F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      April 23, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    R ICHA RD C. EN D ER WO O D ,

                Plaintiff-Appellant,

    v.                                                  No. 06-6232
                                                 (D.C. No. CIV-03-1729-T)
    SINCLAIR B RO ADCA ST G RO UP,                     (W .D. Okla.)
    INC.; M . W ILLIAM BUTLER;
    D O N A LD H . TH O MPSO N ; K OKH,
    LLC,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




         In this employment-discrimination case, Richard C. Enderwood appeals

from district court orders that (1) granted the defendants’ summary judgment

motion on his federal age-discrimination and state wage claims; and (2) dismissed




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
his state age-discrimination and interference-with-contract claims. W e have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                   B ACKGROUND

      Sinclair Broadcast Group, Inc., ow ns numerous television stations,

including station KOKH in Oklahoma City. KOKH is affiliated with the Fox

television network. Bill Butler is Sinclair’s vice-president of group programm ing

and promotions. He sets promotion policy and strategy and is in charge of the

operating, promoting, and advertising budgets.

      Fox provides its affiliates with “guidelines,” which “vary for each Sw eeps

Rating Period.” Aplt. App., Vol. 3 at 804. The “ratings” relate to the percentage

of households viewing a particular program, and the “sweeps periods” serve as

measures of advertising sales. Sinclair and its stations occasionally depart from

Fox’s guidelines to further their own interests; Sinclair evidently believes that

this is not inconsistent with the Fox guidelines.

      In D ecember 2000, Sinclair hired Enderw ood, who was fifty-three years

old, to work as the KOKH promotion manager. Butler approved a salary for

Enderw ood that was $23,500 more than the former promotion manager’s salary.

Enderwood was responsible for all facets of station promotion, with the goal of

maintaining ratings and a positive station image. In January 2003, Enderwood

was given a $2,500 raise.




                                         -2-
      Butler had monthly conference calls with promotion managers, including

Enderwood. During one such call, Butler complained of “a mole who was passing

information on to the networks,” 

and he threatened to fire that person

when he discovered who it w as, 

Butler’s threat was consistent with

Sinclair’s written employment policy, which states that “[a]n employee’s

disclosure of confidential information is prohibited and will not be tolerated.” 

“Confidential information” is defined in the policy as “price lists,

compensation, personnel data, advertising, marketing and promotional ideas and

strategies, contest information, customer lists, financial or securities information,

program schedules, pending projects or proposals, rate cards, technological data,

contracts, and research and development strategies.” 

W hen

Enderwood w as hired, he acknowledged in writing his receipt of Sinclairs’

employment-policy manual, and he agreed to abide by its “policies, rules, and

procedures.” Aplee. Supp. App. at 47.

      Sometime around M arch 2003, Fox requested that its affiliates purchase

two “100 point schedules to promote Tuesdays in the M ay Sweeps Period.” A plt.

App., Vol. 3 at 800. According to Enderwood, this would present “an

extraordinary concentration of rating[s].” 

      On M arch 5, Butler instructed Sinclair’s Regional Promotions M anager,

M ike Hansen, that Sinclair’s stations should only purchase one “100 point

schedule for promoting Tuesdays.” 

Butler’s instruction via email

                                          -3-
to Enderw ood and other promotion managers. “[B]ecause [he] w as very

confused” by the email, 

Enderwood forwarded it to Fox representative

Todd Lacey, asking: “Confidentially, what is [Butler] talking about? I thought

you wanted one days worth on Tuesday and then we pick which spot to run on

which station based upon demographic characteristics of each station?” 

see also 

738. Lacey responded: “[H ]e’s misinformed. [Y ]ou can’t

pick one or the other. [Y]ou’ll have to purchase all of Tuesday . . . a different

buy for each show . . . it’s pretty well spelled out in the guidelines we sent.” 

(ellipses in original). According to Lacey, Butler’s instructions did not

comply with Fox guidelines.

