* This order and judgment is not binding precedent, e xcept under the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

** The Honorable Stephen P. Friot, United States Distr ict Judge for the Western District of Oklahoma, sitting by designatio n. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 24 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARK DOKE,

Plaintiff-Appellant, No. 03-3269

v. District of Kansas PPG INDUSTRIES, INC.,

Defendant-Appellee. (D.C. No. 2:02-CV-02191-JWL)

ORDER AND JUDGMENT *

Before McCONNELL , Circuit Judge , McKAY , Senior Circuit Judge, and FRIOT , District Judge. **

Plaintiff Mark Doke alleges that his employer fired him because of his age, in violation of the Age Discrimination in Employmen t Act. Defendant PPG Industries (PPG) asserts that it fired him for viol ating company policy. To survive summary judgment in this situation, Mr. Doke must c ome forward with evidence sufficient for a reasonable jury to conclude that P PG’s stated reason for the firing2

was pretextual. Because he has failed to do so, we AFFIRM the district court’s dismissal of his claim on summary judgment.
I. Mr. Doke began working for PPG in February of 2000, one month shy of his forty-fifth birthday. After a few weeks of trainin g at the Shawnee, Kansas store, he took a position as an inside salesman at the Porter Paint store in Stanley, Kansas. A few months later, in the summer of 2000, Mr. Doke returned to the Shawnee store. There he worked as an inside salesm an until his termination in October 2001, one year and eight months after he st arted. In the summer of 2000, PPG distributed a memorandum to all sales employees setting forth its “Hold Ticket Policy.” Apparently, PPG’s employees had a practice of allowing customers to take merchandise from the store before entering the transaction into the store’s computer system. The employees would simply record the transaction on a written work ord er and enter it into the computer at a later time. The Hold Ticket Policy p rohibited this practice, stating that “all sales of merchandise through our stores are to be recorded through the store’s [computer system] prior to [the merchandise ] leaving the store.” The stated reason for the policy was that it aided prop er inventory tracking, proper sales tracking, and accurate customer billing. Vio lation of the policy, the memorandum suggested, was grounds for termination. The memorandum stated:3

“We have had some individuals lose their jobs becau se they decided not to follow this important policy, and this is truly unfortunat e as we greatly value our employees!” In July 2000, PPG held a meeting at the Shawnee sto re to explain the Hold Ticket Policy. Either at the meeting or shortly th ereafter, Mr. Doke, and the other inside sales personnel, signed a copy of the policy , acknowledging their receipt and understanding of it. However, Mr. Doke testifi ed that both before and after signing the Hold Ticket Policy, he frequently violated it by allowing merchandise to leave the store before entering the transaction into the computer system. According to Mr. Doke, he was “just doing what everyone else did.” He testified that Doug Schnabel, who began working as Mr. Doke’s supervisor in August 2000, told him the policy “wasn’t really going to c hange anything that we were doing in the store,” and was “basically something t hey were doing to CYA.” On October 1, 2001, Mr. Doke violated the Hold Tick et Policy again. Mr. Schnabel found out about the violation the next daywhen, in Doke’s absence, a customer called the store to change his order. Sch nabel documented the violation and provided the information to Ron Whitmer, PPG’s Operations Manager for the territory including the Shawnee store. A few days later, Schnabel and Whitmer met with Doke to discuss the October 1 transaction. At the meeting, Doke admitted to violating the Hold Ticket Policy. Whitmer then informed him that4

