Bullington v. United Air Lines, Inc.

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk

September 2, 1999

TO: ALL RECIPIENTS OF THE OPINION

RE: 98-1125, Bullington v. United Air Lines, Inc.
Filed on August 12, 1999

The opinion filed in this case contains a clerical error on line 1 of page 27.
The characters “74.)” were erroneously added to the beginning of the sentence.
The corrected sentence should appear as follows:

However, her own opinions about her qualifications do not give rise to a material
fact dispute.

Please make the correction to your copy of the opinion.

Very truly yours,

Patrick Fisher, Clerk

Kathleen M. Fabrizio
Deputy Clerk
 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 12 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MARION S. BULLINGTON,

Plaintiff-Appellant,

v. No. 98-1125

UNITED AIR LINES, INC.,

Defendant-Appellee.
_______________

NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION; AIR TRANSPORT
ASSOCIATION OF AMERICA,

Amici Curiae.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-WY-240-AJ)

Barry D. Roseman of Roseman & Kazmierski, LLC, Denver, Colorado, for
Plaintiff-Appellant.

Jerry N. Jones (Paul F. Lewis with him on the brief) of Moye, Giles, O’Keefe,
Vermeire & Gorrell LLP, Denver, Colorado, for Defendant-Appellee.

Elizabeth Lamb Kearney and Brent Ruther of Law Offices of Elizabeth Lamb
Kearney, Denver, Colorado; and Paula Brantner of National Employment Lawyers
Association, San Francisco, California, filed a brief for amicus curiae National
Employment Lawyers Association.
John J. Gallagher, Kenneth M. Willner and Neal D. Mollen of Paul, Hastings,
Janofsky & Walker LLP, Washington, D.C.; Brian M. Mumaugh and Marcy G.
Glenn of Holland & Hart LLP, Denver, Colorado; and David Berg of Air
Transport Association of America, Washington, D.C., filed a brief for amicus
curiae Air Transport Association of America.

Before TACHA, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

United Airlines, Inc. (“United”) interviewed and rejected Ms. Bullington

for the position of line pilot/flight officer on three separate occasions. Ms.

Bullington brought this action pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. , and the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. §§ 621 - 634, claiming United refused to hire her because

of her gender, her age and in retaliation for complaining about alleged

discrimination during the interview process. Ms. Bullington further claims

United breached an implied contract or an otherwise enforceable promise by

refusing to hire her. The district court granted United’s motion for partial

dismissal and United’s subsequent motion for summary judgment, and Ms.

Bullington appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm in part and reverse in part.

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 I. Background

Ms. Bullington, a female over the age of forty, currently works for United

as a ground school academic instructor. Over a two-year period, Ms. Bullington

sought but was denied a position as line pilot with United on three occasions.

United’s application and selection process for flight officers involves three

phases. In the initial phase, United accepts applications from individuals meeting

certain minimum qualifications including 350 hours of flight experience,

commercial pilot certification, a high school diploma, and other physical and

medical requirements. United then ranks eligible applicants according to

aeronautical experience. Those applicants ranked at the top of the list advance to

the second phase of the selection process. Because female applicants typically

have less aeronautical experience than male applicants, United ranks male and

female applicants separately. United then selects a proportionate number of males

and females to proceed to the second phase. At the second phase, applicants must

complete a simulator flight and a formal interview. Based on the applicant’s

performance, a review board then decides whether to reject the applicant or to

extend a conditional offer. If United extends a conditional offer, the candidate

moves on to the third phase, which includes a medical exam and background

check. Ms. Bullington objects to the formal interview portion of the selection

process.

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 Two United employees conduct the formal interview, an employment

representative and a flight operations representative. These individuals assess the

applicant in seven broad categories or “dimensions” including: industry

motivation, decision making/problem solving, compliance and conformity,

leadership, interpersonal skills, technical evaluation, and appearance/presentation.

