                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 17 2000
                              FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

    JANE C. STURDIVAN,

                Plaintiff-Appellant,

    v.                                                     No. 98-6412
                                                      (D.C. No. CV-98-48-M)
    TRI-STATE FEEDERS, INC.,                               (W.D. Okla.)

                Defendant-Appellee.


                               ORDER AND JUDGMENT           *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.




         Plaintiff appeals an adverse summary judgment ruling on her employment

discrimination claims based on gender under Title VII, 42 U.S.C. §§ 2000e to

2000e-17, and age under the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621-634 (ADEA).      1
                            She contends that following her termination as office

*
      This order and judgment is not binding precedent, except under the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.
1
         After examining the briefs and appellate record, this panel has determined
                                                                         (continued...)
manager with defendant feedlot operation, she was replaced by a twenty-four year

old male employee. At the time of her termination, plaintiff was fifty-nine. We

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

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

Accordingly, we review the record and all reasonable inferences in a light most

favorable to the nonmoving party. We will uphold the district court’s decision

only if no genuine issue of material fact exists and the prevailing party is entitled

to judgment as a matter of law. A mere scintilla of evidence supporting the

nonmovant does not create a genuine issue of material fact; rather, the nonmovant

must present facts from which a reasonable jury could find in its favor.   See

Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1175 (10th Cir. 1999);      see also

Fed. R. Civ. P 56 (e)(“When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not rest upon the mere

allegations or denials of the adverse party’s pleading, but the adverse party’s

response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.”).



1
 (...continued)
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.



                                            -2-
       The day before her termination, the general manager (Walter Olsen) took

the office accountant (Dane Morris) with him to help fix problems with the

telephone system. Mr. Morris was plaintiff’s subordinate. According to plaintiff,

Mr. Olsen stated he was taking Mr. Morris because Mr. Morris probably would

know more about the telephone system than plaintiff did.        See Appellant’s App.

at 39. Plaintiff admitted she was disturbed by the fact that Mr. Morris had not

informed Mr. Olsen that plaintiff was the one who had showed Mr. Morris the

telephone hookups.     See id. at 39-41. Mr. Morris described plaintiff as being

upset all afternoon.   See id. at 63. After he informed Mr. Olsen he could not

work there any longer, Mr. Olsen decided to terminate plaintiff.       See id. at 66,

99-100.

       According to Mr. Olsen, he fired plaintiff because he considered her to be a

general problem, specifically that grain vendors “didn’t want to deal with her,”

that her subordinates had unnecessary conflicts, that Mr. Morris had threatened to

quit because of his inability to get along with plaintiff, and, because of “the kind

of relationship [plaintiff] had with all co-workers,” Mr. Olsen envisioned having

to replace “whoever I replaced Dane with.”         See id. at 99. Mr. Olsen further

testified that plaintiff had been rude to him and he had received complaints about

her from vendors and customers.     See id. at 100-01. Several people who worked

under her had also complained.     See id. at 107.


                                             -3-
       In order to establish a prima facie case of gender discrimination, plaintiff

was required to show that: “(1) she belonged to the protected class; (2) she was

adversely affected by the decision [to terminate her employment]; (3) she was

qualified for the position . . . ; and (4) she was treated less favorably than her

male counterparts.”   Cole v. Ruidoso Municipal Sch.        , 43 F.3d 1373, 1380 (10th

Cir. 1994).

       Once the plaintiff has established a prima facie case, defendant can rebut

the prima facie case of discrimination by producing some evidence of legitimate,

nondiscriminatory reasons for its actions.      See id. at 1379. 2 In her brief, plaintiff

admits that defendant “produced a facially valid nondiscriminatory reason for her

termination, i.e., that she could not get along with grain vendors and co-workers.”

See Appellant’s Br. at 20. After defendant meets its burden of production,

plaintiff must present enough evidence for a reasonable jury to conclude that

defendant’s proffered reason is pretextual.         See Ingels v. Thiokol Corp. , 42 F.3d

616, 622 (10th Cir. 1994).

       Plaintiff attempted in two ways to establish that defendant’s reasons for

terminating her (complaints from vendors, customers, and subordinates and

Mr. Morris’s stated intention to quit) were pretextual, i.e., unworthy of belief. As



2
       For purposes of summary judgment, the district court assumed plaintiff had
established a prima facie case.

                                              -4-
to her claim of discrimination on the basis of gender, she claimed she was

replaced by Mr. Morris, who she had trained.           See Appellant’s App. at 132. She

also contended that when two employees had complained to Mr. Olsen about a

younger male supervisor, Mr. Olsen had backed the supervisor, and the

complaining employees eventually quit.        See id. However, there is no indication

that the circumstances surrounding that situation were in any way similar to

plaintiff’s. She admitted that Mr. Olsen told her she was being terminated

because of Mr. Morris’s threatened resignation,         see id. at 49, not because of age

or gender. See id. at 52-53. She also admitted that Mr. Olsen had previously

brought to her attention the fact that he had received a complaint about her from a

customer. See id. at 51.

