                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 5 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DOYLE G. OLSEN,

                Plaintiff-Appellant,

    v.                                                   No. 99-4027
                                                     (D.C. No. 97-CV-83K)
    SHEILA WIDNALL, Secretary,                             (D. Utah)
    Department of the Air Force,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and BRISCOE , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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-appellant Doyle G. Olsen appeals from a summary judgment

granted in favor of defendant-appellee and from denial of his cross-motion for

summary judgment on his claim brought pursuant to the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. § 633a. Our jurisdiction arises

under 28 U.S.C. § 1291, and we affirm.

      We review the district court’s grant of summary judgment de novo.

See McKnight v. Kimberly Clark Corp.     , 149 F.3d 1125, 1128 (10th Cir. 1998).

In conducting that review,

      [w]e examine the record to determine whether any genuine issue of
      material fact was in dispute; if not, we determine [whether] the
      substantive law was applied correctly, and in so doing we examine
      the factual record and reasonable inferences therefrom in the light
      most favorable to the party opposing the motion. However, where
      the nonmoving party will bear the burden of proof at trial on a
      dispositive issue, that party must go beyond the pleadings and
      designate specific facts so as to make a showing sufficient to
      establish the existence of an element essential to that party’s case in
      order to survive summary judgment.

Id. (quotations and citations omitted). There is no genuine issue of fact “[w]here

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party.”    Matsushita Elec. Indus. Co. v. Zenith Radio Corp.    , 475 U.S.

574, 587 (1986).

      The undisputed facts are fully set forth in the district court’s order granting

summary judgment.     See Appellant’s App. at 5-7. The crux of plaintiff’s

complaint is that a performance rating of 62 (out of a possible 81) given by his

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supervisor in 1987 resulted in his ineligibility for membership in an exclusive

cadre for which the Air Force gives preferential consideration for promotions

and training, and that the score effectively removed him from consideration for

promotion the following year.        See Appellant’s Br. at 2-3. He claimed that

Kenneth Blanchard, his immediate supervisor, lowered his score from what

Blanchard originally planned to give him in response to division chief Robert

Hartnett’s directive, and that he had heard that Hartnett would never give anyone

nearing retirement age a good appraisal.         See Appellee’s Supp. App. at 147, 149.

He did not claim that Blanchard had the same discriminatory intent.

       In granting judgment in favor of defendant, the district court noted that the

rating, which was essentially in the “high range” of scores and meant that plaintiff

was “above fully successful,”      see Appellant’s App. at 19, did not affect the terms,

privileges, duration, or conditions of his employment and resulted in no changes

in the job title or salary or responsibilities that he held.   See id. at 9-10. The

court concluded that plaintiff could not prevail as a matter of law on his age

discrimination claim because he could not show that he suffered an adverse

employment action.      See id. at 10; see also Bullington v. United Air Lines, Inc.   ,

186 F.3d 1301, 1315-16 (10th Cir. 1999) (setting forth elements for         prima facie

case of age discrimination in employment and allocation of burdens for disparate

treatment claims).


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       On appeal, plaintiff claims that eliminating a chance for promotion by

giving an employee a performance rating that is insufficient for promotion is an

adverse employment action encompassed by the term “privileges” of employment.

We need not grapple with this more general issue, however, because plaintiff fails

to establish that a genuine issue of material fact exists as to whether he suffered

an adverse employment action under the specific facts of his case. Plaintiff

testified that in 1986 a different supervisor gave him a performance rating of 71,

which he apparently agreed was consistent with his abilities, and that he was

“shocked” that his rating had gone down nine points in 1987. Appellee’s Supp.

App. at 147. Blanchard testified that in 1987 he had rated plaintiff as a “seven”

in most categories instead of as the maximum score of “nine” because there had

been some instances in which plaintiff had engaged in unprofessional demeanor

with people from other commands,         see id. at 290, that he had received complaints

that plaintiff did not seem to be on top of the status of programs he was

responsible for, see id. at 296-97, that he occasionally had to prompt plaintiff on

work productivity, see id. at 298, that plaintiff showed a negative attitude towards

other staff members in staff meetings,      see id. at 299, and that sometimes he had to

follow up plaintiff on high visibility tasks,         see id.

       Plaintiff did not contend that these reasons were fabricated; he testified that

some of the reasons were only “partly true;” admitted that he had originated a


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letter that resulted in a complaint from a colonel, and admitted that he had made

negative comments in staff meetings but justified them.       See id. at 157-59.

Blanchard testified that after Hartnett told him to review all performance ratings

of the individuals under his supervision because he appeared to have been too

optimistic in his division’s ratings, he reevaluated plaintiff’s performance ratings

and believed he had changed them, but “not a great deal. Maybe three or four

points, and I’m just speculating.”   Id. at 318.

       Plaintiff testified that, in competing for promotions, “[t]here are generally

enough employees with the top score of 81 that any lesser score will not result in

an employee’s name appearing on the promotion certificate.”        Id. at 150.

Blanchard stated that even a score of 79 would not get an applicant on a

promotion roster, and that without scores of all nines, it was “tough” to get a

promotion. Id. at 86. The record shows that only 30% of those receiving

promotions in 1986 were cadre members and that cadre-reserved positions had

been eliminated.   See Appellant’s App. at 24. Thus, even if Blanchard lowered

plaintiff’s score three to four points at Hartnett’s direction, it did not affect his

promotion opportunities in light of Blanchard’s original ratings and the standards

necessary for promotion at the time in question. The district court’s conclusion

that plaintiff did not suffer an adverse employment action because of his




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performance rating is correct. The judgment of the United States District Court

for the District of Utah is AFFIRMED.



                                                  Entered for the Court



                                                  James E. Barrett
                                                  Senior Circuit Judge




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