                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 28, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 THERESA L. KOSAK,

                Plaintiff - Appellant,

           v.                                                No. 09-1526
                                               (D. Ct. No. 1:08-CV-01505-CMA-MJW)
 CATHOLIC HEALTH INITIATIVES OF                               (D. Colo.)
 COLORADO,

                Defendant - Appellee.


                               ORDER AND JUDGMENT*


Before TACHA, EBEL, and HARTZ, Circuit Judges.


       Theresa L. Kosak appeals from the district court’s grant of summary judgment in

favor of Catholic Health Initiatives of Colorado (“CHI”) on her claim of discrimination in

violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq. The district court found that Ms. Kosak failed to produce sufficient evidence to

establish a prima facie case of discrimination. We take jurisdiction pursuant to 28 U.S.C.

§ 1291 and AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of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.
                                  I. BACKGROUND

       On February 1, 2007, Leah Willey became director of the Patient Access

Department at St. Mary-Corwin Medical Center (“SMC”), which is owned and operated

by CHI. Ms. Willey was told by SMC’s Chief Financial Officer to take whatever action

was necessary to clean up the department and make sure it was running effectively and

properly, including terminating employees if necessary.

       Within a week of her hiring, Ms. Willey received several complaints about Ms.

Kosak. Ms. Kosak was a financial counselor in the Patient Access Department and had

been employed at SMC for twenty-six years. As a result of the complaints, Ms. Willey

began investigating Ms. Kosak, speaking to current and former employees and doctors.

Ms. Willey reviewed all of the statements with the Human Resources Department,

including Human Resources Director Rudy Krasovec. Eventually, Ms. Willey and Mr.

Krasovec sat down with Ms. Kosak to discuss the allegations. They did not, however,

provide Ms. Kosak with specific complaints, and they did not ascertain whether the

complaints were in fact true.

       After the meeting, Ms. Willey placed Ms. Kosak on administrative leave pending

conclusion of the internal investigation. On April 6, 2007, Ms. Kosak’s employment with

SMC was terminated. The termination letter from Mr. Krasovec informed her, “we have

determined that your behavior and how you treat others in the department is

unacceptable.” At the time of termination she was forty-nine years old. It is undisputed

that she was replaced by a woman of her same age.

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       On May 27, 2008, Ms. Kosak filed suit against CHI in state court alleging age

discrimination; violations of the Family Medical Leave Act, Health Insurance Portability

and Accountability Act, and public policy; invasion of privacy; and breach of contract.

CHI later removed the suit to federal court. On May 15, 2009, Ms. Kosak moved for

partial summary judgment on her ADEA claim. CHI filed a cross motion for summary

judgment on all claims. On October 28, 2009, the district court granted summary

judgment to CHI on all of Ms. Kosak’s claims. Ms. Kosak now appeals, asserting error

only in the district court’s grant of summary judgment on her ADEA claim.

                                    II. DISCUSSION

       We review the district court’s grant of summary judgment de novo, applying the

same standards as the district court. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,

1195 (10th Cir. 2008). We view the facts, and all reasonable inferences those facts

support, in the light most favorable to the nonmoving party. Id. Summary judgment

should be granted when “the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

       Ms. Kosak has not put forth any direct evidence of discrimination; therefore, we

evaluate her ADEA claim using the three-step framework outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–04 (1973). Jones v. Oklahoma City Pub. Schools, –

F.3d –, 2010 WL 3310226, at *4–*5 (10th Cir. 2010) (upholding the continued

applicability of McDonnell Douglas to ADEA claims after Gross v. FBL Fin. Servs., Inc.,

                                            -3-
– U.S. –, 129 S. Ct. 2343 (2009)). Under this framework, the plaintiff must initially

establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If

the plaintiff establishes a prima facie case, the burden shifts to the employer “to articulate

some legitimate, nondiscriminatory reason” for its action. Id. “[S]hould the defendant

carry this burden, the plaintiff must then have an opportunity to prove by a preponderance

of the evidence that the legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981). If a plaintiff fails to establish a prima facie case, however, the

court need not reach the second and third steps and may grant summary judgment in favor

of the defendant. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136,

1146 (10th Cir. 2008) (“In the absence of facts tending to establish this initial inference,

plaintiff is not entitled to the presumption of discrimination and a defendant is not

required to defend against the charge.”). Because Ms. Kosak cannot establish a prima

facie case under the ADEA, we do not address the second or third stages of the

McDonnell Douglas framework.

