                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 12, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    CURTIS MAUGHAN,

                Plaintiff-Appellant,                   No. 07-6198
                                                (D.C. No. 5:06-CV-00705-R)
    v.                                                 (W.D. Okla.)

    ALASKA AIRLINES, INC.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         Curtis Maughan appeals the district court’s grant of summary judgment in

favor of his former employer, Alaska Airlines, in this action under the Age

Discrimination in Employment Act (ADEA). We have jurisdiction under

28 U.S.C. § 1291. Because Maughan has presented some evidence that, if

believed, may show that Alaska’s proffered reason for terminating his



*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 was a pretext for age discrimination, and Alaska has not presented

abundant and uncontroverted evidence that no discrimination occurred, we

REVERSE and REMAND for further proceedings in the district court. 1

                                        I.

      Alaska Airlines employed Maughan as a Quality Control (QC)

Representative and Quality Control Supervisor/Representative from March 1,

2001, until April 20, 2005. The QC department is responsible for overseeing the

maintenance work that vendors perform on Alaska’s airplanes. Maughan’s duties

included supervising the QC Inspectors who monitored a particular Oklahoma

City vendor’s work. Beginning in mid-2003, his supervisor was Kelly Robinson,

Alaska’s Quality Control Manager.

      In December 2004, Maughan applied for another position within Alaska,

Quality Assurance (QA) Auditor. 2 During Maughan’s interview, a panel member

asked him about his five-year goals. Then age 60, he stated that he planned to be

1
      The district court indicated it was unclear whether Maughan intended his
lawsuit to challenge his December 2004 failure to receive a position in another
Alaska department, as well as the March 2005 termination of his employment
with Alaska. Maughan’s arguments on appeal focus solely on the propriety of
granting summary judgment with regard to the termination. Consequently, any
arguments concerning his failure to receive the other position have been waived.
See Lindstrom v. United States, 510 F.3d 1191, 1195-96 (10th Cir. 2007).
2
       The record indicates that Quality Assurance and Quality Control are
different departments. Quality Assurance works on creating maintenance plans
for Alaska’s airplanes, in accordance with governmental and manufacturer’s
requirements and recommendations, while Quality Control is responsible for
ensuring that the plans created by Quality Assurance are implemented.

                                       -2-
retired within five years, and that he would be eligible for retirement in about

one-and-a-half years. He was not selected for the QA position.

      He later asked Robinson why he had not been selected. On or about

March 15, 2005, Robinson told him that “word on the street” was that he did not

get the QA position because he told the panel that in five years he was going to be

retired. Aplt. App. I at 74. Within a day, Robinson asked Maughan if he really

was going to retire in a year, and Maughan said that was his plan. According to

Maughan, after that point, “the relationship changed drastically.” Id. at 69.

Maughan states that Robinson “became very aggressive and very controlling and

his whole attitude – his whole attitude changed towards me.” Id. at 81. Robinson

asserts that beginning in early 2005, after Maughan did not receive the QA

position, he began noticing “serious work performance issues with [Maughan’s]

work as a QCR and the work under his supervision.” Id. at 115.

      On March 16, Robinson evaluated Maughan’s performance. 3 On a written

review form, Mr. Robinson marked Maughan as “Meeting most expectations” in

the category of Initiative and “Not meeting expectations” in the categories of

“Decision Making/Judgment” and “Problem Solving.” Id. at 196. According to

Robinson, he counseled Maughan about failures to meet expectations in certain

areas and gave him specific examples of when he failed to perform to Robinson’s

3
      Robinson states that the March 2005 performance evaluation occurred on
March 2, 2005, but Maughan asserts that it occurred on March 16. We view the
record in the light most favorable to Maughan as the non-moving party.

                                         -3-
standards. Maughan disagrees, asserting that Robinson did not discuss any

specifics with him at the meeting.

      In early April 2005, Robinson visited Oklahoma City to observe Maughan’s

performance. According to Robinson, several incidents that occurred during this

visit led him to conclude that Maughan failed to carry out his duties

appropriately. Robinson recommended to his supervisor, Vince Hasson, that

Maughan’s employment be terminated. Hasson agreed, and the two consulted

Scott Lautman, Alaska’s human resources manager. Lautman counseled Robinson

on how to handle the termination.

