                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 26 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    SHERRYL PERRY,

                Plaintiff-Appellant,

    v.                                                    No. 03-6120
                                                    (D.C. No. 02-CV-542-C)
    ST. JOSEPH REGIONAL MEDICAL                           (W.D. Okla.)
    CENTER, an Oklahoma Corporation,
    a/k/a Via Christi Oklahoma Regional
    Medical Center Ponca City, Inc.;
    VIA CHRISTI HEALTH SYSTEMS,
    INC., a Kansas Corporation,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.



         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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Sherryl Perry appeals from the grant of judgment as a matter of law in

favor of defendants on her wrongful termination claim brought under the Age

Discrimination in Employment Act (ADEA).        See Fed. R. Civ. P. 50; 29 U.S.C.

§§ 621-34. At the close of Ms. Perry’s case, defendants moved for judgment as

a matter of law and the court took the motion under advisement. Following the

presentation of all the evidence in the case, the district court granted the

defendants’ motion for judgment as a matter of law.

      Our jurisdiction arises under 28 U.S.C. § 1291. Because we conclude that

Ms. Perry failed to present sufficient evidence from which a jury could rationally

conclude that she was terminated because of her age, we affirm.

                                 I. Legal standards

             We review de novo the grant or denial of a judgment as a
      matter of law, and apply the same legal standard as the district court
      and construe the evidence and inferences in the light most favorable
      to the nonmoving party without weighing the evidence, passing on
      the credibility of witnesses, or substituting our judgment for that of
      the jury. Judgment as a matter of law is appropriate only where the
      evidence and all inferences to be drawn therefrom are so clear that
      reasonable minds could not differ on the conclusion. Unless the
      proof is all one way or so overwhelmingly preponderant in favor of
      the movant as to permit no other rational conclusion, judgment as a
      matter of law is improper.




                                          -2-
Greene v. Safeway Stores, Inc.    , 98 F.3d 554, 557 (10th Cir. 1996) (citations and

quotations omitted). “However, we must enter judgment as a matter of law in

favor of the moving party if there is no legally sufficient evidentiary basis . . .

with respect to a claim or defense . . . under the controlling law.”      Mason v.

Okla. Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997) (quotations omitted).

       Under the ADEA, “[i]t shall be unlawful for an employer . . . to      discharge

any individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1).

              To prevail on an ADEA claim a plaintiff must establish that
       age was a determining factor in the employer’s challenged decision.
       The plaintiff need not prove that age was the  sole reason for the
       employer’s acts, but must show that age made the difference in the
       employer’s decision. Under our precedents, an ADEA plaintiff may
       proceed by either of two general methods to carry the burden of
       making her or his case. A party may attempt to meet his burden
       directly, by presenting direct or circumstantial evidence that age was
       a determining factor in his discharge. Or, more typically, a party
       may rely on the proof scheme for a prima facie case established in
       McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
       and Texas Department of Community Affairs v. Burdine,      450 U.S.
       248, 252-56 (1981).

Greene , 98 F.3d at 557-58 (quotations and citations omitted). Here, lacking

evidence directly related to the forbidden animus of age as a determining factor

in her discharge, Ms. Perry relied on the inferential proof scheme set forth in




                                             -3-
McDonnell Douglas Corp.           As in Greene , we turn now to consider whether

Ms. Perry made a case that should have been presented to the jury.

                                      II. Relevant facts

       After a change of management at the hospital where she had been employed

as the Nursing Director of the Emergency Department for twenty-six years,

Ms. Perry was counseled by her new supervisor, Ms. Watson, that Ms. Perry

needed to improve her job performance in several areas in order to meet federal

emergency room (ER) standards, or be terminated.           See Aplt. App., Vol. I

at 113-16. Defendants established that the hospital had received notice from the

state about the ER’s deficiencies. The hospital’s board of directors had given

“the [new] CEO marching orders to fix up the ER” because it was “one of the

worst parts of [the] hospital.”      Id. at 160. Ms. Watson criticized Ms. Perry’s lack

of enthusiasm for her job, her giving of priority to volunteer efforts instead of to

her job, her failure to sufficiently support emergency room nursing staff, her

failure to be visible in the ER and to check on the evening ER staff, her failure to

follow through with critical ER issues, and her failure to “fix” ER problems after

having earlier been released from other duties in order to concentrate on the ER

department. Aplt. App., Vol. II at 537;       id. Vol. 1 at 198-203. Ms. Perry

disagreed with her supervisor’s evaluation and wrote a response.         Id. Vol. II

at 538-39.


                                              -4-
      Ms. Watson believed that Ms. Perry was not being truthful in her response.

