FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  November 2, 2007
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 DA RRELL R. HA RE,

               Plaintiff-Appellant,                      No. 06-1270
          v.                                         District of Colorado
 DEN VER M ERCH AN DISE M AR T,              (D.C. No. 04-CV-02416-PSF-M EH )
 INC., DEN VER M ERCH ANDISE
 M ART EM PLOYERS, INC., and
 AM ERICA N REALTY INVESTO RS,

               Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, BROR BY, and M cCO NNELL, Circuit Judges.




      Plaintiff-Appellant Darrell Hare was employed as the general manager of

the Denver M erchandise M art, Inc. (“the M art”) for nearly thirty years. Beginning

in 2001, his relationship with higher management began to break down. He was

terminated from his position as general manager on December 29, 2003, at the age

of 64. He brought this suit under the Age Discrimination in Employment Act



      *
       This order and judgment is not binding precedent, except under the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.
(“ADEA”) and Colorado common law , alleging that his termination was the result

of illegal age discrimination and that he was discharged in violation of public

policy. Although the defendants provided substantial evidence that M r. Hare was

legitimately terminated for business reasons, that is not the question for this Court

on summary judgment. Employing the analytical structure of M cDonnell Douglas

v. Green, 

, 802 (1973), as we must, we conclude that M r. Hare has

pointed to sufficient inconsistencies in the employer’s explanation for his

termination, that the case must go to a jury. W e therefore reverse the district

court’s grant of summary judgment on the A DEA claim, while affirming summary

judgment of the wrongful discharge claim.

                                   I. Background

      The Denver M erchandise M art is a trade show venue that provides

temporary space for events as well as permanent showrooms for the display of

wholesale merchandise. It is a subsidiary of A merican Realty Investors (“ARI”),

headquartered in D allas, Texas. M r. Hare was the general manager of the M art

until his termination on December 29, 2003. As general manager, M r. Hare

oversaw daily operations at the M art and paid employee wages and bonuses.

      In 2001, ARI’s Asset M anager, John Cook, investigated the executive

bonus plan in place at the M art and concluded that it produced excessive

compensation for some company officials, including M r. Hare. M r. Cook found

that although M r. Hare’s base salary ranged between $155,000 to $210,000 per

                                          -2-
year, M r. Hare’s total annual compensation including bonuses and other payments

was w ell over $300,000. He reported these findings to Gene Phillips, advisor to

the trust that is the controlling shareholder of ARI. ARI decided to implement a

revised bonus plan for 2002. In December 2001, M r. Cook informed Roger Klein,

the M art’s Controller, of the change and told him that bonus payments should not

be released without prior authorization. In spite of this directive, M r. Hare

issued, though he did not release, bonus checks in April 2002 for amounts that

would have been due under the prior plan. M r. Hare informed M r. Cook by letter,

with a legal memorandum attached to support his position, that he believed the

bonus payments were earned and vested and therefore required to be paid under

Colorado law. After considering the legal memorandum, M r. Cook directed first

quarter bonuses to be paid to all employees except M r. Hare and M r. Klein. M r.

Hare nonetheless released bonus checks to himself and M r. Klein contrary to M r.

Cook’s directive. M r. Cook did not immediately respond, but rather made clear

in a letter dated December 2, 2002 that executive bonuses would be eliminated as

of January 2003 and a new bonus program put in place.

      On December 3, 2003, M r. Hare and M r. Klein attended a meeting in Dallas

with M r. Phillips, M r. Cook, and Karl Blaha to discuss the M art’s operations, the

budget, and the new bonus program for 2003. At the meeting, M r. Phillips

informed M r. Hare that there would be changes to the management agreement

between ARI and the M art, and M r. Cook presented the proposed bonus plan for

                                          -3-
2003. M r. Hare was visibly upset by the discussion. M r. Phillips, himself 69

years old, then asked M r. Hare, “How old are you[?] 65, 66 years old[?]” App.

163. M r. Hare replied, “No.” 

Phillips asked, “W ell, how old are you?” to

which M r. Hare responded that he was 63, and M r. Phillips asked “How long do

you expect to continue to work?” 

Hare replied that he didn’t know, and

that he hadn’t thought about retiring because his daughter was in college and he

enjoyed working. M r. Phillips then commented that he would like M r. Hare to

assist in finding a successor to fill his position as general manager, “someone

younger to teach.” 

