Tharon PAUP; Carol J. Shuffitt; Gwen Coffelt, Plaintiffs-Appellants, v. GEAR PRODUCTS, INC., a corporation, Defendant-Appellee, 327 F. App'x 100

ORDER AND JUDGMENT PER CURIAM. Gear Products, Inc. discharged Gwen Coffelt, Tharon Paup, and Carol Shuffitt in 2001. The three former employees filed suit contending that the company based their discharge on impermissible age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). The district court granted

summary judgment to Gear Products, and the plaintiffs now seek reversal of that disposition. Before-we reach the merits of the plaintiffs’ ADEA claims, Gear Products submits that Ms. Coffelt’s claim should be dismissed because she failed to disclose it as an asset in her personal bankruptcy proceedings. In the company’s view, Ms. Coffelt should not be allowed to keep for herself an asset she had a duty to reveal and potentially remit to her creditors during her bankruptcy. Our precedent compels us to agree and so we affirm the entry of

summary judgment against Ms. Coffelt on this basis. Arriving at the merits of Ms. Paup’s and Ms. Shuffitt’s remaining ADEA claims, and viewing the facts adduced at

summary judgment in the light most favorable to the employees, we conclude that those plaintiffs have advanced a prima facie case of age discrimination and proffered evidence from which a reasonable trier of fact could find Gear Products’s nondiscriminatory reasons for their discharge pretextual. At the end of the day, then, we reverse the district court’s entry of

summary judgment against Ms. Paup and Ms. Shuffitt but affirm its entry against Ms. Coffelt. I A From its Tulsa, Oklahoma production facility, Gear Products sells power transmissions and gears used in the forestry, construction, and utilities industries. In early 2001, the company began to experience a series of financial setbacks. Responding to its difficulties, the company asked for voluntary resignations, cut back on overtime, reduced its workforce by way of attrition, and consolidated vacant positions.

Despite its efforts, Gear Products’s parent company, Blount International, Inc. (“Blount”), instructed Gear Products that it needed to reduce its operating costs further by undertaking what became a series of three reductions in force (“RIF”) that led to the discharge of approximately 39 (out of some 170 or so) employees. In the particular RIF that gives rise to the suit before us, Gear Products’s third, Blount told Gear Products that, despite all the company’s prior efforts and two earlier RIFs, at least three more employees had to go. Tim Simmons, the company’s Fed.

R.Civ.P. 30(b)(6) corporate representative, offered the following as his understanding of how Gear Products responded. Gear Products’s President, Tom Brenton, called a meeting with his management committee to decide which employees would be discharged. Besides Mr. Brenton, the committee included Mr. Simmons, the company’s controller, human resources manager Robin Bond, vice-president of engineering Steve Copeland, quality manager Dick Gregory, as well as sales and marketing vice president Jeffrey Schmale.

The committee was informed that Gear Products’s core business would be best insulated from adverse effects if the RIF were limited to the company’s eight administrative or clerical employees, a pool that included the plaintiffs. The committee then agreed to rank each of the eight employees on a five-point scale in each of the following categories: flexibility, sense of urgency, initiative, self-starter, multitasking abilities, accuracy, and attitude. The three lowest-ranked employees would be released. After committee members finished scoring each employee, the committee disbanded while either Mr. Brenton or Ms.

Bond compiled the scores. The scores were as follows, together with each employee’s age at the time, and the three plaintiffs before us noted in bold: Name Score Age Sally Farmer 28 points 50 Alissa Tanner 19.5 points 33 ■ Brian Callendar 19 points 36 Bill Vickers 19 points 50 Gwen Coffelt 18.5 points 63 Tharon Paup 15 points 58 Peggy West 15 points 58 Carol Shuffitt 10 points 59 When the other committee members returned, they were told that Ms. Shuffitt, Ms. Paup, and Ms. Coffelt would be discharged. They were not informed of the employees’ scores in the rankings. Neither were they informed that Ms. Bond or Mr.

Brenton deviated from the plan to discharge the three lowest-ranked employees by selecting Ms. Coffelt, rather than Ms. West, for discharge. B Believing their terminations were based on unlawful age discrimination, the plaintiffs filed suit before the Oklahoma Human Rights Commission (“OHRC”). In response to the suit, Ms. Bond (evidently) prepared a document entitled the “Overview Matrix,” which purports to explain why each employee was terminated. The Overview Matrix tells a somewhat different story about the plaintiffs’ termination than the one the company’s corporate representative, Mr.