      On April 20, 2005, Robinson informed Maughan that his employment was

terminated effective immediately. He offered Maughan a severance package in

exchange for a release. Maughan refused to sign the release and contacted

Lautman. He informed Lautman that he believed he had been discriminated

against and harassed because of his age. Alaska never conducted an investigation

into Maughan’s complaint of age discrimination and harassment.

      After Maughan brought suit under the ADEA, Alaska moved for summary

judgment. Applying the familiar McDonnell Douglas burden-shifting approach, 4

the district court held that Maughan had failed to establish a prima facie case of

age discrimination because he did not present evidence that he had been replaced

by a younger person or under circumstances leading to an inference of

4
      McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).

                                         -4-
discrimination. It further held that, even assuming he presented a prima facie

case, Alaska had proffered a legitimate non-discriminatory reason for his

discharge, namely, poor performance. The district court concluded that he failed

to proffer evidence tending to show that Alaska’s proffered reason was a pretext

for discrimination. Accordingly, it granted summary judgment to Alaska.

                                        II.

                              A. Standard of review

      We have often stated the standard of review for summary judgment cases:

      We review the district court’s grant of summary judgment de novo,
      applying the same standard used by the district court. Summary
      judgment is appropriate only if there is no genuine issue as to any
      material fact and the moving party is entitled to judgment as a matter
      of law. In making this determination, we view the evidence in the
      light most favorable to . . . the non-moving party, and draw all
      reasonable inferences in [his] favor.

Riggs v. AirTran Airways, 497 F.3d 1108, 1114 (10th Cir. 2007) (citations,

quotation, and alteration omitted).

                B. Application of McDonnell Douglas Framework

      Maughan first argues that he presented direct evidence of age

discrimination, and so the district court erred in applying the McDonnell Douglas

burden-shifting scheme. See Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 121 (1985) (“[T]he McDonnell Douglas test is inapplicable where the

plaintiff presents direct evidence of discrimination.”). We have recognized that

an employment discrimination plaintiff may prove his or her case with direct or

                                        -5-
with circumstantial evidence, with the McDonnell Douglas framework coming

into play where a plaintiff relies on circumstantial evidence. Adamson v. Multi

Commun. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

      “Direct evidence is evidence, which if believed, proves the existence of a

fact in issue without inference or presumption. [It] requires proof of an existing

policy which itself constitutes discrimination or oral or written statements on the

part of a defendant showing a discriminatory motivation.” Hall v. U.S. Dep’t of

Labor, Admin. Review Bd., 476 F.3d 847, 854-55 (10th Cir.), cert. denied,

128 S. Ct. 489 (2007) (quotations and citations omitted). “Our precedent makes

clear that evidence is not ‘direct’ if an inference of discrimination is required.”

Riggs, 497 F.3d at 1118. “A statement that can plausibly be interpreted two

different ways—one discriminatory and the other benign—does not directly

reflect illegal animus, and, thus, does not constitute direct evidence.” Hall,

476 F.3d at 855 (quotation omitted).

      Each piece of evidence that Maughan cites (Robinson’s report about the

reason he did not get the QA position, his inquiry about whether Maughan

planned to retire, certain notes that Lautman wrote before the termination, and an

e-mail message that Hasson wrote after the termination) requires an inference of

discrimination or plausibly can be interpreted in two different ways. Because this

evidence is not direct evidence of discrimination, the district court did not err in

proceeding under the McDonnell Douglas burden-shifting procedure.

                                          -6-
                                  C. Prima Facie Case

      The district court first held that Maughan failed to establish a prima facie

case “because he has failed to present evidence that the position from which he

was terminated remained open or was filled by a younger person, or that he was

terminated under circumstances giving rise to an inference of unlawful age

discrimination, the fourth essential element of a prima facie case.” Maughan v.

Alaska Airlines, Inc., CIV-06-705-R, slip op. at 4 (W.D. Okla. Aug. 24, 2007).

