* This order and judgment is not binding precedent, e xcept under the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

### JAN 14 2000 

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

SHARON K. BEERY,

Plaintiff-Appellant,

v. UNIVERSITY OF OKLAHOMA BOARD OF REGENTS, a public body corporate, Defendant-Appellee. No. 98-6459 (D.C. No. 97-CV-1332-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , 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(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Sharon K. Beery appeals the district court’s grant of summary judgment, on her age discrimination claim, in favorof defendant Board of Regents of the University of Oklahoma. Because pla intiff did not raise a genuine issue as to whether she was replaced by a younger i ndividual, we affirm. Plaintiff, a high school graduate, began her employ ment at the University of Oklahoma on September 5, 1967, as a Clerk-TypistI. She was promoted eventually to the position of Administrative Assist ant to the Athletic Director, performing this job first for Athletic Director Dun can until May 1996, then for an interim director until September 1996, and finally for Athletic Director Owens until her termination on March 19, 1997. Plaintiff was 48 years old when discharged, and was earning a salary of $39,000. On December 16, 1996, 40-year-old Bob King, a forme r banker, began working as a Special Assistant to the Athletic Dire ctor at a salary of $69,500. His initial responsibilities included assisting in prep aring and balancing the athletic department’s budget and getting familiar with the d epartment’s operations. Athletic Director Owens testified he intended to expand King’s role into an associate athletic director position, and, in July 1997, King was promoted to Senior Associate Athletic Director. According to p laintiff, King assumed a number of plaintiff’s higher-level duties, includin g supervising the clerical staff,-3-

assisting the Athletic Director in preparing the bu dget, and returning sensitive phone calls and letters. King and Owens allegedly became dissatisfied with p laintiff’s work and King recommended that she be terminated. On March 19, 1997, Owens issued a press release announcing the reorganization of the athletic department. Plaintiff was terminated as part of this reorganization, and on March 28, the University posted an opening for a Secretary II in the athleti c director’s office. On July 1, 1997, 48-year-old Pam Kelleher was transferred fromthe basketball office to become the Administrative Coordinator to the Athlet ic Director, performing many of plaintiff’s former duties. Kelleher’s salary, $ 29,800, was determined according to the same pay scale as plaintiff’s. Plaintiff’s duties related to the host recruitment monies were assumed by the athletic dep artment accounting office. Plaintiff brought this action against the University, alleging she was terminated based on her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The d istrict court granted summary judgment in favor of defendant, ruling (1) plaintiff failed to make a prima facie case of discrimination because she did not show she was replaced by a younger individual, and (2) even if she made a prim a facie case, she failed to raise a genuine issue whether the University’s prof fered reason for its decision was pretextual. This appeal followed.-4-

We review a grant of summary judgment de novo, appl ying the same standard as that applied by the district court. See Charter Canyon Treatment Ctr. v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary ju dgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). In applying this standard, we view the facts and reasonable inferences therefr om in a light most favorable to the nonmoving party. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). To prevail on an ADEA claim under the traditional T itle VII burdenshifting approach set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973), a plaintiff first must make a prima facie case by showing (1) she was within the protected age group; (2) she was doi ng satisfactory work; (3) she was discharged; and (4) a younger person replaced her. See Ingels v. Thiokol Corp. , 42 F.3d 616, 621 (10th Cir. 1994). Because in ca ses of reduction in force or reorganization it is often impossible for an emp loyee to show she was replaced by a younger individual, the fourth prong may be me t by showing that similarly situated younger employees were treated more favorably. See id. ; Branson v. Price River Coal Co. , 853 F.2d 768, 771 (10th Cir. 1988). Upon such a showing, the defendant must articulate a nondiscriminatory r eason for the employment-5-

decision, see Ingels , 42 F.3d at 621, and the plaintiff must then show that the proffered reason was not the true reason for the decision, see Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 256 (1981). Plaintiff argues she satisfied the fourth prong of the prima facie case by showing that she was replaced by 40-year-old Bob Ki ng. When an employee’s duties are assumed by more than one person, courts look at the age of the persons assuming the employee’s primary or predominant func tions to see if the employee was “replaced” by a younger individual. See, e.g. , Keathley v. Ameritech Corp. , 187 F.3d 915, 920-21 (8th Cir. 1999) (holding primafacie case established when employee’s largest and most lucrative accounts tran sferred to two younger individuals); Pitasi v. Gartner Group , 184 F.3d 709, 716-17 (7th Cir. 1999) (holding no prima facie case made when employee’s p rimary duties were split between older worker and a similarly aged worker, a nd only incidental duties were assumed by a significantly younger new hire, and terminated employee could not have performed job for which new person hired); Schwager v. Sun Oil Co. , 591 F.2d 58, 61 (10th Cir. 1979) (plaintiff made pr ima facie showing when sixty percent of sales territory was taken over by substantially younger persons). Here, plaintiff’s evidence shows she performed the following secretarial and administrative functions for the Athletic Direc tor: (1) answering the phone; (2) typing correspondence; (3) screening the Direct or’s calls; (4) opening and-6-

