                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 23 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOE LEFLORE,

                Plaintiff-Appellant,

    v.                                                   No. 98-5024
                                                   (D.C. No. 97-CV-189-H)
    FLINT INDUSTRIES, INC.,                              (N.D. Okla.)
    a Delaware Corporation,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and MURPHY , 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(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      This order and judgment is not binding precedent, except under the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. 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.
       Following termination of his employment with defendant, Flint Industries,

Inc., plaintiff Joe LeFlore brought this action against Flint alleging age

discrimination, in violation of the Age Discrimination in Employment Act of 1967

(ADEA), 29 U.S.C. § 621-34, and the Oklahoma Anti-Discrimination Act, Okla.

Stat. tit. 25, §§ 1301, 1302, and intentional infliction of emotional distress. The

district court granted summary judgment in Flint’s favor on all counts. LeFlore

appeals only the district court’s rejection of his age discrimination claims. We

reject LeFlore’s invitation to review the district court’s grant of summary

judgment under a clearly erroneous standard, and instead, apply the usual de novo

standard, using the same legal principles the district court employed pursuant to

Fed. R. Civ. P. 56(c).   See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th

Cir. 1995).

       The following facts are undisputed or, because he is the party opposing

summary judgment, construed in LeFlore’s favor. Flint provides construction and

oilfield services worldwide through various subsidiaries. LeFlore began working

for Flint in its aviation department in 1970 as an aircraft mechanic and eventually

became chief of maintenance at Flint’s Tulsa location. Around 1981, he began to

act as copilot on some of Flint’s flights, and he subsequently was given the title

“Co-Pilot/Chief of Maintenance,” which he retained throughout his employment

with Flint.


                                           -2-
      During most of the time LeFlore worked for Flint, Flint had two jets: a

Cessna Citation I and a Cessna Citation III. Early in 1995, Flint decided to sell

the Citation I, and did so on February 15, 1995, for about $1,000,000. It also

decided to reduce its pilot staff. At that time, its staff consisted of chief pilot

David Doty (who was age forty-eight) and three other pilots--Dave Masterson

(age thirty-nine), Sid Hilton (age thirty-four), and LeFlore (age sixty-one). By his

own admission, LeFlore was working only ten percent of his time as a mechanic;

the remainder was spent working as a copilot. On March 7, 1995, Flint

terminated LeFlore and Hilton. Its reasons for selecting these two individuals for

termination, as stated in defending this case, were that neither LeFlore nor Hilton

had the 5,000 hours of air time necessary under internal company policy to fly the

Citation III; that LeFlore was not certified by the FAA to fly the Citation III as

pilot-in-command, as were the other three; and that LeFlore did not have an

Airline Transport Pilot (ATP) rating from the FAA, which both Doty and

Masterson had.

      LeFlore subsequently brought this action for age discrimination on two

separate bases. First, he contends that he was improperly terminated     1
                                                                             in his

capacity as chief of maintenance and was “replaced” by Joel Hawksworth, a


1
      LeFlore contends he was never “terminated” but only “laid off.” He fails to
explain, and we do not see, how this difference in terminology is relevant to his
claims.

                                           -3-
younger individual who had been hired as Flint’s full-time mechanic eight months

before LeFlore’s termination. Second, he contends he was improperly terminated

in his capacity as copilot because he was replaced by Todd Barnes, another

younger individual hired as a copilot more than two years after LeFlore was

terminated.

       Because LeFlore presented no direct evidence of age discrimination, his

case must proceed in accordance with the burden-shifting rules announced in

McDonnell Douglas Corp v. Green           , 411 U.S. 792, 802-04 (1973).      See Ingels v.