Simmons, offered as his understanding. For Ms. Paup, the Overview Matrix represents that the company informally approached her with the idea of transferring her from her current position as purchasing coordinator to a position she had held previously. Had she “shown any interest in returning to her original position,” she would likely not have been terminated. App. at 106. But she indicated her reluctance to move.

According to the Overview Matrix, the company then decided that, “while [her] work performance was good,” it had to terminate her because “her position was recognized as one that had to be eliminated to cut costs, at least temporarily.” Id. Because it could not lay off Ms. Paup until another employee, whose work Ms. Paup had temporarily taken over, returned from FMLA leave, the company decided to delay the layoffs. As for Ms.

Shuffitt, the company asserts in the Overview Matrix that “the decision to eliminate [her] position was made mainly due to the fact that her position was one that would have the least negative impact on the organization as a whole.” Id. at 116. The Overview Matrix notes some performance issues Ms. Shuffitt had been having—such as talking too much with others and not learning necessary software skills—and references her low score in the rankings process undertaken by the management committee. The company explored placing Ms.

Shuffitt in a sales secretary position as it was non-expendable, but ultimately decided against doing so because of the steep learning curve that would be involved. Another option the company explored was to place Ms. Shuffitt in the switchboard operator position, which was also deemed non-expendable. However, another employee, Ms. West, excelled in that position, and Ms. Shuffitt had indicated previously that she resented doing tasks she perceived as beneath her; Ms. West thus was retained for the position over Ms. Shuffitt. Finally, regarding Ms.

Coffelt, the Overview Matrix begins by noting that her position was “highly administrative” and that “some things were done by [her] because she desired to have control of all processes.” Id. at 121. “Due to the economic times,” the company could not “afford the luxury of someone who checked and re-checked.” Id. When the company informed Ms. Coffelt that it was eliminating her position, she asked for the position of a CAD designer.

However, transferring her to that position would require extensive training, and the company explains that “[w]hile we would have liked to have had the time to train Gwen [Coffelt], it was not feasible under these circumstances.” Id. When confronted with the Overview Matrix at his deposition, the company’s corporate representative stated that he had no knowledge of the facts it contains.

Neither does the document identify the individuals who purportedly made the decisions described by the Overview Matrix, speaking instead in the voice of the indeterminate “we.” When asked whether there is “any way the company could know whether those things happened or didn’t happen ... other than the document itself’ the company’s corporate representative replied simply “other than the document itself,” implying no. Id. And when asked “[a]s far as you know, there is no way for the company to determine who the actors [are that] were involved; is that true?” he answered “[t]hat’s correct.” Id.

C Eventually plaintiffs received authorization to sue from the OHRC and brought this age discrimination suit in federal court. After two years of discovery, Gear Products moved for

summary judgment on the basis that the plaintiffs failed to establish a triable question of age discrimination. The company also moved for

summary judgment against Ms. Coffelt on the basis of judicial estoppel. Gear Products noted that, following the filing of this lawsuit, Ms. Coffelt declared bankruptcy but failed to disclose her ADEA claim as a potential asset in any relevant portion of her bankruptcy pleadings; the company argued that Ms. Coffelt should not be permitted to “hide” a potentially valuable lawsuit from her creditors while pursuing it for herself. The district court denied

summary judgment on judicial estoppel grounds, but granted it on the merits of plaintiffs’ ADEA claims. After Gear Products filed its motion for

summary judgment, but before the district court’s ruling, Ms. Coffelt reopened her bankruptcy proceedings, disclosed her ADEA lawsuit, and successfully moved to have a bankruptcy trustee substituted for her in this suit. In light of these developments, the district court found estoppel inappropriate. The trustee, the court noted, had done nothing wrong and was pursuing the claim for the benefit of Ms. Coffelt’s creditors. The court saw no reason to punish the trustee and Ms. Coffelt’s creditors for any wrong committed only by Ms. Coffelt. The court cautioned, however, that had Ms.

Coffelt remained a party before it, it might have applied judicial estoppel. Turning to the merits of plaintiffs’ ADEA suit, the district court granted Gear Products’s

summary judgment motion, holding that the company had offered legitimate reasons for its behavior and that plaintiffs had failed to present evidence from which a reasonable jury could find those reasons pretextual. Ms. Paup and Ms. Shuffitt now appeal. Ms. Coffelt, but not her bankruptcy trustee, also seeks to appeal. After assessing the district court’s

summary judgment decision, the trustee declined to pursue this matter further on behalf of Ms. Coffelt’s creditors. Under 11 U.S.C. § 554(c), Ms. Coffelt’s ADEA claim reverted back to her for her own personal benefit, and it is she (alone) who appeals the disposition of her claim. II Prior to reaching the merits of the plaintiffs’ ADEA claims, Gear Products urges us to revisit the question of judicial estoppel with respect to Ms. Coffelt. The company does not question the district court’s decision to permit a trustee to pursue her ADEA claim. But, the company argues, Ms.

