                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       January 14, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
PAUL S. RANGEL,

             Plaintiff-Appellant,

v.                                                        No. 12-3085
                                              (D.C. No. 6:10-CV-01359-CM-KGG)
SANOFI AVENTIS U.S., LLC; SANOFI                           (D. Kan.)
AVENTIS U.S., INC.,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.


      Paul Rangel appeals from the district court's order granting summary judgment

in favor of his former employer on his claims for unlawful age discrimination in

violation of the Age Discrimination and Employment Act (ADEA) and ADEA

retaliation. We have jurisdiction under 28 U.S.C. § 1291 and affirm.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I. Background

      Mr. Rangel was a sales professional with pharmaceutical company

sanofi-aventis U.S. LLC and sanofi-aventis U.S. Inc. (S-A) and its predecessors from

1985 until he was terminated as part of a reduction in force (RIF) on December 30,

2008. It is undisputed that Mr. Rangel did not have any negative performance

reviews until after S-A issued new “Sales Professionals Procedurals and

Expectations” guidelines in 2006. In these guidelines, S-A detailed its expectations

for all its sales professionals nationwide, including a minimum number of expected

face-to-face sales calls with physicians; requisite pre-call planning and post-call

reporting; use of specific product and promotional material; and on-going sales

communications. After these guidelines were issued, two different S-A supervisors,

Ms. Soupir and Mr. Ford, documented—in over twenty memos and performance

reviews—deficiencies in Mr. Rangel’s ability to follow the guidelines.

      Ms. Soupir became Mr. Rangel’s supervisor in September 2006. She sent him

a memo in January 2007, critiquing his performance in certain “core competencies”

outlined in the guidelines, including inconsistent use of sales materials, visual aids,

and clinical product information; his product knowledge and use of clinical studies;

his pre- and post- call planning; and his sales territory management. She sent him a

similar memo six months later stating that he was still deficient in these core

competencies; that he was “not implementing the feedback that [had] been provided

[to him] over the past nine months,” and that his lack of urgency in meeting these


                                          -2-
performance expectations was “unacceptable moving forward.” Aplt. App., Vol. 1,

at 143-44. Then, in October 2007, Ms. Soupir gave Mr. Rangel a detailed “Coaching

Letter,” identifying specific actions he needed to take to demonstrate consistent and

sustained improvement in the core competencies. Ms. Soupir accompanied

Mr. Rangel on his sales calls in November 2007 and January 2008, and sent him

memos listing ways in which he could improve. In a February 2008 memo,

Ms. Soupir told Mr. Rangel his improvements were inconsistent and she listed the

improvements he needed to make in his selling skills, product knowledge, and

territory management.

      Mr. Rangel’s overall performance was rated as “Below” at his year-end

performance review for 2007. The review summary stated that Mr. Rangel had not

demonstrated consistent performance in the areas of selling skills, product

knowledge, and territory management. Id. at 198. Mr. Rangel was placed on a final

written plan (FWP) in May 2008, for “continuous and significant gaps between the

minimum expectations of the job and [his] performance.” Id. at 201. The FWP

meant Mr. Rangel would automatically receive a “below expectations” performance

rating for 2008.

      Mr. Ford became Mr. Rangel’s supervisor in June 2008. After going on sales

calls with Mr. Rangel, Mr. Ford sent him a memo noting numerous performance

problems, including lack of product and clinical data knowledge and inconsistent use

of sales data and resources. Mr. Ford identified continuing deficiencies in an


                                         -3-
August 2008 memo, telling Mr. Rangel that “immediate and marked improvement

must be made.” Id. at 233. Mr. Ford noted marked improvement with Mr. Rangel’s

performance a month later, but also identified issues that needed improvement. At

his October 2008 mid-year review, Mr. Rangel’s overall performance was rated

below expectations.

      In each of these and the other memos, Ms. Soupir and Mr. Ford gave specific

examples of Mr. Rangel’s stated deficiencies. These included such items as giving

incorrect product information; lack of effective listening with physicians; repeatedly

failing to use S-A’s selling model and materials; not following the pre-call planning

process; failing to do multi-product sales calls; and ongoing planning problems

related to sales territory management. These memos, most of which were reviewed

by more senior supervisors, also detailed the changes Mr. Rangel needed to make in

order to meet S-A’s expectations and stressed that it was critical he meet these

expectations.

      Mr. Rangel filed an age discrimination complaint with the Kansas Human

Rights Commission (KHRC) on September 16, 2008. On December 4, 2008, S-A

announced a corporate realignment that included a nationwide RIF. It terminated all

sales professionals who had either a “below” or “less than” expected performance

rating in two of the last three years, or who had a “below” or “less than” rating in

2007 and were trending towards those ratings in 2008. Id. at 99. Three days before

the public announcement, S-A notified Mr. Rangel he would be terminated in the RIF


                                          -4-
because he had a “below” rating in 2007 and, as a result of the FWP, would be rated

“below” for 2008 as well.

