PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

JUDY F. JONES,

 Plaintiff–Appellant,

v.

OKLAHOMA CITY PUBLIC 

SCHOOLS, INDEPENDENT SCHOOL 

DISTRICT NO. 89 OF OKLAHOMA 

CITY, OKLAHOMA, 

Defendant–Appellee. 

________________________________ 

U.S. EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION, 

Amicus Curiae. 

No. 09-6108

 

Appeal from the United States District Court 

 for the Western District of Oklahoma 

(D.C. No. 5:08-CV-00562-C)

 

Scott F. Brockman (Stanley M. Ward and Woodrow K. Glass with him on the briefs), 

Ward & Glass, LLP, Norman, Oklahoma, for the Plaintiff–Appellant. 

Laura L. Holmes, The Center for Education Law, Inc., Oklahoma City, Oklahoma, for the 

Defendant–Appellee. 

James M. Tucker, James L. Lee, Carolyn L. Wheeler, and Vincent Blackwood filed a 

brief on behalf of amicus curiae, U.S. Equal Employment Opportunity Commission, in 

support of Appellant. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 24, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges. 

LUCERO, Circuit Judge. 

 

Judy F. Jones appeals from the district court’s grant of summary judgment in favor 

of her employer, Oklahoma City Public Schools (“OKC”), dismissing her claim of 

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 

U.S.C. § 621, et seq. Although the district court found that Jones produced sufficient 

evidence to establish a prima facie case of discrimination and submitted evidence to show 

that OKC’s proffered explanations for her demotion were pretextual, the court granted 

summary judgment to OKC on the ground that no reasonable juror could find that OKC 

had committed age discrimination. Because we conclude that the district court engaged 

in a “pretext plus” analysis in rendering its decision, we reverse. 

I 

Jones began working for OKC as a teacher in 1969. She then served as a principal 

of an elementary school for approximately fifteen years. In 2002, Jones was promoted to 

Executive Director of Curriculum and Instruction. Colleagues evaluated Jones’ 

performance in this position as satisfactory or better. For the 2006-2007 fiscal year, 

Jones’ negotiated salary was $98,270, with a daily pay rate of $396.25 per day. 

 In July 2006, Linda Brown became OKC’s interim superintendant. Brown altered 

OKC protocol such that Jones reported first to Manny Soto and later to Linda Toure, two 

of OKC’s five executive directors in charge of schools and support services. Over the 

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course of the next year, both Soto and Toure asked Jones when she was going to retire. 

On one occasion, Brown also questioned Jones about her retirement plans. 

OKC eventually hired John Porter as its permanent superintendant in spring 2007. 

Porter was to start full-time work in July 2007, but was employed as a consultant during 

the months of May and June. According to Porter, he and Brown “worked closely” 

during this period “to ensure a smooth transition into the position of Superintendant.” 

After reviewing the district’s organizational chart, Porter determined that OKC’s 

executive team should be reorganized. In particular, he decided that Jones’ position 

could be eliminated and its duties absorbed by other directors. This elimination would 

allow Porter to reorganize the district’s administration in a budget-neutral manner. Porter 

directed Michael Shanahan, OKC’s senior human resources officer, to notify Jones that 

her position would be eliminated and she would be reassigned as an elementary school 

principal. Brown was present during this exchange, but averred that she did not have any 

input into Porter’s decision. 

 Jones met with Shanahan in early June 2007. Shanahan communicated Porter’s 

orders and informed Jones that her salary would stay the same for the ensuing school year 

only.1

 Jones asked Shanahan who made the decision to demote her, and Shanahan 

responded that it was Brown and Porter. Shanahan subsequently stated that four other 

executive directors were involved in the reassignment decision. Scott Randall, OKC’s 

senior finance officer, later told Jones that she was the only director the administration 

 1

 Shanahan also told Jones that she could apply for other open positions. Jones 

declined to apply for these positions because doing so would require her to apply to “the 

very people” who made the decision to eliminate her former position. 

