                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 2 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 JANET G. HOWARD,

          Plaintiff-Appellant,
                                                        No. 02-3163
 v.
                                                  (D.C. No. 00-2580 -GTV)
                                                         (D.Kansas)
 THE GARAGE DOOR GROUP, INC.,
 an Amarr Company,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY and McKAY, Circuit Judges.


      This case is an appeal from a summary judgment in an employment

discrimination case. See Memorandum and Order, Howard v. Garage Door

Group, Inc. 197 F. Supp. 2d 1297 (D. Kan. 2002). For the reasons detailed

below, we conclude that the Plaintiff failed to establish a prima facie case of a

violation of either the Age Discrimination in Employment Act, (“ADEA”) 29

U.S.C. §§ 621 et seq., or the Family and Medical Leave Act (“FMLA”) 29 U.S.C.

§§ 2601 et seq. Accordingly, we affirm the district court’s grant of summary


      *
        This order and judgment is not binding precedent, except under the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.
judgment for the Defendant.

                                          I

                                Procedural History

      The Plaintiff, Janet Howard, was fired from her job as a janitor for

Defendant Garage Door Group, Inc. Howard filed suit against the Garage Door

Group in the United States District Court for the District of Kansas, alleging that

her termination violated the ADEA and the FMLA. Because these claims arose

under federal statutes, the district court’s jurisdiction was predicated on 28 U.S.C.

§1331. On April 5, 2002, the district court granted Defendant’s motion for

summary judgment as to both the ADEA and FMLA claims. On May 6, 2002,

Plaintiff filed a timely notice of appeal pursuant to Fed.R.App.Pro 4(a)(1). This

court has jurisdiction over this appeal pursuant to 28 U.S.C. §1291.

                                         II

                                 Statement of Facts

      Plaintiff Janet Howard was hired by Defendant Garage Door Group, Inc. in

April of 1995 at the age of 59 as an assembly line worker. Several months later,

Howard was reassigned to a janitorial position for health reasons. In August of

1998, Howard was injured on the job and, as a result, took a total of 40 days of

unpaid leave.

      When Howard returned to the job, she was assigned temporary light duty


                                         -2-
for two to three weeks during which her mopping duties were assumed by other

employees. In November of 1998, Howard received a medical release to return to

normal duty with the restriction that she not lift more then twenty pounds.

Despite this release, Howard refused to reassume her mopping duties. Eventually

several of Howard’s supervisors informed her that her continued refusal to mop

would result in her termination.

      On January 20, 1999, Howard met with her immediate supervisors and Mr.

Pope, the director of manufacturing services for the Defendant. At that meeting

Howard was again informed that she must resume her mopping or be terminated.

In response, Howard stated she was physically unable to do so as the industrial

mops usually utilized by the janitors were too heavy. Howard suggested that she

be allowed to either use a lighter mop or have her mopping duties permanently

assigned to another person. According to Howard, Pope rejected both suggestions

but agreed that the following day he would discuss reassigning Howard to another

position.

      At the subsequent meeting, on January 21, 1999, no suitable position for

Howard was identified. As a result, Pope decided to fire Howard, who was then

63 years old. On February 1, 1999, the Defendant hired Howard’s replacement,

who was 64 years old. Howard then sued, claiming her treatment by the

Defendant was in violation of the ADEA and the FMLA. The district court


                                         -3-
granted summary judgment for the Defendant on all counts. Howard now appeals.

                                         II

                                     Discussion

      A grant of summary judgment by the district court is reviewed de novo.

Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

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

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When determining whether

judgment as a matter of law is appropriate, “we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Simms, 165 F.3d at 1326.

                                          A

                                    ADEA claims

      The ADEA prohibits an employer from engaging in employment practices

that “discriminate against any individual because of such individual’s age.” 29

U.S.C. § 623(b) (2004). A claim of age discrimination under the ADEA can be

proven by either direct or circumstantial evidence. Stone v. Autolive ASP, Inc.,

210 F.3d 1132, 1136 (10th Cir. 2000). “A plaintiff proves discrimination through

direct evidence by establishing proof of an existing policy which itself constitutes


                                         -4-
discrimination.” Id. (citation and quotation marks omitted). In all other cases,

the plaintiff seeks to prove discrimination through circumstantial evidence. See,

e.g., Danville v. Regional Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002)

(“Circumstantial evidence allows the jury to draw a reasonable inference that

discrimination occurred.”).

