After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

March 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES BOLTON,

Plaintiff-Appellant,

v.

SPRINT/UNITED MANAGEMENT

COMPANY,

Defendant-Appellee.

No. 06-3042

(D.C. No. 04-CV-2156-CM)

(D. Kan.)

ORDER AND JUDGMENT

*

Before HOLMES, McKAY, and BRORBY, Circuit Judges.

Plaintiff James Bolton appeals from the district court’s entry of summary

judgment in favor of defendant Sprint/United Management Company (Sprint) on

Mr. Bolton’s claim of employment discrimination under the Age Discrimination

in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). We have jurisdiction under

28 U.S.C. § 1291 and affirm.
-2-

I. Background

Mr. Bolton was born on February 5, 1953, and began working for Sprint’s

predecessor in 1987 as a software engineer II. In 1990, he began working

part-time on the Access Request Management System (ARMS), an on-line system

that field representatives use to enter service requests. In 1993, he began working

full time on the ARMS team. Mr. Bolton worked on that team until his discharge

in October 2003.

During the course of his employment, Mr. Bolton received performance

evaluations by his manager for each performance year. For performance years

1990 through 1998, he received generally favorable overall ratings of

“proficient,” “above expectations,” or “fully met expectations.” He was promoted

to software engineer III (SE III) in 1995 by his manager, Betty Mathis, although

against her better judgment. Aplt. App., Vol. I at 114, ¶ 9. Mr. Bolton received

pay raises each year from 1990 through 1997.

The reviews for performance years 1996 and 1998, however, were not

without some comment on Mr. Bolton’s performance problems. Despite rating

him as “fully satisfactory” (a middle rating of “3” on a scale of “1” to “5,” with

“5” being the lowest) for performance year 1996, Ms. Mathis rated him as

“improvement needed” in the areas of leadership, management, and personal

effectiveness, id. at 113, ¶ 5; id. at 244. She based her appraisal of his

weaknesses on her observation that he had a difficult time grasping new tasks,
-3-

took longer than average to perform a task, had very weak analytical skills, lacked

an understanding of basic ARMS business functions despite the length of time he

had worked on the ARMS team, and was either very conservative or lacking in

self-confidence in decision-making skills. Id. at 113, ¶ 7.

Sue Goodwin took over as manager of the ARMS team in March 1998 and

became Mr. Bolton’s direct supervisor. When she met with Mr. Bolton in early

1999 to discuss his 1998 performance, she explained that although he was

dedicated, tried hard, and was well-liked, he was not performing at the level of an

SE III for a number of reasons, including his inability to provide technical

guidance to less experienced engineers, his need for continuous guidance on how

to solve most production problems, his difficulty writing adequate technical

specifications, and his lack of organization. Id. at 339. Despite considering a

rating of “4,” Ms. Goodwin gave him the higher rating of “3” but did not award a

merit-based pay increase. Id. at 341. Ms. Goodwin again rated him as a “3” for

1999. Id. at 257.

Thereafter, Ms. Goodwin solicited and received comments from team leads

under whom Mr. Bolton worked that reiterated many of the same performance

shortcomings Ms. Mathis and Ms. Goodwin had noted. These problems caused

Larry Reeves, one of Mr. Bolton’s team leads, to give him the easiest tasks in

order to avoid spending time fixing errors. Id. at 306:9-17. When Ms. Goodwin

met again with Mr. Bolton in July 2000, she indicated that his need for
-4-

continuous, substantial support should not be required of an SE III with as many

years experience on the same system. Id. at 356. For performance year 2000,

Ms. Goodwin again rated Mr. Bolton a “3,” “fully met expectations,” noting that

he was a team player and completed his assignments but continued to require

assistance from other team members. Id. at 267. Mr. Bolton received another pay

increase.

Sprint employed two rating systems for performance year 2001, the old

system under which it awarded a formal numerical rating and a new, letter-based

system under which it awarded an “advisory rating” of Most effective (M), Highly

effective (H), Effective (E), Improvement needed (I), or Substantial Improvement

needed (SI). Sprint directed its managers to use a bell curve system and classify a

certain percentage of employees at each of the advisory levels, with the largest

percentage, 40%, rated “E.” Mr. Bolton was rated a “3” on the formal scale

(“fully met expectations”), id. at 279, an “E” on the advisory scale, and received a

pay increase.