Thiokol Corp. , 42 F.3d 616, 620-21 (10th Cir. 1994). To make his prima facie

case, LeFlore must establish that he was (1) within the protected age group;

(2) doing satisfactory work; (3) discharged despite the adequacy of his work; and

(4) replaced by a younger person.         See id. at 621. In reduction in force cases,

which this case is in part,   2
                                  the fourth element is altered to require the plaintiff to

show that he was treated less favorably in the reduction in force than younger

employees. See id. In addition, to satisfy his burden under the fourth element,

LeFlore must show that he was “similarly situated” to the younger employees

treated more favorably than he.         See, e.g. , Fairchild v. Forma Scientific, Inc.   , 147


2
       Although LeFlore argued in the district court that Hawksworth “replaced”
him, despite Hawksworth’s having been employed by Flint for eight months
before LeFlore was terminated, the district court analyzed this part of his claim as
falling in the reduction-in-force category. On appeal, LeFlore generally presents
his arguments in that same vein.

                                                -4-
F.3d 567, 571-72 (7th Cir. 1998);       Vega v. Kodak Caribbean, Ltd. , 3 F.3d 476, 479

(1st Cir. 1993); Branson v. Price River Coal Co.       , 853 F.2d 768, 771 (10th Cir.

1988) (“Evidence that an employer fired qualified older employees but retained

younger ones in similar positions is sufficient to create a rebuttable presumption

of discriminatory intent and to require the employer to articulate reasons for its

decision.”).   3
                   That requires that he show he was similarly situated to the younger

employees “in all relevant respects.”       Ercegovich v. Goodyear Tire & Rubber Co.       ,

154 F.3d 344, 353 (6th Cir. 1998).

       Once the plaintiff makes his or her prima facie showing, the burden shifts

to the defendant to a legitimate, nondiscriminatory reason for the plaintiff’s

termination.       See Ingels , 42 F.3d at 621. If it does that, then the plaintiff must

produce evidence that the proferred reason is pretextual and unworthy of belief.

See Doan v. Seagate Tech., Inc.       , 82 F.3d 974, 977 (10th Cir. 1996).

       With respect to the claim regarding Hawksworth, the district court found

that LeFlore made his prima facie case and that Flint articulated a legitimate


3
        We note that in certain employment discrimination cases applying the
McDonnell Douglas scheme, whether the employees being compared were
similarly situated is analyzed as part of a plaintiff’s showing of pretext rather than
as part of the plaintiff’s prima facie case.     See, e.g. , Aramburu v. Boeing Co. , 112
F.3d 1398, 1403-05 (10th Cir. 1997) (in Title VII case, noting similarly-situated
issue as part of prima facie case, but discussing it under pretext);      Morgan v. Hilti,
Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997) (addressing similarly-situated issue as
part of pretext). Even if we addressed the issue as part of our analysis of pretext
in the present case, the result would be the same.

                                               -5-
reason for terminating him--because of its economic decision to sell one of the

jets, it needed to reduce its pilot staff and chose to terminate him for the reasons

stated earlier. The court then concluded that his attempt to show pretext--on the

basis that he was more qualified as a mechanic than Hawksworth--failed because

he did not present any evidence to support this position other than his own

conclusory statements.

      With respect to the claim regarding Barnes, the court indicated it was

questionable whether LeFlore satisfied the fourth element of his prima facie case

because Barnes was not hired until over two years after LeFlore was terminated,

and Barnes’ hiring was too attenuated for him to be considered to have replaced

Leflore. The court then concluded that, assuming LeFlore made his prima facie

case, he again failed to show that Flint’s legitimate business reason for hiring

another pilot--improving business increasing its need for pilots--was pretextual.

The court rejected LeFlore’s contention that it would have made better business

sense to hire someone who was both a copilot and mechanic (Barnes was not a

mechanic) on the basis that that was purely a business decision left to Flint’s

judgment, which a court cannot second-guess. It also found that at most, LeFlore

was as qualified as a copilot as Barnes when Barnes was hired because at that

time neither was qualified to fly the Citation III, although Barnes obtained the




                                          -6-
necessary rating shortly after being hired. In contrast, LeFlore had declined

Flint’s offer to pay for him to obtain this rating during his employment.