      Such a claim can survive summary judgment only where the plaintiff has

presented sufficient evidence to show there is a genuine issue of material fact

pertaining to whether the plaintiff’s age actually motivated the allegedly

discriminatory conduct. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 141 (2000); Fed. R. Civ. P. 56(c). In determining whether the circumstantial

evidence presented by the plaintiff in a given case is sufficient to establish a

genuine issue of material fact, the Supreme Court has directed the application of

the burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-05 (1973). 1

      The McDonnell Douglas framework comprises three burden shifting steps.

Initially, the burden rests with the plaintiff to establish a prima facie case of



      1
       The McDonnell Douglas burden shifting framework is applicable only as
to summary judgment. Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir.
1991) (holding that once there has been a full trial on the merits, the McDonnell
Douglas framework “drops out” and there remains only a “single overarching
issue” of whether the “adverse employment action was taken against” the plaintiff
because of his or her protected status).

                                          -5-
discrimination. Id. at 802. If the plaintiff has established a prima facie case, the

burden then shifts to the defendant to “articulate some legitimate,

nondiscriminatory reason” for its employment action. Id. Finally, if the

defendant articulates a nondiscriminatory reason, then the burden shifts to the

plaintiff to show that the proffered reason is merely a pretext for discrimination.

Id. at 804. Where the parties have satisfied their respective burdens under the

McDonnell Douglas framework, summary judgment is ordinarily inappropriate.

Reeves, 530 U.S. at 148.

      Here Howard has proffered the following evidence of discrimination:

Written and verbal comments were made by Pope that Howard should “check into

her Social Security benefits.” Pope commented about checking the availability of

nine “entry level jobs” to which Howard could have been but was not reassigned.

There was also reference to the feasibility of allowing Howard to either have

someone else assume her mopping duties or allowing her to use a lighter mop.

This evidence is circumstantial and does not prove an “existing policy which

itself constitutes discrimination.” Stone, 210 F.3d at 1136. Accordingly, the

question whether summary judgment was appropriate in Howard’s case must be

answered using the three-step burden shifting framework of McDonnell Douglas.

Danville, 292 F.3d at 1249.

      This evidence, Howard argues, supports a finding of age discrimination in


                                          -6-
two ways. First, she says that the Defendant had an informal policy of

accommodating workers who were injured on the job but Defendant did not give

Howard the benefit of that policy because of her age by either allowing her to use

a lighter mop, reassigning to someone else her mopping duties, or reassigning her

to another job. Second, Howard argues that she was ultimately fired because of

her age. These arguments, however, are merely two sides of the same coin and

unnecessarily bifurcate what is essentially a single claim of alleged age

discrimination: that Howard was fired because of her age.

      Howard’s first theory of discrimination is that she was denied a customary

term of her employment when the Defendant failed to follow its informal custom

of accommodating workers injured on the job. The actual injury, however, that

Howard suffered as a result of this violation was her termination. In other words,

this is not a case where the injury is the violation of a term of employment itself,

e.g., where the plaintiff is denied vacation time customarily given to all

employees as part of the terms of their employment but denied to older workers,

Finnegan v. Trans World Airlines, 967 F.2d 1161, 1162 (7th Cir. 1992), but rather

a case where the employee was fired on grounds that violated the terms of his or

her employment. Therefore, the essence of Howard’s claim is that she was fired

because of her age and her two theories coalesce into one. That is not to say,

however, that Howard’s allegations that the Defendant failed to give her the


                                          -7-
benefit of its informal policy of accommodating injured workers are irrelevant to

our analysis. Rather, this theory is properly analyzed under the third part of the

McDonnell Douglas burden shifting framework.

