                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                      February 13, 2006
                          FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

    JIM FOSTER; DWIGHT MOORE;
    RAY O’BRYAN; ROGER KILGORE;
    PAUL JONES; KEITH ROBERTS;
    MAYNARD CASTOE; JERRY HARP;
    DOUGLAS BRANNON; MIKE
    TAYLOR; DAVID HOUSTON; JOEL                        No. 05-5017
    JAKUBOWSKI; DONALD BOYLES;                  (D.C. No. 01-CV-600-P(M))
    DEETTA HAWKINS; CECIL                              (N.D. Okla.)
    ZORNES; BENNY MORRISON;
    MATTHEW KISSIRE; JIM MILLER;
    JACK MCKERRELL; JERRY
    DECKER; JAMES HILL; VERNON
    HARRIS; JOHNNY BAILEY; JOHN
    PALMER; LAWRENCE
    BLACKBOURN; DANNY
    POSTRACH,

              Plaintiffs-Appellants,

    v.

    RUHRPUMPEN, INC., a corporation,

              Defendant-Appellee.


                          ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


*
      This order and judgment is not binding precedent, except under the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.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiffs appeal the district court’s grant of summary judgment dismissing

their age discrimination complaint against Ruhrpumpen, Inc. We affirm.

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

forth in the district court’s thorough opinion as well as this court’s prior decision

in this case. See Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1192 (10th Cir.

2004) (reversing the district court’s initial grant of summary judgment on the

grounds that plaintiffs failed to exhaust their administrative remedies). Thus,

we briefly recite only those facts necessary to explain this decision.

      Ruhrpumpen acquired a pump manufacturing plant from Flowserve, Inc.

Flowserve terminated all of its employees, including plaintiffs. Ruhrpumpen

invited the former Flowserve employees to apply for employment, and plaintiffs

were among those who applied. Ruhrpumpen asked Flowserve’s Superintendent

of Production, Mike Brantley, to evaluate the skill level, work habits, and

on-the-job attitude of all of the terminated Flowserve employees. Ruhrpumpen

hired fifty-seven of the former Flowserve employees, not including plaintiffs.

Plaintiffs then filed a complaint alleging Ruhrpumpen had violated their

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rights under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§§ 621-634. Id.

       The district court granted Ruhrpumpen’s motion for summary judgment.

It ruled that plaintiffs failed to present evidence establishing 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). It further ruled that even if plaintiffs had made out a prima facie

case, Ruhrpumpen had presented legitimate, non-discriminatory reasons for not

hiring them, and plaintiffs had failed to present evidence that Ruhrpumpen’s

reasons for not hiring them were pretext for discrimination.    See id . at 1226, 1230

(describing burden-shifting analysis of circumstantial-evidence ADEA claim, and

holding that plaintiff can withstand summary judgment if he presents evidence

that employer’s reason for the employment decision is “pretextual-i.e. unworthy

of belief”).

       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

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


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

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

414 F.3d at 1273.

      On appeal, plaintiffs contend that the district court erred in ruling that they

failed to establish a prima facie case or to raise a genuine issue of fact as to the

element of pretext. We are doubtful that plaintiffs demonstrated all of the

elements necessary to establish a prima facie case of age discrimination. Even if

plaintiffs did establish a prima facie case of discrimination, however, their

discrimination claim still fails because they did not proffer evidence showing that

defendant’s reasons for not hiring them were simply a pretext for age

discrimination.

      Plaintiff does not dispute that Ruhrpumpen produced evidence of

legitimate, non-discriminatory reasons for not hiring plaintiffs, namely, that after

determining the number of workers it needed, it selected the most qualified

applicants based upon their skills, work habits, and on-the-job attitude of the

applicants, as determined from their employment applications and the objective

evaluations by Mike Brantley, the former Flowserve supervisor. The burden then

shifted to plaintiffs to present evidence that Ruhrpumpen’s proferred reason for

the employment decision was unworthy of belief. Kendrick, 220 F.3d at 1230.




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       Pretext may be demonstrated by revealing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action 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) (quotation omitted). Evidence of pretext

may include “prior treatment of plaintiff; the employer’s policy and practice

regarding minority employment (including statistical data); disturbing procedural

irregularities (e.g., falsifying or manipulating . . . criteria); and the use of

subjective criteria.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th

Cir. 2002) (quotation omitted).

       Plaintiffs made several arguments in support of their claim that

Ruhrpumpen’s justification for not hiring them is pretextual. First, they point to

a remark make by Don McCourt, the current president of Ruhrpumpen and former

operations manager for Flowserve. Two weeks before Flowserve sold the

pumping plant to Ruhrpumpen, McCourt told one of the plaintiffs that “some old

dogs will need to learn new tricks.” Aplt. App., Vol. I at 52. We agree with the

district court that this remark is too isolated and ambiguous to demonstrate any

nexus between it and Ruhrpumpen’s subsequent hiring decisions. See Stone v.

Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (concluding that isolated,


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ambiguous remarks may be too abstract to support an inference of age

discrimination); see also Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531

(10th Cir. 1994) (“Isolated comments, unrelated to the challenged action, are

insufficient to show discriminatory animus in termination decisions.”). The

circumstances of McCourt’s remark are unclear; the only evidence is his

testimony that he was referring to a management employee’s treatment of

employees, and had nothing to do with any plaintiff or with any employee’s age.

