Beery v. University of Okla

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 14, 2000
• Docket: 98-6459
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 14 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

SHARON K. BEERY,

Plaintiff-Appellant,

v. No. 98-6459 (D.C. No. 97-CV-1332-T) UNIVERSITY OF OKLAHOMA (W.D. Okla.) BOARD OF REGENTS, a public body corporate,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant 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

ordered 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Plaintiff Sharon K. Beery appeals the district court’s grant of summary

judgment, on her age discrimination claim, in favor of defendant Board of

Regents of the University of Oklahoma. Because plaintiff did not raise a genuine

issue as to whether she was replaced by a younger individual, we affirm.

Plaintiff, a high school graduate, began her employment at the University

of Oklahoma on September 5, 1967, as a Clerk-Typist I. She was promoted

eventually to the position of Administrative Assistant to the Athletic Director,

performing this job first for Athletic Director Duncan until May 1996, then for an

interim director until September 1996, and finally for Athletic Director Owens

until her termination on March 19, 1997. Plaintiff was 48 years old when

discharged, and was earning a salary of $39,000.

On December 16, 1996, 40-year-old Bob King, a former banker, began

working as a Special Assistant to the Athletic Director at a salary of $69,500. His

initial responsibilities included assisting in preparing and balancing the athletic

department’s budget and getting familiar with the department’s operations.

Athletic Director Owens testified he intended to expand King’s role into an

associate athletic director position, and, in July 1997, King was promoted to

Senior Associate Athletic Director. According to plaintiff, King assumed a

number of plaintiff’s higher-level duties, including supervising the clerical staff,

-2- assisting the Athletic Director in preparing the budget, and returning sensitive

phone calls and letters.

King and Owens allegedly became dissatisfied with plaintiff’s work and

King recommended that she be terminated. On March 19, 1997, Owens issued a

press release announcing the reorganization of the athletic department. Plaintiff

was terminated as part of this reorganization, and on March 28, the University

posted an opening for a Secretary II in the athletic director’s office. On July 1,

1997, 48-year-old Pam Kelleher was transferred from the basketball office to

become the Administrative Coordinator to the Athletic Director, performing many

of plaintiff’s former duties. Kelleher’s salary, $29,800, was determined according

to the same pay scale as plaintiff’s. Plaintiff’s duties related to the host

recruitment monies were assumed by the athletic department accounting office.

Plaintiff brought this action against the University, alleging she was

terminated based on her age in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634. The district court granted

summary judgment in favor of defendant, ruling (1) plaintiff failed to make a

prima facie case of discrimination because she did not show she was replaced by a

younger individual, and (2) even if she made a prima facie case, she failed to

raise a genuine issue whether the University’s proffered reason for its decision

was pretextual. This appeal followed.

-3- We review a grant of summary judgment de novo, applying the same

standard as that applied by the district court. See Charter Canyon Treatment Ctr.

v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard,

we view the facts and reasonable inferences therefrom in a light most favorable to

the nonmoving party. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).

To prevail on an ADEA claim under the traditional Title VII burden-

shifting approach set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-04 (1973), a plaintiff first must make a prima facie case by showing (1) she

was within the protected age group; (2) she was doing satisfactory work; (3) she

was discharged; and (4) a younger person replaced her. See Ingels v. Thiokol

Corp. , 42 F.3d 616, 621 (10th Cir. 1994). Because in cases of reduction in force

or reorganization it is often impossible for an employee to show she was replaced

by a younger individual, the fourth prong may be met by showing that similarly

situated younger employees were treated more favorably. See id. ; Branson v.

Price River Coal Co. , 853 F.2d 768, 771 (10th Cir. 1988). Upon such a showing,

the defendant must articulate a nondiscriminatory reason for the employment

-4- decision, see Ingels , 42 F.3d at 621, and the plaintiff must then show that the

proffered reason was not the true reason for the decision, see Texas Dep’t of

Community Affairs v. Burdine , 450 U.S. 248, 256 (1981).

