reasonable regard ap- AFFIRMED. With to the other infer that unlawful discrimination was de pellants, grant of sum- district court’s factor in the termi terminative mary judgment is REVERSED as to all Tools, nation. See Rhodes v. Guiberson Oil discrimination, federal claims of save for the (5th Cir.1996) (en banc); age brought by appel- claim of discrimination Isenbergh Knight-Ridder Newspaper Jones, lant as to which we VACATE and Sales, Inc., 440-441 Cir. proceedings REMAND for further consonant — 1996) curiam), denied, (per cert. U.S. expressed. The with the views herein dis- -, 2511, 117 S.Ct. 138 L.Ed.2d 1014 summary grant judgment trict court’s of to Materials, Inc., (1997); Woods v. Friction 30 AFFIRMED to all state is as (1st 255, Cir.1994); F.3d 260 n. 3 but see claims. (3d DuPont, v. 100 F.3d 1067 Sheridan Cir.1996). only plaintiff pro Not must the TACHA, Judge, concurring part in Circuit pretext, pretextual duce evidence of but the dissenting part. and quality evidence must be of a nature or judgment, except I concur in the with re- jury illegal a infer which reasonable could sepa- I spect plaintiff Ruth Noran. write legal discrimination. This is a determination rately express my that this view Circuit’s by required Rule 56. ‍‌‌‌​‌​‌​‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​​‌​‌‌​‌‌​‌‌​‍pretext inappropri- evidence has .treatment Aurora, 441 ately powers City v. 69 F.3d circumscribed district courts’ Randle (10th Cir.1995), we is the case which most under Rule 56 of the Federal Rules Civil completely articulated the rule that a district Procedure.1 upon summary judgment propose have articulated their rule for a motion here The standards See, e.g., are as a Rule 50 motion under Rule 56 the same a v. review of Rule 50 motion. Rhodes judgment Tools, (5th as a matter of law at the conclusion Cir. Guiberson Oil 994 Inc., Liberty Lobby, of trial. See Anderson v. 1996) (en banc). brevity, I For the sake of refer U.S. (1986). 106 S.Ct. 91 L.Ed.2d 202 only to Rule 56. that have held as I Some of the circuits

