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 granting summary 

judgment in favor of his former employer, Jacobs Technology, Inc. (Jacobs), on his 

claim for age discrimination. Exercising jurisdiction under 28 U.S.C. § 1291, 

we affirm. 

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

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 9, 2019

Elisabeth A. Shumaker 

Clerk of Court
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I. BACKGROUND 

Montoya began working for Jacobs in 1995. From at least 2011 until he was 

terminated at age 49 in July 2015, Montoya worked as a systems test mechanical 

technician. At all relevant times, Montoya reported to Dennis Smith. 

 The event giving rise to Montoya’s termination took place on July 10, 2015, 

when Smith learned that Montoya and another Jacobs employee, Louis Lombardi, 

had been involved in a workplace incident. Montoya needed to borrow a work truck 

from Lombardi, and Lombardi agreed to lend him the truck. But before Montoya 

could get into the vehicle, Lombardi decided that he should check with Montoya’s 

team lead before turning over the truck. Lombardi told Montoya to wait while he 

obtained authorization and drove off to check with Montoya’s supervisor. 

 When Lombardi returned, he saw 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 slowly maneuver the truck around Montoya, Montoya 

reached out and shoved the truck or hit it with his arms. There is no dispute that 

Lombardi then got out of the truck and the two men exchanged words. 

Next, Montoya and Lombardi went to Smith’s office to report the incident. 

Smith was not in, so Montoya contacted him by telephone. After listening to 

Montoya’s account, Smith told Montoya to go to the on-site dispensary for treatment. 

The dispensary found no serious injuries, but nonetheless referred Montoya to the 
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hospital, where he complained of bruising on his left arm and leg. The hospital 

released him with no restrictions. 

Later the same day, Jacobs’s Human Resources Manager, Yolanda Ramos, met 

with Montoya, Lombardi, and two other men who had been at the scene. The two 

men told Ramos they had not seen what happened. Ramos, who was then joined by 

Smith, Jacobs Director Brant Adams, and union representative Chris Valdivia, 

interviewed Montoya and Lombardi. Both men were warned at the outset of their 

respective interviews that providing false or misleading information 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 Montoya, Montoya reached toward the truck and made 

some movement with his hands. For his part, Montoya said that he was facing the 

truck and standing on the passenger side when Lombardi sideswiped him. 

The following Monday, July 13, 2015, Ramos interviewed a third witness—

Manny Saldivar—a welder who worked for an outside company. Saldivar confirmed 

Lombardi’s account of the incident: “[Lombardi] started to go around [Montoya] 

with the truck and it looked to me that [Montoya] stepped forward and slapped the 

truck with one hand and punched the truck with his other hand.” Aplt. App., Vol. 1 

at 178. “I even told [a coworker], ‘[Montoya] just punched the truck.’” Id. at 179. 

When asked whether the truck had struck Montoya, instead whether Montoya had 

struck the truck, Saldivar said, “I saw [Montoya] hit the vehicle.” Id. Saldivar also 
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said that Montoya was “facing the passenger door” when he hit the truck with his 

hands. Id. 

That same day, Ramos prepared a report that summarized the accounts given 

by Montoya, Lombardi, and Saldivar. She recommended that Montoya be discharged 

for several reasons, including his having provided untruthful and misleading 

information during the investigation. Specifically, Ramos noted that “[w]e cannot 

comprehend how an individual who is facing a vehicle, states that he is struck by the 

passenger side of the vehicle, yet is injured on his left thigh and his left arm.” Id. at 

197-98. As to Lombardi, Ramos recommended that he be suspended for three days 

and given a written warning for violating several company rules. 

Adams and Smith agreed with Ramos’s recommendations, and Adams fired 

Montoya. See id. at 199, 205. He relied on two factors: (1) safety violations, and 

(2) his belief that Montoya had lied. See id. at 205. 

Montoya sued asserting five claims: (1) age discrimination, (2) disability 

discrimination, (3) failure to accommodate his disability, (4) retaliation in response 

to his complaints of age discrimination, and (5) retaliation in response to his 

complaints of disability discrimination. The district court granted Jacobs’s motion 

for summary judgment on all claims. Montoya appeals only the portion of the order 

dismissing his age-discrimination claim. 