But Maughan did present some such evidence, as his affidavit stated that he was

replaced by a man who was forty years old. While the assertion otherwise is

unsupported, Alaska did not controvert this evidence, so it stood unrebutted.

Given that Maughan’s burden at the prima-facie-case stage is de minimis, see

Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005), we conclude that Maughan

established a prima facie case of age discrimination.

                                      D. Pretext

      The district court further held that, even assuming that Maughan

established his prima facie case, he failed to proffer evidence that tended to show

that Alaska’s legitimate, non-discriminatory reason for his discharge was a

pretext for age discrimination.

      “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

                                          -7-
them unworthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Riggs, 497 F.3d at 1118 (quotation

omitted). “‘The factfinder’s disbelief of the reasons put forward by the defendant

(particularly if disbelief is accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie case, suffice to show intentional

discrimination.’” Plotke, 405 F.3d at 1102 (quoting St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993)). Evidence of pretext “‘may take a variety of

forms,’” including evidence tending to show “‘that the defendant’s stated reason

for the adverse employment action was false’” and evidence tending to show

“‘that the defendant acted contrary to a written company policy prescribing the

action to be taken by the defendant under the circumstances.’” Id. (quoting

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).

“The plaintiff’s evidence can also allow for an inference that the employer’s

proffered non-discriminatory reasons were either a post hoc fabrication or

otherwise did not actually motivate the employment action.” Id. at 1102-03

(quotation and alteration omitted). Affording all reasonable inferences to

Maughan, as we are required to do at the summary-judgment stage, there are

several pieces of evidence favorable to Maughan.

      Robinson’s affidavit avers that he began noticing “serious work

performance issues” with Maughan’s work in early 2005. Aplt. App. I at 115.

Robinson further admitted in his deposition that the termination “was solely based

                                         -8-
on my observations between April 5th and 9th. It had nothing to do with previous

job performance, because he had met expectations on all his performance

appraisals.” Id. II at 300. The record contains no documentation of performance

problems in 2005, however, other than the March 2005 review, which occurred

just after Robinson inquired about Maughan’s retirement plans. While “many

courts have recognized that an employer may make reasonable inquiries into the

retirement plans of its employees,” Cox v. Dubuque Bank & Trust Co., 163 F.3d

492, 497 (8th Cir. 1998), this retirement inquiry did not stand alone; it came in

conjunction with Robinson’s statement that “word on the street” was that he had

not received the QA job because of his retirement plans and, according to

Maughan, with a change in Robinson’s attitude towards him.

      In addition, Alaska’s summary judgment brief and Robinson’s supporting

affidavit highlight a particular incident as an example of Maughan’s performance

problems in early 2005. In his response brief, Maughan asserted that the incident

actually occurred in October 2004, when, according to Robinson’s evidence, he

was performing acceptably. While Maughan’s supporting affidavit does not

address the timing of the incident, the March 2005 review states it occurred in

October 2004. Alaska’s reliance on a 2004 incident to help justify Maughan’s

termination, in the face of Robinson’s testimony that the performance problems

began in early 2005 and the termination led directly from the events of April 5-9,

2005, may lead to an inference of post hoc justification.

                                         -9-
      With regard to the March 2005 review, Maughan testified that he was

presented with an eight-page review that he eventually signed and faxed back.

Alaska has presented a nine-page review, however, with a signature that Maughan

testified was not his, and copies of the review in the record appear to contain

different signatures. We have identified falsifying or manipulating criteria as a

disturbing procedural irregularity that may constitute evidence of pretext.

See Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005).

Further, the ninth page, which Maughan testified was not attached at the review,

sets forth specific examples of performance problems. If that page were not a

part of the original review form, its addition may be viewed as a post hoc attempt

to justify the termination. See Plotke, 405 F.3d at 1103 (stating that evidence that

allows for an inference that the employer’s proffered reason was a “post hoc

fabrication” may establish pretext). 5 In addition, the March 2005 review

criticizes Maughan’s initiative, while Robinson praised his initiative in a

December 2004 review submitted in connection with Maughan’s application for

the QA position. “[W]e have noted that memoranda from supervisors praising the

plaintiff on an issue later claimed to be the reason for the adverse action may be




5
      Maughan also presented other evidence that may lead to inferences of post
hoc justifications, including e-mail messages from Hasson and Lautman
concerning a post-termination meeting and post-termination documentation of
Maughan’s performance.

