                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 30, 2008
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT


 STUART A. GOLDSTEIN,

          Plaintiff - Appellant,

 v.                                                    No. 06-3379
                                                (D.C. No. 05-CV-2360-JWL)
 SPRINT UNITED MANAGEMENT                                (D. Kan.)
 COMPANY, SPRINT
 CORPORATION,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before HENRY, EBEL, and TYMKOVICH, Circuit Judges.


      After eighteen years of employment, Defendants-Appellees Sprint United

Management Company and Sprint Corporation (collectively “Sprint”) laid off

Plaintiff-Appellant Stuart A. Goldstein as part of a reduction-in-force (“RIF”).

Goldstein alleges that, in doing so, Sprint unlawfully terminated him (1) because



      *
        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). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
of his age (48), (2) because Sprint regarded him as a person disabled from back

problems, and (3) in retaliation for his making age discrimination complaints.

The district court granted Sprint summary judgment on all three claims. Having

jurisdiction to consider this appeal under 28 U.S.C. § 1291, we AFFIRM.

                               I. BACKGROUND

      The evidence, viewed in the light most favorable to Goldstein as the

non-moving party, see Seegmiller v. LaVerkin City, 528 F.3d 762, 766 (10th Cir.

2008), indicated the following: Goldstein began working for Sprint in 1984.

During his eighteen-year tenure with Sprint, Goldstein held several marketing and

advertising positions. In his last position, senior proposal manager in the

business supply group, Goldstein was a first-line manager supervising up to ten

other employees.

      Until March 2002, Goldstein had always received positive performance

reviews. On March 1, 2002, however, Randy Bryson, who had supervised

Goldstein during the final three months of 2001, gave Goldstein a review

indicating his performance had fallen below Sprint’s expectations and required

improvement. This evaluation placed Goldstein in the bottom 10% of Sprint

employees and made him vulnerable to any reductions-in-force.

      Goldstein protested this evaluation in writing to Bryson, Greg Corwin,

Goldstein’s supervisor at that time, and a human resources (“HR”) employee,

specifically wondering “whether this is age discrimination, personal

                                         2
discrimination, or the desire to unjustly identify me as a future RIF candidate.”

As a result of Goldstein’s written objections, Bryson apologized for the review,

admitted his behavior had been inappropriate and explained that Jed Dodd,

Bryson’s supervisor, had already reprimanded Bryson for the review he had given

Goldstein. Dodd, too, apologized to Goldstein, and indicated to others that

“errors in judgment were made by my management team.” Based upon input from

Goldstein’s previous supervisor, who had actually supervised Goldstein for most

of the year under review, Bryson raised Goldstein’s evaluation to indicate that he

was meeting Sprint’s expectations. Bryson also assured Goldstein that his job

was safe. Nevertheless, both Dodd and Bryson refused to change the evaluation

to the extent it placed Goldstein in the lowest performing 10% of Sprint

employees.

      Less than a week after Goldstein’s 2001 performance review had been

revised, Goldstein’s supervisor, Greg Corwin, “accidentally” sent Goldstein and

others within Goldstein’s work group what was supposed to be a confidential

email from Corwin to Bryson. That email indicated that, out of the 120 Sprint

employees in Bryson’s department, only Goldstein would be let go during a

proposed reorganization.

      When Goldstein confronted Bryson with this information, Bryson told

Goldstein he had 90 to 120 days to find a new position within the company or he

was “gone.” Goldstein again protested to Dodd and an HR employee that his

                                          3
being let go was the result of age discrimination and was in retaliation for the age

discrimination complaint he had voiced several weeks earlier. Dodd again

apologized to Goldstein and assured him that he was safe during the upcoming

reduction-in-force. Dodd, however, reiterated that Goldstein’s evaluation, placing

him in the lowest 10% of Sprint employees, would not change “because it is an

accurate reflection of where management believes you fall relative to your peer

group.”

      In March or April 2002, Goldstein was assigned to another supervisor,

Susan Odneal. In May, Goldstein called in sick for two days when his back went

out. Although Goldstein reported his absence to Bryson’s executive assistant,

Bryson nevertheless conferred with the HR department about terminating

Goldstein because he had “abandoned” his job.

