                        UNITED STATES COURT OF APPEALS
Filed 6/25/96
                               FOR THE TENTH CIRCUIT



    PAT A. RHYMES,

                Plaintiff-Appellant,

    v.                                                        No. 95-6230
                                                        (D.C. No. CIV-94-505-A)
    ST. JOSEPH REGIONAL MEDICAL                               (W.D. Okla.)
    CENTER OF NORTHERN
    OKLAHOMA, INC.,

                Defendant-Appellee.




                               ORDER AND JUDGMENT*



Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.




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

unanimously to honor the parties’ request for a decision on the briefs 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       This order and judgment is not binding precedent, except under the doctrines of law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.
See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

          Plaintiff Pat A. Rhymes appeals from the district court’s order granting summary

judgment to defendant St. Joseph Regional Medical Center on her complaint for wrongful

termination of employment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

          Plaintiff went to work for defendant in 1976, and over the next seventeen years she

worked in numerous positions throughout the hospital facility. In 1987, plaintiff filed a

worker’s compensation claim for a back injury; she was eventually awarded a 50% disability

rating.

          Plaintiff was secretary of defendant’s Human Resources Department when, in early

1993, defendant discovered that it was headed for financial problems due to declining patient

census and restructuring in the hospital industry. Beginning in February 1993, defendant

instituted cost-cutting measures designed to reduce its operating losses but experienced

significant operating losses in May, June and July 1993. Defendant then stepped up its cost-

cutting measures, seeking to reduce staffing by the equivalent of approximately thirty to

thirty-five full time positions. Defendant asserts that it instituted a reduction in force (RIF)

to achieve these reductions.

          Plaintiff’s supervisor informed her in April 1993 that her hours would be reduced by

half effective October 1, 1993. Plaintiff responded by filing a charge of discrimination with

the EEOC on April 26, 1993. Defendant terminated plaintiff’s employment on June 22,


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1993.    Plaintiff brought this action, alleging that her termination violated the Age

Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-12213 (ADA), and Oklahoma public policy, and that

she was terminated in retaliation for filing the charge of discrimination with the EEOC and

for filing a worker’s compensation claim.

        “We review the grant or denial of summary judgment de novo, applying the same

legal standard used by the district court under Fed. R. Civ. P. 56(c).” Ingels v. Thiokol

Corp., 42 F.3d 616, 620 (10th Cir. 1994). Summary judgment is appropriate if “there is no

genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

        We apply the analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973), to plaintiff’s ADEA, retaliation, and ADA claims. See Marx v. Schnuck

Markets, Inc., 76 F.3d 324, 327-328 (10th Cir. 1996) (plaintiff may assert multiple civil

rights claims and prove a prima facie case as to each), petition for cert. filed, 64 U.S.L.W.

3780, (U.S. May 7, 1996) (No. 95-1822). Under this analysis, plaintiff has the initial

responsibility of presenting a prima facie case of discrimination or retaliation. “Once the

plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a

facially nondiscriminatory reason for the adverse employment decision.” Id. at 327. To

survive summary judgment, plaintiff must then show that there is a genuine dispute of




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material fact concerning whether the employer’s asserted reason is pretextual; that is,

unworthy of belief. Id.

       The district court found that plaintiff failed to establish a prima facie case of age

discrimination. A prima facie case of age discrimination generally requires proof that

plaintiff was: (1) within the protected age group; (2) doing satisfactory work; (3) discharged

despite the adequacy of this work; and (4) replaced by a younger person. Id. An employee

who has lost her job due to a RIF need not show that she was replaced, however; instead, she

can “produc[e] evidence, circumstantial or direct, from which a factfinder might reasonably

conclude that the employer intended to discriminate in reaching the decision.” Ingels, 42

F.3d at 621 (further quotation omitted).

       Plaintiff claims she was replaced by a younger employee. Defendant disputes this,

contending that it merely shifted plaintiff’s duties to an existing employee. See, e.g., Collier

v. Budd Co., 66 F.3d 886, 890 n.5 (7th Cir. 1995). We need not decide whether plaintiff was

replaced, because even if she was not, she presented evidence that she was treated “less

favorably than younger employees” during the RIF. See Ingels, 42 F.3d at 621. When

plaintiff was laid off, in addition to shifting her duties elsewhere, defendant retained a

younger employee in a similar, half-time secretarial position in plaintiff’s department. By

showing that a younger employee was kept on in a similar position, plaintiff made her prima

facie case. See Jones v. Unisys Corp., 54 F.3d 624, 630 & n.6 (10th Cir. 1995); see also

Branson v. Price River Coal Co., 853 F.2d 768, 771 & n.6 (10th Cir. 1988).