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had “gone after.” Randall also stated that if Porter was transferring Jones for financial or 

budgetary reasons, Porter would have “run” it by him.

 After her reassignment and during her first year of employment as an elementary 

school principal, Jones retained her previous salary level. Her vacation benefits, 

however, were affected immediately. After Jones completed her first year as principal, 

her salary was decreased by approximately $17,000. This pay cut had the effect of 

reducing her retirement benefits. Jones’ daily pay rate was also reduced by roughly five 

dollars per day.

 One month after Jones’ reassignment, Porter decided to create a new OKC 

executive position, Executive Director of Teaching and Learning. The job description 

and responsibilities for this position were quite similar to those of Jones’ former position 

of Executive Director of Curriculum and Instruction. Both positions required a master’s 

degree in curriculum and instruction, and the job responsibilities for both positions 

included oversight of programs designed to improve teacher instruction and curricular 

development. OKC filled this new position with an individual who was forty-seven years 

of age. At the time of Jones’ reassignment, she was nearly sixty years old. 

 In May 2008, Jones filed suit in the District Court for the Western District of 

Oklahoma alleging OKC violated the ADEA when it demoted her to the position of 

elementary school principal.2

 OKC filed a motion for summary judgment, denying that 

 2

 Jones also alleged wrongful discharge in violation of the Oklahoma AntiDiscrimination Act, Okla. Stat. tit. 25, § 1101, et seq., but conceded below that this claim 

should be dismissed. 

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Jones was demoted and arguing, in the alternative, that if Jones had suffered an adverse 

employment action it was due exclusively to the elimination of her former position. 

Analyzing Jones’ claims under the traditional McDonnell Douglas3

 framework, 

the district court concluded that Jones had established a prima facie case of age 

discrimination. The court determined that Jones suffered an adverse employment action 

because her transfer resulted in an immediate reduction in her vacation pay, retirement 

benefits, and the prestige of her position. Proceeding to the next step of the McDonnell 

Douglas analysis, the district court concluded that OKC met its burden of offering 

legitimate, nondiscriminatory reasons for its actions: (1) Porter decided to create a new 

deputy superintendant position in a revenue-neutral manner; and (2) Jones’ position was 

eliminated to fund the new position. The court held that this evidence was sufficient to 

shift the burden back to Jones to demonstrate that OKC’s reasons for her reassignment 

were pretextual. 

In response, Jones noted that funding for her previous position stayed on the books 

for the 2007-2008 fiscal year, and staff in her former department continued working in 

that department before and after the position of Executive Director of Teaching and 

Learning was created. Moreover, Jones stressed the similarities between her previous 

position and the new position created just after her demotion. She also stated under oath 

that fellow OKC directors, including Brown, made age-related comments regarding her 

retirement plans and that these comments occurred outside of the context of a normal 

 3

 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As discussed infra, 

McDonnell Douglas allows plaintiffs to prove age discrimination using a three-step, 

burden-shifting method of proof. 

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course of conversation. Viewing the evidence in the light most favorable to Jones, the 

district court determined that a reasonable factfinder could conclude that OKC’s 

proffered reasons for Jones’ reassignment were inconsistent or unworthy of belief.

 Quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000), 

however, the court reasoned: “[T]here will be instances where, although the plaintiff has 

established a prima facie case and set forth sufficient evidence to reject the defendant’s 

explanation, no rational factfinder could conclude that the action was discriminatory.” 

According to the district court, Jones’ case fell within this exception. Her evidence for 

pretext was not “particularly strong” and “a reasonable juror could very well find no 

inconsistencies in [OKC’s] position.” Although the court acknowledged that OKC 

leadership had made age-related comments, it faulted Jones for not providing any 

“additional evidence” to show that age played a role in the reassignment decision. As a 

result, the district court granted summary judgment in favor of OKC. This appeal 

followed. 

II 

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

same legal standard used by the lower court. McKenzie v. Dovala, 242 F.3d 967, 969 

(10th Cir. 2001). Summary judgment is proper only if “there is no genuine issue as to 

any material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c). “We examine the factual record and reasonable inferences therefrom in the 

light most favorable to [Jones], who opposed summary judgment.” Thomas v. Int’l Bus.

