* This order and judgment is not binding precedent, e xcept under the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

### MAR 18 2003 

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

GARY W. HOOPER,

Plaintiff - Appellant,

v. MONTGOMERY KONE, INC.,

Defendant - Appellee. No. 01-6449 (D.C. No. 00-CV-208-T) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and O’BRIEN , 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. Appellant Gary Hooper sued his former employer, Montgomery Kone, Inc. (Montgomery), under the Age Discrimination in Emplo yment Act (ADEA),-2-

29 U.S.C. §§ 621-634. Montgomery moved for summaryjudgment, which the district court granted, and Mr. Hooper now appeals. We review the district court’s decision to grant summary judgment de novo. Tool Box v. Ogden City Corp. , 316 F.3d 1167, 1173 (10th Cir. 2003). Summary ju dgment is appropriate only where there is no genuine issue of material fa ct and the moving party is entitled to judgment as a matter of law. Hardy v. S.F. Phosphates Ltd. Co. , 185 F.3d 1076, 1079 (10th Cir. 1999). Mr. Hooper worked for Montgomery for many years as the local resident mechanic for the northern area of Oklahoma. In thi s capacity he maintained and serviced elevators for various clients in the area. In 1998, Montgomery decided to make a number of drastic changes to Mr. Hooper’s service route, including eliminating certain responsibilities, reducing Mr. Hooper’s hours, and taking away his company vehicle. After these changes were announced, there was some discussion back and forth regarding whether Mr. Hoo per–who was nearing sixty–might retire. Mr. Hooper ultimately announce d his retirement in June of 1999, and sued Montgomery for age discrimination, c laiming that Montgomery in essence forced him to retire by severely degradi ng his work conditions and threatening him with termination. ADEA claims based on indirect proof of discriminati on are analyzed under the burden-shifting analysis developed in the Title VII context. See Ellis v.-3-

United Airlines, Inc. , 73 F.3d 999, 1004 (10th Cir. 1996). To establisha prima facie case, a plaintiff must show (1) he was withinthe protected age group; (2) his work was satisfactory; (3) he was discharge d despite the adequacy of his work; and (4) he was replaced by a younger person. EEOC v. Sperry Corp. , 852 F.2d 503, 507 (10th Cir. 1988). Even where, as here, the plaintiff resigned rather than being fired, he may demonstrate a primafacie case of discrimination if he can show that he was constructively discharged i n that the defendant exposed him to intolerable working conditions. See Lighton v. Univ. of Utah , 209 F.3d 1213, 1222 (10th Cir. 2000) (to establish construct ive discharge, plaintiff must show that defendant subjected him to working condit ions so intolerable that a reasonable person in his position would have feltcompelled to resign). Once the plaintiff has established a prima facie ca se, the defendant may rebut the presumption of discrimination by offe ring a legitimate, non-discriminatory reason for the challenged action

. Hardy , 185 F.3d at 1079. If the defendant succeeds in doing so, the presumpt ion of discrimination disappears, and the burden is again placed on the p laintiff to show that the reason offered by the defendant is merely a pretext for di scrimination. Id. at 1079-80. Pretext may be shown through such “weaknesses, impl ausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s reasons that a reasonable fact-finder could find them unworthy o f credence. Id. at 1080.-4-

After carefully reviewing the district court’s orde r, the record on appeal, and the parties’ arguments, we conclude that, assum ing that Mr. Hooper has established a prima facie case of discrimination, M ontgomery also succeeded in offering a legitimate, non-discriminatory reason fo r the changes in the northern route (i.e., to conserve costs). Further, Mr. Hoop er failed to demonstrate that Montgomery’s stated reasons were merely pretextual, as discussed in the analysis by the district court. Accordingly, the judgment o f the United States District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Terrence L. O’Brien Circuit Judge