For performance year 2002, Sprint used only a four-tiered letter-based

scale, Most effective (M), Highly effective (H), Very effective (V), or Less

effective (L), and Sprint again employed the bell curve system. Ms. Goodwin

received additional reports from other ARMS team members concerning

Mr. Bolton’s performance problems, which were similar to those described above. 

She rated him an “L” and wrote that he takes longer to accomplish tasks than any
-5-

other SE III on the ARMS team despite being the longest-tenured member. Id.

at 293-94.

In January and February 2003, Shelly Becker was Mr. Bolton’s team lead

and gave him two project evaluations. Although she found Mr. Bolton to be a

conscientious worker who did whatever was needed to meet deadlines, she stated

that he needed to have greater self-confidence and provide quicker code

turnaround, and that he struggles with many areas of ARMS. Id. at 369-70,

372-73.

In March 2003, Sprint added a layer of supervision to the ARMS team

between Ms. Goodwin and the team members, and Ms. Becker became

Mr. Bolton’s supervisor. Ms. Becker testified that while she was Mr. Bolton’s

supervisor, no one on the ARMS team took consistently longer to complete tasks

than Mr. Bolton did. Id. at 166:3-6. 

In May 2003, Ms. Goodwin conducted an informal assessment of

Mr. Bolton’s knowledge and skills and, more specifically, his demonstration of

“Sprint Dimensions.” Among the factors identified as Sprint Dimensions were

(1) Leadership, and (2) Personal Effectiveness. Mr. Bolton received the same

poor score in both areas—a “4,” which was one step from the bottom of a

five-point scale. Approximately one month later, Ms. Becker conducted a similar

informal assessment of all of the members of the ARMS team. As to Leadership
Mr. Bolton’s briefs on these factual matters are confusing and his citations 1

to the record are unhelpful. In his opening brief, he states that Ms. Becker’s

evaluation occurred first, see Aplt. Opening Br. at 10, but a chart in that brief

suggests the opposite, see id. at 11-12, as does the discussion and the same chart

in his reply brief, see Aplt. Reply Br. at 13-14. His supporting citations to the

record refer to a chart in the brief he filed in the district court in response to

Sprint’s motion for summary judgment, see Aplt. App., Vol. II at 443-44, which

is identical to the chart in his appellate briefs, and to a barely-legible document

that appears to evaluate Mr. Bolton and other ARMS team members on the

“Sprint Dimensions,” see id. at 716, which he attributed to Ms. Goodwin in his

opening brief and to Ms. Becker in his reply. The chart indicates that both

Ms. Goodwin and Ms. Becker gave Mr. Bolton a “4” on Leadership and Personal

Effectiveness. The cited document at page 716 of the record appears to rate

Mr. Bolton a “4” in Leadership and Personal Effectiveness, but it is unclear from

the document itself who completed it or when it was completed, and we have

found no documentation of a second evaluation. Although Ms. Becker’s

deposition testimony indicates that she gave Mr. Bolton a “4” on Leadership, id.

at 689:6-7, and that her evaluation was dated June 16, 2002, see id. at 691:18 to

692:24, she never states what rating she gave Mr. Bolton on Personal

Effectiveness. Fortunately, for our purposes, we need not resolve this morass

because the parties do not appear to dispute that both Ms. Goodwin and

Ms. Becker completed an informal evaluation and both scored Mr. Bolton a “4”

on Leadership and Personal Effectiveness. The sequence of their evaluations is

immaterial.

-6-

and Personal Effectiveness, Mr. Bolton fared no better on Ms. Becker’s

assessment; as to both, he received a “4.” 1

In late May 2003, Patricia Mitchell, then fifty-eight years old, evaluated

Mr. Bolton’s performance on a project she led. Although omitted from her initial

written evaluation, Ms. Mitchell eventually documented certain performance

problems that she had only discussed with Mr. Bolton, in order to address the
Following Mr. Bolton’s commencement of this litigation, Ms. Mitchell had 2

occasion to testify that she was surprised to learn of Mr. Bolton’s termination,

Aplt. App., Vol. II at 630:13-24, and that she had not observed in Mr. Bolton’s

performance any problems that warranted his termination, id. at 625:22 to 626:2.