Machs., 48 F.3d 478, 484 (10th Cir. 1995). 

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A 

1 

Before reaching the merits of parties’ arguments, we must first determine whether 

the Supreme Court’s holding in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 

(2009), decided after the district court issued its summary judgment order, affects our 

analysis on appeal. OKC argues that Gross compels dismissal of Jones’ claim because it 

requires an ADEA plaintiff to provide some evidence that her employer was motivated 

solely by age when making an adverse employment decision.4

 

 OKC’s argument is flawed on several levels, but we need address only one: It 

conflates two separate standards for causation. The ADEA, like other anti-discrimination 

statutes, includes a causation requirement. It prohibits employers from “discriminat[ing] 

against any individual with respect to his compensation, terms, conditions, or privileges 

of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis 

added). The statute, however, does not define the phrase “because of,” and before Gross, 

it was unclear which causal standard applied. Gross clarified that the ADEA requires 

“but-for” causation. 129 S. Ct. at 2351. Consequently, to succeed on a claim of age 

discrimination, a plaintiff must prove by a preponderance of the evidence that her 

employer would not have taken the challenged action but for the plaintiff’s age. Id. 

 4

 “Although this argument was not raised below, inasmuch as [Gross] was decided 

after [Jones] filed her notice of appeal, we may consider changes in governing law arising 

during the pendency of the appeal.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 

1222 (10th Cir. 1996).

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OKC argues that in mandating but-for causation, Gross established that “age must have 

been the only factor” in the employer’s decision-making process. 

We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for 

causation to hold an employer liable under the ADEA. See EEOC v. Prudential Fed. Sav. 

& Loan Ass’n, 763 F.2d 1166, 1170 (10th Cir. 1985) (quoting Perrell v. Financeamerica 

Corp., 726 F.2d 654, 656 (10th Cir. 1984)). Moreover, we have concluded that this 

causal standard does “not require[] [plaintiffs] to show that age was the sole motivating 

factor in the employment decision.” Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th 

Cir. 2010) (quotations omitted). Instead, an employer may be held liable under the 

ADEA if other factors contributed to its taking an adverse action, as long as “age was the 

factor that made a difference.” Id.; accord Hazen Paper Co. v. Biggins, 507 U.S. 604, 

610 (1993) (requiring an ADEA plaintiff to show that age had a “determinative influence 

on the outcome” of her employer’s decision-making process). Gross does not hold 

otherwise. Accordingly, Gross does not disturb longstanding Tenth Circuit precedent by 

placing a heightened evidentiary requirement on ADEA plaintiffs to prove that age was 

the sole cause of the adverse employment action. 

2 

A more nuanced question is whether Gross rendered the McDonnell Douglas

framework of proving discrimination inapplicable to claims brought pursuant to the 

ADEA. Under McDonnell Douglas, a plaintiff may survive summary judgment by 

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providing circumstantial rather than direct evidence of discrimination. See 411 U.S. at 

802-04. To do so, the plaintiff must first demonstrate a prima facie case of unlawful 

discrimination. Id. at 802. If she succeeds at this first stage, the burden of production 

then shifts to the employer to identify a legitimate, nondiscriminatory reason for the 

adverse employment action. Id. Once the employer advances such a reason, the burden 

shifts back to the plaintiff to prove the employer’s proffered reason was pretextual. See

Reeves, 530 U.S. at 143. 

This circuit has long held that plaintiffs may use the McDonnell Douglas threestep analysis to prove age discrimination under the ADEA. See Danville v. Reg’l Lab 

Corp., 292 F.3d 1246, 1249 (10th Cir. 2002); Ellis v. United Airlines, Inc., 73 F.3d 999, 

1004 (10th Cir. 1996). We will not overrule our prior decisions applying this framework 

to ADEA claims unless those decisions are in conflict with Gross. See United States v. 

Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000) (“Under the doctrine of stare decisis, 

this panel cannot overturn the decision of another panel of this court barring en banc 

reconsideration, a superseding contrary Supreme Court decision, or authorization of all 

currently active judges on the court.” (quotation and citation omitted)). 

But rather than barring our use of the McDonnell Douglas paradigm, Gross

expressly left open the question of “whether the evidentiary framework of [McDonnell

Douglas], utilized in Title VII cases[,] is appropriate in the ADEA context.” Gross, 129 

S. Ct. at 2349 n. 2; see also Reeves, 530 U.S. at 142 (2000) (applying McDonnell

Douglas to an ADEA claim “[b]ecause the parties do not dispute the issue”). Gross

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accordingly does not overturn circuit precedent applying McDonnell Douglas to ADEA 

cases. 

Moreover, the rule articulated in Gross has no logical effect on the application of 

McDonnell Douglas to age discrimination claims. Gross held that “the burden of 

persuasion [n]ever shifts to the party defending an alleged mixed-motives discrimination 

claim brought under the ADEA.” 129 S. Ct. at 2348. McDonnell Douglas, however, does 

not shift the burden of persuasion from the plaintiff to the defendant. Rather, it shifts 

only the burden of production. Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 

1135 (10th Cir. 2003). Throughout the three-step process, “[t]he plaintiff . . . carries the 

full burden of persuasion to show that the defendant discriminated on [an] illegal basis.” 

Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1125 (10th Cir. 2005). 

Although we recognize that Gross created some uncertainty regarding burdenshifting in the ADEA context, we conclude that it does not preclude our continued 

application of McDonnell Douglas to ADEA claims. See Phillips v. Pepsi Bottling 

Group, No. 08-1003, 2010 WL 1619259, at *3 (10th Cir. Apr. 22, 2010) (unpublished) 

(“[Gross] did not overrule circuit precedents in which we have consistently employed the 

[McDonnell Douglas] burden-shifting framework in ADEA cases.”). While Phillips is 

not precedential, see 10th Cir. R. 32.1, we agree with its reasoning and join all of our 

sibling circuits that have addressed this issue. See Jackson v. Cal-Western Packaging 

Corp., 602 F.3d 374, 378 (5th Cir. 2010); Gorzynski v. Jetblue Airways Corp., 596 F.3d 

93, 106 (2d Cir. 2010); Smith v. City of Allentown, 589 F.3d 684, 690-91 (3d Cir. 2009);

Velez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009); Geiger 

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v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009);see also Martino v. MCI Commc’ns 

Servs., Inc., 574 F.3d 447, 452 (7th Cir. 2009) (applying McDonnell Douglas without 

discussion of Gross); Bodkin v. Town of Strasburg, No. 09-2167, 2010 WL 2640461, at 

*2 (4th Cir. June 29, 2010) (unpublished) (same). 

B 

Having concluded that McDonnell Douglas applies to ADEA claims, we must 

now address the issue of whether Jones demonstrated a prima facie case of age 

discrimination. To prove a prima facie case of age discrimination, a plaintiff must show: 

“1) she is a member of the class protected by the [ADEA]; 2) she suffered an adverse 

employment action; 3) she was qualified for the position at issue; and 4) she was treated 

less favorably than others not in the protected class.” Sanchez v. Denver Pub. Schs., 164 

F.3d 527, 531 (10th Cir. 1998). The parties do not dispute that Jones demonstrated she 

was a member of the class protected by the ADEA, that she was qualified for her former 

position, and that she was treated less favorably than others not in the protected class.5

 

OKC argues, however, that Jones did not suffer an adverse employment action because 

she remained employed in a position with similar responsibilities and received a daily 

pay rate that was “almost exactly the same” as her per diem rate as an executive director. 

 5

 OKC does obliquely reference the “undisputed” fact that, during his tenure as 

superintendant, Porter promoted and employed several persons over the age of forty. 

