Parrett v. Raytheon Company

UNITED STATES COURT OF APPEALS
Filed 2/29/96
TENTH CIRCUIT

______

DIANE D. PARRETT, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-3146
) (D.C. No. 93-CV-1308)
RAYTHEON COMPANY, BEECH AIRCRAFT ) (Dist. of Kansas)
CORPORATION, UNITED BEECHCRAFT, )
INC., BEECH HOLDINGS, INC., RALPH )
DELONG and DAVE LAMBERTZ, )
)
Defendants-Appellees. )

______

ORDER AND JUDGMENT*

______

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
______

Diane D. Parrett (Parrett) appeals from the district court’s

Memorandum and Order of March 10, 1995: granting a motion in limine

to Raytheon Company and its subsidiaries Beech Aircraft

*
This Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. Citation of unpublished orders and judgments is
not favored. Nevertheless, an unpublished decision may be cited if it has persuasive value with
respect to a material issue that has not been addressed in a published opinion and it would assist
the court in its disposition. A copy of the decision must be attached to the brief or other
document in which it is cited, or, if cited in oral argument, provided to the court and all other
parties.

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Corporation, United Beechcraft, Inc., and Beech Holdings, Inc.,

Dave Lambertz, and Ralph DeLong (collectively “appellees”);

granting appellees’ motion for summary judgment on her age

discrimination, sexual discrimination, sexual harassment/hostile

work environment and retaliation claims; and dismissing without

prejudice her state law claim of breach of implied contract.

Facts1

United Beechcraft, Inc. (Beechcraft), owns and operates an

aircraft fixed base operation at Wichita’s Mid-Continent Airport.

From October, 1988, to September 15, 1992, Beechcraft operated

three facilities in Wichita: Beechcraft-South, Beechcraft-Central,

and Beechcraft-North.

Parrett was hired at Beechcraft-South as a

receptionist/merchandise purchasing manager on August 11, 1975.

Parrett left Beechcraft in December, 1977, but was rehired in June,

1981. In 1985, her job title was changed, at her request, to

customer service representative.

On April 22, 1989, Parrett wrote a lengthy letter to Thomas

Phillips, CEO of Raytheon Company, complaining about communications

problems, management practices and policies, disrepair of the

1
When reviewing a motion for summary judgment we review
the facts in the light most favorable to the non-moving party.
Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1412 n.1 (10th
Cir. 1993).

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facility, treatment of customers, and treatment of employees in

general by Line Manager Ralph DeLong (DeLong). (Appellant’s

Appendix at 94-98). Parrett was contacted by Ron Lance (Lance),

Manager of Administration and Personnel for Beech Holdings, Inc.,

in early June, 1989, and informed that her concerns were being

addressed.

On October 10, 1990, Parrett prepared a 17-page “Incident

Report” entitled Diane Parrett vs. United Beechcraft. The first

portion of the report complained that there was no customer service

representative supervisor position to which customer service

representatives could aspire. The report proceeded to complain

about the “sexist, bigoted,” “dictator,” behavior of DeLong and the

new Assistant Line Manager, Bob Wattson, who was a “willing

assistant” to DeLong. (Appellant’s Appendix at 104).

Specifically, Parrett’s report stated that, inter alia: (1) on

some unspecified date, DeLong told another female employee at

Beechcraft-South, that “we should be made to wear ‘hot pants’ to go

out and park planes like the girls in Salina do;” (2) in 1984,

DeLong purchased uniforms for the three women customer service

representatives at Beechcraft-South, including Parrett, and that he

stayed in the room and watched while her bust, waist, hips, and

inseam were measured by the man from the uniform company, although

the blinds were drawn to prevent the line technicians outside from

observing; (3) in speaking with her, DeLong once referred to

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another female employee by stating, “That dumb broad, she can’t

even go the restroom without asking me;” (4) in speaking to another

employee regarding Parrett, DeLong said, “She’s as stupid as a

whore on South Broadway;” (5) sometime in 1982 she called in sick,

Wattson then called her at home and told her that if she performed

her part in a local play that evening she would be fired; (6) in

January, 1989, she called in sick with pneumonia and Wattson

patronizingly said, “Well, I guess we’ll just have to chalk it up

to the wimp factor;” (7) in December, 1989, Wattson “just blew up

and lost his cool” yelling at Parrett while discussing complaints

made about her not performing tasks fast enough; and (8) on several

occasions, Wattson accused her of errors she had never made and

when she did make a $0.10 error he shoved it in her face and said,

“Gotcha.” Id. at 104-08.