Coffelt should not be permitted to reinsert herself into this suit and pursue it on her own behalf. Our precedent compels us to agree. A Judicial estoppel is an equitable doctrine aimed at “protecting] the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citation and internal quotations omitted).

Where a party successfully asserts a position in a legal proceeding, he or she may not assert a contrary position in later proceedings “simply because his [or her] interests have changed.” Id. at 749,121 S.Ct. 1808. While the doctrine is discretionary, we have generally applied it when three factors are met. Id. at 750, 121 S.Ct. 1808. First, “a party’s subsequent position must be clearly inconsistent with its former position.” Eastman v. Union Pacific R.R. Co., 493 F.3d 1151, 1156 (10th Cir.2007) (internal quotation marks omitted).

Second, a party must succeed “in persuading a court to accept that party’s former position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled.” Id. (emphasis, brackets, and internal quotation marks omitted). Third, we must find that “the party seeking to assert an inconsistent position would gain an unfair advantage in the litigation if not estopped.” Id. In evaluating these factors at

summary judgment, we view the facts, and all reasonable inferences that can be drawn from them, in the light most favorable to the party against whom estoppel is sought. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir.2008). 1 In asking whether Ms. Coffelt has taken “clearly inconsistent” litigation positions, Eastman, 493 F.3d at 1156, we look to the information Ms. Coffelt supplied in her bankruptcy petition and compare it with the actions she took in her ADEA case. After receiving a federal right to sue letter from the OHRC, Ms.

Coffelt exercised that right by filing her ADEA claim in federal court on April 20, 2005. Less than six months later, and in the midst of discovery, Ms. Coffelt and her husband filed for

Chapter 7 bankruptcy. As part of her petition, Ms. Coffelt was required to complete a Statement of Financial Affairs. Question 4 asked Ms. Coffelt to “[l]ist all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this bankruptcy case.” App. at 146 (emphasis added). Despite the fact that she had filed her lawsuit just six months earlier, Ms. Coffelt checked the box “None,” and then signed under penalty of perjury that her statements were accurate. Id. at 146, 150.

Her position in the bankruptcy court was thus inconsistent with her position before the district court: she represented to her creditors that she had no pending lawsuit while pursuing just such a suit for her own benefit. Ms. Coffelt does not explain why she failed to disclose her ADEA suit. She does not assert, for example, that she was confused about the meaning of the question. Or that she forgot about her ADEA suit when compiling her petition. See Eastman, 493 F.3d at 1157 (judicial estoppel may not apply if the “party’s prior position was based on inadvertence or mistake”). Neither could she readily do so.

Ms. Coffelt apparently understood the meaning of “suit” well enough to file one after the OHRC notified her that she had such a right. See id. at 1159 (plaintiff understood the meaning of “suit” because he listed two collection suits against him in the same petition in which he omitted a suit from which he could gain financially).

And she filed her ADEA suit less than six months before her bankruptcy petition, so it would be difficult indeed “to believe that such a sizable claim could have been overlooked when [she] was filling in the bankruptcy schedules.” Id. (internal ellipsis omitted). 2 We next ask whether Ms. Coffelt “succeeded in persuading” a court to accept her inconsistent position such that the situation “createfs] the perception” that the bankruptcy court was misled. Id. at 1156. Our concern is not so much with whether Ms.

Coffelt acted with some nefarious motive as it is with whether her actions led the bankruptcy court “to accept [her] position, so that judicial acceptance of an inconsistent position in a later proceeding” would introduce the “risk of inconsistent court determinations and thus pose ... [a] threat to judicial integrity.” New Hampshire, 532 U.S. at 750, 751, 121 S.Ct. 1808 (internal citation omitted); see also Eastman, 493 F.3d at 1159 (the fact that a debtor’s conduct was the result of being “ ‘unsophisticated’ and ‘unschooled’ ” or the result of his or her attorney having “ ‘bl[own] it’ is insufficient to withstand application of the doctrine”).