                                         -10-
evidence of pretext.” Green v. New Mexico, 420 F.3d 1189, 1193 (10th Cir.

2005).

         Maughan also disputes Robinson’s account of the events of early

April 2005 that Robinson testified led up to Maughan’s dismissal. When

analyzing a contention of pretext, this court examines “the facts as they appear to

the person making the decision to terminate plaintiff.” Kendrick, 220 F.3d at

1231. The relevant inquiry is whether the information reasonably believed by the

decision-maker justified the action taken, not whether there might have been some

error in the information. Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th

Cir. 2004). To the extent that Maughan argues that Robinson acted on incorrect

information or was wrong, his disputes fail under these standards. In some

respects, though, his disputes go beyond showing that Robinson’s criticisms of his

performance were unreasonable or based on mistakes, instead challenging the

objective facts that Robinson says he relied on. For example, Maughan’s and

Robinson’s descriptions of the incident that Robinson identified as his final straw

differ. Further, it was Robinson’s subjective evaluation of Maughan’s

performance that led to the termination. “Courts view with skepticism the use of

subjective evaluations in making termination decisions.” Plotke, 405 F.3d at

1106. “[T]he existence of subjective criteria alone is not considered evidence of

pretext; rather, the existence of other circumstantial evidence may provoke a




                                         -11-
stronger inference of discrimination in the context of subjective evaluation

standards.” Riggs, 497 F.3d at 1120.

      Maughan also presented evidence that Alaska acted contrary to its written

anti-harassment and discrimination policy, which provides for investigations of

complaints. The record supports Maughan’s assertion that he complained to

Lautman that the termination of his employment was due to age discrimination

and harassment. Lautman admitted that Alaska undertook no investigation of the

complaint, but the record does not explain why.

      This is a close case. Although the evidence described above may tend to

undermine Alaska’s proffered reason for the termination, it is not greatly

persuasive. But even if Maughan has created “only a weak issue of fact as to

whether the employer’s reason was untrue,” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000), Alaska has not presented the corollary

“abundant and uncontroverted independent evidence that no discrimination had

occurred,” id., that would entitle it to judgment as a matter of law.

      There is little “uncontroverted independent evidence” in this case. Alaska

argues that Maughan was fifty-six years old, well within the protected category,

when Alaska hired him in 2001. Robinson (age 44 in 2005) and Lautman (age 53

in 2005) also were in the ADEA-protected age group at the time of the

termination. Robinson was Maughan’s supervisor since mid-2003, and Maughan

admits that they had a good relationship. During that time, the only age-related

                                         -12-
comments he ever heard Robinson utter were the statements, “Come on, you old

fart. Let’s go to lunch,” when the two would go to lunch, which they did

frequently. Aplt. App. I at 100. Further, during the summer of 2004, Alaska

offered a voluntary separation program, and Robinson told Maughan that he

hoped he did not take it, because Robinson needed him in Oklahoma City.

      This evidence does help negate an inference of pretext, but we cannot

characterize it as “abundant.” Consequently, Alaska is not entitled to judgment as

a matter of law.

                                         III.

      “‘[I]f a plaintiff advances evidence establishing a prima facie case and

evidence upon which a factfinder could conclude that the defendant’s alleged

nondiscriminatory reasons for the employment decisions are pretextual, the case

should go to the factfinder.’” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125

(10th Cir. 2005) (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 622 (10th Cir.

1994)). “In short, at the summary judgment stage, the inference of discrimination

permitted by evidence of pretext must be resolved in favor of the plaintiff.” Id.

In this close case, Maughan’s proffer is sufficient to establish his prima facie case

and to establish an inference of pretext to defeat Alaska’s motion for summary




                                         -13-
judgment. The judgment of the district court is REVERSED and the case is

REMANDED for further proceedings.

                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




                                      -14-