M r. Hare and M r. Klein abruptly

walked out on the meeting.

      A few days later Oscar Cashwell, a top-level liaison to M r. Phillips, called

M r. Hare and expressed his concern that M r. Hare had left the D ecember 3

meeting angrily. M r. Hare’s notes of the phone call record that M r. Cashwell

started the conversation by noting, “[y]ou are starting to get old like I am,” and

suggested that M r. Hare enter a consulting agreement with the M art while M r.

Hare picked a replacement and trained him. 

by M r. Phillips

and the follow-up phone call by M r. Cashwell were the only age-related remarks

made by ARI’s management to M r. H are.

      In January 2003, M r. Klein resigned from his position as Controller of the

M art and M r. Hare resigned his corporate positions as President, Officer and

Director of D enver M erchandise M art, Inc., Denver M erchandise M art Employers,

                                          -4-
Inc., and Valley Corporation. 1 M r. Cook and M r. Phillips testified that they

believed that M r. H are would soon also resign his position as general manager.

App. 267, 324. As a result, M r. Phillips directed the head of ARI’s human

resources department to search for a replacement. Believing that the M art might

soon be left without a general manager, M r. Cook began to take a more active role

in management of the M art.

      In July 2003, Lisa Fogg joined the M art’s management team to replace M r.

Klein. As the M art’s new Controller, M s. Fogg investigated the M art’s

accounting and reported to M r. Cook that M r. Hare had taken payroll advances

and made vacation payouts to himself that may have violated the M art’s employee

policies. She also reported that many of the M art’s employees were intimidated

by M r. Hare and that M r. Hare arrived for work late and left early. M r. Cook

testified that although he had until mid-2003 considered M r. Hare to be a very

good manager, he learned from M s. Fogg and his own investigation that in fact

M r. Hare “did not exhibit positive management skills, and he did not take an

active role in managing the M art . . . the actual manager of the M art operation for

years had been Roger K lein. . . .” App. 159.

      During the fall of 2003, M r. Cook, M r. Blaha, and M r. Phillips decided to

terminate M r. Hare, and on December 28, 2003, M r. Blaha and ARI’s head of

      1
       Denver M erchandise M art Employers, Inc. is a separate entity that
manages the M art’s payroll. The Valley Corporation holds the M art’s liquor
license.

                                         -5-
hum an resources traveled to D enver to inform Mr. Hare of his termination. No

one directly replaced M r. Hare, and the position of general manager was formally

eliminated. M r. Cook assumed the responsibilities of general manager of the

M art, which he performed during two days each week in D enver.

       The reasons for the decision to terminate M r. Hare are disputed, as is the

degree of involvement by M r. Phillips in the termination decision. M r. Hare

claims that he was terminated because of his age and in retaliation for his

decision to make bonus payments to himself and the M art’s employees in April

2002. M r. Hare also claims that M r. Phillips was the de facto final decision

maker at ARI and was an active participant in the decision to terminate him. The

Defendants respond that M r. Hare’s termination was based on his poor

performance as general manager of the M art and (or possibly or) because M r.

Cook determined that the position could be eliminated. The D efendants also

claim that M r. Phillips held merely an advisory role in the decision to terminate

M r. H are.

       M r. Hare filed suit in the District Court of Colorado under the ADEA, 29

U.S.C. § 621, et seq., and for violation of Colorado common law prohibiting an

employer from discharging an employee in violation of public policy. The

district court granted summary judgment in favor of the Defendants on both

claims. Hare v. Denver M erchandise M art, Inc., No. 04-cv-02416-PSF-DES,

2006 W L 1517730, at *13 (D. Colo. M ay 31, 2006). The district court found that

                                          -6-
M r. Hare had failed to establish a prima facie case under the ADEA and that even

if he had satisfied the burden of demonstrating a prima facie case, he failed to

provide evidence that the defendants’ reasons for firing him were pretextual. The

district court granted summary judgment on M r. Hare’s common law wrongful

discharge claim because he failed to provide evidence of a causal connection

betw een his refusal to withhold bonuses and his termination twenty months later.

W e reverse the district court’s grant of summary judgment on M r. Hare’s AD EA

claim, and affirm summary judgment on his wrongful discharge claim.

