Pippin v. Burlington Resources Oil and Gas Co.

• Decision Date: 14 February 2006
• Docket Number: No. 04-2157.,04-2157.
• Citation: 440 F.3d 1186
• Parties: Paul "Mike" PIPPIN, Plaintiff-Appellant, v. BURLINGTON RESOURCES OIL AND GAS COMPANY a/k/a Burlington Resources, Incorporated, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1186

440 F.3d 1186

Paul "Mike" PIPPIN, Plaintiff-Appellant, v. BURLINGTON RESOURCES OIL AND GAS COMPANY a/k/a Burlington Resources, Incorporated, Defendant-Appellee.

No. 04-2157.

United States Court of Appeals, Tenth Circuit.

February 14, 2006.

COPYRIGHT MATERIAL OMITTED

Ray Twohig, Albuquerque, NM, for Plaintiff-Appellant Paul "Mike" Pippin.

Bradley T. Cave, Holland & Hart, LLP, Cheyenne, Wyoming (Michael L. Carrico and George McFall, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, New Mexico, and Elizabeth A. Phelan, Holland & Hart, LLP, Boulder, Colorado, with him on the briefs), for Defendant-Appellee Burlington Resources Oil and Gas Company.

Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.

EBEL, Circuit Judge.

Paul "Mike" Pippin ("Pippin") brought this employment discrimination action against his former employer, Burlington Resources Oil and Gas Company ("Burlington"). Pippin alleges that his termination was the product of illegal age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. Burlington, however, claims to have fired Pippin pursuant to a larger reduction in force ("RIF") and because of Pippin's consistently poor work performance.

Before the district court, Pippin alleged both disparate treatment and disparate impact theories of age discrimination. While this appeal was pending, the Supreme Court decided Smith v. City of Jackson, 544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), which holds that disparate impact theories of age discrimination are cognizable under ADEA. This overrules our prior opinion in Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir.1996).

The district court granted summary judgment for Burlington, and Pippin appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

BACKGROUND

Pippin worked for Burlington Resources for ten years in the position of Senior Engineer.¹ In the spring of 2000, Burlington began a corporate restructuring in which it "realigned" its geography-based organization into a function-based one. Burlington's realignment eliminated the high-risk exploration activities in the San Juan Division, and this in turn resulted in a RIF within the division.

To implement this RIF, Mark Ellis, Vice President of the San Juan Division, asked the division's managers to review the organization's future needs and to select the "best performers" to retain. Best performers were selected based on past performance reports and by comparing individuals' skill sets to the organization's future needs. Ultimately, the San Juan Division terminated nineteen employees on or about April 27, 2000, including Pippin, who was fifty-one years old at the time.

A. Pippin's work performance

Burlington evaluated its engineers and technical staff annually to determine the size of bonus awards. Burlington's evaluation process called for each employee's supervisor to prepare a draft evaluation, and then to meet with other supervisors collectively to discuss and rank each employee compared to all other employees with the same job position.

Burlington compiled its evaluations on a ranking form that compared employees in three categories: Rank, which ranked employees within a particular employment category; Rating, which gave each employee a letter grade of SE+ or SE [significantly exceeds expectations]; E+ or E [exceeds expectations]; M+ or M [meets expectations]; and Percent Bonus, which showed what percent of eligible bonuses each employee actually earned.

Pippin's annual evaluations indicate he performed well in many technical aspects of his job; however, in the words of the district court, "he lacked certain `soft skills' and was repeatedly told to improve his relationship with management and fellow co-workers." As the district court summarized, "Burlington Resources viewed the Plaintiff as one of its worst employees for a number of years and ultimately terminated his employment."

Indeed, in 1999, the last ranking year before Pippin's termination,² Pippin ranked last out of thirteen senior engineers, and his evaluation form provided:

This has become a repetitive theme: You need to quit having a strong confrontational attitude about Division management. You need to become part of the solution, or you are part of the problem. Continue to build technical, not experience-based, production engineering skills. Quit relying so much on your experience, prove your ideas with data.

In 1998, Pippin was ninth out of eleven senior engineers, and his comments included:

Mike needs to dramatically improve his versatility to build endorsement from others. He has made some improvements this year in improving his soft skills, and he has looked for opportunities to mentor others and had some success. Mike needs to make an immediate, decisive shift in how he supports our efforts at BR however, for him to progress in his career here. Mike has had several opportunities recently to build endorsement with Division management and staff, and has avoided making that commitment. Consequently, Mike has low endorsement from the management staff and me that he needs to take steps to rebuild.

