United States District Court, D. Colorado
ORDER GRANTING DEFENDANT MILLER INTERNATIONAL
INC.’S MOTION FOR SUMMARY JUDGMENT
E. BLACKBURN UNITED STATES DISTRICT JUDGE.
matter before me is Defendant Miller International,
Inc.’s Motion for Summary
Judgment [#35],  filed August 2, 2019. I grant the
motion and dismiss the claims of the plaintiff with
jurisdiction over this matter pursuant to 28 U.S.C. §
1331 (federal question).
STANDARD OF REVIEW
judgment is proper when there is no genuine issue as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91
L.Ed.2d 265 (1986). A dispute is “genuine” if the
issue could be resolved in favor of either party.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39
F.3d 1131, 1135 (10th Cir. 1994). A fact is
“material” if it might reasonably affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
who does not have the burden of proof at trial must show the
absence of a genuine fact issue. Concrete Works, Inc. v.
City & County of Denver, 36 F.3d 1513, 1517
(10th Cir. 1994), cert. denied, 115 S.Ct.
1315 (1995). Once the motion has been properly supported, the
burden shifts to the nonmovant to show, by tendering
depositions, affidavits, and other competent evidence, that
summary judgment is not proper. Concrete Works, 36
F.3d at 1518. All the evidence must be viewed in the light
most favorable to the party opposing the motion. Simms v.
Oklahoma ex rel Department of Mental Health and Substance
Abuse Services, 165 F.3d 1321, 1326 (10th
Cir.), cert. denied, 120 S.Ct. 53 (1999). However,
conclusory statements and testimony based merely on
conjecture or subjective belief are not competent summary
judgment evidence. Rice v. United States, 166 F.3d
1088, 1092 (10th Cir.), cert. denied, 120
S.Ct. 334 (1999).
Brenda Van Newkirk, worked as a sales representative for
defendant, Miller International, Inc. (“Miller”),
for 30 years. It is undisputed that plaintiff was a good
and loyal employee. However, beginning in 2015,
Miller’s sales began to decline steadily, and the
company began to look for ways to restructure various
departments to save costs.
of this effort, in mid-2017, the company restructured its
sales territories. Of the eleven sales positions then
existing, Miller made the decision to eliminate three,
including the position held by Ms. Van Newkirk. Miller
asserts that Ms. Van Newkirk’s territory was selected
for restructuring because it was the smallest of the
company’s sales territories and thus the easiest to
redistribute to other sales representatives in geographically
adjacent areas without greatly impacting their travel
requirements. Ms. Van Newkirk was notified of this decision
on July 10, 2017, and terminated the following day. Her
territory was redistributed to three other sales
representatives, two of whom were under 40 years old. At the
time of her termination, Ms. Van Newkirk was 69 years old.
lawsuit, Ms. Van Newkirk brings claims of discrimination and
retaliation under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et
seq. Construing all the facts in the light most
favorable to her, however, Ms. Van Newkirk has not presented
a genuine dispute of material fact suitable for determination
by a jury as to either of these claims. Thus, Miller’s
motion for summary judgment must be granted.
respect to Ms. Van Newkirk’s discrimination claim, I
will assume arguendo she can establish a prima facie
case of age discrimination. See Jones v. Oklahoma
City Public Schools, 617 F.3d 1273, 1278
(10th Cir. 2010) (“This circuit has long
held that plaintiffs may use the McDonnell Douglas [Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973)] three-step analysis to prove age discrimination under
the ADEA.”). Nevertheless, Miller has articulated a
legitimate, nondiscriminatory reason for its employment
decision: that Ms. Van Newkirk’s position was
eliminated as part of a restructuring of the sales force in
an effort to save costs in an environment of steadily
declining revenues. See, e.g., DeMarco v.
CooperVision, Inc., 369 Fed.Appx. 254, 255=56
(2nd Cir. March 12, 2010); Thompson v.
Genentech, Inc., 280 Fed.Appx. 613, 163 (9th
Cir. May 28, 2008); Rogers v. Board of County
Commissioners of Leavenworth County, Kansas,
2015 WL 7295448 at 5 (D. Kan. Nov. 18, 2015). The burden of
proof thus shifts back to Ms. Van Newkirk to demonstrate this
explanation is pretextual. Tabor v. Hilti, Inc., 703
F.3d 1206, 1208 (10th Cir. 2013).
she fails to do.
