                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                        UNITED STATES COURT OF APPEALS December 23, 2009

                               FOR THE TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court


    KAREN REEDER,

                 Plaintiff-Appellant,

    v.                                                       No. 08-4048
                                                     (D.C. No. 2:03-CV-00226-DS)
    THE WASATCH COUNTY SCHOOL                                  (D. Utah)
    DISTRICT,

                 Defendant-Appellee.


                                ORDER AND JUDGMENT*


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and TYMKOVICH,
Circuit Judge.



         Plaintiff Karen Reeder appeals from the district court’s grant of summary

judgment to defendant Wasatch County School District (“WCSD”) on her claim that

WCSD terminated her because of her age, in violation of the Age Discrimination in




*
       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 This order and judgment is not binding precedent,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. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Employment Act (ADEA), 29 U.S.C. §§ 621-634. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.


                                               I.

       We review the grant of summary judgment de novo, applying the same legal

standard as the district court must apply under Fed. R. Civ. P. 56(c). See Timmerman v.

U.S. Bank, N.A., 483 F.3d 1106, 1112 (10th Cir. 2007). “Summary judgment is

appropriate only ‘if 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 judgment as a matter of law.’” Id.

at 1112-13 (quoting Fed. R. Civ. P. 56(c)).

       In reviewing the grant of summary judgment, we view the evidence in the light

most favorable to Mrs. Reeder and we give her the benefit of any reasonable inferences to

be drawn from the facts. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.

1998). We conduct our review, however, “from the perspective of the district court at the

time it made its ruling, ordinarily limiting our review to the materials adequately brought

to the attention of the district court by the parties.” Id. at 671. “The district court has

discretion to go beyond the referenced portions of these materials, but is not required to

do so.” Id. at 672. Therefore, “where the [nonmovant’s] burden to present . . . specific

facts by reference to exhibits and the existing record was not adequately met below, we

will not reverse a district court for failing to uncover them itself.” Id.


                                              -2-
       On appeal Mrs. Reeder seeks to present new evidence and raise new arguments

that were not before the district court. We will not consider evidence presented for the

first time on appeal. See West Coast Life Ins. Co. v. Hoar, 558 F.3d 1151, 1156-57

(10th Cir. 2009). Likewise, we generally will not consider an argument that was not

raised before the district court, and there are no unusual circumstances here that would

lead us to vary from our general rule. See United States v. Jarvis, 499 F.3d 1196, 1201

(10th Cir. 2007). Accordingly, we will consider only those arguments that were also

presented to the district court, and we will rely exclusively on the appellate record

prepared by the district court in accordance with Tenth Circuit Rule 10.2(C) and filed

with this court on January 6, 2009.

                                             II.

       Mrs. Reeder was hired by WCSD as a teacher’s aide in November 1993, when she

was 46 years old. She worked as a teacher’s aide until December 1999, first at Central

Elementary and then at Heber Valley Elementary (HVE). In December 1999 Mrs. Reeder

was hired as a classroom teacher to finish out the school year for a first-grade teacher who

resigned mid-year. Mrs. Reeder continued teaching first grade for the 2000-2001 and

2001-2002 school years. On March 15, 2002, she was given a preliminary notice that her

contract would not be renewed for the following school year. She was then 54 years old.

       During the two-and-one-half years that she was a classroom teacher, Mrs. Reeder

was considered a provisional employee. According to WCSD policies, any full-time

employee who has not yet achieved career status is a provisional employee. To achieve

                                             -3-
career status (i.e., tenure), an employee must successfully complete three consecutive

academic school years with WCSD. If the employee starts after the beginning of an

academic school year, she must successfully complete that year and three more full

academic years to qualify as a career employee. A provisional employee is hired on an

individual, one-year contract and has no expectation of continued employment beyond

each contract’s one-year term. Further, a provisional employee is considered an at-will

employee and can be discharged at the discretion of the Board of Education, although she

cannot be discharged during the term of her contract except for cause. If WCSD decides

not to renew the contract of a provisional employee, it must give the employee notice at

least two months before the end of the contract term that the employee will not be offered

a contract for a following term of employment.

      Brian Bentley, the principal at HVE, testified that the principal generally makes

the initial decision whether a provisional teacher’s contract should not be renewed and

then makes a recommendation to the superintendent. In Mrs. Reeder’s case, he believed

that he had recommended to the superintendent, Terry Shoemaker, sometime in early

March 2002 that Mrs. Reeder’s contract not be renewed. Mr. Bentley testified that under

WCSD’s policy, Mrs. Reeder had to be notified that her contract would not be renewed

by approximately April 1, which was two months before the end of her contract for that

school year.

      The written preliminary notice that Mrs. Reeder received did not state a reason for

nonrenewal. She testified, however, that when Mr. Bentley met with her to give her the

                                            -4-
notice, he said that her contract was not being renewed because of incompetence relating

to classroom discipline. WCSD also declined to renew the contracts of three other

provisional teachers for the following school year. One of the teachers taught at HVE,

but the other two did not. All three were over the age of 40. Although the record showed

that Mrs. Reeder was replaced by someone who was younger than her, there was no

evidence presented about who replaced the other three provisional teachers.

       Mrs. Reeder testified that she began to suspect that age played a part in her

nonrenewal when she learned that for the following school year HVE had hired student

interns who had almost no teaching experience and that one of them was going to teach

first grade. Mrs. Reeder was replaced by an intern named Sarah Jensen, who was

younger than her. At the time she was hired, Ms. Jensen did not have a college degree,

any teaching experience, or a teaching certificate, though she did have an alternate

teaching license that allowed her to be a student intern.

       Interns were not new to HVE. As Mr. Shoemaker explained, the internship

program was begun in the mid-80’s by Brigham Young University and five school

districts, including WCSD. The program sought to improve teacher education at BYU

and teacher performance in the public schools by putting BYU students in the public

schools as either student teachers or interns as part of their teacher training. The student

interns were used almost exclusively at elementary schools, which would hire two, or

sometimes three, interns each year. As an intern, Ms. Jensen was paid half the salary of a

regular teacher but received full benefits.

                                              -5-
       Mr. Shoemaker testified that WCSD had already made the decision to hire interns

for HVE before Mrs. Reeder was given her preliminary notice of renewal on March 15.

He said that WCSD would have known in February whether HVE would have sufficient

openings for interns the following school year. His recollection was that HVE had

several openings. Mr. Bentley testified that he had recommended to Mr. Shoemaker that

WCSD not renew Mrs. Reeder’s contract before the hiring committee conducted its first

round of intern interviews on March 12.


                                            III.

       Mrs. Reeder contended that her replacement by a younger intern was the result of

age discrimination, not any poor performance on her part. The ADEA prohibits an

employer from “discharg[ing] . . . or otherwise discriminat[ing] against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because

of such individual’s age.” 29 U.S.C. § 623(a)(1). The Supreme Court has held that “the

ADEA’s requirement that an employer took adverse action ‘because of’ age [means] that

age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc.,

129 S. Ct. 2343, 2350 (2009). Thus, an ADEA plaintiff has the burden to “prove by a

preponderance of the evidence (which may be direct or circumstantial), that age was the

‘but-for’ cause of the challenged employer decision.” Id. at 2351.

       This court uses the familiar burden-shifting analysis of McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 804 (1973), in assessing age-discrimination claims on


                                            -6-
summary judgment when the plaintiff’s case, like Mrs. Reeder’s, depends on

circumstantial evidence of discrimination. See, e.g., Sanders v. Sw. Bell Tel., L.P.,

544 F.3d 1101, 1105 (10th Cir. 2008), cert. denied., 130 S. Ct. 69 (2009).

       Under the McDonnell Douglas analysis, a plaintiff bears the initial burden
       of setting forth a prima facie case of discrimination. After the plaintiff
       makes a prima facie case, the burden shifts to the employer to give a
       legitimate, nondiscriminatory reason for its employment decision. If the
       employer comes forward with a nondiscriminatory reason for its actions,
       the burden then reverts to the plaintiff to show that there is a genuine
       dispute of material fact as to whether the employer’s proffered reason for
       the challenged action is pretextual–i.e., unworthy of belief.

Id. (citations and internal quotation marks omitted). Ordinarily, a showing of pretext will

permit the factfinder “to infer the ultimate fact of discrimination from the falsity of the

employer’s explanation.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160,

1167 (10th Cir. 2007) (internal quotation marks omitted).

       The district court concluded that Mrs. Reeder set forth a prima facie case, and

WCSD does not challenge that conclusion on appeal. The court further concluded that

WCSD articulated a legitimate reason for Mrs. Reeder’s nonrenewal, namely

performance problems with classroom discipline. To survive summary judgment,

Mrs. Reeder had to establish that the evidence demonstrated a genuine issue of material

fact as to whether WCSD’s reason for not renewing her contract was pretextual.

       Mrs. Reeder pointed to a variety of circumstances that she contended established

that WCSD’s articulated reason for terminating her was unworthy of belief. Most

importantly, she contended that the real reason WCSD did not renew her contract was


                                              -7-
because it wanted to save money. She argued variously that there was “an institutional,

systemic and intentional system to rid the District of teachers who were due to become

tenured and because of their age would not be as profitable to the District over the

teaching career of the teacher,” R. Vol. 1, Doc. 86 at 15; that “[t]he decision to terminate

only provisional teachers more than forty years old was motivated not only by the

District’s desire to save money on teachers[’] salaries in the next school year, but also its

desire to eliminate any obligation for retirement pay and associated benefits in the

future,” id. at 24-25; that “the District’s professed reason for terminating Mrs. Reeder for

poor classroom management is simply a pretext for firing her, in order to eliminate the

District’s obligation for future retirement pay and benefits”, id. at 27; and that “[t]he cost

of Mrs. Reeder’s salary, her future salary and benefits was the real reason for her

termination,” id. at 27 n.14.

       Evidence of pretext, however, does not always suffice to preclude summary

judgment. We have held that if a plaintiff concedes that the real–even though

concealed–reason that an employer acted is one that is not prohibited under the relevant

civil-rights law, then the plaintiff cannot survive summary judgment. See Marx v.

Schnuck Mkts., Inc., 76 F.3d 324, 328 (10th Cir. 1996); Randle v. City of Aurora, 69 F.3d

441, 451 n.14 (10th Cir. 1995). As we explained in Randle, “the plaintiff’s concession of

a lawful motive would take the issue of motive from the jury and preclude inference of a

discriminatory motive that the jury could otherwise draw from the fact of pretext.”

69 F.3d at 451 n.14.

                                              -8-
       The desire to save money is not a motive prohibited by the ADEA. Accordingly,

absent a link between WCSD’s alleged desire to save money and her age, Mrs. Reeder’s

concession of this hidden reason is fatal to her case. The evidence presented to the

district court did not establish such a link.

       Mr. Shoemaker testified that the BYU interns were paid half the salary of a regular

teacher, so presumably WCSD would save salary money if it replaced a teacher with an

intern. But nothing in the evidence suggested that this savings would differ in any respect

depending on the age of either the intern or the teacher being replaced. Any salary

savings, therefore, would be age neutral.

       Mrs. Reeder also contended that WCSD terminated her (and the other provisional

teachers) to avoid having to pay her retirement and unspecified related benefits.

Although terminating an employee to interfere with pension rights may be a violation of

ERISA, it is not, without more, a violation of the ADEA. See Hazen Paper Co. v.

Biggins, 507 U.S. 604, 612-13 (1993). When, for instance, an employee’s right to vest in

retirement benefits is based on years of service, an employer’s termination of an

employee to prevent vesting is not age discrimination even if an older employee is more

likely than a younger employee to have the necessary years of service. See id. at 611-12.

“Because age and years of service are analytically distinct, an employer can take account

of one while ignoring the other, and thus it is incorrect to say that a decision based on

years of service is necessarily ‘age based.’” Id. at 611.




                                                -9-
       The record does not contain any evidence from which one could infer a link

between Mrs. Reeder’s age and her eligibility for retirement benefits or the cost of those

benefits. In fact, the record contains no evidence about Mrs. Reeder’s eligibility for

retirement benefits or WCSD’s obligation to pay them. There was no evidence in district

court about when (or if) Mrs. Reeder would be eligible for benefits; what factors would

affect her eligibility for, or the amount of, benefits; or when WCSD would have to pay

benefits and in what amount. The evidence did not permit any comparison between

Mrs. Reeder’s benefits and those of a younger teacher. And to the extent that

Mrs. Reeder intended to argue that by replacing a teacher with an intern, WCSD could

avoid paying retirement benefits altogether, the record does not contain any evidence

suggesting that this purported savings would be affected by the age of either the intern or

the teacher. In sum, even if Mrs. Reeder were correct that WCSD terminated her to avoid

paying her retirement and related benefits, there is nothing in the record from which a

factfinder could infer a correlation between this motive and Mrs. Reeder’s age.


                                            IV.

       Because Mrs. Reeder attributed to WCSD a motive for her termination that is not

prohibited by the ADEA, the district court properly granted summary judgment to

WCSD, regardless of whether WCSD ever acknowledged that it was actually motivated

by the desire to save money. Mrs. Reeder’s concession of a motive not related to her age




                                            -10-
negated any inference of age discrimination that a jury might otherwise draw from her

evidence of pretext. See Randle, 69 F.3d at 451 n.14.

       The district court’s judgment is AFFIRMED. We GRANT appellee’s motion to

strike those portions of appellant’s appendix that contain evidence that was not submitted

to the district court.


                                                        Entered for the Court


                                                        Harris L Hartz
                                                        Circuit Judge




                                           -11-
