                       UNITED STATES COURT OF APPEALS

                                 FOR THE TENTH CIRCUIT



 STEVEN P. JACKSON,

        Plaintiff - Appellant,

 v.                                                            No. 05-1100
                                                                (Colorado)
 NTMEDIA, LLC., a Delaware                         (D. Ct. No. 02-CV-1259-PSF-BNB)
 corporation, dba Westword,

        Defendant - Appellee.



                                         ORDER
                                    Filed April 24, 2007


Before O’BRIEN, EBEL and TYMKOVICH, Circuit Judges.


       This matter is before the court, sua sponte, to recall the mandate issued originally

on August 23, 2006 and to issue an amended decision. The amended Order & Judgment

is reissued nunc pro tunc to August 1, 2006. A copy of the amended decision is attached

to this order, and shall replace the previous Order & Judgment. The mandate shall reissue

forthwith.

                                          Entered for the Court


                                          ELISABETH A. SHUMAKER
                                          Clerk of Court
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 1, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

 STEV EN P. JA CK SO N ,

          Plaintiff - Appellant,

 v.                                                        No. 05-1100
                                                           (Colorado)
 NTM EDIA, LLC., a D elaw are                   (D.Ct. No. 02-cv-1259-PSF-BNB)
 corporation, dba W estword,

          Defendant - Appellee.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before O’BRIEN, EBEL, and TYM KOVICH, Circuit Judges.




      In September 2001, Steve Jackson’s employment with W estw ord, a w eekly

newspaper published in Denver, Colorado, was terminated due to a reduction in

force (RIF). He filed an age discrimination claim against his employer, NTM edia

(NT), W estword’s corporate owner. Prior to trial, the district court granted a

motion in limine to exclude one of Jackson’s witnesses, a former editor at NT’s

Phoenix, Arizona, publication, concluding the testimony was irrelevant or, in the



      *
          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.
alternative, any relevance was outweighed by its possible prejudicial effect or its

potential to confuse the jury. At the close of Jackson’s evidence at trial, the court

granted NT’s M otion for Judgment as a M atter of Law pursuant to Rule 50(a) of

the Federal Rules of Criminal Procedure. Specifically, it ruled Jackson failed to

present sufficient evidence to support a conclusion that age was a determinative

factor in his termination. On appeal, Jackson claims the district court erred in

excluding his most important witness and in removing his claims from the jury’s

consideration. W e exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

I.     Background

       Jackson began working for NT’s W estword in 1993. During his tenure he

was supervised by Patricia Calhoun, founder of W estw ord. 1 W hile it is

undisputed Jackson was an accomplished writer, he often failed to meet deadlines.

On September 27, 2001, Calhoun and Andy Van de Voorde (corporate executive

associate editor) met with Jackson to inform him that his position was being

eliminated due to a company-wide downsizing. At that time, Jackson was forty-

six years old and the oldest full-time feature writer at W estword. 2 No reason was

given for his selection as part of the RIF at that time, nor did he ask for one. H e


       1
       Calhoun founded Westword in 1977 and in 1983, sold it to NT while she
remained on as an editor.
       2
        The feature writers who could have been selected from the Westword staff for
inclusion in the RIF and their corresponding ages were: S.J. (age 46), A.P. (age 45), S.S.
(age 41), E.D. (part-time) (age 40), H.F. (age 39), D.H. (age 30), J.H. (age 29), T.W. (age
28) and J.J. (age 26).

                                            -2-
was not offered a transfer or other accommodation as an alternative to being laid

off.

       At the time of Jackson’s termination, NT owned thirteen new spapers

nationally, having branched out from its original Phoenix-based operations. N T

was founded by M ike Lacey, head of the editorial staff and based in the Phoenix

publication offices, and Jim Larkin, head of the business operations. Next in

NT’s editorial corporate hierarchy were Christine Brennan (executive managing

editor) and Andy Van de Voorde, both based in W estword’s Denver office.

       Prior to the RIF, NT had made several economic adjustments to address its

depressed revenues, such as budget cuts and a wage freeze in the spring of 2001.

Some time shortly before mid-September 2001, NT determined it would reduce

the number of feature stories in its new spapers from two to one per issue. As a

result, fewer feature writers were necessary. Lacey designated the task of

eliminating unnecessary feature writer positions to Brennan, who calculated the

number of positions to be eliminated at each of NT’s papers due to the changed

format. Brennan then notified each of the local editors the number of feature

writers to be reduced from the staff.