-7-

concern of Ms. Goodwin and Ms. Becker that all problems be documented. Id.

at 164:12-20. 

2

In June 2003, Ms. Goodwin and Ms. Becker talked to Mr. Bolton about

applying for a different position with the company, one that might be a better

match for his skills. Mr. Bolton declined, and Ms. Goodwin orally warned him

that she would begin Sprint’s corrective-action process. 

On July 15, Mr. Bolton was placed on written warning and told he must

improve in 30 days or he would be placed on final written warning. He was given

a list of discrete goals to meet, including completion of assignments in the

allocated time and with minimal errors, and was given the opportunity to make a

presentation on a topic of his choice. Mr. Bolton’s presentation fell well short of

the expectations of Ms. Goodwin, Ms. Becker, and Ms. Mitchell. Further

performance problems were documented, and Ms. Goodwin, along with

Mr. Stranimier, who had taken over as Mr. Bolton’s immediate supervisor from

Ms. Becker, placed Mr. Bolton on final written warning on August 15.

After additional performance problems and another presentation that met

with criticism, Ms. Goodwin and Mr. Stranimier terminated Mr. Bolton’s

employment on October 3, 2003. He was 50 years old. For a short time after his
-8-

discharge, Mr. Bolton worked for a contractor as a temporary worker performing

tasks for Sprint similar to the work he performed as a member of the ARMS team. 

Mr. Bolton completed this temporary work without any review of his

performance.

After obtaining a right-to-sue letter from the Equal Employment

Opportunity Commission, Mr. Bolton filed suit. The district court entered

summary judgment in favor of Sprint, and Mr. Bolton appeals.

II. Analysis

A. General Legal Standards

We review the district court’s grant of summary judgment de novo, using

the same legal standard applicable in the district court. Baca v. Sklar, 398 F.3d

1210, 1216 (10th Cir. 2005). Summary judgment should be granted “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if 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). Under this standard, we view the evidence, and draw

all reasonable inferences from it, in the light most favorable to the nonmoving

party. Baca, 398 F.3d at 1216.

 In evaluating an ADEA claim based on indirect evidence of discrimination,

we use the burden-shifting framework outlined in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973), and its progeny. See McKnight v. Kimberly
-9-

Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (applying McDonnell Douglas

to ADEA claim). Within this framework, a plaintiff must initially establish a

prima facie case of age discrimination. See McDonnell Douglas, 411 U.S. at 802. 

This burden is “not onerous.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.

2005) (quotation omitted). If a plaintiff establishes a prima facie case, the burden

shifts to the defendant “to articulate some legitimate, nondiscriminatory reason”

for its action. McDonnell Douglas, 411 U.S. at 802. If the defendant meets this

burden, “summary judgment is warranted unless the employee can show there is a

genuine issue of material fact as to whether the proffered reasons are pretextual.” 

Plotke, 405 F.3d at 1099.

B. Prima Facie Case

In a typical ADEA case based on discharge, a plaintiff establishes a prima

facie case by showing that he (1) is within the protected age group (i.e., at least

forty years old, see 29 U.S.C. § 631(a)); (2) was doing satisfactory work; (3) was

discharged; and (4) was replaced by a younger person. See, e.g., Rivera v. City &

County of Denver, 365 F.3d 912, 920 (10th Cir. 2004). But whether the claim

arises under the ADEA or another antidiscrimination statute, the fourth element of

a prima facie case “is a flexible one that can be satisfied differently in varying

scenarios.” Plotke, 405 F.3d at 1100. As the district court recognized, when a

plaintiff is not replaced by a younger worker, which appears to be the case here, a

plaintiff may satisfy the fourth element with a more general showing that his
-10-

discharge “occurred under circumstances which give rise to an inference of

discrimination.” Id. (quotation omitted).