In March, 1991, Parrett delivered a copy of her Incident

Report to Nita Long, head of the EEO Department at Beechcraft in

Wichita.

On November 22, 1991, Brian Mitchell (Mitchell), a personnel

representative for Beech Holdings, Inc., met with Parrett after

receiving a telephone call from her. At that time, Parrett gave

Mitchell a copy of her Incident Report. After their meeting,

Parrett wrote an update to her Incident Report which she sent to

Mitchell. The 4-page update contained complaints ranging from the

operation of Beechcraft-South to the style of furniture in the

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office. (Appellant’s Appendix at 117-120).

Mitchell wrote Parrett on December 11, 1991, stating that

management would investigate the issues raised by her in order to

achieve a “proper resolution.” He indicated he would contact her

at a later date and provided a telephone number for her to contact

him in the interim.

In early 1992, the supervisory structure at Beechcraft-South

changed. Dave Simons, the Operations Manager, was reassigned to

another facility and replaced, on an interim basis, by Mike Bomstad

(Bomstad). Shortly thereafter, Bomstad directed DeLong to reduce

Parrett’s work week to Tuesday through Thursday effective February

23, 1992. In making this decision, Bomstad relied on a

misunderstanding that Parrett frequently asked for Monday’s and

Friday’s off to work at the bed and breakfast she ran out of her

home. Parrett immediately complained to Mitchell that she had not

repeatedly asked for Monday’s and Friday’s off to work at her bed

and breakfast and that she did not want a three-day work week.

Within ten days Parrett was reinstated to a full five-day schedule.

In March, 1992, Bomstad was replaced by Alden Lange (Lange).

In addition, Eric Larson (Larson) replaced Wattson as Assistant

Line Manager and Parrett’s immediate supervisor.

About this time, Parrett heard that Diane Pruitt was leaving

her position doing fuel farm accounting. Parrett sent her resume

to Dave Lambertz (Lambertz), Business Manager in Wichita. Lambertz

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informed her that he was looking for someone with an accounting

degree. In July, 1992, Lambertz and Lange interviewed and hired

Anna Isenhour (Isenhour) for the accounting position. Until that

time, Isenhour had been a customer service

representative/receptionist at Beechcraft-South. Although Isenhour

did not have an accounting degree, she had experience in operations

management of aviation fixed based operations, experience and

training in accounting, and had taken a number of college courses

in both accounting and computing.

On September 15, 1992, Beechcraft combined the operations of

its north and south facilities, closing Beechcraft-South. As a

result, Parrett’s customer service representative position at

Beechcraft-South was eliminated and she was transferred to a

receptionist position at Beechcraft-Central. Connie Thomas, who

had held the receptionist position at Beechcraft-Central, moved

into the position of sales secretary working directly for Ken

Shultz.

In November, 1992, Beechcraft experienced a further reduction-

in-force in which Parrett’s receptionist position at Beechcraft-

Central was eliminated. Lambertz determined that Parrett lacked

the experience to perform any of the available positions and

notified her of her layoff on November 13, 1992. In a meeting with

Lambertz and Wes Bishop, Parrett opted to list her status as

“terminated” rather than “layoff” in order to receive her 401K plan

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benefits immediately.

On January 26, 1993, Parrett filed a sworn written complaint

with the Kansas Human Rights Commission and the Equal Employment

Opportunity Commission (EEOC). After an attempt at an

administrative resolution failed, the EEOC issued her a right to

sue letter on July 15, 1993.

On August 20, 1993, Parrett initiated this action against

appellees alleging violations of Title VII, 42 U.S.C. § 2000e et

seq.; violations of the Civil Rights Act of 1991 and 42 U.S.C. §

1981(a); age discrimination; and breach of implied contract of

employment. In addition, Parrett alleged that appellees withheld

and altered material evidence relating to her age discrimination

claim.