      Mr. Rangel then filed his ADEA complaint. He alleged he was over 40 years

old, his performance was satisfactory because he had some of the highest sales results

in his district both before and after Ms. Soupir began to supervise him, and that S-A

singled him out for unwarranted criticism because of his age and later, in retaliation

for the age discrimination complaint he filed with KHRC.

      S-A moved for summary judgment arguing Mr. Rangel’s ADEA claim failed

because similarly-situated younger employees were not treated differently than he

was treated, and he had not presented any evidence that his inclusion in the RIF was

pretext for age discrimination or ADEA retaliation. S-A argued Mr. Rangel’s

retaliation claim failed because all of the performance reviews that caused

Mr. Rangel to fall within the uniform RIF criteria were issued well before he filed his

age complaint with KHRC. The district court granted S-A’s motion, ruling that

Mr. Rangel failed to establish a prima facie case of age discrimination or retaliation,

and even if he had, that he failed to produce any evidence that S-A’s asserted reason

for terminating him was a pretext for discrimination or retaliation.

                                    II. Discussion

      “We review summary judgment decisions de novo, applying the same legal

standard as the district court.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1104

(10th Cir. 2008). Summary judgment is appropriate “if the movant shows that there


                                          -5-
is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “When applying this standard, we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Sanders, 544 F.3d at 1105 (internal quotation marks omitted).

      Because Mr. Rangel relies solely on circumstantial evidence to prove

discrimination and retaliation, we analyze his claims under the burden-shifting

framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973). Simmons v. Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011). “Under

this framework, the plaintiff must initially establish a prima facie case of

discrimination.” Id. “If the plaintiff establishes a prima facie case, the burden shifts

to the employer to articulate some legitimate, nondiscriminatory reason for its

action.” Id. “Should 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.” Id.

                            A. Age Discrimination Claim

      Mr. Rangel contends the district court erred in ruling that he did not establish a

prima facie claim of age discrimination. To demonstrate a prima facie case of age

discrimination in the context of a RIF, Mr. Rangel must show that he (1) is within a

protected age group; (2) was doing satisfactory work; (3) was discharged despite the

adequacy of his work; and (4) has some evidence the employer intended to


                                          -6-
discriminate against him in reaching its RIF decision. Hinds v. Sprint/United Mgmt.

Co., 523 F.3d 1187, 1195 (10th Cir. 2008). The fourth factor may be satisfied by

circumstantial evidence that, during the RIF, the employer discharged the plaintiff

but retained or placed a younger employee in a similar position. Id.

      The district court ruled that Mr. Rangel did not present any evidence that

would establish the fourth element. Mr. Rangel stated in his brief that his duties were

assumed by a younger worker, but he provided no evidentiary support for this

statement. The court noted that S-A presented statistical evidence that younger

workers were not treated more favorably than older workers in the RIF, and that

Mr. Rangel did not rebut this evidence or otherwise present evidence that younger,

similarly-situated employees fared better in the RIF. S-A’s statistical evidence,

described in detail in the district court’s order, showed that in Mr. Rangel’s work

group, the ratio of employees over age 40 to employees under age 40 remained

unchanged after the RIF.

      Mr. Rangel first argues the district court erred in applying the elements of a

prima facie case used in RIF cases. He asserts he was not part of the RIF because he

was told of his termination on December 1, three days before the RIF was publicly

announced. But this is mere conjecture. S-A presented undisputed evidence from its

Senior Director of Human Resources that Mr. Rangel was terminated as part of S-A’s

nationwide RIF; that all affected employees were given 30-days’ notice of their




                                         -7-
termination, and that the effective date of the RIF was December 30. There is no

evidentiary support for Mr. Rangel’s assertion.

      In any event, “the appropriate formulation of the prima facie case is flexible,

looking to those logically salient circumstances of each case that may raise the

requisite inference of discrimination.” Medlock v. United Parcel Serv., Inc.,

608 F.3d 1185, 1191 n.5 (10th Cir. 2010). Outside the context of a RIF, a prima

facie case of discrimination under the ADEA requires a plaintiff to prove that:

“(1) he is within the protected age group; (2) he was doing satisfactory work; (3) he

was discharged; and (4) his position was filled by a younger person.” Rivera v. City

& Cnty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (internal quotation marks

omitted). As the district court correctly ruled, Mr. Rangel did not provide any

evidence to support his assertion that his position or duties were filled by a younger

person.