In the years leading up to 1998, Pippin's rankings consistently placed him in or near the bottom half of his colleagues, and his supervisors' comments uniformly indicated his greatest development needs were in the area of "soft skills," including particularly communication and teamwork.

Although there does seem to be a pattern of Pippin struggling with his "soft skills" at Burlington, and he was ranked last among his Senior Engineer peers in 1999, he did have several positive performance comments in all of the evaluations in the record. For example, Pippin's listed "strengths" in his 1999 evaluation include "[b]road-based experiential production engineering and field skills," being a "self-starter," producing a "[h]igh quantity of sound field engineering work," and "[p]lanning, prioritization, and organizational skills."

B. Burlington's application of the RIF

In 1999, the lowest ranked engineer overall was Craig McCracken, Engineer Advisor, who received 50 percent of his eligible bonus. Five engineers received only 60 percent of their eligible bonuses and thus were tied for the second-to-last ranking among all engineers in 1999. These engineers were Pippin, Senior Engineer; Ralph Nelms, Senior Staff Engineer; Harry Benson, Engineer Advisor; J.A. Michetti, Engineer I; and K.M. Collins, Engineer II.

Of the nineteen employees terminated in the 2000 RIF, three were engineers. Burlington terminated Pippin, Nelms, and Benson; however, McCracken, Michetti, and Collins were retained. According to Burlington, McCracken was kept because he possessed unique "critical" skills.³ Further, Burlington points out that Michetti was a new hire in June 1999; therefore, his eligible bonus was prorated, and based on his short evaluation period Burlington decided not to include him in the April 2000 RIF. Finally, Collins had a higher rating than either Pippin, Nelms, or Benson in 1998, receiving 90 percent of his eligible bonus while Pippin and Benson both received only 70 percent and Nelms received a prorated 60 percent bonus.

All three of the engineers terminated in the 2000 RIF were over forty.⁴ McCracken, who was retained, was also over forty. However, both Michetti and Collins were under forty in 2000. Pippin also notes that the 2000 RIF affected three out of the fourteen over-forty engineers but none of the twenty-two under-forty engineers.

In the fall of 1999, prior to any discussion of the April 2000 RIF, Burlington extended four offers to new engineers coming straight out of college. After the RIF was announced, Burlington "decided to honor those [offers] and hire those people, because we did not want our reputation as a company to be destroyed on those campuses of which those individuals went to school." Burlington also hired Michetti ten months prior to the April 2000 RIF, and eight months after the 2000 RIF, Burlington hired another under-forty engineer.

Finally, Pippin also points out that fourteen of the nineteen employees terminated in the 2000 RIF were over forty; however, Pippin has failed to give us any statistical information about how this compares to the ages of the entire universe of Burlington's San Juan workforce.

C. History of litigation

Pippin received a right to sue letter from the EEOC on August 3, 2001. Pippin timely filed this case in federal court on November 1, 2001, alleging (1) violation of the Age Discrimination in Employment Act ("ADEA"); (2) violation of a parallel New Mexico Human Rights Act; (3) breach of an implied employment contract; and (4) intentional infliction of emotional distress. Before the district court, Plaintiff conceded Defendant was entitled to summary judgment on the two state common law claims; accordingly, they were dismissed and are not before us on appeal. The district court then granted Burlington summary judgment on Pippin's ADEA and state discrimination claims on July 21, 2003. Pippin filed a motion to reconsider, which the court denied on June 9, 2004. This timely appeal followed on June 29, 2004. Pippin raises only his ADEA claims for our review.

DISCUSSION

I. Jurisdiction and standard of review

Pippin appeals both the district court's grant of summary judgment in Defendant's favor, and the court's denial of Plaintiff's motion to reconsider under Fed. R.Civ.P. 59(e). Because Plaintiff's Rule 59 motion was timely, we are permitted on this appeal to consider both the Rule 59 motion and the merits of the underlying judgment. See Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir.1995).

The district court had jurisdiction over this civil action pursuant to 28 U.S.C. §§ 1331, 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

"We review the ... grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Okla....