                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 25 2000
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 MARY ELLEN KIRKLAND,

               Plaintiff - Appellee,

          v.                                            No. 98-5172
                                                (D. Ct. No. 97-CV-142-BU)
 BAKER-HUGHES OILFIELD                                  (N.D. Okla.)
 OPERATIONS, INC., sued on original
 petition as: Baker-Hughes, Inc., a
 Delaware corporation d/b/a Centrilift,

               Defendant - Appellant.


                            ORDER AND JUDGMENT           *




Before TACHA , BRISCOE , and ROGERS , † Circuit Judges.


      Defendant-appellant Baker-Hughes Oilfield Operations, Inc. appeals the

district court’s denial of its motion for judgment as a matter of law. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

                                          I.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      The Honorable Richard D. Rogers, Senior District Judge for the District of
      †

Kansas, sitting by designation.
      By late 1993 or early 1994, defendant knew that its revenue was going to

decline due to an anticipated drop in its export business with Russia. Defendant

informed all of its departments that they had to decrease costs and expenses in

order to maintain profitability and gave each department a cost reduction target.

Ultimately, defendant determined that a reduction-in-force (RIF) was necessary.

On April 22, 1994, defendant fired plaintiff-appellee Mary Ellen Kirkland as part

of the RIF. At the time, she was fifty-eight years old. Kirkland filed suit,

claiming that defendant discharged her in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 623(a)(1).

      The evidence at trial tended to establish the following facts. Kirkland

worked for defendant from 1962-1968 and from 1975-1994. At the time of the

RIF, she was an accounts receivable clerk in the accounting department. During

her tenure with defendant, Kirkland never received a less than satisfactory

performance appraisal and was never reprimanded. Carol Millett, one of

Kirkland’s supervisors, and Joe Mitcho, a vice president of human resources, both

testified that Kirkland was doing a satisfactory job when she was fired. Sylvia

Mitchell, one of Kirkland’s co-workers, also testified that Kirkland was qualified

for her job and could have been trained to do the accounting work that remained

after the RIF.

      Kirkland’s 1990 performance appraisal states that she could perform some


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of her manual tasks faster and more efficiently on a computer. The appraisal

instructs Kirkland to take steps to obtain any necessary training. Kirkland’s 1991

performance appraisal also indicates that she needed to develop ways to make her

job more streamlined and efficient. Furthermore, in 1991, Kirkland made it her

own goal to become more involved with the personal computer, WordPerfect and

Lotus 1-2-3 so that she could become a more efficient employee.

      At trial, Kirkland testified that she had no qualms about the computer and

never refused computer training. Although she signed up for in-house computer

training and asked numerous supervisors for computer training, Kirkland testified

that she was unable to obtain it. Consequently, she asked other employees to help

her learn and she taught herself. Along with her co-workers, Kirkland also spent

approximately one hour obtaining certification to use a software application for

accounting.

      Kirkland admitted that she neither automated her manual tasks after the

1990 performance appraisal nor made any effort to learn computer skills on her

own outside of work. While defendant offered only limited in-house computer

training prior, it did support an education reimbursement program to encourage

employees to seek outside training. Kirkland did not take advantage of this

program. She did enroll in a Lotus 1-2-3 class at a vocational school but did not

complete it because the material was too advanced for her.


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      At the time of the RIF, Pam Hoagland also worked in the accounting

department as an accounts payable service center processor. A temporary agency

hired Hoagland to work for defendant in September 1993. By December of 1993,

defendant was behind in paying its invoices and hired Hoagland as a regular

payroll employee to work in accounts payable. Eventually, Hoagland began

training to do Kirkland’s job. After defendant fired Kirkland, Hoagland assumed

the accounts receivable position. Hoagland was 42 years old at the time.

      Hoagland did not have a college degree or any formal accounting training.

She had worked in a bank doing bookkeeping and balancing checkbooks and the

bank’s budget. She also had taken two computer classes at a state college and

worked on a computer system at another company. Hoagland’s 1994 performance

appraisal indicated that, overall, she needed improvement, but also noted that she

met expectations in automating procedures. Millett testified that it would have

been unfair to give Hoagland a satisfactory review in 1994 because Hoagland was

a new employee and she was still learning her job.

