                          UNITED STATES COURT OF APPEALS

                                      TENTH CIRCUIT



 RONALD L. KIRKLAND,

           Plaintiff-Appellant,
 v.                                                              No. 97-8073
 SAFEWAY INC., a Delaware                                 (D.C. No. 96-CV-264-J)
 corporation,                                                     (Wyo.)

           Defendant-Appellee.


                                          ORDER
                                    Filed August 5, 1998


Before TACHA and BALDOCK, Circuit Judges, and GREENE, Senior District Judge.*


       Plaintiff’s petition for rehearing, filed with the Court on July 27, 1998, is granted

in part. Pages one, three and six of the Court’s order and judgment, filed on July 10,

1998, are hereby corrected to reflect that Defendant terminated Plaintiff on January 9,

1996. The clerk is directed to amend the order and judgment accordingly. Plaintiff’s

petition for rehearing is denied in all other respects.

                                                   Entered for the Court,

                                                   Per Curiam.



       *
              Honorable J. Thomas Greene, Senior United States District Judge for the
District of Utah, sitting by designation.
                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit

                                                                                  JUL 10 1998
                          UNITED STATES COURT OF APPEALS
                                                                             PATRICK FISHER
                                     TENTH CIRCUIT                                    Clerk



 RONALD L. KIRKLAND,

           Plaintiff-Appellant,
 v.                                                            No. 97-8073
 SAFEWAY INC., a Delaware                                (D.C. No. 96-CV-264-J)
 corporation,                                                   (D. Wyo.)

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before TACHA and BALDOCK, Circuit Judges, and GREENE, Senior District Judge.**


       Plaintiff Ronald L. Kirkland worked for Defendant Safeway for approximately 25

years before he was terminated on January 9, 1996. As a result of his termination,

Plaintiff filed suit in the United States District Court for the District of Wyoming alleging

that Defendant targeted him for termination on the basis of age in violation of the 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.
       **
              Honorable J. Thomas Greene, Senior United States District Judge for the
District of Utah, sitting by designation.
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621. Plaintiff also raised

several Wyoming state law claims in relation to his termination including: (1) breach of

contract; (2) promissory estoppel; and (3) breach of the covenant of good faith and fair

dealing. The district court granted summary judgment in favor of Defendant on all

claims. On appeal, Plaintiff argues that the district court erred in granting Defendant’s

summary judgment motion. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

                                            I.

       Plaintiff began working full time for Defendant in 1970. Starting as the head clerk

in one of Defendant’s Denver, Colorado stores, Plaintiff rose through the ranks and

ultimately landed a job managing Defendant’s Riverton, Wyoming store. During most of

Plaintiff’s tenure with Defendant, the company utilized a program known as “downward

evaluation” to evaluate its employees’ performance. Under “downward evaluation,”

employees were evaluated by their immediate supervisor on an approximate annual basis.

The employee was then allowed to comment on the evaluation. Following the employee

comment period, the evaluator’s immediate supervisor reviewed and approved or

disapproved the report.

       Plaintiff performed well under the “downward evaluation” system. Between 1990

and 1994, Plaintiff consistently received favorable “downward evaluations” from his

supervisor. In 1993, Plaintiff received an award for being store manager of the year for

the Cheyenne District. In 1994, however, Defendant introduced a new method for


                                             2
evaluating its store managers termed “upward evaluation.” Under this method, the

company mailed evaluation forms to the homes of its managers’ subordinates. The form

listed several criteria and asked the employee to rate his or her manager for each criteria

on a scale of one to five, with one being the best score and five being the worst. The

company then averaged the scores for each criteria. The company determined that, under

this new system of evaluation, a score of 2.5 or less indicated acceptable managerial

performance.

       Although Plaintiff performed well under the company’s former evaluation system,

his performance was unacceptable under the “upward evaluation” system. In his first

“upward evaluation,” Plaintiff received a 3.03 – a score well outside the acceptable range.