       On September 21, 2001, Calhoun attended a conference at which Lacey was

a scheduled speaker. W hile there, Lacey told Calhoun that there might be layoffs

in D enver and instructed her to contact Brennan when she returned to Denver. A t

trial, Calhoun testified she did not speak with Lacey regarding the downsizing

                                         -3-
further. Rather, on September 24, she spoke with Brennan who informed her

W estword must eliminate two positions. Calhoun testified she alone determined

Jackson and twenty-eight year old T.W . would be laid off. 3 Thereafter, Brennan

told Calhoun she needed to further reduce staff, resulting in Calhoun’s decision to

eliminate the part-time feature writing position of E.D. (age 40) while he

continued in his part-time position of sports writer.

       Almost immediately after Calhoun terminated T.W .’s employment, the

editor at NT’s Kansas publication asked T.W . if he would like to fill an open

position there. T.W . accepted. Calhoun had no knowledge of the offer at the

time she determined W itcher w ould be included in the RIF.

       In December 2001, Brennan informed Calhoun an additional position

needed to be eliminated. In response, Calhoun terminated full-time feature

writer, J.H., (age 29). J.H. had formerly worked at NT’s Phoenix paper but in

April 2001, had requested a transfer to W estw ord to fill an open position.

Because J.H. agreed to finish some stories in Phoenix, he did not actually begin

working in the Denver offices until August 2001 and had not submitted his first

feature story to W estword at the time of the first RIF.

       Jackson filed suit against NT alleging age discrimination on July 1, 2002,

       3
         At trial, this testimony was challenged with an affidavit Calhoun submitted
earlier in the litigation indicating the decisions regarding the personnel to be laid off were
made by Calhoun, Brennan and Lacey. Jackson alleges this inconsistency raises a
question of fact regarding who actually made the decision to fire him and consequently,
evidence of corporate behavior at any of NT’s publications is relevant to his claims.

                                             -4-
after exhausting his administrative remedies with the Equal Opportunity

Employment Commission. On M arch 3, 2003, NT filed a motion for summary

judgment. The district court denied the motion on October 21, 2003. Prior to

trial, Jackson intended to offer evidence of corporate age bias through the

testimony of Patty Epler, an editor of NT’s Phoenix newspaper from July 1997 to

April 2004. NT filed a motion in limine to prohibit Epler’s testimony. The

motion was denied without prejudice and the parties scheduled Epler’s deposition.

      On the first day of the jury trial, January 24, 2005, NT filed a supplemental

motion in limine to prohibit Epler’s testimony based on the information obtained

at her deposition. The district court conditionally granted the motion, ruling the

testimony lacked a connection to the decisions regarding Jackson and, in the

alternative, held its potential for unfair prejudice outw eighed its probative value.

F ED . R. E VID . 403. See Heno v. Sprint/United M gmt. Co., 208 F.3d 847, 857 (10th

Cir. 2000) (discussing exclusion of evidence under Rule 403 in the employment

discrimination context). However, the court ordered Jackson to submit an offer of

proof in writing. Jackson did so the next day and orally moved for

reconsideration. The district court denied his request. On January 27, 2005,

Jackson completed his presentation of evidence. NT moved for judgement as a

matter of law pursuant to Rule 50(a). The district court granted NT’s motion and

this timely appeal followed.




                                          -5-
II.   Discussion

      On appeal, Jackson claims the trial court improperly made credibility

determinations and weighed the evidence in NT’s favor when granting the motion

for judgment as a matter of law . Jackson also maintains the trial court erred in

prohibiting the testimony of his pivotal w itness, Patty Epler, who was allegedly

able to establish a corporate-wide age bias affecting the 2001 RIF decisions. W e

address each of his claims in turn.

      A.     Judgment As a M atter of Law

      W e review de novo the grant of a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing, 530 U.S. 137, 150 (1997). W e review all of the

evidence in the record, drawing all reasonable inferences in favor of the

nonmoving party, without making credibility determinations or weighing the

evidence. Id. “Thus, although the court should review the record as a whole, it

must disregard all evidence favorable to the moving party that the jury is not

required to believe.” Id. In other words, we will give credence to "evidence

supporting the moving party that is uncontradicted and unimpeached, at least to

the extent that that evidence comes from disinterested witnesses.” Id. (quotation

omitted).

      “W hether judgment as a matter of law is appropriate in any particular case

will depend on a number of factors.” Id. at 148. “Those include the strength of

the plaintiff's prima facie case, the probative value of the proof that the

                                          -6-
employer’s explanation is false, and any other evidence that supports the

employer's case and that properly may be considered on a motion for judgment as

a matter of law.” Id. at 148-49. However, once the case is before the jury,

whether a prima facie case of age discrimination was actually made is irrelevant

except to the extent its strength bears upon the ultimate question: “whether

plaintiff has produced enough [credible] evidence to persuade the trier of fact that

defendant acted with discriminatory intent and that such intent caused plaintiff’s

injury.” Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 528 (10th Cir. 2000).

