                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 24 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    BEVERLY MITCHELL,

                Plaintiff-Appellant,

    v.                                                    No. 00-8028
                                                      (D.C. No. 98-CV-315)
    HAWPE CONSTRUCTION, INC.,                               (D. Wyo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and MURPHY , 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.

         Plaintiff Beverly Mitchell appeals the district court’s judgment in favor of

her former employer, defendant Hawpe Construction, Inc., in this age



*
      This order and judgment is not binding precedent, except under the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.
discrimination proceeding. Because the evidence at trial was sufficient to support

the district court’s factual finding, we affirm.

      Plaintiff was employed by defendant as a painter’s helper between

August of 1994 and October of 1997, at which time she was laid off. Plaintiff

was sixty-two years old when her employment terminated. Because plaintiff

believed that she was laid off based on her age, she brought this action against

defendant pursuant to the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621-34. After a bench trial, the district court found the following facts.

      Before working for defendant, plaintiff worked for Crimson Enterprises,

assisting master painter Joe Diaz. Jack Freeman, defendant’s Vice President of

Operations, hired both Diaz and plaintiff to perform work at Warren Air Force

Base. In the summer of 1997, Diaz suffered a work-related injury and was unable

to continue working. Defendant hired a new master painter, Scott Finnell, and

retained plaintiff to work as his assistant. Defendant also hired another painter’s

helper, Ed Mazur, who was approximately thirty years younger than plaintiff.

      In September of 1997, defendant was in danger of losing its contract at

Warren Air Force Base due to complaints about its performance. Defendant’s

owner, Marilyn Hawpe, ordered Jack Freeman to take necessary steps to retain

the contract. In October 1997, Jack Freeman fired the current project manager

and replaced him with Loren Finney, who had worked for defendant since 1989.


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Freeman and Finney evaluated the crews, including the paint crew, and decided to

reduce the paint crew as the work began to slow in October. They delegated the

decision of which assistant would be laid off to Scott Finnell, subject to their

approval. Finnell chose to lay off plaintiff and retain Ed Mazur because he could

be trained as a spray painter. At that time, plaintiff was informed that she was

being laid off due to a lack of work.

      Two weeks later, Scott Finnell was terminated and replaced by a master

painter who had worked many years for defendant on other projects. Several

other employees were terminated at the same time. After taking these actions,

defendant’s productivity and profitability increased dramatically.

      The district court concluded that plaintiff was terminated as part of

defendant’s legitimate business decision to restructure its operations, and that she

did not show that her termination was motivated by age discrimination. Plaintiff

appeals this decision, arguing that it is contrary to the evidence. Specifically,

plaintiff argues that the district court’s finding that Scott Finnell made the

decision regarding which painter’s helper should be laid off cannot stand in light

of Finnell’s testimony that he was informed when hired that part of his job would

be to terminate the “old” paint crew; that Jack Freeman instructed him to

terminate plaintiff and retain Ed Mazur; and that Freeman didn’t want to do it

himself because he was afraid of discrimination. She also points to affidavits


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submitted by Jack Freeman and Loren Finney which she claims conflict with their

later trial testimony that they delegated the decision of which assistant to

terminate to Scott Finnell.

       “In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo.”        Keys Youth Servs.,

Inc. v. City of Olathe , 248 F.3d 1267, 1274 (10th Cir. 2001). A finding of fact is

“clearly erroneous” when “although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that

a mistake has been committed.”       Anderson v. City of Bessemer City     , 470 U.S. 564,

573 (1985) (quotations omitted). “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Id. at 574. This deference is even greater when the factual finding rests on

a determination regarding the credibility of a witness. That is, “when a trial

judge’s finding is based on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and facially plausible story

that is not contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.”    Id. at 575.

       Here, there was significant evidence that although Jack Freeman and Loren

Finney made the decision that one of the assistant painters should be terminated,

they gave Scott Finnell the choice regarding which assistant to retain, subject to


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their approval.   See R. Vol. I at 208-10 (plaintiff’s testimony regarding letter she

wrote two weeks after termination in which she reported Scott Finnell told her he

had discretion as to which assistant would be laid off); Vol. II at 281, 283-84,

302, 319-24 (Jack Freeman’s testimony that he and Loren Finney decided for

economic reasons that a painter’s helper should be laid off; that the decision

which helper would be laid off was given to Scott Finnell because he, as the

master painter, was ultimately responsible for getting the work accomplished; that

Finnell chose to lay off plaintiff because the other helper was more flexible and

Finnell wanted to train him to be a spray painter; and that Freeman approved the

decision); Vol. II at 350-54, 371 (Loren Finney’s testimony that he determined

there was not enough work to justify a master painter and two helpers and that the

painting crew had to be reduced; that Scott Finnell chose to lay off plaintiff and

retain Ed Mazur because he was more trainable, and that Finney approved the

decision to terminate plaintiff). There was also evidence that Scott Finnell had

a motivation to lie because he was very angry when his employment was

terminated in November 1997.      Id. at 300.

       The statements made by Jack Freeman and Loren Finney in their affidavits

do not necessarily contradict this testimony. Jack Freeman’s affidavit states that,

as defendant’s representative, he made the determination to lay off plaintiff

because of a decline in the work requirements and for no other reason.     Id. at 381.


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This is not inconsistent with his trial testimony that he decided a painter’s helper

must be laid off for economic reasons, and that he approved Finnell’s choice to

terminate plaintiff. The same is true of Loren Finney’s affidavit, which states

that he personally took action to release the Warren Air Force Base painting

crew because of the slowdown in seasonal work and the need to keep defendant’s

long-term painting crew (who replaced plaintiff and Finnell) employed.        See id.

at 384. Although plaintiff disagrees with the district court’s decision to accept

the testimony of Freeman and Finney, this credibility determination finds support

in the record and will not be disturbed.   See Fed. R. Civ. P. 52(a).

       The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.


                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




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