F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         April 20, 2007
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 B EN N ETT S. G O D WIN ,

               Plaintiff-Appellee,                      No. 06-4055
          v.                                              (D. Utah)
 SOUTHW EST RESEARCH                           (D.C. No. 04-CV-00069-DAK)
 INSTITUTE,

               Defendant-Appellant.




                             OR D ER AND JUDGM ENT *


Before H ENRY, M cW ILLIAM S, and TYM KOVICH, Circuit Judges.


      Bennett S. Godwin worked for Southwest Research Institute (Sw RI) from

1989 until Sw RI terminated him in 2003. M r. Godwin, who was 57 when he was

fired, filed suit alleging that (1) Sw RI violated his rights under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and that (2)

the company terminated his employment to prevent him from receiving certain

benefits under the Employee Retirement Income Security Act (ERISA), 29 U.S.C.

§§ 1001-1461. The district court dismissed M r. Godwin’s ADEA claim because


      *
        This order and judgment is not binding precedent except under the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.
he had failed to file a letter of intent with the Equal Employment Opportunity

Commission (EEOC) within 300 days of his termination. SwRI won summary

judgment on the ERISA claim because M r. Godwin failed to produce evidence

creating a genuine issue of material fact as to the legitimacy of SwRI’s non-

discriminatory reason for his termination. W e exercise jurisdiction pursuant to 28

U.S.C. § 1291, and, for substantially the same reasons as those set forth in the

district court’s well-reasoned order, we affirm.

                                     I. Background

      Sw RI is an applied science and engineering research organization

specializing in the formulation of courses and training materials for the military.

M r. Godwin’s job at SwRI focused on creating graphics for use by other course

developers in training manuals. Around 2001, Sw RI began to experience a

decrease in revenue. M r. Godwin started working part-time in 2002 after he

returned from a four-month leave of absence. During that same period, SwRI

management noticed that the company’s reliance on more sophisticated graphic

art production techniques made many of M r. Godwin’s skills obsolete. His

supervisor eventually suggested that he be terminated for lack of work.

                                      II. Discussion

                       A. M r. Godwin’s Age Discrim ination Claim

      A n A D EA plaintiff must file a charge of discrimination with the EEOC

within 300 days of the alleged discriminatory act. 29 U.S.C. § 626(d); Bennett v.

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Coors Brewing Co., 

, 1234 (10th Cir. 1999). W hen a plaintiff fails

to meet that deadline, he may bring suit only if the requirement is waived or

tolled. M illion v. Frank, 

, 389 (10th Cir. 1995). Since the deadline

was not waived, M r. Godwin urged the district court to toll the statute of

limitations. W e are persuaded that the district court did not abuse its discretion in

refusing to do so. Harms v. I.R.S., 

, 1006 (10th Cir. 2003)

(reviewing the district court’s decision not to apply equitable tolling for abuse of

discretion).

      M r. G odw in received notice of his termination on February 27, 2003. He

mailed the requisite letter on November 24, 2003, 270 days after his termination.

Because he misaddressed the envelop, the EEOC did not receive his letter until

February 6, 2004, 44 days after the 300 day statute of limitations had expired.

Nevertheless, he contends that the district court should have tolled the statute of

limitations because “[t]he loss of his EEOC submissions within the United States

mail system was an extraordinary circumstance beyond [his] control.” A plt’s Br.

at 14. Our precedent requires that an ADEA plaintiff demonstrate “active

deception” on the part of an employer, the EEOC, or the court. Hulsey v. Kmart,

Inc., 

, 557 (10th Cir. 1994) (internal quotation marks omitted). Our

review of the record confirms that “[t]here is no evidence in this case that

Godwin’s employer, the EEOC or the court is at fault. The undisputed evidence

demonstrates that it was Godwin himself who misaddressed his correspondence

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with the EEOC.” Aplt’s App. at 332 (D ist. Ct. Order, issued January 11, 2006).

Hence, the district court did not abuse its discretion in refusing to employ

equitable tolling.

                               B. M r. Godwin’s ERISA Claim

      Section 510 of ERISA , 29 U.S.C. § 1140, provides: “It shall be unlawful

for any person to discharge, fine, suspend, expel, discipline, or discriminate

against a participant or beneficiary . . . for the purpose of interfering with the

attainment of any right to which such participant may become entitled under the

plan . . . .” Phelps v. Field Real Estate Co., 

, 649 (10th Cir. 1993).

