                                                                              F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               MAY 29 1997
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 RON BUCHANAN,

               Plaintiff-Appellant,

 v.                                                  Case No. 96-6315

 BRIDGESTONE/FIRESTONE, INC.,                        (D.C. CIV-95-1652-L)
                                                     (Western District of Oklahoma)
               Defendant-Appellee.


                              ORDER AND JUDGMENT*


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


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

determined that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

      Plaintiff Ron Buchanan appeals the district court’s grant of summary judgment for

Bridgestone/Firestone, Inc. Mr. Buchanan alleges that Bridgestone/Firestone’s Oklahoma

City tire manufacturing plant, Dayton Tire (“Dayton”), engaged in age discrimination, in


      *
               This order and judgment is not binding precedent, except under the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.
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34,

and in reverse gender discrimination in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-17. Specifically, Mr. Buchanan alleges the district court

“grossly abused” its discretion in granting Dayton’s motion. Aplt’s Br. at 1. We have

jurisdiction under 28 U.S.C. § 1291, and for the reasons stated herein, we affirm.

                                   I. Factual Background

       When Dayton eliminated Mr. Buchanan’s position, Dayton offered Mr. Buchanan

a lateral move to a temporary supervisory assignment in the tire room on a different shift.

Under the collective bargaining agreement between Dayton and the International Union

of the United Rubber, Cork, Linoleum & Plastic Workers of America and between the

Oklahoma City Plant and Local Union 998, Mr. Buchanan could return to his former

position, if vacant, or to another available position in the bargaining unit if his position

was eliminated. Mr. Buchanan chose to accept an available bargaining unit position in

the final inspection department. Mr. Buchanan asserts claims of age discrimination and

reverse gender discrimination resulting from Dayton’s reduction in force and failure to

promote.

                                        II. Discussion

       We review the district court’s order granting summary judgment de novo, applying

the same standard as the district court. Thomas v. International Bus. Machs., 48 F.3d

478, 484 (10th Cir. 1995). Summary judgment is appropriate only “if the pleadings,


                                               2
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

examine the factual record and reasonable inferences therefrom in the light most

favorable to [Mr. Buchanan], who opposed summary judgment.” Thomas, 48 F.3d at

484.

                               A. Age Discrimination Claims

       Mr. Buchanan’s somewhat muddled claims appear to pursue two theories of

recovery under the ADEA including discrimination resulting from (1) Dayton’s reduction

in force and (2) Dayton’s failure to promote him. To prevail on his ADEA claim, under

the traditional Title VII burden-shifting approach set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-04 (1973), Mr. Buchanan must first establish a prima facie

case by showing that (1) he was within the protected age group; (2) he was doing

satisfactory work; (3) he was discharged or received adverse employment action; and (4)

a younger person replaced him. Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th

Cir. 1996) (quoting Lucas v. Dover, 857 F.2d 1397, 1400 (10th Cir. 1988) (applying

McDonnell-Douglas burden-shifting approach to ADEA claims)); Thomas, 48 F.3d at

484-85. Upon establishment of a prima facie case, the burden shifts to the defendant,

who must provide evidence “that the adverse employment actions were taken for a

nondiscriminatory reason.” Greene, 98 F.3d at 558. If the defendant can meet this


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burden, the plaintiff must then show “that the [defendant’s] proffered reason was not the

true reason for the employment decision.” Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981).

       Alternatively, under a less typical approach, Mr. Buchanan “may attempt to meet

his burden directly, by presenting direct or circumstantial evidence that age was a

determining factor [in the challenged decision].” Lucas, 857 F.2d at 1400 (quoting La

Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1409 (7th Cir. 1984)).

We apply each approach to Mr. Buchanan’s ADEA claims.

                                   1. Reduction in Force

       Mr. Buchanan is unable to prevail under either approach on his reduction-in-force

claims. During a reduction-in-force, a plaintiff is typically laid off, and thus may not be

able to establish replacement by a younger person. Branson v. Price River Coal Co., 853

F.2d 768, 771 (10th Cir. 1988) (evidence that employer fired qualified older employees

but retained younger employees satisfies prima facie case). We thus modify the fourth

element to allow Mr. Buchanan to “‘produc[e] evidence, circumstantial or direct, from

which a fact finder might reasonably conclude that the employer intended to discriminate

in reaching the decision at issue.’” Id. (quoting Williams v. General Motors Corp., 656

F.2d 120, 129 (5th Cir. 1981)).