We find such concerns present here. Based on her incomplete bankruptcy disclosures, the trustee appointed to administer Ms. Coffelt’s estate concluded that she did not have any assets, a position the bankruptcy court subsequently adopted when it granted Ms. Coffelt a “no asset” discharge. App. at 159-60. This discharge relieved Ms. Coffelt of her debts without her having to reimburse her creditors. See id. at 391. Yet, in her ADEA litigation, Ms. Coffelt claimed an asset for herself that predated her bankruptcy— she, rather than her creditors, sought the full benefit of this pre-petition asset.

We have previously held that just such a result gives rise to “the obvious perception” that the bankruptcy court was misled. Eastman, 493 F.3d at 1159. This perception is made even more apparent because Ms. Coffelt disclosed her ADEA claim to her creditors and the bankruptcy court only when her failure to do so was revealed by Gear Products’s

summary judgment motion. 3 The final question before us is whether, if Ms. Coffelt were allowed to pursue her ADEA claim, she “would gain an unfair advantage” over her bankruptcy creditors. Id. at 1156. It is here that Ms. Coffelt mounts her primary defense against the application of judicial estoppel. She argues that, while she may not have disclosed this lawsuit in her initial bankruptcy petition, she did (eventually) reveal the suit.

In light of the fact that she ultimately disclosed the suit and gave her trustee the chance to pursue it for her creditors’ benefit—a chance the trustee ultimately abandoned—she argues there is nothing “unfair” in allowing her to proceed with this appeal. Whatever we might make of Ms. Coffelt’s argument were we writing on a blank slate, it is foreclosed by our precedent.

In Eastman we applied judicial estoppel to preclude an appeal in virtually identical circumstances, holding that a party should not be allowed to “ ‘back up’ and benefit from the reopening of his [or her] bankruptcy only after [the] omission had been exposed.” Id. at 1160. If debtors could do so, they would have little incentive to be “completely truthful” in their initial disclosures. Id. at 1159. Instead, they would have a non-trivial incentive to try to game the system by disclosing civil lawsuits in their bankruptcy proceedings only when they must, not when they should. Id.

We see no way fairly to distinguish Eastman’s holding or rationale in Ms. Coffelt’s case. In Eastman, just as here, a personal injury plaintiff, Wayne Gardner, moved to reopen his bankruptcy proceedings and disclose his personal injury claim only after his personal injury attorney discovered that Mr. Gardner had misled the bankruptcy court by concealing his lawsuit. Id. at 1154. A bankruptcy trustee then intervened in Mr. Gardner’s stead in the personal injury suit, settled with two defendants, recouped enough assets to make Mr.

Gardner’s creditors whole, and eventually abandoned any claims against the remaining defendants. Id. at 1155. At that point, Mr. Gardner sought to reenter the suit and appeal an adverse ruling, stressing that he had rectified his initial failure to disclose, that his trustee had abandoned the suit, and that his creditors had been made whole. Id. at 1155, 1160. We nonetheless applied judicial estoppel to preclude his appeal, noting that any other result would encourage debtors to disclose assets only when they are “caught concealing them.” Id. at 1160. Exactly the same circumstances save one pertain here.

Unlike Mr. Gardner, Ms. Coffelt seeks to pursue damages for her own benefit in a case for which her creditors have received and will receive nothing. Surely this cuts even further against allowing Ms. Coffelt to proceed. Ill This still leaves Ms. Paup’s and Ms. Shuffitt’s appeal of the district court’s

summary judgment dismissal of their ADEA claims. An ADEA claim arises when an employer “discharge^] an[ ] individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). Because Ms. Paup and Ms. Shuffitt rely on circumstantial evidence to prove them claim, we analyze whether

summary judgment is merited in accord with the framework suggested by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the plaintiffs bear the burden of establishing a prima facie case of age discrimination. If they succeed in doing so, the defendant must come forward with some legitimate, nondiscriminatory reason for the adverse employment action. If the defendant shoulders this obligation, the burden shifts back to the plaintiffs to present evidence from which a reasonable fact-finder could conclude that the employer’s offered reason is pretextual. See Hinds, 523 F.3d at 1195. In this, as in all

summary judgment dispositions, our review of the district court’s decision granting

summary judgment to Gear Products is de novo, viewing the facts, and all reasonable inferences those facts support, in the light most favorable to Ms. Paup and Ms. Shuffitt as the non-movants. Id. A To make out a prima facie case of age discrimination under McDonnell Douglas, plaintiffs affected by a RIF must show that they (

i) were within a protected age group, (ii) were doing satisfactory work, (iii) were discharged despite the adequacy of their work, and (iv) have some evidence the employer intended to discriminate. Id. at 1195. The prima facie hurdle is not an onerous one, see Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005), and in our case only the second and fourth elements are at issue; it is undisputed that Ms. Shuffitt and Ms. Paup fell within the protected age group and were discharged.

On the second element, plaintiffs have put forth evidence, in the form of their lengthy tenures at Gear Products and their survival of two prior RIFs, that they were doing satisfactory work. Gear Products argues that at least Ms. Shuffitt was performing inadequately, stressing that she was previously counseled about tardy work product, gossiping with coworkers, and unacceptable time spent away from her desk. But, however considerable Gear Products’s evidence and though it may be relevant to later stages of the McDonnell Douglas inquiry, at the prima facie stage Ms.

Shuffitt need only provide “some evidence of good performance” to carry her burden. Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420 (10th Cir.1991). That much she has done. On the fourth element, plaintiffs have presented evidence that they were terminated during a RIF process in which similarly situated younger employees were retained. Our precedent is clear that “a plaintiff who is fired pursuant to a[n] RIF and who held a similar position to a younger retained employee can satisfy the fourth element.” Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1167 (10th Cir.1998); see also Hinds, 523 F.3d at 1195-96.

Mr. Simmons and the Overview Matrix both describe the pool of employees considered for termination as consisting of eight employees occupying administrative and clerical support positions. App. at 85-86, 102. Of the employees retained from this pool, none was older than the plaintiffs, and four were younger. While Gear Products stresses that two of the similarly situated employees were younger than Ms. Paup by only eight years, and that such an age difference is insignificant as a matter of law, in Whittington v.

Nordam Group Inc., 429 F.3d 986, 995 (10th Cir.2005), we rejected an employer’s argument that a difference of five years is legally insignificant; of course, if five years can be significant, so can eight. Because Ms. Paup and Ms. Shuffitt were terminated in a RIF process in which younger, similarly situated employees were retained, they have satisfied the fourth element. As to Ms. Paup, Gear Products replies that, because the company first hired her when she was already within the age class protected by the ADEA (Ms.

Paup was forty-five when hired), a reasonable fact-finder could not infer that the company would later discriminate against her on the basis of age. In support of this contention, the company cites Kadas v. MCI System-house Gorp., 255 F.3d 359 (7th Cir.2001). In that ease, a 54-year-old plaintiff “was hired specifically to service a large health care client of the defendant.” Id. at 360. A few weeks later, the employer lost the client, discontinued its health-care practice, and then discharged the plaintiff only five months after he had been hired. Id. Affirming the district court’s grant of

summary judgment to the employer, the Seventh Circuit observed that it is eminently reasonable to doubt that ... a worker hired at an age well beyond that at which the protections of the age discrimination law click in and terminated within months, that is, before he is appreciably older, was a victim of age discrimination.

A company that didn’t want 54-year-olds on its payroll would be unlikely to hire one rather than to hire one and promptly fire him, thus inviting a lawsuit because terminated workers are much more likely to sue than ones who have merely not been hired, because of the greater difficulty of proving damages in the latter case. Id. at 361-62 (citations omitted). While we agree entirely with the Seventh Circuit’s analysis, we disagree with Gear Products that it pertains to Ms. Paup. Unlike Mr. Kadas, Ms.

Paup worked for Gear Products not for a matter of mere months, but for thirteen years, and she had become “appreciably older” by the time she was terminated. Age is unusual in that it is a protected class in which an employee becomes more susceptible to unlawful discrimination over time. Simply because an employer harbors no age animus toward forty-five year-old employees does not necessarily mean it feels the same about fifty-eight year-old employees. Moreover, Mr. Kadas was hired and fired by the same manager, and it would be eminently unreasonable to think that the manager became “ageist” overnight.

By contrast, Ms. Paup had many managers over the course of her tenure at Gear Products, and was under the management of a new president at the time of her termination. Now, all this is not to say Gear Products lacks a triable argument that any inference of age discrimination in the RIF process is disproven by the company’s practice of hiring people in the ADEA’s age protected class. It is only to say that Gear Products’s plausible trial argument is insufficient to defeat Ms. Paup’s prima facie case. B Because Ms. Paup and Ms.

Shuffitt have cleared the hurdle of establishing a prima facie case, the burden shifts to Gear Products to advance a legitimate nondiscriminatory reason for its discharge decision. To succeed does not require much. Gear Products “need not persuade the court that it was actually motivated by the proffered reasons,” but must merely “set forth, through the introduction of admissible evidence, the reasons for the plaintiffs [termination].” Texas Dept, of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Gear Products has met its burden in this case.

