* This order and judgment is not binding precedent, e xcept under the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 26 2004 

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

SHERRYL PERRY,

Plaintiff-Appellant,

v. ST. JOSEPH REGIONAL MEDICAL CENTER, an Oklahoma Corporation, a/k/a Via Christi Oklahoma Regional Medical Center Ponca City, Inc.; VIA CHRISTI HEALTH SYSTEMS, INC., a Kansas Corporation,

Defendants-Appellees. No. 03-6120 (D.C. No. 02-CV-542-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , Circuit Judge.

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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Sherryl Perry appeals from the grant of judgment as a matter of law in favor of defendants on her wrongful termination cla im brought under the Age Discrimination in Employment Act (ADEA). See Fed. R. Civ. P. 50; 29 U.S.C. §§ 621-34. At the close of Ms. Perry’s case, defen dants moved for judgment as a matter of law and the court took the motion underadvisement. Following the presentation of all the evidence in the case, the d istrict court granted the defendants’ motion for judgment as a matter of law. Our jurisdiction arises under 28 U.S.C. § 1291. Be cause we conclude that Ms. Perry failed to present sufficient evidence fro m which a jury could rationally conclude that she was terminated because of her age , we affirm. I. Legal standards We review de novo the grant or denial of a judgment as a matter of law, and apply the same legal standard as the district court and construe the evidence and inferences in the lig ht most favorable to the nonmoving party without weighing the evidenc e, passing on the credibility of witnesses, or substituting our j udgment for that of the jury. Judgment as a matter of law is appropriate only w here the evidence and all inferences to be drawn therefrom a re so clear that reasonable minds could not differ on the conclusion . Unless the proof is all one way or so overwhelmingly preponder ant in favor of the movant as to permit no other rational conclusio n, judgment as a matter of law is improper.-3-

Greene v. Safeway Stores, Inc. , 98 F.3d 554, 557 (10th Cir. 1996) (citations and quotations omitted). “However, we must enter judgm ent as a matter of law in favor of the moving party if there is no legally su fficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law.” Mason v. Okla. Turnpike Auth. , 115 F.3d 1442, 1450 (10th Cir. 1997) (quotations omitted). Under the ADEA, “[i]t shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of e mployment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).

To prevail on an ADEA claim a plaintiff must establ ish that age was a determining factor in the employer’s chal lenged decision. The plaintiff need not prove that age was the sole reason for the employer’s acts, but must show that age made the di fference in the employer’s decision. Under our precedents, an ADEAplaintiff may proceed by either of two general methods to carry the burden of making her or his case. A party may attempt to mee t his burden directly, by presenting direct or circumstantial ev idence that age was a determining factor in his discharge. Or, more typically, a party may rely on the proof scheme for a prima facie case established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981).
Greene , 98 F.3d at 557-58 (quotations and citations omitt ed). Here, lacking evidence directly related to the forbidden animus o f age as a determining factor in her discharge, Ms. Perry relied on the inferenti al proof scheme set forth in-4-

McDonnell Douglas Corp. As in Greene , we turn now to consider whether Ms. Perry made a case that should have been present ed to the jury.
II. Relevant facts After a change of management at the hospital where she had been employed as the Nursing Director of the Emergency Departmentfor twenty-six years, Ms. Perry was counseled by her new supervisor, Ms. Watson, that Ms. Perry needed to improve her job performance in several ar eas in order to meet federal emergency room (ER) standards, or be terminated. See Aplt. App., Vol. I at 113-16. Defendants established that the hospita l had received notice from the state about the ER’s deficiencies. The hospital’s board of directors had given “the [new] CEO marching orders to fix up the ER” be cause it was “one of the worst parts of [the] hospital.” Id. at 160. Ms. Watson criticized Ms. Perry’s lack of enthusiasm for her job, her giving of priority t o volunteer efforts instead of to her job, her failure to sufficiently support emerge ncy room nursing staff, her failure to be visible in the ER and to check on the evening ER staff, her failure to follow through with critical ER issues, and her fai lure to “fix” ER problems after having earlier been released from other duties in o rder to concentrate on the ER department. Aplt. App., Vol. II at 537; id. Vol. 1 at 198-203. Ms. Perry disagreed with her supervisor’s evaluation and wrote a response. Id. Vol. II
at 538-39.-5-

