                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUN 26 2001
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 RICHARD EUGENE CALDERWOOD,

          Plaintiff-Appellant,
 v.                                                          No. 00-2500
 GENERAL MILLS; HOLLAND                           (D.C. No. CIV-99-330-JC/KBM)
 BROWN; KEVIN ROBIDEAU,                                      (D. N.M.)

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Richard Eugene Calderwood, appearing pro se, appeals the district court's order

granting summary judgment in favor of defendants. We have jurisdiction pursuant to 28


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 1291 and affirm.

                                              I.

       General Mills advertised for twenty cereal manufacturing technician positions and

received over one thousand applications and ninety-one employee referral candidates for

the positions. Calderwood, who was fifty years of age, was one of the applicants. The

application did not require applicants to divulge their ages. It requested dates of

attendance of college or vocational schools and dates of employment, and provided space

for a listing of experience, training, and education in mechanical, electrical, and

manufacturing skills areas. Calderwood did not include an exhaustive list of his

experience and qualifications on the application. He unsuccessfully attempted to

supplement his application with his resume on two occasions. The reviewing committee

initially placed his application in the mechanical skills category for further review, but he

was eliminated from consideration after the committee determined his skills were weaker

than those of other candidates.

       Calderwood sought reconsideration of his application, but he was unsuccessful.

He filed this action in federal district court, contending (1) he was discriminated against

because of his age; and (2) he was not allowed to compete because of lack of mechanical

skills. The district court granted defendants' motion for summary judgment, finding

Calderwood had failed to create any genuine dispute of fact with regard to whether

defendants' reasons for not hiring him were a pretext for age discrimination.


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                                               II.

          We review the grant of summary judgment de novo, applying the same legal

standard as the district court. Mesa v. White, 197 F.3d 1041, 1042 (10th Cir. 1999).

Summary judgment is proper if the evidence, viewed in the light most favorable to the

non-movant, shows there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Smith v. City of Enid, 149 F.3d 1151, 1154 (10th

Cir. 1998).

          Where, as here, there is no direct evidence of discrimination, we use the

McDonnell Douglas burden-shifting framework. See Cone v. Longmont United Hosp.

Assoc., 14 F.3d 526, 529 (10th Cir. 1994). The plaintiff “must carry the initial burden

under the statute of establishing a prima facie case” of discrimination. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the plaintiff has established a

prima facie case, “[t]he burden then must shift to the employer to articulate some

legitimate, nondiscriminatory reason” for its employment action. Id. If the defendant

meets this burden, the plaintiff must show that defendant's justification is pretextual. Id.

at 804.

          The district court assumed that Calderwood presented sufficient evidence to

establish a prima facie case. The court found that defendants met their burden of

articulating a legitimate nondiscriminatory reason for not hiring Calderwood – because he

was less qualified than other applicants. “To satisfy this burden, 'the employer need only


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produce admissible evidence which would allow the trier of fact rationally to conclude

that the employment decision had not been motivated by discriminatory animus.'”

Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir. 1999) (quoting Tex. Dep't of

Cmty. Affairs v. Burdine, 450 U.S. 248, 257 (1981)). We agree that defendants met this

burden. The record reveals that Calderwood did not list all of his qualifications on his

application, and the committee reasonably concluded he was less qualified than other

applicants. Further, defendants were not provided with any direct evidence of

Calderwood's age. The positions ultimately were filled with applicants whose ages

ranged from twenty-two to fifty.

       The burden then shifted back to Calderwood to show a genuine dispute of material

fact regarding the pretextual nature of defendants' nondiscriminatory reason for not hiring

Calderwood. “Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate

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

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

reasons.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal quotations

omitted).

       As a basis for his argument of pretext, Calderwood asserts that his age was

apparent from the application because of inclusion of his college graduation date, and he

was subjected to disparate treatment because defendants would not accept his resume.


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There is no evidence that defendants made any effort to ascertain the ages of applicants,

and there is no evidence that defendants accepted resumes from any of the other

applicants. Calderwood chose not to include all relevant information on his application

even though there was sufficient space. His assertions are insufficient to create a genuine

dispute of material fact regarding pretext.

       In his appellate brief, Calderwood also argues the court abused its discretion in

denying his motion for sanctions and in denying his request for a court-ordered non-

binding mediation. However, Calderwood did not appeal from those rulings. His notice

of appeal is only from the entry of summary judgment filed November 16, 2000. Even if

we were to consider Calderwood's arguments, we conclude that the district court did not

abuse its discretion.

       AFFIRMED.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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