                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         December 6, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court


    WILLIAM R. NEAL,

                 Plaintiff-Appellant,

     v.                                                    No. 04-2329
                                                  (D.C. No. CIV-03-648-JB/RHS)
    SANDIA NATIONAL                                          (D. N.M.)
    LABORATORIES, a U.S.
    Government-owned-contractor-operated
    facility,

                 Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and McCONNELL, Circuit Judges.



          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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff William R. Neal applied for a job with Sandia National

Laboratories (“Sandia”) on three occasions, but was not interviewed or hired. He

filed a complaint against Sandia, alleging it violated the Age Discrimination in

Employment Act (“ADEA”). The district court granted Sandia’s motion for

summary judgment. Plaintiff appeals, and we affirm.

      The parties are familiar with the facts, which are accurately and fully

described in the district court’s thorough thirty-one page opinion; thus, we need

not repeat them here. The parties agree that plaintiff presented a prima facie case

of ADEA discrimination. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1226 (10th Cir. 2000) (describing elements of prima facie failure-to-hire

ADEA claim). They also agree that Sandia presented legitimate, non-

discriminatory reasons for not hiring plaintiff, namely, that it never considered

plaintiff’s first application because it was submitted after Sandia had completed

interviews for the opening, and, when Sandia did consider plaintiff’s next two

applications, it determined he lacked sufficient relevant experience and did not

meet its minimum GPA requirement. See id. (describing burden-shifting analysis

of circumstantial-evidence ADEA claim).

      At issue before the district court was whether plaintiff presented evidence

that Sandia’s reasons were pretext for discrimination. See id. at 1230 (noting that

plaintiff can withstand summary judgment if he presents evidence that employer’s


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reason for the employment decision is “pretextual-i.e. unworthy of belief”).

Plaintiff attempted to demonstrate pretext by alleging Sandia had a hiring policy

(the “80/20” policy) that preferred recent college graduates, which had a disparate

impact on older job applicants. Plaintiff also alleged Sandia applied its minimum

GPA requirement in a manner that favored younger applicants.

      The district court ruled that plaintiff failed to produce a genuine issue of

material fact with respect to pretext. It held that Sandia presented undisputed

evidence that the decisionmakers who considered plaintiff’s applications believed

Sandia had discontinued the 80/20 policy with respect to the positions sought by

plaintiff a year before he first applied for a job, and did not consider that policy in

evaluating plaintiff’s application. It next ruled that, even assuming plaintiff

presented evidence that four applicants hired by Sandia had GPAs below its

minimum GPA requirement, plaintiff failed to show that any of these four

applicants were similarly situated to him.

                                       Analysis

      We review the grant of summary judgment de novo, applying the same

standard as did the district court. MacKenzie v. City & County of Denver,

414 F.3d 1266, 1273 (10th Cir. 2005). Summary judgment is proper where “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


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material fact and the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We review the record and any reasonable inferences

therefrom in the light most favorable to the nonmoving party. MacKenzie,

414 F.3d at 1273.

         Disparate Impact Claim. Plaintiff first contends the district court’s

dismissal of his disparate impact claim should be reversed because of an

intervening change in the law. We conclude that plaintiff did not preserve this

issue for appellate review. Plaintiff alleged in his complaint that Sandia’s 80/20

policy of preferring recent college graduates violated the ADEA because it had a

disparate impact on older applicants. At the time the district court ruled on

Sandia’s summary judgment motion, the controlling precedent in this circuit held

that disparate impact claims were not cognizable under the ADEA. See Ellis v.

United Airlines Inc., 73 F.3d 999, 1007 (10th Cir. 1996). Six months later, the

Supreme Court ruled that disparate impact claims may be brought under the

ADEA. Smith v. City of Jackson, __ U.S. __, 125 S.Ct. 1536, 1540 (Mar. 30,

2005).

         We conclude that plaintiff affirmatively abandoned his disparate impact

claim before the district court. When a party concedes a legal issue in the district

court, we will not review the issue on appeal. See Petrini v. Howard, 918 F.2d

1482, 1483 n.4 (10th Cir. 1990) (per curiam); see also Lyons v. Jefferson Bank &


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Trust, 994 F.2d 716, 722 (10th Cir. 1993) (holding that issues which have been

raised and then abandoned in the district court will not be considered on appeal).

At the summary judgment hearing, the district court noted Ellis, but also informed

plaintiff that City of Jackson was pending before the Supreme Court and was

expected to resolve whether disparate impact claims were cognizable under the

ADEA. In response, plaintiff explicitly told the district court that he was not

bringing a disparate impact claim, but was merely alleging that the 80/20 policy’s

disparate impact could be evidence of pretext. Aplt. App. at 265-67; see Furr v.

Seagate Tech., Inc., 82 F.3d 980, 987 n.4 (10th Cir. 1996) (“disparate impact may

be evidence of intentional discrimination in certain cases”).

      Although appellate courts may, under exceptional circumstances, consider

an issue not raised below where a supervening decision has changed the law while

the appeal was pending, see United States v. Novey, 922 F.2d 624, 629 (10th Cir.

1991), we decline to do so in this case. Plaintiff did not alert the district court in

any way that he wished or intended to preserve his disparate impact claim for

appellate purposes in the event of a change in the law, which was certainly

foreseeable at the time of the summary judgment hearing. To the contrary, he told

the court he was not asserting a disparate impact claim, Aplt. App. at 267, and

both the district court and the defendant relied upon that representation, id. at

203. The issues involved are not purely questions of law, see City of Jackson,


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125 S. Ct. at 1545-46 (describing the factually-specific evidence required to state

a valid disparate impact claim); the proper resolution of these issues is not beyond

reasonable doubt; and the failure to address the issues would not result in a

miscarriage of justice. See Petrini, 918 F.2d at 1483 n.4 (outlining the

exceptional circumstances under which appellate court may exercise discretion to

review a previously unconsidered issue). We find no reason to exercise our

exceptional-circumstances discretion in this case.