Ms. Watson believed that Ms. Perry was not being truthful in her response. She determined that Ms. Perry continued to demonstr ate a lack of responsibility for dealing with issues and a failure to make her j ob a priority. Ms. Watson was further of the opinion that Ms. Perry might be “burn[ed] out” and that “she was not going to be able to change her old ways.” See id. at 541; id. Vol. I at 194, 199, 217. Mr. Hufnagel, the vice president of human resources, also testified that Ms. Perry was not productive enough to keep up withthe pace required by the new CEO’s “demanding and complicated new plans for growth and productivity and efficiency and excellence.” Id. Vol. I at 159, 170. When Ms. Watson terminated Ms. Perry, Ms. Perry was fifty-five year s old. After Ms. Perry’s termination, defendants promoted Ms. Peters, a thirty-eight-year-old nurse who had been serving as Ms. Perry’s second-incommand, to fill Ms. Perry’s position as interim di rector. Defendants also began advertising the position in national publications. Mr. Hufnagel testified that Ms. Peters, too, was not “productive enough to serv e in that position permanently,” id. at 172, and that she was never permanently offeredthe job. Defendants paid the traveling expenses for a fifty- four-year-old applicant from Florida to personally interview for the job and off ered to hire her before receiving Ms. Perry’s discrimination complaint. Id. at 164-66. Ms. Perry’s position was ultimately permanently filled by Ms. Haub, a forty- eight-year-old nurse.1 Ms. Young-Shiflet preceded Ms. Watson as Ms. Perry ’s supervisor. -6- III. Analysis Ms. Perry relies on five pieces of evidence to supp ort her claim that age was a “determining factor” that “made the differenc e” in her termination and that the issue should have gone to the jury: (1) her re placement by a younger person; (2) her favorable performance evaluations before th e change in management; (3) Mr. Hufnagel’s testimony that she was terminate d because she was not productive enough to keep up with the pace of the new management; (4) Ms. Watson’s testimony that Ms. Perry would notbe able to change her old ways and that Ms. Perry had “burnout”; and (5) Ms. Young-Shiflet’s 1 testimony that the hospital’s termination decision was best f or the hospital because “it was time to have new blood and to have someone in that possibly could motivate the staff to do a better job, and I don’t believe that the work that needed to be done was getting done.” Id. at 454. Ms. Perry argues that, based on this evid ence, the jury could have inferred that her termination was p retextual and concluded that her age made the difference in the hospital’s decis ion to replace her. After hearing all the evidence, the district court disagreed. As a preliminary matter, the court held that Ms. Haub wa s “insignificantly younger” and, therefore, the evidence of a seven-year age di fference between her and Ms. Perry was “not sufficient to raise an inference ” that the reason for-7-

Ms. Perry’s termination was age. Id. at 506. The court further held that the jury could not infer pretext from the other testimony cited above. Id. The court held that defendants had “shown a legitimate nondiscrimi natory reason for the termination,” unrebutted by evidence of pretext, an d granted judgment as a matter of law to defendants. Id. at 507. a) The prima facie case . In Reeves v. Sanderson Plumbing Products,
Inc. , the Supreme Court explained that a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfu lly discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plainti ff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder cou ld conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the reco rd conclusively revealed some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak i ssue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no dis crimination had occurred. 530 U.S. 133, 148 (2000). Here, the district courtbased its “insignificantly younger” analysis on O’Connor v. Consolidated Coin Caterers Corp. , 517 U.S. 308 (1996). There, the Court stated, [i]n the age-discrimination context, [] an inferenc e [of intent to discriminate] cannot be drawn from the replacement of one worker with another worker insignificantly younger. Becau se the ADEA-8-