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         We agree with the district court that plaintiff also established a prima facie case of

retaliation for filing her EEOC complaint. A prima facie case of retaliation requires a

showing that: (1) an employee engaged in a protected activity or participated in a Title VII

proceeding, (2) she was subsequently disadvantaged by her employer, and (3) there is a

causal nexus between the protected activity and the adverse employment action. See, Burrus

v. United Tel. Co., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982). Here,

defendant fired plaintiff two months after she filed an EEOC charge, even though her

supervisor previously had told her that she would only have her hours cut. Moreover,

defendant changed its RIF policy shortly before plaintiff was terminated to downgrade

seniority as a basis for making RIF decisions. This evidence was sufficient to establish

plaintiff’s prima facie case. See Marx, 76 F.3d at 329 (discussing close temporal proximity

test).

         The district court correctly found that plaintiff failed to make a prima facie case on

her ADA claim, however. To make that showing she needed to establish that (1) she was

disabled within the meaning of the ADA; (2) she was qualified to perform the essential

functions of her job; and (3) defendant terminated her employment because of her disability.

White v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995). Plaintiff failed to provide

any evidence that defendant terminated her employment because of her disability. Her

assertion that other employees made disparaging remarks about worker’s compensation




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claimants is simply too attenuated to carry even the relatively light burden associated with

a prima facie case.

       We turn now to plaintiff’s pendent state claim that defendant terminated her

employment in retaliation for filing a worker’s compensation claim. To establish a prima

facie case, plaintiff was required to provide evidence that her institution of worker’s

compensation proceedings was a significant factor in defendant’s decision to terminate her

employment. Wilson v. Hess-Sweitzer & Brant, Inc., 864 P.2d 1279, 1284 (Okla. 1993).

Plaintiff filed her claim in 1987, but was not discharged until 1993.1 She alleges that

defendant’s employees made disparaging remarks about worker’s compensation claimants,

but she failed to show any pattern by defendant of threatening or firing such claimants, or any

threats or references to termination specifically directed at her. We agree with the district

court that under these circumstances, plaintiff failed to make a prima facie case of retaliation

under Oklahoma law. See Thompson v. Medley Material Handling, Inc., 732 P.2d 461, 464

(Okla. 1987) (holding that timing alone did not establish prima facie case of retaliatory

discharge).




1
        Plaintiff received an additional twenty percent permanent partial disability award in
June 1992 and a four percent award in September 1993, shortly after she left defendant’s
employment. Appellant’s App. at 90-92. The “institution of proceedings” resulting in
retaliation is broader than the initial filing of a claim, see Buckner v. General Motors Corp.,
760 P.2d 803, 808 (Okla. 1988), so these additional, later awards do have some significance
to the retaliation analysis. However, even close temporal proximity, without more, does not
make a prima facie case of retaliation, see Thompson, 732 P.2d at 464.

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       Only plaintiff’s age discrimination and ADEA retaliation claims thus survive to the

next stage of our analysis, at which the defendant must offer legitimate reasons for

terminating plaintiff’s employment. Defendant argues that its RIF was necessary, because

it suffered significant operating losses due to changes in the hospital industry. These losses,

defendant claims, required cost reductions, including employee layoffs, in order to keep the

hospital profitable. In its response to the EEOC’s request for information, defendant listed

twelve employees laid off as a result of the RIF.

       Plaintiff claims there was no RIF, only an attempt to create the appearance of one.

Plaintiff asserts that defendant merely pulled together a list of the twelve employees who left

during the relevant time period, and called this a RIF. Defendant, however, produced

unrebutted evidence that the RIF was anticipated, discussed, and planned for because the

hospital perceived a need to cut staffing. Plaintiff also questions the inclusion of some of the

twelve employees on the EEOC report. She apparently contends that employees who were

terminated for cause or voluntarily resigned cannot be included in the RIF. The real

question, however, is whether these employees were replaced. Plaintiff presented no

evidence to contradict defendant’s assertion that they were not.

