* This order and judgment is not binding precedent, e xcept under the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

### NOV 9 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ERNEST P. WIEMER,

Plaintiff-Appellant,

v. LEARJET INC.,

Defendant-Appellee. No. 02-3055 (D.C. No. 00-CV-1504-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

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

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. In this age discrimination case, plaintiff Ernest P . Wiemer appeals the district court’s grant of summary judgment in favorof his former employer,2--

defendant Learjet Inc. (Learjet). Because plaintif f’s evidence did not raise a genuine factual dispute as to whether Learjet’s pro ffered reason for his termination was a pretext for age discrimination, w e affirm. Plaintiff, at age fifty-nine, was employed as a sen ior financial analyst at Learjet for thirty-seven days. Upon learning of th e program analyst opening through his daughter, plaintiff contacted Learjet a nd was informed that the position involved budgets, forecasts, variances, an d similar tasks. On May 4, 1998, he was interviewed by Bob Wassinger, a financ e manager; David Erickson, a senior financial analyst; and Mark Herbert, the f inance director. Plaintiff was also interviewed by Tom Burian, who later became hi s manager. After the interviews, the managers all approved of plaintiff. The ultimate decision to hire plaintiff was made by Mark Herbert, subject to revi ew 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 g et him. Before accepting the position, plaintiff asked to meet with Crawshaw. P laintiff alleges that he informed Crawshaw of his concerns about Herbert, an d that Crawshaw told him Herbert was not performing well and would soon be r eplaced, perhaps by plaintiff. Plaintiff then accepted the job offer, and began work on July 15, 1998.3--

The position for which plaintiff was hired involvedextensive computer work, requiring advanced spreadsheet skills. Aftera week of orientation, when plaintiff began receiving accounting assignments, i t became apparent that he lacked the computer skills necessary to perform his duties. After sending him to several different training courses, the finance dep artment management began to doubt plaintiff’s ability to do the job for which h e was hired. Observations by David Erickson, Tom Burian, and Mark Herbert, indic ated they had significant concerns regarding plaintiff’s skills and work prod uct. See Aplee’s App. at 89-96, 169–172, 175-78. After discussing the matte r with Tom Burian, Mark Herbert decided to terminate plaintiff. The decisi on was approved by Chris Crawshaw, and plaintiff was terminated on August 21 , 1998. Plaintiff filed a discrimination charge with the Ka nsas Human Rights Commission (KHRC), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment A ct (ADEA), 29 U.S.C. §§ 621-634. The KHRC conducted an investigation an d returned a finding of no probable cause. Plaintiff appealed this determinat ion to the Equal Employment Opportunity Commission, which adopted the KHRC’s fi ndings and issued a right-to-sue letter. Plaintiff then filed this dis crimination action in the district court. Defendant moved for summary judgment, whichwas granted by the district4--

court upon a finding that plaintiff failed to raise a triable issue as to whether Learjet’s proffered reason for its decision was a p retext for age discrimination. We review the district court’s grant of summary jud gment 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 ent itled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “To determine whethe r 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 evi dence 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 qu otation omitted). In discriminatory discharge cases, once a plaintiff makes a prima facie case, and the defendant advances a legitimate, nond iscriminatory reason for its decision, the plaintiff mustproduce either direct evidence of discrimination o r indirect evidence that the defendant’s proffered re ason was a pretext for discrimination. Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1260 (10th Cir.5--

2001). “Pretext can be shown by such weaknesses, i mplausibilities, inconsistencies, incoherencies, or contradictions i n 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 quotationomitted). 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 daughte r learned of the opening. He argues that this evidence was sufficient to rais e a factual dispute regarding Learjet’s true motivation. Will Evans testified th at plaintiff had successfully completed a project for him which required basic Ex cel skills, and that he thought plaintiff should have been given more training inst ead of being terminated. Aplt’s App. at 97-98, 130. Plaintiff’s affidavit d etailed 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, [wer e] clearly superior to those responsible for his discharge.” Aplt’s Br. at 11.6--

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 quali fications. Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1231 (10th Cir. 2000) (“[A] challe nge of pretext requires us to look at the facts as they ap pear[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 percepti on of the employee’s performance that is relevant, not plaintiff’s subje ctive evaluation of his own relative performance.”). Even if Learjet’s assessment of plaintiff’s abiliti es 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 articulat ed motivating reason is not converted into pretext merely because, with the ben efit 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 f amiliarize himself with . . . the-7-

Excel program,” Aplt’s Br. at 11, and because defen dant should have been required to prove that “a critique [of his deficien cies] was made in writing and presented to Wiemer,” id. at 9. This argument “merely establishes that [plaintiff’s] view of appropriate management contra sts 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 acceptanc e of Learjet’s offer was specifically conditioned on his agreement that his employment would be “at will,” and could be “termin ated 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 supporthis belief that plaintiff was terminated based on age, other than his belief thatinadequate 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 judg ment in favor of Learjet on plaintiff’s ADEA claim.-8-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Terrence L. O’Brien Circuit Judge