                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   October 23, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    JANETTE K. RAMSEY,

                Plaintiff-Appellant,

    v.                                                  No. 07-3357
                                               (D.C. No. 2:06-CV-02222-JPO)
    LABETTE COUNTY MEDICAL                                (D. Kan.)
    CENTER,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



         Janette K. Ramsey appeals the district court’s grant of summary judgment

in favor of her former employer, Labette County Medical Center (LCMC), in this

action under the Age Discrimination in Employment Act (ADEA). We have

jurisdiction under 28 U.S.C. § 1291. Because Ms. Ramsey has not proffered



*
       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). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
evidence tending to show that LCMC’s legitimate, nondiscriminatory reason for

terminating her employment was a pretext for discrimination, we AFFIRM.

                                        I.

      Ms. Ramsey was born in 1953. In 1975, she began working for LCMC as a

radiologic technologist. By 1998, she had been promoted to Director of

Radiology (Diagnostic Imaging). As director, she oversaw several

subdepartments, including X-ray, Mammography, Bone Densitometry,

Computerized Tomography (CT), Magnetic Resonance Imaging (MRI), Nuclear

Medicine, and Ultrasound.

      In 2003, LCMC suffered a significant financial loss. The directors

terminated the employment of the fifty-nine-year-old Chief Executive Officer

(CEO), and in July 2004, they hired William Mahoney, then age thirty-nine, as

the new CEO. According to Ms. Ramsey, Mr. Mahoney “walked in the door with

kind of an intimidating factor,” and she perceived him as being “the kind of

person who shook things up.” Aplee. Supp. App. at 14.

      After Mr. Mahoney arrived, LCMC began terminating the employment of

several long-term employees over age forty, including Ms. Ramsey’s direct

supervisor. Another employee, Janet Ball, was promoted to Vice President of

Patient Care and Chief Nursing Officer, and she became Ms. Ramsey’s

supervisor. Ms. Ball is six years older than Ms. Ramsey.




                                        -2-
      Mr. Mahoney identified several changes he would like to see in the

Radiology department. For example, soon after he started, he suggested

extending MRI’s hours so that clients would not have to miss work to get an

appointment. Ms. Ramsey questioned the fiscal responsibility of such a move,

but in February 2005, she extended MRI’s hours. He also raised concerns about

securing a second nuclear medicine technologist so that the hospital did not have

to use more costly traveling technologists. In the fall of 2004, Ms. Ramsey hired

a technologist who left soon after starting because of family health problems, and

in May 2005 she hired another technologist. But Mr. Mahoney had concerns

about Ms. Ramsey. Ms. Ball cautioned Ms. Ramsey that in Mr. Mahoney’s

opinion, “either you’re on the boat with him or you’re not,” id. at 27, and told

Ms. Ramsey that he perceived her as being hesitant and resistant.

      On June 17, 2005, Ms. Ramsey met with Mr. Mahoney and Ms. Ball to go

over Radiology’s budget. Ms. Ramsey surreptitiously recorded the meeting.

After reviewing budget matters, Mr. Mahoney also raised various concerns about

her performance, including possible abuse of the hospital’s callback system by

Radiology employees; the need to be responsive to clients’ needs, such as

extending hours of service; possible favoritism by Ms. Ramsey and breaches of

employee confidentiality; excessive socializing by Radiology employees; a

hospital-wide perception that she was not in control of her department; and his

perception that she was hesitant to his proposals and that she was digging in her

                                         -3-
heels in response to suggested changes. In response to the last issue, Ms. Ramsey

acknowledged that Ms. Ball had already raised the concern with her and that she

had told Ms. Ball, “well, I can see where you would see that . . . . Or think that

. . . .” Id. at 141; see also id. at 29 (Ms. Ramsey’s deposition).