       If we assume that Howard has satisfied the first part of the McDonnell

Douglas framework and established a prima facie case of age discrimination in

her termination, the burden would then shift to the Defendant to articulate a non-

discriminatory justification for its decision to terminate Howard’s employment.

In this case, the Defendant’s proffered justification is that Howard was fired

because she was unable to perform her duties as janitor. The burden would then

shift back to Howard to show this justification is a pretext. She could satisfy this

burden by showing the duties she was asked to perform were not necessary

functions of her position, i.e., the duties could have been reassigned to someone

else, or that she could in fact have performed her duties, i.e., she could mop if

allowed to use a lighter mop. Therefore, her assertions that the Defendant failed

to give her the benefit of its policy of accommodating workers is not an

independent theory of liability, but rather a rebuttal to the Defendant’s assertion

that Howard was fired because she could not perform the necessary duties of her

job.

       This is essentially how the district court analyzed Howard’s claim when it

granted the Defendant summary judgment. The district court assumed that


                                          -8-
Howard had established a prima facie case of age discrimination. The judge

found, however, that the Defendant had articulated a nondiscriminatory reason for

its employment actions and that Howard had not advanced sufficient evidence to

show this reason to be a pretext. Accordingly, the district court concluded that

Howard had failed to satisfy her burden under the third step of the McDonnell

Douglas framework and, therefore, her ADEA claim could not survive summary

judgment.

      We, however, do not need to delve so deeply into the McDonnell Douglas

analysis to affirm the grant of summary judgment for the Defendants because we

find Howard has failed to establish a prima facie case of age discrimination. As

noted above, the first step of McDonnell Douglas analysis requires the plaintiff to

establish a prima facie case of discrimination. 411 U.S. at 802. To establish a

prima facie case of age discrimination, the plaintiff must show: “(1) that plaintiff

belongs to a protected class; (2) that he suffered an adverse employment action;

and (3) that the adverse employment action occurred under circumstances giving

rise to an inference of discrimination.” Hysten v. Burlington Northern & Santa

Fe Railroad, 296 F.3d 1177, 1181 (10th Cir. 2002). “The real question . . . is

whether a plaintiff has shown actions taken by the employer from which one can

infer, if such actions remain unexplained, that it is more likely than not that such

actions were based on a discriminatory criterion illegal under the Act.” Id.


                                          -9-
(internal quotation marks omitted). 2

      Howard points to two pieces of evidence in support of her prima facie case

of discrimination: the comment by Pope to “check into her Social Security

benefits,” and also more favorable treatment of similarly situated employees, i.e.,

other younger employees were accommodated after suffering workplace injuries.

Neither of these, however, is sufficient to establish “circumstances giving rise to

an inference of discrimination.”

      Pope’s comments to Howard to “check into her Social Security benefits” is

insufficient to raise an inference of discrimination for two reasons. First, the

comment was made after the decision was reached to terminate Howard.

Appellant App. at 94. Thus, Howard failed to show the requisite nexus between

the comment and the Defendant’s decision to terminate her employment. Cone v.

Longmont United Hospital Ass’n, 14 F.3d 526, 531 (10th Cir. 1994). These facts

are distinguishable from Danville v. Regional Lab Corp., 292 F.3d 1246, 1251



      2
        We have held that the fourth element of the prima facie case of age
discrimination is that the position the plaintiff held or sought was filled “by a
younger person.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th
Cir. 1998). However, “[c]ollapsing the four-part prima facie case of McDonnell
Douglas into a three-part test may occasionally be helpful when addressing
discrimination claims that either do not fall into any of the traditional categories,
e.g. hiring or discharge or present unusual circumstances.” Kendrick v. Penske
Transportation Services, Inc., 220 F.3d 1220, 1227 n.6 (10th Cir. 2000). We give
Howard the benefit of a liberal interpretation of the elements of a prima facie case
of age discrimination.

                                         -10-
(10th Cir. 2002), where we held an analogous comment to be sufficient when it

was made during the meeting where the challenged employment action was taken.