      A prima facie case in an age discrimination suit involving a RIF requires

the plaintiff to show: (1) he was within the protected age group, (2) he was doing

satisfactory work, (3) he was discharged from his position despite the adequacy of

his work, and (4) he was treated less favorably than younger employees during

the RIF. Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998). It

is undisputed that Jackson was in the protected age group (forty or older) and was

qualified for his job. The dispute centers on whether Jackson presented sufficient

evidence to allow the jury to determine that NT’s justification for its decision to

lay-off Jackson is merely pretextual — an excuse designed to disguise NT’s true

intent, age discrimination.

      Jackson argues the trial court usurped the jury’s function by resolving

material questions of fact raised by: (1) Calhoun’s allegedly conflicting

testimony regarding who had input regarding the individuals chosen for the RIF at

                                          -7-
W estw ord; (2) evidence that, generally, a failure to meet deadlines w as not a

cause for termination, (3) Brennan’s allegedly inconsistent testimony regarding

her knowledge of the financial impetus for the RIF, and (4) evidence of

preferential treatment of younger employees at W estword and NT. Jackson

contends that the cumulative effect of this evidence allows a reasonable inference

that Jackson’s position was actually eliminated because of his age.

              (1)    Calhoun’s Testimony Regarding the RIF Process

       Jackson contends Calhoun’s pre-trial affidavit testimony regarding

Brennan and Lacey’s involvement in the layoff decision conflicts with her

statement at trial that she alone determined the individuals to be included in the

RIF. He maintains this conflict required the jury’s determination regarding

Brennan and Lacey’s role in Jackson’s termination. The portions of the affidavit

at issue are as follow s:

       ¶ 9.   O n September 21, Executive Editor M ichael Lacey and I first
              discussed corporate layoffs. On September 24, M r. Lacey
              advised m e that W estw ord needed to eliminate tw o and a half
              writer positions from its staff.
       ...

       ¶ 13. The individuals who decided which w riters would be laid off were
             myself, age 47, Christine Brennan, Executive M anager Editor, age
             48 and M ichael Lacey, Executive Editor, age 54.”

       ¶ 14. O n September 25, 2001, M r. Lacey, M s. Brennan and I decided
             that T .W . and M r. Jackson would be laid off and E.D. would
             move to a half-time position. W e reassigned E.D. to a half time
             position in sports writing, eliminating his half time position as a
             staff writer.


                                          -8-
(A ppellant’s Appx. Vol. I at 36-37.)

       At trial, Calhoun testified Lacey told her the newspaper format would

change causing a reduction in personnel and it was Brennan who supplied the

number of positions W estw ord must eliminate. M oreover, Calhoun unequivocally

testified that she alone decided which of her feature writers w ould be included in

the R IF. B ecause this discrepancy lies at the heart of Jackson’s claims, we

reiterate the relevant trial colloquy here. The questioning regarding ¶ 9 was as

follow s:


       Q.    M s. Calhoun, you just said in your testimony that it was not
             M r. Lacey who reported to you three days after September 21st
             that you needed to eliminate two-and-a-half writer positions
             from its staff. Isn’t that what your testimony was?

       A.    M y testimony was he told me to talk to Christine Brennan,
             who was working with M r. Lacey. So through M r. Lacey,
             Christine Brennan told me how many positions I had to
             eliminate.

       Q.    And that is not what the second sentence of paragraph 9 says,
             is it?

       A.    It says, “M r. Lacey advised me.” He advised me through
             Christine Brennan.

       Q.    It doesn’t say that, does it?

       A.    No, it says “M r. Lacey advised me.”

(Appellant’s Appx. Vol. III at 579.) The questioning continued, turning to the
statements in ¶¶ 13 and 14.


       Q.    And the individuals who then went forward and decided who
             was going to be laid off were Christine Brennan and M r.

                                             -9-
             Lacey; is that right?

      A.     No. I decided which individuals were going to be laid off.
             Christine, working with M ike Lacey, decided how many
             positions I need[ed] to eliminate.

      Q.     That differs from paragraph 13 in this affidavit, doesn’t it?

      A.     It differs a little bit. But this is just a shorter sentence. The
             overall layoffs were decided by the three of us. They decided
             the number, and I decided the personnel.
      ...

