                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            April 5, 2006
                            FOR THE TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court


    ROVELL R. HESLET,

                Plaintiff-Appellant,

    v.                                                   No. 05-3177
                                                  (D.C. No. 03-CV-4144-JAR)
    WESTAR ENERGY, INC., doing                             (D. Kan.)
    business as Jeffrey Energy Center,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.



         Plaintiff Rovell Heslet appeals the district court’s grant of summary

judgment dismissing his age discrimination complaint against Westar Energy, Inc.

We affirm.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                         I.

      Plaintiff resigned from his employment as a journeyman mechanic for

Westar in April 2002, after being told that he would be terminated. He was

fifty-two years old at the time, and had worked for Westar for nearly twenty

years. In December 2001, Westar’s plant manager, Dave Neufeld, received an

anonymous call that plaintiff was stealing items from Westar. Plaintiff denied

stealing, and his supervisor, Dave Claussen, gave him a verbal warning, but took

no disciplinary action. In April 2002, the same caller – now identified as

plaintiff’s girlfriend, Roberta Devader – again contacted Westar and told

Claussen that plaintiff was continuing to steal from Westar. Neufeld and

Claussen interviewed Devader, and she showed them photographs depicting a

significant amount of Westar property in plaintiff’s home and bags containing

Westar property that Devader said plaintiff had given her.

      Neufeld and Claussen then met with plaintiff, who initially denied taking or

stealing any Westar property. Plaintiff admitted taking items only after being

shown the photographs, and gave differing explanations for why he had the items.

After an investigation, Neufeld decided to terminate plaintiff’s employment

because he believed plaintiff had stolen company property, had denied the thefts

until confronted with evidence of the thefts, and had already been warned that

theft might warrant termination. Plaintiff chose to resign when he was told of the


                                         -2-
impending termination. Plaintiff then filed a complaint against Westar, alleging it

terminated his employment in violation of the Age Discrimination in Employment

Act (ADEA). The district court granted summary judgment in favor of Westar.

                                          II.

      We review the grant of summary judgment de novo. MacKenzie v. City &

County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005). Summary judgment is

proper where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

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

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review the record and

any reasonable inferences therefrom in the light most favorable to the nonmoving

party. MacKenzie, 414 F.3d at 1273.

      On appeal, the parties do not dispute the district court’s ruling that plaintiff

established a prima facie case of age discrimination under the ADEA. See Miller

v. Eby Realty Group LLC, 396 F.3d 1105, 1111 (10th Cir. 2005) (describing

burden-shifting analysis of circumstantial-evidence ADEA claim). Nor do they

dispute the court’s ruling that Westar presented a legitimate, nondiscriminatory

reason for terminating plaintiff, namely, Neufeld’s belief that plaintiff stole from

Westar. Plaintiff does challenge the district court’s ruling that he failed to present

evidence that Westar’s reason for terminating him was a pretext for discrimination.


                                          -3-
See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)

(noting that plaintiff can withstand summary judgment if he presents evidence that

employer’s reason for the employment decision is “pretextual-i.e. unworthy of

belief” (quotation omitted)). “Where as here plaintiff seeks to demonstrate that

the employer’s explanation is merely a pretext, this court requires a showing that

the tendered reason for the employment decision was not the genuine motivating

reason, but rather was a disingenuous or sham reason.” McKnight v. Kimberly

Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (quotation omitted).

                                           A.

      Plaintiff first contends the district court erred in finding, as an

uncontroverted fact, that he had stolen Westar property. In this regard, he

contends the district court erroneously considered an affidavit from Ms. Devader

which described the Westar property that plaintiff had given her and had in his

home. Plaintiff argues that the district court should not have considered the

affidavit because Devader did not have personal knowledge that he stole from

Westar and there is no factual basis for her allegations. He further argues that the

district court adopted the Devader allegations as fact, and failed to consider

plaintiff’s evidence that he had permission to possess Westar property and that

some of the property had been discarded by Westar.




                                           -4-
      Plaintiff misdescribes the district court’s order. The court did not adopt

Devader’s allegations, nor did it make any finding that plaintiff stole property

from Westar; indeed, it expressly stated that it “need not determine whether or not

[plaintiff] in fact stole property from Westar.” Aplt. App. at 303. Rather, it found

that Westar terminated plaintiff’s employment because Westar believed Devader’s

allegations, and that plaintiff did not present evidence that Westar did not honestly

believe plaintiff had stolen property from it. This was the correct analysis.

      We have repeatedly held that in determining whether the employer’s

proffered reasons for its decision is pretextual, the court examines whether the

employer had an honest belief that the employee engaged in misconduct, and

considers the facts as they appeared to the person making the termination decision,

even though plaintiff later presented evidence in court proceedings that the

allegations may have been false. See, e.g., Sorbo v. United Parcel Serv., 432 F.3d

1169, 1178 (10th Cir. 2005); Kendrick, 220 F.3d at 1230-32; McKnight, 149 F.3d

at 1129. The Devader affidavit complied with the requirements of Rule 56(e) of

the Federal Rules of Civil Procedure, and it was properly considered by the district

court in its evaluation of whether Westar’s proffered reason for plaintiff’s

termination was pretextual. Furthermore, we are satisfied from our review of the

record and the district court’s recitation of the evidence that the court properly




                                          -5-
considered and evaluated all of the evidence, including evidence submitted by

plaintiff.

                                          B.

       Next, plaintiff contends the district court erroneously rejected, as evidence

of pretext, the fact that a younger employee who stole from Westar was suspended

without pay for thirty days, but not terminated. The district court correctly noted,

however, that there are significant differences between plaintiff’s and the other

employee’s conduct. The other employee stole only one box of trash bags;

immediately apologized and offered to pay for the bags; had the support of the

union steward; and was warned another theft would result in termination.

In contrast, the evidence before Westar was that plaintiff had already been warned

about stealing; had a large quantity of Westar property in his possession;

repeatedly denied taking any Westar property until confronted with the Devader

photographs; did not have the union steward’s support; and did not apologize.

We agree with the district court’s conclusion that the differences in treatment are

explained by rational, nondiscriminatory differences in the relevant employment

circumstances and, thus, do not create an inference of pretext. See Kendrick,

220 F.3d at 1232 (holding that differences in treatment that are explained by

nondiscriminatory reasons will not sustain a claim of pretext); see also EEOC v.

Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992) (holding that differences in


                                          -6-
treatment between different employees can be explained by the fact that

“individualized circumstances surrounding the infractions offered some mitigation

for the infractions less severely punished”).

                                          C.

      Plaintiff also contends the district court failed to consider a comment by

plaintiff’s intermediate supervisor that Westar was looking to get rid of older guys,

which he contends is evidence of pretext. The district court did not ignore this

evidence, but properly ruled that this stray remark, made almost a year before

plaintiff’s termination, was too isolated and remote in time from the employment

decision to create a genuine issue of fact for a jury. See Stone v. Autoliv ASP,

Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (concluding that isolated, ambiguous or

stray remarks may be too abstract to support an inference of age discrimination);

Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994)

(“Isolated comments, unrelated to the challenged action, are insufficient to show

discriminatory animus in termination decisions.”).

      We agree with the district court’s conclusion that plaintiff failed to meet his

burden of presenting evidence from which a reasonable jury could conclude that




                                          -7-
Westar’s proffered nondiscriminatory reason for plaintiff’s termination is

unworthy of belief. Accordingly, the judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




                                         -8-
