UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RAYMOND MONTOYA, Plaintiff - Appellant,

v. JACOBS TECHNOLOGY, INC., Defendant - Appellee. No. 18-2098 (D.C. No. 2:17-CV -00081-WJ-SMV) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ Raymond Montoya appeals from the district court’s order grantin g summary judgment in favor of his former e mployer, Jacobs Technology, In c. (Jacobs), on his claim for age discrimination. E xercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

### April 9, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Montoya began working for Jac obs in 1995. From at least 2011 u ntil he was terminated at age 49 in July 2 015, Montoya worked as a systems test mechanical technician. At all relevant t imes, Montoya reported to Dennis Smith. The event giving rise to Montoy a’s termination took place on J uly 10, 2015, when Smith learned that Montoya a nd another Jacobs employee, Lo uis Lombardi, had been involved in a workplace incident. Montoya needed to b orrow a work truck from Lombardi, and Lombardi agreed to lend him the truck. But before Montoya could get into the vehicle, Lomba rdi decided that he should che ck with Montoya’s team lead before turning over th e truck. Lombardi told Montoya to wait while he obtained authorization and drove off to check with Montoya’s su pervisor. When Lombardi returned, he sa w Montoya standing in the middle of the road, facing the passenger side of the truck. According to Montoya, Lombardi deliberately drove the truck at him, hitting the left side of his body. Lombardi, on the other hand, said that as he was trying to s lowly maneuver the truck around Montoya, Montoya reached out and shoved the truckor hit it with his arms. Ther e is no dispute that Lombardi then got out of the truc k and the two men exchanged wo rds. Next, Montoya and Lombardi went to Smith’s office to report the incident. Smith was not in, so Montoya c ontacted him by telephone. Afterlistening to Montoya’s account, Smith told Mont oya to go to the on-site disp ensary for treatment. The dispensary found no serious inj uries, but nonetheless refer red Montoya to the3 hospital, where he complained o f bruising on his left arm and l eg. The hospital released him with no restrictions. Later the same day, Jacobs’s Hum an Resources Manager, Yolanda R amos, met with Montoya, Lombardi, and two ot her men who had been at the s cene. The two men told Ramos they had not seen what happened. Ramos, who was then joined by Smith, Jacobs Director Brant Ada ms, and union representative Ch ris Valdivia, interviewed Montoya a nd Lombardi. Both men were warned at the outset of their respective interviews that provi ding false or misleading inform ation could result in termination. Lombardi stated that he tried to drive the truck around Montoya , but as soon as the front of the truck passed M ontoya, Montoya reached toward t he truck and made some movement with his hands. F or his part, Montoya said that he was facing the truck and standing on the passenge r side when Lombardi sideswip ed him. The following Monday, July 13, 20 15, Ramos interviewed a third witness— Manny Saldivar—a welder who work ed for an outside company. Sal divar confirmed Lombardi’s account of the inciden t: “[Lombardi] started to go around [Montoya] with the truck and it looked to me that [Montoya] stepped forwa rd and slapped the truck with one hand a nd punched the truck w ith his other hand.” Aplt. App., Vol. 1 at 178. “I even told [a coworke r], ‘[Montoya] just punched the truck.’” Id . at 179. When asked whether the truck had struck Montoya, instead whethe r Montoya had struck the truck, Saldivar said , “I saw [Montoya] hit the vehic le.” Id . Saldivar also4 said that Montoya was “facing th e passenger door” when he hit t he truck with his hands. Id

. That same day, Ramos prepared a report that summarized the acco unts given by Montoya, Lombardi, and Saldiv ar. She recommended that Monto ya be discharged for several reasons, including hi s having provided untruthful and misleading information during the investig ation. Specifically, Ramos note d that “[w]e cannot comprehend how an individual who is facing a vehicle, states th at he is struck by the passenger side of the vehicle, y et is injured on his left thigh and his left arm.” Id . at 197-98. As to Lombardi, Ramos r ecommended that he be suspended for three days and given a written warning for violating several company rules

. Adams and Smith agreed with Ram os’s recommendations, and Adams fired Montoya. See id . at 199, 205. He relied on two f actors: (1) safety violation s, and (2) his belief that Montoya had lied. See id . at 205. Montoya sued asserting five claim s: (1) age discrimination, (2 ) disability discrimination, (3) failure to ac commodate his disability, (4) retaliation in response to his complaints of age discrim ination, and (5) retaliation in response to his complaints of disability discri mination. The district court gr anted Jacobs’s motion for summary judgment on all clai ms. Montoya appeals only the p ortion of the order dismissing his age-discrimination claim. II. STANDARD OF REVIEW “We review the district court’s grant of summary judgment de no vo, applying the same standard used by the district court.” Riggs v. AirTran Airways, Inc. ,5 497 F.3d 1108, 1114 ( 10th Cir. 2007). Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court sh all grant summary judgment if t he movant shows that there is no genuine dispute as t o any material fact and the mov ant is entitled to judgment as a matter of law.” “In making this determination, w e view the evidence in the light most favorable to . . . the non-moving party, and draw all reasonable inferences in [his] favor.” Riggs , 497 F.3d at 1114. The court resolves a motion for summary judgment in an employmen t-discrimination case the same way it would resolve “a motion for summary ju dgment in any other civil actio n: the court acts as a gatekeeper, granting judgment as a matter of law unless the pla intiff has adduced relevant and probative evidence su fficient to support a jury ve rdict in his . . . favor.” Id . at 1117. III. ANALYSIS Under the Age Discrimination in E mployment Act (ADEA), an emplo yer cannot “discharge any individual . . . because of such individu al’s age.” 29 U.S.C. § 623(a)(1). ADEA protection ex tends to individuals who are 40 years of age or older. See id . § 631(a). “[A] plaintiff sui ng under the ADEA must prove tha t the challenged employment action was motivated, at le ast in part, b y age.” Riggs , 497 F.3d at 1114. This burden may be met “either by presenting direct evidence of the employer’s discriminatory in tent or by presenting circumsta ntial evidence creating an inference of a discri minatory motive using the trip artite burden-shifting analysis” articulated in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). Riggs , 497 F.3d at 1114. burde n-shifting analysis.” Id . Because Montoya6 has no direct evidence of discrim inatory intent, h is claim mustrely on circumstantial evidence and proceed under the McDonnell Douglas framework. “Under McDonnell Douglas , the plaintiff first bear s the burden of proving a prima facie case of discrimination.” Id

. “If the plaintiff succe ssfully proves a prima facie case, the employer must ar ticulate a legitimate, nondiscr iminatory reason for the adverse employment action. Once the employer [does so], th e burden shifts back to the employee to prove that th e proffered legitimate reason w as a pretext for discrimination.” Id . at 1114-15 (citation omitted). For purposes of appeal, Jacobs assumes that Montoya could esta blish a prima facie case of age discriminati on, and Montoya concedes that Jac obs has articulated a legitimate, nondiscriminatory r eason for its decision to termin ate his employment. As a result, “[t]he employer’s ar ticulation of a legitimate, no ndiscriminatory reason for the adverse employment acti on causes the presumption of dis crimination . . . to simply drop out of the picture.” Timmerman v. U.S. Bank, N.A ., 483 F.3d 1106, 1113 (10th Cir. 2007) (brackets and in ternal quotation marks omitted ). Now, the only issue is whether Montoya met his burden to “show[] that the pro ffered reason [for his termination] is a pretext fo r illegal discrimination.” Id . (internal quotation marks omitted). We agree with the dis trict court that Montoya “faile d to carry his burden of showing that [Jacobs’s] legitima te reason for discharge was a p retext.” Aplt. App., Vol. 2 at 499. “Under our precedents, a plainti ff can establish pretext by sh owing the defendant’s proffered non-discrimi natory explanations for its a ctions are so7 incoherent, weak, inconsistent, or contradictory that a rationa l factfinder could conclude they are unw orthy of belief.” Johnson v. Weld Cty. , 594 F.3d 1202, 1211 (10th Cir. 2010) (brackets and in ternal quotation marks omitted ). “Evidence that the employer should not have made t he adverse employment decision—f or example, that the employer was mistaken or u sed poor business judgment—is notsufficient to show that the employer’s explana tion is unworthy of credibility .” Hiatt v. Colo. Seminary , 858 F.3d 1307, 1316 (10th Cir. 2017) (brackets and internal q uotation marks omitted). Thus, even if a j ury could concl ude “that [Jac obs’s] decision was intemperate and unfair,” as Mont oya alleges, “[s]uch considerat ions . . . are not within the purview o f . . . the ADEA.” Timmerman , 483 F.3d at 1120 (internal quotation marks omitted ). “[T]he issue is not whether the deci sion to terminate [Montoya] was wise, fair or corre ct, but whether [Jacobs] reaso nably believed at the time of the termination that [M ontoya] had violated company pol icy, and acted in good faith upon that belief.” Id

