                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 5 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SAMUEL D. VANOVER,

                Plaintiff-Appellant,

    v.                                                   No. 97-5162
                                                   (D.C. No. 95-CV-916-K)
    DEPARTMENT OF ENERGY,                                (N.D. Okla.)
    Hazel O’Leary, Secretary of
    Department of Energy,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, Circuit Judges.



         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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff Samuel D. Vanover appeals the district court’s entry of summary

judgment in favor of defendant on his employment discrimination and retaliation

claims. We affirm.

      Plaintiff was employed by the Southwestern Power Administration

(SWPA), an agency of defendant Department of Energy, from December 1968

through February 1, 1996. In 1985, the SWPA denied plaintiff a promotion to

general foreman, and later terminated him from his lineman position, based on his

thrombophlebitis. In September 1988, an administrative law judge for the EEOC

found that this conduct constituted handicap discrimination, and plaintiff was

reinstated into the general foreman position.

      In June 1992, a college student named Veronica McGuire began working at

the SWPA in its Gore, Oklahoma office. Plaintiff returned from a leave of

absence to the Gore facility in October 1992. Although disputed, McGuire

claimed that plaintiff began to sexually harass her from the moment he returned to

the facility. McGuire’s allegations included numerous incidents of pinching her

buttocks, unwanted massages in which plaintiff’s hands would move close to her

breasts, close physical contact where plaintiff would brush against her, several

invitations to dinner, and numerous off-color jokes. Further, McGuire alleged

that on one occasion plaintiff approached her with a polish sausage protruding

from his unzipped fly and offered her a bite, that on another occasion he gave her


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a gift “from the Line Crew” of a tee shirt with the words “Your hole is our goal,”

and that on November 12, 1992, plaintiff stood behind her, reached under her

arms, and grabbed her breasts. See Appellant’s App. I at 221-22. There was

evidence that McGuire reported this last incident to coworkers and to her EEO

officer several days later. McGuire did not make any formal charges against

plaintiff until after she resigned on August 31, 1993.

      During this same time period, the SWPA made a decision to reorganize. In

April 1993, a meeting was held to discuss the reorganization, including the

proposed elimination of the general foreman positions. During this meeting,

Dallas Cooper, a management official, allegedly stated that plaintiff was “as good

as gone.” Appellant’s App. II at 555. Plaintiff contends Cooper also told him he

intended to weed out the older employees through the reorganization.

      In September 1993, plaintiff decided to help an unsuccessful job applicant

file sexual harassment charges against Cooper. When Veronica McGuire heard

about this, she allegedly became so angry that she decided to file charges against

plaintiff for his treatment of her during her employment at SWPA. Plaintiff,

however, alleges that McGuire’s boyfriend, a lineman under plaintiff’s

supervision, encouraged McGuire to fabricate the sexual harassment charges.

Thereafter, the Department of Energy initiated an investigation into McGuire’s

charges.


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      In June 1994, the SWPA issued two different job announcements for the

newly created transmission system maintenance manager positions, one to federal

employees, and one to the general public. In September 1994, a panel composed

of four upper management officials interviewed twenty-four applicants, including

plaintiff. Each applicant was asked the same twenty-six questions, and each panel

member independently ranked the applicants. When the rankings were combined,

plaintiff was ranked sixteenth out of twenty-four. The head of the panel, Thomas

Green, then evaluated the rankings together with the results of reference checks

and the applicants’ work experience, and selected three proposed candidates.

Plaintiff was not one of these candidates. Upon approval of the proposed

selections by Dallas Cooper, the successful applicants were offered the new

positions in October 1994.

      On July 24, 1995, the Department of Energy issued its final agency

decision, finding that plaintiff had sexually harassed Veronica McGuire. The

Department ordered the SWPA to consider taking disciplinary action against

plaintiff. An independent review was conducted by Thomas Green, who

recommended to Deciding Official Francis R. Gajan that plaintiff be removed.

Gajan determined that removal was appropriate, based on plaintiff’s violation of

Title VII and the Department of Energy and SWPA policies against sexual

harassment. Plaintiff was terminated on February 1, 1996.


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      Plaintiff brought two separate actions against the Department of Energy.

