                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 27 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JESSICA PLATERO,

                Plaintiff-Appellant,

    v.                                                    No. 03-2167
                                                    (D.C. No. CIV-01-1318)
    JEFF BAUMER; DAVID SANDERS;                            (D. N.M.)
    WILLIAMS FIELD SERVICES
    COMPANY,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



         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.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff Jessica Platero appeals from the entry of summary judgment for

defendant Williams Field Services      1
                                           in this Title VII action challenging her

termination during a reduction in force (RIF) after nineteen years’ employment

with defendant and its predecessors. Plaintiff, a Navajo woman over forty, claims

that she was selected for the RIF based on her race, gender, and age.        2
                                                                                 The district

court rejected the gender claim for failure to establish a prima facie case under

the analytical framework laid out in       McDonnell Douglas Corp. v. Green       , 411 U.S.

792 (1973), and plaintiff does not challenge that determination. The district court

acknowledged that plaintiff had made out a prima facie case for age and race

discrimination (which defendant does not challenge), but held that defendant had

offered a legitimate basis for terminating plaintiff and that plaintiff had failed to

demonstrate a triable case that this rationale was a pretext for discrimination. On

de novo review, Garrett v. Hewlett-Packard Co.          , 305 F.3d 1210, 1216 (10 th Cir.

2002), we conclude that plaintiff has demonstrated genuine issues of material fact

as to pretext that under controlling precedent of this circuit preclude the entry of

summary judgment for defendant. We therefore reverse and remand for further

proceedings.


1
       The dismissal of the individual defendants is not at issue on this appeal.
2
       Plaintiff also alleged in her pleadings that the termination violated seniority
rights, but she subsequently abandoned this undeveloped contractual claim and we
do not consider it.

                                               -2-
       Defendant relied on a “Right Way, Right Results” (RWRR) assessment

process, in which plaintiff was very unfavorably evaluated, as the basis for its

decision to select her for the RIF. This process, insofar as it is evidenced in our

record, consisted of a single-paragraph string of conclusory subjective judgments

wholly without grounding in concrete factual reference. Indeed, as the district

court acknowledged, the level of reference is in some instances so vague that it is

impossible to determine in a meaningful way what the criticism even means. We

have repeatedly stressed that subjective judgments are viewed with skepticism in

the pretext inquiry.   See id. at 1218 (collecting cases). But the subjective

generality of the RWRR is not even the primary concern here. The dispositive

deficiency in defendant’s case arises from a comparison of the RWRR with a

roughly contemporaneous supervisory evaluation of plaintiff’s performance

completed in the ordinary course of her employment.

       “A plaintiff can show pretext by revealing ‘weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action [such] 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 reason.’”   Id. at 1217 (quoting Morgan

v. Hilti, Inc. , 108 F.3d 1319, 1323 (10 th Cir. 1997) (further quotation omitted)).

Accordingly, this court has recognized on numerous occasions that a Title VII


                                            -3-
plaintiff can defeat summary judgment by demonstrating that an evaluation

offered to justify her termination conflicts with other assessments of her work

performance. See, e.g. , Garrett , 305 F.3d at 1219; Greene v. Safeway Stores,

Inc. , 98 F.3d 554, 564 (10 th Cir. 1996); Cole v. Ruidoso Mun. Sch. , 43 F.3d 1373,

1380 (10 th Cir. 1994). Here, aside from the more obscure comments, which elude

meaningful comparison, every criticism in the RWRR is facially inconsistent

with, if not in flat contradiction of, ratings plaintiff received from her supervisor

for job performance and professional development during the year immediately

preceding the RIF.

      The rating system for plaintiff’s employee evaluation used three bi-level

categories. There were two levels for deficient performance: “Development

Opportunity” levels D2 (“unsatisfactory,” requiring “immediate and sustained

improvement”) and D1 (“expected [to] . . . improve” with “skills development or

additional time in position”); two for satisfactory performance: “Effective” levels

E2 (“solid”) and E1 (“strong”); and two for exceptional performance: “Strength”

levels S2 (“exceed[ing] that expected for the position”) and S1 (“‘industry expert’

level”). Aplt. App. at 87. Globally, we note that plaintiff’s RWRR unqualifiedly

recites several negative judgments, but her employee evaluation does not include

a single rating in the deficient range. Particularized comparisons reveal even

more telling discrepancies.


                                         -4-
       The criticism in the RWRR begins with “[n]ot a team player.”          Id. at 58. In

contrast, plaintiff’s evaluation specifically included a “Teamwork” category in

which she received two strong ratings (including “[b]uilds positive collaborative

working relationships”).     Id. at 89. She also had strong ratings for “[o]penly and

honestly shares information,” “[s]upports innovation and creativity in others,” and

“[a]ctively supports . . . Code of Team Behavior.”        Id. at 88-89. In addition, the

RWRR’s criticism that plaintiff “[d]oesn’t go out of her way to help anyone,”          id.

at 58, is contradicted by her strong rating for “helps others,”     id. at 89.