However, OKC makes this reference in an effort to counter Jones’ assertions that she was 

demoted. OKC does not debate Jones’ ability to satisfy the fourth factor of the prima 

facie test and has therefore has waived any argument to that effect. See Jordan v. Bowen, 

808 F.2d 733, 736 (10th Cir. 1987) (“[Parties] who fail to argue [an] issue in their brief 

are deemed to have waived [that] contention on appeal.”). 

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 “The Tenth Circuit liberally defines the phrase ‘adverse employment action.’ 

Such actions are not simply limited to monetary losses in the form of wages or benefits. 

Instead, we take a ‘case-by-case approach,’ examining the unique factors relevant to the 

situation at hand.” Sanchez, 164 F.3d at 532 (citations omitted). Although we do not 

deem “a mere inconvenience or an alteration of job responsibilities to be an adverse 

employment action,” id. (quotation omitted), the prong is satisfied by a “significant 

change in employment status, such as hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision causing a significant change in 

benefits,” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir. 2004) (quoting 

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). 

Under the facts of this case, the district court correctly determined that Jones 

suffered an adverse employment action. Jones’ reassignment letter specifically stated 

that her salary level would remain the same for the ensuing school year only, and Jones 

suffered a $17,000 decrease in salary the following year. Her vacation benefits were 

reduced immediately upon reassignment, and her retirement benefits were reduced the 

following year. Although OKC argues that Jones did not experience a demotion, she 

certainly lost professional prestige and fell to a lower position in the district’s 

organizational hierarchy. Also, OKC’s argument that a five-dollar reduction in daily pay 

is not sufficient to constitute an adverse employment action is simply incorrect. All told, 

the record in this case conclusively shows that Jones suffered an adverse employment 

action and proved a prima facie case of age discrimination. 

C 

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 We thus consider the ultimate question of whether OKC was entitled to summary 

judgment. Despite holding that Jones established a prima facie case of discrimination 

and demonstrated that OKC’s proffered reasons for her reassignment were pretextual, the 

district court granted OKC’s motion for summary judgment. It concluded that Jones’ 

claim fell within the exception outlined in Reeves because, “even when the evidence is 

viewed in the light most favorable to [Jones], no reasonable juror could find that [OKC’s] 

decision to reassign her was based on her age.” Jones argues that this determination 

constitutes reversible error because the rare conditions necessary to establish the Reeves

exception are not present in this case. We agree. 

In Reeves, the Supreme Court rejected the so-called “pretext plus” standard that 

required plaintiffs using the McDonnell Douglas framework to both show pretext and 

produce “additional evidence of discrimination” in order to avoid summary judgment. Id.

at 146-48. Reeves expressly held that “a plaintiff’s prima facie case [of discrimination], 

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 unlawfully 

discriminated.” Id. at 148. No additional evidence is necessary to show discrimination 

because “[p]roof that the defendant’s explanation is unworthy of credence is simply one 

form of circumstantial evidence that is probative of intentional discrimination.” Id. at 

147. 

 Consistent with Reeves, the Tenth Circuit has “definitively rejected a ‘pretext 

plus’ standard.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1168 (10th 

Cir. 2007). Consequently, “once a plaintiff presents evidence sufficient to create a 

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genuine factual dispute regarding the veracity of a defendant’s nondiscriminatory reason, 

we presume the jury could infer that the employer acted for a discriminatory reason and 

must deny summary judgment.” Bryant, 432 F.3d at 1125. A plaintiff produces 

sufficient evidence of pretext when she shows “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.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005). When 

evaluating the sufficiency this evidence, we look to several factors, “includ[ing] the 

strength of the [employee’s] prima facie case, the probative value of the proof that the 

employer’s explanation is false, and any other evidence that supports the employer’s case 

and that properly may be considered” on a motion for summary judgment. Reeves, 530 

U.S. at 148-49. 