      Pretext as to GPA requirement. In plaintiff’s next three issues on appeal,

he contends the district court erred in finding that he was not similarly situated to

another candidate, referred to as CDW, who was under forty years old, did not

meet Sandia’s minimum GPA requirement, but was hired for one of the jobs

sought by plaintiff. Pretext may be demonstrated by revealing “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action [such] that a reasonable

factfinder could rationally find them unworthy of credence and hence infer that

the employer did not act for the asserted non-discriminatory reasons.” Morgan v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). A plaintiff may “show pretext

on a theory of disparate treatment by providing evidence that he was treated

differently from other similarly situated, non-protected employees.” Kendrick,

220 F.3d at 1232.


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      CDW had worked for Sandia for six years when she applied for the

position. Sandia presented evidence - a Selection Justification Memo - in which

Sandia’s hiring manager recommended to her superiors that CDW be hired,

notwithstanding her GPA, because she had a stellar work history, had significant

knowledge and experience relevant to the job, and had demonstrated that she

could “easily compete with colleagues with a stronger GPA.” Aplt. App. at 179.

The district court ruled that plaintiff failed to meet his burden of showing he was

similarly situated to CDW because she was an existing employee who had

demonstrated by her prior performance that she could match those applicants with

higher GPAs. See Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1178

(10th Cir. 2000) (holding that internal employee who was not required to be

interviewed was not similarly situated to outside applicant who performed poorly

on interview).

      Plaintiff contends the outside-applicant-current-employee distinction is

superficial and that a reasonable fact-finder could conclude from CDW’s hire that

Sandia’s below-minimum GPA explanation was pretext. We disagree. The fact

that CDW was an existing employee is a relevant distinction, see id., as are her

demonstrated intellectual competence and significant relevant job experience,

Kendrick, 220 F.3d at 1232 (holding that work histories and relevant employment




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circumstances should be considered in determining whether two employees are

similarly situated).

      Plaintiff also contends the district court erred in accepting Sandia’s

Selection Justification Memo as evidence because it was merely a subjective

recommendation, not evidence of why the actual decisionmakers hired CDW. We

do not consider this argument, because it is raised for the first time on appeal. 1

See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992)

(observing general rule that appellate court will not consider an issue not passed

upon by district court). We agree with the district court that plaintiff failed to

show he was similarly situated to CDW.

      Pretext as to Application of 80/20 Policy. Plaintiff’s remaining claims of

error relate to the district court’s finding that plaintiff did not raise any issue of

genuine fact on the issue of pretext with respect to Sandia’s 80/20 policy. He

first asserts that the district court erred in allowing affidavits from Sandia’s hiring

officials who testified that, well before plaintiff submitted his resume, supervisors



1
        Contrary to 10th Cir. R. 28.2(C)(2), plaintiff fails to indicate where he
raised this issue before the district court. Id. ( “For each issue raised on appeal,
all briefs must cite the precise reference in the record where the issue was raised
and ruled on.”). We are able to find only a vague comment by plaintiff’s counsel
to the court, certainly not in the form of an objection, that the Selection
Justification Memo is not dated. Aplt. App. at 275. We therefore decline to
consider this argument. See State Ins. Fund v. Ace Transp. Inc ., 195 F.3d 561,
564 n.3 (10th Cir. 1999); 10th Cir. R. 10.3(B).

                                           -8-
had informed them that Sandia had discontinued applying the 80/20 policy to the

position sought by plaintiff. The district court ruled that these affidavits were not

inadmissible hearsay, as argued by plaintiff, because they were not admitted for

the truth of the matter, but rather as evidence of the hiring officials’ belief and

understanding that the 80/20 policy did not apply to plaintiff’s application.

Plaintiff contends on appeal this distinction is academic, and argues, for the first

time on appeal, that this evidence was unduly prejudicial under Fed. R. Civ. P.

403. We find no abuse of discretion in the district court’s consideration of this

evidence. See In re Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000).

      Further, we agree with the district court, for the reasons thoroughly stated

in its order, that plaintiff did not create a genuine issue of material fact

controverting Sandia’s evidence that the 80/20 policy was not applied to him.

Sandia presented uncontroverted evidence that all of those involved in the hiring

process believed Sandia’s 80/20 policy did not apply to the position sought by

plaintiff, did not consider this policy when considering plaintiff’s applications,

and rejected his applications because he lacked the relevant job experience and

did not meet the minimum GPA. “To show pretext, the plaintiff must call into

question the honesty or good faith” of the employer’s assessment of the situation.

Exum v. United States Olympic Comm., 389 F.3d 1130, 1137 (10th Cir. 2004);

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999),


                                          -9-
abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101 (2002) (“The relevant inquiry is not whether [the employer’s] proffered

reasons were wise, fair or correct, but whether [it] honestly believed those reasons

and acted in good faith upon those beliefs.”).

      Lastly, plaintiff contends the district court committed reversible error when

it noted evidence that Sandia did hire workers in the protected over-forty age

group. The district court did not, as argued by plaintiff, rely on this as evidence

that Sandia’s explanation for not hiring plaintiff was not pretextual. Rather, the

district court merely commented on this evidence in the context of plaintiff’s

claim that there was statistical evidence that Sandia still applied the 80/20 policy

when it considered his application.

      In summary, we conclude from our review of the evidence that plaintiff did

not carry his burden of showing that Sandia’s proffered reasons for not hiring him

were unworthy of belief. The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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