* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 2 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANET G. HOWARD, Plaintiff-Appellant, v. THE GARAGE DOOR GROUP, INC., an Amarr Company, Defendant-Appellee. No. 02-3163 (D.C. No. 00-2580 -GTV) (D.Kansas)

ORDER AND JUDGMENT *

Before HARTZ, HOLLOWAY and McKAY , Circuit Judges.

This case is an appeal from a summary judgment in a n employment discrimination case. See Memorandum and Order, Howard v. Garage Door Group, Inc. 197 F. Supp. 2d 1297 (D. Kan. 2002). For the reaso ns detailed below, we conclude that the Plaintiff failed to est ablish a prima facie case of a violation of either the Age Discrimination in Emplo yment Act, (“ADEA”) 29 U.S.C. §§ 621 et seq. , or the Family and Medical Leave Act (“FMLA”) 29 U .S.C. §§ 2601 et seq . Accordingly, we affirm the district court’s gran t of summary-2-

judgment for the Defendant.
I Procedural History The Plaintiff, Janet Howard, was fired from her job as a janitor for Defendant Garage Door Group, Inc. Howard filed sui t against the Garage Door Group in the United States District Court for the D istrict of Kansas, alleging that her termination violated the ADEA and the FMLA. Bec ause these claims arose under federal statutes, the district court’s jurisd iction was predicated on 28 U.S.C. §1331. On April 5, 2002, the district court grantedDefendant’s motion for summary judgment as to both the ADEA and FMLA claim s. On May 6, 2002, Plaintiff filed a timely notice of appeal pursuant to Fed.R.App.Pro 4(a)(1). This court has jurisdiction over this appeal pursuant to 28 U.S.C. §1291.
II Statement of Facts Plaintiff Janet Howard was hired by Defendant Garag e Door Group, Inc. in April of 1995 at the age of 59 as an assembly line worker. Several months later, Howard was reassigned to a janitorial position for health reasons. In August of 1998, Howard was injured on the job and, as a resul t, took a total of 40 days of unpaid leave. When Howard returned to the job, she was assigned t emporary light duty-3-

for two to three weeks during which her mopping dut ies were assumed by other employees. In November of 1998, Howard received a medical release to return to normal duty with the restriction that she not lift more then twenty pounds. Despite this release, Howard refused to reassume he r mopping duties. Eventually several of Howard’s supervisors informed her that h er continued refusal to mop would result in her termination. On January 20, 1999, Howard met with her immediate supervisors and Mr. Pope, the director of manufacturing services for th e Defendant. At that meeting Howard was again informed that she must resume her mopping or be terminated. In response, Howard stated she was physically unabl e to do so as the industrial mops usually utilized by the janitors were too heavy. Howard suggested that she be allowed to either use a lighter mop or have her mopping duties permanently assigned to another person. According to Howard, P ope rejected both suggestions but agreed that the following day he would discuss reassigning Howard to another position. At the subsequent meeting, on January 21, 1999, no suitable position for Howard was identified. As a result, Pope decided t o fire Howard, who was then 63 years old. On February 1, 1999, the Defendant h ired Howard’s replacement, who was 64 years old. Howard then sued, claiming h er treatment by the Defendant was in violation of the ADEA and the FMLA . The district court-4-

granted summary judgment for the Defendant on all c ounts. Howard now appeals.
II Discussion A grant of summary judgment by the district court i s reviewed de novo. Simms v. Oklahoma , 165 F.3d 1321, 1326 (10th Cir. 1999). 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 judgment as a matter of law.” Fed. R. Civ. P. 56(c ). When determining whether judgment as a matter of law is appropriate, “we vie w the evidence and draw reasonable inferences therefrom in the light most f avorable to the nonmoving party.” Simms , 165 F.3d at 1326.
A ADEA claims The ADEA prohibits an employer from engaging in emp loyment practices that “discriminate against any individual because o f such individual’s age.” 29 U.S.C. § 623(b) (2004). A claim of age discriminat ion under the ADEA can be proven by either direct or circumstantial evidence. Stone v. Autolive ASP, Inc. , 210 F.3d 1132, 1136 (10th Cir. 2000). “A plaintiff proves discrimination through direct evidence by establishing proof of an existin g policy which itself constitutes1 The McDonnell Douglas burden shifting framework is applicable only as