Generally, [a] plaintiff demonstrates pretext by producing
evidence of 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.
Sanders v. Southwestern Bell Telephone,
L.P., 544 F.3d 1101, 1106 (10th Cir.
2008), cert. denied, 130 S.Ct. 69
(2009). Ms. Van Newkirk presents no such evidence here.
Indeed, she does not dispute that the company’s
revenues were in decline and acknowledges her own sales also
had dropped in the years prior to her termination.
Ms. Van Newkirk relies on certain alleged age-related
comments she claims were made to her by Miller’s Chief
Executive Officer, Patty Sorg. Specifically, Ms. Van Newkirk
alleges that during half a dozen team meetings from January
2013 to January 2017,  Ms. Sorg mentioned that the
company’s Cruel brand jeans were “not geared
towards your age” and that “the older gals”
did not need to wear them because they “might not look
good in them.” Such ambiguous and isolated comments are
nothing more than stray remarks, ” which are simply
insufficient to substantiate a finding of pretext. See
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140
(10th Cir.), cert. denied, 121 S.Ct. 182
(2000); Cone v. Longmont United Hospital
Association, 14 F.3d 526, 531 (10th Cir.
1994); Kirkpatrick v. Pfizer, Inc., 391 Fed.Appx.
712, 720 (10thCir. Aug. 12, 2010).
were any of these comments in any way linked to
Miller’s restructuring decisions. To make out a case of
age discrimination, a plaintiff must adduce evidence from
which a reasonable jury could find “that age was a
determining factor in the employer's challenged decision,
” that is, “that age made the difference in the
employer's decision.” Greene v. Safeway Stores,
Inc., 98 F.3d 554, 557 (10th Cir. 1996)
(citations and internal quotation marks omitted). Stated
differently, Ms. Van Newkirk “must demonstrate a nexus
exists between these allegedly discriminatory statements and
[Miller’s] decision to terminate her.”
Cone, 14 F.3d at 531. These alleged comments do not
meet that standard. Instead, they are simply
“[i]solated comments, unrelated to the challenged
action, ” and thus “are insufficient to show
discriminatory animus” on Miller’s part.
Newkirk also alleges Ms. Sorg repeatedly questioned her about
her plans to retire. The only concrete example she provides,
however, occurred at the time of a co-worker’s
retirement, when Ms. Van Newkirk testified Ms. Sorg
“wanted to know what my plans were” and
“didn’t want me to spring a surprise on her that
I was going to retire.” (Def. Motion App.,
Exh. B at 92.) Despite Ms. Van Newkirk’s claim that
this comment was “proximate” to her termination,
it actually occurred a year prior, and therefore is
insufficient as a matter of law to establish pretext.
Wagoner, 391 Fed.Appx. at 708 (passage of nine
months between comments and employment decision too
“temporally remote” to support finding of
pretext); Antonio v. Sygma Network, Inc., 458 F.3d
1177, 1184 (10th Cir.2006) (same). Although Ms.
Van Newkirk claims similar comments were made to her
“shortly before” her termination, without
specifics, and in light of Ms. Van Newkirk’s generous
interpretation of “proximate” conduct, this
evidence is insufficient to overcome summary judgment.
even if these comments were in fact proximate to Ms. Van
Newkirk’s termination, they do not evidence pretext.
“[A] company has a legitimate interest in learning its
employees' plans for the future, and it would be absurd
to deter such inquiries by treating them as evidence of
unlawful conduct.” Wagoner, 391 Fed.Appx. at
708 (quoting Colosi v. Electri-Flex Co., 965 F.2d
500, 502 (7th Cir. 1992)). See also
Kirkpatrick, 391 Fed.Appx. at 719-20. Indeed, Ms. Van
Newkirk’s deposition testimony confirms that Ms.
Sorg’s intent in inquiring as to whether Ms. Van
Newkirk planned to retire was precisely this: to avoid a
surprise announcement. In the context of ...