                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                  DEC 3 2003
                            FOR THE TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

    JAMES KASTER,

                Plaintiff-Appellant,

    v.                                                     No. 02-3386
                                                   (D.C. No. 01-CV-2190-JWL)
    SAFECO INSURANCE COMPANY                                (D. Kan.)
    OF AMERICA,                                       (212 F. Supp. 2d 1264)

                Defendant-Appellee.


                             ORDER AND JUDGMENT             *




Before TYMKOVICH , HOLLOWAY , and ANDERSON , Circuit Judges.



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

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.

         Plaintiff seeks review of the district court’s order granting defendant’s

motion for summary judgment.       See Kaster v. Safeco Ins. Co. of Am.      ,


*
      This order and judgment is not binding precedent, except under the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.
212 F. Supp. 2d 1264, 1279 (D. Kan. 2002). We have jurisdiction under

28 U.S.C. § 1291, and we affirm. We review the district court’s decision de

novo, employing the same standard as the district court.    Amro v. Boeing Co. ,

232 F.3d 790, 796 (10th Cir. 2000). Summary judgment is appropriate if no

genuine issue as to any material fact is in dispute and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c).

       Plaintiff sued his former employer, Safeco, for employment discrimination

in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34.

He contends that Safeco failed to promote or transfer him to an open position

after Safeco acquired plaintiff’s previous employer, American Insurance Co. of

America. Ultimately, Safeco closed the office at which plaintiff worked and

terminated his employment.

       In an age-discrimination action, the court follows the familiar

burden-shifting requirements of    McDonnell Douglas Corp. v. Green      , 411 U.S.

792 (1973). Under this framework, a plaintiff must first establish a prima facie

case of discrimination.   Id. at 802. Once plaintiff does so, the defendant must

provide nondiscriminatory reasons for its actions.     See Anaeme v. Diagnostek,

Inc., 164 F.3d 1275, 1279 (10th Cir. 1999). At that stage, plaintiff may resist

summary judgment only if he can present evidence that the defendant’s reasons

are pretextual (unworthy of belief) or can introduce evidence of discriminatory


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motive. Danville v. Reg’l Lab. Corp. , 292 F.3d 1246, 1250 (10th Cir. 2002).

“Pretext can be shown by such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted non-

discriminatory reasons.”    Id. (quoting Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323

(10th Cir. 1997) (internal quotation omitted)). In evaluating his showing of

pretext, the Court considers the evidence as a whole.   Id.

      Plaintiff alleges that he was not promoted (1) to any of Safeco’s thirteen

Regional Personal Business Manager (PBM) positions in 1997, (2) to any of three

later PBM positions in 1998 and 1999, or (3) to an administrative services

manager position in 1999. He further contends that Safeco failed to place him in

any available position, although he does not specify a particular position he

claims should have been his. Plaintiff also challenges Safeco’s failure to transfer

him to any Territory Manager position (again without naming a specific position),

even though transfer to Territory Manager would have been a demotion. Finally,

plaintiff claims Safeco terminated him on the basis of his age.

      The district court fully considered all of plaintiff’s arguments. The court

found that claims regarding promotion and selection decisions prior to November

of 1998 were time-barred because plaintiff failed to file timely an administrative


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charge with the EEOC.      Kaster , 212 F. Supp. 2d at 1268-69. The court further

determined that plaintiff was not entitled to an additional period of time under the

doctrine of equitable tolling because there was no evidence that any of Safeco’s

actions were intended to delay plaintiff’s filing of a discrimination charge.    Id. at

1269-70.

       The district court held that plaintiff had failed to establish a prima facie

case of discrimination based on Safeco’s failure to transfer him to an unidentified

“available” position or to a Territory Manager position.       Id. at 1271-73. The

court assumed without deciding, however, that plaintiff had established a prima

facie case of discrimination with respect to three specific post-November 1998

selection decisions.   Id. at 1271. Considering Safeco’s reasons for the persons

selected, the court determined Safeco had provided nondiscriminatory reasons for

those selections.   Id. at 1273. The district court then determined that plaintiff had

failed to demonstrate that the reasons offered by Safeco for its decisions were

pretextual, i.e. , unworthy of belief.   Id. at 1274-78.

       With regard to plaintiff’s final contention, that Safeco terminated his

employment based on his age, the district court found this claim duplicative of the

earlier failure to transfer/failure to promote claims because plaintiff

acknowledged that the closing of the office where he worked was a legitimate

business decision, not an effort to eliminate plaintiff’s job or the jobs of older


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workers. Thus, the court concluded plaintiff had failed to present evidence

sufficient for a reasonable jury to conclude Safeco’s employment decisions were

age-related. Id. at 1279.

      On appeal, plaintiff raises the same arguments considered and decided by

the district court. Upon review of the district court’s thorough and careful

consideration of the issues, we are in agreement with that court’s holdings.

Accordingly, the judgment of the district court is AFFIRMED for substantially the

same reasons stated by the district court. Safeco’s motion to dismiss the appeal is

denied.



                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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