There is no dispute that Mr. Bolton satisfies the first and third prongs of the

prima facie case—he was 50 years old when he was discharged. As to the second

element, the district court began its analysis by stating, “Defendant contends, and

the court finds that the record demonstrates, that plaintiff was not performing up

to the expectations of his employer at the time defendant terminated his

employment.” Aplt. App., Vol. II at 811. We agree with Mr. Bolton that the

court’s consideration of Sprint’s nondiscriminatory reason for discharging him

was impermissible at the prima facie stage of the analysis. 

As we explained in MacDonald v. Eastern Wyoming Mental Health Center, 

941 F.2d 1115 (10th Cir. 1991), concluding that plaintiffs “did not establish a

prima facie case based on the reasons for their discharge raises serious problems

under the McDonnell Douglas analysis” because it “frustrates a plaintiff’s ability

to establish that the defendant’s proffered reasons were pretextual and/or that age

was the determining factor.” 941 F.2d at 1119. We therefore held that a plaintiff

may meet the second element of “a prima facie case of discrimination in a

discharge case by credible evidence that she continued to possess the objective

qualifications she held when she was hired, or by her own testimony that her work

was satisfactory, even when disputed by her employer, or by evidence that she
-11-

had held her position for a significant period of time.” Id. at 1121 (citations

omitted).

It is undisputed that Mr. Bolton worked as a software engineer for Sprint

and its predecessor in interest from 1987, and specifically as an SE III on the

ARMS team from 1995, until his discharge in 2003. Each of these periods of

time, 16 and 8 years, respectively, is a significant period of time. See id.

(concluding that four years was significant). Because the MacDonald test is

phrased in the disjunctive, this fact alone is sufficient to establish the second

element of the prima facie test. See English v. Colo. Dep’t of Corr., 248 F.3d

1002, 1008 (10th Cir. 2001) (relying only on length of plaintiff’s employment to

satisfy second element under MacDonald).

Mr. Bolton also argues that the district court erred in its consideration of

the fourth element of the prima facie case, whether his discharge occurred under

circumstances that give rise to an inference of discrimination. In its analysis of

the fourth element, the district court considered much of the evidence that also

goes to pretext. We will assume for purposes of this appeal, therefore, that

Mr. Bolton has met his prima facie burden, which is not an onerous one, see

Plotke, 405 F.3d at 1099, and analyze the evidence under the pretext standard. 

That pretext review may properly encompass evidence supporting the prima facie

case. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). 

Mr. Bolton has conceded that Sprint’s proffered reason for discharging him
Because our review is de novo, we need not separately address

3

Mr. Bolton’s argument that the district court erred in its analysis by improperly

weighing evidence, drawing inferences in favor of Sprint, and making credibility

determinations. See Rivera, 365 F.3d at 920. 

To reiterate, the 2002 ratings were Most effective (M), Highly effective 4

(H), Very effective (V), or Less effective (L). 

-12-

satisfies the company’s burden under the second prong of the McDonnell Douglas

framework, so we proceed to the pretext analysis that the district court did not

reach.3

C. Pretext

“Pretext can be shown by such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in 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.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997) (quotations omitted). We do not, however, “act as a super

personnel department that second guesses employers’ business judgments.” 

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

165 F.3d 1321, 1330 (10th Cir. 1999) (quotation omitted).

Mr. Bolton first argues that older members of the ARMS team received

generally lower performance ratings on their 2002 evaluations. For that year, two

team members, aged 45 and 40, received the highest rating, “M.” See Aplt. App.,

4
This reference to the record is a chart set forth in the district court’s 5

opinion summarizing the ages of the members of the ARMS team as well as their

performance ratings. We reference this summary for convenience. Mr. Bolton

has not taken issue with the accuracy of this summary, and nothing in the record

indicates that it is in error.

-13-

Vol. II at 798. Three team members, aged 55, 34, and 28, received an “H” 5

rating. See id. Five team members, aged 57, 50, 42, 41, and 39, received a “V”

rating. See id. And three team members, aged 56, 49 (Mr. Bolton), and 27,

received the lowest “L” rating. See id. at 797-98. There is no age-related pattern

that raises an inference of discrimination evident in the distribution of these

ratings. Two team members aged 45 and 40 received the highest rating and the

youngest team member received the lowest rating. Moreover, Mr. Bolton’s rating

was supported by Ms. Goodwin’s narrative outlining his performance issues.