Each dimension is broken down into a set of attributes or “anchors” United deems

desirable in a flight officer. Interviewers ask applicants questions from a

suggested list and, based on the applicant’s response, evaluate whether the

applicant meets United’s set standards for each attribute. 1
Based on those

attribute evaluations, the interviewers give the applicant a numerical score for

each dimension, ranging from a low of “1” to a high of “5.” The dimension

scores are then averaged to arrive at the applicant’s overall score. An applicant

must have an overall score of “3” or better to be recommended for a flight officer

position. However, if an applicant scores a “2” or lower on any one dimension,

1
For example, under the dimension “leadership,” United lists
“responsibility” as a desired attribute or anchor. To evaluate whether an applicant
meets United standards, United suggests the following questions, “What has been
your most disappointing leadership experience? What did you learn from that
situation?” The interviewer then evaluates the applicant’s answer according to
United’s guidelines for that anchor. An applicant meets United’s “responsibility”
standards if she accepts responsibility for her own actions. The applicant exceeds
United standards if she accepts responsibility for her own and her subordinate’s
actions and initiates corrective action. The applicant falls below United standards
if she blames others for non-performance or failure.

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her overall score will also be a “2,” and the interviewers will not recommend her

for a flight officer position.

United interviewed Ms. Bullington for a flight officer position three times –

January 1993, March 1995 and May 1995. Each time, Ms. Bullington received an

overall score of “2,” thereby disqualifying her from further consideration. After

her first unsuccessful interview in January 1993, Ms. Bullington spoke with Ms.

Nancy Stuke, United’s Manager of Flight Officer Employment, and expressed her

concerns that one of her interviewers was biased against her. Ms. Bullington

claims Ms. Stuke failed to adequately address her complaints. After

unsuccessfully interviewing a second and third time, Ms. Bullington filed suit

alleging: (1) United failed to hire her on all three occasions because of her sex

and age, (2) United failed to hire her in 1995 in retaliation for her complaints to

Ms. Stuke in 1993, and (3) United’s failure to hire her breached an implied

contract or otherwise enforceable promise for career advancement.

United moved to dismiss Ms. Bullington’s claims to the extent they were

based on Ms. Bullington’s January 1993 rejection because those claims were

barred by the statute of limitations. The district court agreed and granted

United’s motion. United then moved for summary judgment on Ms. Bullington’s

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remaining claims. The district court granted that motion as well, concluding Ms.

Bullington failed to establish a prima facie case of age or sex discrimination

under either a disparate impact or disparate treatment theory, failed to establish a

prima facie case of retaliation, and failed to present sufficient evidence of an

enforceable contract or promise. On appeal, Ms. Bullington argues: (1) the

district court erred in concluding her claims based on United’s 1993 hiring

decision were barred by the statute of limitations; (2) genuine issues of material

fact exist regarding her claims of sex and age discrimination, retaliation, and

breach of contract/promissory estoppel; and (3) the district court erred in using a

deferential standard of review in connection with United’s hiring decisions.

II. Statute of Limitations

In Colorado, ADEA and Title VII complainants must file a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”)

within 300 days after the alleged unlawful discriminatory practice occurred. 2
42

U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2). This filing is a prerequisite to a

civil suit under either statute. Aronson v. Gressly , 961 F.2d 907, 911 (10th Cir.

2
The 300-day filing period applies to “deferral states” in which the EEOC
defers to the enforcement efforts of a state agency empowered to undertake
employment discrimination investigations. 42 U.S.C. § 2000e-5. Otherwise, the
filing period is 180 days. Id.

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1992). In this case, United first rejected Ms. Bullington for the position of flight

officer in January 1993. In March 1993, Ms. Bullington complained to Ms. Stuke

that she suspected one of her interviewers discriminated against her. In order for

a claim based on this conduct to be timely, Ms. Bullington was required to file an

EEOC charge within 300 days after the March 1993 incident. However, Ms.

Bullington waited almost three years, until February 6, 1996, to file her charge.

Ms. Bullington attempts to avoid this apparent untimeliness by invoking the

continuing violation doctrine. Under that doctrine, a plaintiff may recover for

incidents which occurred outside the statutory time limit if at least one instance of

the alleged discriminatory practice occurred within the limitations period and the

earlier acts are part of a “continuing pattern of discrimination.” Martin v. Nannie

and The Newborns, Inc. , 3 F.3d 1410, 1415 (10th Cir. 1993). To determine

whether alleged incidents of discrimination constitute a continuing violation, a

court considers three factors:

(i) subject matter – whether the violations constitute the same type of
discrimination; (ii) frequency; and (iii) permanence – whether the
nature of the violations should trigger an employee's awareness of
the need to assert her rights and whether the consequences of the act
would continue even in the absence of a continuing intent to
discriminate.