Before us, Gear Products explains that it discharged Ms. Paup because her position “was completely eliminated because it was primarily clerical in nature and the responsibilities of the position could be easily absorbed by others or eliminated in their entirety.” Appellee. Br. at 24. Its explanation is supported by citations to the Overview Matrix, in which the company explains that, “[w]hile Tharon[] [Paup’s] work performance was good, her position was recognized as one that had to be eliminated to cut costs.” App. at 106. As for Ms.

Shuffitt, the company’s brief asserts that her discharge was based on the fact that her position “was eliminated because it was not a full-time position. It was determined that the minimal duties of the executive administrative assistant position could be easily absorbed by others or eliminated in their entirety.” Appellee Br. at 27-28.

Here again the company’s explanation is supported by a citation to the Overview Matrix, which confirms that “[t]he decision to eliminate CaroI[ ] [Shuffitt’s] position was made mainly due to the fact that her position was one that would have the least negative impact on the organization as a whole.” App. at 117. In no uncertain terms, then, Gear Products asserts before us that it terminated Ms. Paup and Ms. Shuffitt based on the legitimate and nondiscriminatory reason that their positions were expendable.

Plaintiffs respond in part by challenging the admissibility of the Overview Matrix on which Gear Products’s proffered business justifications rely. And plaintiffs surely have something of a point. The Overview Matrix is supported by neither an affidavit nor a declaration from an individual with personal knowledge of the facts it contains, as required in

summary judgment practice. See Fed.R.Civ.P. 56(e)(1). Worse still, the document itself never identifies any person who made any decision (again, speaking only in the indeterminate plural voice, “we”) and it was prepared by the company not in the ordinary course of business but in anticipation of, even in the midst of, litigation before the OHRC. Despite these glaring deficiencies, however, it is debatable whether plaintiffs’ adequately raised their evidentiary objection to the document.

Given this, and given that Gear Products’s defense fails even with the Overview Matrix, we assume without deciding that the Overview Matrix is admissible. C At step three of the McDonnell Douglas inquiry, the burden shifts back to Ms. Paup and Ms. Shuffitt to show that a reasonable jury could find Gear Products’s proffered reasons pretextual. The plaintiffs may meet their burden by establishing that the reasons are “so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude the reasons were unworthy of belief.” Young v. Dillon Co., 468 F.3d 1243, 1250 (10th Cir. 2006).

Gear Products explains that Ms. Paup and Ms. Shuffitt were discharged largely on the basis that their positions could be eliminated with the least impact on the company. We do not quibble with the reasonableness or legitimateness of a layoff decision premised on the expendability of positions. But there remain several reasons, taken together, why a reasonable jury might discredit Gear Products’s proffered explanations. First, the only putative evidence the company cites in support of its explanations is the Overview Matrix. But, as we’ve noted, it appears this document was prepared by Ms.

Bond in response to this very lawsuit. Even assuming its admissibility, the circumstances surrounding its creation could surely cause a reasonable factfinder to view it with a degree of skepticism. See Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1020 (10th Cir.2004) (in context of employment retaliation claim, stating that the “business significance of [a] document outside the litigation context” is a factor indicative of the document’s trustworthiness under the business records exception to the hearsay rule); Certain Underwriters at Lloyd’s, London v.

Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000) (“The absence of trustworthiness is clear ... when a report is prepared in the anticipation of litigation because the document is not for the systematic conduct and operations of the enterprise but for the primary purpose of litigating.”); cf. Jaramillo v. Colo. Judicial Dep’t., 427 F.3d 1303, 1311 (10th Cir.2005) (“The timing of the change [in the employer’s explanation for its decision] has been found to support the inference of pretext when it occurs after significant legal proceedings have occurred.”).

Second, the Overview Matrix also fails to name any of the decisionmakers who purportedly made the decisions it describes, speaking instead as if all decisions were made only by an impersonal “we.” A crucial factor in the termination process, then, is left a mystery, and we are provided no justification for why the company was unable or unwilling to name names. This fact, too, casts a shadow of doubt over Gear Products’s explanations. See Coburn v. Rockwell Automation, Inc., 238 Fed.

Appx. 112, 122 (6th Cir.2007) (in employment age discrimination suit, holding that “[a] reasonable jury could infer that if [employer] cannot even give a straight answer about who recommended [plaintiff] for the RIF list, it is trying to hide something”); cf. Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 523 (6th Cir.1997) (inconsistent statements by different managers as to “who was actually responsible for the decision to fire” plaintiff raised genuine issue of material fact regarding employer’s proffered reason for terminating plaintiff).