Mr. Bolton next argues that the youngest member of the team, Sandi

Ozgen, was not discharged even though he, like Mr. Bolton, received the lowest

rating for 2002. This argument overlooks the fact that Mr. Ozgen left Sprint’s

employment on April 22, 2003, apparently of his own volition. Mr. Bolton was

not placed on written corrective action until July 15, 2003, and not discharged

until October 3, 2003. No reasonable inference of age discrimination can arise

from Sprint’s failure to place Mr. Ozgen on corrective action or terminate his

employment in shorter course than it took with Mr. Bolton.
-14-

Mr. Bolton also points to two other ARMS team members, Paul McDonnell

and Paul Robinson, who were discharged as part of a reduction in force (RIF) in

2004 when they were approximately 58 and 52 years old, respectively. Sprint

argues that their discharge is irrelevant because they voluntarily left the ARMS

group, were discharged from another group, and neither Ms. Goodwin nor

Mr. Stranimier had any role in the decision to include them in the RIF. 

Assuming arguendo that this evidence is relevant on these facts, even

though a different supervisor was involved in the RIF, see Mendelsohn v.

Sprint/United Mgmt. Co., 466 F.3d 1223, 1226-28 (10th Cir. 2006) (declining to

extend the “same supervisor” rule to contexts other than those involving

discriminatory discipline), we conclude that it is of minimal probative value. 

Mr. Bolton has not provided any evidence or argument that would eliminate

nondiscriminatory reasons for Sprint’s discharge of Mr. McDonnell and

Mr. Robinson. It would be unreasonable, therefore, to infer that Sprint

maintained a company-wide policy of age discrimination that led to Mr. Bolton’s

termination from the bald fact that Sprint laid off two workers aged 58 and 52 as

part of a RIF.

Mr. Bolton characterizes the evidence relating to his performance in 2003

as “sharply conflicting”: specifically, the project evaluations completed by

Ms. Becker and Ms. Mitchell; his own view of his performance; and the informal

assessments—which Mr. Bolton refers to as “secret evaluation[s],” see Aplt.
Contrary to Mr. Bolton’s suggestion, we see no impropriety in the request 6

that Ms. Mitchell document areas of concern that she had spoken to Mr. Bolton

about but omitted from an earlier version of the evaluation.

-15-

Opening Br. at 11—conducted by Ms. Goodwin and Ms. Becker in 2003 of the

technical abilities of the ARMS team members and the “Sprint Dimensions.”

Contrary to his first contention, Ms. Becker’s project evaluations do not

sharply conflict with Ms. Goodwin’s opinion of his ability to perform as an SE III

on the ARMS team. Although Ms. Becker described Mr. Bolton’s positive

attributes, she also listed areas for growth or concern, in particular his need to

make more independent decisions, Aplt. App., Vol. II at 709, and provide quicker

code turn around, id. at 710, concerns similar to those that led to Mr. Bolton’s

corrective action and eventual discharge. 

Similarly, Ms. Mitchell’s evaluation was not unqualifiedly positive but

identified problem areas. See id., Vol. I at 394, 398. Additionally, 6

Ms. Mitchell’s opinion that she saw nothing in Mr. Bolton’s performance in 2003

warranting termination (see supra note 2) is insufficient to create a genuine issue

of material fact as to the opinions of Ms. Goodwin, which concerned a broader

period of time than just 2003, or those of Mr. Stranimier. See Kendrick v. Penske

Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (relevant pretext

inquiry is how facts appeared to the decision maker). Likewise, in the pretext
-16-

analysis, Mr. Bolton’s own opinion of his performance is irrelevant. See Kelley v.

Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000).

The part of the record to which Mr. Bolton cites in support of his

contention that he was rated the same for technical proficiency on certain

computer programming languages, systems, and applications as other ARMS team

members who were not discharged is of such poor print quality that we are unable

to read it in any meaningful way as to the technical proficiencies. See Aplt. App.,

Vol. II at 716. But even assuming Mr. Bolton’s summation of the information is

accurate, it says nothing about whether any of the other ARMS team members

shared any of the specific performance problems that formed the basis for

Mr. Bolton’s discharge. In fact, the record is devoid of any such evidence. Thus,

Mr. Bolton has not met his burden of showing that he was similarly situated to the

other employees but was treated differently, and therefore the comparison is not

legally relevant. See Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177,

1182 (10th Cir. 2002).