Id. at 1415.

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 Applying these factors, the district court determined that the events arising

in 1993 and the later events in 1995 did not constitute a continuing violation.

Instead, the court concluded the 1993 non-hire was an isolated event and,

moreover, Ms. Bullington had reason to believe she was a victim of

discrimination as early as 1993. As such, the court found application of the

continuing violation doctrine inappropriate and Ms. Bullington’s claims, to the

extent they relied on the 1993 conduct, untimely. The court therefore dismissed

those claims for failure to state a claim upon which relief may be granted. 3
We

review de novo the district court’s dismissal for failure to state a claim upon

which relief can be granted. Mascheroni v. Board of Regents , 28 F.3d 1554, 1560

(10th Cir. 1994). We uphold a dismissal “only when it appears that the plaintiff

can prove no set of facts in support of the claims that would entitle [her] to relief,

accepting the well-pleaded allegations of the complaint as true and construing

them in the light most favorable to the plaintiff.” Yoder v. Honeywell, Inc. , 104

F.3d 1215, 1224 (10th Cir.) (internal quotation marks and citation omitted), cert.

3
We note that Rule 12(b)(6) is a proper vehicle for dismissing a complaint
that, on its face, indicates the existence of an affirmative defense such as
noncompliance with the limitations period. See Robinson v. Dalton , 107 F.3d
1018, 1021 (3d Cir. 1997) (“A complaint does not state a claim upon which relief
may be granted unless it asserts the satisfaction of the precondition to suit
specified by Title VII.”); 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 at 349-52 (2d ed. 1990) (“The complaint also is
subject to dismissal under Rule 12(b)(6) when its allegations indicate the
existence of an affirmative defense.”).

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denied , 118 S. Ct. 55 (1997).

The continuing violation doctrine “is premised on the equitable notion that

the statute of limitations should not begin to run until a reasonable person would

be aware that his or her rights have been violated.” Martin , 3 F.3d at 1415 n.6.

Thus, a continuing violation claim will likely fail if the plaintiff knew, or through

the exercise of reasonable diligence would have known, she was being

discriminated against at the time the earlier events occurred. See id. We agree

with the district court’s conclusion that, although the 1993 conduct is of the same

general type as the 1995 conduct, the 1993 decision was a discrete and salient

event that put Ms. Bullington on notice that United violated her rights. The

allegations contained in Ms. Bullington’s Amended Complaint clearly indicate

that after United declined to hire her in January 1993, she spoke to Ms. Stuke in

March 1993 and expressed her opposition to “what she believed ... to have been

sex and age discrimination by [United] in not selecting her for the position of line

pilot.” Because Ms. Bullington was, at the very least, on inquiry notice of the

alleged discrimination as early as 1993, she had a duty to assert her rights at that

time and she cannot rely on a continuing violation theory to avoid the statutory

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time bar. 4

Ms. Bullington also argues for a continuing violation based on her

statistical evidence of a pattern and practice of discrimination. It is true that a

continuing violation may be based on either a series of related acts taken against a

single individual or the maintenance of a company-wide policy or practice of

discrimination. See Purrington , 996 F.2d at 1028. However, Ms. Bullington’s

argument below focused entirely on the specific acts taken against her and did not

contend that a company-wide policy of discrimination existed before and after the

4
Our decision in Martin does not require a different result. In Martin, we
concluded that plaintiff’s allegations of a consistent and frequent pattern of
sexual harassment were sufficient to raise a triable issue on her continuing
violation claim even though she failed to demonstrate all three factors in the
continuing violation analysis. 3 F.3d at 1415-16. This conclusion was possible
because the three-factor analysis we adopted in Purrington v. University of Utah
is not a bright line test. 996 F.2d 1025, 1028 (10th Cir. 1993). Rather, the
factors are merely tools to assist courts in analyzing whether incidents of
discrimination “constitute a continuing course of discrimination or whether they
are discrete unrelated acts.” Martin, 5 F.3d at 1415. A particular court’s use of
the factors will vary according to facts and procedural history of the case. Here,
the district court focused on what it considered to be the greatest weakness in Ms.
Bullington’s continuing violation argument – her apparent awareness of the
alleged discrimination in 1993. The court’s emphasis on the third, “permanence”
factor was not inappropriate considering the nature of Ms. Bullington’s
allegations and the underlying purpose of the continuing violation doctrine
discussed above. See Martin, 3 F.3d at 1415 n.6; see also Selan v. Kiley, 969
F.2d 560, 565 (7th Cir. 1992) (stressing the significance of the third,
“permanence” factor in a continuing violation analysis).