      Q.     And then on September 25th, M s. Brennan, M r. Lacey and you
             decided T.W. and M r. Jackson would be laid off, and that E.D.
             would move to a half-time position. Is that what happened?

      A.     Yes.

(Id. at 579-81.) By granting judgment as a matter of law, Jackson claims the trial

court impermissibly resolved the “glaring inconsistency.” (A ppellant’s Br. at 20.)

Specifically, Jackson takes issue with the trial court’s conclusion that the

uncontradicted evidence established the decision regarding individual employees

during NT’s 2001 RIF w as made locally, not globally, and “there was no evidence

that either Lacey or Brennan directed [Calhoun] to terminate the plaintiff.”

(A ppellant’s Appx. Vol. IV at 857.)

      In addressing the disparity between Calhoun’s affidavit and her trial

testimony, the district court stated:

      The affidavit, Exhibit 64, is a bit troublesome. And perhaps it was
      ghost written by counsel for other purposes or perhaps [for] some other
      reason. But it can be explained as focusing on the ages of the three
      executives who made all the pertinent lay-off decisions; both the
      number of the positions, I guess were made by M r. Lacey, [w ith] M s.


                                         -10-
      Brennan deciding the numbers, as well as the identity of the particular
      individuals to be laid off . . . ., [the decision] made by the individual
      editors.

(Id. at 863-64.)

      The question here is whether the trial court weighed the evidence or

evaluated Calhoun’s credibility to reach its decision. W e conclude it did not.

W hile the statement in the affidavit, without explanation, could be interpreted in

different ways, Calhoun’s trial testimony and her explanation of the affidavit’s

averments are not inconsistent with the evidence. But for his interpretation of the

affidavit, Jackson presented no evidence at trial demonstrating Calhoun’s

explanation of the decision-making process was false or that she was influenced

by Brennan or Lacey while she made the decision to choose Jackson’s position for

elimination. 4 As a result, the district court did not need to weigh evidence or



      4
        Moreover, the record as a whole leaves no doubt Calhoun’s testimony was
consistent. Prior to Calhoun’s affidavit, Jackson took the depositions of both Calhoun
and Brennan. Each testified Brennan supplied the number of positions that had to be cut
at each newspaper and each local editor chose the individual positions to be eliminated.

      Perhaps most telling is Jackson’s opposition to NT’s motion for summary judgment
— written after the affidavit was submitted. In his opposition to summary judgment,
Jackson asserted as an undisputed fact:

      Brennan determined how many writer positions would be eliminated,
      communicated to each editor how many people they would need to lay-off,
      and gave each individual editor the responsibility for determining which
      writers would be laid off at their paper.

(Appellant’s Appx Vol. I at 80, ¶ 15.) Jackson fails to point to any subsequent evidence
which would contradict his own statement.

                                           -11-
determine credibility in order to credit Calhoun’s testimony that she alone

decided Jackson would be included in the RIF.

      (2)    Pretextual Reason For Termination

      Jackson argues he presented sufficient evidence that Calhoun’s proffered

reason for including him in the RIF, his difficulty with deadlines, was merely

pretext. “The factfinder is entitled to infer from any weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

reasons for its action that the employer did not act pursuant to those reasons.”

Whittington v. Nordam Group, Inc., 429 F.3d 986, 993 (10th Cir. 2005) (quotation

omitted). “A showing that the employer's justifications for its behavior are

pretextual permits a finding of intentional discrimination.” Id. (quotation

omitted).

      Calhoun testified she chose Jackson to be part of the RIF because his past

difficulties in meeting deadlines would pose a significant problem under the new

format; “If you don’t have a story coming in when you are expecting it, you have

to scramble to fill the hole that emerges . . . .” (Appellant’s Appx. Vol. III at

630.) At trial, Jackson conceded he missed deadlines and there were occasions

when Calhoun had to find another story to publish as a replacement for his

unsubmitted feature. He further admitted he had conversations w ith Calhoun in

which she told him he had created problems for her and the paper because he

failed to submit a story on time. Nonetheless, he claims the trial court weighed

                                          -12-
evidence by ignoring his testimony that he and Calhoun had an arrangement

which allowed this flexibility and testimony that all W estword writers missed

deadlines. Jackson further maintains NT’s failure to terminate other writers for

missing deadlines is evidence that NT did not uniformly enforce its rules,

“thereby raising the inference that [the employer] selectively enforced its rules

against [the plaintiff] and that the rules were but a pretext to mask age

discrimination.” (A ppellant’s Br. at 24 (quotation omitted).)