The company informed Plaintiff that his score was not satisfactory and that improvement

was necessary. In his second “upward evaluation”, Plaintiff received a 2.64 – a marked

improvement from his prior score, but still not within the acceptable range. The company

again informed Plaintiff that his score was inadequate and offered support services to

help Plaintiff improve his score. The company also informed Plaintiff that if he received

another unacceptable “upward evaluation” score that he could be terminated. In October

1995, Plaintiff received his final “upward evaluation.” Plaintiff’s final evaluation

resulted in a score of 2.75. Finding this score unacceptable, the company terminated

Plaintiff on January 9, 1996. This lawsuit ensued.




                                              3
                                               II.

                                               A.

       We review the district court’s grant of summary judgment de novo. United States

v. Telluride Co.,    F.3d    , 1998 WL 337856 at *2 (10th Cir. 1998). In doing so, we

view the evidence in a light most favorable to the non-moving party, and will uphold the

decision only if no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law. Jeffries v. Kansas,     F.3d    , 1998 WL 318533 at * 6

(10th Cir. 1998). A mere scintilla of evidence supporting the non-moving party’s theory

does not create a genuine issue of material fact. Lawmaster v. Ward, 125 F.3d 1341,

1347 (10th Cir. 1997). Instead, the non-moving party must present facts such that a

reasonable jury could find in its favor. Id.

       The ADEA provides that “[i]t shall be unlawful for an employer . . . to discharge

any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail

on an ADEA claim, a plaintiff must prove that age was a determining factor in the

employer’s decision to terminate the plaintiff. Greene v. Safeway Stores, Inc., 98 F.3d

554, 557 (10th Cir. 1996). The plaintiff need not prove that age was the sole factor

behind his termination. Id. Instead, the plaintiff must prove that “age made the

difference in the employer’s decision.” EEOC v. Sperry Corp., 852 F.2d 503, 507 (10th

Cir. 1984). A plaintiff may prove his ADEA claim “by presenting direct or circumstantial

evidence that age was a determining factor in his discharge, Lucas v. Dover Corp., 857


                                               4
F.2d 1397, 1400 (10th Cir. 1988), or the plaintiff may employ the burden shifting device

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and

Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). Greene, 98 F.3d

at 557.

          Plaintiff argues that he carried his burden of proof under either of these methods

for establishing an ADEA claim. Therefore, he argues that the district court erroneously

granted Defendant’s motion for summary judgment.

                                             B.

          In order to make a prima facie showing of age discrimination under McDonnell

Douglas, Plaintiff must prove that he was : (1) within the protected age group; (2) doing

satisfactory work; (3) discharged despite the adequacy of this work; and (4) replaced by a

younger person. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 529 (10th Cir.

1994). Plaintiff and Defendant agree that Plaintiff met his burden as to the first, second

and fourth elements. The parties disagree, however, over whether Plaintiff showed that

he performed his job in accordance with Defendant’s legitimate expectations.

          Plaintiff argues that he produced evidence to the district court which showed that

he was performing his job at an acceptable level. Pointing to his performance evaluations

under Defendant’s old evaluation system and his 1993 manager of the year award,

Plaintiff contends that he made a prima facie showing that he was qualified for the

position from which he was discharged. The record in this case, however, clearly


                                                  5
supports the district court’s finding that Plaintiff’s job performance did not meet

Defendant’s legitimate expectations under its “upward evaluation” system.

       Although Plaintiff performed acceptably under Defendant’s old management

criteria, in 1994, the qualifications Defendant required its managers to possess and the

method for ensuring its managers maintained those qualifications changed. Defendant

evaluated Plaintiff under its new system on three occasions. Plaintiff never received a

favorable evaluation. After each poor performance, Defendant notified Plaintiff that the

test indicated his skills were inadequate and offered support services to help him improve

his managerial skills and achieve an acceptable score. After Plaintiff scored poorly on his

second evaluation, Defendant notified him that one more evaluation outside the

acceptable range could result in his termination. On his third evaluation, Plaintiff’s score

increased, placing him even further outside the acceptable performance range.

Consequently, on January 9, 1996, Defendant terminated him.

       In order to proceed under McDonnell Douglas, Plaintiff was required to make a

prima facie showing that he was performing satisfactorily under the criteria in place at the

time Defendant terminated him. See Denisi v. Dominicks Finer Foods, Inc., 99 F.3d 860,

865 (7th Cir. 1996). Plaintiff presented no such evidence. Instead, the record shows that

at the time of termination, Plaintiff’s performance did not meet his employer’s legitimate

expectations. Accordingly, we conclude Plaintiff failed to make the prima facie showing

of age discrimination required to proceed under McDonnell Douglas.