distributing the mail; (5) assisting in preparing the budget; (6) assisting in office personnel decisions; (7) assisting in establishing office procedures; (8) doing specially assigned tasks; (9) returning calls for the Director; (10) coordinating with the Director’s senior staff on projects; (11) maintaining the Director’s schedule of events and coordinating his travel arra ngements; (12) filing expense accounts and tracking reimbursements; (13) monitori ng income received for the minority scholarship fund; (14) monitoring the budg et; (15) coordinating the Director’s ticket accounts for football and men’s b asketball; (16) administering the host recruitment fund (approximately 10% - 15% of plaintiff’s total duties from September to June); (17) serving as host durin g home football games; (18) obtaining estimates for office purchases; (19) maintaining an inventory of office equipment and furniture; (20) serving as adm inistrative assistant to the Athletics Council Executive Secretary, including co ordinating the agenda and meeting schedule, notifying members, securing actio n between meetings, and maintaining records; (21) taking and transcribing C ouncil meeting minutes; (22) maintaining personnel records regarding vacati on, sick leave, and travel related events; (23) coordinating the weekly meetin gs; and (24) supervising clerical staff. Plaintiff testified, however, thatshe did not participate in the department’s decision making processes. See Appellant’s App. I at 78.-7-

Pam Kelleher assumed many of these job duties, incl uding (1) answering the phone; (2) opening and sorting the mail and dis tributing it to the appropriate recipient; (3) typing correspondence for both Direc tor Owens and Associate Director King; (4) filing records; (5) making the D irector’s travel arrangements; (6) submitting the Director’s expense claims for re imbursement; (7) coordinating with the president’s office and the Regents; (8) ta king notes at the staff meetings; (9) acting as executive secretary for the Athletics Council; (10) setting up the Council meetings, and sending out notices of the me etings; (11) taking minutes at the Council meetings; (12) working with athletic de partment donors; and (13) working on special projects and special events with the Director. These secretarial and administrative duties assumedby Kelleher are clearly of the same basic nature as the duties performed byplaintiff. Testimony and affidavits by Owens, King, Kelleher, and Manager of Staff Resources Thompson, support this conclusion, stating that Kelleher perf ormed basically the same tasks as those performed by plaintiff. See id. at 38, 41, 43, 120. Although plaintiff’s job title differed from Kelleher’s, the duties desc ribed for the Administrative Coordinator position are almost identical to the du ties listed by plaintiff in her affidavit. Compare id. at 99-100 with id. , vol. II at 150-154. In addition to the duties assumed by Kelleher, another ten to fifteen percent of plaintiff’s former-8-

responsibilities were taken over by the accounting department when it began administering the host recruitment fund. In contrast, the duties assumed by King were more r elated to his budgetary and supervisory roles, including assisting the Dire ctor in preparing the budget, returning calls of a confidential or sensitive natu re, and supervising the clerical staff. There is no evidence that plaintiff ever he ld the position for which King was hired, or that she was qualified to do so. See Pitasi , 184 F.3d at 717. King’s high salary tends to negate any inference that he w as hired to replace plaintiff, as well as the fact that he performed his job for fourmonths before plaintiff was discharged. Any clerical duties assumed by King ap pear to be incidental to his position. Even viewing the evidence in the light m ost favorable to plaintiff, it does not raise a triable issue whether King assumedher primary responsibilities so as to be considered her replacement. Here, if plaintiff was replaced by anyone it was by Pam Kelleher. More accurately, it appears plaintiff’s duties were dist ributed as part of a reorganization of the Athletic Department, and that she was replac ed by no one. As plaintiff has not argued on appeal that she was treated unfavorab ly compared to her younger coworkers, we do not consider whether the record co ntains such evidence. Summary judgment was proper.-9-

The judgment is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge