Vincent v. Philips Electronics, 10th Cir. (2000)
Vincent v. Philips Electronics, 10th Cir. (2000)
Vincent v. Philips Electronics, 10th Cir. (2000)
JUN 21 2000
PATRICK FISHER
Clerk
GERALD A. VINCENT,
Plaintiff-Appellant,
v.
PHILIPS ELECTRONICS NORTH
AMERICA CORPORATION,
formerly known as BTS Broadcast
Television Systems, Inc.,
No. 99-4139
(D.C. No. 97-CV-0237-K)
(District of Utah)
Defendant-Appellee.
This order and judgment is not binding precedent, except under the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.
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First, we have carefully reviewed the appellate record and find ourselves in
complete agreement with the district courts decision to grant summary judgment
on Appellants age discrimination claim.
To establish a prima facie case of age discrimination, Appellant must show:
(1) he was a member of the protected age group, over age 40; (2) he was qualified
for the position he sought; (3) he was not hired; and (4) a younger person was
hired. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The
district court found based on the evidence before it that Appellant had not made a
prima facie case of age discrimination because he was not qualified for two of the
three positions he sought, i.e. Director of Operations and Technical Services
Manager. The district court observed that Appellant did not have the requisite
four-year college degree nor did he have the experience required by the minimum
job qualifications. We agree with the district court .
Appellant argues the district court disregarded genuine issues of fact that
raised a question as to his qualifications. Appellant contends that Russ Ence,
Appellees Human Resources Manager, indicated Appellant was qualified for the
Director of Operations position, and would be considered for the position.
Appellant claims he presented evidence that he had identical responsibilities in
his previous employment with Appellee and experience while working for other
firms in similar positions.
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high potentials for promotions (the Ismar Memo), and that this memo was
applied in the United States. Further, Appellants evidence of pretext is based on
Appellees several reasons for not hiring him, and one interviewers statement to
him that he was overqualified. 1
The district court correctly determined the Ismar Memo was not admissible
evidence in granting Appellees motion in limine because its prejudice
outweighed its probative value. As discussed by the district court, the Ismar
Memo was drafted in 1992, prior to Appellants application for these positions.
The memo was drafted in Germany, not the United States. Moreover, Appellant
did not show that any of the individuals charged with hiring for the three
positions received the Ismar Memo or even knew of its existence. The motion in
limine was properly granted based upon the evidence before the district court.
Next, Appellant contends his termination in 1990 from Appellee when it
was operating through a different joint venture establishes pretext because
management told him he was getting up in years. The district court properly
excluded any evidence of Appellants prior employment with Appellee not
relating to his qualifications. In 1990, Appellee operated pursuant to a different
This comment does not raise an issue of pretext as the interviewer indicated
Appellant was a top candidate for the position. She did not tell him he was
overqualified and that was the reason for not hiring him. This isolated comment
has no nexus to Appellants argument of pretext.
See e.g. Cone v. Longmont
United Hosp. Assoc. , supra , 14 F.3d at 531.
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joint venture and the individual who allegedly made the ageist comment was not
responsible for hiring any one of the three positions Appellant sought.
Finally, Appellant challenges the district courts granting of Appellees
motion in limine that excluded the Utah Anti-Discrimination Division
determination of age discrimination and the testimony of its personnel. The
district court excluded the determination because it lacked formal procedures,
provided for no cross-examination of witnesses and could suggest to a jury a
resolution of the case. The determination was based on the Ismar Memo and the
testimony of two employees that the memo had world-wide application. The
investigator of the determination could not remember what, if any, other evidence
she relied upon in making the determination. However, she did not determine
whether the Ismar Memo or its policies were in effect in or after 1995, even
though the two employees no longer worked for Appellee. Further, there is no
evidence the individuals charged with hiring Appellant knew of the memos
existence or followed any such policy. The district court correctly granted
Appellees motion in limine.
We have reviewed the parties summary judgment briefs, the district courts
decision, the parties appellate briefs, and the relevant record. Finding no error,
we affirm for substantially the same reasons stated in the district courts March 1,
1999 Order.
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