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limitations period. Moreover, she did not present her statistical evidence until

well after the district court issued its order granting partial dismissal. Cf. John

Hancock Mut. Life Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994) (“This

court has held that it cannot, in reviewing a ruling on summary judgment,

consider evidence not before the district court.”). Because Ms. Bullington failed

to properly assert this theory, we decline to review it on appeal. See Bancamerica

Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792, 798-99 (10th

Cir. 1996) (“Where a litigant changes to a new theory on appeal that falls under

the same general category as an argument presented at trial or presents a theory

that was discussed in a vague and ambiguous way the theory will not be

considered on appeal.” (Internal quotation marks and citation omitted).

The district court properly dismissed Ms. Bullington’s discrimination

claims for events arising in 1992/1993 as time barred. 5
We therefore turn to our

review of the district court’s grant of summary judgment on Ms. Bullington’s

remaining claims.

5
Ms. Miller does not appeal nor do we consider the district court’s
dismissal of that portion of the implied contract claim based on events arising in
1992/1993.

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 III. Disparate Impact

Ms. Bullington alleges both disparate treatment and disparate impact claims

under Title VII. A disparate impact claim involves employment practices that are

“fair in form, but discriminatory in operation.” Griggs v. Duke Power Co. , 401

U.S. 424, 431 (1971). A disparate impact claim differs from a disparate treatment

claim in that it does not require a showing of discriminatory intent. See Ortega v.

Safeway Stores, Inc. , 943 F.2d 1230, 1242 (10th Cir. 1991). Instead, a plaintiff

may establish a prima facie case of disparate impact discrimination by showing

that a “specific identifiable employment practice or policy caused a significant

disparate impact on a protected group.” Id. ; 42 U.S.C. § 2000e-2(k)(1)(A)(i).

This prima facie case, in many respects, is more rigorous than in a disparate

treatment case because a plaintiff must not merely show circumstances raising an

inference of discriminatory impact but must demonstrate the discriminatory

impact at issue. See Regner v. City of Chicago , 789 F.2d 534, 537 (7th Cir. 1986)

(internal quotation marks and citation omitted). If plaintiff establishes a prima

face case, the burden shifts to defendant to show that the challenged practice is

job related and consistent with business necessity. 42 U.S.C. § 2000e-

2(k)(1)(A)(i); Ortega , 943 F.2d at 1243-44. If defendant meets this burden, it is

then up to the plaintiff to suggest an alternative employment practice that serves

the employer’s legitimate employment goals yet lacks the undesirable

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discriminatory effect. Ortega , 943 F.2d at 1244.

Ms. Bullington argues United’s interview process caused a significant

disparate impact on women. As is typical in disparate impact cases, Ms.

Bullington relies on statistical evidence to establish her prima facie case. Her

statistics compare the “pass rates” of male and female applicants who interviewed

for United flight officer positions. The “pass rate,” as defined by Ms.

Bullington’s expert, represents the number of applicants who received an overall

score of “3" or better on the interview. 6
For interviews conducted after 1994, the

pass rate for women was 27.9% while the pass rate for men was 46.6%. As such,

the women’s pass rate is equal to only 60% of the pass rate for men – a

statistically significant disparity under EEOC guidelines. See 29 C.F.R.

§ 1607.4(D) (stating that a selection rate for a protected group which is less than

80% or 4/5 of the selection rate for the majority group is generally regarded as

evidence of adverse impact). This disparity, Ms. Bullington argues, is significant

enough to establish a prima facie case of disparate impact discrimination.

6
As such, Ms. Bullington’s statistics do not reflect the number of men and
women United actually hired as pilots, since not all applicants who received a
“passing” score were hired or even made an offer.

