Wiemer v. Learjet Inc.

113 F. App'x 887
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 9, 2004
Docket02-3055
StatusUnpublished
Cited by2 cases

This text of 113 F. App'x 887 (Wiemer v. Learjet Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiemer v. Learjet Inc., 113 F. App'x 887 (10th Cir. 2004).

Opinion

ORDER AND JUDGMENT *

O’BRIEN, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unani *888 mously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

In this age discrimination case, plaintiff Ernest P. Wiemer appeals the district court’s grant of summary judgment in favor of his former employer, defendant Learjet Inc. (Learjet). Because plaintiffs evidence did not raise a genuine factual dispute as to whether Learjet’s proffered reason for his termination was a pretext for age discrimination, we affirm.

Plaintiff, at age fifty-nine, was employed as a senior financial analyst at Learjet for thirty-seven days. Upon learning of the program analyst opening through his daughter, plaintiff contacted Learjet and was informed that the position involved budgets, forecasts, variances, and similar tasks. On May 4, 1998, he was interviewed by Bob Wassinger, a finance manager; David Erickson, a senior financial analyst; and Mark Herbert, the finance director. Plaintiff was also interviewed by Tom Burian, who later became his manager. After the interviews, the managers all approved of plaintiff. The ultimate decision to hire plaintiff was made by Mark Herbert, subject to review by Chris Crawshaw, the vice president of finance.

During the interview with finance director Herbert, plaintiff alleges he felt that Herbert was threatened by him and was out to get him. Before accepting the position, plaintiff asked to meet with Crawshaw. Plaintiff alleges that he informed Crawshaw of his concerns about Herbert, and that Crawshaw told him Herbert was not performing well and would soon be replaced, perhaps by plaintiff. Plaintiff then accepted the job offer, and began work on July 15,1998.

The position for which plaintiff was hired involved extensive computer work, requiring advanced spreadsheet skills. After a week of orientation, when plaintiff began receiving accounting assignments, it became apparent that he lacked the computer skills necessary to perform his duties. After sending him to several different training courses, the finance department management began to doubt plaintiffs ability to do the job for which he was hired. Observations by David Erickson, Tom Burian, and Mark Herbert, indicated they had significant concerns regarding plaintiffs skills and work product. See Aplee’s App. at 89-96, 169-172, 175-78. After discussing the matter with Tom Burian, Mark Herbert decided to terminate plaintiff. The decision was approved by Chris Crawshaw, and plaintiff was terminated on August 21,1998.

Plaintiff filed a discrimination charge with the Kansas Human Rights Commission (KHRC), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. The KHRC conducted an investigation and returned a finding of no probable cause. Plaintiff appealed this determination to the Equal Employment Opportunity Commission, which adopted the KHRC’s findings and issued a right-to-sue letter. Plaintiff then filed this discrimination action in the district court. Defendant moved for summary judgment, which was granted by the district court upon a finding that plaintiff failed to raise a triable issue as to whether Learjet’s proffered reason for its decision was a pretext for age discrimination.

*889 We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court. Revell v. Hoffman, 309 F.3d 1228, 1232 (10th Cir.2002), cert. denied, 540 U.S. 818, 124 S.Ct. 83, 157 L.Ed.2d 35 (2003). A district court properly grants summary judgment if “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). “To determine whether a dispute is genuine, we must consider whether a reasonable jury could return a verdict for the nonmoving party.” Revell, 309 F.3d at 1232 (further quotation omitted). We look to the applicable substantive law when evaluating whether a fact is material. Id. Further, “it is not enough that the nonmovant’s evidence be ‘merely colorable’ or anything short of ‘significantly probative.’ ” Id. (iquoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992)) (further quotation omitted).

In discriminatory discharge cases, once a plaintiff makes a prima facie case, and the defendant advances a legitimate, nondiscriminatory reason for its decision, the plaintiff must produce either direct evidence of discrimination or indirect evidence that the defendant’s proffered reason was a pretext for discrimination. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1260 (10th Cir.2001). “Pretext can be shown by such weaknesses, implausibilities, inconsistencies, ineoherencies, 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.” Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1080 (10th Cir.l999) (further quotation omitted).

Plaintiff argues that in evaluating his showing of pretext, the district court failed to consider his affidavit and the testimony of Will Evans, the finance department manager through whom plaintiff’s daughter learned of the opening. He argues that this evidence was sufficient to raise a factual dispute regarding Learjet’s true motivation. Will Evans testified that plaintiff had successfully completed a project for him which required basic Excel skills, and that he thought plaintiff should have been given more training instead of being terminated. Aplt’s App. at 97-98, 130. Plaintiffs affidavit detailed his past finance experience, but did not refute the allegation that defendant was disappointed by his lack of spreadsheet skills. See id. at 32-43. Plaintiff argues he cast doubt on Learjet’s proffered explanation by presenting “overwhelming evidence that his prior experience as a financial analyst and related positions had resulted in computer skills which, in most important ways, [were] clearly superior to those responsible for his discharge.” Aplt’s Br. at 11.

We have held that, in evaluating the sufficiency of a plaintiffs pretext evidence, it is the employer’s perception of the plaintiffs abilities that is relevant, not the plaintiffs view of his own qualifications. Kendrick v. Penske Transp. Servs., Inc.,

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Bluebook (online)
113 F. App'x 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiemer-v-learjet-inc-ca10-2004.