       Given these elements, Mr. Buchanan cannot establish a prima facie case. First,

there is no evidence in the record that Mr. Buchanan is a member of the protected age


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group, that is, over forty years of age. See 29 U.S.C. § 631(a). Even assuming, arguendo,

that Mr. Buchanan is a member of the protected age group, he still cannot establish the

fourth element of a prima facie case.

       In particular, Mr. Buchanan has presented no direct or circumstantial evidence

from which the fact finder might reasonably conclude that Dayton intended to

discriminate when it initiated the reduction-in-force policy. There is no evidence that Mr.

Buchanan was treated less favorably than younger employees during Dayton’s

reorganization. In fact, the record indicates that in Mr. Buchanan’s duties were assigned

to Mr. G. J. Kinder, who was 51 at the time of the reassignment and appears to be older

than Mr. Buchanan.1 Aplt’s App. at 12, 23. This evidence does not support Mr.

Buchanan’s contentions that age was a factor in Dayton’s reduction in force.2

       Under the direct or circumstantial evidence approach, Mr. Buchanan fares no

better. This approach requires Mr. Buchanan to present evidence, direct or

circumstantial, from which the fact finder might reasonably conclude that Dayton

intended to discriminate on the basis of age in initiating the reduction-in-force policy, he

might establish a reduction in force claim based on age discrimination. Greene, 98 F.3d

       1
              In the district court proceedings, Bridgestone/Firestone offered evidence
indicating that another employee, Ms. Karen Forshee, was 52 in January 1995. See Aplt’s
App. at 196. Mr. Buchanan testified that he believed Ms. Forshee to be a “few years
older than [he].” Id. at 151.
       2
             In addition, Mr. Buchanan’s reverse discrimination assertions that he was
“displaced” by Ms. Forshee, who is older than Mr. Buchanan, only controvert Mr.
Buchanan’s ADEA claims. See infra § II.B.

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at 557. As established above, Mr. Buchanan has presented no direct evidence of

Dayton’s intent to discriminate against him. In addition, Mr. Buchanan has introduced no

evidence that there was a pattern of discrimination against other members of the protected

class, which might have bolstered his own claim. See Greene, 98 F.3d at 560-61

(“recogniz[ing] the relevance and force of such evidence of a pattern” of discrimination).

                                   2. Failure to Promote

       Mr. Buchanan alleges that several employees received preferential treatment in the

receipt of positions that Mr. Buchanan deserved. Mr. Buchanan cannot show that Dayton

failed to promote him to certain positions under circumstances that give rise to an

inference of unlawful discrimination.

       To establish a prima facie case of failure to promote, Mr. Buchanan “need not

show that he is equally or better qualified than the person selected for the position.”

Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 797 (10th Cir. 1993). It

is enough “‘to prove by a preponderance of the evidence that [he] applied for an available

position for which [he] was qualified, but was rejected under circumstances that give rise

to an inference of unlawful discrimination.’” Id. (emphasis added) (quoting Burdine, 450

U.S. 248, 253 (1981)).

       First, Mr. Buchanan alleges he applied for a junior buyer position. However, the

record establishes he did not have the requisite experience for the job. Moreover, Dayton

decided to eliminate the position rather than to fill it. These circumstances do not suggest


                                              6
unlawful discrimination.

       Next, Mr. Buchanan contends Dayton extended preferential treatment to Scott

Walkup, who Mr. Buchanan alleges is younger than he. The record indicates that Mr.

Walkup became a senior buyer based on his experience as a junior buyer. Mr.

Buchanan’s reasoning fails because he was undeniably unqualified for the position of

senior buyer, given that he lacked experience for even a lower-level junior buyer position.

       Mr. Buchanan also claims that Gary Williamson, allegedly younger than Mr.

Buchanan, received preferential treatment. Mr. Williamson moved from senior buyer to a

physical distribution manager’s position. Mr. Buchanan admits he did not know what the

qualifications for the manager’s position were or what qualifications Mr. Williamson

held. Because Mr. Buchanan has presented no credible evidence that he was qualified for

the positions of junior buyer, senior buyer, or physical distribution manager, he cannot

establish a prima facie case as to these allegations.3 Cf. Kenworthy v. Conoco, Inc., 979

F.2d 1462, 1470 (10th Cir. 1992) (credible evidence presented where two witnesses

testified that plaintiff was qualified for the subject position).