She determined that Ms. Perry continued to demonstrate a lack of responsibility

for dealing with issues and a failure to make her job a priority. Ms. Watson was

further of the opinion that Ms. Perry might be “burn[ed] out” and that “she was

not going to be able to change her old ways.”    See id. at 541; id. Vol. I at 194,

199, 217. Mr. Hufnagel, the vice president of human resources, also testified that

Ms. Perry was not productive enough to keep up with the pace required by the

new CEO’s “demanding and complicated new plans for growth and productivity

and efficiency and excellence.”    Id. Vol. I at 159, 170. When Ms. Watson

terminated Ms. Perry, Ms. Perry was fifty-five years old.

      After Ms. Perry’s termination, defendants promoted Ms. Peters,

a thirty-eight-year-old nurse who had been serving as Ms. Perry’s second-in-

command, to fill Ms. Perry’s position as interim director. Defendants also began

advertising the position in national publications. Mr. Hufnagel testified that

Ms. Peters, too, was not “productive enough to serve in that position

permanently,” id. at 172, and that she was never permanently offered the job.

Defendants paid the traveling expenses for a fifty-four-year-old applicant from

Florida to personally interview for the job and offered to hire her before receiving

Ms. Perry’s discrimination complaint.     Id. at 164-66. Ms. Perry’s position was

ultimately permanently filled by Ms. Haub, a forty-eight-year-old nurse.


                                           -5-
                                    III. Analysis

      Ms. Perry relies on five pieces of evidence to support her claim that age

was a “determining factor” that “made the difference” in her termination and that

the issue should have gone to the jury: (1) her replacement by a younger person;

(2) her favorable performance evaluations before the change in management;

(3) Mr. Hufnagel’s testimony that she was terminated because she was

not productive enough to keep up with the pace of the new management;

(4) Ms. Watson’s testimony that Ms. Perry would not be able to change her old

ways and that Ms. Perry had “burnout”; and (5) Ms. Young-Shiflet’s       1
                                                                             testimony

that the hospital’s termination decision was best for the hospital because “it was

time to have new blood and to have someone in that possibly could motivate the

staff to do a better job, and I don’t believe that the work that needed to be done

was getting done.”   Id. at 454. Ms. Perry argues that, based on this evidence, the

jury could have inferred that her termination was pretextual and concluded that

her age made the difference in the hospital’s decision to replace her.

      After hearing all the evidence, the district court disagreed. As a

preliminary matter, the court held that Ms. Haub was “insignificantly younger”

and, therefore, the evidence of a seven-year age difference between her and

Ms. Perry was “not sufficient to raise an inference” that the reason for


1
       Ms. Young-Shiflet preceded Ms. Watson as Ms. Perry’s supervisor.

                                          -6-
Ms. Perry’s termination was age.       Id. at 506. The court further held that the jury

could not infer pretext from the other testimony cited above.      Id. The court held

that defendants had “shown a legitimate nondiscriminatory reason for the

termination,” unrebutted by evidence of pretext, and granted judgment as a matter

of law to defendants.   Id. at 507.

       a) The prima facie case        . In Reeves v. Sanderson Plumbing Products,

Inc. , the Supreme Court explained that

       a plaintiff’s prima facie case, combined with sufficient evidence to
       find that the employer’s asserted justification is false, may permit the
       trier of fact to conclude that the employer unlawfully discriminated.

              This is not to say that such a showing by the plaintiff will
       always be adequate to sustain a jury’s finding of liability. Certainly
       there will be instances where, although the plaintiff has established a
       prima facie case and set forth sufficient evidence to reject the
       defendant’s explanation, no rational factfinder could conclude that
       the action was discriminatory. For instance, an employer would be
       entitled to judgment as a matter of law if the record conclusively
       revealed some other, nondiscriminatory reason for the employer’s
       decision, or if the plaintiff created only a weak issue of fact as to
       whether the employer’s reason was untrue and there was abundant
       and uncontroverted independent evidence that no discrimination
       had occurred.

530 U.S. 133, 148 (2000). Here, the district court based its “insignificantly

younger” analysis on    O’Connor v. Consolidated Coin Caterers Corp.        , 517 U.S.

308 (1996). There, the Court stated,

       [i]n the age-discrimination context, [] an inference [of intent to
       discriminate] cannot be drawn from the replacement of one worker
       with another worker insignificantly younger. Because the ADEA

                                             -7-
       prohibits discrimination on the basis of age and not class
       membership, the fact that a replacement is substantially younger than
       the plaintiff is a far more reliable indicator of age discrimination
       than is the fact that the plaintiff was replaced by someone outside the
       protected class.