to summary judgment. Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 744 (10th Cir. 1991) (holding that once there has been a full tria l on the merits, the McDonnell Douglas framework “drops out” and there remains only a “sin gle overarching issue” of whether the “adverse employment action wa s taken against” the plaintiff because of his or her protected status). -5- discrimination.” Id. (citation and quotation marks omitted). In all ot her cases, the plaintiff seeks to prove discrimination throughcircumstantial evidence. See,
e.g., Danville v. Regional Lab Corp. , 292 F.3d 1246, 1249 (10th Cir. 2002) (“Circumstantial evidence allows the jury to draw areasonable inference that discrimination occurred.”). Such a claim can survive summary judgment only wher e the plaintiff has presented sufficient evidence to show there is a ge nuine issue of material fact pertaining to whether the plaintiff’s age actually motivated the allegedly discriminatory conduct. Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 141 (2000); Fed. R. Civ. P. 56(c). In determi ning whether the circumstantial evidence presented by the plaintiff in a given case is sufficient to establish a genuine issue of material fact, the Supreme Court h as directed the application of the burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973). 1
The McDonnell Douglas framework comprises three burden shifting steps. Initially, the burden rests with the plaintiff to e stablish a prima facie case of-6-

discrimination. Id. at 802. If the plaintiff has established a prima facie case, the burden then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for its employment action

. Id. Finally, if the defendant articulates a nondiscriminatory reason, t hen the burden shifts to the plaintiff to show that the proffered reason is mere ly a pretext for discrimination. Id. at 804. Where the parties have satisfied their re spective burdens under the McDonnell Douglas framework, summary judgment is ordinarily inappropr iate.
Reeves , 530 U.S. at 148. Here Howard has proffered the following evidence of discrimination: Written and verbal comments were made by Pope that Howard should “check into her Social Security benefits.” Pope commented abou t checking the availability of nine “entry level jobs” to which Howard could have been but was not reassigned. There was also reference to the feasibility of allo wing Howard to either have someone else assume her mopping duties or allowing her to use a lighter mop. This evidence is circumstantial and does not prove an “existing policy which itself constitutes discrimination.” Stone , 210 F.3d at 1136. Accordingly, the question whether summary judgment was appropriate i n Howard’s case must be answered using the three-step burden shifting frame work of McDonnell Douglas

. Danville, 292 F.3d at 1249. This evidence, Howard argues, supports a finding of age discrimination in-7-

two ways. First, she says that the Defendant had a n informal policy of accommodating workers who were injured on the job b ut Defendant did not give Howard the benefit of that policy because of her ag e by either allowing her to use a lighter mop, reassigning to someone else her mopp ing duties, or reassigning her to another job. Second, Howard argues that she was ultimately fired because of her age. These arguments, however, are merely two sides of the same coin and unnecessarily bifurcate what is essentially a singl e claim of alleged age discrimination: that Howard was fired because of he r age. Howard’s first theory of discrimination is that she was denied a customary term of her employment when the Defendant failed to follow its informal custom of accommodating workers injured on the job. The a ctual injury, however, that Howard suffered as a result of this violation was h er termination. In other words, this is not a case where the injury is the violatio n of a term of employment itself, e.g., where the plaintiff is denied vacation time c ustomarily given to all employees as part of the terms of their employment but denied to older workers, Finnegan v. Trans World Airlines , 967 F.2d 1161, 1162 (7th Cir. 1992), but rather a case where the employee was fired on grounds thatviolated the terms of his or her employment. Therefore, the essence of Howard’s claim is that she was fired because of her age and her two theories coalesce in to one. That is not to say, however, that Howard’s allegations that the Defendant failed to give her the-8-