H77 impermissible always deny employer’s an mo- an excessive or burden on must court upon summary judgment plain- plaintiffs requiring pretext the evidence be tion In showing of Id. at 451-53. pretext. quality a tiffs of such nature or a reasonable case, question with we were faced discriminatory jury could infer In- conduct. asserting plaintiff employment a dis- deed, whether considering summary judgment a forward with some crimination “must come motion, the court must view evidence and [employer] was moti- direct evidence that the light inferences most to the favorable illegal discriminatory animus” in vated employee-plaintiff. See v. First Zimmerman summary judgment. to survive Id. order Ass’n, & Fed. Sav. Loan 848 F.2d requirement a has termed 451. Such been Cir.1988). (10th approach. Marx v. pretext-plus beyond summary a case to proceed For Markets, Schnuck stage, judgment “genuine there must be a Cir.1996). Randle, we that a concluded any as to material F.R.C.P. issue fact.” plaintiff produce not evi- does need to direct 56(c). plaintiffs If evidence is summary of discrimination to survive dence legally support any not sufficient to inference agreement I am judgment. in full with discrimination, illegal genuine there is no rejection and of the conclusion this Circuit’s fact, any material the case issue and approach. pretext-plus The federal discrimi- go jury. Conaway not should to the Cf. require plaintiff not nation statutes do (10th Cir.1988) Smith, provide illegal direct evidence of discrimina- (“Because prop- no reasonable inference of a “[e]videnee, if Direct is which tion. evidence liberty erty or can be interest drawn from believed, proves fact in [a] existence of [the] evidence, complaint supplemental [the] presumption.” without inference or issue summary judgment appropriate is (abr. Dictionary 6th Law Black’s claims.”). If, hand, process due on other ed.1991). rejection pretext-plus Our sup- evidence of does standard, however, only should read as discrimination, port an inference of there is a rejection requirement plaintiff of the fact genuine issue of material the court produce must such direct evidence of dis- jury. must send the ease to the The factfin- Rejection pretext-plus crimination. compromised any regard. role is not der’s does should not reheve a standard not and proffering of the burden of evidence suit, employment In an discrimination regard probative that is in some of the defen- task whether an factfinder’s is determine Yet, alleged discriminatory dant’s motive. by discriminatory employer was motivated exactly language Randle that is what animus, but the can consider factfinder other cases in this Circuit have done. legally if suffi- the evidence the evidence Although require we direct evi- should support finding of discrimina- cient such discrimination, always we dence of should Liberty Lobby, See Anderson v. tion. good require evidence—evidence from 251-52, 106 477 U.S. juror illegal infer discrimi- reasonable could (1986) inquiry (holding L.Ed.2d that “the prevail. nation —for a to be able to ... whether [at is] presents disagreement a sufficient here, then, question I raise is whether jury require to a or whether to submission plaintiff presented a who evidence from has party prevail one must is so one-sided that employ- a court conclude that an which could law”). Circuit, matter of The rule a proffered nondiscriminatory reason is er’s however, employment is that an discrimina- belief) (i.e., unworthy pretextual of has nec- long as always go jury will so tion suit essarily upon a pretext established jury to is to the the evidence sufficient allow discriminatory I jury could infer motive. proffered employer’s the reason disbelieve clearly question answer the is think the Randle, 69 employment action. See for the question We have never addressed this no. a per precludes n. se at 451 This rule language our F.3d squarely, though even the separate engaging court in a district preclude approach. such an cases seems 453; legаlly See, Randle, is inquiry into whether that evidence e.g., F.3d at 452 n. finding place support a of discrimina- Ingels, 42 F.3d We would not sufficient at 622. 1178- Thus, would still have workers. Henson per that I take issue off It is this se rule tion. judgment, my In pretext. plaintiff established Merely a has with here. genuine be no issue though, there would pretext not and proffered evidence of does jury a could fact for trial because material is neces- mean that her evidence should not conclude, reasonably on this evidence support finding sarily legally sufficient to alone, was a de- unlawful discrimination that my judgment, In adherence discrimination. plaintiffs termi- factor terminative require- the per to this se rule eviscerates many Discrimination comes nation. Supreme the ment of Rule 56 and Court’s sizes, shapes and shapes but some sizes Liberty Lobby that there must be decision jury support a verdict peculiar are too fact the ease to genuine issue of material The or evidence. without additional better proceed beyond summary judgment. majority’s we cannot consider assertion that help example An from this ease will illus- Seagate’s miss- treatment other my point. Plaintiff Henson trate William maj. op. n. 2. my point. at 1165 We es 276X, along terminated from was quality obligation the have an to consider employees. eight other Henson estab- with plaintiff prof pretext that the the evidence prima facie of discrimination. lished a ease 254, 106 Liberty Lobby, 477 U.S. at fers. See proffered Seagate Defendant as its nondis- (requiring lay-off opera- criminatory for the that reason “quality quantity” courts to evaluate the requirements dictated a reduction tional evidence). majority The Then, employees in that code. Hen- nine plaintiff prevail at suggests that a should immediately pri- presented evidence that son summary judgment “possi there is no unless during lay-off, Seagate was or to and [discriminatory to be animus] ble inference of advertising open positions in the for four Maj. op. from” her evidence. drawn facts, job code. these there is same On disagree. at the at 1165 n. 2. I To succeed sufficient evidence to disbelieve summary judgment stage, must lay-off. proffered reason for the Henson has supports present pretext evidence that a rea Furthermore, pretext. established Merely sonable inference of discrimination. years layoff, was 52 old. time of the Henson pos because an inference of discrimination is eight employees the other that Of does not make it reasonable. sible terminated, years four were over 40 old. my acknowledge I hypothetical, facts of while Because several of the terminated possi an inference of discrimination is age were above ble, I think that an inference is do not such juror surrounding context are such that a its given reasonable reasonably age could infer that deter- only employee of the nine terminated who Seagate’s employment minative factor in de- age was over the of 40. Thus, help the additiоnal facts cision. interpretation in the em- This of Rule 56 fact genuine create a issue of material about ployment context discrimination ensures illegally

whether discriminated employer not be held liable for con- an will against question go should Henson. prohibited the discrimina- duct is not jury, which will make the ultimate deci- is, course, tion statute at issue. There an inference of sion whether or not to draw always jury incorrectly find a risk that will illegal discrimination. liable for discrimination because facts, though, I think change If we always require jury such cases to consid- changes. If had been conclusion also Henson conflicting er evidence and evaluate the cred- of the nine terminated ibility jury that a will of witnesses. The risk age there would no finding greatly who was over the in- make an incorrect however, longer genuine creased, of material fact. preclud- issue when the court is be' sufficient evidence to evaluating There would still from whether the evidence cre- ed Seagate’s proffered genuine reason for the a of material fact as to the disbelieve ates issue RIF, case, lay-off time the name- question because at the same of ultimate at issue advertising positions ly, in company was whether discrimination occurred. the Cf Rhodes, laying (concluding that when from which it was 75 F.3d at 993 the same

