                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       January 30, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    M ICHA EL A . O G LESB Y,

                Plaintiff-Appellant,
                                                          No. 05-3489
    v.                                            (D.C. No. 04-CV-2440-KHV)
                                                            (D . Kan.)
    HY-V EE, IN C.,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.




         Plaintiff M ichael A. Oglesby appeals the order entered by the district court

granting defendant Hy-Vee, Inc. summary judgment on his claim that Hy-Vee

terminated him from his employment at its store in O verland Park, Kansas,

because of his age in violation of the Age Discrimination in Employment Act



*
       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. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
(ADEA), 29 U.S.C. § 623(a)(1). 1 Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm the entry of summary judgment in favor of Hy-Vee. W e reach this

result because, while Oglesby put forth sufficient evidence to establish a prima

facie case of age discrimination in violation of the ADEA, we agree with the

district court that there are no genuine issues of material fact for trial on the

question of whether the legitimate nondiscriminatory reason proffered by Hy-Vee

for Oglesby’s termination (i.e., sleeping on the job) w as pretextual.

      A. Factual Background.

      W e commend the district court for its thoroughness in setting forth the

factual background pertaining to Oglesby’s age discrimination claim, and we will

not repeat that detailed background here. See Aplt. A pp., Vol. II at 442-57.

Specifically, we will assume a working familiarity with the detailed facts set forth

by the district court pertaining to the following categories of evidence:

(1) Oglesby’s employment background and his job responsibilities as a “scanning

coordinator” at the grocery store operated by Hy-Vee in O verland Park, Kansas,

id. at 442-43; (2) Oglesby’s relationship with his highest-ranking supervisor and

the person who terminated him, Brett Bremser, the store director at the Overland




1
      In his complaint, Oglesby also alleged that Hy-Vee violated the ADEA by:
(1) subjecting him to a hostile w ork environment; and (2) retaliating against him
because he complained about age discrimination at the Overland Park store.
Oglesby has abandoned both of these claims, however, and we therefore do not
need to consider them.

                                          -2-
Park store, id. at 443-44; (3) Oglesby’s allegations regarding the discriminatory

age-related comments that various employees at the Overland Park store made

to him betw een 2002 and his termination in M arch 2004, id. at 444-49; (4) the

termination of Oglesby’s employment at the Overland Park store in M arch 2004

for allegedly sleeping on the job, id. at 451-56; and (5) Hy-Vee’s treatment of

other employees at the Overland Park store, id. at 456-57.

      At the time of his termination, Oglesby was fifty-two years old. Hy-Vee

subsequently hired Belinda Siler to replace Oglesby as a scanning coordinator at

the Overland Park store. Siler is five years and seven months younger than

Oglesby, and she was forty-seven years old when she was hired by Hy-Vee.

      B. Summary Judgm ent Standards.

      “W e review a district court’s grant of summary judgment de novo, applying

the same legal standards used below.” Burke v. Utah Transit Auth. & Local 382,

462 F.3d 1253, 1257 (10th Cir. 2006). 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 a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “In applying this standard, we view the evidence and

draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Burke, 462 F.3d at 1258 (quotation omitted). “At the

summary judgment stage, a complainant cannot rest on . . . mere allegations, but

                                         -3-
must set forth by affidavit or other evidence specific facts, which for purposes of

the summary judgment motion will be taken to be true.” Id. (quotation omitted).

      C . L egal Framew ork for Analyzing Oglesby’s ADEA Claim.

      The district court correctly summarized the legal framew ork that governs

this case:

             The ADEA makes it unlawful for an employer “to fail or
      refuse to hire or to discharge any individual or otherwise
      discriminate against any individual with respect to his compensation,
      terms, conditions, or privileges of employment, because of such
      individual’s age.” 29 U.S.C. § 623(a)(1). To prevail on his AD EA
      claim, plaintiff must establish that age was a determining factor in
      the challenged decision. See Greene v. Safeway Stores, Inc., 98 F.3d
      554, 557 (10th Cir. 1996) (citing Lucas v. Dover Corp., 857 F.2d
      1397, 1400 (10th Cir. 1988)). Plaintiff need not show that age was
      the sole reason, but he must show that age “made the difference” in
      any adverse employment action. Id. (quoting EEOC v. Sperry Corp.,
      852 F.2d 503, 507 (10th Cir. 1988)). Plaintiff may meet this burden
      by direct evidence of age discrimination or by the burden-shifting
      framew ork of M cDonnell Douglas Corp. v. Green, 411 U.S. 792,
      802-05 (1973), and Tex. Dep’t of Comm’y Affairs v. Burdine,
      450 U.S. 248, 252-56 (1981). See Kendrick v. Penske Transp.
      Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). . . .