       At the summary judgment stage, it is plaintiff’s burden to show a genuine

issue of material fact as to whether defendant’s proffered reason for her

termination is pretextual, i.e., unworthy of belief.       See Randle v. City of Aurora ,

69 F.3d 441, 451 (10th Cir. 1995). That she was replaced by a male employee is

an element of her prima facie case, not evidence that defendant’s reasons for

firing her was not believable. Mr. Olsen testified that he wanted to retain Mr.

Morris, who was of greater value to the company. This is no more than a simple

business decision, which, good or bad, courts will not second-guess.          See Sanchez




                                              -5-
v. Philip Morris, Inc. , 992 F.2d 244, 247 (10th Cir. 1993) (“Title VII is not

violated by the exercise of erroneous or even illogical business judgment.”).

       Plaintiff has also failed to show pretext by such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in defendant’s

proffered, legitimate reasons for terminating her that a reasonable fact finder

could rationally find them unworthy of credence and thus infer that defendant did

not act for the asserted nondiscriminatory reasons.    See Hardy v. S.F. Phosphates,

Ltd. , 185 F.3d 1076, 1080 (10th Cir. 1999). Accordingly, plaintiff has failed to

establish defendant’s reasons for her termination were pretextual.

       Under the ADEA, it is unlawful for an employer to discharge an employee

because of the individual’s age.    See 29 U.S.C. § 623(a)(1). In order to prevail

on an ADEA claim, plaintiff must prove that her age was a determining factor in

defendant’s decision to terminate her.    See Greene v. Safeway Stores, Inc.   , 98

F.3d 554, 557 (10th Cir. 1996). She need not prove that age was the only reason

for her termination, but rather that age made a difference in defendant’s decision.

See id.

       To demonstrate a prima facie case, plaintiff must show that (1) she was

within the protected age group; (2) she was doing satisfactory work; (3) she was

discharged despite the adequacy of her work; and (4) a younger person replaced




                                            -6-
her. See Ingels , 42 F.3d at 621.   3
                                        If plaintiff makes such a showing, defendant

must then articulate a nondiscriminatory reason for the termination,      see id. at 621,

following which plaintiff must show that the proffered reason was not the true

reason for the employment decision.         See Cone v. Longmont United Hosp. Ass’n      ,

14 F.3d 526, 529 (10th Cir. 1994).

       Plaintiff stated she believed that she was discharged based on her age

“[b]ecause I was replaced by a much younger male.” Appellant’s App. at 52.

When asked whether,      other than the fact that her replacement was a younger man,

there were other facts to support her discharge based on age, she replied, “sex,

probably.” See id. As noted earlier, she admitted that she was not told she was

being terminated based on her age or gender.        See id. Other than her belief that

she was replaced because of age and gender, however, she offered no additional

facts to support this claim.   See id. at 53.

       In sum, plaintiff has failed to show that her age had anything to do with her

termination. Instead, she claims she has shown pretext based on the facts that her

replacement was a twenty-four year old, Mr. Olsen had reprimanded other,

younger, employees but not fired them, and that Mr. Olsen promoted her to the

position of office manager after receiving complaints from grain vendors or



3
      The district court also assumed plaintiff had made a prima facie case under
the ADEA.

                                              -7-
co-workers. See Appellant’s Br. at 20. However, the evidence reflects that it was

plaintiff’s unacceptable behavior, and particularly the potential departure of a

more valuable employee, that caused her termination. In his affidavit, Mr. Olsen

stated that plaintiff and Mr. Morris did not get along and that Mr. Morris had

been persuaded not to quit on an earlier occasion. The fact that she thought there

was “no personality conflict between herself and Dane Morris, her subordinate,”

see Appellant’s Br. at 17, is irrelevant. “It is the manager’s perception of the

employee’s performance that is relevant, not plaintiff’s subjective evaluation of

his own relative performance.”     Furr v. Seagate Technology, Inc.      , 82 F.3d 980,

988 (10th Cir. 1996).

      Although plaintiff did not think defendant’s reason for terminating her was

valid, Appellant’s App.   at 49, or justified or right,   see id. at 127, this is no more

than her mere conjecture that defendant’s explanation is a pretext for intentional

discrimination and therefore an insufficient basis for denying summary judgment.

See Branson v. Price River Coal Co.     , 853 F.2d 768, 772 (10th Cir. 1988).




                                             -8-
     Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                       -9-