        W hile it may be true that other writers missed deadlines, Jackson fails to

address uncontradicted evidence that his deadline problem w as more severe than

the other writers at W estword. Calhoun testified Jackson missed his deadlines

“[m]ore often than not,” “sometimes . . . by a day or two, and sometimes . . . by

considerably more than that.” (Appellant’s Appx. Vol. III at 624.) Calhoun

stated “[w]riters loved to miss deadline[s], [but] . . . [u]sually it is by maybe an

hour, maybe a day, maybe two days in the wors[t] possible case.” (Id. at 625.)

She further testified that Jackson was the only W estword writer who missed a

deadline by weeks “unless something extremely unusual came up, like an illness.”

(Id.)

        W hile Jackson testified two other W estw ord writers “rarely turned in

articles” and had difficulty coming up with story ideas, this testimony did not

create a question of fact. He failed to present any evidence that the shortcomings

of these other writers had resulted in the same type of problems he admittedly

                                          -13-
caused by failing to miss his deadlines. Given the uncontradicted testimony that a

writer’s reliability became even more essential after the format change, the

district court did not need to weigh evidence to conclude the jury would have no

choice but to find NT presented an uncontradicted legitimate business reason for

including Jackson’s position in the RIF.

      (3)    Brennan’s Explanation of Financial Necessity for the RIF

      Jackson claims Brennan’s false testimony at trial regarding the financial

impact on NT caused by the events on September 11, 2001, raised an inference

“that the employer is dissembling to cover up a discriminatory purpose.”

(Appellee’s Br. at 19 (quotation omitted).) He contends Brennan’s trial testimony

created a blanket credibility question allowing an inference that NT used the R IF

to terminate older workers. Brennan’s relevant testimony is as follow s:


      Q:     [D]uring these reductions in force, you had M r. Lacey’s ear about
             who he should get rid of; is that true?

      A:     M r. Lacey did not give me any input on the layoffs. He asked me
             to – he told me we – after September 11th, we made the decision
             that we would reduce our papers from a two-feature format to a
             one-feature format. And that meant that we had to reduce the
             number of staff people we had in our employ. And he gave me
             that assignm ent, and he said, “make this happen, and make it
             happen as quickly as possible.”

      Q:     He told you somewhere around September 21st; right?

      A:     No. He told me that right after September 11th.

      ...



                                           -14-
      Q:    And the criteria that you comm unicated to [the local editors] was
            what?

      A:    I told them that because of the poor economy, because w e w ere
            losing so many revenues, sales revenues, that we had to make the
            very difficult decision to sw itch from a two-feature to a one-feature
            format, and that consequently they had to reduce their staffs. And
            that was a different number for every paper. But I told them how
            many people they had to downsize.
      ...

      Q:    August of 2001 w ould be long before you knew there would be layoffs?

      A:    W ell, we couldn’t predict that September 11th would happen.           We
            couldn’t predict that our financial world would collapse.

      Q.    So is it your testimony that your financial world collapsed with 9/11?

      A:    Absolutely.

      ...

      Q:     [W ]hat other immediate effects on the newspapers did the 9/11
            tragedy cause?

      A:    W ell, almost immediately, the biggest impact was national
            advertising.   Sales, national advertising almost instantly
            plummeted after 9/11 . . . .

      Q:    W hat kind of decrease was there in the national ad revenue after
            9/11?
      ...

      A:    I am told that national sales, national revenues at our papers
            dropped more than 50 percent.

(A ppellant’s Appx. Vol. IV at 688-89, 695, 702, 746-47.)

      Later in her testimony, Brennan was asked about when she learned of the

September 2001 national figures. She replied that the financial officer had told

her the week before trial. The questioning continued:

                                        -15-
       Q:     So in September of 2001, when these layoff happened, you had no
              idea what was happening with the national sales figures, since you
              really didn’t know anything about them?

       A:     I didn’t know the figures. I only knew things were very, very
              bad.

       Q:     So, certainly, since you were the one that is going through your
              – getting these budgets together, figuring out what reductions to
              do, you had no access to the information you just learned a week
              ago, did you?

       A:     I had no access to the percentage. Of course, I relied upon the
              CFO of the company to tell me what the state of the company
              was. And he has always been honest and straightforward with
              me. I had no reason to doubt him.

(Id. at 778.) Jackson asserts the latter testimony conflicts with the earlier

testimony regarding “what [NT] actually knew about its financial condition when

it began the lay-offs,” and therefore, “[t]he jury should have been allowed to

decide whether Defendant took advantage of a tragedy to rid itself of older

workers . . . .” (A ppellant’s Br. at 5, 19.)