            Under M cDonnell Douglas, plaintiff initially bears the burden
      of production to establish a prima facie case of discrimination.
      411 U.S. at 802. If plaintiff establishes a prima facie case, the
      burden shifts to defendant to articulate a facially nondiscriminatory
      reason for its actions. See Reynolds v. Sch. Dist. No. 1, 69 F.3d
      1523, 1533 (10th Cir. 1995). If defendant articulates a legitimate
      nondiscriminatory reason, the burden shifts back to plaintiff to
      present evidence from which a jury might conclude that defendant’s
      proferred reason is pretextual, that is, “unworthy of belief.” Beaird
      v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998) (quoting
      Randle v. City of A urora, 69 F.3d 441, 451 (10th Cir. 1995)).

             ....

                                         -4-
             . . . Evidence of pretext may take a variety of forms. . . .
      Plaintiff can show pretext by pointing to “such weaknesses,
      implausibilities, inconsistencies, incoherencies, or contradictions in
      the employer’s proffered legitimate reasons for its action that a
      reasonable fact finder could rationally find them unw orthy of
      credence.” M organ v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
      1997) (quotations omitted). Typically, a plaintiff demonstrates
      pretext with evidence that (1) defendant’s stated reason for the
      adverse action was false; (2) defendant acted contrary to written
      company policy prescribing the action to be taken by defendant under
      the circumstances; or (3) defendant acted contrary to an unwritten
      policy or contrary to company practice when making the adverse
      decision. See Kendrick, 220 F.3d at 1230. Plaintiff can show pretext
      under the third category by showing that defendant treated him
      differently from other similarly situated employees who violated
      work rules of comparable seriousness. See id.

Aplt. App., Vol. II at 458-59, 461.

      Before proceeding to the merits of this appeal, we note that Hy-Vee has

misstated the showing that Oglesby must make to survive summary judgment.

In its brief, Hy-Vee argues that Oglesby “has not shown any evidence of age

discrimination – either in the prim a facie case or in the pretext prong.” Aplee.

Br. at 10. According to Hy-Vee, Oglesby has therefore “not established a triable

claim of age discrimination,” and summary judgment in its favor was thus

proper. Id.

      Hy-Vee is wrong, as it misapprehends the evidentiary showing that

a plaintiff must make to survive summary judgment in an age discrimination

case that is based on circumstantial evidence. On this point, our decision in




                                         -5-
Bryant v. Farmers Ins. Exch., 432 F.3d 1114 (10th Cir. 2005) is instructive.

As w e explained there, a plaintiff can survive summary judgment by putting forth

sufficient evidence of pretext, and it is not necessary to offer evidence of

discrimination:

             Our precedent does not require a plaintiff to offer any evidence
      of actual discrimination when attempting to show pretext. See Ingels
      [v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994), abrogated on
      other grounds, M artinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.
      2003)]. Evidence tending to show pretext permits an inference that
      the employer acted for discriminatory reasons. M organ, 108 F.3d
      at 1323. “Thus, a factfinder may, but is not required to, find
      discrimination when a plaintiff presents evidence that the defendant’s
      proffered reasons are unworthy of credence.” Ingels, 42 F.3d
      at 621-22. . . .

               ....

            In short, at the summary judgment stage, the inference of
      discrimination permitted by evidence of pretext must be resolved in
      favor of the plaintiff. See Simms [v. Okla. ex rel. Dep’t of M ental
      Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
      1999)]. Thus, once a plaintiff presents evidence sufficient to create
      a genuine factual dispute regarding the veracity of a defendant’s
      nondiscriminatory reason, we presume the jury could infer that the
      employer acted for a discriminatory reason and must deny summary
      judgment. See Morgan, 108 F.3d at 1323; Ingels, 42 F.3d at 621-22.

Id. at 1125.

