                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 22, 2010
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 STEPHEN WALTER PHILLIPS,

          Plaintiff-Appellant,
                                                       No. 08-1003
 v.                                       (D.C. No. 1:05-CV-01322-EWN-KLM)
                                                        (D. Colo.)
 THE PEPSI BOTTLING GROUP,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR, and TYMKOVICH, and, Circuit Judges.


      Stephen Phillips appeals from the district court’s denial of his motions to

conduct alternative discovery and for recusal of the district judge, and from the

district court’s grant of summary judgment against him in his age discrimination

action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §

621 et seq. Because the district court did not abuse its discretion in denying the

discovery and recusal motions, and in the absence of a triable issue of material


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of 10th
Cir. R. 32.1 and 10th Cir. R. 32.1.
fact as to whether age constituted the reason for Mr. Phillips’s termination, we

affirm. 1

       On July 21, 2004, Pepsi Bottling Group (“PBG”) terminated Mr. Phillips’s

employment after more than forty years of service. PBG based its decision on

Mr. Phillips’s failure to meet the expectations set out in a 90-day performance

improvement plan. One year later, Mr. Phillips brought this age discrimination

lawsuit contending that several PBG managers, over the course of five years,

conspired to create written deficiency documentation in order to terminate him

from his position as a Food Service Representative (“FSR”) in violation of the

ADEA.

       PBG moved for summary judgment contending that Mr. Phillips’s

termination was the result of longstanding performance problems. After the

motion for summary judgment was filed, PBG produced two documents that Mr.

Phillips believed to be “critical” to his defense against summary judgment. The

first document was an un-signed, un-sent notice of termination letter, dated

May 10, 1999 and addressed to Mr. Phillips, which was found in the files of Scott

Beijer, Mr. Phillips’s then-supervisor. Mr. Phillips contended the letter

“show[ed] that the decision to terminate [him] was, in fact, made as early as



       1
       We grant PBG’s January 13, 2009, motion for leave to file a revised
supplemental appendix but deny its motion for sanctions against plaintiff and his
counsel.

                                         -2-
May 10, 1999,” and not in 2004 as PBG asserted. Aplt. App., vol. I at 185. The

second un-dated document was created by Renee Cedeño, PBG’s Regional Human

Resources Manager, suggesting that Mr. Phillips might have been terminated as

part of a 2004 reduction in force.

       On February 13, 2007, the district court permitted additional limited

discovery, allowing Mr. Phillips to depose Mr. Beijer and Ms. Cedeño and “if

necessary, request copies of the slide presentation in which the document

appeared.” Aplt. App., vol. II at 272. A week later, Mr. Phillips once again

moved to expand discovery by requesting submission of interrogatories, the

deposition of another of Mr. Phillips’s former supervisors by telephone, and the

taking of a Fed. R. Civ. P. 30(b)(1) deposition. The court denied this motion.

       Although Mr. Phillips appeals this denial, he fails to identify a single legal

authority in support of his claim of entitlement to a reopening of total discovery.

“We review the district court’s discovery order for abuse of discretion.”

Trentadue v. F.B.I., 572 F.3d 794, 806 (10th Cir. 2009). “A district court abuses

its discretion where it commits a legal error or relies on clearly erroneous factual

findings, or where there is no rational basis in the evidence for its ruling.” Id.

(citation and quotation marks omitted). We are not persuaded the court abused its

discretion in granting only limited additional discovery at this late point in the

litigation.

       On March 30, 2007, PBG moved for summary judgment a second time.

                                          -3-
The district court granted PGB’s motion. Thereafter, in November 2007, Mr.

Phillips filed a motion for recusal of the district judge based on 28 U.S.C. §§ 144,

455(b)(1) (personal bias) and 455(a) (questionable impartiality), which the district

court denied. This appeal followed.