       Plaintiff asserts that twelve employees out of 532 is too small to be a RIF. In

response, defendant asserts that it actually reduced its workforce by a total of thirty-three

full-time equivalents during the RIF. This figure is not exact, and contradicts other figures

contained in the depositions of defendant’s management and accountants. The only hard


                                               7
figure in this record concerning the extent of reduction in force is the figure of twelve

employees defendant supplied to the EEOC. This uncertainty does not create a genuine issue

of material fact on the issue of pretext, however. Even if we assume that the RIF involved

only twelve employees, this does not support plaintiff’s conclusion that there was no RIF.

“An employer need not dismiss any particular number of employees, or terminate a set

percentage of the work force, to institute a reduction in force.” LeBlanc v. Great Am. Ins.

Co., 6 F.3d 836, 845 (1st Cir. 1993)(three employees out of 212), cert. denied, 114 S. Ct.

1398 (1994); see also Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 151 (7th Cir.

1994)(rejecting claim that a reduction of 4.67% of the workforce is per se not a legitimate

RIF).

        Plaintiff also points out that defendant hired new employees during the RIF, but

defendant explained that it had to continue hiring to fill essential positions. Plaintiff failed

to show that she could have filled any of these positions (with the possible exception of the

secretarial job in her former department, discussed below). Her complaint of continued

hiring therefore does not establish pretext. See Furr v. Seagate Technology, Inc., 82 F.3d

980, 986 (10th Cir. 1996).

        Plaintiff next argues that the RIF was unnecessary. She contends that while laying her

off for an alleged lack of funds, defendant gave some of its employees a pay raise and

continued with its building program. Defendant explains that these employees had not yet

achieved their highest pay grade, that executive pay was slashed, and that the building


                                               8
program was funded as a capital expenditure. The economic wisdom of a RIF lies within the

realm of business decisions, and is not for a court and jury to decide. See id. Plaintiff’s

arguments about the wisdom of the RIF fail to demonstrate that it was pretextual.

       Defendant justifies the specific application of the RIF to plaintiff on several grounds.

It contends that due to economic conditions, it needed to eliminate one full-time equivalent

position in plaintiff’s department; that it targeted the position, not the employee; that

plaintiff’s job functions were the most easily transferrable in the department; that plaintiff

could not do any other jobs within the department; and that its RIF rules did not allow it to

displace less senior employees outside the department to preserve plaintiff’s employment.

       Plaintiff contends that she could have performed the other part-time secretarial job in

the department that was held by a younger and less senior employee. Shortly after plaintiff’s

employment was terminated, this employee took a promotion and the job once again became

open. Richard Amos, the Chief Human Resources Officer, explained that he did not offer

this job to plaintiff2 because he lacked confidence in her ability to consistently perform the

job’s payroll-related duties. He was concerned about her accuracy on the data key entry

duties, given her previous performance with tasks involving accuracy on her own job.

Plaintiff insists that she was capable of performing the functions of this job, but failed to


2
        The evidence presented to the district court focused on defendant’s decision not to
offer the job to plaintiff after she was terminated, when the job came open again. The same
reasons justify defendant’s decision not to offer the position to plaintiff at the time her
position was eliminated. Plaintiff does not present her claim as a failure to hire, and so we
do not analyze it as such.

                                              9
provide specific evidence to rebut Mr. Amos’ assessment of her payroll-related abilities.

Absent such proof, we view the manager’s determinations, based on his perception of her

performance, as a nonpretextual business decision. See Furr, 82 F.3d at 987-88.

       We conclude that defendant has asserted legitimate reasons for the RIF, and for its

decision to terminate plaintiff’s employment. Plaintiff has failed to show that these reasons

were pretextual. Therefore, the district court properly granted summary judgment against

her.

       Finally, we turn to plaintiff’s claim that her termination based upon age violated

Oklahoma public policy. Oklahoma recently has decided that it will not extend its narrow

public policy exception to the at-will employment rule to age discrimination claims because

the ADEA provides an adequate and exclusive remedy. See List v. Anchor Paint Mfg. Co.,

910 P.2d 1011, 1014 (Okla. 1996).

       AFFIRMED.



                                                         Entered for the Court



                                                         James K. Logan
                                                         Circuit Judge




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