517 U.S. at 313; and see Munoz v. St. Mary-Corwin Hosp.            , 221 F.3d 1160, 1166

(10th Cir. 2000) (holding that, “because plaintiff’s replacement was only two

years his junior--an obviously insignificant difference--the necessary inference of

discrimination was precluded, and he failed to establish his prima facie case”).

Ms. Perry argues that the parties’ “principal dispute centers around whether Perry

was replaced by Peters, 17 years her junior, or Haub, who is seven years younger

than Perry,” and argues that the court impermissibly weighed the evidence in

holding, as a matter of law, that Haub, and not Peters, replaced Perry. Aplt. Br.

at 7-8. Ms. Perry also argues that a seven-year age gap is sufficient to support an

inference of discrimination for a prima facie case. We need not decide these

issues, however, because of the procedural and evidentiary posture of the case at

the time of the district court’s decision.    Lucas v. Dover Corp., Norris Div.    ,

857 F.2d 1397, 1401 (10th Cir. 1988) (addressing only whether there was

sufficient evidence to establish that reasons for termination were pretextual).

       When a defendant presents evidence of a valid, nondiscriminatory reason

for termination in a case in which the plaintiff is relying on a      McDonnell Douglas

Corp. proof scheme to establish discrimination,


                                             -8-
      the McDonnell Douglas framework--with its presumptions and
      burdens--disappear[s], and the sole remaining issue [is]
      discrimination vel non . . . .

             The ultimate burden of persuading the trier  of fact that the
      defendant intentionally discriminated against the plaintiff remains at
      all times with the plaintiff. And in attempting to satisfy this burden,
      the plaintiff--once the employer produces sufficient evidence to
      support a nondiscriminatory explanation for its decision--must be
      afforded the 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. That is, the plaintiff
      may attempt to establish that he was the victim of intentional
      discrimination by showing that the employer’s proffered explanation
      is unworthy of credence. Moreover, although the presumption of
      discrimination drops out of the picture once the defendant meets its
      burden of production, the trier of fact may still consider the evidence
      establishing the plaintiff’s prima facie case and inferences properly
      drawn therefrom . . . on the issue of whether the defendant’s
      explanation is pretextual.

Reeves , 530 U.S. at 142-43 (quotations and citations omitted). Even if we

considered that Ms. Peters, and not Ms. Haub, replaced Ms. Perry, or that seven

years is a substantial age difference that supports a prima facie case of

discrimination, Ms. Peters still had the burden of producing sufficient evidence to

show that defendants’ reasons for terminating her were not legitimate or were

unworthy of credence and that age was the determining factor in her termination.

This she did not do.

      Ms. Perry did not rebut the testimony that the ER, over which she had been

the director for twenty-six years, did not meet federal standards and was

considered to be the hospital’s worst department and in need of quick

                                         -9-
improvement. She could not rebut the fact that defendants sought to replace her

with a fifty-four-year-old nurse before they knew of her discrimination complaint.

And none of the testimony that Ms. Perry points to regarding her lack of

productivity and inability to keep the pace of the new CEO’s demands, her

inability to change her ways, her apparent “burnout,” or the need for “new blood”

to motivate ER employees raises an inference that she was terminated because of

her age or that her termination was pretextual. An employee can be

nonproductive, burned out, and unwilling or unable to change her ways at any

age, just as an older employee can remain productive, enthusiastic, and able to

change. Cf. Lindsey v. Baxter Healthcare Corp.    , 962 F.2d 586, 588 (7th Cir.

1992) (stating that “[n]o weight can be attached to . . . ‘good old boys,’ [because]

any competent user of the English (or rather the American) language knows that

to be a good old boy one need not be old, or for that matter, good”).

      Evidence that Ms. Perry had never received a written negative evaluation

before new management took over is relevant to the issue of substandard

performance. But “[p]retext is not established by virtue of the fact that an

employee has received some favorable comments in some categories or has,

in the past, received some good evaluations.”    Ezold v. Wolf, Block, Schorr &

Solis-Cohen , 983 F.2d 509, 528 (3d Cir. 1992). And that evidence alone, in light

of the overwhelming evidence supporting defendants’ assertion that age was not


                                          -10-
the determining factor in their decision to terminate Ms. Perry,      created, at most,

“only a weak issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evidence that no

discrimination had occurred.” Reeves , 530 U.S. at 148. Although judgment as

a matter of law should remain atypical in age discrimination cases,       see id. at 155

(Ginsburg, J., concurring), after a careful review of the record, we conclude that

the district court did not err in granting judgment as a matter of law to

defendants.

       The judgment of the district court is AFFIRMED.


                                                        Entered for the Court



                                                        Paul J. Kelly, Jr.
                                                        Circuit Judge




                                            -11-