      On appeal, LeFlore reiterates his contentions that he was treated less

favorably than Hawksworth and replaced by Barnes. Although we approach the

issues slightly differently from the way the district court did, we nonetheless

conclude it correctly granted summary judgment to Flint.    See Bolden v. PRC,

Inc. , 43 F.3d 545, 548 (10th Cir. 1994) (court of appeals may affirm grant of

summary judgment on any basis adequately supported by record).     4



      Turning first to his claim as it regards Hawksworth, we conclude that

LeFlore did not make his prima facie case because he failed to establish the fourth

element--that he was treated less favorably than a younger, similarly situated

employee. Hawksworth was a full-time mechanic. LeFlore was primarily a

copilot; he spent no more than ten percent of his time as a mechanic. The two

employees were therefore not similarly situated; that is, their positions were not



4
       The district court held that the legal analysis applicable to LeFlore’s claim
under the Oklahoma anti-discrimination statute was the same as that for an ADEA
claim, see Okla. Stat. tit. 25, § 1101, and granted summary judgment on the state
claim for the same reasons as for the ADEA claim. On appeal, LeFlore does not
challenge the court’s equation of the two claims. Because this ruling is
unchallenged and we agree summary judgment on the ADEA claim was
appropriate, we conclude that summary judgment on the state claim was also
appropriate. In doing so, we assume, without deciding, that a private cause of
action such as LeFlore alleged exists under Oklahoma law.      Cf. List v. Anchor
Paint Mfg. Co. , 910 P.2d 1011 (Okla. 1996).

                                          -7-
similar “in all relevant respects.”    Ercegovich , 154 F.3d at 353. Emphasizing his

longtime service to Flint, what LeFlore really appears to be arguing is that Flint

should have allowed him to “bump” Hawksworth from his mechanic’s position.

Giving LeFlore Hawksworth’s job would be according special treatment to

LeFlore. The ADEA does not require an employer to accord special treatment to

older workers and bump junior employees; it requires only that older workers be

treated fairly.   See Jones v. Unisys Corp. , 54 F.3d 624, 630 n.6 (10th Cir. 1995);

EEOC v. Sperry Corp. , 852 F.2d 503, 509 (10th Cir. 1988). LeFlore’s claim

regarding his position as a mechanic thus fails.

       With respect to Barnes, the foundation of LeFlore’s claim is that more than

two years after he was terminated as a copilot, Flint was under some sort of duty

to rehire him if, for whatever reason, it decided it needed an additional copilot.

He cites no authority supporting this contention, and we conclude, as the district

court suggested, that this period is too long for Barnes to be considered to have

“replaced” LeFlore.     Cf. Watkins v. Sverdrup Tech., Inc.   , 153 F.3d 1308, 1312-13,

1316 (11th Cir. 1998) (new employee hired in similar position ten months after

plaintiffs terminated did not replace plaintiffs);   Frieze v. Boatmen’s Bank , 950

F.2d 538, 540, 541 (8th Cir. 1991) (employee hired as management trainee five

months after plaintiff’s dismissal who could not perform plaintiff’s work until

more than two years later held not to have replaced plaintiff).


                                              -8-
      Further, even if we assume, as the district court did, LeFlore made a prima

facie case regarding Barnes, his claim still fails. His contention that it would

have been in Flint’s “best interest” to hire a copilot who was also a mechanic

does not demonstrate pretext. What is in Flint’s best interest is a business

decision, and we “will not second guess business decisions made by employers, in

the absence of some evidence of impermissible motives.”     Doan , 82 F.3d at 978

(quotations omitted). Finally, we also note that, again, LeFlore has not shown

that he and Barnes were similarly situated. Barnes was willing to and did obtain

the necessary rating to fly the Citation III shortly after being hired. Though given

the opportunity to while he was employed, LeFlore never did.

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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