UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHY HUTCHINS,

Plaintiff - Appellant,

v. CESSNA AIRCRAFT COMPANY, Defendant – Appellee. No. 14-3014 (D. Kansas) (D.C. No. 6:12-CV-01410-KHV)

ORDER AND JUDGMENT *

Before BACHARACH , McKAY , and McHUGH , Circuit Judges.

Ms. Kathy Hutchins worked for Cessna Aircraft Company until she was fired at age 53. She attributed the firing to her age and sued under the Age Discrimination in Employment Act. Cessna denied age disc rimination and moved for summary judgment, insisting that it had fired Ms. Hu tchins for poor work performan ce. In her response to the summary judgment motion, Ms. Hutchins ad mitted that Cessna’s decision-makers had

* This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive valu e consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 30, 2014

Elisabeth A. Shumaker Clerk of Court2 not considered her age. With this admi ssion, the district court granted summary judgment to Cessna. We affirm. I. Ms. Hutchins’s Employme nt and Eventual Firing

Ms. Hutchins worked for Ce ssna from 1978 to 2012. To ward the end, she worked in the Finance Department as a Finance Bu siness Partner. Her supervisor was Michele Gifford. Ms. Gifford ultimately fired Ms. Hutc hins, telling her that she could stay in the Finance Department for only 30 more days wh ile she looked for ot her jobs within the company. Ms. Hutchins did not apply for any other jobs at Cessna. Accordingly, Cessna

terminated her. She attributed the firing to age disc rimination, suing Cessna under the Age Discrimination in Employment Act. 1 Cessna moved for summary judgment, setting forth a statement of facts. In this statement, Ce ssna said that “[a]t th e time the decision was made to terminate [her], neith er Gifford, Manuel, or Poulson were aware of, nor did they consider, [Ms. Hutchins]’s age.” 2 Ms. Hutchins responded: “UNCONTROVERTED — as self-servingl y [sic] stated [sic] by current employees who would never testify agai nst their own economic interests. However, it is simple math for them to determine or know that a person who has worked at an employer, wh o, by law cannot employ a person under the age of 18, would be nearing the age of 55. (18+34=52)” 3

1 Ms. Hutchins also alleged violati on of the Employment Retirement Income Security Act, but that clai m is not at issue on appeal.

2 Appellant’s App. at 297.

3 Appellant’s App. at 297.3 Based on this admission, the district court held that Ms. Hutchins had not established a genuine issue of ma terial fact regarding pretext. 4 Accordingly, the district court granted summary judgment to Cessna.

II. Standard of Review “We review the district court’s grant of summary judgment de novo, employing the same legal standard applic able in the district court.” 5 Summary judgment would have been appropriate in the absence of a genuine issue of material fact. 6 In deciding whether a genuine issue of material fact existed, we must view the eviden ce in the light most favorable to the party o pposing summary judgment. 7

III. McDonnell-Douglas Framework

Ms. Hutchins concedes that she has not presented any direct evidence of age

discrimination. Instead she relies on circumst antial evidence. Therefore, we analyze her claim under the burden-shifting framework of McDonnell-Douglas Corp. v. Green

. 8 Under this framework, Ms. Hutchins bears th e initial burden to establish a prima facie

4 Order at 14.

5 Thompson v. Salt Lake Cnty. , 584 F.3d 1304, 1311 (10th Cir. 2009).

6 Thompson , 584 F.3d at 1311.

7 Noland v. McAdoo , 39 F.3d 269, 271 (10th Cir. 1994).

8 411 U.S. 792 (1973); see Jones v. Okla. City Pub. Schs. , 617 F.3d 1273, 1278-79 (10th Cir. 2010) (applying the McDonnell-Douglas framework to ADEA claims).4 case of discrimination. 9 If she does, the burden would shift to Cessna to produce a legitimate, non-discriminato ry reason for the adverse employment action, which Ms. Hutchins must then rebut by showing th at the proffered reason constitutes only a pretext. 10

IV. Ms. Hutchins’s ADEA Claim The ADEA prohibits an empl oyer from terminating any employee on the basis of

age. 11 To establish a prima facie case of age discrimination, a plaintiff must show: (1) she is a member of the protected class, (2) she suffered an adverse employment action, (3) she was qualified for th e position at issue, and (4) she was treated less favorably than others not in the protected class. 12 Cessna does not question the existence of a prima facie case of age discrimination, and Ms. Hutchins does not question wh ether Cessna proffered a legitimate, nondiscriminatory reason for the termination. 13 Consequently, the appe al turns on the third step in the McDonnell-Douglas analysis: Was Cessna’s proffered reason a pretext for

discrimination?

9 McDonnell-Douglas , 411 U.S. 792, 802 (1973).

10 McDonnell-Douglas , 411 U.S. 792, 802-03 (1973).

11 29 U.S.C. § 623(a)(1).

12 Jones v. Okla. City Pub. Schs. , 617 F.3d 1273, 1279 (10th Cir. 2010).

13 Order at 13 (citing Bertsch v. Overstock.com , 684 F.3d 1023, 1029 (10th Cir. 2012)).5 The reason given was pretextual onl y if Ms. Hutchins shows that age discrimination provided a more likely explan ation or that Cessna’s explanation was not

credible. 14 To survive a summary ju dgment motion, Ms. Hutchins had to provide more than mere conjecture regarding Cessna’s underlying motivation. 15

The district court held that Ms. Hutchins could not establish a genuine issue of material fact regarding pretext because she admitted that age was not considered in her

termination. 16 We agree. Ms. Hutchins admitted that “[a]t the time the decision was made to terminate [her], neith er Gifford, Manuel, or Poulson were aware of, nor did they consider, [Ms. Hutchins]’s age.” 17 With this admission, the fact-finder could not reasonably infer any consideration of age in Cessna’s decision to fire Ms. Hutchins. Therefore, Ms. Hutchins cann ot prove age discrimination. Ms. Hutchins downplays her concession, a sserting that the district court ignored the self-serving nature of Cessna’s stated fact. 18 Even if the fact was self-serving, Ms.

Hutchins admitted it. Notwithstanding that admission, Ms. Hutchi ns describes the evidence she would present to a jury if given the opportunity. This discussion is irrelevant. Ms. Hutchins had no right to present evidence to a jury unless she established a genuine issue of material

14 Rea v. Martin Marietta Corp. , 29 F.3d 1450, 1455 (10th Cir. 1994).

15 Santana v. City & Cnty. of Denver , 488 F.3d 860, 864-65 (10th Cir. 2007).

16 Order at 13.

17 Appellant’s App. at 297.

18 Appellant’s Opening Br. at 10.6 fact regarding pretext. She did not do that. Instead, she conceded the issue of pretext by admitting that age had played no role in Cessna’s decision to terminate her employment.

V. Conclusion The district court did not err in gr anting summary judgment to Cessna. To defeat summary judgment, Ms. Hutchins had to esta blish a genuine issue of material fact on pretext. Ms. Hutchins cannot satisfy this burden because she admitted that the decisionmakers had not considered her age. With th is admission, Ms. Hutchins has not created a genuine issue of material fact on age-related discrimination. In these circumstances, the district court’s award of summary judgment was correct. We affirm.

Entered for the Court

Robert E. Bacharach Circuit Judge