H79 (11th Cir.1996) curiam), plaintiff pretext, (per has established “we are con- F.3d — denied, U.S.-, ordinarily plaintiff] verdict for cert. [a vinced that evidence, (1997). by supported sufficient would be 138 L.Ed.2d 1014 The Court’s of use аlways. answer in our tradi- “permit” but not The lies in the term the second sentence sufficiency-of-the-evidence analysis.”). tional also indicates that the inference of discrimi allowed, upon pretext nation evidence of presumed, as have some other We mandatory. but not See id. The two sen circuits, Mary’s in that St. Honor Center v. tences, together, strongly “when read at least Hicks, 2742, 125 509 U.S. 113 S.Ct. suggest rejecting employer’s prof the (1993), Supreme L.Ed.2d 407 Court fore- always fered reason is not sufficient to allow approach suggest I here. closed the discrimination, finding although of some Indeed, Hicksis the case from which our might (emphasis ... times be.” Id. developed Circuit its current rule on original). language The from Hicks is not so summary judgment stage. at the See Ran- emphatic require as to courts to automatical dle, 69 at wheth- 451. Hicks addressed ly deny summary judgment a defendant’s er, trial, following a a court must bench motion when has been established. necessarily judgment employee- enter for an Thus, agree interpretation I with the sensible plaintiff upon finding that the reasons of- language by of this Hicks offered employer employee’s fered for the noted commentator: discharge pretextual. were The con- Court despite finding pre- cluded that a factual [T]he Court made these statements text, plaintiff necessarily fully is not entitled to context of a tried It case. was the law, employ- judgment as a matter of and the who wanted as a matter law, may prevail stop er if the factfinder is also con- in order to the factfinder from evidence, employer considering range vinced that the was not motivated the full in- by discriminatory cluding undercutting animus. the infer- ence intentional discrimination. The Court, however, The did not address the only said that Court this effort to block whether, question pose despite I here: consideration of all the fail. evidence must showing pretext, judg- the court can enter purport The limit Court did ment as a matter of law for the availability summary judgment to either summary judgment stage. following The party upon consideration of all of the evi- oft-quoted language from Hicks is source Indeed, pretext. dence relevant disagreement question: on this stressed Hicks that once a Court The factfinder’s disbelief of the reasons Douglas-Burdine ease reaches McDonnell put (particularly forward the defendant pretext stage, it is to be treated like accompanied by suspicion if disbelief is any Nothing in other civil case. Hicks mendacity) may, together with the ele- remotely suggests that the Court is of case, prima ments of a facie suffice to show questions can- general view that of intent Thus, rejection intentional discrimination. summary judg- through not be resolved proffered reasons will of the defendant’s ment. permit the trier of fact to infer the ulti- Malamud, The Last Minuet: Deborah C. discrimination, ... mate fact of intentional Hicks, Mich. Disparate Treatment rejection, upon additional [and] “[n]o such After ” (1995). L.Rev. proof required.... of discrimination is (em- Hicks, Supreme ultimаte conclusion 509 U.S. at 113 S.Ct. 2742 Court’s added). cases, though that in some even phasis The Eleventh Circuit con- Hicks was cluded, at trial that cause the correctly, I think first facts are established “[t]he prof employer’s passage sentence of this shows that disbelief factfinder to disbelieve (and action, appli employment employer’s proffered reason fered reason for its not) result in a by implication, may enough for a cation of the law to those facts will Hicks, jury employer. employer’s motion” verdict for the to overcome 2742; 508-11, Isen summary judgment. Isenbergh v. 509 113 S.Ct. U.S. Sales, Inc., bergh, Supreme 442. The Court Knight-Ridder Newspaper 97 F.3d at proffered contract, rea- expanded, the basis to believe that not but Hicks “did RIF and for Noran’s termination —the judg- son where universe of discrimination cases untrue. I implementing criteria' —is its employers permissible.” ment for would be regarding majority merely disagree with the Thus, agree I also with Id. Thus, I probative value of Exhibit 53. in its conclusion that— Eleventh Circuit proffered any that Noran has not would hold such Supreme Court would not declare pretext. evidence of rule which important new rule —the judgment, except with re- I concur in the in sees in Hicks —in a case which [Randle ] spect Noran. plays part the new rule no vital decision____ Supreme would Court [T]he important out such an new rule— set effect, that, partly nullifies two of one [i.e., Rules