                                  II. ADEA Claim

      Under the ADEA, an employer cannot “discharge any individual . . .

because of such individual's age.” 29 U.S.C. § 623(a)(1). Thus, a plaintiff suing

under the ADEA must prove that the challenged employment action was

motivated, at least in part, by his age. Reeves v. Sanderson Plumbing Prods.,

Inc., 

, 141 (2000). The plaintiff may carry this burden either by

presenting direct evidence of the employer's discriminatory intent or by

presenting circumstantial evidence creating an inference of a discriminatory

motive using the tripartite M cDonnell Douglas burden-shifting analysis.

M cDonnell Douglas v. Green, 

, 802 (1973); see Munoz v. St. M ary-

Corwin Hosp., 

, 1165 (10th Cir. 2000) (applying the M cDonnell

Douglas framew ork to an ADEA claim). M r. Hare provides only circumstantial

evidence of alleged age discrimination.

                                          -7-
      Under the M cDonnell Douglas burden-shifting framew ork, the plaintiff

must first establish a prima facie case by showing that (1) he belonged to a

protected class; (2) he was qualified for the position; (3) he was discharged; and

(4) the position was not eliminated after his discharge. Kendrick v. Penske

Transp. Servs., Inc., 

, 1229 (10th Cir. 2000). If the plaintiff cannot

show that his position was not eliminated, the plaintiff may provide other

evidence that the termination occurred under circumstances that give rise to an

inference of unlawful discrimination. Plotke v. White, 

, 1100 (10th

Cir. 2005). In this Circuit “the fourth element of a prim a facie case is a flexible

one that can be satisfied differently in varying scenarios.” 

      If the plaintiff successfully makes a prima facie showing, the employer

must articulate a legitimate, nondiscriminatory reason for the adverse employment

action. 

The burden then shifts back to the employee to demonstrate

that the proffered reasons are pretextual. 

summary judgment, M r.

Hare need only show that there is a genuine issue of material fact as to whether he

has satisfied each element of the M cDonnell Douglas framework.

                                 1. Prima Facie Case

      The defendants do not dispute that M r. Hare has satisfied the first three

elements of the prima facie test, but contend that M r. Hare’s position was

eliminated by his discharge and therefore that M r. Hare fails to satisfy the fourth

elem ent. M r. H are claims that his position was not eliminated, and makes two

                                          -8-
independent arguments in support. First, he alleges that he was essentially

replaced by M r. Cook. However, there is no evidence in the record showing that

M r. Cook gave up his former duties to take over M r. Hare’s position as general

manager. Second, M r. Hare claims that although the title of general manager was

eliminated, the duties of the general manager were simply reassigned to other

employees. This argument fails as a legal matter. To reassign the responsibilities

of a position to a number of other individuals is to eliminate the position. Furr v.

Seagate Tech., Inc., 

, 988 (10th Cir. 1995) (“[T]he test for position

elimination is not whether the responsibilities were still performed, but rather

whether the responsibilities still constituted a single, distinct position.”).

Therefore M r. Hare does not provide sufficient evidence to create a genuine issue

of material fact as to whether his position was eliminated after his discharge.

      M r. Hare can still satisfy the fourth element of the prima facie test and

survive summary judgment if he can demonstrate that his termination occurred

“under circumstances which give rise to an inference of unlawful discrimination.”

(internal quotation marks omitted). The plaintiff is

required, however, to proffer evidence that his discharge did not result from the

most common legitimate reasons that an employer might terminate an employee,

including elimination of his position. 

–27. W e have

found that a plaintiff may establish a prima facie case even though his position

w as elim inated w hen there is a general reduction in force and the plaintiff shows

                                           -9-
that he was treated less favorably than similarly situated employees, Ingels v.

Thiokol Corp., 

, 621 (10th Cir. 1994), or if the defendant does not

claim that the plaintiff’s termination was based on elimination of his position.