Second, the comment is “too abstract . . . to support a finding of age

discrimination[.]” Id. It is unclear whether Pope was even referring to Social

Security retirement benefits at all; the context surrounding his comments suggest

he could just as easily have been referring to Social Security disability benefits. 3

In any event, Howard has not produced any other evidence that her termination

was related to her potential eligibility for such benefits. In sum, Pope’s comments

are too isolated, too unrelated, and too ambiguous “to show discriminatory

animus.” Cone, 14 F.3d at 531.

      Similarly, Howard’s assertion that other younger employees were

accommodated after suffering workplace injuries is insufficient to support an

inference of discrimination. In support of this assertion, Howard proffers only

the testimony of Laurence Randel who testified that he had seen some employees

“moved around because they could not do the job they were on,” Appellant App.

at 67, and employment records that show that of 72 employees who suffered



      3
        Pope made the comment “Why don’t you check into your Social Security
benefits,” on the day that Howard came back to pick up her termination letter.
Appellant Br. at 7, 17. In that letter, Pope also wrote: “I am sure your attorney
can help you with applying for Social Security benefits, and I will be happy to
assist you with the Amarr LTD [Long Term Disability] plan.” Appellant App. at
100, 101-02.

                                          -11-
workplace injuries, only two were discharged, id. at 84-89. This evidence,

however, is insufficient to show age discrimination because it fails to “eliminat[e]

nondiscriminatory explanations for the disparate treatment by showing disparate

treatment between comparable individuals.” Fallis v. Kerr-McGee Corp., 944

F.2d 743, 746 (10th Cir. 1991).

      Evidence tending to show disparate treatment by an employer toward a

protected class is relevant only if it based upon “comparative analysis of similarly

situated individuals.” Cone, 14 F.3d at 532. Here Howard presents no details on

who Randel observed being “moved around.” Similarly, Howard presents no

details on the 70 employees who suffered workplace injuries but were not fired.

Specifically, Howard does not present evidence as to what injuries those

individuals may or may not have suffered, what qualifications they had, what jobs

they held, or what age they were.

      Therefore, Howard’s evidence fails to establish that similarly situated

younger employees were treated differently from her treatment. In other words,

this evidence fails to establish “circumstances giving rise to an inference of

discrimination.” Accordingly, Howard has failed to establish even a prima facie

case of age discrimination and summary judgment for the Defendant on Howard’s

ADEA claim was appropriate.




                                         -12-
                                        B

                                 The FMLA claim

      “The Family and Medical Leave Act authorizes qualified employees to take

leave from their jobs in certain circumstances.” Brockman v. Wyoming Dep’t of

Family Servs., 342 F.3d 1159, 1164 (10th Cir. 2003); 29 U.S.C. § 2612 (2004).

Moreover, “the FMLA prohibits an employer from interfering with the exercise or

attempt to exercise any right provided by the FMLA.” Tate v. Farmland Indus.,

Inc., 268 F.3d 989, 997 n.11 (10th Cir. 2001). In this case, Howard alleges that

her rights under the FMLA were violated when the Defendant failed to provide

her with notice of her right to take leave under the FMLA when she was fired. It

is uncontested, however, that Howard received a summary of her FMLA rights in

her employee handbook. Appellee’s Supp. App. at 12. Therefore, Howard is not

alleging that the Defendant failed to fulfill the FMLA’s notice requirement, which

obligates employers to “post and keep posted, . . . excerpts from, or summaries of,

the pertinent provisions of [the FMLA] and information pertaining to the filing of

a charge.” 29 U.S.C. § 2619. Rather, Howard alleges that her FMLA rights were

interfered with, in violation of 29 U.S.C. § 2615(a)(1), when she was not

specifically informed of her right to take FMLA leave.