      We first address Mr. Phillips’s appeal from the district court’s denial of his

recusal motion. In support of his motion, Mr. Phillips referenced the presiding

magistrate judge’s alleged predictions as to how the district judge would rule. He

quoted the magistrate judge as saying “[t]he biggest problem with your case is

that [the judge] hates employment cases and there’s nothing you can do about it,

it’s random. . . . [H]e will try to find any way in the summary judgment briefs to

say there’s [sic] no material issues and grant summary judgment, and if he

doesn’t, he will make it tough at trial, and you won’t win.” Aplt. App., vol. II at

379 (citation omitted). Mr. Phillips also referenced some statements by the

district judge that he construed as demonstrating “unfavorable predisposition,

bias, and prejudice against Plaintiff . . . so extreme as to display clear inability to

render fair judgment.” Id. at 381. The district court denied the motion as

“untimely, insufficient, and of such a quality that they would not cause a

reasonable person to question [the court’s] impartiality.” Id. at 410. Mr.

Phillips’s challenge on appeal to the district court’s denial of his recusal motion,

which is devoid of any citation to the record or any legal authority in support of

his claim, does not persuade us that the district court abused its discretion in

                                           -4-
denying his motion. See United States v. Burger, 964 F.2d 1065, 1070 (10th Cir.

1992) (reviewing denial of recusal motion for abuse of discretion); Trentadue,

572 F.3d at 806.

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

“applying the same standard as the district court.” Wolf v. Prudential Instruction

Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). “[We] 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.” Applied Genetics Int’l, Inc. v.

First Affiliated Sec. Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). However, “where

the non-moving 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.” McKnight v. Kimberly Clark

Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (citation omitted). In the ADEA

context, Mr. Phillips must raise a triable issue of fact as to whether “age was the

‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL

Financial Servs., Inc., 129 S. Ct. 2343, 2345 (2009).

      Mr. Phillips concedes that he has no direct evidence to support his age

discrimination claim. Consequently, his case must proceed under the three-step

                                         -5-
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973).

Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a

prima facie case of discrimination. Once the plaintiff does so, the burden shifts to

the defendant to articulate “some legitimate, nondiscriminatory reason” for its

action. 411 U.S. at 802. If such a reason is provided, the burden of production

returns to the plaintiff to demonstrate that the defendant’s explanation was merely

a pretext for discrimination. Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ.,

595 F.3d 1126, 1131 (10th Cir. 2010).

      Before the Supreme Court’s decision in Gross, “the employee could prevail

if the evidence, viewed in the light most favorable to the plaintiff, would permit a

jury to find that her dismissal was motivated at least in part by age

discrimination.” Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir.

2010) (citation and internal quotation marks omitted). Gross changed “the latter

part of this formulation by eliminating the mixed-motive analysis that circuit

courts had brought into the ADEA from Title VII cases.” Id. But it did not

overrule circuit precedents in which we have consistently employed the

burden-shifting framework in ADEA cases. See generally Thompson v.

Weyerhaeuser Co., 582 F.3d 1125, 1130-31 (10th Cir. 2009); Gorzynski, 596 F.3d

at 106.

      Whether judgment as a matter of law is appropriate in this case depends on

a number of factors, including “the strength of the plaintiff’s prima facie case, the

                                         -6-
probative value of the proof that the employer’s explanation is false, and any

other evidence that supports the employer’s case and that properly may be

considered . . . .” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 148-

49 (2000).

      The district court presumed the existence of a prima facie case of age-based

discrimination and observed that PBG had asserted a legitimate,

nondiscriminatory basis for termination – namely, declining work performance. It

then proceeded to address what it deemed “the central question in the case:

whether Plaintiff has come forward with evidence of pretext sufficient to support

the conclusion that his termination was discriminatory.” Aplt. App., vol. II at

433. The district court answered this question in the negative.

      On appeal, Mr. Phillips challenges the district court’s determination that he

failed to satisfy his burden to demonstrate pretext. “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.”

Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002) (quotation

and alteration omitted). “The relevant inquiry is not whether [the defendant

employer’s] proffered reasons were wise, fair or correct, but whether [the

employer] honestly believed those reasons and acted in good faith upon those

beliefs.” Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir.