. A plaintiff can also show circumstances w hich give rise

to an inference of unlawful discrimination by proffering

      actions or remarks made by decisionmakers that could be viewed as
      reflecting a discriminatory animus, preferential treatment given to
      employees outside the protected class, in a corporate downsizing, the
      systematic transfer of a discharged employee's duties to other
      employees, or a pattern of recommending the plaintiff for positions
      for w hich she is not qualified [or over-qualified] and failure to
      surface plaintiff's name for positions for which she is well-qualified.
      A plaintiff might also rely upon the fact that the defendant, following
      plaintiff's termination, continued to seek applicants to fill the
      position, or, more generally, upon the timing or sequence of events
      leading to plaintiff's termination.

quotation marks and alterations omitted)

      M r. Hare points to the age-related remarks made by M r. Phillips and M r.

Cashwell to show circumstances that give rise to an inference of discrimination.

For actions or remarks to support such an inference of discriminatory intent, the

plaintiff must demonstrate a nexus between the actions or remarks and the

decision to terminate. 

a nexus, the remarks must be made by

someone involved in the decision to terminate the plaintiff. M r. Cook testified

that M r. Phillips ultimately made the decision to terminate M r. Hare, showing a

genuine issue of material fact as to w hether M r. Phillips was a primary

decisionmaker in M r. Hare’s termination.

                                         -10-
      Another element necessary to establish a nexus is temporal connection

between the remarks and the decision to terminate. The district court did not

find M r. Phillips’ statements at the D ecember 2002 meeting and M r. Cashwell’s

follow up phone call to be sufficient evidence of discriminatory intent because

they were made more than a year prior to M r. Hare’s termination. W e agree that

because of the temporal distance, without more, the remarks would not be

sufficient to support an inference of discrimination. 2 However, ARI began

searching for a replacement for M r. Hare in January 2003, less than a month after

the comments were made. App. 310. ARI had also suspended the bonus program

that made up more than half of M r. Hare’s yearly compensation prior to the

meeting, and did not establish a new bonus plan for 2003. The temporal nexus

between the age-related remarks and these more immediate actions by ARI is

relatively close and sufficient to support an inference of discriminatory motive

that satisfies the burden of describing a prima facie case. See Butler v. City of

Prairie Vill., KA, 

, 749 (10th Cir. 1999) (finding that a decline in

work evaluations leading up to discharge may contribute to an inference of

discriminatory intent); M arx v. Schnuck M kts., Inc., 

, 329 (10th Cir.

      2
        The Defendants cite cases in their brief that address the temporal
proximity necessary to support the causation prong of a prima facie case on a
motion to dismiss when bringing a retaliation claim. Although informative, those
cases are not entirely persuasive here because M r. Hare need not show causation
to establish a prima facie case under the ADEA. M r. Hare need only show that
the circumstances of his termination give rise to an inference of discrimination.


                                        -11-
1996) (“[A] pattern of retaliatory conduct [that] begins soon after the filing of the

FLSA complaint and only culminates later in actual discharge” is sufficient to

support an inference of retaliatory motive); Ostrowski v. Atlantic M ut. Ins. Cos.,

(7th Cir. 1992) (stating that allegedly discriminatory statements may

be sufficient to present a prima facie case under M cDonnell Douglas).

      The burden on M r. Hare to establish a prima facie case under the

M cDonnell Douglas framework is not onerous, 

, and the

“nonmovant is only required to bring forth evidence tending to establish or show

the material fact at issue.” Riggs v. AirTran Airways, Inc., 

, 1116

(10th Cir. 2007). W e acknowledge that a reasonable jury could interpret M r.

Phillips’ retirement questions as a matter of succession planning rather than a

reflection of age-related animus, as the district court did, but on summary

judgment all reasonable inferences must be drawn in favor of the party opposing

the motion. The burden of establishing a prima facie case is “one of production,

not persuasion and involves no credibility assessment.” 

.

W hatever may be the most persuasive interpretation, M r. Phillips’ age-related

statements are evidence that he, as the de facto head of the ARI management

chain of command, was interested in replacing M r. Hare with a younger employee

and M r. Hare’s termination was motivated at least in part by age.




                                         -12-
                                      2. Pretext

      In response to M r. Hare’s prima facie case, the defendants successfully

articulate a nondiscriminatory reason for M r. Hare’s termination. In fact, the

testimony of M r. Phillips, M r. Cook, M r. Blaha, and M ichael Lane provides

numerous legitimate reasons why M r. Hare was terminated, including that: M r.