      According to Hansen, Lacey soon called to discuss the email’s contents

with him. Afterward, Hansen notified Butler that someone had forwarded the

email to Lacey. Butler then engaged Sinclair’s vice-president of human

resources, Donald Thompson, to find out who had forw arded the email to Lacey.

A search of Sinclair’s email-server logs revealed Enderwood as the source.

      On M arch 6, Butler told Thompson and KOKH General M anager Randy

Pratt that Enderwood should be terminated for disclosing internal information to

Fox. Additionally, either Butler or Thompson identified Enderwood as the “mole

within the organization . . . [w ho] had been leaking company information to

outside sources.” 

Pratt terminated Enderwood on M arch 7 and




                                          -4-
later hired a thirty-two-year-old replacement. Enderwood claims that at the time

of his termination he had accrued unused vacation time worth $2,910.

      After exhausting administrative remedies, Enderwood sued Sinclair,

K O K H , B utler, and Thompson in federal court on December 19, 2003. He

asserted five claims: (1) violation of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634; (2) violation of Oklahoma’s Anti-Discrimination

Act (OADA), Okla. Stat. tit. 25, §§ 1301-11; (3) failure to pay for accrued and

unused vacation under Okla. Stat. Ann. tit 40 § 165.9; (4) interference with his

employment agreement with KOKH; and (5) violation of the Oklahoma common-

law public-policy tort prohibiting employment discrimination identified in Burk v.

K-M art Corp., 

, 29 (Okla. 1989). The defendants moved to dismiss

the complaint in its entirety, arguing, among other things, that Enderwood’s Burk

claim failed because the A DEA provided an adequate statutory remedy. In

Enderwood’s response to the motion, he opposed dismissal of his other claims but

conceded that his Burk claim was without merit. Aplt. App., Vol. 1 at 66 (citing

List v. Anchor Paint M fg. Co., 

(Okla. 1996) (declining to extend

Burk to age-discrimination claims), abrogated by Saint v. Data Exch., Inc.,

, 1038-39 (Okla. 2006)). Enderwood also obtained leave to file an

amended complaint. After Enderwood filed the amended complaint, which

omitted the Burk claim but retained the other four original claims, the district




                                         -5-
court denied the defendants’ motion to dismiss as moot, without prejudice to

refiling.

       The defendants next moved to dismiss the amended complaint. In M ay

2004, the district court granted the motion in part, ruling that (1) Enderw ood’s

OADA claim failed because the OADA offers only an administrative remedy from

the O klahoma Human Rights Commission, which can issue cease-and-desist

orders; and (2) the interference-with-contract claim failed because “Butler and

Thompson were acting on behalf of [Sinclair], who [Enderwood] alleges is

essentially the same entity as [KOKH].” 

       After conducting discovery, the defendants moved for summary judgment

on Enderwood’s remaining two claims. In June 2006, the district court granted

the motion, ruling that (1) Enderwood’s ADEA claim failed because the

defendants’ stated reason for firing Enderwood— disclosing Sinclair’s intent to

not comply with Fox’s guidelines— was not a pretext for age discrimination, and

there was no pattern or practice of age discrimination at Sinclair or KOKH; and

(2) Enderwood’s claim regarding vacation pay failed because Sinclair’s employee

handbook precluded payment for accrued but unused leave if the employee was

terminated for cause.

       Enderwood now appeals the four district court determinations. He also

seeks to certify the vacation-pay claim to the Oklahoma Supreme Court. W e




                                         -6-
affirm the dismissal of Enderwood’s claims for substantially the same reasons as

the district court, and we deny his motion to certify.

                                     D ISCUSSION

                               I. Standards of Review

      W e review a district court’s decision to grant summary judgment de novo,

using the same legal standard applicable in the district court. Baca v. Sklar,

, 1216 (10th Cir. 2005). Summary judgment is appropriate only

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law .” Fed. R. Civ. P. 56(c). W hile “[w]e resolve all factual disputes and draw all

reasonable inferences in favor of the non-moving party,” M cGowan v. City of

Eufala, 

, 741 (10th Cir. 2006), “[m]ere allegations unsupported by

further evidence” will not prevent summary judgment, 

.