      D. Prima Facie Case.

      The district court correctly set forth the elements of proof that are required

to establish a prima facie case of discriminatory discharge in an age

discrimination case such as this one. As the court explained:


                                          -6-
      Generally, to establish a prima facie case of age discrimination in
      termination or reassignment, plaintiff must show that (1) he w as a
      member of the protected age group, over age of 40; (2) he was doing
      satisfactory work; (3) he suffered an adverse employment action; and
      (4) defendant filled his position with a younger person. See Reeves
      v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000);
      Rivera v. City & County of D enver, 365 F.3d 912, 920 (10th Cir.
      2004). . . .

             In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S.
      308 (1996), the United States Supreme Court noted that to establish a
      prima facie case of age discrimination, plaintiff must produce
      evidence sufficient to create an inference that defendant based its
      employment decision on age. See id. at 312. W ith respect to the
      fourth element, the Supreme Court held that plaintiff need not show
      that defendant replaced him with an employee outside the protected
      class, i.e. under 40 years old. Id. at 312. Rather, the Supreme Court
      held that to create an inference of age discrimination with respect to
      the fourth element, plaintiff must show a significant age difference
      between him and the worker who replaced him. See id. at 313.

Aplt. App., Vol. II at 459-60.

      Here, the parties dispute only whether Oglesby has satisfied the fourth

element of his prima facie case. As noted above, at the time he was terminated,

Oglesby was fifty-two years old. Hy-Vee subsequently hired Belinda Siler to

replace Oglesby, and she was forty-seven years old at the time she was hired.

There was thus a five-year age difference between them.

      In Whittington v. Nordam Group Inc., 429 F.3d 986 (10th Cir. 2005), the

defendant employer argued that the Supreme Court’s decision in O’Connor

required this court “to establish a bright-line rule that a five-year age difference is




                                          -7-
insignificant as a matter of law in age-discrimination cases.” Id. at 994. W e

disagreed, and we explained our holding as follow s:

      [W ]e disagree with [defendant] that the five-year age difference
      would be dispositive. To be sure, the extent of the age difference
      between comparable employees is obviously relevant to the ultimate
      question of age discrimination. That [plaintiff] was only five years
      older than M r. Overbey, who kept his job, makes it more difficult
      for the jury to infer that [defendant] discriminated against [plaintiff]
      . . . because of his age. But that fact should be but one factor
      weighed by the jury.

             ....

            In our view , a definitive five-year rule is unjustified. W e are
      not convinced that all five-year age differences are the same. . . .

            To the extent that other circuits establish a direct-evidence
      requirement w hen the age difference is less than five years, we
      choose not to follow them. . . . W e decline to set rigid guidelines
      and will leave to the jury the evaluation of the evidence, subject as
      always to the oversight of the district court to refuse to permit
      unreasonable findings.

Id. at 995-96.

      In light of Whittington, we conclude that Oglesby satisfied the fourth

elem ent of his prima facie case, despite the fact that his replacement was only

five years younger than him.

      E. Analysis.

      The evidence shows that Bremser terminated Oglesby’s employment with

Hy-Vee on M arch 6, 2004 during a private meeting with Oglesby. Bremser’s

stated reason for terminating Oglesby was that he had allegedly gone to sleep



                                         -8-
during his work shift on M arch 3, 2004. Specifically, according to the “Employee

Termination Report” that he prepared after he fired Oglesby, Bremser terminated

Oglesby for “[t]heft of time. Employee was found to be sleeping for extended

period of time while on the clock.” Aplt. App., Vol. I at 140. Hy-Vee claims that

it cannot be liable for age discrimination because Bremser “genuinely believed

that Plaintiff intentionally slept on the job for an extended period of time,”

Aplee. Br. at 10, and Bremser therefore had a legitimate nondiscriminatory reason

for firing Oglesby. Oglesby does not dispute that sleeping on the job is a

legitimate nondiscriminatory reason for terminating an employee for purposes of

the M cDonnell Douglas burden-shifting framework. Thus, we focus exclusively

on the question of pretext.