Hare’s responsibilities could be managed from Dallas at lower cost, he did not

maximize the M art’s earning potential, he kept short working hours and was not

actively involved in day-to-day operations at the M art, he displayed an

insubordinate attitude towards ARI’s Dallas management, and he employed an

intimidating and ineffective management style. Because the defendants have

satisfied their burden under M cDonnell Douglas, M r. Hare “can avoid summary

judgment only if he is able to show that a genuine dispute of material fact exists

as to whether the defendant’s articulated reason[s] [are] pretextual.” M unoz v. St.

M ary-Corwin Hosp., 

, 1165 (10th Cir. 2000) (internal quotes

omitted).

      “Pretext can be shown by such w eaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable fact finder could rationally find

them unw orthy of credence . . . .” Hardy v. S.F. Phosphates Ltd. Co., 

, 1080 (10th Cir. 1999) (internal quotes and alterations omitted). The inquiry

goes to the subjective belief of those making the termination decision; “[t]he

                                         -13-
relevant inquiry is not whether the employer's proffered reasons were wise, fair or

correct, but whether it honestly believed those reasons and acted in good faith

upon those beliefs.” Rivera v. City and County of Denver, 

, 924–25

(10th Cir. 2004) (internal quotation marks and alteration omitted).

      M r. Hare successfully shows pretext by pointing to an apparent

contradiction in the testimony of those involved in the decision to terminate him.

The following is an excerpt from M r. Blaha’s deposition regarding his

understanding as to why M r. Hare was terminated:

      Q:     W hy was [M r. Hare] terminated?
      A:     Because we decided to eliminate the position, that the position
             was not necessary, that we could run the property out of–out of
             Dallas.
      Q:     That decision wasn’t based on the fact that M r. Hare was
             incompetent or anything, was it?
      A:     No.
      Q:     Had nothing to do with M r. Hare’s performance at all, did it?
      ...
      A:     No.

App. 277. Yet M r. Phillips states directly in his testimony that M r. Hare was

terminated because of his performance. M r. Cook states in his deposition that M r.

Hare was terminated because “[h]e wasn’t doing anything. He was completely

noneffective in his position . . . he was not participating in the process of

managing revenue to a higher achievement or managing expenses to a lower

level.” App. 271. M r. Lane states that “he was going to be terminated because he

wasn’t working.” A pp. 307. None of these statements can be squared with M r.



                                          -14-
Blaha’s testimony that M r. Hare was not terminated for any reason relating to his

performance. A reasonable jury could conclude that the inconsistency in these

statements are evidence that all of the reasons proffered are merely pretextual.

      To be sure, individual participants in a collective termination decision

might well provide a variety of reasons for the termination of an employee. The

mere variety in the reasons would not alone undermine their credibility. Each

individual may consider a different reason to be the essential factor in a decision

to terminate. E.g., Villiarimo v. Aloha Island Air, Inc., 

, 1063 (9th

Cir. 2002) (upholding grant of summary judgment to employer when employee

was fired for two different, but consistent, reasons); Johnson v. Nordstrom, Inc.,

, 733–34 (7th Cir. 2001) (finding no pretext when the employer's

reasons for termination were neither inconsistent nor conflicting); Nidds v.

Schindler Elevator Corp., 

, 918 (9th Cir. 1997) (holding that

different justifications for an adverse action are not sufficient to defeat summary

judgment when those reasons are “not incompatible”). However, the reasons

stated by the ARI management team were not only different but mutually

inconsistent. Under the M cDonnell Douglas framework, contradictions of this

sort are sufficient to establish pretext for purpose of summary judgment. Randle

v. City of Aurora, 

, 452 (10th Cir. 1995) (stating that the plaintiff

need not provide direct evidence of discriminatory motive to survive summary

judgment).

                                         -15-
      Furthermore, the district court erroneously required M r. Hare to provide not

only evidence that the defendants’ proffered reasons for discharging M r. Hare

were pretextual, but additional evidence to show that age discrimination was the

real reason, citing M acD onald v. E. Wyo. M ental Health Ctr., 

,

1122 (10th Cir. 1991) (“W hile the M acDonalds may have created a genuine issue

as to whether the proffered reasons were the real reasons for their discharge, they

have offered no credible evidence that the real reason was age discrimination.”).

