* This order and judgment is not binding precedent, e xcept under the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

### AUG 31 1998 

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

JOHN G. RANKIN,

Plaintiff-Appellant,

v. PERFECTION EQUIPMENT COMPANY, an Oklahoma Corporation, Defendant-Appellee. Nos. 97-6252 & 97-6313 (D.C. No. 96-CV-1968) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument.-2-

We have consolidated these appeals for purposes of disposition. See Fed. R. App. P. 3(b). In case number 97-6252, plai ntiff-appellant John G. Rankin appeals from the district court’s entry of summary judgment in favor of defendant-appellee Perfection Equipment Company (PE CO) on his complaint pursuant to the Age Discrimination in Employment Ac t, 29 U.S.C. §§ 621-34 (ADEA). In case number 97-6313, Mr. Rankin appeals from the district court’s order denying his Fed. R. Civ. P. 60(b)(2) motion f or relief from judgment based upon newly discovered evidence. We have jurisdiction, see 28 U.S.C. § 1291, and we affirm. PECO is a wholesale distributor of truck and automo tive parts and equipment. Its business is highly competitive and heavily dependent upon the oil and gas industry. Mr. Rankin began working for PEC O in 1957. He left PECO briefly, then returned in 1960 as a salesman of parts and equipment. Mr. Rankin was an “outside salesman;” his sales activities foc used on equipment sales to oilfield service companies, truck dealers, and metr o area cities. Mr. Rankin admitted that his best year for sales atPECO was sometime between 1981 and 1983. During the 1980s, he won numerous awards for salesmanship. As his fortunes rose, so did those o f PECO’s outside sales department. By the late 1980s, PECO had increased its outside sales staff from three salesmen to ten or twelve.-3-

Mr. Rankin retired from PECO in 1990. As part of h is retirement package, PECO cashed out his Employee Stock Ownership Plan, paying him over $200,000. It also paid him for accrued vacation ti me worth over $3,000. After his retirement, PECO employed him as a part-time co nsultant. His consulting duties principally involved continuing to serve as an outside salesman; however, he also took charge of miscellaneous tasks such as maintenance and reduction of dead inventory. Beginning in the early 1990s, PECO began to experie nce financial difficulties. The oil business, on which it depend ed, had gone flat. PECO did not have a single profitable year between 1991 and 1996 . During this time period, PECO drastically reduced its outside sales staff. By 1995, PECO employed only four remaining outside salesmen. In 1995, in an effort to turn the company around, three of PECO’s employees, Peter Voogt, Maura Berney and Chris Simp son, purchased a minority interest in PECO through a leveraged buyout. These new owners became Mr. Rankin’s supervisors. During 1995, the new own ers began implementing cost-cutting measures. They cut back on expenses and conducted a company-wide reduction in force (RIF). Although Mr. Rankin had been hired as a part-time c onsultant, PECO had been allowing him to work full-time. In April, 1995, however, PECO cut-4-

Mr. Rankin’s hours back to part time. On October 2 5, 1995, it terminated Mr. Rankin’s employment as part of the RIF. At the time PECO terminated his employment, Mr. Rankin was sixty-seven years old. He brought this suit, contending that PECO discriminated against him because of his age.
No. 97-6252 Mr. Rankin challenges the district court’s order gr anting summary judgment on his ADEA claim. We review the district court’s order of summary judgment as follows: Summary judgment is appropriate if the pleadings, d epositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitledto a judgment as a matter of law. We review a grant of summary judg ment de novo, applying the same standard as the district court. We examine the record to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the substanti ve law was applied correctly, and in doing so we examine the factual r ecord and reasonable inferences therefrom in the light most f avorable to the party opposing the motion. However, where the non moving party will bear the burden of proof at trial on a disposi tive issue that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existenc e of an element essential to that party’s case in order to survive summary judgment. McKnight v. Kimberly Clark Corp. , ___F.3d___, No. 97-5179, 1998 WL 384608, at *1 (10th Cir. July 10, 1998) (quotations and cit ations omitted). In evaluating ADEA claims where there is no direct evidence of age discrimination, courts apply the three-stage analysis outlined in McDonnell-5-

Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See McKnight , 1998 WL 384608, at *2. Under this analysis, the plaintiff must first establish a prima facie case of discrimination. See id. Once the plaintiff has met this requirement, the burden of production shifts to the employer, requir ing it to provide a legitimate, nondiscriminatory reason for the plaintiff’s termination. See id. If the employer satisfies this second step, the burden of productio n then shifts back to the plaintiff, who must now show either that age was a determinative factor in the employer’s decision, or that the employer’s explanation was merely a pretext for discrimination. See id. Throughout the analysis, the plaintiff bears the ultimate burden of persuasion. See id.