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 The district court disagreed. It determined Ms. Bullington’s statistics did

not establish a prima facie case because they failed to compare similarly situated

individuals. Specifically, the court noted that women interviewees for flight

officer positions generally have less aeronautical experience than male

interviewees. Although its reasoning is somewhat unclear, the court apparently

assumed that the male interviewee’s advanced aeronautical experience level

allowed them to perform better during interviews, thereby accounting for the

higher male pass rate. Because Ms. Bullington’s statistics did not factor in this

difference in experience level, the district court found the analysis “not

particularly meaningful,” and granted United’s motion for summary judgment.

We review the district court’s grant of summary judgment de novo,

applying the same legal standard as the district court. Simms v. Oklahoma , 165

F.3d 1321, 1326 (10th Cir. 1999), petition for cert. filed (U.S. May 24, 1999) (No.

98-1884). We “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). In applying this standard, we view the factual record and

inferences therefrom in the light most favorable to the nonmoving party. Simms ,

165 F.3d at 1326. However, to survive summary judgment, the nonmoving party

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may not rest upon the allegations or denials of his or her pleadings, but must set

forth specific facts showing that there is a genuine issue for trial. Id. Summary

judgment is appropriate if the evidence is such that no reasonable jury could

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477

U.S. 242, 248 (1986).

Ms. Bullington used a type of statistics called applicant flow data to

establish her disparate impact claim. 7
Applicant flow data, long recognized as an

acceptable comparison model in discrimination cases, generally contrasts the

racial or gender composition of persons who applied for the position and persons

holding the at-issue jobs. See Wards Cove Packing Co., Inc. v Atonio , 490 U.S.

642, 650-51 (1989) (recognizing that statistics measuring “otherwise qualified

applicants” may be probative in disparate impact cases); Hazelwood Schl. Dist. v.

United States , 433 U.S. 299, 309 n.13 (1977) (noting that applicant flow data may

be “very relevant” in proving discrimination). Such data is generally considered

probative because it reflects how the employer’s hiring procedure actually

operated. See, e.g., Ramona L. Paetzold & Steven L. Willborn, The Statistics of

7
We note Ms. Bullington’s data differ somewhat from traditional applicant
flow data in that it compares persons who interviewed for the at issue position
with persons who received a passing score, rather than comparing persons who
applied for the at issue position with persons who were hired.

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Discrimination , § 4.03 at 7 (1998). Of course, applicant flow data, like all

statistical proof, is susceptible to distortion. 8
Accordingly, we require the data to

cross a “threshold of reliability before it can establish even a prima facie case of

disparate impact.” Ortega , 943 F.2d at 1243 (internal quotation marks and

citation omitted, and emphasis added). The “reliability” or usefulness of any

particular analysis will depend on the surrounding facts and circumstances of the

case. See Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 995 n.3, 997 (1988).

After examining the facts and circumstances of this case, we find Ms.

Bullington’s statistical data sufficiently reliable to raise a genuine issue of

material fact regarding the existence of a statistical disparity. Her analysis

8
For example, an employer’s hidden hiring preferences may indirectly
affect the overall make-up of the applicant pool. See, e.g., International Bhd. of
Teamsters v. United States, 431 U.S. 324, 369 (1977) (noting employer’s
reputation for not hiring blacks may have deterred employees from applying
thereby distorting the applicant pool); Allen v. Seidman, 881 F.2d 375, 379 (7th
Cir. 1989) (noting employer’s affirmative action plan may cause applicant pool to
overassess the availability of qualified minority applicants). In addition,
applicant flow data may fail to account for important variations within the pool
itself such as differences in education level and experience. Failure to account
for these variables may result in statistical anomalies that are not really probative
of discrimination. See, e.g., Coward v. ADT Sec. Sys. Inc., 140 F.3d 271, 312
(D.C. Cir. 1998) (finding plaintiff’s regression analysis so incomplete as to be
irrelevant because it failed to account for key variables in the applicant pool); see
also Bazemore v. United States, 478 U.S. 385, 400 (1986) (noting that the
omission of variables from a regression analysis may render the analysis less
probative).