       According to the RWRR, plaintiff was “protective of ‘her duties,’” had a

“‘not my job’ attitude,” and was “resistant to change.”       Id. at 58. Her evaluation,

however, reflects strong ratings for “[t]akes on new assignments, responsibilities,

or challenges without hesitation” and “[l]earns from experience; not stuck in old

ways.” Id. at 90.

       Finally, the RWRR describes plaintiff as “[l]acking in skills–computer” and

“not willing to take on other than the basic.”     Id. at 58. But her evaluation has all

strong ratings in the “Knowledge and Skills” category, including “professional or

technical expertise needed for the assigned functional areas” and “[s]tays abreast

of developments in her field; works to enhance job knowledge.”          Id. at 88. A

summary near the end of the evaluation specifically cites as a strength the fact




                                             -5-
that plaintiff “continues to work on improving her job performance and the

ever-changing computer programs skills.”         Id. at 91. 3

      It could be that the performance evaluation, not the RWRR, is inaccurate

and, thus, that the discrepancies evident here might be resolved in favor of

defendant’s position. But that just reflects the existence of the very dispute that

should not have been preempted by summary judgment. It is also possible that

with additional evidence defendant could show that the discrepancies are merely

artifacts of different (but still legitimate) purposes and standards operative in the

RWRR context. No such evidence has been proffered and, in any event, absent

a conclusive showing it would just create another issue for trial. Nor has

defendant attempted to establish that the inconsistencies in plaintiff’s ratings were

legally immaterial, in that all similarly situated employees retained in the RIF

outscored plaintiff on both the RWRR and their employee evaluations. In sum,

there is no basis in our record to factually discredit or legally discount the

discrepancies between plaintiff’s performance evaluation and her RWRR.


3
       The RWRR also included statements that, as the district court noted, were
so vague as to make comparative assessment impossible. The district court
attributed the deficiency to plaintiff, faulting her for not developing the record to
make sense of the opaque criticism involved. This analysis prematurely shifted
the McDonnell Douglas burden from defendant, which must at least articulate a
“clear and reasonably specific” rationale for the action taken before plaintiff is
required to counter with a showing of pretext.    Tex. Dep’t of Cmty. Affairs v.
Burdine , 450 U.S. 248, 258 (1981). In any event, the many sharp discrepancies
cited above are enough to preclude summary judgment here.

                                           -6-
       The district court appears to have dismissed out of hand any argument for

pretext based on inconsistencies between the RWRR and plaintiff’s performance

evaluation because “the annual evaluations were all performed by one supervisor,

. . . while the RWRR assessment was all performed by a different individual.”      Id.

at 137; see also id. at 138 (holding that only RWRR, not evaluation, is relevant to

disposition of case). Defendant takes up this point, arguing that in circumstances

giving rise to an inference of discrimination, an employee may be terminated–and

the inference of discrimination defeated as a matter of law–based on conclusory

subjective criticisms that are inconsistent with evaluations by the employee’s own

supervisor, provided the criticisms come from someone else (the very person

whose allegedly discriminatory action requires justification). No Tenth Circuit

authority is cited supporting this facially dubious notion, which would render our

pretext cases discussed above practically meaningless. Indeed, one of those cases

recognized a triable issue of pretext based on discrepancies among evaluations

clearly carried out by several different people.    See Garrett , 305 F.3d at 1213-15,

1218-19. Further, defendant’s position is not even supported by the cases cited

from courts outside of this circuit, where a drop in the plaintiff’s performance

rating used to justify an allegedly discriminatory action was not abruptly created

by the very person taking the action but arose in ordinary course following the

plaintiff’s transfer to and subsequent evaluation    by a different supervisor .


                                             -7-
       The district court also was critical of plaintiff for not developing the record

regarding potential explanations for the inconsistencies between the RWRR and

her evaluation. For reasons similar to those we expressed above for not faulting

the plaintiff for obscurities in the defendant’s proffered justification,    supra n.3,

we think this criticism of plaintiff inappropriately shifts the      McDonnell Douglas

burden. Once the plaintiff establishes facially material inconsistencies regarding

the defendant’s rationale for the challenged employment action, a genuine issue

of pretext arises and it is not the plaintiff’s burden to prod the defendant into

offering self-serving explanations of the inconsistencies.

       Following this court’s prior decisions in      Garrett , Greene , and Cole , we

hold that, on the record developed thus far, the numerous facial inconsistencies

between plaintiff’s performance evaluation and the RWRR assessment give rise to

a triable issue of pretext precluding summary judgment. For reasons previously

indicated, however, additional factual development could potentially alter that

conclusion. Thus, while we reverse summary judgment, we do not specifically

remand “for trial” but more generically “for further proceedings,” which does

not rule out a properly supported second motion for summary judgment.




                                              -8-
     The judgment of the district court is REVERSED, and the cause is

REMANDED for further proceedings consistent with this order and judgment.


                                                Entered for the Court



                                                Mary Beck Briscoe
                                                Circuit Judge




                                     -9-