. Montoya argued in district cour t, and repeats in this court on appeal, that “[a] reasonable trier of fact could c onclude that Jacobs’ stated rea sons for terminating Montoya were [a pretext for age discrimination].” Aplt. Openin g Br. at 26-27. But “[t]o support an inference of p retext, . . . a pl aintiff must p roduce evidence that the employer did more than get it w rong. He or she must come forwa rd with evidence that the employer didn’t really believe its proffered reasons f or action and thus may have been pursuing a hidden discriminatory agenda.” Johnson , 594 F.3d at 1211.8 Montoya cites seven facts that h e contends raise a genuine issu e about whether Jacobs’s beliefs were sincere. None of this evidence, however, relates to the beliefs of the decision-maker Adams, or Ramos, the human-resources mana ger who conducted the investig ation and made the r ecommendation to term inate Montoya. As such, Montoya cannot satisfy h is burden to present evidence of pretext. First, Montoya argues that “incons istencies” regarding the reas on he was terminated and who made the deci sion to fire him “would allow areasonable factfinder to question the cred ibility of Jacobs ’ stated reason s.” Aplt. Opening Br. at 27. It is unclear whether M ontoya raised this argument in t he district court. Nonetheless, we agree with Jac obs that the record does not supp ort these assertions. Adams, Ramos, and Smith all disbelieved Montoya and found safet y violations. No one disputes that Adams made the final decision with input from Ramos and others. Second, while it is true that M ontoya and Lombardi gave differ ent accounts of the incident, Jacobs’s believing Lombardi does not make the dec ision insincere. “This court’s function is not t o second guess business decision s made by employers, and our inquiry is not whether [ Jacobs’s] decision to fire [Mon toya] was ultimately correct or wise.” Cillo v. City of Greenwood Vill ., 739 F.3d 451, 463 (10th Cir. 2013) (internal quotation marks omitted).9 Third, contrary to Montoya’s asse rtion, Smith did not say thatthe conclusion that Montoya lied was illogical. What Smith actually said was that walking into the truck was not a “logical” thing to do. Aplt. App., Vol. 2 at 3 28. Indeed, “based on the results of the investigati on,” including Montoya’s statemen t that he was facing the truck on its passenger side y et was stuck on his left side, the only logical conclusion Smith could reach was that Montoya had walked into t he truck. Id . at 329-30. Fourth, Montoya’s reliance on Sm ith’s and the union representa tive’s deposition testimony about never h aving had reason to question Montoya’s truthfulness avails nothing. T he union representative was not part of the decisionmaking process, and Smith’s tes timony concerned his observation s as Montoya’s supervisor, not as the decision- maker. Moreover, Smith testifi ed unequivocally that he believed that Montoya had been untruthful about the July 10, 2015 incident. Fifth, Montoya argues that Adams failed to ask him for his “si de of the story,” which demonstrates his indiffere nce. Aplt. Opening Br. at 29. This argument overlooks the fact that Adams was present when Ramos questioned Montoya and was well aware of his v ersion of events. Sixth, Montoya maintains that Lo mbardi’s more favorable treatm ent—a threeday suspension—is evidence of p retext. In this regard, he reli es on Dewitt v. Southwestern Bell Telephone Co. , 845 F.3d 1299, 1311 (10th Cir. 2017), in which we recognized that “showing disparat e treatment—by demonstrating t hat the employer treated employees similarly sit uated to the plaintiff employee differently (i.e., more10 favorably)—is a particularly poten t instrument to discredit an employer’s allegedly legitimate reasons.” The proble m for Montoya, however, is thathe is not similarly situated to Lombardi. Jacobs det ermined that Montoya provided false and misleading information about the incident. By contrast, Lombardi’s versio n of events was corroborated by a third-party w itness. Because there are signi ficant differences between Montoya’s and Lombardi ’s conduct, Montoya’s “allegation s of disparate discipline do not suffi ce to show pretext.” Salguero v. City of Clovis , 366 F.3d 1168, 1177 (10th Cir. 2004). Last, Montoya maintains that J acobs did not follow company pol icy in firing him, which in turn demonstrates pretext. We agree with Montoya ’s general statement that pretext can be shown by evid ence that the defendant acted contrary to a written company policy prescribing the action to be taken under the cir cumstances. It is equally true, however, that where “progressive discipline [is] entirely discretionary . . . , the failure t o implement progressive disc ipline is not evidence of pretext.” Timmerman , 483 F.3d at 1120. The stated purpose of Jacobs’s policy is “[t]o provide employe es with guidelines regarding disciplinary actions . . . .” Aplt. App., Vol. 2 at 441 (emphasis added). Further, the policy defi nes “discharge” as “[a]ction t aken for a serious offense or for repeated minor o ffenses,” but does not further d efine “serious” or “minor.” Therefore, whether an offense is “serious” is left to the discretion of the company. Jacobs determined, in its discretion, that Montoya’s offense was “serious”11 and that he should lose his job . This discretionary decision i s not evidence of pretext. IV. CONCLUSION For the foregoing reasons, the jud gment of the district court i s affirmed.

Entered for the Court

Gregory A. Phillips Circuit Judge