      Additionally, we “review [ ] a district court’s order granting a motion to

dismiss for failure to state a claim de novo.” Lovell v. State Farm M ut. Auto. Ins.

Co., 

, 898 (10th Cir. 2006). In doing so, “[w]e accept all

well-pleaded factual allegations in the complaint as true and view them in the

light most favorable to the nonmoving party,” affirming “only when it appears

that the plaintiff can prove no set of facts in support of the claims that would

entitle the plaintiff to relief.” 

(quotation and citation omitted).

                                          -7-
                               II. The ADEA Claim

      The three-stage framew ork crafted in M cDonnell Douglas Corp. v. Green,

, 802-04 (1973), applies to ADEA discriminatory-discharge claims

that are premised on indirect evidence of discrimination. M cKnight v. Kimberly

Clark Corp., 

, 1128 (10th Cir. 1998). Under that framew ork, the

plaintiff must initially prove a “prima facie case by establishing that he was:

(1) within the age group protected by the ADEA when he was terminated,

(2) performing his job satisfactorily, (3) discharged, and (4) replaced by a

younger person.” M iller v. Eby Realty Group LLC, 

, 1111

(10th Cir. 2005). If a prima facie case is established, a presumption of

discrimination arises, requiring the employer to produce a legitimate,

nondiscriminatory reason for the discharge. 

the employer

proffers a legitimate reason, the employee then must prove, by a preponderance of

the evidence, that the employer’s explanation is merely a pretext for unlawful

discrimination.” 

directly to the final stage of M cDonnell Douglas,

arguing that there are “many contradictions demonstrating pretext.” A plt. Br.

at 9. 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 factfinder could rationally find them unw orthy of

credence and hence infer that the employer did not act for the asserted

                                         -8-
non-discriminatory reasons.” Rivera v. City & County of Denver, 

,

925 (10th Cir. 2004) (quotation omitted). W hile reviewing for pretext, we do not

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

judgments.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs., 

, 1330 (10th Cir. 1999) (quotation omitted). M oreover,

“mere conjecture that the[ ] employer’s explanation is a pretext for intentional

discrimination is an insufficient basis for denial of summary judgment.”

Palochko v. M anville Corp., 

, 982 (10th Cir. 1994) (quotation

omitted).

       Enderwood suggests he has demonstrated pretext, setting out a confusing

and conflicting litany of claims, including: the Fox representative’s recollection

of the call to Hansen; the discrepancy as to who made the termination decision;

Sinclair’s failure to complain about the email; the alteration of the email; and,

finally, that the company’s policy reveals a pattern of age discrimination.

      Enderwood first cites Fox representative Lacey’s inability when deposed to

recall telephoning Hansen about the subject email. But Lacey also testified to

“business related” telephone conversations with Hansen, Aplt. App., Vol. 5 at

1118, and that he would not doubt Hansen’s recollection of the call, 

As w e noted above, Hansen testified that shortly after he sent the email to

Enderw ood, Lacey called to discuss it. In any event, the relevance of Lacey’s

memory lapse is suspect. Even if Lacey did not call Hansen, the fact remains that

                                          -9-
Enderw ood forwarded the email to Lacey. The manner by which Hansen actually

learned of the forwarding says little about whether Enderwood w as fired because

of his age.

      Enderwood also references Lacey’s belief that nothing in the email revealed

a “promotion strategy.” 

But Lacey’s beliefs are, as the district court

noted, mostly irrelevant. In a discriminatory termination case, it is the

employer’s beliefs that count. See Sorbo v. United Parcel Serv., 

,

1178 (10th Cir. 2005) (stating that the relevant inquiry “concerns the belief of the

employer that the employee engaged in misconduct, not whether the actual facts,

as shown by evidence extrinsic to the employer’s assessment, may have been

otherw ise”); 

(“In determining whether the proffered

reason for a decision was pretextual, we examine the facts as they appear to the

person making the decision.” (quotation omitted)).