the Federal Rules of Procedure plainly conspicuously and so 50 and 56]— Dalrym DALRYMPLE; Rosemary Jack judge it. Article III could miss no Adams; “Buddy” plе; A. R.D. David Isenbergh, at 442. Bales; Adams; Bales; Kenneth Patricia Baser; Baser; Larry L. L. Gerald Bettie my homily, Notwithstanding above with Berry; Becker; K. M. J. Robert Susan Noran, respect I do not even Blankenship; Berry; Mark E. Board of proffered think she has sufficient evidence to County, of Ottawa Okla Commissioners majority pretext. The relies on establish Kathy homa; Bowling; Bowl Charles Exhibit as evidence of as to No- Brady; Brewington ing; Calvin Chet preliminary ran. Exhibit 53 was a document Brewington, Thunder and Susan d/b/a by Seagate company compiled which the Motel; Bryant; Edna bird Offutt gather large quantity attempting Campbell; Campbell; George Carol Sue regarding employ- thousands of information Cass; Cass; Maxine Marvin Kenneth identify ees in order to Champlin; Joyce Champlin; Don Child in the reduction in should be terminated ers; Childers; City Miami, Dee Okla report contains the final force. The CHAPA homa, municipal corporation; H. Dale RIF. terminated list Conard; Sherry Davis; Desilva; Chester According report, to the CHAPA most of the Desilva; Ventures, Inc.; Debbie E.G. all, though targeted for termi- employees, Ferris; Ferguson; ‍‌‌‌​‌​‌​‌‌​​​‌‌‌‌​​‌​‌‌​‌‌​​​‌​​​​​​​‌​‌‌​‌‌​‌‌​‍Maxine Earl B. Ken ultimately in Exhibit 53 were termi- nation Ferris; Ferris; neth Diann Howard W. my nothing judgment, nated in the RIF. In Hoover; Stephen Hunter; L. Debbie L. suggests un- in Exhibit 53 Hunter; Smithy Jameson; Jeffries; K.C. implementing the RIF criteria truthful Gary Jenkins; Betty Jenkins; B. A. generally respect or with to Noran. Our Wash; Kresyman, Miami Car Steve d/b/a/ Co., decision Branson v. Price River Coal Roy Lacen; Lacen; Jeffrey M. K. Ida Cir.1988), 771-72 re- Lavine; Lavine; Johnia Bruce Law quires the nonmovant’s evidence rence; Lawrence; Faye Lester; Regina my “specific” “probative.” judg- Lucas; Dowty Lowery; Vera Tim Rhon ment, “probative” pre- Exhibit 53 is not Lucas; Mabury; da Debra Ma Chris in- text. Exhibit 53 contains mistakes and Mahurin; bury; Macy; Nadine Justin any preliminary document consistencies that Mahurin; Mathia, Becky E. Louis d/b/a attempting when a business is would contain Salvage; Jeffry Riverside Auto McCool compile large on its work- amounts of data Carolyn McCool, Vettes d/b/a majority states that this “alterna- force. Vans; McRae; Miami Animal E.W. certainly permissible, ... tive inference Inc.; Service, Inc.; Hospital, Miami Tire among reason- but it is not our role choose Oklahoma; Miami Tribe of Mid-Amer Maj. op. n. 7. In able inferences.” at 1170 Land, Company; ica & Cattle Leo Grain evidence, evaluating drawing all Mills; even Mills; Virginia J. D. Jimmie Noran, Mooneyham; Newkirk; Mary in favor of I find that inferences Alan E. Niffen; provide any Niffen; Tammy Exhibit 53 does not reasonable Robert E. Pat- notes Johnson. "Employee its concerns certain Evalua- projected change performance tion[s]” brief, Seagate attempts reply explain its potential presumably a reference to the "Em- 12. — discrepancy. assuming this Even that such ex- ployee Appellants’ Evaluations” submitted in us, planation properly is before it cannot be 631-764, App. project changes per- at dispositive Seagate argues of Johnson's claim. potential ratings may agree formance and — Employee that Johnson’s Evaluation confirms “July appraisals” presumably with the a ref- — rating. possible interрretation her 3 That is one report ratings, many erence to the final CHAPA drawing of the document. But all July inferences in Appel- of which are dated 1997. See non-movant, required App. favor of the we at as arc lants’ 590. The memo asks: "Should do, employee agree July proposed ap- evaluation with the we cannot discount Johnson’s in- praisal?" question, terpretation. Next to this someone has H73 Pointing party to a tensibly pursuant operational require- third could show if, instance, the RIF involved a Only employee one small ments. report, people if on CHAPA number or there are substantial scored two as the thir- parties Beaird was therefore terminated number third whom where, here, junior to have point. teenth most can But Appellants’ party score three. See third CHAPA identifies one the rele App. at pool employees, put 203. fails vant she employer’s forth sufficient evidence that the arguments are ofMost Beaird’s nondiscriminatory specific reason in her case instance, con- plainly without merit. For she Randle, “unworthy of belief.” F.3d at controlling perfor- final tends her 451. Beaird’s claim is best “colorable” and appraisal super- out mance was carried summary judg not survive therefore does against who had discriminated her visor Anderson, 249-50, 106 ment. See U.S. However, the record contains little