                                             6
                                            C.

       Plaintiff argues that even if he failed to prove a prima facie case under McDonnell

Douglas, he presented enough direct and circumstantial evidence to preclude summary

judgment. Before the district court, Plaintiff presented evidence which he claims showed

that: (1) he was a long-time employee of Defendant; (2) he scored well under Defendant’s

old evaluation system; (3) he possessed the same qualifications as when he was originally

hired; (4) his work was satisfactory; (5) Defendant terminated him and older managers to

prevent their age-based pensions from vesting; (6) Defendant terminated eight managers

in the protected class under the “upward evaluation” system; (7) expert testimony showed

that the “upward evaluation” system was designed to discriminate against older workers;

and (8) Defendant’s agent informed Plaintiff that he did not fit the “new management

style.” Plaintiff contends that this evidence created a genuine issue of material fact which

was not properly decided on summary judgment.

       Plaintiff argues that the outcome of this case is controlled by our decision in

Greene v. Safeway Stores, Inc., 98 F.3d 554 (10th Cir. 1996). In Greene, we held that an

ADEA plaintiff produced evidence sufficient to withstand the defendant’s motion for

judgment as a matter of law. Reviewing the evidence, we found several facts from which

a jury could infer age discrimination. First, we found significant the fact that after

Safeway hired a new president, eight managers, only one of retirement age, departed

“virtually en masse” from Safeway’s ranks. We concluded that this fact evidenced a


                                              7
pattern from which a reasonable jury could infer age discrimination. Second, we found

that the president’s statements that the plaintiff “did not fit in with the new culture,” made

against the backdrop of older executives being replaced by younger executives, could

create an inference of age discrimination. We also found persuasive evidence that the

defendant temporarily replaced the plaintiff with an older employee. We noted that this

action could create an inference that the temporary replacement was hired in order to

ward off an age discrimination claim. Finally, we found important the fact that the

plaintiff was fired prior to vesting in an “exclusively age-based” plan. Greene, 98 F.3d at

563. We concluded that these facts, viewed in a light most favorable to the plaintiff,

raised a fact question for the jury.

       We find significant differences between this case and Greene. Plaintiff argues that

the record demonstrates a pattern of terminating “at-risk” employees similar to the pattern

upon which we relied in Greene. In his brief, Plaintiff asserts that out of 82 managers

evaluated using Defendant’s new system, that eight were terminated and that all eight

were within the protected class. At oral argument, Plaintiff retreated somewhat from this

assertion stating that Defendant terminated eight managers over the age of forty and one

under the age of forty.1 Examined closely, this evidence does not demonstrate the type of


       1
               Although the difference in Plaintiff’s representations in his brief and at oral
argument is seemingly trivial, when viewed in light of the actual numbers at play in this
case, the difference is significant. The evidence Plaintiff presented to the district court
showed that of approximately 120 managers subject to “upward evaluation,” only eleven
were below the age of forty. Thus, roughly nine percent of Defendant’s managers were

                                              8
pattern present in Greene. The record shows that Defendant terminated the eight

managers in this case over a period of several months.2 Therefore, unlike Greene, there

was no en masse departure of store managers. Moreover, the record before the district

court contained evidence tending to show that the eight “upward evaluation” based

terminations did not show age discrimination in a statistically significant manner. The