Plaintiff argues she satisfied the fourth prong of the prima facie case by

showing that she was replaced by 40-year-old Bob King. When an employee’s

duties are assumed by more than one person, courts look at the age of the persons

assuming the employee’s primary or predominant functions to see if the employee

was “replaced” by a younger individual. See, e.g. , Keathley v. Ameritech Corp. ,

187 F.3d 915, 920-21 (8th Cir. 1999) (holding prima facie case established when

employee’s largest and most lucrative accounts transferred to two younger

individuals); Pitasi v. Gartner Group , 184 F.3d 709, 716-17 (7th Cir. 1999)

(holding no prima facie case made when employee’s primary duties were split

between older worker and a similarly aged worker, and only incidental duties

were assumed by a significantly younger new hire, and terminated employee could

not have performed job for which new person hired); Schwager v. Sun Oil Co. ,

591 F.2d 58, 61 (10th Cir. 1979) (plaintiff made prima facie showing when sixty

percent of sales territory was taken over by substantially younger persons).

Here, plaintiff’s evidence shows she performed the following secretarial

and administrative functions for the Athletic Director: (1) answering the phone;

(2) typing correspondence; (3) screening the Director’s calls; (4) opening and

-5- distributing the mail; (5) assisting in preparing the budget; (6) assisting in office

personnel decisions; (7) assisting in establishing office procedures; (8) doing

specially assigned tasks; (9) returning calls for the Director; (10) coordinating

with the Director’s senior staff on projects; (11) maintaining the Director’s

schedule of events and coordinating his travel arrangements; (12) filing expense

accounts and tracking reimbursements; (13) monitoring income received for the

minority scholarship fund; (14) monitoring the budget; (15) coordinating the

Director’s ticket accounts for football and men’s basketball; (16) administering

the host recruitment fund (approximately 10% - 15% of plaintiff’s total duties

from September to June); (17) serving as host during home football games;

(18) obtaining estimates for office purchases; (19) maintaining an inventory of

office equipment and furniture; (20) serving as administrative assistant to the

Athletics Council Executive Secretary, including coordinating the agenda and

meeting schedule, notifying members, securing action between meetings, and

maintaining records; (21) taking and transcribing Council meeting minutes;

(22) maintaining personnel records regarding vacation, sick leave, and travel

related events; (23) coordinating the weekly meetings; and (24) supervising

clerical staff. Plaintiff testified, however, that she did not participate in the

department’s decision making processes. See Appellant’s App. I at 78.

-6- Pam Kelleher assumed many of these job duties, including (1) answering

the phone; (2) opening and sorting the mail and distributing it to the appropriate

recipient; (3) typing correspondence for both Director Owens and Associate

Director King; (4) filing records; (5) making the Director’s travel arrangements;

(6) submitting the Director’s expense claims for reimbursement; (7) coordinating

with the president’s office and the Regents; (8) taking notes at the staff meetings;

(9) acting as executive secretary for the Athletics Council; (10) setting up the

Council meetings, and sending out notices of the meetings; (11) taking minutes at

the Council meetings; (12) working with athletic department donors; and

(13) working on special projects and special events with the Director.

These secretarial and administrative duties assumed by Kelleher are clearly

of the same basic nature as the duties performed by plaintiff. Testimony and

affidavits by Owens, King, Kelleher, and Manager of Staff Resources Thompson,

support this conclusion, stating that Kelleher performed basically the same tasks

as those performed by plaintiff. See id. at 38, 41, 43, 120. Although plaintiff’s

job title differed from Kelleher’s, the duties described for the Administrative

Coordinator position are almost identical to the duties listed by plaintiff in her

affidavit. Compare id. at 99-100 with id. , vol. II at 150-154. In addition to the

duties assumed by Kelleher, another ten to fifteen percent of plaintiff’s former

-7- responsibilities were taken over by the accounting department when it began

administering the host recruitment fund.

In contrast, the duties assumed by King were more related to his budgetary

and supervisory roles, including assisting the Director in preparing the budget,

returning calls of a confidential or sensitive nature, and supervising the clerical

staff. There is no evidence that plaintiff ever held the position for which King

was hired, or that she was qualified to do so. See Pitasi , 184 F.3d at 717. King’s

high salary tends to negate any inference that he was hired to replace plaintiff, as

well as the fact that he performed his job for four months before plaintiff was

discharged. Any clerical duties assumed by King appear to be incidental to his

position. Even viewing the evidence in the light most favorable to plaintiff, it

does not raise a triable issue whether King assumed her primary responsibilities

so as to be considered her replacement.

Here, if plaintiff was replaced by anyone it was by Pam Kelleher. More

accurately, it appears plaintiff’s duties were distributed as part of a reorganization

of the Athletic Department, and that she was replaced by no one. As plaintiff has

not argued on appeal that she was treated unfavorably compared to her younger

coworkers, we do not consider whether the record contains such evidence.

Summary judgment was proper.

-8- The judgment is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge

-9-