                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EARL GILKEY,

                Plaintiff-Appellant,

    v.                                                    No. 03-5205
                                                    (D.C. No. 02-CV-730-H)
    SIEMENS ENERGY &                                      (N.D. Okla.)
    AUTOMATION, INC.,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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.

         Winford Earl Gilkey appeals the district court’s grant of summary judgment

in favor of his former employer, Siemens Energy and Automation, Inc., on his


*
      This order and judgment is not binding precedent, except under the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.
claims that Siemens discriminated against him because of his race and his age by

eliminating his position in a reduction-in-force (RIF). “We review grants of

summary judgment de novo to determine whether any genuine issue of material

fact exists, viewing all evidence and any reasonable inferences that might be

drawn therefrom in the light most favorable to the non-moving party.”   Croy v.

Cobe Labs., Inc. , 345 F.3d 1199, 1201 (10th Cir. 2003). For the reasons

discussed below, we affirm.   1



      Siemens manufactures gas chromatographs and mass spectrometers at a

plant in Bartlesville, Oklahoma. Gilkey, a fifty-three-year-old African-American,

handled Siemens’ shipping duties in its Quality Assurance (QA) department at the

facility. Teressa Grayson, an African-American two years older than Gilkey,

handled receiving duties. Five other employees, Caucasians ranging in age from

forty to fifty-three, were also assigned to the QA department. Only Gilkey and

Grayson, however, had primary job duties focused on shipping or receiving. The

other QA employees’ primary job duties involved testing and evaluating incoming



1
        Gilkey argues that Siemens’ supplemental appendix contains materials that
were not presented to the district court and therefore cannot be considered by this
court. Gilkey is correct that generally we do not consider materials not presented
to the district court. See, e.g., Lantec, Inc. v. Novell, Inc. , 306 F.3d 1003, 1022
(10th Cir. 2002). The appellate record indicates that Mr. Snelson’s affidavit was
presented to the district court, but we cannot determine whether the district court
had access to Siemens’ other supplemental materials. Therefore, we have not
considered such other materials in making our decision.

                                          -2-
or outgoing products and materials. These jobs are technical in nature, requiring

employees to inspect and to analyze materials from suppliers and to calibrate

precision mechanical and electronic instrumentation so that Siemens’ products

comply with established standards. According to the record, Gilkey had not been

trained to and was not qualified to perform these other duties.

        In 2001, Siemens decided to reduce its workforce. Siemens consolidated

its shipping and receiving functions, and it determined that Grayson, rather than

Gilkey, would fill the combined position. Gilkey’s employment was terminated

June 22, 2001. Siemens did not terminate the employment of any other QA

employee in the June 2001 RIF.      2



        Gilkey alleged that his layoff violated Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e       et seq . (Title VII), and the Age Discrimination in

Employment Act, 29 U.S.C. § 621         et seq. (ADEA) because only he and Grayson

were considered for layoff. The district court granted Siemens’ motion for

summary judgment, holding that Gilkey had not established a         prima facie case of

discrimination. In addition, the district court noted that Gilkey could not show

Siemens’ legitimate non-discriminatory reason for laying him off was a pretext

for illegal discrimination.




2
    Siemens, however, subsequently laid off another Caucasian QA employee.

                                             -3-
       A plaintiff alleging illegal discrimination in a RIF may use the

burden-shifting formula of     McDonnell Douglas Corp. v. Green           , 411 U.S. 792

(1973), to survive a motion for summary judgment.          See Beaird v. Seagate Tech.,

Inc. , 145 F.3d 1159, 1165-66 (10th Cir. 1998). Under this formula, once the

plaintiff has established a   prima facie case, the defendant must present a

non-discriminatory reason for its action, and then the plaintiff must present

evidence that the defendant’s proffered reason is a pretext for discrimination.            Id.

at 1165. Here, to establish his    prima facie case, Gilkey must prove: (1) he was in

a protected class; (2) he was performing his work satisfactorily; (3) despite his

satisfactory work, he was discharged; and (4) there was some evidence that

Siemens’ RIF decision involved intentional discrimination against him.             Id. He

can establish the fourth element through evidence that he lost his job while

non-African-American or younger employees in similar positions kept their jobs.

Id. at 1165, 1167 & n.4.

       Because we find the fourth element dispositive, we assume for purposes of

our decision that Gilkey has established the first three factors of his        prima facie

case. Gilkey, however, cannot establish a violation of the fourth factor, that he

was treated less favorably than non-protected employees in similar positions.

