                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  July 11, 2016
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 RICHARD FINNEY,

              Plaintiff - Appellant,

 v.                                                    No. 15-1140
                                                        (D. Colo.)
 LOCKHEED MARTIN                          (D.C. No. 1:13-CV-00869-MSK-NYW)
 CORPORATION,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.


      Richard Finney brought this employment discrimination action against his

former employer, Lockheed Martin Corporation. Finney alleges that his

termination was the product of (1) age discrimination in violation of the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–34, and

(2) retaliation in violation of the ADEA. Lockheed, however, claims to have fired




      *
         This order and judgment is not binding precedent except under the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.
Finney as part of a larger reduction in force (RIF) and because of Finney’s poor

work performance.

      The district court granted summary judgment for Lockheed, and Finney

appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                I. Background

      Finney worked for Lockheed as an electrical engineer for over thirty years.

Through 2008, he received positive performance evaluations for his work. In

2008, because the project on which he was staffed was nearing completion,

Finney began working part-time on the Gravity Recovery and Interior Laboratory

(GRAIL). It was on this project that Finney’s superiors began to report that his

work had deteriorated. His supervisor noted, among other things, that he was not

meeting project milestones, did not update his superiors on project statuses, and

his functional and interpersonal skills needed improvement. Finney transitioned

to a full-time GRAIL position in April 2009 in order to remain on that project.

Even so, his supervisor was displeased enough that he unsuccessfully tried to

remove Finney from the GRAIL project.

      Finney received his first negative review at Lockheed in 2009 after joining

GRAIL full-time. Lockheed uses a five-tier rating system. Employees receive

ratings from 1 for “high contributors” to 5 for “unsatisfactory.” Finney received

a 4, or “basic contributor” rating. He complained internally about this review and

also filed an age discrimination complaint with the EEOC in June 2010. But

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Finney’s supervisor thought his performance improved the following year, and he

received a 2, or “successful contributor” rating for 2010.

      After completing his work on GRAIL, Finney was referred to an open

position on the Global Positioning System III (GPS-III) program. After

interviewing Finney, David Chang, the manager of GPS-III, was concerned that

Finney was not a good fit for the project. He worried particularly that Finney did

not possess the technical skills necessary for the project. Furthermore, Lockheed

divides its engineering positions into five grades, where Grade 5 is the highest.

Chang worried Finney was not a good fit because the open position was for a

Grade 3 Engineer while Finney was a Grade 5 engineer. Because of these

concerns, Chang agreed to “borrow” Finney for a trial period to see if he could

handle the work.

      After Finney had worked on GPS for three months, Chang invited him to

apply for the open position. Chang hired him for the Grade 3 position, but, in

order to better accommodate Finney, negotiated with Lockheed for him to be

classified as a Grade 4 Senior Staff Engineer. There was no pay reduction

associated with the reclassification from Grade 5 to Grade 4 status. But in June

2011, Finney complained to Chang that this reduction in status was the result of

discrimination. He filed a second complaint with the EEOC.

      While Chang remained Finney’s overall supervisor, in 2011 Timothy

Halbrook became his immediate supervisor. Finney asked that Halbrook help him

                                         -3-
return to a Grade 5 position, the level of engineer Finney had been before GPS-

III. But Halbrook determined that Finney was not performing the work expected

of a Grade 5 engineer. Halbrook rated Finney a 4, or “basic contributor” in 2011.

Halbrook issued this rating because he saw Finney struggle to complete tasks,

some of which were overdue. After this mediocre review, Finney complained to

Lockheed’s human resources department, stating he believed it was an act of

retaliation for his earlier EEOC complaints. Halbrook placed Finney on a

Performance Improvement Plan (PIP) to improve Finney’s work and also help him

return to a Grade 5 engineer. But Finney did not complete the PIP and did not

show any improvement in his performance. Instead, Finney began looking for a

different job, and Halbrook tried to help locate a position that would be a better

fit for his skill set.

       In 2012, Lockheed implemented a RIF that ultimately resulted in 260

layoffs. As part of a plan to reduce GPS-III by thirty employees, Halbrook and

Chang decided, based on the program’s budget and needs, to eliminate one Grade

4 engineer from their team. Finney was one of the thirty-four Grade 4 engineers

on GPS-III. Of those thirty-four Grade 4 engineers Halbrook and Chang

considered for the RIF, twelve were the same age as or older than Finney. Six

were over the age of fifty-five.

       To carry out the RIF, Lockheed held what it called a Talent Differentiation

Ranking Session (TDR) to evaluate and rank employees. At the TDR, managers

                                         -4-
and supervisors of all Grade 4 engineers reviewed their employees’ performances

and then submitted the assessments to human resources. Participants rated

engineers in a number of areas, including job complexity and skill level. These

TDR scores were combined with the company’s annual employee performance

reviews and adjusted for length of service, so that more years of service resulted

in a better score. Using what was essentially a mathematical formula, Lockheed

eliminated the Grade 4 engineers with average or better than average scores from

consideration for layoff. After ranking the remaining employees, Finney had the

worst score of all Grade 4 engineers. Accordingly, Chang notified Finney that he

would be terminated if he could not find a new project at Lockheed. Because

Finney was unable to do so, he was terminated.

      In August 2012, Finney filed a third complaint with the EEOC, alleging this

time that he had been fired because of his age and in retaliation for his earlier

complaints internally and to the EEOC. After receiving a Notice of Right to Sue

in January 2013, Finney filed suit in federal court, alleging age discrimination,

hostile work environment, and retaliation for having engaged in a protected

activity. The district court entered an order granting Lockheed’s motion for

summary judgment and dismissing all claims. Finney appealed. Because he did

not raise an argument about a hostile work environment in his opening brief, we

consider that claim waived. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th

Cir. 2011).

                                          -5-
                                   II. Analysis

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

v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir. 1999). We view the evidence and

make all inferences in the light most favorable to the non-moving party. Id. In

the absence of a genuine issue of material fact, the moving party is entitled to

summary judgment. Id.

      A. Age Discrimination

      When there is no direct evidence of an employer’s age discrimination, an

employee must establish a prima facie case of discrimination in violation of 29

U.S.C. § 623(a) by showing “1) she is a member of the class protected by the

[ADEA]; 2) she suffered an adverse employment action; 3) she was qualified for

the position at issue; and 4) she was treated less favorably than others not in the

protected class.” Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1279 (10th Cir.

2010) (brackets in original); see also Beaird v. Seagate Tech., Inc., 145 F.3d

1159, 1165–66 (10th Cir. 1998) (discussing prima facie case requirements in the

RIF context).

      After an employee has satisfied his burden of establishing a prima facie

case of discrimination, the burden of production shifts to the employer “to

articulate some legitimate, non-discriminatory reason” for its termination

decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once



                                         -6-
the employer has done so, the burden shifts back to the employee to show that the

proffered reason is pretextual. Jones, 617 F.3d at 1278–79.

      A plaintiff may establish pretext by showing “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.” Jaramillo v.

Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005). In RIF cases, a

plaintiff can show pretext by “present[ing] evidence that (1) his own termination

does not accord with the RIF criteria, (2) Defendant’s RIF criteria were

deliberately falsified or manipulated in order to terminate him, or (3) that the RIF

generally was pretextual.” Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d

1186, 1193 (10th Cir. 2006).

      Lockheed does not dispute that Finney was in a protected group and was

discharged, satisfying the first and second elements of a prima facie case.

Lockheed disagrees, however, that Finney’s work was satisfactory or that he was

treated less favorably than younger employees. For purposes of this appeal, we

will assume without deciding Finney has met the third element based on his

subjective views about the adequacy of his work performance. See MacDonald v.

E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1121 (10th Cir. 1991) (finding an

employee may satisfy the third element by testifying his work was adequate, even

                                         -7-
if disputed by the employer). And because younger employees were retained, we

will also assume without deciding he met the fourth element.