      Goldstein’s back problems stemmed from a ruptured disc. On his doctor’s

recommendation, Goldstein took short-term disability leave for several months,

beginning in May 2002. During his disability leave, several of Goldstein’s

supervisors expressed skepticism about whether his back condition was really

disabling.

      Goldstein’s short-term disability leave expired November 17, 2002. When

he did not return to work immediately, Goldstein’s supervisor Odneal and an HR

employee called Goldstein to discuss his options, which included returning to

work, taking long-term disability, or being terminated. Goldstein explained that

                                          4
his doctor had advised him to remain off work until January 3, 2003, but

Goldstein agreed to return to work immediately in order to keep his job. When he

did return to work, Goldstein was supervising only half the number of employees

he had previously supervised.

      In March 2003, Odneal gave Goldstein his 2002 performance review,

ranking him quite low. Odneal specifically noted that Goldstein’s “involvement

with the team was somewhat lacking. He experienced [short term disability] for

half the year, missing much activity during the year.” According to Goldstein,

Odneal further explained to him that “we have to have a certain number of people

in the various rankings and you’re the lucky guy. You’re it. You were the easy

one because you were out on disability, so it’s just how . . . it shook out.”

      In July 2003, Goldstein began reporting to still another supervisor, Michael

Gochis. In September or October 2003, Gochis gave Goldstein an “interim”

evaluation, indicating that Goldstein was meeting expectations.

      In August and September 2003, Sprint underwent a major reorganization.

This reorganization took place in several steps. First, Sprint vice-presidents and

directors determined the new organizational structure the company would adopt.

Then Sprint grouped its employees into pools designated for each newly created

group within the chosen organizational structure. “Essentially the pools were all

employees who did the work that was going to reside in that specific [newly

created] organization.” All current Sprint employees were placed in a pool, even

                                          5
though the reorganization also contemplated a reduction-in-force. The vice

presidents and directors then chose, from among the available employees within

each pool, the people who would fill the positions within the new organizational

groups. The reorganization ultimately involved five organizational levels: Layers

1 and 2 were the corporate officers; Layer 3 included the directors; Layer 4 was

the first-line managers, such as Goldstein; and Layer 5 was the non-supervisory

employees.

      Goldstein and the five people he supervised were initially included in the

pool for Sprint’s new marketing division. At the last minute, however, Goldstein

and his group were transferred into the new finance division and included in the

pool of employees available for the finance department’s “pricing” group

supervised by Holly Valenta. Because Goldstein’s group was not added to the

finance pool until the last minute, however, Valenta had already chosen all of her

Layer 4 managers and had received management’s and the legal department’s

approval of those managers. Valenta, therefore, did not select Goldstein for any

Layer 4 managerial position within her newly formed pricing group. Goldstein

was then placed on a list of candidates available for Layer 5, non-managerial

positions, but he was not selected to fill any of those openings.

      There was also a redeployment list of employees displaced by this

reorganization, from which supervisors and managers throughout the company

could fill openings. But that list was circulated on October 24, 2003, and

                                          6
managers had to make selections from that list by October 27. Because

Goldstein’s group was not added to the finance pool until October 28 or 29,

Goldstein’s name was not on that list when it was circulated.

      Those employees who had not been slotted for a position in the newly

reorganized finance department could still look elsewhere throughout the

company for other positions. Although Goldstein specifically sought several such

positions, he was never chosen to fill any remaining job openings. Sprint,

therefore, notified Goldstein in November 2003 that his employment would be

terminated, effective December 31, 2003.

                          II. STANDARD OF REVIEW

      The district court granted Sprint summary judgment on Goldstein’s claims.

This court reviews that summary judgment decision de novo, viewing the

evidence in the light most favorable to the non-moving party, Goldstein. See

Seegmiller, 528 F.3d at 766. Summary judgment is appropriate “if 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 moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                 III. ANALYSIS

      Goldstein alleged three claims: (1) age discrimination, in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34;

2) retaliation for engaging in activity protected under the ADEA; and 3) disability

                                          7
discrimination, in violation of the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12101-12213. 1 Goldstein seeks to prove these claims using indirect or

circumstantial evidence. See Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1173

(10th Cir. 2007). We, therefore, apply the three-part McDonnell Douglas 2

burden-shifting analysis:

      [A] plaintiff must first establish a prima facie case of discrimination.
      Once he or she does so, the burden shifts to the defendant to articulate
      a legitimate, non-discriminatory reason for the adverse employment
      action. If the defendant satisfies its burden, the plaintiff must then
      show that the defendant’s proffered justification was simply pretext for
      unlawful discrimination.