      An employer, however, is obligated under § 2615(a) to specifically inform

an employee of his or her right to FMLA leave only when the “employer is on


                                       -13-
notice that the employee might qualify for FMLA benefits . . . .” Tate, 268 F.3d

at 997 (emphasis added). At a minimum, this requires that the employer be on

notice that the employee wants leave. This notice can arise from verbal

notification from the employee, see, e.g., 29 C.F.R. § 825.302(c) (“An employee

shall provide at least verbal notice sufficient to make the employer aware that the

employee needs FMLA-qualifying leave, and the anticipated timing and duration

of the leave.”) It could also be inferred from an employer’s own act of placing the

employee on sick leave, Tate, 268 F.3d at 998 (“Given Plaintiff's allegation that

Defendant placed him on sick leave, Plaintiff need not allege that he provided

Defendant with notice of his rights under the FMLA”).

      Here the record indicates that Howard, at the time she claims the Defendant

should have notified her of her rights under the FMLA, did not want to take any

time off of work. Appellee’s Supp. App. at 11-12. Howard has subsequently

stated, by affidavit attached to her memorandum in opposition to the motion for

summary judgment, that she “was never offered, or spoken to about leave

pursuant to the [FMLA].” Appellant App. at 81. Further, she claims: “had I been

offered the 12 weeks’ unpaid leave pursuant to the FMLA, on or about January

20, 1999, I would have taken such leave to assist in my rehabilitation so that I

could return to work rather than be terminated.” Id.

      The district court found that this affidavit contradicted Howard’s earlier


                                        -14-
deposition testimony and further that “the court can find no evidence in the record

that Plaintiff actually requested or gave Defendant any other indication that she

wanted to take leave on January 21, 1999.” Howard, 197 F. Supp.2d at 1309.

Thus the court concluded that Howard’s affidavit was merely an attempt to create

a “sham fact issue” and was therefore insufficient to preclude summary judgment.

Id (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).

      We have held that to determine whether an affidavit seeks to create a sham

fact issue, we should consider three factors, “whether: (1) the affiant was cross-

examined during his earlier testimony; (2) the affiant had access to the pertinent

evidence at the time of his earlier testimony or whether the affidavit was based on

newly discovered evidence; and (3) the earlier testimony reflects confusion which

the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards, Inc., 275

F.3d 965, 973 (10th Cir. 2001). Howard argues that her affidavit “does not

contradict her deposition testimony, since she was never specifically asked in her

deposition whether she would have taken the 12 weeks of unpaid leave under the

FMLA, if it had been offered to her.” Appellant’s Reply Br. at 11. Howard

therefore argues that her affidavit attempts to “explain” the “confusion” arising

out of her earlier testimony.

      Even if we accept Howard’s affidavit, it does not demonstrate that her




                                        -15-
employer was “on notice” that she desired or was even eligible 4 for such leave.

Hoffman did take a total of 40 non-consecutive days off work from the date of her

injury to the date of her termination. Appellee App. at 11 (Howard Dep. at 37).

But at the time of her termination, she was not on leave, nor had she asked for

leave. Id at 11-12. Defendant was under no obligation to specifically inform

Howard of her right to FMLA leave and did not interfere with Howard’s rights

when it failed to do so. Accordingly, summary judgment for the Defendant on

this claim is appropriate.

                                        III

                                    Conclusion

      Accordingly, we hold that Howard has failed to establish a prima facie case

of age discrimination and therefore AFFIRM the grant of summary judgment for

the Defendant as to the ADEA claim. We also hold that Howard has failed to

establish that her rights under the FMLA were violated and therefore AFFIRM the



      4
         Whether Howard was eligible for FMLA protections was not addressed by
the district court or either party, and we need not address it here. We note,
though, that the FMLA affords employees the right to take time off “[b]ecause of
a serious health condition that makes the employee unable to perform the
functions of such employee.” 29 U.S.C. §2612(a)(1)(D). “Serious health
condition” has been defined as either inpatient care or three consecutive days of
incapacity followed by continuing treatment by a health care provider. 29 C.F.R.
§825.114(a). In this case, Howard took a total of 40 non-consecutive days off, but
there is no evidence either of inpatient treatment or of any period of three
consecutive days off followed by continuing treatment.

                                        -16-
grant of summary judgment for the Defendant as to that claim.



                                     ENTERED FOR THE COURT


                                     William J. Holloway, Jr.
                                     Circuit Judge




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