      Several days later, Mr. Mahoney received a letter from a Radiology

employee stating that Ms. Ramsey had met with her employees just three days

after the June 17 meeting and “advis[ed] the entire team as to how to circumvent

the directives given by the hospital administration regarding when to call out the

on-call CT staff.” Id. at 143. For Mr. Mahoney and Ms. Ball, this was the final

incident. On July 8, LCMC terminated Ms. Ramsey’s employment. Mr. Mahoney

informed her that LCMC was restructuring her department and there was no place

in the restructuring for her. Ms. Ramsey’s duties were temporarily assigned to an

employee three years older than she, and her permanent replacement was two

years younger.

      Ms. Ramsey filed an administrative charge of discrimination and eventually

brought suit under the ADEA. LCMC moved for summary judgment. Applying

the burden-shifting approach set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-04 (1973), the district court held that Ms. Ramsey established a

prima facie case and that LCMC’s proffer of evidence of dissatisfaction with her

performance indicated a legitimate, nondiscriminatory reason for the termination.

Concluding that Ms. Ramsey failed to proffer evidence tending to show that

                                          -4-
LCMC’s reason was a pretext for discrimination, however, the district court

granted summary judgment to LCMC.

      Ms. Ramsey appeals. Our review is de novo. See Riggs v. AirTran

Airways, Inc., 497 F.3d 1108, 1114 (10th Cir. 2007). We apply the same legal

standard as the district court, viewing the evidence in the light most favorable to

Ms. Ramsey as the non-moving party. See id.

                                         II.

      Ms. Ramsey argues that the district court erred because it (1) did not

recognize that LCMC’s proffered reasons for the termination have shifted over

time; (2) did not construe the facts and reasonable inferences in favor of her as

the non-moving party, but instead construed them in favor of LCMC; and

(3) failed to consider her evidence as a whole. LCMC contends not only that

Ms. Ramsey failed to show pretext, but also that she failed even to establish a

prima facie case. Because we conclude that Ms. Ramsey has not proffered

evidence tending to establish that LCMC’s proffered reason was a pretext for

discrimination, we need not consider whether the district court erred in

concluding that she established a prima facie case.

      “Pretext can be shown by 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

                                         -5-
asserted non-discriminatory reasons.” Riggs, 497 F.3d at 1118 (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.’” Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005) (quoting

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). Evidence of pretext

“‘may take a variety of forms,’” including evidence tending to show “‘that the

defendant’s stated reason for the adverse employment action was false.’” Id.

(quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.

2000) (further quotation omitted)). “The plaintiff’s evidence can also allow for

an inference that the employer’s proffered non-discriminatory reasons were either

a post hoc fabrication or otherwise did not actually motivate the employment

action . . . .” Id. at 1102-03 (quotation and alteration omitted).

                                          A.

      Ms. Ramsey first argues that the district court failed to recognize that

LCMC’s reasons for the termination have shifted over time, which is evidence

tending to show pretext. See Whittington v. Nordam Group Inc., 429 F.3d 986,

994 (10th Cir. 2005) (holding that inconsistency in employer’s reasons for the

termination is an indication of pretext); see also Plotke, 405 F.3d at 1104 (holding

that conflicting and changing evidence concerning the timing and reasons for

termination contributes to a showing of pretext). Ms. Ramsey points out that

                                          -6-
Mr. Mahoney initially told her that her department was being restructured. Then,

in its response to the Equal Employment Opportunity Commission (EEOC),

LCMC identified five reasons for the termination; in its response to Ms. Ramsey’s

interrogatories, it identified five slightly different reasons; and, finally, in his

affidavit in support of LCMC’s summary judgment motion, Mr. Mahoney

identified eleven reasons for the termination.