                                         -7-
2004) (quotation marks omitted). However, “there may be circumstances in

which a claimed business judgment is so idiosyncratic or questionable that a

factfinder could reasonably find that it is a pretext for illegal discrimination.”

Beaird v. Seagate Tech., 145 F.3d 1159, 1169 (10th Cir. 1998).

      Mr. Phillips contends that Garrett, reversing a grant of summary judgment

where plaintiff proffered “ample evidence of inconsistent treatment of plaintiff,

disturbing procedural irregularities, and the use of subjective criteria . . . ,” 305

F.3d 1217, is controlling here. In Garrett, plaintiff filed suit alleging age and

race discrimination in violation of Title VII, 42 U.S.C. § 20003 et seq. and the

ADEA. Mr. Garrett asserted that his former employer discriminated against him

in response to his involvement in promoting diversity within the company, and

sought relief for disparate treatment, retaliation, and constructive discharge. On

appeal, we held that Mr. Garrett raised a triable issue of fact as to whether

defendant’s justification for his treatment was pretextual, reasoning that “[w]hen

viewed in the aggregate, [Mr. Garrett’s] proffered evidence is ‘sufficient to raise

a genuine doubt about Defendant’s motivation.’” Id. at 1220 (citation omitted).

      The defendant’s inconsistent treatment of Mr. Garrett, its deviations from

company policy, and its reliance on wholly subjective evaluations, which

anchored our decision there, see, id. at 1217-18, are not present here. First, the

allegedly discriminatory conduct at issue in Garrett started “almost immediately”

after plaintiff began participating in an internal diversity program. See Pippin v.

                                           -8-
Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195 (10th Cir. 2006)

(distinguishing Garrett on this basis). Here, no such immediate nexus exists.

Second, in Garrett the plaintiff’s proffered evidence that the defendant engaged

in “disturbing” deviations from established company policy by failing to inform

him of his placement in the “action needed” category for two months (thereby

denying him notice or opportunity to act), and by keeping him in that category

beyond the company’s twelve-month limit. Id. at 1219-20. Mr. Phillips asserts

no such deviations here.

      In addition, in Garrett “[defendant] offered virtually no evidence to support

its characterization of its ranking system. It presented no set of objective criteria

by which employees are differentiated.” Id. at 1217-18. Employment supervisors

in that case determined employee rankings in meetings. Id. In this case, the

process by which PBG ranks its employees is not opaque. Employee rankings

here were calculated by computer on the basis of performance in a variety of

areas, including such objective categories as number of sales per week, volume

goals, and net placements. See, e.g., Aplt. App., vol. VI at 988.

      Finally, and more importantly, PBG’s evaluation process was not “wholly

subjective,” unlike in Garrett. See Garrett, 305 F.3d at 1215, 1218; see also

Pippin, 440 F.3d at 1195 (rejecting plaintiff’s reliance on Garrett because the

defendant’s evaluation process was not “wholly subjective.”). PBG’s evaluations

of Mr. Phillips over time, which contained subjective considerations such as

                                          -9-
leadership, see Aplt. App., vol. III at 518 (“[Steven Phillips] has not provided the

leadership required . . . .”), also required his supervisors to articulate Mr.

Phillips’s satisfaction of numerical business goals. See id. at 525 (showing that

Mr. Phillips fell below targets in number of calls per day, number of sales per

week, number of fountain placements in the profitable range, number of FSV

placements selling 2 or more cases per week); see also id. at 703 (“Steve is

missing plan in all other areas.”). Indeed, despite Mr. Phillips’s contention that

PBG relied entirely on subjective grounds to support its stated reason for

discharge, he concedes that PBG did offer some objective evidence. Aplt. Br. at 5

(admitting that scorecard ranking obtained during the month of Mr. Phillips’s

termination was based on “objective” criteria). He also admits that employee

scorecards ranking employees at least in part on their objective performance

“show declining rankings for Mr. Phillips.” Reply Br. at 9.