II. STANDARD OF REVIEW 

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

the same standard used by the district court.” Riggs v. AirTran Airways, Inc., 
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497 F.3d 1108, 1114 (10th Cir. 2007). Under Rule 56(a) of the Federal Rules of 

Civil Procedure, “[t]he court shall grant summary judgment if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” “In making this determination, we 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 employment-discrimination case the same way it would 

resolve “a motion for summary judgment in any other civil action: the court acts as a 

gatekeeper, granting judgment as a matter of law unless the plaintiff has adduced 

relevant and probative evidence sufficient to support a jury verdict in his . . . favor.” 

Id. at 1117. 

III. ANALYSIS 

Under the Age Discrimination in Employment Act (ADEA), an employer 

cannot “discharge any individual . . . because of such individual’s age.” 29 U.S.C. 

§ 623(a)(1). ADEA protection extends to individuals who are 40 years of age or 

older. See id. § 631(a). “[A] plaintiff suing under the ADEA must prove that the 

challenged employment action was motivated, at least in part, by age.” Riggs, 

497 F.3d at 1114. This burden may be met “either by presenting direct evidence of 

the employer’s discriminatory intent or by presenting circumstantial evidence 

creating an inference of a discriminatory motive using the tripartite burden-shifting 

analysis” articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 

(1973). Riggs, 497 F.3d at 1114. burden-shifting analysis.” Id. Because Montoya 
6 

has no direct evidence of discriminatory intent, his claim must rely on circumstantial 

evidence and proceed under the McDonnell Douglas framework. 

 “Under McDonnell Douglas, the plaintiff first bears the burden of proving a 

prima facie case of discrimination.” Id. “If the plaintiff successfully proves a prima 

facie case, the employer must articulate a legitimate, nondiscriminatory reason for 

the adverse employment action. Once the employer [does so], the burden shifts back 

to the employee to prove that the proffered legitimate reason was a pretext for 

discrimination.” Id. at 1114-15 (citation omitted). 

 For purposes of appeal, Jacobs assumes that Montoya could establish a prima 

facie case of age discrimination, and Montoya concedes that Jacobs has articulated a 

legitimate, nondiscriminatory reason for its decision to terminate his employment. 

As a result, “[t]he employer’s articulation of a legitimate, nondiscriminatory reason 

for the adverse employment action causes the presumption of discrimination . . . to 

simply drop out of the picture.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 

(10th Cir. 2007) (brackets and internal quotation marks omitted). Now, the only 

issue is whether Montoya met his burden to “show[] that the proffered reason [for his 

termination] is a pretext for illegal discrimination.” Id. (internal quotation marks 

omitted). We agree with the district court that Montoya “failed to carry his burden of 

showing that [Jacobs’s] legitimate reason for discharge was a pretext.” Aplt. App., 

Vol. 2 at 499. 

 “Under our precedents, a plaintiff can establish pretext by showing the 

defendant’s proffered non-discriminatory explanations for its actions are so 
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incoherent, weak, inconsistent, or contradictory that a rational factfinder could 

conclude they are unworthy of belief.” Johnson v. Weld Cty., 594 F.3d 1202, 1211 

(10th Cir. 2010) (brackets and internal quotation marks omitted). “Evidence that the 

employer should not have made the adverse employment decision—for example, that 

the employer was mistaken or used poor business judgment—is not sufficient to 

show that the employer’s explanation is unworthy of credibility.” Hiatt v. Colo. 

Seminary, 858 F.3d 1307, 1316 (10th Cir. 2017) (brackets and internal quotation 

marks omitted). Thus, even if a jury could conclude “that [Jacobs’s] decision was 

intemperate and unfair,” as Montoya alleges, “[s]uch considerations . . . are not 

within the purview of . . . the ADEA.” Timmerman, 483 F.3d at 1120 (internal 

quotation marks omitted). “[T]he issue is not whether the decision to terminate 

[Montoya] was wise, fair or correct, but whether [Jacobs] reasonably believed at the 

time of the termination that [Montoya] had violated company policy, and acted in 

good faith upon that belief.” Id. 