1. Prima facie case of age discrimination The district court assumed that Mr. Rankin had established a prima facie case. PECO attacks this assumption. In order to e stablish a prima facie case of age discrimination, a plaintiff typically must show : (1) that he was within the protected age group; (2) that he was doing satisfac tory work; (3) that he was discharged; and (4) that his position was filled by a younger person. See id. PECO argues that Mr. Rankin’s work was unsatisfacto ry. It points to the statement of one if its owners that she would not r ehire Mr. Rankin as a salesman if she could restart the company from scratch. The re was other evidence,-6-

however, from which a jury could conclude that he w as performing satisfactory work, and thus met this element of the prima facie case. PECO also argues that Mr. Rankin was not replaced b y a younger person; rather, that his position was eliminated during the RIF. Mr. Rankin responds that either he was replaced, or he meets the modified st andard for a prima facie case applicable to a RIF. Mr. Rankin claims that he was replaced either by Bi ll Sparks or by Tony Hooper. Both Mr. Sparks and Mr. Hooper were hired as outside salesmen after PECO terminated Mr. Rankin’s employment. Having re viewed the record, we conclude that neither Mr. Sparks nor Mr. Hooper, in dividually or collectively, replaced Mr. Rankin. Mr. Rankin’s customers were d istributed among PECO’s salesmen after he left. Neither Mr. Sparks nor Mr. Hooper received a large proportion of his former customers or performed dut ies substantially similar to Mr. Rankin’s. Mr. Rankin has, however, established a prima facie case under the alternative standard applicable to a RIF. A plaint iff whose position has been eliminated during a RIF may make his prima facie ca se by showing that “there is some evidence the employer intended to discriminate against [him] in reaching its RIF decision.” Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1165 (10th Cir. 1998). This element may be established through cir cumstantial evidence that he1 We reject PECO’s argument that Mr. Rankin was treated more favorably

than younger employees. PECO argues that it did no t cut Mr. Rankin’s position until after it had lost six or eight positions heldby younger outside salesmen during the time period from 1989 to 1995. PECO fai led to establish that these younger salesmen lost their jobs through a RIF, how ever. As Mr. Rankin points out, the positions may have been reduced through attrition or some other cause. -7- was “treated less favorably than younger employees during the RIF.” Id. (further quotation omitted). PECO argues that Mr. Rankin was not treated less favorably than younger employees, because younger employees in other departments also had their positions eliminated during the RIF. Mr. Rankin re sponds that within his own department, younger outside salesmen were allowed t o keep their jobs, while he
was not. See Beaird , 145 F.3d at 1167 (stating “a plaintiff who is fir ed pursuant to a RIF and who held a similar position to a young er retained employee can satisfy the fourth element” of the prima facie case ). We agree with Mr. Rankin that he has made a sufficient showing to satisfy th e fourth element of his prima facie case. 1 2. Legitimate, nondiscriminatory reason for termin ation In response to Mr. Rankin’s prima facie case of age discrimination, PECO asserted that it eliminated his position as part of the RIF, which it experienced because of financial difficulties. PECO presented five reasons why it singled out Mr. Rankin’s position for elimination during the RI F: (1) Mr. Rankin did not like-8-

PECO’s new focus on national, large-volume customer s; (2) he did not like to travel overnight; (3) he had not yet learned to ent er his sales quotes on PECO’s computer system; (4) he had not passed PECO’s Assoc iate Level I test; and (5) he had the lowest sales of any of the outside salesmen . These reasons were legitimate and nondiscriminatory. The burden of production therefore shifted back to Mr. Rankin to show that they were pretextua l, “i.e., unworthy of belief.” Randle v. City of Aurora , 69 F.3d 441, 451 (10th Cir. 1995).

3. Mr. Rankin’s showing of pretext a. The RIF Mr. Rankin first contends that the RIF itself was p retextual. He asserts that PECO’s hiring of Bill Sparks, at four times Mr. Rankin’s salary, proves that PECO was not having financial difficulties as it cl aimed. PECO submitted evidence, however, that Mr. Sparks was expected to more than pay for his own salary by bringing new customers with him to PECO. Moreover, we have already determined that Mr. Rankin was not similarly situat ed to Mr. Sparks. Therefore, the latter’s post-RIF hiring does not show that the RIF was pretextual. See Doan v. Seagate Tech., Inc. , 82 F.3d 974, 977 (10th Cir. 1996). PECO presented testimony from its owners that it wa s in financial difficulties and needed to cut expenses. Mr. Ranki n failed to controvert this testimony, other than to argue that it was “biased. ” PECO also presented its tax2 Mr. Rankin also relies on an alleged statement by M aura Berney, one of

PECO’s owners, that “she would not have purchased acompany that was in financial trouble.” Appellant’s Br. at 14. Ms. Be rney’s actual testimony is significantly different. During her deposition, sh e was asked “you wouldn’t have bought a company that was in financial ruin , would you?” Appellant’s App. Vol. I at 117 (emphasis added). Significantly, she resp onded “I bought a company I thought that if the ownership changed [sic] could be turned around.” Id. -9- returns, which documented its losses. Mr. Rankin p resented no specific documentary evidence to challenge the losses. He h as failed to establish that the RIF was pretextual. 2

b. Selection of Mr. Rankin’s position We turn next to PECO’s specific reasons for selecti ng Mr. Rankin’s position for elimination. PECO asserts that he “di d not like and would not accept PECO’s new focus on national, larger volume custome rs.” Appellee’s Br. at 5-6. Mr. Rankin claims this reason is pretextual, becaus e he was never given the opportunity to pursue larger volume customers. Christopher Simpson, PECO’s president, testified th at he had a conversation with Mr. Rankin in the summer of 1995, in which he told Mr. Rankin that PECO needed to refocus on larger cu stomers, and that focusing on smaller customers was not cost-effective. Mr. R ankin responded that he did not think this was the right direction for PECO. M r. Rankin went on to express his belief to Mr. Simpson that “stopping and seeing everybody while you were there was in the best interest of the company.” Ap pellant’s App. Vol. I at 140.-10-