The remark is ambiguous, in the sense that it is susceptible to more than one

interpretation; isolated, in the sense that it was only made once; and stray, in the

sense that plaintiff has not shown an adequate nexus between the remark and

Ruhrpumpen’s decision not to hire plaintiffs. See Stone, 210 F.3d at 1140.

      Plaintiffs next make two statistical arguments. First, plaintiffs contend that

if one compares the hired to not-hired applicants by job classification, the average

age difference is lower for the hired workers in every category, with a low of

2.5 years to a high of 27.2 years. Second, they contend that the average age of

the fifty-seven workers hired by Ruhrpumpen was 47.8 years old, whereas the

average age of the workers not hired was 52.8 years old. Ruhrpumpen disputes

the number of not-hired applicants used by plaintiffs in their comparison, and

presents contrary evidence showing that the average age of the fifty-seven hired




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applicants was 48 years old, and the average age of the forty-nine applicants not

hired was 48.55 years, a difference of only six months. 1

      We agree with the district court that, even using the comparison

propounded by plaintiffs, plaintiffs’ evidence is inadequate to demonstrate

pretext. While “[s]tatistical data showing an employer’s pattern of conduct

toward a protected class can create an inference that an employer discriminated

against individual members of the class,” Fallis v. Kerr-McGee Corp., 944 F.2d

743, 746 (10th Cir. 1991) (citation omitted), this court has also cautioned against

its usage. “Statistics taken in isolation are generally not probative of age

discrimination.” Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995).

To create an inference of discrimination, statistical evidence “must show a

significant disparity and eliminate nondiscriminatory explanations for the

disparity.” Fallis, 944 F.2d at 746 (citation omitted). Plaintiffs’ statistical

evidence does neither: it does not show a significant disparity, and it fails to

eliminate nondiscriminatory reasons for the numerical disparities.




1
       Plaintiffs state that ninety-four Flowserve employees applied, and use the
average age of this group as its basis for comparison. Ruhrpumpen presents
evidence that 106 former Flowserve employees applied. Ruhrpumpen contends
that plaintiffs have intentionally reduced the applicant pool to increase the age
disparity, and presented evidence that those omitted from plaintiffs’ calculation
include eleven applicants under age forty.

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      “[A] plaintiff’s statistical evidence must focus on eliminating

nondiscriminatory explanations for the disparate treatment by showing disparate

treatment between comparable individuals.” Id. (citation and emphasis omitted).

“Statistical evidence which fails to properly take into account nondiscriminatory

explanations does not permit an inference of pretext.” Martinez v. Wyo., Dep’t

of Family Servs., 218 F.3d 1133, 1139 (10th Cir. 2000). In this case, plaintiffs’

comparisons of the overall ages of the hired and not-hired applicants are too

simplistic; they fail to take into account individual differences in skill or

qualifications and fail to eliminate nondiscriminatory reasons for any age

difference. Therefore, this evidence is insufficient to raise a genuine issue of

material fact as to pretext. Cf. Doan v. Seagate Tech., Inc., 82 F.3d 974, 979

(10th Cir. 1996); Jones, 54 F.3d at 632.

      As to the “significant disparity” requirement, it is true that this court has

declined to adopt a bright-line rule that a difference of five years is an

insignificant difference as a matter of law under the ADEA. Whittington v.

Nordam Group Inc., 429 F.3d 986, 995 (10th Cir. 2005). Nevertheless, where a

plaintiff relies on statistical evidence, he “must show ‘gross statistical

disparities.’” Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1424 (10th Cir.

1991) (quoting Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08

(1977)). We agree with the district court that plaintiffs’ evidence in this case


                                           -8-
does not reliably demonstrate such a gross disparity as to create an inference of

discrimination. Cone, 14 F.3d at 532 (finding plaintiff’s statistics invalid because

they did not “demonstrate a significant disparity in the treatment of younger

workers”). We further agree with the district court that the small number of

employees within each of the eleven job classifications is too small in this case to

provide reliable statistical results. Cf. Fallis, 944 F.2d at 746 (holding that

statistical analysis of nine employees too small to have any probative force to

show discrimination).

      Plaintiffs perfunctorily list two other reasons why they believe

Ruhrpumpen’s explanation for not hiring them is pretext: that those not hired

were, “by and large,” more qualified than those hired and that Ruhrpumpen

did not ask all Flowserve employees to complete an employment application.

Aplt. Br. at 18-19. The district court concluded that the evidence plaintiffs

presented relative to these claims failed to demonstrate pretext. Plaintiffs do not

put forward any reason, argument, or legal authority showing why they believe

the district court erred in so ruling. See id. at 18-21. “[S]uch perfunctory

complaints fail to frame and develop an issue sufficient to invoke appellate

review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). “It is

insufficient merely to state in one’s brief that one is appealing an adverse ruling

below without advancing reasoned argument as to the grounds for the appeal.”


                                          -9-
Am. Airlines v. Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992); see also

Fed. R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . appellant’s

contentions and the reasons for them, with citations to the authorities and parts of

the record on which the appellant relies.”).

      The judgment of the district court is AFFIRMED.

                                                    Entered for the Court


                                                    Robert H. Henry
                                                    Circuit Judge




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