       In order to establish a prima facie case of discrimination under the ADEA, a

plaintiff must ordinarily prove that: (1) she is within the protected age group; (2) she was

doing satisfactory work; (3) she was discharged; and (4) her position was filled by a

younger person. Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004).

Here, the parties agree, and the district court found, that Ms. Kosak has proven the first

and third elements of her prima facie case. The district court also found the second

                                             -4-
element, whether Ms. Kosak was doing satisfactory work, to be a contested material fact

not properly determined on summary judgment. Nevertheless, the district court granted

summary judgment in favor of CHI because it is undisputed that the woman who replaced

Ms. Kosak was the same age as Ms. Kosak and thus the fourth element was lacking.

       On appeal, Ms. Kosak does not argue that she put forth evidence that she was

replaced with a younger person. Instead, she contends that neither the Supreme Court nor

this court requires a showing that the position was filled with a younger person. We have

repeatedly emphasized that an ADEA plaintiff must ordinarily show that her position was

filled by a younger person in order to make a prima facie case of discrimination under the

McDonnell Douglas burden-shifting framework. See, e.g., Miller v. Eby Realty Group

LLC, 396 F.3d 1105, 1111 (10th Cir. 2005); Greene v. Safeway Stores, Inc., 98 F.3d 554,

558 (10th Cir. 1996) (citing Tenth Circuit cases requiring proof that “a younger person

replace” the plaintiff). Indeed, we have refused to address the extent to which there may

be “extraordinary” situations when a plaintiff could prove a prima facie case without such

a showing.1 See Greene, 98 F.3d at 559–60 (declining to reach the issue because the

       1
         We have also recognized a different formulation of the fourth element when
dealing with reduction-in-force discrimination cases under the ADEA. See Jones v.
Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995). In such cases, a plaintiff can satisfy the
fourth element “by producing evidence, circumstantial or direct, from which a fact-finder
might reasonably conclude that the employer intended to discriminate in reaching the
decision at issue” or that the employer treated the plaintiff “less favorably than younger
employees.” Id. While a reduction-in-force is the most obvious example of the need for
a different formulation of the fourth element of a prima facie claim, there may be other
circumstances that similarly require the reformulation of that element. See Swackhammer
v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1166 n.8 (10th Cir. 2007) (noting, in Title VII
case, that “the fourth element of a [McDonnell Douglas] prima facie case is a flexible one

                                           -5-
plaintiff had produced sufficient evidence of discrimination without relying on the

McDonnell Douglas framework); see also Adamson, 514 F.3d at 1147 (summarizing

Greene in those terms). We need not address that question here because there was no

evidence of any such extraordinary circumstances presented in this case.

       Additionally, it is irrelevant whether, as Ms. Kosak contends, SMC’s stated

reasons for her termination are pretextual. Ms. Kosak points to the inconsistency between

her history of good performance reviews and the allegations against her. She also

contends that the investigation of her was a sham because she was not informed of the

specific accusations against her, was never allowed to give her side of the story, and was

not given the benefit of a performance improvement plan. But without sufficient

evidence to establish a prima facie case of discrimination, the district court was under no

obligation to consider the legitimacy of SMC’s reasons for firing Ms. Kosak. Moreover,

the facts Ms. Kosak alleges do not raise an inference that she was discriminated against

because of her age. See Adamson, 514 F.3d at 1151 (noting that pretext evidence may be

used to “support a prima facie case if it indeed gives rise to an inference of actionable

discriminatory intent”); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419 (10th Cir. 1993)

(“The ADEA protects individuals from age discrimination[;] it does not protect

individuals from other forms of alleged employer misconduct.”).

       Accordingly, the district court properly granted summary judgment in favor of

CHI on Ms. Kosak’s claim of unlawful discrimination under the ADEA.


that can be satisfied differently in varying scenarios”) (quotation omitted).

                                            -6-
                         III. CONCLUSION

For the foregoing reasons, we AFFIRM.

                               ENTERED FOR THE COURT,



                               Deanell Reece Tacha
                               Circuit Judge




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