 Montoya argued in district court, and repeats in this court on appeal, that “[a] 

reasonable trier of fact could conclude that Jacobs’ stated reasons for terminating 

Montoya were [a pretext for age discrimination].” Aplt. Opening Br. at 26-27. But 

“[t]o support an inference of pretext, . . . a plaintiff must produce evidence that the 

employer did more than get it wrong. He or she must come forward with evidence 

that the employer didn’t really believe its proffered reasons for action and thus may 

have been pursuing a hidden discriminatory agenda.” Johnson, 594 F.3d at 1211. 
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Montoya cites seven facts that he contends raise a genuine issue 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 manager who 

conducted the investigation and made the recommendation to terminate Montoya. 

As such, Montoya cannot satisfy his burden to present evidence of pretext. 

First, Montoya argues that “inconsistencies” regarding the reason he was 

terminated and who made the decision to fire him “would allow a reasonable 

factfinder to question the credibility of Jacobs’ stated reasons.” Aplt. Opening Br. 

at 27. It is unclear whether Montoya raised this argument in the district court. 

Nonetheless, we agree with Jacobs that the record does not support these assertions. 

Adams, Ramos, and Smith all disbelieved Montoya and found safety violations. No 

one disputes that Adams made the final decision with input from Ramos and others. 

 Second, while it is true that Montoya and Lombardi gave different accounts of 

the incident, Jacobs’s believing Lombardi does not make the decision insincere. 

“This court’s function is not to second guess business decisions made by employers, 

and our inquiry is not whether [Jacobs’s] decision to fire [Montoya] was ultimately 

correct or wise.” Cillo v. City of Greenwood Vill., 739 F.3d 451, 463 (10th Cir. 

2013) (internal quotation marks omitted). 
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 Third, contrary to Montoya’s assertion, Smith did not say that the 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 328. Indeed, “based on 

the results of the investigation,” including Montoya’s statement that he was facing 

the truck on its passenger side yet was stuck on his left side, the only logical 

conclusion Smith could reach was that Montoya had walked into the truck. Id. at 

329-30. 

 Fourth, Montoya’s reliance on Smith’s and the union representative’s 

deposition testimony about never having had reason to question Montoya’s 

truthfulness avails nothing. The union representative was not part of the decisionmaking process, and Smith’s testimony concerned his observations as Montoya’s 

supervisor, not as the decision-maker. Moreover, Smith testified 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 “side of the story,” 

which demonstrates his indifference. Aplt. Opening Br. at 29. This argument 

overlooks the fact that Adams was present when Ramos questioned Montoya and was 

well aware of his version of events. 

 Sixth, Montoya maintains that Lombardi’s more favorable treatment—a threeday suspension—is evidence of pretext. In this regard, he relies on Dewitt v. 

Southwestern Bell Telephone Co., 845 F.3d 1299, 1311 (10th Cir. 2017), in which we 

recognized that “showing disparate treatment—by demonstrating that the employer 

treated employees similarly situated to the plaintiff employee differently (i.e., more 
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favorably)—is a particularly potent instrument to discredit an employer’s allegedly 

legitimate reasons.” The problem for Montoya, however, is that he is not similarly 

situated to Lombardi. Jacobs determined that Montoya provided false and misleading 

information about the incident. By contrast, Lombardi’s version of events was 

corroborated by a third-party witness. Because there are significant differences 

between Montoya’s and Lombardi’s conduct, Montoya’s “allegations of disparate 

discipline do not suffice to show pretext.” Salguero v. City of Clovis, 366 F.3d 1168, 

1177 (10th Cir. 2004). 

 Last, Montoya maintains that Jacobs did not follow company policy in firing 

him, which in turn demonstrates pretext. We agree with Montoya’s general statement 

that pretext can be shown by evidence that the defendant acted contrary to a written 

company policy prescribing the action to be taken under the circumstances. It is 

equally true, however, that where “progressive discipline [is] entirely 

discretionary . . . , the failure to implement progressive discipline is not evidence of 

pretext.” Timmerman, 483 F.3d at 1120. 

 The stated purpose of Jacobs’s policy is “[t]o provide employees with 

guidelines regarding disciplinary actions . . . .” Aplt. App., Vol. 2 at 441 (emphasis 

added). Further, the policy defines “discharge” as “[a]ction taken for a serious 

offense or for repeated minor offenses,” but does not further define “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 is not evidence of 

pretext. 

IV. CONCLUSION 

For the foregoing reasons, the judgment of the district court is affirmed. 

 Entered for the Court 

Gregory A. Phillips 

Circuit Judge