      Turning to the question of whether Finney has shown any evidence of

pretext, we agree with the district court and conclude that he has not. First, as

Lockheed points out, it went through numerous reductions in force during the

2008 to 2012 time frame because of challenging economic circumstances. The

2012 RIF in general is a neutral, non-discriminatory reason for Finney’s

termination.

      Finney makes several arguments that the RIF criteria and process were

pretextual. He argues that the RIF was overly subjective and manipulated by his

supervisors to give him the worst ranking. He also contends Halbrook produced

an inaccurate 2011 annual performance review that undermined his chances of

being retained. We disagree.

      First, as to whether Halbrook and Chang deliberately manipulated the RIF

process to target Finney, we see no genuine issue of material fact pointing to

pretext. Lockheed went through a number of RIFs during the years in question,

so Finney cannot claim his supervisors were responsible for manipulating the

2012 RIF evaluation criteria. Nor does Finney provide any evidence he was

specifically targeted for termination. The only evidence about why Finney’s

group was selected for the RIF was because the GPS-III program had so many

Grade 4 engineers that losing one would not undercut the program’s mission.

                                         -8-
      Second, Finney has not produced any evidence showing the TDR process

was flawed or overly subjective. It relied on a combination of performance

scores, seniority, and skills assessments deemed important to the success of the

GPS-III program. Finney presents no evidence of bias on the part of the TDR

participants who conducted the evaluation and ranked Finney last on a numerical

scale applied to every engineer. It is worth noting twelve of the other engineers

considered were the same age or older than he was at the time. In fact, six

engineers were over the age of fifty-five at the time of the RIF.

      Third, although Finney claims Halbrook sent a negative email to TDR

participants to influence their evaluations, the email he points to was sent the day

after the TDR session, so it could not have possibly influenced the decision to

terminate Finney.

      Next, Finney contends that Halbrook ensured Finney’s termination by

giving him a negative performance review in 2011 based on inaccurate

information. Finney argues Halbrook ignored previous positive performance

reviews and erroneously relied on other employees’ observations. But even if

Finney’s claims are correct, so long as Halbrook honestly believed Finney’s

performance was below average, his review is not evidence of age discrimination.

Pippin, 440 F.3d at 1196–97. In examining whether a negative review is

pretextual, we examine “the facts as they appear to the person making the

decision[,] not the plaintiff’s subjective evaluation of the situation.” Lobato v.

                                         -9-
N.M. Env’t Dep’t, 733 F.3d 1283, 1289 (10th Cir. 2013) (brackets in original).

Even a mistaken understanding can be a legitimate, nondiscriminatory reason for

discharge, so long as the decision maker honestly believed in his mistaken

understanding. Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007). Finney

presents no evidence showing Halbrook gave Finney a bad performance review

when he thought Finney deserved a better one. And, in any event, the

performance review was only one part of the overall TDR process that ranked

Finney worst of all Grade 4 engineers.

      Finney also points to an email in March 2012 in which Halbrook expressed

a desire to move Finney from the GPS-III project, which Finney claims was a

result of age-related complaints. But reviewing the March 2012 email in context,

it shows only that Halbrook believed Finney was insubordinate in deliberately

failing to comply with Lockheed’s requirement that all employees complete a

goals assessment statement.

      Lastly, Finney contends that Chang violated Lockheed policy by failing to

identify another job for Finney within the company. This argument is waived.

Finney’s argument “was so cursory that the district court did not even address it,”

so we do not have any “obligation to address it at all.” Martin Marietta

Materials, Inc. v. Kan. Dep’t of Transp., 810 F.3d 1161, 1173 (10th Cir. 2016).

And even if we did address it, nothing in the record supports an inference of




                                         -10-
Chang’s age-related bias. In fact, Chang hired Finney for the GPS-III project

when Finney was already a member of a protected class based on age.