      Moreover, despite Mr. Phillips’s submission of a few isolated instances of

employment-based success, he concedes that he struggled with the increasing

technological and business demands at PBG. In 2002, PBG introduced its “Sales

Pad” laptop program, which required Mr. Phillips to create spreadsheets and

powerpoint presentations. That same year, it implemented its P.E.P.S.I. 2



      2
        The acronym stands for “Present” the opportunity in a situation, “Explain”
the solution and benefit, “Provide” detail, “Secure” a sale, and “Implement” the
next steps. See Aplt. App., vol. V at 769.

                                          -10-
program. Mr. Phillips admitted that he had difficulty learning how to use the

computer system, Aplt. App., vol. V at 773; (“it was probably harder for me to

work with than a lot of people.”), that it was “awkward to use when [he was] on

sales calls in front of customers,” id., that on one occasion he lost an entire

program, id. at 774, and that he needed additional computer training. Id. He

also admitted that, dating back to 2002, he avoided using PBG’s required

P.E.P.S.I. sales program because he believed that his customers preferred “an

honest, straightforward approach . . . .” Id. at 769. He was one of only a few

sales people to fail his initial P.E.P.S.I. certification test in 2002. In March 2004,

Mr. Phillips was placed on a “90-Day Expectancy Plan,” based in part upon his

supervisor’s dissatisfaction with his inability to effectively use Sales Pad and his

difficulty with P.E.P.S.I. Despite additional training by his supervisor, Mr.

Phillips failed his P.E.P.S.I. recertification in June 2004, and his supervisor

recommended termination. PBG’s decisions to computerize its sales program and

to require specific selling techniques are business decisions, and neither is so

“idiosyncratic or questionable that a factfinder could reasonably find it is a

pretext for illegal discrimination.” Beaid, 145 F.3d at 1169.

      Nor is Mr. Phillips’s case saved by the statistics he offered. In that regard,

Mr. Phillips refers us to a 2005 article entitled “A Profile of Older Workers in

Colorado,” sponsored by the National Institute on Aging and the National

Institute of Health and Human Services. Aplt. App., vol. IV at 734-35. The

                                         -11-
profile contains a summary of the Colorado workforce by age group between the

years of 1994 to 2002, which he asserts suggests that Pepsi should have had

“approximately 13 managerial-level employees 55 or older instead of the 3 they

did have.” Aplt. Br. at 48. We fail to see the material relevance of employment

statistics summarizing the Colorado work force across all industries between

1994-2002 to the presence or absence of discriminatory intent in PBG’s

termination of Mr. Phillips in 2004.

      Mr. Phillips asserts that he was subjected to ageist comments. See Aplt. Br.

at 14 (“On June 10, 1999, Beijer told Mr. Phillips, “You make too much money,

you’ve been here too long, you need to go.”) (citations omitted); id. at 35 (“Mr.

Danger . . . referred to Mr. Phillips as the ‘old man’; [he once] said to [another

employee], “You’re not going to let that old man outsell you are you?”; and on one

occasion said, ‘I told the company as long as we have these old employees here

none of these new programs are ever going to work. They’re too set in their ways

for them to let it work, make it work.’”)); see also Aple. Br. at 46. But of those

persons Mr. Phillips accuses of ageist remarks, only one – Ms. Cedeño – was

involved in the decision to terminate him.

      It is well-settled that “age-related comments by non-decisionmakers are not

material in showing the [employer’s] action was based on age discrimination.”

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

sole comment attributed to Ms. Cedeño, PBG’s Regional Human Resources

                                          -12-
Manager, is an undated statement that “You’re old enough to retire.” 3 Aplt. App.,

vol. II at 442. In the absence of any other nexus between this single, factually

accurate observation and PBG’s decision to terminate Mr. Phillips, we are not

persuaded that this evidence raises a triable issue of fact as to whether PBG’s

asserted reason for termination was pretext for age discrimination. In sum, Mr.

Phillips has failed to make a sufficient showing that PBG’s nondiscriminatory

basis for termination was pretextual, and that age was the “but-for” reason for his

termination.

      Accordingly, we AFFIRM.


                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




      3
         Mr. Phillips conceded that this was a true factual observation. Aplt. App.,
vol. II at 442.

                                        -13-