       A careful review of the record reveals Brennan’s testimony was consistent

and raised no inference of pretext. She stated she was told to reduce costs

through other budgetary measures between the Spring and Fall of 2001. In spite

of those efforts, the company continued to feel a financial downturn. She

testified she was also aware that events of September 11, 2001, created increased

financial pressure. As a result of this pressure, she was told to calculate the

number of personnel to be laid off at each new spaper under a new format. There

is no evidence Brennan should have known specific account information at the

                                           -16-
time she completed the task assigned to her in September 2001. W hile her

testimony regarding what she had been told about NT’s financial information just

prior to trial may have been foundationally questionable, it did not conflict w ith

any earlier testimony or raise an inference that NT used the September 11th

tragedy to lay off older employees.

      (4)    Evidence of Favoritism to Y ounger W orkers

      Jackson maintains he presented sufficient evidence of favoritism to younger

workers in both the decisions to hire younger writers just prior to the RIF and in

the decisions to transfer rather than fire younger writers after the RIF. He also

claims J.H. should have been the candidate for the September 2001 RIF rather

than himself.

             (a)    Hiring younger w riters just before the RIF.

      Jackson argues the trial court disregarded evidence that younger employees

were hired at W estword and other NT newspapers shortly before the RIF, even

though there was a wage freeze and a de facto hiring freeze in place throughout

N T’s holdings at the time. Jackson points to the hiring of J.H. (age 29) and D.H.

(age 30) at W estw ord and S.B. (age 26) in Phoenix. These hires, according to

Jackson, raised an inference of a plan to staff W estword (and other NT

newspapers) w ith younger w riters while trimming older w riters from its ranks.

      Jackson again ignores the uncontradicted testimony that each of these

employees were hired to fill positions that had been open since late 2000 and

                                         -17-
April 2001, long before the necessity of a R IF was known. “The fact that [NT’s]

managers were hiring before they learned of the RIF is irrelevant to proving that

the RIF w as pretextual.” Doan v. Seagate Tech., Inc., 82 F.3d 974, 977 (10th Cir.

1996). In addition, there is no evidence that any of these employees received a

raise as a result of accepting an existing position. The law does not require

employers to lay off based on seniority or to reverse transfer decisions after the

need for layoffs becomes known. Id. Therefore, NT’s decision to hire or transfer

these employees at the same rate of pay prior to the RIF decision does not raise an

inference of discrimination.

             (b)    Favoritism Toward J.H.

      Jackson also contends the jury should have been permitted to consider

whether Calhoun should have selected J.H for the September 2001 RIF because

Calhoun offered contradictory testimony as to why he was not considered and

there was evidence demonstrating J.H. had serious ethical issues. Calhoun

testified that she did not consider J.H. for the RIF in September 2001, because he

had not yet turned in his first feature story at W estword. In the notorious

summary judgment affidavit, Calhoun stated, “M r. Lacey, M s. Brennan and I later

decided that J.H. would be laid off when he completed work already in progress.”

(Appellant’s Appx. Vol. I at 37 (emphasis added).) Once again, the affidavit does

not conflict with the testimony. Indeed, it supports Calhoun’s testimony that she

determined J.H. should be laid-off in January because by December, she

                                         -18-
considered him her weakest writer. Jackson presented no evidence at trial

regarding J.H.’s ethical issues. Rather, the only reference to such issues is found

in Jackson’s deposition regarding his understanding that there were concerns.

Jackson’s “[s]peculation, however, will not suffice for evidence.” Doan, 82 F.3d

at 977.

      Jackson’s argument on this point also alludes to Epler’s proffered

testimony. However, Epler’s deposition testimony reveals she allegedly

discussed her ethical concerns about J.H. with Calhoun only after the September

2001 RIF. Epler also testified that at no time during her conversation with

Calhoun did Calhoun state she was directed to terminate Jackson instead of

Hibberd. Thus, even were we to consider this evidence, it does not support an

inference of age discrimination.

             (c)   Transfers of Younger W riters

      Jackson claims the district court erred when it did not consider the transfer

of T.W . from the Denver office and employee transfers from other offices during

the September 2001 time period as evidence of age discrimination for the jury’s

consideration. “A lthough an employer is under no obligation to transfer to

another position in the company an employee whose position has been eliminated,

the employer violates the ADEA when it transfers other displaced employees but

does not place the plaintiff in a new position because of age discrimination.”

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir. 1988).