Hare, 2006 W L 1517730, at *13. M acDonald is no longer good law. The

holding was implicitly overturned by this Court in Randle, 

, which

stated that discriminatory animus may be inferred from the simple showing of

pretext. The rule was confirmed by the Supreme Court in Reeves v. Sanderson

Plumbing Products, Inc., 

, 147–49 (2000). The current standard for

an age-discrimination claim to survive summary judgment does not necessarily

require a plaintiff to provide any evidence that the real reason for his termination

was age-related. The Court noted in Reeves that the showing of a prima facie

case, “combined with sufficient evidence to find that the employer’s asserted

justification is false . . . will [not] always be adequate” to avoid summary

judgment. 

Yet, the exceptions described in Reeves impose a heavy

evidentiary burden on employers in showing an alternative source for the

discrepancies in their reasons. 

instance, an employer would be entitled to judgment as a matter
      of law if the record conclusively revealed some other,
      nondiscriminatory reason for the employer’s decision, or if the
      plaintiff created only a weak issue of fact as to whether the
      employer’s reason w as untrue and there was abundant and
      uncontroverted independent evidence that no discrimination had
      occurred.

Because the Defendants are unable to provide “abundant

and uncontroverted” evidence that no discrimination occurred, M r. Hare’s

showing of inconsistencies in the D efendant’s reasons for discharging him are

sufficient to satisfy his burden of production and survive summary judgment.

                               III. W rongful Discharge

      M r. Hare also claims that he was wrongfully discharged in violation of

public policy under Colorado common law . He argues that ARI’s decision not to

permit him to pay out bonuses under the old plan to himself and M r. Klein was

somehow illegal and therefore that it violated Colorado public policy to fire him

for refusing to carry it out. To survive summary judgment on this claim, M r.

Hare must show that (1) his employer directed him to perform an illegal act as

part of his w ork related duties; (2) the act directed by his employer w ould violate

a specific statute relating to public health, safety or welfare; (3) he was

terminated as a result of refusing to perform the act directed; and (4) his employer

was aware or reasonably should have been aware that M r. Hare’s refusal to

comply with the directive was based on his reasonable belief that the act was

illegal, contrary to clearly expressed statutory policy relating to M r. Hare’s duty

                                         -17-
as a citizen, or violative of M r. H are’s legal right or privilege as a worker. Roe v.

Cheyenne M t. Conf. Resport, 

, 1235 (10th Cir. 1997) (citing M artin

M arietta Corp. v. Lorenz, 

, 109 (Colo. 1992)).

      W e are skeptical that M r. Hare has established any of the elements

necessary to describe a wrongful discharge claim under Colorado common law.

Because failure to show a genuine dispute of material fact as to one of the

elements is fatal to M r. Hare’s claim, we shall focus only on the issue of

causation.

      As the district court held, a reasonable jury could not find on this record

that there was a causal connection between M r. Hare’s refusal to follow

management’s directive not to pay bonuses and his termination twenty months

later. The temporal distance between the two events, without more, cannot

support an inference of causation. See Miller v. Auto. Club of N.M ., Inc., 

, 1121 (10th Cir. 2005) (finding a six month window between protected

activity and adverse action insufficient to satisfy causal connection); Connor v.

Schnuck M kts, Inc., 

, 1395 (10th Cir. 1997) (finding four month

time lag between protected activity and termination insufficient by itself to justify

an inference of causation). Although M r. Hare claims that documentation of the

bonus dispute was reviewed at the time of his termination, nothing in the record

supports such a conclusion. The head of ARI’s human resources, M r. Lane, only

testifies that documentation of the dispute between M r. Hare and M r. Cook

                                          -18-
regarding bonuses w as copied to him as the head of human resources. M r.

Phillips mentions M r. Hare’s “insubordinate attitude” as one of the reasons for

M r. Hare’s termination, but there is no evidence to support the conclusion that

M r. Phillips was specifically referring to the bonuses incident. App. 318.

Therefore we affirm the grant of summary judgment for the defendants by the

district court.

                                        IV.

       W e AFFIRM the grant of summary judgment on the wrongful discharge

claim, REVERSE the grant of summary judgment on the ADEA claim, and

R EM A N D for further proceedings consistent w ith this opinion.

                                                Entered for the Court,


                                                M ichael W . M cConnell
                                                Circuit Judge




                                         -19-