      Mr. Rangel also challenges the relevancy of S-A’s statistics, which showed

that the ratio of older to younger employees remained unchanged after the RIF,

because they do not indicate the relative sales rankings of those selected for the RIF

and only surveyed the business unit he was in at the time of his termination. But it is

undisputed that the RIF criteria were based on performance evaluations, not sales

results. And more to the point, Mr. Rangel did not present any other statistical

evidence rebutting S-A’s, or otherwise meet his burden to present evidence that he

was replaced by a younger person, that younger employees fared better in the RIF, or


                                         -8-
that S-A intended to discriminate against him on the basis of age in reaching its RIF

decision. We conclude the district court correctly ruled that Mr. Rangel did not put

forth evidence establishing a prima facie age discrimination claim.

                                B. ADEA Retaliation

       Next, Mr. Rangel contends the district court erred in ruling he did not establish

a prima facie claim of ADEA retaliation. To establish a prima facie case of ADEA

retaliation, Mr. Rangel must show that (1) he “engaged in protected opposition to

discrimination, (2) a reasonable employee would have considered the challenged

employment action materially adverse, and (3) a causal connection existed between

the protected activity and the materially adverse action.” Hinds, 523 F.3d at 1202.

The district court ruled that Mr. Rangel failed to show a prima facie case of ADEA

retaliation because all of the performance factors and negative evaluations that led to

his inclusion in the S-A’s RIF criteria were in place many months before he filed his

discrimination complaint with the KHRC. Thus it ruled there was no causal

connection between any ADEA protected activity and Mr. Rangel’s inclusion in the

RIF.

       On appeal, Mr. Rangel argues his December 2008 termination occurred three

months after his September 2008 KHRC age-discrimination complaint. But he did

not dispute S-A’s evidence that its RIF criteria were uniform and that his inclusion

therein was based on performance events and reviews that occurred many months

before he filed his KHRC complaint: the below-expectations performance rating he


                                          -9-
received in his 2007 year-end review, and the May 2008 issuance of a FWP, which

meant he would automatically receive a below-expectation year-end review for 2008.

      Instead, he points to evidence that he complained internally to S-A supervisors

about the negative performance memos and reviews issued by Ms. Soupir, and he

argues these complaints constituted protected activity that preceded his KHRC

complaint. But his evidence shows only that he complained that Ms. Soupir’s

critiques were unfair and harsh. He presented no evidence that he ever asserted a

belief prior to his KHRC complaint that he was being discriminated against in any

way because of his age or other protected classification.

      Although “protected activity” can include voicing informal complaints to

supervisors, see Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004),

“to qualify as protected opposition, the employee must convey to the employer his or

her concern that the employer has engaged in [an unlawful] practice.” Hinds,

523 F.3d at 1203. “A vague reference to discrimination and harassment without any

indication that this misconduct was motivated by age does not constitute protected

activity and will not support a retaliation claim.” Id. at n.13 (brackets and internal

quotation marks omitted). An employer cannot engage in unlawful retaliation if it

does not know that the employee at least in part is engaging in protected activity. See

Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). Thus, there is

no evidence Mr. Rangel engaged in protected activity prior to September 2008, many

months after his negative performance review and FWP. The district court correctly


                                         - 10 -
ruled that Mr. Rangel failed to present evidence establishing a prima facie ADEA

retaliation claim.

                                       C. Pretext

       Most of Mr. Rangel’s brief is devoted to his arguments that S-A’s proffered

reason for terminating him is pretext because he had excellent sales results

throughout his career, including 2007 and 2008. The district court ruled that this

evidence did not controvert S-A’s evidence that he was failing to meet the

expectations set out in its 2006 guidelines, and that he did not offer any evidence of

impermissible motive in the RIF. See Sanders, 544 F.3d at 1106-07 (holding that, in

the context of a RIF, proof of pretext includes evidence that the plaintiff’s

termination was inconsistent with the RIF criteria articulated by the employer; a

claimed business judgment “so idiosyncratic or questionable that a factfinder could

reasonably find that it is pretext for illegal discrimination”; the employer’s

inconsistent application of the RIF criteria; or other procedural irregularities in the

RIF process). Because we affirm the district court’s rulings that Mr. Rangel did not

demonstrate either a prima facie age discrimination or retaliation claim, we need not

address his arguments concerning pretext. We note only that we concur in the




                                          - 11 -
district court’s ruling that Mr. Rangel failed to produce evidence showing that S-A’s

proffered reason for terminating his employment in the RIF was pretextual.

      The judgment of the district court is affirmed.


                                                 Entered for the Court


                                                 David M. Ebel
                                                 Circuit Judge




                                        - 12 -