Third, the company was unable to supply any individual whose testimony might mend these infirmities. Quite the opposite. When Gear Products’s own Rule 30(b)(6) corporate representative, Mr. Simmons, was directed to portions of the Overview Matrix, he disavowed personal knowledge of the facts it contained. See App. at 318, 324. And when specifically asked whether anyone in the company might know whether discussions referenced in the Overview Matrix actually happened, or whether someone might be able to identify the relevant decisionmakers the Overview Matrix leaves unnamed, he answered in the negative. Id. at 324.

Cf. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286 (11th Cir.2006) (recognizing “an employer’s failure to articulate clearly and consistently the reason for an employee’s discharge may serve as evidence of pretext,” and finding lack of documentation of articulated reasons for discharge suggestive of pretext). Fourth, Mr. Simmons testified that his understanding had been that the plaintiffs were chosen for discharge for reasons altogether different from, and incongruous with, the reasons asserted in argument before us and provided in the Overview Matrix.

The company, pointing to the Overview Matrix, explains that the two employees were terminated primarily because their positions were expendable; for Ms. Paup, the Overview Matrix goes so far as to state explicitly that her performance was good. Yet, the company’s corporate representative testified that, at the time of the employees’ terminations, he believed the employees were chosen solely on the basis of their poor performance, as determined in the management committee’s ranking process. Mr. Simmons was unable to explain or reconcile the different rationales offered by Gear Products.

Neither could he explain why Ms. Coffelt, rather than Ms. West, was discharged despite her higher performance rankings. Mr. Simmons insisted that he understood the firings would be based solely on the committee’s rankings, without deviation, but of course deviation there was. We have, then, the company’s Rule 30(b)(6) representative testifying to an understanding of the reasons for the employees’ terminations that is altogether different than the reasons Gear Products proffers to us today; and whose own understanding also suffers from unexplained difficulties.

See Whittington, 429 F.3d at 994 (An “indication of pretext is that [defendant-employer] was inconsistent in the reasons it provided for termination.”). In concluding that these factors, taken together, suffice to suggest pretext, we do not mean to suggest that a company can never change its mind, even in the midst of a RIF process, about the factors that it wishes to consider in deciding whom to terminate. Neither do we suggest that a company may not have more than one legitimate reason for terminating an employee, or that such reasons may not be inconsistent.

At trial, the question before the jury will be whether Gear Products engaged in age discrimination, and a defendant is normally free to pursue inconsistent lines of defense to refute the conclusion that its actions were motivated by ageism. It is thus conceivable that at trial Gear Products will argue, and even argue successfully, that, whether it fired employees for poor performance or for expendability, it did so without age-based animus. The fact remains, however, that we are now at

summary judgment, obliged to apply the McDonnell Douglas framework. And we have repeatedly held that employees may meet their

summary judgment burden of showing pretext under McDonnell Douglas by demonstrating that their employer’s proffered business justifications are so incoherent, weak, inconsistent, or contradictory that a rational fact-finder could conclude the reasons were unworthy of belief. This showing of pretext, of reason to disbelieve, by definition, “does not require a plaintiff to offer any direct evidence of actual discrimination.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir.2007).

For this and other reasons, some have criticized McDonnell Douglas as improperly diverting attention away from the real question posed by the ADEA—whether age discrimination actually took place—and substituting in its stead a proxy that only imperfectly tracks that inquiry. See, e.g., Wells v. Colo. Dept, of Transp., 325 F.3d 1205, 1221-28 (10th Cir.2003) (Hartz, J., concurring); MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 1115, 1122-23 (10th Cir.1991) (Seth, J., concurring); see generally Timothy M. Tymkovich, The Problem with Pretext, 85 Denv. U.L.Rev. 503 (2008).

But McDonnell Douglas of course remains binding on us. And here we have a confluence of factors suggesting precisely the sort of pretext necessary for the plaintiffs to survive

summary judgment under that decision’s terms—a company whose only evidence supporting its proffered explanation for the firings is contained in a document prepared in response to litigation; a document purporting to explain termination decisions that leaves key decisionmakers unnamed; a company representative who has no personal knowledge of facts within this document; and the same representative who testifies that his understanding had been that employees were terminated for reasons different than the ones the company proffers to us today (yet whose competing understanding also suffers from another admitted difficulty).

It is only in light of these (rather unusual) circumstances, when viewed in their totality, that we conclude that a reasonable jury could well decide that Gear Products’s proffered business reasons are not worthy of credence. And while the facts of this case are perhaps unusual, they are hardly novel. In Dominguez-Cruz v. Subtle Caribe, Inc., 202 F.3d 424 (1st Cir.2000), the employer told the employee at the time of his termination that his position was being eliminated and that his termination was not performance-based. Id.