PPG was suspending his employment for violation of the policy and was considering termination. Meanwhile, Whitmer informed Human Resources Directo r Betty Lindsey of Mr. Doke’s violation of the Hold Ticket Policy. Af ter consulting with three other members of PPG’s upper-level management, Ms. Lindse y decided to terminate Mr. Doke’s employment. On October 8, Mr. Whitmer infor med Mr. Doke that PPG was terminating his employment based on his admitte d violation of the Hold Ticket Policy. When PPG denied Doke’s request for reconsideration, he filed this lawsuit.
II. Mr. Doke claims that PPG fired him because of his a ge, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S .C. § 623 et seq . Because Mr. Doke has offered no direct evidence of age disc rimination, we evaluate his claim under the familiar burden-shifting framework of McDonnell Douglas Corp.
v. Green , 411 U.S. 792 (1973). Under this framework, first , the plaintiff must establish a prima facie case of age discrimination by showing that (1) he is within the protected age group; (2) his work performance w as satisfactory; (3) his employment was terminated; and (4) his position was filled by a younger person. Rivera v. City and County of Denver , 365 F.3d 912, 920 (10th Cir. 2004). The burden then shifts to the employer to articulate a legitimate, nondiscriminatory5

reason for the termination decision. Id. Once the employer has done so, the plaintiff may resist summary judgment by presenting evidence either that the employer’s stated reason is a pretext or that the t ermination decision was motivated by age discrimination. Danville v. Reg’l Lab Corp. , 292 F.3d 1246, 1250 (10th Cir. 2002). The parties agree that Mr. Doke has established a prima facie case and that PPG has articulated a nondiscri minatory reason for the termination decision. Mr. Doke has offered no evid ence that the decision was motivated by age discrimination. Therefore, our in quiry is limited to whether Mr. Doke has presented sufficient evidence of pretext t o survive summary judgment. Pretext may be shown “ by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions i n 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.” Id. Typically, a plaintiff attempts to demonstrate pretext in one or more of three ways: “(1) with evidence that the defendant’s stated reason for the adverse employmen t action was false, (2) with evidence that the defendant acted contrary to a wri tten company policy prescribing the action to be taken by the defendant under the c ircumstances, or (3) with evidence that the defendant acted contrary to an un written policy or contrary to company practice when making the adverse employmentdecision affecting the6

plaintiff.” Kendrick v. Penske Transp. Servs. , 220 F.3d 1220, 1230 (10th Cir. 2000) (internal citations omitted). When attemptin g to make the third type of showing—that an employer acted contrary to an unwri tten policy or company practice—the plaintiff usually provides “evidence that he was treated differently from other similarly-situated employees who violate d work rules of comparable seriousness.” Id. We review the district court’s grant of summary jud gment on this issue de

novo. Danville , 292 F.3d at 1249. Summary judgment is appropriat e only when “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). When applying this standard, we must consider the evidence as a w hole and draw all reasonable inferences therefrom in favor of the nonmoving party. Danville , 292 F.3d at 1249.
III. Mr. Doke presents a variety of evidence that he thi nks demonstrates pretext. Most of the evidence does not tend to show pretext at all; that which does provides an insufficient basis for a jury to find i n his favor. First, Mr. Doke points to his own testimony that hi s supervisor, Mr. Schnabel, and his fellow salesman, Bryan Kempf, fre quently violated the Hold Ticket Policy and were never disciplined. This, ac cording to Doke, shows that the Hold Ticket policy was not the real reason for his termination.7

However, this evidence fails to support an inferenc e of pretext because Mr. Doke is not similarly situated to Schnabel and Kemp f. In order to demonstrate pretext, Mr. Doke needs to show not just that otheremployees violated the Hold Ticket Policy and were not disciplined; he also nee ds to show that he was similarly situated to those employees—meaning, in t his context, that those who made the termination decision had evidence of Schnabel’s and Kempf’s violations comparable to the evidence on Doke. Otherwise the evidence just tends to show that his fellow sales employees were better at escaping detection than he was, not that the relevant decision-makers were discriminati ng against him. Mr. Doke has failed to make any such showing. Mana gement had independent evidence of Doke’s violation (a custome r phone call documented by Schnabel) and a confession by Mr. Doke himself. In contrast, Schnabel and Kempf have staunchly denied violating the Hold Tick et Policy; and when management investigated Doke’s only concrete allegation, which implicated Schnabel, it concluded that Schnabel had not violat ed the policy at all. Thus, the only evidence management had of Mr. Schnabel’s and Mr. Kempf’s violations consisted of post-termination allegations by a disg runtled Mr. Doke. Differential treatment under these circumstances is not evidence of pretext. See Hysten v. Burlington N. and Santa Fe Ry. Co. , 296 F.3d 1177, 1182 (10th Cir. 2002) (employer’s response to “unsubstantiated claims” of wrongdoing was “legally8