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identified a specific employment practice (the interview) and identified two

relevant populations for impact comparison – persons who interviewed for flight

officer positions and persons who received a passing score on the interview. See

Wards Cove, 490 U.S. at 650-51 (noting the proper comparison in a disparate

impact case is between the racial composition of qualified persons in the labor

market and persons holding the at-issue jobs). Her analysis focused on the

specific position at issue, namely flight officer. See Ortega , 943 F.2d at 1245-46

(noting importance and difficulty of identifying the at-issue job where plaintiff

challenges employer’s hiring process in general). In addition, her applicant pool

was appropriately limited to persons who sought out and were at least minimally

qualified for the position of flight officer. See Wards Cove, 490 U.S. at 651, 653-

54 (concluding plaintiff’s applicant pool was too broad because it included

persons who were not qualified for and did not seek the at-issue jobs). In fact,

each member of the applicant pool not only applied for the at-issue position, as is

the usual case with applicant flow data, but actually interviewed for the at-issue

position. Based on United’s interview eligibility requirements, we can therefore

assume each member of the applicant pool was, at the very least, a certified pilot

with a high school diploma and at least 350 hours of flight experience. The

relative homogeneity of the applicant pool reassures us that its members are not

so diverse as to render her statistics totally meaningless. See Wards Cove , 490

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U.S. at 650-54 (concluding plaintiff’s statistics were not probative of disparate

impact because applicant pool was at once too broad and too narrow for at issue

positions based of differences pool members’ skill and interest level); Allen , 881

F.2d at 379 (concluding eligibility requirements for taking at-issue test resulted in

applicant pool that was reasonably homogeneous, making large disparity in

performance between blacks and whites suggestive of racial bias).

This is not to say Ms. Bullington’s statistics are without fault. As the

district court noted, her analysis fails to account for differences in male and

female interviewees’ aeronautical experience – a potentially non-discriminatory

explanation for the disparate impact. Cf. Fallis v. Kerr-McGee Corp. , 944 F.2d

743, 746 (10th Cir. 1991) (concluding statistics offered by plaintiff in disparate

treatment case did not support the jury’s verdict for plaintiff because statistics

failed to eliminate nondiscriminatory explanations for the alleged disparity).

However, we do not believe that fault renders Ms. Bullington’s statistics

incapable of raising a genuine issue of material fact. We emphasize that Ms.

Bullington’s burden as the nonmovant is to set forth specific facts establishing a

genuine issue for trial. Anderson , 477 U.S. at 248 (internal quotation marks and

citation omitted). The issue of material fact, here the existence of a significant

statistical disparity, need not be resolved conclusively in Ms. Bullington’s favor.

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First Nat’l Bank v. Cities Serv. Co. , 391 U.S. 253, 288 (1968). Rule 56 requires

only that she present “sufficient evidence supporting the claimed factual dispute

... to require a jury or judge to resolve the parties’ differing versions of the truth

at trial.” Id. at 288-89. Ms. Bullington’s statistics, for the reasons discussed

above, are sufficiently reliable to make this showing and her failure to include

one potentially relevant factor ( i.e. , education level) does not undermine the

probativeness of the statistics to such a degree that no reasonable jury could

return a verdict in her favor. 9
See Bazemore , 478 U.S. at 400 (noting a statistical

analysis that includes less than all measurable variables may serve to prove a

plaintiff’s case of discrimination); Maitland v. University of Minnesota , 155 F.3d

1013, 1017 (8th Cir. 1998) (“[I]t is for the finder of fact to consider the variables

that have been left out of an analysis, and the reasons given for the omissions, and

then to determine the weight to accord the study’s results.”); Smith v. Virginia

Commonwealth Univ. , 84 F.3d 672, 676-77 (4th Cir. 1996) (concluding omission

of variables from statistical analysis and evidence that variables were crucial

9
We recognize that some statistical analyses may be so incomplete as to be
irrelevant. See Bazemore, 478 U.S. at 400 n.10. Such an analysis would be
insufficient to defeat summary judgment. See Anderson, 477 U.S. at 249-50
(noting summary judgment may be granted if evidence offered by nonmovant is
merely colorable or not significantly probative); Coward, 140 F.3d at 312
(granting summary judgment for defendant employer where plaintiffs’ statistical
analysis was flawed as a matter of law). However, for the reasons discussed
above, we do not find that to be the case here.

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demonstrated dispute of material fact regarding validity of statistical study).

