                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 9 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

    ERNEST P. WIEMER,

                Plaintiff-Appellant,
                                                         No. 02-3055
    v.                                            (D.C. No. 00-CV-1504-MLB)
                                                            (D. Kan.)
    LEARJET INC.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and McCONNELL, Circuit Judges.




         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.

         In this age discrimination case, plaintiff Ernest P. Wiemer appeals the

district court’s grant of summary judgment in favor of his former employer,


*
      This order and judgment is not binding precedent, except under the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.
defendant Learjet Inc. (Learjet). Because plaintiff’s evidence did not raise a

genuine factual dispute as to whether Learjet’s proffered reason for his

termination was a pretext for age discrimination, we affirm.

      Plaintiff, at age fifty-nine, was employed as a senior financial analyst at

Learjet for thirty-seven days. Upon learning of the program analyst opening

through his daughter, plaintiff contacted Learjet and was informed that the

position involved budgets, forecasts, variances, and similar tasks. On May 4,

1998, he was interviewed by Bob Wassinger, a finance manager; David Erickson,

a senior financial analyst; and Mark Herbert, the finance director. Plaintiff was

also interviewed by Tom Burian, who later became his manager. After the

interviews, the managers all approved of plaintiff. The ultimate decision to hire

plaintiff was made by Mark Herbert, subject to review by Chris Crawshaw, the

vice president of finance.

      During the interview with finance director Herbert, plaintiff alleges he felt

that Herbert was threatened by him and was out to get him. Before accepting the

position, plaintiff asked to meet with Crawshaw. Plaintiff alleges that he

informed Crawshaw of his concerns about Herbert, and that Crawshaw told him

Herbert was not performing well and would soon be replaced, perhaps by

plaintiff. Plaintiff then accepted the job offer, and began work on July 15, 1998.




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      The position for which plaintiff was hired involved extensive computer

work, requiring advanced spreadsheet skills. After a week of orientation, when

plaintiff began receiving accounting assignments, it became apparent that he

lacked the computer skills necessary to perform his duties. After sending him to

several different training courses, the finance department management began to

doubt plaintiff’s ability to do the job for which he was hired. Observations by

David Erickson, Tom Burian, and Mark Herbert, indicated they had significant

concerns regarding plaintiff’s skills and work product. See Aplee’s App. at

89-96, 169–172, 175-78. After discussing the matter with Tom Burian, Mark

Herbert decided to terminate plaintiff. The decision was approved by Chris

Crawshaw, and plaintiff was terminated on August 21, 1998.

      Plaintiff filed a discrimination charge with the Kansas Human Rights

Commission (KHRC), alleging that he was terminated because of his age in

violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§§ 621-634. The KHRC conducted an investigation and returned a finding of no

probable cause. Plaintiff appealed this determination to the Equal Employment

Opportunity Commission, which adopted the KHRC’s findings and issued a

right-to-sue letter. Plaintiff then filed this discrimination action in the district

court. Defendant moved for summary judgment, which was granted by the district




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court upon a finding that plaintiff failed to raise a triable issue as to whether

Learjet’s proffered reason for its decision was a pretext for age discrimination.

       We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.         Revell v. Hoffman ,

309 F.3d 1228, 1232 (10th Cir. 2002),      cert. denied , 124 S. Ct. 83 (2003). A

district court properly grants summary judgment if “there is no genuine issue as to

any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “To determine whether a dispute is genuine, we

must consider whether a reasonable jury could return a verdict for the nonmoving

party.” Revell , 309 F.3d at 1232 (further quotation omitted). We look to the

applicable substantive law when evaluating whether a fact is material.          Id.

Further, “it is not enough that the nonmovant’s evidence be ‘merely colorable’ or

anything short of ‘significantly probative.’”         Id. (quoting Comm. for the First

Amendment v. Campbell , 962 F.2d 1517, 1521 (10th Cir. 1992)) (further quotation

omitted).

       In discriminatory discharge cases, once a plaintiff makes a prima facie

case, and the defendant advances a legitimate, nondiscriminatory reason for its

decision, the plaintiff must produce either direct evidence of discrimination or

indirect evidence that the defendant’s proffered reason was a pretext for

discrimination. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.


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2001). “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.” Hardy v. S.F. Phosphates Ltd. Co., 185

F.3d 1076, 1080 (10th Cir. 1999) (further quotation omitted).

      Plaintiff argues that in evaluating his showing of pretext, the district court

failed to consider his affidavit and the testimony of Will Evans, the finance

department manager through whom plaintiff’s daughter learned of the opening.

He argues that this evidence was sufficient to raise a factual dispute regarding

Learjet’s true motivation. Will Evans testified that plaintiff had successfully

completed a project for him which required basic Excel skills, and that he thought

plaintiff should have been given more training instead of being terminated.

Aplt’s App. at 97-98, 130. Plaintiff’s affidavit detailed his past finance

experience, but did not refute the allegation that defendant was disappointed by

his lack of spreadsheet skills. See id. at 32-43. Plaintiff argues he cast doubt on

Learjet’s proffered explanation by presenting “overwhelming evidence that his

prior experience as a financial analyst and related positions had resulted in

computer skills which, in most important ways, [were] clearly superior to those

responsible for his discharge.” Aplt’s Br. at 11.


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      We have held that, in evaluating the sufficiency of a plaintiff’s pretext

evidence, it is the employer’s perception of the plaintiff’s abilities that is

relevant, not the plaintiff’s view of his own qualifications. Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (“[A] challenge of

pretext requires us to look at the facts as they appear[ed] to the person making the

decision to terminate [the] plaintiff.”); Furr v. Seagate Tech., Inc., 82 F.3d 980,

988 (10th Cir. 1996) (“It is the manager’s perception of the employee’s

performance that is relevant, not plaintiff’s subjective evaluation of his own

relative performance.”).

      Even if Learjet’s assessment of plaintiff’s abilities was incorrect, this does

not show pretext unless there is reason to believe the employer failed to exercise

its business judgment in good faith. See McKnight v. Kimberly Clark Corp.,

149 F.3d 1125, 1129 (10th Cir. 1998) (“An articulated motivating reason is not

converted into pretext merely because, with the benefit of hindsight, it turned out

to be poor business judgment. The test is good faith belief.”) (citation omitted).

In fact, plaintiff himself admitted that his Excel skills were weak and that he was

having difficulty with the work assigned to him. See Aplee’s App. at 42-52;

Aplt’s App. at 33-37.

      Plaintiff argues that he showed pretext because his years of experience in

finance entitled him to “the opportunity . . . to familiarize himself with . . . the


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Excel program,” Aplt’s Br. at 11, and because defendant should have been

required to prove that “a critique [of his deficiencies] was made in writing and

presented to Wiemer,” id. at 9. This argument “merely establishes that

[plaintiff’s] view of appropriate management contrasts with that of [Learjet’s]

supervisors,” and does not establish that Learjet’s proffered reason was a pretext

for age discrimination. Selenke, 248 F.3d at 1261. Further, plaintiff’s acceptance

of Learjet’s offer was specifically conditioned on his agreement that his

employment would be “at will,” and could be “terminated at any time, for any

reason.” Aplee’s App. at 87.

      Will Evans’ testimony did not raise a triable issue of pretext because he

admitted the project done for him by plaintiff was “fairly simple,” requiring only

basic skills, and that he had no “facts” to support his belief that plaintiff was

terminated based on age, other than his belief that inadequate Excel skills was not

a sufficient ground for termination. Aplt’s App. at 99, 130. We conclude the

district court did not err in granting summary judgment in favor of Learjet on

plaintiff’s ADEA claim.




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

is AFFIRMED.



                                                  Entered for the Court



                                                  Terrence L. O’Brien
                                                  Circuit Judge




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