* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 13, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JIM FOSTER; DWIGHT MOORE; RAY O’BRYAN; ROGER KILGORE; PAUL JONES; KEITH ROBERTS; MAYNARD CASTOE; JERRY HARP; DOUGLAS BRANNON; MIKE TAYLOR; DAVID HOUSTON; JOEL JAKUBOWSKI; DONALD BOYLES; DEETTA HAWKINS; CECIL ZORNES; BENNY MORRISON; MATTHEW KISSIRE; JIM MILLER; JACK MCKERRELL; JERRY DECKER; JAMES HILL; VERNON HARRIS; JOHNNY BAILEY; JOHN PALMER; LAWRENCE BLACKBOURN; DANNY POSTRACH,

Plaintiffs-Appellants,

v. RUHRPUMPEN, INC., a corporation,

Defendant-Appellee. No. 05-5017 (D.C. No. 01-CV-600-P(M)) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , McKAY , and MURPHY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiffs appeal the district court’s grant of sum mary judgment dismissing their age discrimination complaint against Ruhrpump en, Inc. We affirm. The parties are familiar with the facts, which are accurately and fully set forth in the district court’s thorough opinion as w ell as this court’s prior decision in this case. See Foster v. Ruhrpumpen, Inc. , 365 F.3d 1191, 1192 (10th Cir. 2004) (reversing the district court’s initial grantof summary judgment on the grounds that plaintiffs failed to exhaust their adm inistrative remedies). Thus, we briefly recite only those facts necessary to exp lain this decision. Ruhrpumpen acquired a pump manufacturing plant fromFlowserve, Inc. Flowserve terminated all of its employees, includin g plaintiffs. Ruhrpumpen invited the former Flowserve employees to apply foremployment, and plaintiffs were among those who applied. Ruhrpumpen asked Flo wserve’s Superintendent of Production, Mike Brantley, to evaluate the skill level, work habits, and on-the-job attitude of all of the terminated Flowse rve employees. Ruhrpumpen hired fifty-seven of the former Flowserve employees , not including plaintiffs. Plaintiffs then filed a complaint alleging Ruhrpump en had violated their-3-

rights under the Age Discrimination in Employment A ct (ADEA), 29 U.S.C. §§ 621-634. Id. The district court granted Ruhrpumpen’s motion for summary judgment. It ruled that plaintiffs failed to present evidence establishing a prima facie case of ADEA discrimination. See Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1226 (10th Cir. 2000) (describing elements of prima facie failure-to-hire ADEA claim). It further ruled that even if plainti ffs had made out a prima facie case, Ruhrpumpen had presented legitimate, non-discrimin atory reasons for not hiring them, and plaintiffs had failed to present e vidence that Ruhrpumpen’s reasons for not hiring them were pretext for discrimination. See id . at 1226, 1230 (describing burden-shifting analysis of circumstant ial-evidence ADEA claim, and holding that plaintiff can withstand summary judgme nt if he presents evidence that employer’s reason for the employment decision is “pretextual-i.e. unworthy of belief”). We review the grant of summary judgment de novo, ap plying the same standard as did the district court. MacKenzie v. City & County of Denver , 414 F.3d 1266, 1273 (10th Cir. 2005). Summary judg ment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and the moving party is entitled to ajudgment as a matter of law.”-4-

Fed. R. Civ. P. 56(c). We review the record and any reasonable inferences therefrom in the light most favorable to the nonmoving parties. MacKenzie , 414 F.3d at 1273. On appeal, plaintiffs contend that the district cou rt erred in ruling that they failed to establish a prima facie case or to raise a genuine issue of fact as to the element of pretext. We are doubtful that plaintiff s demonstrated all of the elements necessary to establish a prima facie case of age discrimination. Even if plaintiffs did establish a prima facie case of disc rimination, however, their discrimination claim still fails because they did n ot proffer evidence showing that defendant’s reasons for not hiring them were simplya pretext for age discrimination. Plaintiff does not dispute that Ruhrpumpen producedevidence of legitimate, non-discriminatory reasons for not hiri ng plaintiffs, namely, that after determining the number of workers it needed, it sel ected the most qualified applicants based upon their skills, work habits, an d on-the-job attitude of the applicants, as determined from their employment app lications and the objective evaluations by Mike Brantley, the former Flowserve supervisor. The burden then shifted to plaintiffs to present evidence that Ruhrpumpen’s proferred reason for the employment decision was unworthy of belief. Kendrick, 220 F.3d at 1230.-5-

Pretext may be demonstrated by revealing “such weaknesses, implausibilities, inconsistencies, incoherencies, o r contradictions in the employer’s proffered legitimate reasons for its act ion 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 rea sons.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1323 (10th Cir. 1997) (quotation omi tted). Evidence of pretext may include “prior treatment of plaintiff; the empl oyer’s policy and practice regarding minority employment (including statistica l data); disturbing procedural irregularities (e.g., falsifying or manipulating . . . criteria); and the use of subjective criteria.” Garrett v. Hewlett-Packard Co. , 305 F.3d 1210, 1217 (10th Cir. 2002) (quotation omitted). Plaintiffs made several arguments in support of the ir claim that Ruhrpumpen’s justification for not hiring them is p retextual. First, they point to a remark make by Don McCourt, the current presidentof Ruhrpumpen and former operations manager for Flowserve. Two weeks before Flowserve sold the pumping plant to Ruhrpumpen, McCourt told one of th e plaintiffs that “some old dogs will need to learn new tricks.” Aplt. App., V ol. I at 52. We agree with the district court that this remark is too isolated and ambiguous to demonstrate any nexus between it and Ruhrpumpen’s subsequent hiring decisions. See Stone v. Autoliv ASP, Inc. , 210 F.3d 1132, 1140 (10th Cir. 2000) (concluding that isolated,-6-

ambiguous remarks may be too abstract to support aninference of age discrimination); see also Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 531 (10th Cir. 1994) (“Isolated comments, unrelated to the challenged action, are insufficient to show discriminatory animus in termi nation decisions.”). The circumstances of McCourt’s remark are unclear; the only evidence is his testimony that he was referring to a management emp loyee’s treatment of employees, and had nothing to do with any plaintiff or with any employee’s age. The remark is ambiguous, in the sense that it is su sceptible to more than one interpretation; isolated, in the sense that it was only made once; and stray, in the sense that plaintiff has not shown an adequate nexu s between the remark and Ruhrpumpen’s decision not to hire plaintiffs. See Stone , 210 F.3d at 1140. Plaintiffs next make two statistical arguments. Fi rst, plaintiffs contend that if one compares the hired to not-hired applicants b y job classification, the average age difference is lower for the hired workers in ev ery category, with a low of 2.5 years to a high of 27.2 years. Second, they co ntend that the average age of the fifty-seven workers hired by Ruhrpumpen was 47. 8 years old, whereas the average age of the workers not hired was 52.8 years old. Ruhrpumpen disputes the number of not-hired applicants used by plaintif fs in their comparison, and presents contrary evidence showing that the average age of the fifty-seven hired1 Plaintiffs state that ninety-four Flowserve employe es applied, and use the

average age of this group as its basis for comparis on. Ruhrpumpen presents evidence that 106 former Flowserve employees applie d. Ruhrpumpen contends that plaintiffs have intentionally reduced the appl icant pool to increase the age disparity, and presented evidence that those omitte d from plaintiffs’ calculation include eleven applicants under age forty. -7- applicants was 48 years old, and the average age of the forty-nine applicants not hired was 48.55 years, a difference of only six mon ths. 1 We agree with the district court that, even using t he comparison propounded by plaintiffs, plaintiffs’ evidence is i nadequate to demonstrate pretext. While “[s]tatistical data showing an empl oyer’s pattern of conduct toward a protected class can create an inference th at an employer discriminated against individual members of the class,” Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 746 (10th Cir. 1991) (citation omitted), this court has also cautioned against its usage. “Statistics taken in isolation are gene rally not probative of age discrimination.” Jones v. Unisys Corp. , 54 F.3d 624, 632 (10th Cir. 1995). To create an inference of discrimination, statistic al evidence “must show a significant disparity and eliminate nondiscriminato ry explanations for the disparity.” Fallis , 944 F.2d at 746 (citation omitted). Plaintiffs’ statistical evidence does neither: it does not show a signific ant disparity, and it fails to eliminate nondiscriminatory reasons for the numeric al disparities.-8-

“[A] plaintiff’s statistical evidence must focus oneliminating nondiscriminatory explanations for the disparate tr eatment by showing disparate treatment between comparable individuals.” Id . (citation and emphasis omitted). “Statistical evidence which fails to properly take into account nondiscriminatory explanations does not permit an inference of pretext.” Martinez v. Wyo., Dep’t of Family Servs. , 218 F.3d 1133, 1139 (10th Cir. 2000). In this ca se, plaintiffs’ comparisons of the overall ages of the hired and no t-hired applicants are too simplistic; they fail to take into account individu al differences in skill or qualifications and fail to eliminate nondiscriminat ory reasons for any age difference. Therefore, this evidence is insufficie nt to raise a genuine issue of material fact as to pretext. Cf. Doan v. Seagate Tech., Inc. , 82 F.3d 974, 979 (10th Cir. 1996); Jones , 54 F.3d at 632. As to the “significant disparity” requirement, it i s true that this court has declined to adopt a bright-line rule that a differe nce of five years is an insignificant difference as a matter of law under t he ADEA. Whittington v. Nordam Group Inc. , 429 F.3d 986, 995 (10th Cir. 2005). Nevertheless , where a plaintiff relies on statistical evidence, he “must show ‘gross statistical disparities.’” Denison v. Swaco Geolograph Co. , 941 F.2d 1416, 1424 (10th Cir. 1991) (quoting Hazelwood Sch. Dist. v. United States , 433 U.S. 299, 307-08 (1977)). We agree with the district court that pla intiffs’ evidence in this case-9-

does not reliably demonstrate such a gross disparity as to create an inference of discrimination. Cone , 14 F.3d at 532 (finding plaintiff’s statistics in valid because they did not “demonstrate a significant disparity i n the treatment of younger workers”). We further agree with the district court that the small number of employees within each of the eleven job classificat ions is too small in this case to provide reliable statistical results. Cf. Fallis , 944 F.2d at 746 (holding that statistical analysis of nine employees too small to have any probative force to show discrimination). Plaintiffs perfunctorily list two other reasons whythey believe Ruhrpumpen’s explanation for not hiring them is pre text: that those not hired were, “by and large,” more qualified than those hir ed and that Ruhrpumpen did not ask all Flowserve employees to complete an employment application. Aplt. Br. at 18-19. The district court concluded t hat the evidence plaintiffs presented relative to these claims failed to demons trate pretext. Plaintiffs do not put forward anyreason, argument, or legal authority showing why they believe the district court erred in so ruling. See id . at 18-21. “[S]uch perfunctory complaints fail to frame and develop an issue suffi cient to invoke appellate review.” Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994). “It is insufficient merely to state in one’s brief that on e is appealing an adverse ruling below without advancing reasoned argument as to the grounds for the appeal.”-10-

Am. Airlines v. Christensen , 967 F.2d 410, 415 n.8 (10th Cir. 1992); see also Fed. R. App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . appellant’s contentions and the reasons for them, with citation s to the authorities and parts of the record on which the appellant relies.”). The judgment of the district court is AFFIRMED. Entered for the Court
Robert H. Henry Circuit Judge