record contains no credible evidence to rebut this statistical analysis.3

       Plaintiff also contends that a jury could infer age discrimination in this case

because Defendant terminated him only a few years before his “age-based” pension

vested. Relying almost entirely on a retirement benefits handbook circulated to

employees by Defendant, Plaintiff argues that his pension was age-based and that



below age forty. If accepted as true, the representation in Plaintiff’s brief suggests that
managers under forty were not impacted by “upward evaluation.” An inference could
therefore be drawn that the system was designed to discriminate against older workers. If
Plaintiff’s representation at oral argument is true, however, the numbers tend to show that
managers under age forty were impacted in a manner roughly equivalent to their
representative number – approximately ten percent. Therefore, although the difference
between Plaintiff’s representations is seemingly slight, the inferences which a reasonable
juror could draw from the two are significant.
       2
              Although Plaintiff states that Defendant terminated these “at-risk”
managers “within a few days of each other,” our reading of the record suggests that the
terminations took place over the course of several months.
       3
               Plaintiff did present a report prepared by Dr. John H. Jackson. The district
court found that Dr. Jackson’s report did “not show in a meaningful way that older
workers within the protected age group were affected proportionately more than workers
outside of the protected age group.” After reviewing the report, we agree with the district
court, that even viewed in a light most favorable to Plaintiff, the report does little to show
that Plaintiff was fired as a result of age.

                                              9
Defendant terminated him prior to vesting. Defendant insists, however, that the plan is

based, not on age, but years of service and that Plaintiff was fully vested at the time of

termination. Our review of the evidence on this point, which is noticeably lacking,

indicates that the program is based on years of service and that Plaintiff was vested when

he was terminated. See Aple. Supp. App. at 278. The burden was on Plaintiff to present

evidence supporting his argument. The absence of record evidence compels our

conclusion that he did not meet his burden.

       We also reject Plaintiff’s assertion that his previous work record and self-serving

statements create an inference of age discrimination. In 1994, Defendant implemented a

new evaluation system. Plaintiff presented no credible evidence to the district court

suggesting that Defendant designed the new system to discriminate against managers on

the basis of age or that the system disproportionately impacted older managers. Nor did

Plaintiff present any evidence showing that he performed acceptably under the new

criteria. The record before us demonstrates, at most, that Plaintiff was qualified to be a

store manager under a system which Defendant set aside in favor of what it believed to be

a more effective method of management and evaluation. Accordingly, Plaintiff’s

evidence of prior acceptable performance is insufficient to create a genuine factual issue.

       Plaintiff finally argues that a reasonable jury could infer age discrimination from

Defendant’s statement that he “did not fit Safeway’s new management style.” In Greene,

we held that the plaintiff’s supervisor’s statements that the plaintiff “didn’t fit in with the


                                              10
new culture” and that he wanted to move forward with his “new team and I don’t have a

place for you on the new team” could create an inference of age discrimination. 98 F.3d

at 561. No such statements exist in this record. Indeed, the page in the record which

Plaintiff cites in support of this argument contains only a statement that Plaintiff did not

possess an “appropriate” management style. Absent the special circumstances in Greene

and some evidence showing that the statement implicated Plaintiff’s age, we believe this

statement does not create an inference of age discrimination.

       After carefully reviewing the record and viewing the evidence in a light most

favorable to Plaintiff, we conclude Plaintiff failed to produce evidence sufficient to

demonstrate a genuine issue of material fact as to whether Defendant discriminated

against him on the basis of age. Accordingly, we conclude the district court correctly

granted summary judgment on Plaintiff’s ADEA claim in favor of Defendant.

                                             III.

       In addition to his ADEA claim, Plaintiff also claims that Defendant’s actions gave

rise to claims under Wyoming state law. Before the district court, Plaintiff argued that

Defendant’s human resource manual created an implied employment contract which

Defendant breached when it terminated him, that his employment relationship with

Defendant was such that Defendant owed him a duty of good faith and fair dealing and

that Defendant’s actions gave rise to a claim for promissory estoppel. In a thorough

memorandum opinion, the district court disagreed and granted Defendant’s motion for


                                             11
summary judgment.

       On appeal, Plaintiff contends that the district court erroneously determined that no

genuine issue of material fact existed regarding his state law claims.4 We have reviewed

the parties’ briefs, the district court’s order, and the entire record before us. We conclude

that the district court committed no reversible error by granting summary judgment in

favor of Defendant on these claims.

       AFFIRMED.



                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




       4
               Plaintiff raises for the first time in his reply brief that the district court
erroneously granted summary judgment on his promissory estoppel claim. Because
“issues not raised in the opening brief are deemed abandoned or waived,” Coleman v. B-
G Maintenance Mgmt. of Colorado, 108 F.3d 1199, 1205 (10th Cir. 1997), we limit our
review to his breach of implied contract and breach of covenant of good faith and fair
dealing claims.

                                             12