Montes, 497 F.3d at 1173 (citations omitted).

A.    Age discrimination

      The ADEA protects individuals who are “at least 40 years of age,” and

makes it “unlawful for an employer . . . to discharge any individual . . . because

of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a). To succeed on his

ADEA claim, therefore, Goldstein “must prove that his . . . discharge was

motivated, at least in part, by age.” Hinds v. Sprint/United Mgmt. Co., 523 F.3d

1187, 1195 (10th Cir. 2008).




      1
        Although on appeal Goldstein suggests he also asserted a retaliation claim
under the ADA, he never pled such a claim in his complaint. Nor did the pretrial
order include an ADA retaliation theory of recovery. Accordingly, like the
district court, we do not address ADA retaliation.
      2
          McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

                                         8
      In order to establish a prima facie age discrimination claim in the context

of a RIF, Goldstein must show that he “(i) was within a protected age group,

(ii) was doing satisfactory work, (iii) was discharged despite the adequacy of

his . . . work, and (iv) has some evidence the employer intended to discriminate

against him . . . in reaching its RIF decision.” Id. Goldstein has established the

first three elements: he was over forty at the time of the RIF, he was performing

satisfactory work, and Sprint, nevertheless, discharged him.

      To establish the fourth element, Goldstein must show that, after the RIF,

Sprint continued to employ younger employees in positions for which Goldstein

was qualified. See id. at 1196; see also Stone v. Autoliv ASP, Inc., 210 F.3d

1132, 1137-38 (10th Cir. 2000). “It is the fact that the employer . . . decided to

retain similarly situated younger employees while discharging an older employee

that gives rise to an inference of discrimination.” Hinds, 523 F.3d at 1196. The

district court held that Goldstein had made this showing. On appeal, Sprint

challenges that determination, asserting that Goldstein failed to present any

evidence that it retained similarly situated younger workers instead of Goldstein.

We do not need to resolve this issue, however, because even assuming that

Goldstein did prove a prima facie case under the ADEA, he failed to establish a

triable issue concerning pretext.

      Sprint asserted a legitimate, non-discriminatory reason for terminating

Goldstein: Valenta had already filled the managerial positions in her organization

                                          9
before Sprint transferred Goldstein and his group into the finance pool, and

Goldstein did not have any finance experience, which Valenta’s already-seated

managers had. The burden, then, shifted back to Goldstein to show that Sprint’s

proffered reasons from terminating him were a pretext for discrimination. See

Montes, 497 F.3d at 1173.

      “Pretext exists when an employer does not honestly represent its reasons

for terminating an employee.” Miller v. Eby Realty Group LLC, 396 F.3d 1105,

1111 (10th Cir. 2005). “Pretext can be shown by such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its actions 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.” Riggs v.

AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir. 2007) (quotation omitted).

      The factfinder’s disbelief of the reasons put forward by the defendant
      (particularly if disbelief is accompanied by a suspicion of mendacity)
      may, together with the elements of the prima facie case, suffice to show
      intentional discrimination. Thus rejection of the defendant’s proffered
      reasons will permit the trier of fact to infer the ultimate fact of
      intentional discrimination.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000)

(quotation omitted).

      Goldstein asserts that Sprint’s reasons for terminating him are unworthy of

belief because Sprint actually gives two conflicting reasons why Valenta did not


                                         10
select him for a position in her pricing group—she had already filled all of her

managerial positions before Goldstein was transferred into the finance pool and

Goldstein was not as qualified to work in the finance division as the managers

Valenta had already chosen. Because evidence that an employer gave

inconsistent reasons justifying its challenged action is an “indication of pretext,”

Whittington v. Nordam Group Inc., 429 F.3d 986, 994 (10th Cir. 2005), such a

showing would ordinarily be enough to survive summary judgment, see Reeves,

530 U.S. at 148. Nonetheless, “there will be instances where, although the

plaintiff has established a prima facie case [of age discrimination] and set forth

sufficient evidence to reject the defendant’s explanation, no rational factfinder

could conclude that the action was discriminatory.” 530 U.S. at 148; see also

Montes, 497 F.3d at 1173 n.18.