On August 18, 1994, appellees filed a Motion in Limine to

exclude from the trial any reference to or testimony regarding

Parrett’s allegation that appellees tampered with an October 8,

1993, memorandum from Lambertz to Lange. On December 27, 1994,

appellees filed a Motion for Summary Judgment on all of Parrett’s

claims.

On March 10, 1995, the district court granted appellees’

motion in limine; granted appellees’ motion for summary judgment on

Parrett’s discrimination and retaliation claims; and dismissed her

state law claim for breach of implied contract without prejudice.

On April 13, 1995, the district court denied Parrett’s motion for

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reconsideration.

Issues

On appeal, Parrett contends that the district court erred in

(1) granting appellees’ motion in limine to exclude evidence

relating to her allegation of document tampering, and (2) in

granting appellees’ motion for summary judgment on her claims of

age discrimination, sexual discrimination, sexual

harassment/hostile work environment, and retaliation.2

Discussion

I.

Parrett contends that the district court erred in granting

appellees’ motion in limine to exclude evidence of her allegation

of document tampering. Parrett alleges that appellees altered an

October 8, 1992, memorandum from Lambertz to Lange which was highly

relevant to her age discrimination claim. Parrett claims that on

the original memorandum birth dates had been handwritten in the

margin next to five employees’ names, including hers, which were

not there when appellees’ returned the memorandum after borrowing

it.

2
Parrett does not contest the district court’s dismissal
without prejudice of her state law claim of breach of contract.
Therefore, this issue is abandoned. See Crow Tribe of Indians v.
Repsis, ___ F.3d ___,___ n.5 (10th Cir. 1995).

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 The evidentiary rulings of the district court are reviewed for

an abuse of discretion. Faulkner v. Super Valu Stores, Inc., 3

F.3d 1419, 1433 (10th Cir. 1993). Under this deferential standard

of review, a district court will be reversed only if we have a firm

and definite belief that the district court made a clear error in

judgment. Id. (citing Gilbert v. Cosco Inc., 989 F.2d 399, 402

(10th Cir. 1993)).

After careful review of the record, we conclude that the

district court did not abuse its discretion in excluding any

reference to the alleged alteration of the October 8, 1992,

memorandum. The author of the memorandum, Lambertz, testified that

he did not put any dates on the memorandum and he had never seen

any dates on the memorandum. (Defendants/Appellees’ Supplemental

Appendix, Vol. II at 331-333). In addition, the district court

found that: the report of Parrett’s forensic document examiner

failed to identify any evidence of document tampering and, in fact,

concluded that the copy provided to Parrett was a copy of the same

document used in a suit prior to the tampering allegations which

had never been removed from the possession of Parrett’s counsel;

Lambertz testified that “an internal Beech memo was generated from

Wes Bishop to Ron Lance on November 5, 1992, which identified

various individuals for recommended layoffs, and also listed the

date of hire (rather than birth) for each employee;” the November

5, 1992, document could easily have been mistaken for the

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allegedly altered document; and the only person to have actually

seen a document with both employees’ names and dates on it only

inferred that the dates were birth dates and could not remember the

particular dates in question. (Appellant’s Appendix at 27-32).

Therefore, the district court concluded that “[s]et against the

minimal probative value of [Parrett’s] evidence is the direct

statement of the [appellees] that there has been no manipulation

and the clear prejudice arising from the assertion of a deliberate

falsification of evidence.” Id. at 30. Based on the foregoing, we

conclude that the district court did not abuse its discretion in

granting appellees’ motion in limine.

II.

Parrett contends that the district court erred in granting

appellees’ motion for summary judgment on her discrimination

claims. The district court granted summary judgment dismissing

Parrett’s sexual discrimination, sexual harassment/hostile work

environment, and age discrimination claims as untimely and granted

summary judgment on her retaliation claim on the grounds that there

was a “complete lack of any evidence suggesting that the acts

complained of were caused by Parrett’s participation in protected

activity.” (Appellant’s Appendix at 42).

This court reviews a grant of summary judgment de novo. “We

apply the same legal standard used by the district court under Fed.