benefit of its informal policy of accommodating inj ured workers are irrelevant to our analysis. Rather, this theory is properly anal yzed under the third part of the McDonnell Douglas burden shifting framework. If we assume that Howard has satisfied the first part of the McDonnell Douglas framework and established a prima facie case of age discrimination in her termination, the burden would then shift to the Defendant to articulate a nondiscriminatory justification for its decision to te rminate Howard’s employment. In this case, the Defendant’s proffered justificati on is that Howard was fired because she was unable to perform her duties as jan itor. The burden would then shift back to Howard to show this justification is a pretext. She could satisfy this burden by showing the duties she was asked to perfo rm were not necessary functions of her position, i.e., the duties could h ave been reassigned to someone else, or that she could in fact have performed her duties, i.e., she could mop if allowed to use a lighter mop. Therefore, her assertions that the Defendant failed to give her the benefit of its policy of accommodat ing workers is not an independent theory of liability, but rather a rebuttal to the Defendant’s assertion that Howard was fired because she could not performthe necessary duties of her job. This is essentially how the district court analyzed Howard’s claim when it granted the Defendant summary judgment. The distri ct court assumed that-9-

Howard had established a prima facie case of age di scrimination. The judge found, however, that the Defendant had articulated a nondiscriminatory reason for its employment actions and that Howard had not adva nced sufficient evidence to show this reason to be a pretext. Accordingly, the district court concluded that Howard had failed to satisfy her burden under the t hird step of the McDonnell Douglas framework and, therefore, her ADEA claim could notsurvive summary judgment. We, however, do not need to delve so deeply into th e McDonnell Douglas analysis to affirm the grant of summary judgment fo r the Defendants because we find Howard has failed to establish a prima facie c ase of age discrimination. As noted above, the first step of McDonnell Douglas analysis requires the plaintiff to establish a prima facie case of discrimination. 41 1 U.S. at 802. To establish a prima facie case of age discrimination, the plainti ff must show: “(1) that plaintiff belongs to a protected class; (2) that he suffered an adverse employment action; and (3) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Hysten v. Burlington Northern & Santa Fe Railroad, 296 F.3d 1177, 1181 (10th Cir. 2002). “The real question . . . is whether a plaintiff has shown actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion il legal under the Act.” Id.2 We have held that the fourth element of the prima f acie case of age discrimination is that the position the plaintiff h eld or sought was filled “by a younger person.” McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). However, “[c]ollapsing the four-part p rima facie case of McDonnell Douglas into a three-part test may occasionally be helpful when addressing discrimination claims that either do not fall into any of the traditional categories, e.g. hiring or discharge or present unusual circums tances.” Kendrick v. Penske Transportation Services, Inc. , 220 F.3d 1220, 1227 n.6 (10th Cir. 2000). We giv e Howard the benefit of a liberal interpretation of t he elements of a prima facie case of age discrimination. -10- (internal quotation marks omitted). 2 Howard points to two pieces of evidence in support of her prima facie case of discrimination: the comment by Pope to “check in to her Social Security benefits,” and also more favorable treatment of sim ilarly situated employees, i.e., other younger employees were accommodated after suf fering workplace injuries. Neither of these, however, is sufficient to establi sh “circumstances giving rise to an inference of discrimination.” Pope’s comments to Howard to “check into her Social Security benefits” is insufficient to raise an inference of discriminatio n for two reasons. First, the comment was made after the decision was reached to terminate Howard. Appellant App. at 94. Thus, Howard failed to show the requisite nexus between the comment and the Defendant’s decision to terminate her employment. Cone v. Longmont United Hospital Ass’n , 14 F.3d 526, 531 (10th Cir. 1994). These facts are distinguishable from Danville v. Regional Lab Corp. , 292 F.3d 1246, 12513 Pope made the comment “Why don’t you check into yo ur Social Security