First, it is undisputed that Siemens retained Grayson, an African-American older

than Gilkey, for the combined shipping/receiving position. Second, as to the


                                              -4-
other five QA employees Siemens retained, the record shows that their primary

functions were technical or specialized in nature and not susceptible to

consolidation with the shipping/receiving functions. Accordingly, the district

court correctly concluded that these positions were not similar or comparable to

Gilkey’s or Grayson’s QA positions.     3
                                            Thus, Siemens’ decision to retain younger,

Caucasian QA employees while terminating Gilkey’s employment does not create

an inference that Siemens intended to discriminate against Gilkey in the RIF

because of his race or age.    See Stone v. Autoliv ASP, Inc.   , 210 F.3d 1132, 1138

(10th Cir. 2000) (holding that employee must point to younger employees retained

in similar positions);   Beaird , 145 F.3d at 1167-68 (examining similar positions);

Branson v. Price River Coal Co.     , 853 F.2d 768, 771 (10th Cir. 1988) (same).

       In addition, the dissimilarity in the jobs performed under the aegis of the

QA department satisfies Siemens’ obligation to explain its creation of two groups

of QA employees (one subject to potential layoff, and the other not) for purposes

of the RIF.   See Bell v. AT&T , 946 F.2d 1507, 1511 (10th Cir. 1991) (“In a Title

VII case involving a reduction-in-force, the employer must assert a legitimate



3
       Gilkey argues that, because all of the QA employees were trained in
shipping and receiving, all the QA positions are sufficiently similar and all QA
employees should be compared to one another. The record indicates, however,
that the other QA employees were trained in shipping and receiving as back-ups
or for emergencies, and that their primary functions were distinct from Gilkey’s
and Grayson’s.

                                             -5-
justification for leaving certain employees out of the group susceptible to

termination while including others.”);   Beaird , 145 F.3d at 1170-71 (same).

      Although the record shows that Gilkey cannot satisfy      McDonnell Douglas’s

fourth element, even if Gilkey had established a   prima facie case, he has not

shown that Siemens’ legitimate non-discriminatory reason was a pretext for

discrimination. Siemens submits that, of the QA positions, the shipping and

receiving functions were most easily combined, and that Gilkey was not as

qualified as Grayson to assume the combined shipping/receiving job. Because

this rationale satisfies Siemens’ burden of producing a non-discriminatory reason

for its actions, the burden of showing pretext shifts to Gilkey.

      “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

asserted non-discriminatory reasons.’”     Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323

(10th Cir. 1997) (quoting   Olson v. Gen. Elec. Astrospace   , 101 F.3d 947, 951-52

(3d Cir. 1996)) (further quotations and citation omitted). In this RIF case, Gilkey

can establish pretext by showing, among other methods, that: (1) his termination

was not in accordance with the RIF criteria allegedly used; (2) his evaluation

under the RIF criteria was falsified or manipulated; or (3) the RIF itself was


                                           -6-
pretextual and the employer was not really reducing its workforce.     See Stone , 210

F.3d at 1140; Beaird , 145 F.3d at 1168. However, “[an employer] may chose to

conduct its RIF according to its preferred criteria of performance . . . and we will

not disturb that exercise of defendant’s business judgment.”     Beaird , 145 F.3d at

1169. See also Lucas v. Dover Corp., Norris Div.      , 857 F.2d 1397, 1403-04

(10th Cir. 1988) (“This court will not second guess business decisions made by

employers, in the absence of some evidence of impermissible motives.”).

       Gilkey argues that his termination was not in accordance with Siemens’ RIF

criteria because only he and Grayson were considered for the RIF. The record

indicates, however, that Siemens’ management considered the positions of each of

the QA employees in determining which jobs to consolidate or eliminate, and then

determined that the shipping and receiving positions could most easily be

combined. Furthermore, Gilkey has pointed to nothing in the record to suggest he

was qualified for the other QA positions. Since there is no evidence that

Siemens’ business judgment was so “idiosyncratic” or “questionable” as to allow

a reasonable factfinder to find discrimination,   see Beaird , 145 F.3d at 1169,

Siemens’s RIF decision was within its prerogative and does not constitute a

showing of pretext.

       Finally, Gilkey has made no showing that retaining Grayson, rather than

himself, was pretext for discrimination. Grayson was African-American and older


                                            -7-
than Gilkey, so Siemens’ preference for her does not tend to show discrimination.

Even if Siemens erred in determining that Grayson was a better choice to fill the

combined position, an employer’s mistaken, but non-discriminatory, reasoning

does not suffice to show pretext.     See McKnight v. Kimberly Clark Corp.       ,

149 F.3d 1125, 1129 (10th Cir. 1998). “It is the perception of the decision maker

which is relevant, not plaintiff’s perception of [him]self.”    Branson , 853 F.2d at

772.

       Under these circumstances, “[t]here is simply no inference of foul play

about [the employer’s] choice,”     Beaird , 145 F.3d at 1169. The judgment of the

district court is AFFIRMED.


                                                         Entered for the Court



                                                         Timothy M. Tymkovich
                                                         Circuit Judge




                                             -8-