In order to prevail on his ERISA discrimination claim, M r Godwin must prove

that “his discharge was motivated by an intent to interfere with employee benefits

protected by ERISA.” 

agree with the district court that the burden shifting framew ork set

forth in M cDonnell Douglas Corp. v. Green, 

(1973), may be applied

to a § 510 ERISA claim. See Register v. Honeywell Federal M fg. and

Technologies, LLC, 

, 1137 (8th Cir. 2005) (stating that “[c]laims

brought under § 510 are analyzed under the M cDonnell Douglas burden shifting

framework”); see generally, 

(stating that a plaintiff

asserting a § 510 claim must “prove by a preponderance of the evidence, that his

discharge was motivated by an intent to interfere with employment benefits

protected by ERISA ”). Under the M cDonnell Douglas framew ork, “[i]f plaintiffs

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show a prima facie case of a violation of § 510, the burden shifts to the defendant

to articulate a legitimate, non-discriminatory reason for [the adverse employment

decision]. If the defendant does so, the burden shifts back to the plaintiff [] to

prove that the defendants proffered reason was pretextual.” 

.

        Here, M r. Godwin is unable to point to any direct evidence of

impermissible intent, and he therefore relies on circumstantial evidence. 

that M r. Godwin can establish a prima facia case of ERISA

discrimination, SwRI has proffered a non-discriminatory reason for his

termination. Namely, Sw RI stated that it fired M r. Godwin because his work was

no longer an essential component of their production and because of an overall

decline in the company’s profitability. Thus, in order to defeat summary

judgment, M r. Godwin must demonstrate that there is a genuine issue of material

fact as to whether SwRI’s explanation for his termination is pretextual. See Fed.

R. Civ. P. 56(c) (summary judgment “shall be rendered forthw ith if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits . . . show that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”).

        W hen ruling on a summary judgment motion, we examine the evidence in

the light most favorable to the non-moving party. Young v. Dillon Com panies,

Inc., 

, 1249 (10th Cir. 2006). Even so, our examination of the

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record reinforces the district court’s conclusion that “[t]he undisputed evidence

demonstrates that Godwin was discharged due to a lack of work in his skill set.”

Aplt’s App. at 333-34. “Godwin’s duties were, over time, absorbed by other

employees as the advance of technology empowered other employees to perform

their own graphic art work.” 

M oreover, as the district court observed,

“[t]here is also no real dispute that [M r.] Godwin was the first of several

employees who were part of an overall reduction in force of SwRI’s Hill AFB

office. Not only were four other employees also discharged, but eleven positions

were left open by employees leaving voluntarily.” 

Godwin emphasizes that Sw RI hired “an age 20+ person named D rew

Olson to fill the position of Technican [sic.]” A plt’s Br. at 28. Yet, M r. Godwin

does not contend that M r. Olson was hired as his replacement. In fact, he

concedes that the tasks assigned to M r. Olson’s position and his were not the

same and that M r. Olson’s position was set at a different pay scale and status

level. Thus, the essence of M r. Godwin’s contention is that Sw RI should have

given him an opportunity to take a demotion and perform different tasks. This

argument fails because SwRI was under no obligation to offer M r. Godwin a new

position. This court’s role “is to prevent unlaw ful [employment] practices, not to

act as a super personnel department that second guesses employers’ business

judgments.” Simms v. Oklahoma ex rel. Dep’t of M ental Health & Substance

Abuse Srvs., 

, 1329 (10th Cir. 1999) (internal quotation marks

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omitted).

      M r. Godwin also maintains that he was entitled to a position focused on

training course development, despite the fact that M r. Godwin’s performance

reports reveal that “his work in that area was not satisfactory.” Aplt’s App. at

328. Nevertheless, M r. Godwin states that he “can . . . produce evidence that his

evaluations under Sw RI’s RIF criteria were deliberately falsified or manipulated

so as to effect his termination or to otherwise adversely alter his employment

status . . . ” Aplt’s Br. at 29-30 (emphasis supplied). This is an effort to create a

genuine issue of material fact with regard to M r. Godwin’s less than satisfactory

performance evaluations. However, this is a summary judgment motion, not a

motion to dismiss for failure to state a claim. W hile the latter requires a court to

take all allegations as true, the former demands that litigants produce some

evidence to show that there are factual disputes a court should reserve for a jury.

M r. G odwin has failed to do so.

                                      III. Conclusion

      Accordingly, we AFFIRM the district court’s grant of summary judgment

to SwRI.


                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge

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