Nor do we suggest United cannot rebut Ms. Bullington's statistics. We

simply conclude the district court’s basis for granting summary judgment was

insufficient, and United has not shown an absence of issues of material fact with

respect to Ms. Bullington’s prima facie case. United did attempt to demonstrate

the incompleteness of Ms. Bullington’s statistics by listing the relative

aeronautical experience of male and female flight officers actually hired during

the relevant time frame. However, United did not correlate this data with the

interview pass rates in any meaningful way and we are left to speculate about the

actual impact of experience level on interview performance. Thus, while United’s

evidence does show a potential weakness in Ms. Bullington’s statistics, we are

unable to conclude that the evidence is so one-sided that United must prevail as a

matter of law. See Anderson , 477 U.S. at 251-52 (stating that relevant inquiry is

whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law);

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (stating that movant’s burden

is to show that there is an absence of evidence to support the nonmoving party’s

case); Cities Serv. , 391 U.S. at 288-90 (concluding that summary judgment was

appropriate in the absence of any significant probative evidence tending to

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support the complaint). Accordingly we conclude the district court’s grant of

summary judgment in favor of United on this issue was premature. 10

IV. Disparate Treatment

Ms. Bullington next asserts that the district court erred in granting summary

judgment on her disparate treatment claims. Disparate treatment claims involve

“the most easily understood type of discrimination” in which an employer treats

an individual less favorably than others because of her protected status.

International Bhd. of Teamsters , 431 U.S. at 335 n. 15. Because disparate

treatment is a form of intentional discrimination, the plaintiff must prove that her

employer acted with a discriminatory intent or motive. See Faulkner v. Super

Valu Stores, Inc. , 3 F.3d 1419, 1424 (10th Cir. 1993). The basic allocation of

burdens for a disparate treatment claim is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973). Under the McDonnell Douglas framework, Ms.

Bullington has the initial burden of establishing a prima facie case of

discrimination, which in an ADEA or Title VII case requires her to show: “1) she

10
Because the district court never reached the second step of the disparate
impact analysis, we decline to address any arguments relating to business
necessity/job-relatedness of the interview process or the proper level of deference
the court should give to United’s showing under Spurlock v. United Airlines, Inc.,
475 F.2d 216 (10th Cir. 1972).

-21-
is a member of the class protected by the statute; 2) she suffered an adverse

employment action; 3) she was qualified for the position at issue; and 4) she was

treated less favorably than others not in the protected class.” Sanchez v. Denver

Pub. Schls. , 164 F.3d 527, 531 (10th Cir. 1998). If she establishes a prima facie

case, the burden shifts to United to articulate a legitimate, nondiscriminatory

reason for the adverse employment decision. McDonnell Douglas , 411 U.S. at

802-03. If United offers a legitimate, nondiscriminatory reason for its actions, the

burden reverts to Ms. Bullington to show United’s proffered reason was a pretext

for discrimination. Id. at 804-05.

After applying this framework, the district court discerned two bases for

granting summary judgment. First, the court concluded that Ms. Bullington failed

to establish a prima facie case of disparate treatment. Second, the court

determined Ms. Bullington failed to present any evidence that United’s proffered

reasons for not selecting her were a pretext for discrimination. Of these two

bases, the district court appears to have focused more closely on the second,

scrutinizing United’s proffered reasons for not hiring Ms. Bullington – i.e., her

poor performance during the interviews–and Ms. Bullington’s attacks on those

proffered reasons. We therefore find it appropriate to assume, for the purposes of

this opinion, that Ms. Bullington established a prima facie case of discrimination

-22-
and proceed directly to the second and third steps of the McDonnell Douglas

analysis. 11
See V-1 Oil Co. v. Utah State Dep’t of Public Safety , 131 F.3d 1415,

11
United argues we should consider these arguments at the prima facie
stage of the McDonnell Douglas analysis because they relate to Ms. Bullington’s
qualifications for the at-issue position. Our decision in Kenworthy v. Conoco,
Inc. precludes such an approach. 979 F.2d 1462 (10th Cir. 1992). In Kenworthy,
the district court entered judgment in favor of the defendant on plaintiff’s
discrimination claims because it determined plaintiff failed to establish a prima
facie case. Id. at 1469. However, the court’s reasoning focused on the legitimate
non-discriminatory reasons offered by defendant for not promoting the plaintiff,
specifically her failure to meet qualifications for the at-issue position. Id. Such a
legal analysis, we concluded, was in error because it inappropriately short-
circuited the McDonnell Douglas framework at the prima facie stage and
frustrated the plaintiff’s ability to establish that the defendant’s proffered reasons
were pretextual. Id. at 1469-70.