                                        -19-
      In other words, a plaintiff denied an opportunity to transfer establishes
      a prima facie case of age discrimination when he or she produces
      evidence demonstrating that 1) he or she is a member of a protected
      class; 2) at the time of his or her termination he or she was qualified for
      other available positions within the corporation; 3) the employer did not
      offer such positions to the plaintiff; and 4) a similarly-situated
      employee who is not a member of the protected class was offered the
      opportunity to transfer to an available position . . . .

Id.

      Not only did the uncontradicted evidence demonstrated a sound business

reason for each transfer, Jackson failed to establish he was similarly situated to

some of the other employees. As to T.W .’s transfer from W estw ord, Calhoun did

not participate in the decision to transfer T.W ., nor did she know of the

possibility when she determined to eliminate his position in September 2001. It

was only after Calhoun informed T.W . his position would be eliminated that the

editor of the Kansas publication specifically requested that T.W . be allowed to fill

an open position there.

      Jackson also relies on the transfer of M .H. (age 24) from NT’s newspaper

in Houston, Texas, to the paper in Oakland, California. However, Jackson

ignores the uncontradicted testimony that M .H. was not part of the RIF. Pursuant

to a request from M .H. very early in 2001 to leave Houston, she transferred from

Houston to fill an entry-level position at the Oakland paper available due to an

employee’s termination for cause. Similarly, B.M . (age 26) was the music editor

at the Phoenix paper and was offered an opportunity to fill an open music editor

position in Cleveland, Ohio. Again, his transfer is irrelevant to Jackson because

                                         -20-
the positions are not similarly situated. Whittington, 429 F.3d at 999 (“[A]ge

discrimination may not be inferred from different treatment of employees unless

the employees are similarly situated under the circumstances and the difference in

age between the employees is not insignificant.”) (quotation omitted). Finally,

Jackson refers to the transfer of M .F. (age 25) from the M iami, Florida, office.

Jackson disregards the fact M .F. was transferred with M .E. (age 49) from the

same office.

      Even assuming their positions were similar to Jackson’s, a fact not

established at trial, it is uncontradicted that their transfer occurred because the

M iami office needed to eliminate four positions, while the nearby Fort

Lauderdale, Florida, paper had two open positions. Because it would not be

necessary for M .F. and M .E. to relocate in order to fill those positions, the editor

in Fort Lauderdale agreed to accept both, thereby allowing the M iami paper to

eliminate only two positions. Given the undisputed evidence that only possibly

similarly-situated employees, one over-forty and one under-forty, were transferred

because of their geographical proximity to open positions, we conclude the

district court did not err in ruling this evidence could not support an inference of

age discrimination.

      In sum, the sheer number of Jackson’s allegations of error cannot substitute

for their lack of substance. W e agree with the district court that the reasons given

for Jackson’s inclusion in the RIF w ere “at least, plausible, if not compelling.”

                                          -21-
(A ppellant’s A ppx. Vol. IV at 862.) The court correctly noted Jackson failed to

come forward with evidence of age bias at W estword, he presented no evidence

that Calhoun’s choice was influenced by others, no evidence that W estword w as a

particularly youth-oriented workplace and no evidence that younger individuals

were hired in anticipation of the RIF or were transferred based on age pursuant to

some corporate policy. “[W]e will not second guess business decisions made by

employers, in the absence of some evidence of impermissible motives.” Garrison

v. Gambro, Inc., 428 F.3d 933, 938 (10th Cir. 2005) (quotation omitted).

       [A ]n employer [is] entitled to judgment as a matter of law if the record
       conclusively reveal[s] some other, nondiscriminatory reason for the
       employer’s decision, or if the plaintiff created only a weak issue of fact
       as to whether the employer’s reason was untrue and there was abundant
       and uncontroverted independent evidence that no discrimination had
       occurred.

Reeves, 530 U.S. at 148. Jackson failed to rebut NT’s non-discriminatory reasons

for including Jackson in the RIF – N T determined to change the format in light of

financial difficulty, the new format required the elimination of positions and

Jackson’s position was eliminated due to his chronic failure to meet deadlines.

The jury could come to but one conclusion, warranting judgment as a matter of

law.

       B.    Admission of Testimony

       The district court’s ruling regarding the admission of evidence is reviewed

for an abuse of discretion. Black v. M & W Gear Co., 269 F.3d 1220, 1227 (10th



                                         -22-
Cir. 2001). “W e will not disturb the court’s ruling unless we have a definite and

firm conviction that the lower court made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.” Coletti v. Cudd Pressure

Control, 165 F.3d 767, 776 (10th Cir. 1999) (quotation omitted). Jackson

contends the court abused its discretion in disallow ing Epler’s testimony because

it w as relevant to show corporate-w ide age-bias in a corporate-w ide RIF.