benefits,” on the day that Howard came back to pickup her termination letter. Appellant Br. at 7, 17. In that letter, Pope also w rote: “I am sure your attorney can help you with applying for Social Security bene fits, and I will be happy to assist you with the Amarr LTD [Long Term Disability ] plan.” Appellant App. at 100, 101-02. -11- (10th Cir. 2002), where we held an analogous comment to be sufficient when it was made during the meeting where the challenged employment action was taken. Second, the comment is “too abstract . . . to suppo rt a finding of age discrimination[.]” Id. It is unclear whether Pope was even referring to So cial Security retirement benefits at all; the context su rrounding his comments suggest he could just as easily have been referring to Soci al Security disabilitybenefits. 3 In any event, Howard has not produced any other evi dence that her termination was related to her potential eligibility for such b enefits. In sum, Pope’s comments are too isolated, too unrelated, and too ambiguous “to show discriminatory animus.” Cone , 14 F.3d at 531. Similarly, Howard’s assertion that other younger employees were accommodated after suffering workplace injuries is insufficient to support an inference of discrimination. In support of this as sertion, Howard proffers only the testimony of Laurence Randel who testified thathe had seen some employees “moved around because they could not do the job the y were on,” Appellant App. at 67, and employment records that show that of 72 employees who suffered-12-

workplace injuries, only two were discharged, id. at 84-89. This evidence, however, is insufficient to show age discriminationbecause it fails to “eliminat[e] nondiscriminatory explanations for the disparate tr eatment by showing disparate treatment between comparable individuals.” Fallis v. Kerr-McGee Corp. , 944 F.2d 743, 746 (10th Cir. 1991). Evidence tending to show disparate treatment by an employer toward a protected class is relevant only if it based upon “ comparative analysis of similarly situated individuals.” Cone , 14 F.3d at 532. Here Howard presents no details on who Randel observed being “moved around.” Similarl y, Howard presents no details on the 70 employees who suffered workplace injuries but were not fired. Specifically, Howard does not present evidence as t o what injuries those individuals may or may not have suffered, what qual ifications they had, what jobs they held, or what age they were. Therefore, Howard’s evidence fails to establish that similarly situated younger employees were treated differently from hertreatment. In other words, this evidence fails to establish “circumstances giv ing rise to an inference of discrimination.” Accordingly, Howard has failed to establish even a prima facie case of age discrimination and summary judgment forthe Defendant on Howard’s ADEA claim was appropriate.-13- B The FMLA claim “The Family and Medical Leave Act authorizes qualif ied employees to take leave from their jobs in certain circumstances.” Brockman v. Wyoming Dep’t of Family Servs. , 342 F.3d 1159, 1164 (10th Cir. 2003); 29 U.S.C. § 2612 (2004). Moreover, “the FMLA prohibits an employer from inte rfering with the exercise or attempt to exercise any right provided by the FMLA. ” Tate v. Farmland Indus.,
Inc. , 268 F.3d 989, 997 n.11 (10th Cir. 2001). In this case, Howard alleges that her rights under the FMLA were violated when the De fendant failed to provide her with notice of her right to take leave under th e FMLA when she was fired. It is uncontested, however, that Howard received a sum mary of her FMLA rights in her employee handbook. Appellee’s Supp. App. at 12 . Therefore, Howard is not alleging that the Defendant failed to fulfill the F MLA’s notice requirement, which obligates employers to “post and keep posted, . . . excerpts from, or summaries of, the pertinent provisions of [the FMLA] and informat ion pertaining to the filing of a charge.” 29 U.S.C. § 2619. Rather, Howard allege s that her FMLA rights were interfered with, in violation of 29 U.S.C. § 2615(a )(1), when she was not specifically informed of her right to take FMLA leave. An employer, however, is obligated under § 2615(a) to specifically inform an employee of his or her right to FMLA leave only when the “employer is on-14-