       Under the direct or circumstantial evidence approach, the record indicates that Mr.

Buchanan has presented no evidence other than that he did not receive various positions

to support this claim. Mr. Buchanan alleges there were at least two positions that Dayton


       3
             Mr. Buchanan’s claim that Ms. Linda See, who is apparently older than Mr.
Buchanan, received preferential treatment, further deflates Mr. Buchanan’s ADEA
argument. Aplt’s App. at 151, 196-97.

                                                7
filled with younger employees, but as established above, the record indicates that Mr.

Buchanan was qualified for neither of these positions. These allegations are insufficient

to “raise[] a justiciable issue of material fact [that] must proceed to trial.” Greene, 98

F.3d at 561.

                            B. Reverse Gender Discrimination

       Mr. Buchanan faces similar hurdles to establish a prima facie case of gender

discrimination. For a reverse discrimination claim, we modify the typical requirements of

the prima facie case. Unlike a “member of an ostensibly disfavored minority class,” Mr.

Buchanan must “identify background circumstances that would justify applying to [him]”

(a “majority plaintiff”) the same presumption of discrimination afforded to a minority

plaintiff. Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995). Thus,

Mr. Buchanan can “establish[] a prima facie case by showing that [Dayton] is one of the

unusual employers who discriminate [sic] against the majority,” in this case, male

employees. Id. Mr. Buchanan has presented no evidence suggesting that Dayton is an

employer who discriminates against an alleged majority of male employees. In fact, as

the district court noted, Mr. Buchanan’s “argument that younger male employees were

treated more favorably than he tends to undercut his reverse discrimination claim.”

Aplt’s App. at 200 n.2 (district court order of August 8, 1996) (emphasis in original).

       Mr. Buchanan alleges that Linda See, age 53, see Aplt’s App. at 197, received a

scheduling position with a higher salary than had been offered to him. The record


                                              8
indicates that Mr. Buchanan did not apply for this position. In addition, the transcript

from Mr. Buchanan’s deposition testimony indicates that he had little knowledge of Ms.

See’s qualifications for the position or of her actual salary. See Aplt’s App. pp. 148-49.

       Mr. Buchanan also alleges that Karen Forshee, age 52, see Aplt’s App. at 196,

received preferential treatment because she “displaced” him, Aplt’s Br. at 6, in an effort

by Dayton to remove Ms. Forshee from the supervision of her husband. This contention

is also unsupported by the record. In January 1995, after her position as senior scheduler

raw materials was eliminated, Ms. Forshee assumed supervisory duties over receiving

from Mr. Kinder and retained her duties over raw materials. The record indicates that Mr.

Buchanan admitted that this position had different functions from his position as

receiving supervisor. See Aplt’s App. at 150. Moreover, Mr. Forshee assumed this

position fourteen months after Mr. Buchanan went to the bargaining unit, which deflates

Mr. Buchanan’s “displacement” theory. See id. at 196. These allegations do not support

a reverse discrimination claim against male employees; they do, however, controvert Mr.

Buchanan’s allegations that Dayton discriminates against older employees.

                                      III. Conclusion

       Mr. Buchanan is unable to present evidence to support any prima facie claim of

discrimination. Furthermore, even if Mr. Buchanan could present a prima facie case on

either claim, he has presented no evidence that the reason proffered by Dayton for the

challenged employment decisions--its reorganization plan--was a pretext for


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discrimination. Reynolds, 69 F.3d at 1533-34, Ingels v. Thiokol Corp., 42 F.3d 616, 621

(10th Cir. 1994). Accordingly, Mr. Buchanan’s claims fail.

      Mr. Buchanan’s counsel’s suggestion that the district court’s summary judgment

order “grossly abused” its discretion is, to be kind, disingenuous. The confusing claims

advanced here were without merit and were clearly subject to summary judgment.

      The district court’s order granting summary judgment against Mr. Buchanan and in

favor of Bridgestone/Firestone, Inc. is AFFIRMED.

                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 Circuit Judge




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