As to the ratings Ms. Goodwin and Ms. Becker gave him on the “secret

evaluations” pertaining to the “Sprint Dimensions,” we see no sharp conflict

creating a material question of fact as to whether his discharge was pretextual. 

Again, the primary reasons for his discharge were his slow work pace, poor

analytical skills, and need for assistance and approval for decisions. Those

reasons are encompassed by the Sprint Dimensions of “Personal Effectiveness”
-17-

and “Leadership,” the two categories for which Ms. Goodwin and Ms. Becker

both gave him the same subpar score, “4” on a scale of “1” to “5,” with “5” being

the lowest score.

Mr. Bolton next contends that Ms. Goodwin’s comments “that he ‘had the

longest tenure of anyone’ on the ARMS team and that he ‘should know more’

based upon his years of experience,” Aplt. Opening Br. at 29, give rise to an

inference of age bias. This contention ignores the fact that Ms. Goodwin made

those comments in the specific context of evaluating his performance—that is,

Ms. Goodwin was expressing her criticism of Mr. Bolton’s skill level in relation

to the length of time he had worked on the ARMS team; it had nothing to do with

how old he was despite the link between tenure and age. An employer may

legitimately have an expectation that an employee’s ability to perform a job will

improve with experience, and nothing in Ms. Goodwin’s expression of that

expectation as to Mr. Bolton suggests that her true reason for discharging him was 

his age. Accordingly, we conclude that no reasonable inference of age bias can

be drawn from Ms. Goodwin’s comments, and therefore her comments do not

create a genuine issue of material fact that Sprint’s reason for discharging

Mr. Bolton was pretextual.

Mr. Bolton’s final contention is that the “secret evaluation” and the

sequence of events leading up to his termination are the type of “disturbing

procedural irregularities” that can constitute evidence of pretext, Simms, 165 F.3d
-18-

at 1328. He first points to the testimony of Rubye Beal, a Sprint human resources

representative, suggesting that there was no company policy or guidelines related

to the “secret evaluation.” See Aplt. App., Vol. II at 650-51, Beal Depo. at 58:1

to 63:24. Even if this was true, we fail to see how an additional evaluation

concerning characteristics apparently recognized by the company is suggestive of

age bias. To the contrary, Ms. Becker testified that she completed such

evaluations for anyone who applied for a different job with Sprint, id.

at 681:7-12, and it is undisputed that she was trying to assist Mr. Bolton in

obtaining a different position with the company.

The other alleged procedural irregularity concerns Sprint’s

corrective-action guidelines and the purportedly accelerated pace at which

Mr. Bolton’s corrective action proceeded, approximately 81 days in total. 

According to Mr. Bolton, the guidelines provide that a written warning would

normally be in effect for three to nine months and a final written warning would

normally be in effect for three to twelve months. Aplt. Opening Br. at 9. 

Mr. Bolton points to no record support for his interpretation, but our review

indicates that the corrective-action process was subject to management discretion,

and that although the aforementioned time frames could be used, local practice

controlled. See Aplt. App., Vol. I at 319-20. Additionally, Ms. Beal testified that

a person could spend a minimum of 30 days in each phase, Id., Vol. II at 640,

Beal Depo. at 20:20 to 21:4; that discretion is used to tailor the time frames to
-19-

each individual situation, id. at 647-48, Beal Depo. at 49:16 to 50:4; and that a

30-day time frame provides a good measure of an employee’s improvement

efforts, id. at 648, Beal Depo. at 51:4-6. Thus, the choices made as to Mr. Bolton

were not procedurally irregular or suggestive of pretext.

We conclude that none of the evidence, even when viewed in the aggregate,

see E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir.

2000), creates a genuine issue of material fact that Sprint’s reason for terminating

Mr. Bolton’s employment was pretextual.

III. Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Jerome A. Holmes

Circuit Judge