Mr. Rankin’s uncontroverted statements directly att acked PECO’s new customer policy. In light of his expressed attitude toward the new policy, PECO’s alleged failure to provide him with an opportunity to serve larger customers is irrelevant. Mr. Rankin further argues that PECO’s alleged chang e in sales focus to larger customers is itself pretextual. He presente d evidence that after he left, PECO assigned many of his smaller-volume customers to its existing sales force. This argument fails to demonstrate pretext, however . Whether PECO’s continued sales to Mr. Rankin’s former customers were consist ent with the new policy is irrelevant. The stated reason for termination was that Mr. Rankin did not like and would not accept the new policy. This attitude is amply supported by his conversation with Mr. Simpson. PECO’s next reason for terminating Mr. Rankin’s emp loyment is that he did not like to travel overnight. Mr. Rankin admitted in his deposition testimony that he did not like to travel overnight any more than necessary. In his affidavit, however, Mr. Rankin stated that he did not object t o traveling overnight when he worked for PECO. Whether he expressed an object ion or not, however, Mr. Rankin did testify that he did not like to trav el overnight, which is consistent with PECO’s reason for choosing him for the RIF. PECO also stated that it terminated Mr. Rankin because he had not learned to enter his own sales quotes on PECO’s computer sy stem, while the remaining-11-

salesmen had. Mr. Rankin testified that at some po int before his termination, he did gain the ability to enter his sales quotes. PEC O’s owners testified, however, that at the time of Mr. Rankin’s termination, they believed he could not enter his orders on the computer. In order to show pretext, Mr. Rankin must show that his employers did not hold this belief in good faith. See McKnight , 1998 WL 384608, at *3 (discussing employer’s good faith bel ief). Mr. Rankin admits that even after he learned how to enter his quotes, in s ome cases he still handed the quotes written out in longhand to others to enter o n the computer for him. He has failed to show that his employers’ belief that he w as unable to enter the quotes was not held in good faith. PECO also states that it eliminated Mr. Rankin’s po sition because he had not taken or passed the Associate Level I test. Ch ristopher Simpson testified that to his recollection, appellant had not passed the t est at the time of his termination, while the other outside salesmen had. Mr. Rankin argues that Mr. Simpson’s recollection is biased, and that there is no proof that he did not pass the test. It is, however, Mr. Rankin’s burden to show that PECO’s re ason is pretextual. He has completely failed to meet this burden. Finally, PECO says it chose Mr. Rankin for terminat ion because he had the lowest sales of the outside salesmen. Mr. Rank in does not dispute this characterization, but he claims that his sales were low only around the time of his-12-

termination, and then only because he was placed ina new territory and because PECO confiscated his customer list. At best, these arguments sufficiently challenge only the sales factor. As Mr. Rankin has failed to rebut PECO’s other reasons, which provide sufficient criteria for sele cting him for the RIF, we conclude that Mr. Rankin has failed to show that PE CO’s reasons for terminating him were pretextual. Accordingly, we affirm the di strict court’s order of summary judgment.
No. 97-6313 Mr. Rankin contests the district court’s denial of his Fed. R. Civ. P. 60(b)(2) motion for relief from judgment based uponnewly discovered evidence. We review the district court’s denial of a Rule 60( b)(2) motion for abuse of discretion. See Joseph v. Terminix Int’l Co. , 17 F.3d 1282, 1285 (10th Cir. 1994). A party seeking relief from judgment based on newly discovered evidence must show (1) the evidence was newly discovered since the tri al; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence could not be merely cumulative or impeaching; (4) the newly discovered evidence was material; and(5) that a new trial, with the newly discovered evidence will prob ably produce a different result. Id. (quotation omitted). The district court entered summary judgment on June 13, 1997. On July 9, 1997, Mr. Rankin filed his motion, seeking relief f rom judgment based upon the-13-

affidavit of Laurie Westra. The record indicates that Mr. Rankin was aware of Ms. Westra’s identity and last known address as ear ly as February 1997. He presented evidence of letters that he wrote to Ms. Westra; however, these letters were not written until June 1997. He presented evi dence that he sought to investigate Ms. Westra’s address through an information service; the report from the information service, however, is not dated unti l June 11, 1997, two days before the district court entered its order of summ ary judgment. Mr. Rankin fails to show diligence in discovering the new material. Under the circumstances, we conclude that the district court did not abuse i ts discretion in denying Mr. Rankin’s Rule 60(b)(2) motion. The judgments of the United States District Court f or the Western District of Oklahoma are AFFIRMED. Entered for the Court

Michael R. Murphy Circuit Judge