According to Jackson, the jury was entitled to consider what was occurring

throughout the corporation, including remarks by Lacey, Brennan and Van de

Voorde reflecting “a cumulative managerial [age-bias] . . . that has influenced the

decisionmaking process for a considerable time.” (Appellant’s Br. at 26

(quotation omitted).)

      Jackson claims Epler would have established a “nexus between corporate

actions in Phoenix [and] corporate actions felt in Denver” because six months to a

year after Jackson was laid-off, Brennan allegedly told Epler not to hire a fifty-

year-old woman due to her age and they needed someone “young and hip.”

(A ppellant’s A ppx. Vol. II at 272-73.) In addition, Lacey made the decision in

Phoenix to include two over-forty employees in the September 2001 RIF, one who

was allegedly laid off because Lacey thought the employee was “burned out.”

(Id. at 276.) Further, Epler testified regarding a number of incidents beginning in

the spring of 2002 and occurring through 2004 which demonstrated a workplace

culture favoring youth at the Phoenix office. W hile we make no comment on how

                                         -23-
this testimony would relate to a decision made in the Phoenix office, the district

court did not abuse its discretion in concluding these incidents w ere irrelevant to

Calhoun’s decision to choose Jackson in the September 2001 RIF.

      “The threshold inquiry in any dispute over the admissibility of evidence is

whether the evidence is relevant.” Smith v. Ingersoll-Rand Co., 214 F.3d 1235,

1246 (10th Cir. 2000). To demonstrate a discriminatory animus, a plaintiff must

show “a nexus between the allegedly discriminatory statements [and actions] and

the defendant’s decision to terminate the plaintiff.” M inshall v. M cGraw Hill

Broad. Co., 323 F.3d 1273, 1281 (10th Cir. 2003) (quotation omitted). Comments

or actions unrelated to the challenged action “are insufficient to show a

discriminatory animus in termination decisions.” Id.

      Epler had no knowledge, nor is there any other evidence, that Lacey,

Brennan or Van de V oorde affirmatively conveyed any alleged discriminatory

animus to Calhoun, who was the Denver decision-maker of record. See Cariglia

v. Hertz Equip. Rental Corp., 363 F.3d 77, 85 (1st Cir. 2004) (discussing lack of

taint of animus infection). Nor is there evidence that Calhoun independently

harbored or demonstrated any discriminatory animus toward Jackson.

      To establish pretext, any alleged animus on the part of Lacey, Brennan and

Van de Voorde is relevant only if they participated in or influenced the decision

to terminate Jackson. See Little v. Illinois Dept. of Revenue, 369 F.3d 1007, 1015

(7th Cir. 2004) (“The analysis of pretext focuses only on what the decisionmaker,

                                         -24-
and not anyone else, sincerely believed.”). W hile the corporate supervisors could

have chosen to direct Calhoun’s decision, there is no evidence that they did so.

Epler’s testimony merely relates alleged comments articulated from months to

years after Calhoun determined Jackson’s position should be eliminated. 5 Despite

Jackson’s attempt to connect these comments to some corporate angst, Eplers’s

testimony forges no connection between the statements in Phoenix and decisions

in Denver.

      Even if Epler’s testimony had slight relevance to the decision to eliminate

Jackson’s position, its unfair prejudice far outw eighed any probative value.

“Testimony about later events is even less relevant and of less probative value

than evidence of prior bad acts generally, because the logical relationship

between the circumstances of the character testimony and the employer’s decision

to terminate is attenuated.” Coletti, 165 F.3d at 777; see also Stewart v. Adolph

Coors Co., 217 F.3d 1285, 1289 (10th Cir. 2000) (“Even assuming that [a

manager’s] comment was racially motivated, . . . it was made some three years

after [the employment action] and is not probative of [his] motivations [at the

time he made his decision].”). Because Epler’s testimony did not establish a

connection between the September 2001 decision in Phoenix and Calhoun’s



      5
        While Epler alleged an ageist comment made by the Phoenix editor, Kristi
Dempsey, prior to the September 2001 RIF, Dempsey had no part in the Phoenix or
Denver decisions. Lacey made the decisions in Phoenix, the only publication at which he
had a hands-on working relationship.

                                          -25-
decision in Denver, it was irrelevant to Jackson’s claims. Even if some slight

relevance could be gleaned from attenuated inferences, the district court did not

err in concluding the probative value of Epler’s testimony was significantly

outweighed by its potential prejudice.

A FFIRME D.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




                                          -26-
