UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAMES MCMAHEN,

Plaintiff - Appellant,

v.

GAFFEY, INCORPORATED,

Defendant - Appellee.No. 01-5130

D.C. No. 00-CV-626-H

(N.D. Oklahoma)

ORDER AND JUDGMENT(*)

Before KELLY and BALDOCK, Circuit Judges,and BRORBY, Senior CircuitJudge.

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument.

Plaintiff James McMahen appeals the district court's order grantingsummary judgment in favor of his former employer, Gaffey, Incorporated, on hiscomplaint alleging Gaffey terminated him in violation of the Age Discriminationin Employment Act, 29 U.S.C. §§ 621-634 (ADEA). Because we agree withthedistrict court that McMahen failed to present evidence demonstrating a primafacie case of age discrimination, we affirm.

McMahen was an engineer with Gaffey, a manufacturer of overhead cranesand material handling systems. He was promoted to Engineering Manager in1994. In 1998, Gaffey began a company-wide reorganization andreduction-in-force (RIF) under new management. Gaffey eliminated the positionof Engineering Manager, reorganized the engineering group into threedepartments, and assigned McMahen as the project engineer for the groupresponsible for the design and manufacture of custom cranes. Gaffey laterdecided to phase out production of custom cranes and focus its business on theproduction of standard cranes. It terminated McMahen in October 1998 as part ofits RIF.

Because McMahen did not present direct evidence of age discrimination,his ADEA claim is analyzed under the method of proof outlined in McDonnellDouglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Stone v. Autoliv ASP,Inc., 210 F.3d 1132, 1137 (10th Cir. 2000).

This burden-shifting framework first requires plaintiffs to provea prima facie case. To establish a prima facie case of agediscrimination in the RIF context, a claimant affected by a RIF mustprove: (1) the claimant is within the protected age group; (2) he orshe was doing satisfactory work; (3) the claimant was dischargeddespite the adequacy of his or her work; and (4) there is someevidence the employer intended to discriminate against the claimantin reaching its RIF decision. The fourth element may be establishedthrough circumstantial evidence that the plaintiff was treated lessfavorably than younger employees during the RIF.

Id. (citations, quotations, and alteration omitted).

The district court ruled that McMahen did not present a prima facie casebecause he presented no evidence in support of the fourth element. McMahencontends he was treated less favorably than younger employees during the RIFbecause his job responsibilities were taken over by a younger thirty-three year-oldwoman, Ginger Delaloye, who was not terminated in the RIF. See Beaird v.Seagate Tech., Inc., 145 F.3d 1159, 1167 (10th Cir. 1998) (stating "a plaintiffwho is fired pursuant to a RIF and who held a similar position to a youngerretained employee can satisfy the fourth element" of the prima facie case). Therecord does not support this conclusion.

First, there is no evidence that Delaloye was similarly situated toMcMahen. She was a project engineer for semi-custom cranes, in contrast toMcMahen, who was project engineer for the custom cranes. It is undisputed thatMcMahen's area of expertise and responsibility­custom cranes­was in the areaGaffey decided to shift away from during its reorganization. Second, there is noevidence Delaloye replaced McMahen after his termination. The undisputedevidence in the record indicates that the only job responsibility of McMahen'sassumed by Delaloye was sizing beams, and that another employee, David Royse,carried McMahen's projects to completion.(1) Thus, the undisputed evidencedemonstrates that McMahen's duties were eliminated or redistributed as part ofGaffey's reorganization and that he was replaced by no one. See Lilley v. BTMCorp., 958 F.2d 746, 752 (6th Cir. 1992) ("Spreading the former duties of aterminated employee among the remaining employees does not constitutereplacement.").

McMahen points to evidence in the record indicating that the chiefexecutive officer of Gaffey's parent corporation discussed with Delaloye thepossibility of her promotion to an engineering supervisor position one month priorto terminating McMahen. Gaffey presented undisputed evidence, however, thatthe position of Engineering Manager, previously held by McMahen, had beeneliminated months earlier and that Delaloye was not promoted to any engineeringsupervisor position after McMahen's termination. We agree, therefore, with thedistrict court's conclusion that McMahen failed to present evidence of a primafacie case of age discrimination.

McMahen also contends on appeal that the district court abused itsdiscretion in denying his Fed. R. Civ. P. 59(e) motion, in which he attempted tointroduce new evidence. "[W]e evaluate the district court's ruling on the Rule59(e) motion for an abuse of discretion." Comm. for First Amendment v.Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992). In order to supplement a Rule59(e) motion with additional evidence, the movant must show either (1) that theevidence is newly discovered, or (2) if the evidence was available at the timesummary judgment was granted, that counsel made a diligent yet unsuccessfulattempt to discover the evidence. Id. McMahen has not satisfied this standard. His contention that the witness had not returned his counsel's phone calls doesnot demonstrate reasonable diligence sufficient to justify granting the Rule 59(e)motion. Accordingly, we find no abuse of discretion.

The judgment of the United States District Court for the Northern Districtof Oklahomais AFFIRMED.

Entered for the Court

Wade Brorby

Senior Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. The record does not reveal Royse'sage, nor does McMahen allege Roysewas a similarly situated employee treated more favorably during the RIF.