      We have carefully examined the documents Ms. Ramsey identified. As the

district court found, although the specificity of LCMC’s reasons differ, the

reasons are not inconsistent. They explain why Mr. Mahoney was dissatisfied

with Ms. Ramsey’s performance, and thus, why he believed there was no place for

Ms. Ramsey in a restructured Radiology department. Pretext is not shown if the

employer does not give inconsistent reasons, but instead merely elaborates on the

initial justification for termination. See Standard v. A.B.E.L. Servs., Inc.,

161 F.3d 1318, 1332 (11th Cir. 1998) (noting that later elaboration on more

general reasons for termination is insufficient to show pretext); Perfetti v. First

Nat’l Bank, 950 F.2d 449, 456 (7th Cir. 1991) (same). The asserted variances do

not demonstrate that LCMC’s proffered reasons are so weak, implausible,

inconsistent, incoherent, or contradictory that a rational jury could find them

unworthy of belief.




                                           -7-
                                       B.

      Ms. Ramsey next contends that the district court construed the facts and the

inferences therefrom in the light most favorable to LCMC, rather than to her as

the non-moving party. She examines, and disputes, each of LCMC’s eleven

summary-judgment reasons for the termination.

      In this type of inquiry,

      [w]e do not ask whether the employer’s reasons were wise, fair or
      correct; the relevant inquiry is whether the employer honestly
      believed its reasons and acted in good faith upon them. Even a
      mistaken belief can be a legitimate, non-pretextual reason for an
      employment decision. Thus, we consider the facts as they appeared
      to the person making the decision, and we do not second-guess the
      employer’s decision even if it seems in hindsight that the action
      taken constituted poor business judgment. The 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.

Riggs, 497 F.3d at 1118-19 (citations and quotations omitted). Thus, evidence

suggesting LCMC’s reasons were inaccurate have no bearing on our analysis

unless Ms. Ramsey can show that LCMC’s agents knew of such inaccuracies at

the time of the termination. Ms. Ramsey contends that her attack “on a

point-by-point basis that the reasons were untrue” shows that Mr. Mahoney and

Ms. Ball knew their reasons were inaccurate or shows that their expressed

perceptions and beliefs were unreasonable. Aplt. Br. at 37.




                                       -8-
      While a plaintiff generally must proffer evidence tending to discredit each

of an employer’s multiple reasons for a termination, we have “recogniz[ed] that

when the plaintiff casts substantial doubt on many of the employer’s multiple

reasons, the jury could reasonably find the employer lacks credibility.” Tyler v.

RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). We carefully

have reviewed Ms. Ramsey’s attacks on each of the eleven reasons and have

given Ms. Ramsey the benefit of all facts and reasonable inferences therefrom.

Although it appears that a couple of the reasons may be weak or ill-supported, we

are not convinced that Ms. Ramsey has cast substantial doubt on many of

LCMC’s proffered reasons or that, on the whole, Mr. Mahoney and Ms. Ball did

not honestly believe their criticisms of her performance. Ms. Ramsey has not

established sufficient grounds on which the jury reasonably could infer pretext.

We find no reversible error in the district court’s decision that the evidence

required granting summary judgment to LCMC.

                                         C.

      Finally, Ms. Ramsey argues that the district court erred in not viewing all

of her evidence as a whole and taking a “universal perspective.” Aplt. Br. at 38.

She contends that, if her evidence is viewed as a whole, she has proffered

evidence sufficient for a reasonable factfinder to find pretext. In support, she

points to certain age-related comments by hospital directors in connection with

Mr. Mahoney’s hiring; adverse employment actions taken against several

                                         -9-
department directors who were older than forty-seven in the months following

Mr. Mahoney’s arrival; LCMC’s failure to articulate several of its reasons for

terminating her employment until the summary-judgment stage of this case; and

Mr. Mahoney’s and Ms. Ball’s alleged knowledge that some of the reasons

underlying her termination were false.

      The district court discussed why this evidence did not amount to pretext.

We conclude that the district court did not err in its analysis. Further, we have

considered all of Ms. Ramsey’s evidence as a whole as part of our de novo

review, and we have concluded that the district court did not err in granting

summary judgment to LCMC.

                                         III.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Senior Circuit Judge




                                         -10-