irrelevant” when compared with the response to proven wrongdoing); Watts v. City of Norman , 270 F.3d 1288, 1296 (10th Cir. 2001) (employees w ere not similarly situated when there was “corroborating ev idence in [one] case and the absence of such evidence in [the other]”). Next, Mr. Doke points to his own testimony that Mes srs. Schnabel and Kempf consumed alcohol on store premises after busi ness hours but were not fired. According to Doke, the company policy again st consuming alcohol on store premises is comparable to the Hold Ticket Policy; and the fact that Schnabel and Kempf violated it with impunity demonstrates that D oke’s violation of the Hold Ticket Policy could not have been the real reason f or his termination. Again, however, Mr. Doke fails to show that management had any evidence, aside from his own unsubstantiated allegations, that Schnabel and Kempf violated company policy. Therefore Mr. Doke was not similarly situated to Messrs. Schnabel and Kempf; and the fact that they were not fired for al legedly drinking on store premises is not evidence of pretext. Mr. Doke also complains that Mr. Schnabel, who is o ne year and ten months Mr. Doke’s junior, repeatedly called Mr. Doke “old fart” and “old geezer.” But as we have noted before, “ age-related comments by non-decisionmakers are not material in showing the [defendant’s] action was ba sed on age discrimination.” Minshall v. McGraw Hill Broad. Co., Inc. , 323 F.3d 1273, 1287 (10th Cir. 2003).9

There is no evidence that Mr. Schnabel participated in or influenced the decision to terminate Mr. Doke’s employment. His age-relate d comments, then, are not evidence of pretext on the part of the employer. Also not evidence of pretext are Mr. Schnabel’s com ments that the Hold Ticket Policy “wasn’t really going to change anythi ng that we were doing in the store,” and was “basically something they were doin g to CYA.” There is no evidence that Mr. Schnabel was expressing the views of Ms. Lindsey or the other managers who participated in the termination decisi on. To the contrary, before Schnabel began working as Doke’s supervisor, PPG he ld a meeting at the Shawnee store explaining the Hold Ticket Policy, and Doke and the other employees were required to sign a memorandum stating that some emp loyees had been fired for violating the policy. Mr. Schnabel’s comments are not evidence that the Hold Ticket Policy was unimportant to management. Finally, Mr. Doke argues that PPG violated its thre e-step disciplinary policy by failing to give him a written warning before ter minating his employment. There is conflicting evidence on this point. Mr. Whitmer, the Operations Manager for the territory including the Shawnee store, test ified that PPG has a three-step disciplinary policy: the first step is a verbal war ning, the second step a written warning, and the third step termination. Mr. Doke claims he never received a written warning until after he was terminated, and therefore the stated reason for10

his firing must be pretextual. In contrast, both M r. Whitmer and Mr. Schnabel maintain that Mr. Doke received a written warning. Furthermore, PPG’s Employee Handbook states that “[t]his procedure wil l be used[] at the Company’s discretion,” which suggests that it is not an invar iable policy. Although this evidence raises doubts about whether PPG failed to follow the three-step disciplinary policy and whether the policy was even applicable, we must resolve these doubts in Mr. Doke’s favor on su mmary judgment. Even when we do, however, this evidence is insufficient to support an inference of pretext. The absence of a written warning is the only eviden ce of pretext Mr. Doke has offered. No reasonable jury could conclude, solely on this basis, that PPG’s asserted reason for the firing was “unworthy of belief.” Danville , 292 F.3d at 1250; see also Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997) (“The mere existence of a scintilla of evidence in support of the nonmovant’s position is insufficient to create a dispute of fact that is ‘g enuine.’”). Summary judgment was therefore appropriate.
IV. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment. Entered for the Court Michael W. McConnell Circuit Judge