Calderwood v. General Mills ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 26 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD EUGENE CALDERWOOD,
Plaintiff-Appellant,
v. No. 00-2500
GENERAL MILLS; HOLLAND (D.C. No. CIV-99-330-JC/KBM)
BROWN; KEVIN ROBIDEAU, (D. N.M.)
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously 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.
Richard Eugene Calderwood, appearing pro se, appeals the district court's order
granting summary judgment in favor of defendants. We have jurisdiction pursuant to 28
*
This order and judgment is not binding precedent, except under the doctrines of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.
U.S.C. § 1291 and affirm.
I.
General Mills advertised for twenty cereal manufacturing technician positions and
received over one thousand applications and ninety-one employee referral candidates for
the positions. Calderwood, who was fifty years of age, was one of the applicants. The
application did not require applicants to divulge their ages. It requested dates of
attendance of college or vocational schools and dates of employment, and provided space
for a listing of experience, training, and education in mechanical, electrical, and
manufacturing skills areas. Calderwood did not include an exhaustive list of his
experience and qualifications on the application. He unsuccessfully attempted to
supplement his application with his resume on two occasions. The reviewing committee
initially placed his application in the mechanical skills category for further review, but he
was eliminated from consideration after the committee determined his skills were weaker
than those of other candidates.
Calderwood sought reconsideration of his application, but he was unsuccessful.
He filed this action in federal district court, contending (1) he was discriminated against
because of his age; and (2) he was not allowed to compete because of lack of mechanical
skills. The district court granted defendants' motion for summary judgment, finding
Calderwood had failed to create any genuine dispute of fact with regard to whether
defendants' reasons for not hiring him were a pretext for age discrimination.
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II.
We review the grant of summary judgment de novo, applying the same legal
standard as the district court. Mesa v. White, 197 F.3d 1041, 1042 (10th Cir. 1999).
Summary judgment is proper if the evidence, viewed in the light most favorable to the
non-movant, shows there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. Smith v. City of Enid, 149 F.3d 1151, 1154 (10th
Cir. 1998).
Where, as here, there is no direct evidence of discrimination, we use the
McDonnell Douglas burden-shifting framework. See Cone v. Longmont United Hosp.
Assoc., 14 F.3d 526, 529 (10th Cir. 1994). The plaintiff “must carry the initial burden
under the statute of establishing a prima facie case” of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once the plaintiff has established a
prima facie case, “[t]he burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason” for its employment action. Id. If the defendant
meets this burden, the plaintiff must show that defendant's justification is pretextual. Id.
at 804.
The district court assumed that Calderwood presented sufficient evidence to
establish a prima facie case. The court found that defendants met their burden of
articulating a legitimate nondiscriminatory reason for not hiring Calderwood – because he
was less qualified than other applicants. “To satisfy this burden, 'the employer need only
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produce admissible evidence which would allow the trier of fact rationally to conclude
that the employment decision had not been motivated by discriminatory animus.'”
Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir. 1999) (quoting Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 257 (1981)). We agree that defendants met this
burden. The record reveals that Calderwood did not list all of his qualifications on his
application, and the committee reasonably concluded he was less qualified than other
applicants. Further, defendants were not provided with any direct evidence of
Calderwood's age. The positions ultimately were filled with applicants whose ages
ranged from twenty-two to fifty.
The burden then shifted back to Calderwood to show a genuine dispute of material
fact regarding the pretextual nature of defendants' nondiscriminatory reason for not hiring
Calderwood. “Pretext can be shown by such weaknesses, implausibilities,
inconsistencies, incoherencies, 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.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (internal quotations
omitted).
As a basis for his argument of pretext, Calderwood asserts that his age was
apparent from the application because of inclusion of his college graduation date, and he
was subjected to disparate treatment because defendants would not accept his resume.
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There is no evidence that defendants made any effort to ascertain the ages of applicants,
and there is no evidence that defendants accepted resumes from any of the other
applicants. Calderwood chose not to include all relevant information on his application
even though there was sufficient space. His assertions are insufficient to create a genuine
dispute of material fact regarding pretext.
In his appellate brief, Calderwood also argues the court abused its discretion in
denying his motion for sanctions and in denying his request for a court-ordered non-
binding mediation. However, Calderwood did not appeal from those rulings. His notice
of appeal is only from the entry of summary judgment filed November 16, 2000. Even if
we were to consider Calderwood's arguments, we conclude that the district court did not
abuse its discretion.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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