      Enderwood next attempts to identify a discrepancy as to who made the

ultimate termination decision. Human resources vice-president Thompson

testified that “Pratt [the KOKH General M anager] ultimately made the final

decision,” but he immediately clarified, “W ell, it was a collaborative discussion.”

Aplt. App., Vol. 5 at 1153. And Pratt testified that programming-and-promotions

vice-president Butler’s directive to fire Enderw ood occurred while he (Pratt),

Thompson, and Butler w ere discussing what to do about Enderw ood’s disclosure

to Lacey. 

W e do not see a conflict between Pratt and

                                         -10-
Thompson’s testimony. And even if we assume that Pratt and Thompson offered

differing testimony regarding “who had had the final say so in terminating

Richard Enderwood,” 

that does not suggest any sort of age-related

animus.

      Enderwood further claims pretext in Sinclair’s failure to complain that he

also forwarded the subject email to a KOKH advertising agent. Enderwood

contends that this proves he did not violate company policy. Again we see no

relevant connection to pretext. A disclosure to a KOKH advertising agent that

Butler intended to deviate from Fox’s guidelines is not the same thing as a

disclosure of that intention to the very entity interested in enforcing those

guidelines. M oreover, Pratt and Butler testified that Enderwood’s disclosure to

Fox violated company policy. See 

at 763 (Pratt deposition); 

(Butler affidavit).

      Enderwood also cites (1) his deposition testimony that Pratt seemed

reluctant to fire him; and (2) the deposition testimony of a KOKH new s director,

who told Enderwood that his termination was unjustified. This evidence says

nothing of pretext when viewed in context. First, Pratt testified that he

“agonized” about firing Enderw ood and that “it was not a happy day for [him]”

because he and Enderwood were friends and had known each other for twenty

years. 

Second, the news director testified that he told Enderwood that




                                         -11-
the termination was unjustified because “he felt sorry for [Enderwood].” 

at 1170.

      Next, Enderwood asserts that the “email was altered.” Aplt. Br. at 11. But

he does not identify the purported alteration. And during his deposition, he

extensively discussed the email, never mentioning any alteration to its content.

Aplt. App., Vol. 3 at 733-35, 738-39. M oreover, he admits forwarding the email

to Lacey. 

      Enderwood further contends that he has adduced a pattern of age

discrimination. Evidence of pretext may include the employer’s policy and

practice regarding its employment of persons in the protected age group. See

Garrett v. Hewlett-Packard Co., 

, 1217 (10th Cir. 2002). But

because “pattern and practice evidence standing alone will rarely suffice to show

pretext,” Ortiz v. Norton, 

, 897 (10th Cir. 2001) (quotation omitted),

we have cautioned employees to produce “reliable evidence on these points,”

Pippin v. Burlington Res. Oil & Gas Co., 

, 1197 (10th Cir. 2006).

      As evidence of a discriminatory pattern, Enderwood cites his affidavit

testimony that he became concerned in late 2002 “that there was a ‘hit list’”

against older employees, including himself. Aplt. App., Vol. 5 at 1074. But he

has “never seen the list,” 

at 1541, and he does not address how being

on such a list squares with the facts that he was hired when he was fifty-three, he

was paid a salary substantially more than his predecessor, and he was given a

                                         -12-
raise in January 2003. H e also directs our attention to the affidavits of two

former “[m]aster [c]ontrols [o]perator[s]” at KOKH who offered their beliefs that

older employees “were being singled out and treated unfair[ly]” so they would

quit. 

at 1077; 

Neither operator offered any foundational

support for his belief, however, other than his own resignation, and only one of

the operators was in the protected age group when he resigned, see 29 U.S.C.