      Whether judgment as a matter of law is appropriate in any particular
      case will depend on a number of factors. Those include the strength of
      the plaintiff’s prima facie case, the probative value of the proof that the
      employer’s explanation is false, and any other evidence that supports
      the employer’s case and that properly may be considered on a motion
      for judgment as a matter of law.

Reeves, 530 U.S. at 148-49; 3 see also Swackhammer v. Sprint/United Mgmt. Co.,

493 F.3d 1160, 1169 (10th Cir. 2007).


      3
       Although Reeves was addressing a motion for judgment as a matter of law,
see 530 U.S. at 137, 148, the standard for such a motion is the same as the
standard applicable to the summary judgment motion at issue here. See
Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 n.9 (10th Cir.
2007).

                                          11
      In this case, the two explanations offered by Valenta are not necessarily

inconsistent. That is, there is nothing inconsistent with Valenta’s statement that

she had already filled her openings and Lampe’s statement that he did bring

Goldstein’s name to Valenta and Valenta determined that Goldstein was not more

qualified than the people she had already selected.

      There is no dispute that Valenta had already named her managers at the

time Goldstein was transferred into the finance pool, and that she had received

upper management’s approval to offer those employees the positions. In addition,

there is no evidence that Valenta was aware of Goldstein’s age when she had the

chance to, but did not, select him to fill one of her manager position. A

reasonable factfinder could not infer age discrimination from this evidence. See

Swackhammer, 493 F.3d at 1169.

      In support of his pretext argument, Goldstein points to evidence indicating

that Sprint did not transfer his group into the finance pool until the last minute

and, as a result, his name was not included on the redeployment list circulated

throughout the company. But, again, there is no evidence indicating that these

events were the result of any discriminatory animus.

      Finally, Goldstein relies on the fact that the district court noted that he had

“come forward with evidence from which a reasonable jury could conclude that

plaintiff’s former supervisors,” most notably Bryson and Odneal, “desired to

terminate [Goldstein’s] employment and that they desired to do so based on

                                          12
[Goldstein’s] age,” among other reasons. 4 But Goldstein fails to establish any

link between Bryson’s and Odneal’s earlier conduct and Sprint’s decision to

terminate Goldstein’s employment during the 2003 reorganization. In particular,

there is no evidence indicating Bryson or Odneal had any input into the decision

to terminate Goldstein’s employment during the 2003 RIF, or in the decision to

transfer Goldstein’s group at the last minute to the finance division; nor is there

any evidence that the earlier performance reviews that Bryson and Odneal gave

Goldstein factored into the RIF decision.

      For these reasons, we conclude the district court did not err in granting

Sprint summary judgment on Goldstein’s age discrimination claim.

B.    Retaliation under the ADEA

      The ADEA also makes it “unlawful for an employer to discriminate against

any of his employees . . . because said individual . . . has opposed any practice

made unlawful by this section, or because such individual . . . has made a charge,

testified, assisted or participated in any manner in an investigation, proceeding, or

litigation under” the ADEA. 29 U.S.C. § 623(d). In order to establish a prima

facie case of such retaliation, Goldstein must show that: (1) he engaged in

protected activity; (2) he suffered an adverse employment action; and (3) there

was a causal connection between the protected activity and the adverse action.

      4
        There is little or nothing in the record that we have found to support the
district court’s conclusion that Bryson and Odneal were motivated, even in part,
by an animus against Goldstein because of his age.

                                         13
See Hinds, 523 F.3d at 1202. Goldstein satisfied the first two elements—he

complained about age discrimination to his supervisors and the HR department.

And Sprint terminated his employment.

      Nevertheless, Goldstein failed to establish the third element, a causal

connection between the protected activity and his termination.