      As the district court correctly pointed out, “[i]n determining whether

defendant’s stated reason is pretextual, the Court examines the facts as they

appeared to Bremser, the person who made the decision to terminate plaintiff’s

employment.” A plt. App., Vol. II at 462; see also Kendrick, 220 F.3d at 1231

(“[A] challenge of pretext requires us to look at the facts as they appear to the

person making the decision to terminate plaintiff.”). In addition, we have also

recognized that “a mistaken belief can be a legitimate reason for an employment

decision and is not necessarily pretextual.” Kendrick, 220 F.3d at 1231 (quotation

omitted). Consequently, in evaluating the legitimacy of an employer’s proffered

reason for terminating an employee, “[t]he relevant inquiry is not whether [the

                                          -9-
employer’s] proffered reasons w ere wise, fair or correct, but whether [it] honestly

believed those reasons and acted in good faith upon those beliefs.” Rivera, 365

F.3d at 924-25 (quotation omitted); see also Young v. Dillon Companies, Inc., 468

F.3d 1243, 1250 (10th Cir. 2006) (stating that “the relevant ‘falsity’ inquiry is

whether the employer’s stated reasons were held in good faith at the time of the

discharge, even if they later prove to be untrue”). As we have explained, “[t]he

reason for this rule is plain: our role is to prevent intentional discriminatory

hiring practices, not to act as a ‘super personnel department,’ second guessing

employers’ honestly held (even if erroneous) business judgments.” Young,

468 F.3d at 1250 (quoting Jones v. Barnhart, 349 F.3d 1260, 1267 (10th Cir.

2003)).

       The district court determined that “the [summary judgment] record does

not support an inference that [Hy-Vee’s] stated reason for the discharge is

pretextual.” A plt. App., Vol. II at 462. W e agree. Limiting our examination to

the facts as they appeared to B remser at the time he terminated Oglesby, we

conclude that Oglesby failed to put forth sufficient evidence to create a genuine

issue of material fact for trial on the question of whether Bremser’s proffered

legitimate reason for terminating Oglesby (i.e., sleeping on the job) is unworthy

of belief.

       To begin with, the only first-hand information that Bremser received

regarding the allegation that Oglesby was sleeping on the job during the early

                                          -10-
morning hours of M arch 3, 2004 is the information that he received from Jose

Estrada. Estrada was the night stock manager at Hy-Vee’s Overland Park store,

and he is the only person who allegedly witnessed Oglesby sleeping on M arch 3.

On M arch 5, Bremser and Estrada had a face-to-face meeting to discuss what

Estrada had witnessed on M arch 3. See Aplt. App., Vol. II at 228 (Bremser Dep.

pages 28-29). According to the affidavit that Bremser submitted in support of

Hy-V ee’s motion for summary judgment, Estrada told Bremser the following facts

at the meeting on M arch 5:

              10. On M arch 5, Joel Allen informed me that M r. Estrada had
       seen M r. Oglesby sleeping on the clock. I later met with Jose
       Estrada to discuss what he observed. M r. Estrada told me that on the
       last night M r. Oglesby worked, M r. Estrada went to the scanning
       office to get a box cutter and found the door locked. M r. Estrada did
       not have a key and turned to w alk away. As he w as leaving, he heard
       some noise. He told me he turned back around and saw the light turn
       on, and M r. Oglesby opened the door. M r. Estrada said he saw M r.
       Oglesby sitting in two chairs, and it appeared he had been sleeping.

              11. M r. Estrada also said that when he left the office after
       getting the box cutter, M r. Oglesby shut the door, turned off the light
       and remained in the office for an hour and a half.

Id., Vol. I at 124.

       Importantly, while Oglesby claims there are discrepancies in the different

statements that Estrada made regarding what he witnessed on M arch 3, Oglesby

has never directly disputed Bremser’s version of w hat Estrada told him. As a

result, the critical inquiry here is whether there is a genuine issue of material fact

as to whether Bremser had a good faith belief that Oglesby had been sleeping for

                                          -11-
an extended period of time based on the information he received from Estrada.

Like the district court, we conclude that Oglesby has failed to demonstrate that

there is a genuine issue of material fact on the question of Bremser’s good faith

belief.

          In reaching this conclusion, we have taken into consideration two points

that could arguably support a finding of bad faith on Bremser’s part. First,

Estrada did not tell Bremser that he actually saw Oglesby sleeping when he

arrived at the scanning office. Instead, it only “appeared he had been sleeping.”

Second, Estrada did not provide any first-hand information to Bremser to the

effect that Oglesby had gone to sleep at anytime after Estrada left the scanning

office. To the contrary, Estrada testified at his deposition that he never went back

to the scanning office to check on Oglesby.