The first alleged that he had not been promoted to the maintenance manager

position because of his age and his participation in protected EEO activity. The

second action alleged that he was terminated in retaliation for his protected

activity. The two actions were consolidated, and summary judgment was granted

in favor of defendant on the ground that there was no showing that defendant’s

proffered reasons for the SWPA’s actions were pretextual. This appeal followed.

      We review summary judgment rulings de novo, applying the same standard

as the district court. See Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th

Cir. 1996). Summary judgment is proper when “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).

      We examine plaintiff’s age discrimination and retaliation claims using the

three-stage analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973). See McKnight v. Kimberly Clark Corp., No. 97-5179, 1998 WL

384608, at *2 (10th Cir. July 10, 1998) (age discrimination); Richmond v.

ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997) (retaliation). For summary

judgment purposes, defendant conceded that plaintiff could prove a prima facie

case of age discrimination or retaliation. Defendant met its burden on the second


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prong by setting out legitimate nondiscriminatory reasons for the SWPA’s failure

to promote plaintiff and his subsequent termination from employment. The issue

before us, then, is whether plaintiff met his burden of producing either

(1) evidence that the SWPA based its employment decisions on plaintiff’s age or

protected activities, or (2) evidence that the employer’s proffered explanations

were merely a pretext. See generally McKnight, 1998 WL 384608, at *2. We

conclude he did not meet this burden.

      Plaintiff’s only evidence of age discrimination was a comment by Dallas

Cooper that he intended to weed out older employees through the reorganization.

Cooper did not, however, participate in the process of selecting the maintenance

managers other than approving the final list of candidates, which did not include

plaintiff. Age-related comments by non-decision makers are merely “stray

remarks” that are insufficient to meet a plaintiff’s burden of showing an

employer’s action was based on age discrimination. See id. at *3.

      Plaintiff also failed to raise a genuine issue whether retaliation motivated

the SWPA to deny him the promotion to maintenance manager. He claims the

SWPA retaliated against him for his successful EEOC proceeding in 1988, and for

his assistance to the unsuccessful applicant in bringing sexual harassment charges

against Dallas Cooper. Neither of these circumstances demonstrates that the

SWPA’s proffered reasons for not promoting plaintiff were pretextual.


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      Although plaintiff insinuates that after winning the EEOC action he was not

reinstated into the general foreman position until October 1992, his resume

indicates that he had been returned to this position by January 1990. See

Appellee’s Supp. App. I at 154. Thus, more than four and a half years passed

between his successful EEOC action and his failure to obtain promotion into the

maintenance manager position. This passage of time is simply too long to support

an inference that the failure to promote plaintiff was related to his successful

claim against the SWPA. See Candelaria v. EG&G Energy Measurements, Inc.,

33 F.3d 1259, 1262 (10th Cir. 1994) (holding three-year gap between protected

activity and adverse action did not support inference of retaliation).

      Further, evidence that plaintiff assisted someone in bringing charges

against Dallas Cooper a year before he was denied the promotion did not

demonstrate retaliation, as Cooper was not involved in the actual selection of the

maintenance managers, and there is no evidence that any of the panel members

other than Thomas Green knew of the charges. It is significant that Green,

despite his knowledge, gave plaintiff a higher rating than two of the other panel

members, and equal to the rating given plaintiff by the third panel member. In

addition, Cooper’s participation in the decision to open the application process to

non-federal employees did not, without more, create an inference of retaliation.




                                         -7-
      Plaintiff also failed to raise a genuine issue of fact as to the SWPA’s

motivation for terminating him. An extensive investigation by the Department of

Energy concluded that plaintiff sexually harassed Veronica McGuire. A second

investigation by SWPA manager Thomas Green arrived at the same conclusion.

The record contains a great deal of evidence to support this conclusion. Plaintiff

has not shown a genuine issue concerning the sincerity of the SWPA’s belief that

the charges were well-founded, even if, as he alleges, this belief was erroneous.

See McKnight, 1998 WL 384608, at *3 (holding that if employer actually

believed plaintiff committed claimed sexual assault, its proffered reason for

termination was not pretextual, even if employer’s belief was erroneous).

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




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