             A causal connection may be shown by evidence of circumstances
      that justify an inference of retaliatory motive, such as protected conduct
      closely followed by adverse action. Standing alone, temporal proximity
      between the protected activity and the retaliatory conduct must be very
      close in time. Otherwise, the plaintiff must offer additional evidence
      to establish causation.

Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006) (citations,

quotations omitted), cert denied, 127 S. Ct. 1372 (2007). The temporal proximity

between Goldstein’s age discrimination complaints, occurring in March 2002, and

Sprint’s decision to terminate his employment, made approximately twenty months

later in November 2003, was insufficient, by itself, to establish the requisite causal

connection. See id. (“A seven-month period between protected activity and adverse

action will not, by itself, establish causation.”). This is true even if Goldstein’s

short-term disability leave, from May through November 2002, is not counted. See

Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003) (declining to

consider time employee was on medical leave after complaining about her

supervisor; noting there was no reason for supervisor to retaliate until the employee




                                         14
returned to work from medical leave). Goldstein returned to work in December 2002

and Sprint terminated him as part of the RIF almost a year later.

      Goldstein argues that he has, nevertheless, shown a pattern of retaliatory

conduct that ensued following his age discrimination complaints sufficient to

establish a causal connection between those complaints and his later termination.

This court has recognized that the “close temporal proximity” usually necessary

to support a retaliation claim “must not be read too restrictively where the pattern

of retaliatory conduct begins . . . soon after the filing of [a] complaint and only

culminates later in actual discharge.” Marx v. Schnuck Mkts., Inc., 76 F.3d 324,

329 (10th Cir. 1996) (addressing retaliation claim asserted under the Fair Labor

Standards Act); see also Piercy v. Maketa, 480 F.3d 1192, 1198-99 (10th Cir.

2007). Nevertheless, the pattern of retaliatory conduct of which Goldstein

complains stemmed from Bryson and Odneal. But Goldstein has presented no

evidence linking these two former supervisors to the decision to terminate

Goldstein during the 2003 RIF. See Haynes, 456 F.3d at 1228-29 (rejecting

asserted causal connection where there was no evidence linking supervisor’s

decision to place employee under a corrective action plan with employer’s later

decision to terminate that employee during a RIF); cf. Metzler v. Fed. Home Loan

Bank, 464 F.3d 1164, 1173-74 (10th Cir. 2006) (rejecting assertion that there was

a pattern of retaliation following protected activity because there was no evidence

from which a fact finder could infer a retaliatory motive underlying the allegedly

                                          15
retaliatory acts). Therefore, the district court did not err in granting Sprint

summary judgment on Goldstein’s ADEA retaliation claim.

C.    Disability discrimination

      To assert a prima facie disability discrimination claim under the ADA,

Goldstein must establish that he “(1) is a disabled person as defined by the ADA;

(2) is qualified, with or without accommodation, to perform the essential

functions of the job held or desired; and (3) suffered discrimination by an

employer or prospective employer because of that disability.” Justice v. Crown

Cork & Seal Co., 527 F.3d 1080, 1086 (10th Cir. 2008) (quotation omitted).

      Assuming Goldstein established the first two elements of a prima facie

case, he has failed to establish the third. Goldstein primarily relies on Bryson’s

and Odneal’s conduct during and after Goldstein’s short-term disability leave to

establish that Sprint terminated him during the 2003 RIF because Sprint regarded

him as disabled. But, again, Goldstein has asserted no evidence linking Bryson or

Odneal to Sprint’s decision to terminate Goldstein’s employment. Nor is there

any evidence that those involved in making the decision to terminate Goldstein

regarded him as disabled. See Rakity v. Dillon Cos., 302 F.3d 1152, 1163 (10th

Cir. 2002) (concluding plaintiff failed to establish a disability claim sufficient to

survive summary judgment where, even if one of his supervisors did believe

plaintiff was not capable of any lifting, that supervisor “was not responsible for

making the decision to deny [plaintiff’s] promotion request,” which was the

                                           16
subject of plaintiff’s disability claim). Therefore, the district court did not err in

granting Sprint summary judgment on this claim as well.

                                 IV. CONCLUSION

      For these reasons, we AFFIRM the district court’s decision to grant Sprint

summary judgment on all three of Goldstein’s claims



                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




                                           17