Notes

notes "Employee casted merit” contained in their Evaluation,” notes, ment. See id. at 780-87. The written in a eliminating potential thus Seagate Diary,” "Business id. at statе that: any projected deviation between their and final people who are affected [t]he the RIF will performance evaluation. get perf. app. They get will the forecast- reading explain That of the note would then July. planned ed merit—which was This is "Ratings listing consisting Deviation” as being keep managers deviating done ratings initially whose final differed perf rating changing from the forecasted & projected. being from those Jones’s listed as a merit amount. pattern "4 to 3” fit would because her "Em- implication at Id. 783. One of this note is that ployee projected rating. Evaluation” had a three Seagate employee’s was concerned that an CHA- employee placed See id. 632. The other performance rating might PA-listed deviate from "Ratings on the Deviation” list for whom the performance rating projected by an earlier Employee record contains an Evaluation is San- "Employee Any Evaluation." such deviation pattern. dra Moore. She also fits this Listed as might rating raise an inference of deliberate ma- Deviation, Ratings a “4 to 3” on the she had nipulation, as occurred Johnson's case. See projected "Employee been to earn three on her supra suggests Section III.B.3. The note that the Evaluation.” See id. at 638. potential problem solution to this was to ensure court, certainly support finding it is sufficient to in federal prerequisite to suit Furr, limitations and is pretext. likened to a statute of Defendant’s reliance on best waiver, eq 985-86, subject estoppel therefore F.3d at and the district court’s on Frank, Fallís, tolling. misplaced. Richardson v. n. uitable 944 F.2d at 745 are (10th Cir.1991). cases, The trial In both those there was no evidence ruling on these made no discernible employer court hiring into similar We are therefore reluctant equitable issues. positions discharged at the same time that it summary judgment given that no to affirm Thus, 276X, plaintiff. as to apparent evidentiary hearing was held below presents Henson sufficient evidence of the potential application to to determine their pretextual nature of the RIF to defeat sum- Siegfried case. Wilkerson v. Ins. Jones’s mary judgment.14 Agency, Cir. 1980); Raytheon Delmar v. see also Aircraft IV 96-1002-JTM, Corp., No. 1996 WL 1996) (D.Kan. summary Aug. 9, (denying *7 presented A1 appellants judgment to because Tenth Circuit wrongful discharge in claims of violation of inquiry a detailed factual cases “indicate public policy against Oklahoma’s discrimina necessary equitable whether to determine granted summary tion. The district court tolling applied,” requiring all “[i]n should judgment appellants’ on state law likelihood, evidentiary hearing”). Conse that no claim claims because held state grant quently, we vacate the support could lie on facts that did not also claim, on Jones’s ADEA holding claim. our federal Given court to deter and remand to district generally federal claims are sufficient to sur mine, equitable its discre the exercise of summary judg vive defendant’s motion for tion, claims should be heard. whether Jones’s cannot, ment, part, affirm we for the most summary judgment state claims Henson William separate unless basis to do so exists under

Case Details

Case Name: Beaird v. Seagate Technology, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 28, 1998

Citation: 145 F.3d 1159

Docket Number: 96-6087, 96-6145

Court Abbreviation: 10th Cir.