notice that the employee might qualify for FMLA benefits . . . .” Tate , 268 F.3d at 997 (emphasis added). At a minimum, this requir es that the employer be on notice that the employee wants leave. This notice can arise from verbal notification from the employee, see, e.g., 29 C.F.R. § 825.302(c) (“An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the antic ipated timing and duration of the leave.”) It could also be inferred from an e mployer’s own act of placing the employee on sick leave, Tate , 268 F.3d at 998 (“Given Plaintiff's allegation th at Defendant placed him on sick leave, Plaintiff need not allege that he provided Defendant with notice of his rights under the FMLA” ). Here the record indicates that Howard, at the time she claims the Defendant should have notified her of her rights under the FM LA, did not want to take any time off of work. Appellee’s Supp. App. at 11-12. Howard has subsequently stated, by affidavit attached to her memorandum in opposition to the motion for summary judgment, that she “was never offered, or s poken to about leave pursuant to the [FMLA].” Appellant App. at 81. Further, she claims: “had I been offered the 12 weeks’ unpaid leave pursuant to the FMLA, on or about January 20, 1999, I would have taken such leave to assist i n my rehabilitation so that I could return to work rather than be terminated.” Id

. The district court found that this affidavit contra dicted Howard’s earlier-15-

deposition testimony and further that “the court ca n find no evidence in the record that Plaintiff actually requested or gave Defendantany other indication that she wanted to take leave on January 21, 1999.” Howard, 197 F. Supp.2d at 1309. Thus the court concluded that Howard’s affidavit wa s merely an attempt to create a “sham fact issue” and was therefore insufficient to preclude summary judgment. Id (citing Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986). We have held that to determine whether an affidavitseeks to create a sham fact issue, we should consider three factors, “whether: (1) the affiant was crossexamined during his earlier testimony; (2) the affi ant had access to the pertinent evidence at the time of his earlier testimony or wh ether the affidavit was based on newly discovered evidence; and (3) the earlier test imony reflects confusion which the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 973 (10th Cir. 2001). Howard argues thather affidavit “does not contradict her deposition testimony, since she was never specifically asked in her deposition whether she would have taken the 12 week s of unpaid leave under the FMLA, if it had been offered to her.” Appellant’s R eply Br. at 11. Howard therefore argues that her affidavit attempts to “explain” the “confusion” arising out of her earlier testimony. Even if we accept Howard’s affidavit, it does not d emonstrate that her4 Whether Howard was eligible for FMLA protections wa s not addressed by

the district court or either party, and we need notaddress it here. We note, though, that the FMLA affords employees the right t o take time off “[b]ecause of a serious health condition that makes the employee unable to perform the functions of such employee.” 29 U.S.C. §2612(a)(1)( D). “Serious health condition” has been defined as either inpatient car e or three consecutive days of incapacity followed by continuing treatment by a he alth care provider. 29 C.F.R. §825.114(a). In this case, Howard took a total of 4 0 non-consecutive days off, but there is no evidence either of inpatient treatment or of any period of three consecutive days off followed by continuing treatme nt. -16- employer was “on notice” that she desired or was ev en eligible 4 for such leave. Hoffman did take a total of 40 non-consecutive days off work from the date of her injury to the date of her termination. Appellee Ap p. at 11 (Howard Dep. at 37). But at the time of her termination, she was not on leave, nor had she asked for leave. Id at 11-12. Defendant was under no obligation to sp ecifically inform Howard of her right to FMLA leave and did not inter fere with Howard’s rights when it failed to do so. Accordingly, summary judg ment for the Defendant on this claim is appropriate.
III Conclusion Accordingly, we hold that Howard has failed to esta blish a prima facie case of age discrimination and therefore AFFIRM the grant of summary judgment for the Defendant as to the ADEA claim. We also hold t hat Howard has failed to establish that her rights under the FMLA were violated and therefore AFFIRM the-17-

grant of summary judgment for the Defendant as to t hat claim.

ENTERED FOR THE COURT
William J. Holloway, Jr. Circuit Judge