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R. Civ. P. 56(c) and examine the record to determine if any genuine

issue of material fact was in dispute; if not, we determine if the

substantive law was correctly applied.” Applied Genetics Int’l,

Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.

1990). Summary judgment is appropriate 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 judgment as a matter of law. Wolf v. Prudential Ins. Co. of

Am., 50 F.3d 793, 796 (10th Cir. 1995) (citing Applied Genetics,

912 F.2d at 1241). When applying this standard, we examine the

factual record and reasonable inferences therefrom in the light

most favorable to the non-moving/opposing party. Wolf, 50 F.3d at

796. The opposing party, however, must identify sufficient

evidence to require submission of the case to a jury. Jones v.

Unisys Corp, 54 F.3d 624, 628 (10th Cir. 1995). We affirm the

district court’s decision to grant summary judgment if the record

contains any basis to do so. Swoboda v. Dubach, 992 F.2d 286, 291

(10th Cir. 1993).

A. Title VII Claims

Parrett contends that the district court erred in granting

summary judgment to appellees on the grounds that her Title VII

sexual discrimination and sexual harassment/hostile work

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environment claims were untimely.

In Kansas, a plaintiff must file Title VII discrimination

charges within 300 days after the alleged discriminatory act

occurred.3 42 U.S.C. § 2000e-5(e)(1). Parrett filed her complaint

with the Kansas Human Rights Commission on January 26, 1993. Thus,

her claim is timely only with respect to discriminatory acts which

occurred after April 1, 1992.

All of the specific acts of discrimination and of a hostile

work environment complained of by Parrett occurred while Wattson

was Assistant Line Manager under DeLong. However, Larson replaced

Wattson as Assistant Line Manager on March 16, 1992. Therefore,

Parrett’s Title VII claims were untimely and in order for her

untimely Title VII claims to survive, she must prove that a

continuing violation existed.4

To invoke the continuing violation exception to the Title VII

charge-filing deadlines, Parrett must show either (1) a series of

related acts taken against a single individual, one or more of

which falls within the limitations period, or (2) the maintenance

3
The 300 day limitation applies in those states that
have statutorily prohibited sexual discrimination. Otherwise the
limit is 180 days. 42 U.S.C. § 2000e-5(e).
4
The timely filing of a discriminatory charge may also
be equitably tolled where a plaintiff has been “actively
deceived” causing her filing to be untimely. Purrington v.
University of Utah, 996 F.2d 1025, 1030 (10th Cir. 1993);
Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984). However,
this argument was not raised in the district court and,
therefore, cannot be considered on appeal.

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of a company-wide policy of discrimination both before and during

the limitations period which evidences a pervasive,

institutionalized “system” of discrimination. Purrington v.

University of Utah, 996 F.2d 1025, 1028-29 (10th Cir. 1993); Bruno

v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987).

While Parrett asserts that she has continually been subjected

to sexual discrimination and a hostile work environment, she does

not point to any specific incidents of discrimination or harassment

which occurred after April 1, 1992. The only mention of continuing

discrimination and harassment after April 1, 1992, is found in her

affidavit submitted in response to appellees’ motion for summary

judgment, wherein she asserted that:

33. During the short time Eric Larson took over as
Assistant Line Manager, which was only approximately six
months, he made conditions more tolerable, but he did not
have the power to correct the ongoing discriminatory
policies. This did not change the workplace environment,
it did not give me an opportunity for equal advancement,
nor keep me from being subject to sexual innuendos all
around me, or anything else. The basic work
“environment” did not change, although Eric’s management
style made it more enjoyable. Female Customer Service
Reps were still subject to sexually oriented comments
from customers on an ongoing basis, such as “she must
have PMS”, “darling”, “sweetie” or “cupcake”.

(Appellant’s Appendix at 67) (emphasis added).

Parrett’s only continuing complaint is that her discriminatory

work environment has not changed because she is still subject to

sexually oriented jokes and innuendos from customers. However,

Title VII, 42 U.S.C. §§ 2000e et seq., protects an employee from

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unlawful employment practices of the employer. Section 42 U.S.C.