§ 631(a) (applying the protections of the ADEA to persons forty and older). W e

conclude that this evidence does not reliably indicate a pattern of age

discrimination. See Antonio v. Sygma Network, Inc., 

, 1184

(10th Cir. 2006) (“[A ] plaintiff’s mere conjecture that [the] employer’s

explanation is a pretext for intentional discrimination is an insufficient basis for

denial of summary judgment.” (quotation omitted)); M artinez v. Wyo., Dep’t of

Fam ily Servs., 

, 1137 (10th Cir. 2000) (“Speculation, of course,

does not suffice for evidence.”); see also Vanasco v. National-Louis Univ.,

, 967 (7th Cir. 1998) (stating that “evidence of scattered decisions

either favoring or disfavoring older employees reveals little about the

[employer’s] processes and is certainly insufficient, without more, to prove a

pattern of age discrimination”).

      W e conclude that no reasonable jury could find pretext from the evidence

offered by Enderwood.




                                         -13-
                      III. Oklahoma A nti-Discrimination Law

      Enderwood argues that the district court erred in dismissing his OADA and

Burk claims. But the district court did not dismiss his Burk claim; rather, in

response to the defendants’ first motion to dismiss, Enderwood

conceded— perhaps prematurely— that his Burk claim “ha[d] no basis under

Oklahoma law,” Aplt. App., Vol. 1 at 66, and he abandoned the claim by filing an

amended complaint that completely omitted it, see Davis v. TXO Prod. Corp.,

, 1517 (10th Cir. 1991) (observing that “an amended complaint

ordinarily supersedes the original and renders it of no legal effect” (quotation

omitted)). 1 And while the district court did dismiss Enderwood’s O ADA claim in

response to the defendants’ second motion to dismiss, it correctly ruled that the

OADA does not provide anything more than an administrative remedy for age

discrimination. See 

; Tate v. Browning-Ferris, Inc.,

, 1229 (Okla. 1992).




1
       One month after the district court entered summary judgment, resolving the
remainder of Enderwood’s claims, the Oklahoma Supreme Court extended the
Burk tort to “those who allege employment age discrimination.” See 

, abrogating 

. W hile we “must review the
District Court’s judgment in light of presently existing [state] law , not the law in
effect at the time that judgment was rendered,” Fusari v. Steinberg, 

,
387 (1975), we reiterate that Enderwood’s Burk claim was removed from this case
by Enderwood. Consequently, there is no district court ruling regarding Burk for
us to review.

                                         -14-
                                  IV. Vacation Pay

      Enderwood relies on Biggs v. Surrey Broadcasting Co., 

(Okla. Civ. App. 1991), for his claim for vacation pay. “W hile not binding on

this court, decisions by a state’s intermediate appellate courts provide evidence of

how the state’s highest court would rule on the issue, and we can consider them

as such.” Com bs v. PriceWaterhouse Coopers LLP, 

, 1200 n.1

(10th Cir. 2004) (quotation omitted). W e generally follow intermediate rulings in

the absence of “other persuasive data that the highest court of the state w ould

decide otherwise.” 

      To begin, Enderwood belatedly seeks to certify the question to the

Oklahoma Supreme Court. We deny Enderwood’s motion to certify this issue to

the Oklahoma Supreme Court, as “[w]e generally will not certify questions to a

state supreme court when the requesting party seeks certification only after

having received an adverse decision from the district court.” Park Univ. Enters.,

Inc. v. Am. Cas. Co. of Reading, Pa., 

, 1242 n.1 (10th Cir. 2006)

(quotation omitted). M oreover, “[w]hether to certify a question of state law to the

state supreme court is within the discretion of the federal court,” Oliveros v.

M itchell, 

, 1093 (10th Cir. 2006) (quotation omitted), and we

decline to exercise our discretion here, given the clarity of the regulations and the

terms of Sinclair’s employment policy, which Enderwood agreed to.




                                         -15-
      Turning to the merits of the claim, in Biggs, the Oklahoma Court of Civil

Appeals held that a fired employee was entitled to payment for unused vacation

time, even though the employer’s leave policy limited payment “to situations

where the employee gives two weeks’ 

. The court

reasoned that not only was the fired employee unable to comply with the

employer’s policy, but that the Oklahoma statute requiring payment of an

employee’s wages upon the end of employment, Okla. Stat. Ann. tit. 40, § 165.3,

lacked an “involuntary termination exception.” 