Later, in response to litigation, the employer switched gears and asserted that the employee’s termination was wholly performance-motivated. Id. The First Circuit held, precisely as we do today, that while “[a] company may have several legitimate reasons to dismiss an employee,” when it “at different times, gives different explanations, a jury may infer that the articulated reasons are pretextual.” Id. at 432. For other cases involving similar fact patterns and results in our own circuit, see Tomsic v. State Farm Mut. Auto. Ins.

Co., 85 F.3d 1472, 1479 (10th Cir.1996) (plaintiff could show pretext in part because employer gave inconsistent explanations of criteria used in evaluating plaintiffs performance); Gold-stein v. Sprint United Mgmt. Co., 288 Fed.Appx. 476, 481 (10th Cir.2008) (“Because evidence that an employer gave inconsistent reasons justifying its challenged action is an indication of pretext, such a showing would ordinarily be enough to survive

summary judgment.”) (internal citations and quotation marks omitted); Hare v. Denver Merchandise Mart, Inc., 255 Fed.Appx. 298, 304 (10th Cir.2007) (plaintiff could show pretext “by pointing to an apparent contradiction in the testimony of those involved in the decision to terminate him”). Ms. Coffelt’s failure to disclose her ADEA claim in her initial bankruptcy proceeding bars her from pursuing that claim now, and the district court’s grant of

summary judgment as to her is affirmed. Because Ms. Paup and Ms. Shuffitt have shouldered their burden of establishing a fact issue about whether Gear Products’s legitimate business reasons are pretextual, the district court’s grant of

summary judgment with respect to them is reversed. Affirmed in part and reversed in part This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . The OHRC is empowered under 74 Ok.St. Ann. § 953(

e) to receive and investigate complaints of discrimination. The OHRC can recommend ways of eliminating injustice occasioned by the discrimination and can serve as conciliator; it has no independent method of enforcing its determinations. Id. If a complainant before the OHRC receives a “reasonable cause” determination, he or she can pursue the claim through the Equal Employment Opportunity Commission (pursuant to a work-sharing agreement) or invoke the right to sue under Title VII (as plaintiffs did in this case). . At least, Mr. Simmons testified that he "believe[d]” that the Overview Matrix was prepared by Ms.

Bond. App. at 318. We have no indication other than his testimony as to who else at Gear Products might have contributed to the drafting of the document. . 11 U.S.C. § 554(

c) states in pertinent part: ”[A]ny property scheduled under section 521(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for purposes of

section 305 of this title.” . For Ms. Shuffitt (but not Ms. Paup) the Overview Matrix also references her weak performance scores in the management committee's ranking process. Nevertheless, the Overview Matrix does not indicate that the company considered Ms. Shuffitt’s performance a principal reason for her termination. See App. at 117. Neither does the company indicate in its brief before us that her performance, as opposed to the expendability of her position, was a reason for her termination. .

Before the district court the plaintiffs objected to the Overview Matrix as "hearsay that has not been identified by testimony from its originator.” App. at 176. On appeal, the plaintiffs protest that the Overview Matrix is "neither identified, authenticated nor shown to be based on personal knowledge.” Id. at 337.

These objections are arguably different, focusing on hearsay before the district court and authentication on appeal—hence the question whether the plaintiffs have satisfied a "basic principle” of evidentiary challenges on appeal: that the specific ground for such a challenge be the same as the one raised before the district court. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1331 (10th Cir.1984).

At the same time, one could well argue that the plaintiffs’ district court objection focused not just on hearsay but also on whether the Overview Matrix was "identified,” another term used in Fed.R.Evid. 901 for authentication. And it is certainly plain that the Overview Matrix has never been properly authenticated. . To be sure, Gear Products does not ignore the management committee's rankings process in its brief before us. It references the process at a number of instances, for example in its fact

section and when seeking to refute Ms. Shuffitt's prima facie case by arguing her performance was unsatisfactory. See Aplt. Br. at 26; supra at 16-17. But, in no uncertain terms, in its legal argument

section the company asserts that its legitimate, nondiscriminatory reason for firing both Ms. Paup and Ms. Shuffitt was that their positions could be eliminated with minimal repercussions on the business. Aplt. Br. at 24, 27-28. See Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir.2009) (in suit alleging wrongful termination in violation of free speech rights, court of appeals did not consider reasons for plaintiff's termination asserted in fact

section but not legal argument

section of defendant’s brief).