§ 2000e-2 provides:

(a) Employer practices
It shall be an unlawful employment practice for an
employer --
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees
or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as
an employee, because of such individual’s race, color,
religion, sex, or national origin.

Taking Parrett’s affidavit in the light most favorable to her,

there are no allegations of discriminatory acts which occurred

after April 1, 1992, which rise to the level of a violation of her

civil rights under Title VII, 42 U.S.C. § 2000e-2.

In addition, the district court found that Parrett’s

assertions in her affidavit of February 14, 1995, were an attempt

to create a “sham issue” because they egregiously contradicted her

earlier deposition testimony. (Appellant’s Appendix at ). We

agree.

In her deposition on November 16, 1993, Parrett testified in

response to direct questions by counsel that:

A. After Eric took over there was a very
noticeable improvement in everything. Everyone responded
to him. He was fair and treated everyone as equals.

* * *

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 Q. What do you claim, if anything, was the hostile
work environment directed to you during your working
shift when Eric Larson was your immediate supervisor?

A. When Eric took over, things were a lot better.
There were not the comments made to us. There were not
the differences in treatment. He immediately gave me a
key to access the cabinets where the supplies were kept.
He immediately went back to talking to me about ordering
merchandise and being willing to delegate some authority
and let you take a part in taking care of day-to-day
operations, whereas Bob [Wattson] had kept all of that to
himself and would not let me have any control over
anything, even if it was my own work area. He would not
release that.

Q. Do you claim there was any hostile work
environment because of your sex while Eric Larson was
your immediate supervisor on or after March of 1992?

A. As far as from a management standpoint, the way
he treated me, no. There was always some underlying
thing with linemen, but not as far as with Eric. He was
very fair.

Q. In reference to the work area that Eric Larson
had responsibility over, what do you claim, if anything,
was the hostile work environment directed toward you
because of your sex?

A. He improved that a lot. I really just right
now could not recollect anything. If anything, he
improved situations a lot with the treatment because of
the women that were there.

(Defendants’/Appellees’ Supplemental Appendix, Vol. VI at 1321 &

1334).

Parrett has failed to produce any evidence of a continuing

violation. She has not alleged any specific incidents of

discrimination which occurred within the limitations period to

substantiate a continuing violation based on a series of related

acts nor has she adduced any evidence of a pervasive company-wide

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policy of discrimination. Hence, we hold that the district court

properly granted appellees summary judgment on Parrett’s Title VII

discrimination claims.

B. Age Discrimination

Parrett contends that the district court erred in dismissing

her age discrimination claim brought under the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621 et seq., as untimely.

The district court considered Parrett’s age discrimination claim

together with her Title VII discrimination claims and found that

they were all untimely because they were not filed within 300 days

of the alleged discriminatory acts. (Appellant’s Appendix at 42).

Similar to Title VII, 42 U.S.C. § 2000e-5(e), the ADEA

requires that a plaintiff file age discrimination charges within

300 days after the alleged discriminatory act occurred.5 29 U.S.C.

§ 626(d)(2). Therefore, because Parrett filed her complaint with

the Kansas Human Rights Commission on January 26, 1993, her age

discrimination claim is timely only with respect to discriminatory

acts which occurred after April 1, 1992.

Parrett based her age discrimination claim on three incidents:

(1) in June, 1981, Lambertz and Lange hired the younger Isenhour

over her for the fuel farm accounting position; (2) in November,

5
The 300 day limitation applies in those states that
have statutorily prohibited sexual discrimination. Otherwise the
limit is 180 days. 29 U.S.C. § 626(d)(2).

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1992, her seniority should have “bumped” her into Isenhour’s fuel

farm accounting position instead of being terminated when her

receptionist position was eliminated; and (3) in December, 1992,

she was not rehired after Dee Zogelman resigned her position as a

customer service representative just six weeks after Parrett’s

termination. Since all of these events occurred after April 1,

1992, Parrett’s age discrimination claims were timely. However, we

must now consider whether a genuine issue of material facts exists

which would prevent summary judgment.

ADEA plaintiffs may establish discrimination indirectly

through the three-part framework set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and its progeny. MacDonald v.

Eastern Wyo. Mental Health Ctr., 941 F.2d 1115, 1119 (10th Cir.