. W e

conclude that Biggs is not dispositive of Enderwood’s claim.

      In the aftermath of Biggs, § 165.3 has been clarified by regulation. W hen

Enderw ood was fired in 2003, § 165.3 read, “W henever an employee’s

employment terminates, the employer shall pay the employee’s wages in full, less

offsets . . . .” Okla. Stat. Ann. tit. 40, § 165.3(A) (W est 1999). 2 “W ages” include

vacation pay “which [is] earned and due, or provided by the employer to his

employees in an established policy.” 

The Oklahoma

Commissioner of Labor, who is charged with “enforc[ing] and “administer[ing]

the provisions of [Title 40],” 

has clarified the definition of

“wages” in three critical respects. First, wages are not “earned and due” if a



2
      The legislative amendments to sections 165.3 and 165.1, effective
November 1, 2005, are not retroactive, and therefore, are inapplicable to this case.
Okla. Stat. tit. 40, §§ 165.1 & 165.3(A) (W est Supp. 2007); see also 2005 Okla.
Laws, ch. 359, § 2.

                                          -16-
“condition[ ] precedent to payment” has not been met. Okla. Admin. Code

§ 380:30-1-2. Second, an “established policy” includes a written employment

policy. 

any conditions regarding vacation benefits “contained in

a written policy signed by the employee” must be satisfied before “the benefit

becomes part of wages earned and due.” 

see also 

(stating that the “Department shall reject any [accrued-leave]

claim if the . . . claimant has failed to meet all conditions precedent required for

such payment”). Thus, an employer’s written policy, signed by the employee,

which conditions payment for unused vacation time on the employee not being

terminated for cause, will defeat an accrued-leave claim brought by an employee

terminated for cause. Because Sinclair’s employment policy, which Enderwood

agreed to, precludes “payment for unused vacation . . . to an employee who . . . is

dismissed for cause,” Aplt. App., Vol. 3 at 846, and because Enderwood has not

identified sufficient evidence to dispute his termination for cause, his claim for

vacation pay fails.

                              V. Tortious Interference

      To plead a claim for tortious interference with contract or business

relations, the plaintiff must allege that (1) he had a contractual or business right

that was interfered with; (2) the interference was malicious and wrongful; (3) the

interference was neither justified, privileged nor excusable; and (4) the

interference proximately caused damage. M ac Adjustment, Inc. v. Prop.

                                          -17-
Loss Research Bureau, 

, 428 (O kla. 1979). Further, a

wrongful-interference claim “can arise only when one who is not a party to a

contract interferes with that contract by convincing one of the contracting parties

to breach its terms.” Voiles v. Santa Fe M inerals, Inc., 

, 1210

(Okla. 1996). Thus, an agent of a principal cannot be held liable for interfering

with a contract between the principal and another party. M artin v. Johnson,

, 896 (Okla. 1998). But if the agent acts outside the scope of the

agency, he can be held liable. 

& 897 n.8. W e conclude that

Enderwood’s allegations are fatal to his interference claim.

      In the amended complaint, he alleged that human resources vice-president

Thompson, acting on Butler’s advice and Sinclair’s behalf, “wrongfully induced

[KOKH] to breach its employment agreement with [him].” Aplt. App., Vol. 1

at 97. But he also alleged that Sinclair owned KOKH, 

that Butler and

Thompson were Sinclair employees “acting in the scope of their employment,”

and that he reported to Butler, 

Based on these allegations,

no third party interfered with the KOKH/Enderwood contract: Sinclair and

KOKH were basically indistinguishable for purposes of Enderw ood’s

employment, and Butler and Thompson properly acted as Sinclair’s agents.

Enderwood cannot state a viable interference claim by essentially alleging that

Sinclair interfered with its own contract.




                                         -18-
The judgment of the district court is AFFIRMED.

                                          Entered for the Court


                                          Robert H. Henry
                                          Circuit Judge




                               -19-