          The lack of direct, conclusive evidence that Oglesby had in fact gone to

sleep on the job is not dispositive, however, because Bremser was presented with

ample circumstantial evidence that Oglesby was sleeping on the job. First,

Estrada told Bremser that the lights in the scanning office were off and the door

was closed when he arrived at the office, and Oglesby was “sitting in two chairs.”

Second, Estrada told Bremser that Oglesby turned the lights back off and shut the

door after he left the office. W e have no difficulty concluding that this

information provided a sufficient basis for Bremser to believe in good faith that

Oglesby was sleeping on the job. In addition, we do not see any basis for a jury

                                           -12-
to infer bad faith simply because Bremser relied on circumstantial evidence to

terminate O glesby. Accordingly, this is not a case w here “the employer’s

explanation was so weak, implausible, inconsistent or incoherent that a reasonable

fact finder could conclude that it was not an honestly held belief but rather was

subterfuge for discrimination.” Young, 468 F.3d at 1250.

      As noted above, Oglesby also claims there are discrepancies in the different

statements that Estrada made regarding what he witnessed on M arch 3.

Specifically, as summarized by the district court:

      [P]laintiff . . . states that Estrada’s version of events lacks credibility.
      Plaintiff contends that Estrada has changed his story several times.
      First, Estrada told [Herrick] that he saw plaintiff sleeping for 20 to
      30 minutes. Later, Estrada reported that plaintiff had slept for an
      hour and a half. Plaintiff also contends that Estrada gave conflicting
      statements whether he or plaintiff turned on the lights.

Aplt. App., Vol. II at 462. As the district court noted, however, “[p]laintiff points

to no evidence which demonstrates that Bremser had knowledge of such

discrepancies at the time he made the termination decision.” Id. Consequently,

any such discrepancies cannot support a finding of pretext.

      Oglesby also alleges that various employees at Hy-Vee’s Overland Park

store routinely made insulting comments about his age, and the alleged comments

are summarized in the district court’s memorandum and order. See Aplt. A pp.,

Vol. II at 444-47. According to O glesby, the alleged comments “were also

probative evidence of pretext.” Aplt. Opening Br. at 37. W e disagree. “A



                                          -13-
plaintiff must demonstrate a nexus exists between the allegedly discriminatory

statement[s] and the company’s termination decision,” Stone v. Autoliv ASP, Inc.,

210 F.3d 1132, 1140 (10th Cir. 2000), and Oglesby has failed to establish such a

nexus here. M oreover, there is no evidence indicating that Bremser ever made a

derogatory comment about Oglesby’s age, and “age-related comments by

non-decision makers are not material in showing [Hy-Vee’s] action was based on

age discrimination.” Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531

(10th Cir. 1994).

      Finally, in an attempt to establish pretext, Oglesby is also relying on

evidence in the record showing: (1) that Twila M eyer (another scanning

coordinator at Hy-Vee’s Overland Park store and a member of the protected class)

was demoted by Bremser and replaced by a female employee who was in her

mid-twenties approximately four months after Oglesby was fired; and (2) that

Kevin Schumacher (a forty-five year old assistant manager who was terminated

for sexual harassment a year before Oglesby was terminated) received several

warnings before he was terminated in accordance with the company’s unwritten

policy pertaining to progressive discipline, whereas Oglesby received no warnings

before he was fired. W e agree with the district court that this evidence is

insufficient to create an issue for trial on the question of pretext. As the district

court found, “[t]he fact that defendant fired one other employee within four

months, standing alone, does not create an inference of discrimination.” A plt.

                                          -14-
App., Vol. II at 463. Further, even if we assume that Schumacher’s conduct

violated a work rule of comparable seriousness, the fact that Hy-Vee treated a

single employee differently in terms of providing progressive discipline is

likewise insufficient to create an issue for trial on the question of pretext. 2

      The judgment of the district court is AFFIRMED.


                                                       Entered for the Court


                                                       W ade Brorby
                                                       Circuit Judge



KANE, District Judge (sitting by designation), dissents without an opinion.




2
       As noted by the district court, Oglesby also “contends that [Hy-Vee’s]
confusion over the date on which he slept on the job shows pretext.” Aplt. A pp.,
Vol. II at 462 n.17. This argument is without merit, as we agree with the district
court that “the actual date of the offense is immaterial to w hether defendant’s
stated reason is pretextual.” Id.

                                          -15-