1991). Under the McDonnell Douglas test, the plaintiff bears the

burden of establishing a prima facie case of discrimination. Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

Establishment of a prima facie case creates a presumption of

unlawful discrimination that requires a defendant to come forward

with evidence of a legitimate nondiscriminatory reason for the

challenged action. MacDonald, 941 F.2d at 1119. If the defendant

offers evidence of a legitimate nondiscriminatory reason for its

employment decision, “the presumption of discrimination established

by the prima facie showing simply drops out of the picture.”

Ingels v. Thiokol Corp, 42 F.3d 616, 621 (10th Cir. 1994). The

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plaintiff must then offer evidence that age was a determining

factor in the challenged decision by either showing that the

defendant’s proffered reasons were really a pretext for age

discrimination or by producing direct evidence of age

discrimination. Jones, 54 F.3d at 630. At the summary judgment

stage, if the plaintiff produces both a prima facie case and

evidence supporting a finding that “defendant’s alleged

nondiscriminatory reasons for the employment decisions are

pretexual, the case should go to the factfinder.” Ingels, 42 F.3d

at 622. We must first determine whether Parrett established a

prima facie case on any one of her claims.

A plaintiff establishes a prima facie case of age

discrimination by showing that she was (1) within the protected age

group; (2) doing satisfactory work or qualified for the position;

(3) discharged or adversely affected by the employer’s decision;

and (4) replaced by a younger person. Jones, 54 F.3d at 630. “In

reduction in force cases, because a plaintiff is not always

replaced with another employee, we modified the McDonnell Douglas

burden-shifting scheme so that a plaintiff may demonstrate the

fourth element by producing ‘evidence, circumstantial or direct,

from which a factfinder might reasonably conclude that the employer

intended to discriminate in reaching the decision at issue.’” Id.

(quoting Branson v. Price River Coal Co., 853 F.2d 768, 770 (10th

Cir. 1988)). The fourth element may also be shown by

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circumstantial evidence that a plaintiff was treated less favorably

than younger employees. Rea v. Martin Marietta Corp., 29 F.3d

1450, 1454 (10th Cir. 1994).

Parrett alleges that she was discriminated against based on

her age when Isenhour, who is much younger than Parrett, was given

the fuel farm accounting position and when Isenhour was retained in

that position during the reduction in force. In establishing a

prima facie case, it is clear that Parrett was in the protected age

group, over 40; adversely affected by the decision; and replaced

by a younger person, Isenhour, who was in her early twenties. Of

critical importance to her claims is whether she was qualified for

the fuel farm accounting position. See Kenworthy v. Conoco, Inc.,

979 F.2d 1462, 1470 (10th Cir. 1992) (in failure to promote case,

plaintiff could make a prima facie showing through credible

evidence that she was qualified for the position she sought, even

if that evidence was disputed by her employer).

The most credible evidence of Parrett’s qualifications for the

fuel farm accounting position is found in her resume which she

voluntarily sent to Lambertz as an application for that position.

The fuel farm accounting position required, inter alia, personal

computing skills; knowledge and use of Lotus 1-2-3 and Dbase; and

accounting and general ledger experience and skills. Although

Parrett’s resume lists an extensive array of skills and

experiences, it is devoid of any personal computing skills,

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knowledge or use of Lotus 1-2-3 or Dbase and lacking in accounting

experience.6 (Appellant’s Appendix at 121-123). Without these

primary skills and experiences, Parrett is not qualified for the

fuel farm accounting position.

Finally, Parrett claims that she was discriminated against

when she was not rehired/recalled and a younger woman was

transferred from the warranty department into the customer service

representative position vacated by Dee Zogleman six weeks after

Parrett was terminated. At the time Parrett was notified her

receptionist position was being eliminated, she was given the

choice to list her status as “terminated” or “layoff.” If she

chose “layoff” she was subject to recall, but had to wait a minimum

of six months to receive her 401K plan benefits. However, if she

chose “terminated” she would receive her 401K plan benefits

immediately. For personal reasons, Parrett chose to list her

status as “terminated” in order to receive her benefits sooner.