      In making its RIF decisions, defendant retained the employees with the best

qualifications to complete the remaining work. Seniority was considered only if

two employees were equally qualified. Defendant’s managers testified that they

selected Kirkland for the RIF because she (1) failed to automate the manual

functions of her job, (2) lacked the skills to handle the post-RIF computerization


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of all accounting work, (3) was satisfied with the status quo and not interested in

change, and (4) did not demonstrate a willingness to make her job more efficient.

Kirkland testified that she believed she was fired because of her age. Rhonda

Tygart, one of defendant’s computer instructors, also testified that she believed

Kirkland was fired due to her age.

      Testimony further indicated that defendant retained Hoagland because (1)

she could function in both accounts payable and employee receivables, (2) she

showed both the willingness and the potential to do different jobs, and (3) she had

experience with computers. After the RIF, Hoagland made the accounts

receivable job more efficient by automating several tasks and eliminating

redundant functions.

      At the close of plaintiff’s evidence, defendant moved for judgment as a

matter of law pursuant to Fed. R. Civ. P. 50(a). The district court denied

defendant’s motion and the jury returned a verdict for plaintiff. In a post-trial

motion, defendant moved for judgment as a matter of law pursuant to Fed. R. Civ.

P. 50(b), and the district court again denied defendant’s motion. Defendant filed

a timely appeal.

                                         II.

      We review de novo the denial of a judgment as a matter of law.      Greene v.

Safeway Stores, Inc. , 98 F.3d 554, 557 (10th Cir. 1996). We “apply the same


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legal standard as the district court and construe the evidence and inferences in the

light most favorable to the nonmoving party without weighing the evidence,

passing on the credibility of witnesses, or substituting our judgment for that of the

jury.” Id. Judgment as a matter of law is proper “only where the evidence and all

inferences to be drawn therefrom are so clear that reasonable minds could not

differ on the conclusion.”   Id. (internal quotation marks and citation omitted).

       The ADEA provides in pertinent part that it is “unlawful for an employer . .

. to discharge any individual . . . because of such individual’s age.” 29 U.S.C. §

623(a)(1). We evaluate ADEA claims based on indirect evidence of

discrimination under the burden-shifting framework of       McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973).   Beaird v. Seagate Tech., Inc. , 145 F.3d 1159,

1165 (10th Cir.), cert. denied , 525 U.S. 1054 (1998). To establish a prima facie

case of age discrimination under the ADEA, a plaintiff who is discharged in a RIF

must prove that (1) she is within the protected age group, (2) she was doing

satisfactory work, (3) she was discharged despite the adequacy of her work, and

(4) there is some evidence the employer intended to discriminate against her in

reaching its RIF decision.   Id. The fourth element is satisfied if the plaintiff

“held a similar position to a younger retained employee.”     Id. at 1167.

       If the plaintiff makes out her prima facie case, then she “creates a

presumption of discriminatory intent that the defendant may rebut by asserting a


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facially nondiscriminatory reason for the employee’s termination.”            Id. at 1165.

Once the defendant advances a legitimate reason for its decision to fire the

plaintiff, the plaintiff can prevail only if she presents evidence that the

defendant’s proffered reason is pretextual.         Id.

       In this case, there is no question that Kirkland established the first three

elements of her prima facie case: (1) she is a member of the protected age group,

(2) members of management testified that she was doing satisfactory work when

she was fired, and (3) defendant laid her off despite the adequacy of her work. In

addition, Kirkland and Hoagland both worked in the accounting department,

Hoagland was learning Kirkland’s job at the time of the RIF, and Hoagland was

younger than Kirkland. Thus, it appears that Kirkland held a similar position to a

younger retained employee. We therefore will assume that Kirkland also satisfied

the fourth element of her prima facie case.

       However, “the existence of a prima facie case does not necessarily preclude

judgment as a matter of law” against Kirkland.            Doan v. Seagate Tech., Inc. , 82

F.3d 974, 977 (10th Cir. 1996).

              [A]fter a full trial on the merits, the sequential analytical
              model adopted from McDonnell Douglas . . . drops out
              and we are left with the single overarching issue whether
              plaintiff adduced sufficient evidence to warrant a jury’s
              determination that adverse employment action was taken
              against [her] on the basis of age.

Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 744 (10th Cir. 1991). Thus, the

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verdict in this case can stand only if Kirkland presented enough evidence for a

reasonable jury to conclude that age was the determinative factor in her discharge.

      Kirkland contends that the evidence supports the jury’s verdict because it

shows that defendant conspired to replace her in the summer of 1993, hired

Hoagland (her replacement) in the fall of 1993, and then used an unnecessary RIF

to effectuate its scheme. She argues that the evidence proves she was doing a

good job when she was laid off and that she was as qualified as Hoagland for the

post-RIF accounts receivable position. Kirkland thus insists that a reasonable

jury could infer that defendant fired her because of her age. We conclude,

however, that Kirkland offered no credible evidence of age discrimination to

support her conspiracy theory.

      First, although Kirkland presented evidence that defendant held meetings in

the summer of 1993, she offered no proof that defendant planned her termination

and replacement at these meetings. Second, uncontroverted testimony at trial

showed that the accounting department was behind in late 1993. Consequently, in

December 1993, defendant converted Hoagland from a temporary employee to a

regular payroll employee and placed her in the accounting department. Thus,

Kirkland did not demonstrate that defendant hired Hoagland to replace her or that

defendant was already planning to discharge her in a RIF when it hired Hoagland.

See Doan , 82 F.3d at 977 (finding that pre-RIF hiring is not evidence that a RIF


                                        -8-
“was merely a pretext for pruning away unwanted employees” where the

defendant’s managers were unaware of the upcoming RIF when they hired the

new employees).

       Third, the evidence showed that defendant’s export business declined in

late 1993 or early 1994 and, as a result, defendant experienced a drop in revenue.

Eventually, defendant determined that a RIF was necessary. Kirkland challenged

the necessity of the RIF by presenting evidence that defendant was financially

healthy and profitable. As we have said before, “the wisdom of a RIF is not for a

court or jury to decide. A RIF is a business decision, and the ADEA is not a

vehicle for reviewing the propriety of business decisions.”   Id. (internal quotation

marks and citation omitted). Accordingly, Kirkland’s financial evidence is not

probative.

       Fourth, ample evidence demonstrates that defendant laid off Kirkland and

retained Hoagland because defendant believed that Hoagland was more qualified

to handle the post-RIF computerization of all accounting work. Specifically,

Hoagland was multi-faceted, showed willingness to do different jobs, and had

experience with computers. By contrast, Kirkland did not automate her manual

tasks or complete outside computer training despite her 1990 and 1991

performance appraisals. The evidence thus showed that Kirkland did not have the

necessary computer skills or the willingness to obtain those skills, and that


                                           -9-
defendant therefore selected her for the RIF. We recognize that there may be a

correlation between age and computer skills, but this does not mean that computer

proficiency cannot be used as a RIF selection criterion.

      Despite the evidence, Kirkland claims that a reasonable jury could have

found that defendant violated the ADEA based on her own testimony and that of

Rhonda Tygart, a computer instructor. Kirkland also relies on the testimony of

Sylvia Mitchell and others that she was as qualified as Hoagland and trainable.

However, even if the jury believed Kirkland’s assessment of her own performance

and the testimony of her co-workers, the jury was not free to conclude that

defendant impermissibly discharged Kirkland absent any other evidence of age

discrimination.   Fallis , 944 F.2d at 747 (finding that the plaintiff’s own testimony

and that of his co-workers was not enough to support a jury verdict in his favor

without additional evidence of age discrimination over and above his prima facie

case); see also Furr v. Seagate Tech., Inc. , 82 F.3d 980, 988 (10th Cir. 1996) (“It

is the manager’s perception of the employee’s performance that is relevant, not

plaintiff’s subjective evaluation of his own relative performance.”)

      We have carefully reviewed the record in this case and construed the

evidence and inferences in the light most favorable to Kirkland. We find that she

has failed to produce evidence sufficient to demonstrate that defendant

discriminated against her on the basis of age. We therefore hold that the district


                                          - 10 -
court erred in denying defendant’s motion for judgment as a matter of law.

      Kirkland’s request for appeal-related attorney fees is DENIED.

      REVERSED and REMANDED for entry of judgment in defendant’s favor.

                                      ENTERED FOR THE COURT



                                      Deanell Reece Tacha
                                      Circuit Judge




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