OKC proffered two legitimate reasons for Jones’ reassignment: Porter’s desire to 

undertake a reorganization of OKC’s executive team in a revenue-neutral fashion and his 

belief that Jones’ former position contained only narrow duties that could be absorbed by 

other directors. With respect to Porter’s first goal, Jones produced evidence that her 

former position stayed on the books for the 2007-2008 fiscal year and that staff in her 

department remained employed in the same positions after her transfer. Further, Randall 

told Jones that if her transfer was actually motivated by budgetary reasons, Porter would 

have “run” it by him. Similarly, Randall attested to the fact that OKC could have easily 

taken Jones’ former position off the books if it so desired.

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Second, Jones presented evidence that a new position, Executive Director of 

Teaching and Learning, was created shortly after her transfer. As noted supra, this 

position’s job responsibilities were strikingly similar to those of Jones’ former position as 

Executive Director of Curriculum and Instruction. Although OKC argues that the new 

position entailed more responsibility, it also admits that the position reabsorbed many of 

the same duties of Jones’ former position and was filled by someone thirteen years Jones’ 

junior. Together, this evidence was sufficient to satisfy McDonnell Douglas’s third step, 

and the district court’s grant of summary judgment was therefore improper.

In reversing the district court, we recognize that Reeves carved out a narrow 

exception to our general rule against a “pretext plus” requirement. Under Reeves, “there 

will be instances where, although the plaintiff has established a prima facie case and set 

forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could 

conclude that the action was discriminatory.” 530 U.S. at 148. For example, an 

employer would be entitled to summary judgment “if the record conclusively revealed 

some other, nondiscriminatory reason for the employer’s decision, or if the plaintiff 

created only a weak issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evidence that no discrimination had 

occurred.” Id. (emphasis added).

But the Reeves exception does not apply here. In reasoning that Jones generated 

only a weak question of fact regarding whether OKC’s proffered reasons were pretextual, 

the district court improperly favored OKC’s version of the facts. It stated, for instance, 

that “[o]f the persons who [inquired into Jones’ retirement plans], only one, Ms. Brown, 

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was even arguably involved in the reassignment decision, but [OKC] strongly argues she 

had no role in the decision process.” After noting that “Brown’s own testimony clearly 

states that the decision regarding [Jones’] reassignment was made by . . . Porter,” the 

court concluded that Jones’ “lack of evidence from which a reasonable jury could find 

discrimination . . . place[d] [her] case squarely within the contours of the Reeves

exception.” 

However, the district court was required to view the facts in the light most 

favorable to Jones. See Thomas, 48 F.3d at 484. Accordingly, it should have credited 

Shanahan’s statement that four other directors were involved in the decision to reassign 

Jones. Properly considered at the summary judgment stage, Jones’ evidence of 

discrimination therefore included age-related comments by three executive directors, all 

involved in the reassignment decision.6

 Finally, even if we were to assume that Jones 

“created only a weak issue of fact as to whether [OKC’s] reason was untrue,” the 

corollary “abundant and uncontroverted independent evidence that no discrimination had 

occurred” did not exist in this record. Reeves, 530 U.S. at 148. 

Rather than properly applying Reeves, the district court erroneously held Jones to 

the discredited “pretext plus” standard. The court faulted Jones for not presenting 

“additional evidence” that age was a determining factor in her reassignment. But after 

 6

 At the time of the decision to transfer Jones, OKC employed five executive 

directors (including Jones). Two of these directors had made comments concerning 

Jones’ retirement plans: Linda Toure and DeAnn Davis. As previously noted, Toure 

questioned Jones at least once about when she was going to retire. Also, Davis asked 

Jones on two occasions when she was going to retire. A witness to one of these 

occasions interpreted Davis’ questions as “indicating that things would be better if Dr. 

Jones would go ahead and retire and that she really ought to consider retiring.” 

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showing that OKC’s reasons for her transfer were pretextual, Jones was under no 

obligation to provide additional evidence of age discrimination. See Reeves, 530 U.S. at 

147; accord Swackhammer, 493 F.3d at 1168. Accordingly, because we agree with Jones 

that the rare conditions necessary to satisfy the Reeves exception are not present, we 

REVERSE the district court’s grant of summary judgment and REMAND for further 

proceedings.

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