Therefore at the time the customer service representative position

became vacant, Parrett was not subject to recall. She could apply

for any positions that came available like any other member of the

public. However, Beechcraft was under no obligation to call and

offer her the job.

6
In our independent review of the record, we discovered
that Parrett took one college class in financial accounting in
which she received a grade of “C.” This alone is insufficient to
qualify her for the fuel farm accounting position.

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 Accordingly, Parrett has failed to establish a prima facie

case of age discrimination. Hence, the district court properly

granted summary judgment in favor of appellees.

C. Retaliation Claim

Parrett contends that the district court erred in granting

appellees’ summary judgment motion with respect to her retaliation

claims. The district court found that summary judgment was

appropriate as to Parrett’s retaliation claims because of a

“complete lack of any evidence suggesting that the acts complained

of were caused by Parrett’s participation in protected activity.”

(Appellant’s Appendix at 42).

Parrett asserts that appellees retaliated against her for

writing her April 22, 1989, letter to Phillips, for submitting her

Incident Report and the update in 1991 to Mitchell, and for filing

this Title VII action with the EEOC and KHRC. Parrett claims that

in retaliation for her actions Appellees: cut her schedule to a

three-day work week; never gave her the opportunity to interview

for other positions during the reduction in force, although her

seniority should have permitted her the opportunity to remain with

the company; and did not bring her back to work six weeks after she

was terminated when Dee Zogelman resigned her position.

To establish a prima facie case of retaliation a plaintiff

must show that (1) she was engaged in a protected opposition to

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Title VII discrimination or participated in a Title VII proceeding;

(2) she was disadvantaged by an action of her employer subsequent

to or contemporaneously with such opposition or participation; and

(3) there is a causal connection between the protected activity and

the adverse employment action. Daniel v. Loveridge, 32 F.3d 1472,

1475 (10th Cir. 1994); Burrus v. United Tel. Co. of Kan., Inc., 683

F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982).

“The causal connection may be demonstrated by evidence of

circumstances that justify an inference of retaliatory motive, such

as protected conduct followed by adverse action.” Burrus, 683 F.2d

at 343.

The district court found that Parrett’s letter of April 22,

1989, was not the product of protected conduct because it failed to

raise any issues of gender or age discrimination; therefore it

could not serve as the basis for a claim of retaliation.

(Appellant’s Appendix at 42 n.2). We agree. Although Parrett’s

April 22, 1989, letter raises many issues, it fails to allege any

discriminatory actions which would amount to a violation of Title

VII. In addition, Parrett’s filing of her complaint with the EEOC

and the KHRC cannot be the basis of a retaliation claim, inasmuch

as these filings were made well after Parrett’s employment with

appellees had been terminated.

Parrett’s only allegations of Title VII discrimination are

found in her Incident Report which she distributed in March and

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November of 1991. The only adverse job action chronologically

proximate to Parrett’s publication of her Incident Report was the

temporary reduction in her work week to Tuesday through Thursday

which occurred in February, 1992. However, it is uncontroverted

that this reduction was caused by Bomstad’s mistaken belief that

she wished to have Monday’s and Friday’s off and that he did not

know of her Incident Report before instituting her new schedule.

In addition, Parrett was returned to her normal five-day work week

within ten days. We have previously held that a “plaintiff must

show that the individual that took adverse action against [her]

knew of [her] protected activity.” Williams v. Rice, 983 F.2d 177,

181 (10th Cir. 1993). Accordingly, we agree with the district

court that this brief adverse job action cannot serve as a basis

for a claim of retaliation.

With respect to Parrett’s remaining claims that she was

retaliated against because appellees failed to give her the

opportunity to interview for available jobs during the reduction in

force and that appellees failed to recall her six weeks after she

was terminated, the district court found “a complete lack of any

evidence suggesting that the acts complained of were caused by

Parrett’s participation in protected activity, here, by submitting

the incident report and its update in late 1991.” (Appellant’s

Appendix at 42). After careful review of the record, we hold that

Parrett failed to demonstrate a causal connection between her

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protected activity and adverse action by the appellees. Summary

judgment on Parrett’s retaliation claims was proper.

AFFIRMED.

Entered for the Court:

James E. Barrett,
Senior United States
Circuit Judge

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