        In sum, none of the evidence proffered by Finney evinces age-related

animus. Without a showing of pretext or evidence that he was discriminated

against based on his age, Finney cannot prevail on a claim of age discrimination.

The district court did not err in granting summary judgment on the age

discrimination claim.

        B. Retaliation

        Finney also contends he was terminated in retaliation for complaints he

made, both to Lockheed internally and to the EEOC.

        The ADEA prohibits an employer from retaliating against an employee

because he “has opposed any practice made unlawful” by the statute, or because

he “has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or litigation” under the statute. 29 U.S.C. § 623(d).

Finney bears the initial burden of establishing a prima facie case of retaliation.

To do this, an employee must show: “(1) he or she engaged in protected

opposition to discrimination; (2) a reasonable employee would have found the

challenged action materially adverse; and (3) a causal connection exists between

the protected activity and the materially adverse action.” Piercy, 480 F.3d at

1198.




                                        -11-
      Like discrimination claims, retaliation claims are evaluated under the

familiar McDonnell Douglas burden-shifting framework. See id. at 1198. After a

prima facie showing has been made, the burden shifts to the employer to provide

a legitimate nondiscriminatory reason for the adverse employment action. Id. If

the employer does so, the burden shifts back to the employee to show that this

reason is merely pretext for retaliation. Id. The key inquiry at this point is

“whether the plaintiff has demonstrated that the employer’s action occurred under

circumstances which give rise to an inference of unlawful discrimination.”

Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006)

(alterations omitted). The district court found no evidence of retaliatory animus

or pretext.

      Lockheed does not contest that Finney satisfied the first two elements of

his prima facie case. It does contend, however, that Finney has not shown a

causal connection between his complaints of age discrimination and his

termination. Finney contends that the close proximity between his complaints and

his firing establish causation. First, Finney points to a March 2012 email he sent

to Halbrook mentioning his EEOC complaints and his views about Lockheed’s

treatment of older employees. Two days after that email, the TDR that led to

Finney’s termination occurred.

      We have recognized temporal proximity between an employee’s protected

conduct and an employer’s adverse action as sufficient to justify an inference of

                                         -12-
causation, but only if “the termination is very closely connected in time to the

protected activity.” Id. Given the proximity between Finney’s email and the

termination, we assume for our purposes that Finney has established a prima facie

case.

        But Finney must also show Lockheed’s articulated non-retaliatory rationale

is pretextual. “To raise a fact issue of pretext,” our cases explain that the

employee must “present evidence of temporal proximity plus circumstantial

evidence of retaliatory motive.” Id. at 1172. Finney points primarily to the email

that Halbrook sent to Chang stating that Finney should be removed from the GPS-

III team “ASAP.” But in context, it is clear Halbrook is not referencing Finney’s

complaints, nor does the email demonstrate any retaliatory motive—it plainly

calls out Finney’s refusal to comply with Lockheed’s self-evaluation program. 1

And, in any event, the email was sent after the TDR session, so it cannot be

evidence the TDR evaluators retaliated against Finney during that session.

        Finney finally contends the fact that he received the worst rating of all

employees considered for the RIF in every single category proves there was a

concerted effort to target him for termination. But as we explained above, the

        1
         That email reads: “[Finney] is clearly not interested in improving his
performance and helping the GPS program. Rather, he is myopically interested in
the rewards that come from solid performance . . . . As such, I will not approve
his Commitments unless directed otherwise and would like to remove him from
our team ASAP. His conduct is insubordinate and his continued presence on
GPSIII is not fair to those that have performed well but are moving off because of
the directed headcount reductions.” Aplt. Appx. Vol. V at 774.

                                          -13-
TDR process was neutral and similarly situated employees both younger and older

than Finney were retained by Lockheed. Without evidence otherwise linking his

poor ratings to protected conduct, Finney cannot succeed on his retaliation claim.

                                III. Conclusion

      For the foregoing reasons, we AFFIRM the judgment of the district court.

                                                   ENTERED FOR THE COURT

                                                   Timothy M. Tymkovich
                                                   Chief Judge




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