prohibits discrimination on the basis of age and no t class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of a ge discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. 517 U.S. at 313; and see Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1166 (10th Cir. 2000) (holding that, “because plaintiff’ s replacement was only two years his junior--an obviously insignificant differ ence--the necessary inference of discrimination was precluded, and he failed to establish his prima facie case”). Ms. Perry argues that the parties’ “principal dispute centers around whether Perry was replaced by Peters, 17 years her junior, or Hau b, who is seven years younger than Perry,” and argues that the court impermissibl y weighed the evidence in holding, as a matter of law, that Haub, and not Pet ers, replaced Perry. Aplt. Br. at 7-8. Ms. Perry also argues that a seven-year ag e gap is sufficient to support an inference of discrimination for a prima facie case. We need not decide these issues, however, because of the procedural and evid entiary posture of the case at the time of the district court’s decision. Lucas v. Dover Corp., Norris Div. , 857 F.2d 1397, 1401 (10th Cir. 1988) (addressing on ly whether there was sufficient evidence to establish that reasons for t ermination were pretextual). When a defendant presents evidence of a valid, nond iscriminatory reason for termination in a case in which the plaintiff is relying on a McDonnell Douglas Corp. proof scheme to establish discrimination,-9-

the McDonnell Douglas framework--with its presumptions and burdens--disappear[s], and the sole remaining issue [is] discrimination vel non

. . . . The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the p laintiff remains at all times with the plaintiff. And in attempting to satisfy this burden, the plaintiff--once the employer produces sufficient evidence to support a nondiscriminatory explanation for its dec ision--must be afforded the opportunity to prove by a preponderanc e of the evidence that the legitimate reasons offered by the defendan t were not its true reasons, but were a pretext for discrimination. Th at is, the plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer’s proff ered explanation is unworthy of credence. Moreover, although the pr esumption of discrimination drops out of the picture once the de fendant meets its burden of production, the trier of fact may still c onsider the evidence establishing the plaintiff’s prima facie case and i nferences properly drawn therefrom . . . on the issue of whether the d efendant’s explanation is pretextual.
Reeves , 530 U.S. at 142-43 (quotations and citations omitted). Even if we considered that Ms. Peters, and not Ms. Haub, repla ced Ms. Perry, or that seven years is a substantial age difference that supports a prima facie case of discrimination, Ms. Peters still had the burden of producing sufficient evidence to show that defendants’ reasons for terminating her w ere not legitimate or were unworthy of credence and that age was the determini ng factor in her termination. This she did not do. Ms. Perry did not rebut the testimony that the ER, over which she had been the director for twenty-six years, did not meet fed eral standards and was considered to be the hospital’s worst department an d in need of quick-10-

improvement. She could not rebut the fact that def endants sought to replace her with a fifty-four-year-old nurse before they knew o f her discrimination complaint. And none of the testimony that Ms. Perry points to regarding her lack of productivity and inability to keep the pace of the new CEO’s demands, her inability to change her ways, her apparent “burnout ,” or the need for “new blood” to motivate ER employees raises an inference that s he was terminated because of her age or that her termination was pretextual. Anemployee can be nonproductive, burned out, and unwilling or unable to change her ways at any age, just as an older employee can remain productiv e, enthusiastic, and able to change. Cf. Lindsey v. Baxter Healthcare Corp. , 962 F.2d 586, 588 (7th Cir. 1992) (stating that “[n]o weight can be attached to . . . ‘good old boys,’ [because] any competent user of the English (or rather the Am erican) language knows that to be a good old boy one need not be old, or for th at matter, good”). Evidence that Ms. Perry had never received a writte n negative evaluation before new management took over is relevant to the issue of substandard performance. But “[p]retext is not established by virtue of the fact that an employee has received some favorable comments in so me categories or has, in the past, received some good evaluations.” Ezold v. Wolf, Block, Schorr & Solis-Cohen , 983 F.2d 509, 528 (3d Cir. 1992). And that evide nce alone, in light of the overwhelming evidence supporting defendants’ assertion that age was not-11-

the determining factor in their decision to terminate Ms. Perry, created, at most, “only a weak issue of fact as to whether the employ er’s reason was untrue and there was abundant and uncontroverted independent e vidence that no discrimination had occurred.” Reeves , 530 U.S. at 148. Although judgment as a matter of law should remain atypical in age discrimination cases, see id. at 155 (Ginsburg, J., concurring), after a careful review of the record, we conclude that the district court did not err in granting judgmentas a matter of law to defendants. The judgment of the district court is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge