                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAR 3 2003

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk



 ROY ELLISON, JR.,

          Plaintiff - Appellant,

 v.
                                                       No. 02-2062
                                                (D.C. No. CIV-00-797-BB)
 SANDIA NATIONAL
                                                    (D. New Mexico)
 LABORATORIES; SANDIA
 CORPORATION; LOCKHEED
 MARTIN,

          Defendants - Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR and MCCONNELL, Circuit Judges, and KRIEGER, District
Judge. **



      Roy Ellison, Jr. appeals the district court’s grant of summary judgment to

defendants in this action filed under the Age Discrimination in Employment Act,

      *
       This order and judgment is not binding precedent, except under the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.

       The Honorable Marcia S. Krieger, United States District Judge, District of
      **

Colorado, sitting by designation.
29 U.S.C. §§ 621, et seq. For the reasons set out below, we affirm.

      Mr. Ellison began his employment with Sandia National Laboratories in

1961 and worked there consistently, except for a hiatus from 1973 to 1976, until

his termination in 1998. The facts regarding Mr. Ellison’s career with Sandia,

culminating in his demotion and termination, are fully set out in the district

court’s thorough opinion and need not be repeated here. Suffice it to say that in

1996, there was a decrease in funding to 60% of staffing level that impacted Mr.

Ellison’s position. In December 1996, all employees were informed that the

United States Department of Energy had approved Sandia’s plan for a workplace

realignment. Pursuant to that plan, Sandia offered all employees the opportunity

to apply for a Voluntary Separation Incentive Program, which Mr. Ellison

declined to do. Rather than laying off Mr. Ellison, Sandia provided some

additional training and allowed him to look for other positions in the company. In

the meantime, Mr. Ellison’s performance evaluations declined. Mr. Ellison

claims that his demotion and subsequent termination were the result of

discrimination against him because of his age.

      Defendants filed a motion for summary judgment contending that Mr.

Ellison failed to make a prima facie case of discrimination and that, in any event,

they had shown legitimate business reasons for their actions. After evaluating the

evidence submitted to it, the district court granted summary judgment for Sandia,


                                         -2-
holding that some of Mr. Ellison’s claims were time barred and that Mr. Ellison

had failed to establish a prima facie case of age discrimination with respect to the

others. Alternatively, the court held that Sandia had proffered legitimate reasons

for the adverse actions it had taken against him, but did not discuss whether Mr.

Ellison had offered evidence of pretext.

      Mr. Ellison contends the district court erred in holding that he failed to

establish a prima facie case of age discrimination. Age discrimination plaintiffs

“may establish discrimination indirectly through the three-part framework . . . set

out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), and its progeny.” MacDonald v. Eastern Wyo. Mental

Health Ctr., 941 F.2d 1115, 1119 (10th Cir. 1991). Pursuant to McDonnell

Douglas, a plaintiff “bears the initial burden of establishing a prima facie case by

a preponderance of the evidence,” EEOC v. Horizon/CMS Healthcare Corp., 220

F.3d 1184, 1191 (10th Cir. 2000), which he can do in an age discrimination case

by showing “(1) [he] was within the protected age group, (2) [he] was doing

satisfactory work, (3) [he] was discharged, and (4) [his] position was filled by a

younger person,” MacDonald, 941 F.2d at 1119. See also Munoz v. St. Mary-

Corwin Hospital, 221 F.3d 1160, 1165 (10th Cir. 2000) (defining second prong of

prima facie case as “qualified” for the job (citing Perry v. Woodward, 199 F.3d

1126, 1135 (10th Cir. 1999)); Horizon/CMS Healthcare Corp., 220 F.3d at 1192


                                           -3-
(second prong of prima facie case in pregnancy discrimination case defined as

qualified for position); Kenworthy v. Conoco, 979 F.2d 1462, 1469 (10th Cir.

1992) (second prong of prima facie case in sex and national origin discrimination

case defined as qualified for position). In making a prima facie case,

      the plaintiff raises a rebuttable presumption that the defendant
      unlawfully discriminated against [him]. The burden of production
      then shifts to the defendant who must articulate a legitimate,
      nondiscriminatory reason for the adverse employment action suffered
      by the plaintiff. . . . If the defendant is able to articulate a facially
      nondiscriminatory reason for the adverse employment action, the
      plaintiff can avoid summary judgment only if [he] can show that [his
      age] was a determinative factor in the defendant’s employment
      decision, or show the defendant’s explanation for its action was
      merely pretext.

Horizon/CMS Healthcare Corp., 220 F.3d at 1191 (citations and quotations

omitted).

      The district court held that Mr. Ellison failed to prove the second prong of

his prima facie case. In doing so, the court erroneously took into consideration

Sandia’s evidence that Mr. Ellison’s work performance had declined. A

defendant’s evidence regarding an employee’s work performance should not be

considered when determining whether the employee has made a prima facie case

of employment discrimination. See MacDonald, 941 F.2d at 1119-20. See also

Horizon/CMS Healthcare Corp., 220 F.3d at 1192-93; Kenworthy, 979 F.2d at

1469-70. Rather, a plaintiff may establish his prima facie case by presenting

“credible evidence that [he] continued to possess the objective qualifications [he]

                                         -4-
held when [he] was hired, or by [his] own testimony that [his] work was

satisfactory, even when disputed by [his] employer, or by evidence that [he] held

[his] position for a significant period of time.” MacDonald, 941 F.2d at 1121

(citations omitted). The district court’s reliance on Sandia’s evidence as a means

to undermine Mr. Ellison’s prima facie case of age discrimination

      raises serious problems under the McDonnell Douglas analysis,
      which mandates a full and fair opportunity for a plaintiff to
      demonstrate pretext. Short-circuiting the analysis at the prima facie
      stage frustrates a plaintiff’s ability to establish that the defendant’s
      proffered reasons were pretextual and/or that age was the
      determining factor

for discharge. Id. Instead, such evidence is appropriately considered during the

next phase of McDonnell Douglas’ three part analysis. Thus, Mr. Ellison met the

second prong of the prima facie case.

      The district court alternatively held Mr. Ellison failed to establish that his

positions were filled by a younger person after he was demoted/terminated.

However, in a RIF situation, such as here, we apply a modified McDonnell

Douglas test for the fourth prong of the prima facie case. This is so because

       in a RIF case, the plaintiff cannot actually point to a continuing
       vacancy because her position has been eliminated. She can, however,
point to circumstances that show that the employer could have retained her, but
chose instead to retain a younger employee. In such circumstances, "lack of
vacancy" cannot explain the contested employment decision because the employer
prefers to retain a younger employee in a position for which the plaintiff is
qualified. Even though certain exigencies of RIF cases may explain the
employer's action in such circumstances, "these exigencies are best analyzed at
the stage where the employer puts on evidence of a nondiscriminatory reason for

                                         -5-
the discharge."

Beaird v Seagate Tech., Inc, 145 F. 3d 1159, 1167 (10th Cir. 1998)(footnote

omitted)(citation omitted). See also Ingels v. Thiokol Corp., 42 F.3d 616, 621

(10th Cir. 1994)(Fourth element of prima facie case “may be established through

circumstantial evidence that plaintiff was treated less favorably than younger

employees during the reduction-in-force.”)(citation omitted).

      We need not decide whether Mr. Ellison proferred sufficient evidence to

raise a fact issue on the fourth prong of the prima facie case because even

assuming that he did, we are not persuaded the district court erred in its ultimate

conclusion that summary judgment for defendants was appropriate. Having

reviewed the record presented to the district court at the summary judgment stage,

it is clear that Sandia offered legitimate reasons for the actions it took. 1 It was at

the third stage of the McDonnell Douglas test that Mr. Ellison failed to counter

Sandia’s motion for summary judgment.

      It is apparent from the brief Mr. Ellison filed in the district court in

response to the motion for summary judgment that Mr. Ellison never focused the

district court on the issue of pretext. In his response, Mr. Ellison asserted that he

had made a prima facie showing of discrimination under the ADEA, that Sandia


      1
       “The defendant’s burden at this stage is one of production, not one of
persuasion.” Horizon/CMS Healthcare Corp., 220 F.3d at 1191 (citing Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981)).

                                           -6-
lacked any reason to demote and fire him, and that disputed issues of fact

remained. He did not assert that he met the third prong of McDonnell Douglas by

raising an inference that Sandia’s reasons were pretextual.

         Even were we to read between the lines of Mr. Ellison’s summary judgment

response and pick out various factual assertions of conduct on Sandia’s part that

Mr. Ellison believes shows the illegitimacy of Sandia’s reasons for its adverse

employment actions, we are not persuaded after reviewing the record that Mr.

Ellison’s assertions constitute sufficient evidence for a jury to infer pretext. 2

         Finally, even assuming there is a cause of action under the ADEA for

hostile work environment, see McKnight v. Kimberly Clark Corp., 149 F.3d 1125,

1129 (10th Cir. 1998), the evidence Mr. Ellison has proffered does not state a

claim.

             Accordingly, the district court did not err in granting summary judgment

for Sandia. The judgment of the district court is AFFIRMED.



                                           ENTERED FOR THE COURT


                                           Stephanie K. Seymour
                                           Circuit Judge


       We note that much of the factual basis for Mr. Ellison’s argument on
         2

appeal is based on parts of the record that were not before the district court. We
have not considered this material.

                                             -7-