To avoid this result, we held that the defendant’s reasons for not promoting
the plaintiff – i.e., her failure to meet subjective criteria for the at-issue
position–should be considered in addressing whether those articulated reasons are
legitimate or pretextual and not as a challenge to the sufficiency of plaintiff’s
prima facie case. Id. at 1470; see also Thomas v. Denny’s, Inc., 111 F.3d 1506,
1510-11 (10th Cir.) (noting the employer’s subjective reasons for not promoting
plaintiff are not properly considered at the prima facie stage), cert. denied, 118 S.
Ct. 626 (1997). At the prima facie stage, the court need only conclude that the
plaintiff has shown through credible evidence, including her own testimony, that
she was minimally qualified for the position she sought, even if the defendant
disputes that evidence. Id. In this way, the court could fully consider the
defendant’s evidence of legitimate nondiscriminatory reasons for the adverse
action as well as the plaintiff’s evidence that those proffered reasons were
pretextual. Id.

This reasoning applies with equal force to the instant case. We will not
allow United to “short circuit” the McDonnell Douglas analysis by challenging
Ms. Bullington’s qualifications at the prima facie stage. Such an approach would
unduly limit our ability to consider Ms. Bullington’s evidence that United’s
assessment of her qualifications was a pretext for discrimination.
(continued...)

-23-
1422 (10th Cir. 1997) (“[W]e may affirm for any grounds supported in the

record.”).

The district court concluded that United chose not to hire Ms. Bullington

because she did not meet criteria United believed necessary for a position as

flight officer. The court emphasized that all four United representatives who

interviewed Ms. Bullington concluded that she did not possess “attributes” United

considers essential for flight officers and gave her unsatisfactory ratings in

several of the seven “dimensions” United uses to assess flight officer suitability. 12

Thus, the district court essentially found that United articulated legitimate,

nondiscriminatory reasons for not hiring Ms. Bullington. The record supports this

conclusion. The only remaining issue, then, is whether Ms. Bullington has shown

“that there is a genuine dispute of material fact as to whether the employer’s

proffered reason for the challenged action is pretextual.” Randle v. City of

11
(...continued)

12
Specifically, United interviewers gave Ms. Bullington unacceptable
scores in six of the seven dimensions. Among other alleged deficiencies, United
claims Ms. Bullington’s presentation and interpersonal skills were very poor, that
her responses indicated a significant lack of confidence, focus and motivation,
and that each interviewer had serious doubts about her leadership abilities,
problem-solving skills, dependability and ability to focus on goals. Ms.
Bullington also received failing scores in her technical evaluations.

-24-
Aurora , 69 F.3d 441, 451 (10th Cir. 1995).

To establish pretext a plaintiff must show either that “a discriminatory

reason more likely motivated the employer or ... that the employer's proffered

explanation is unworthy of credence.” Texas Dep’t of Community Affairs v.

Burdine , 450 U.S. 248, 256 (1981). Plaintiff may accomplish this by

demonstrating “‘such weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the employer’s proffered legitimate reasons for its action that

a reasonable factfinder could rationally find them unworthy of credence.’”

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v.

General Elec. Astrospace , 101 F.3d 947, 951-52 (3d Cir. 1996)). However, the

plaintiff’s “mere conjecture that [her] employer's explanation is a pretext for

intentional discrimination is an insufficient basis for denial of summary

judgment.” Branson v. Price River Coal Co. , 853 F.2d 768, 772 (10th Cir. 1988).

In this case, Ms. Bullington bases her pretext argument on the following

evidence: disputes regarding things she said and did during the interview, the

interviewers’ use of gender and age stereotypes, a comparison of her

qualifications with those of successful flight officer interviewees, and statistical

evidence. We conclude that, even viewing this evidence in the light most

-25-
favorable to Ms. Bullington, it fails to demonstrate a genuine issue of fact as to

whether United’s reasons for not hiring her were pretextual.

First, Ms. Bullington lists numerous disputes she has with the notes and

summaries prepared by her interviewers. The disputed “notes” are essentially the

United representatives’ informal, handwritten notations of Ms. Bullington’s

responses to various questions during the interview. The “summaries” are typed

memos in which the interviewer summarizes and assesses Ms. Bullington’s

performance and makes a final recommendation regarding hiring. Ms. Bullington

claims the notes and summaries are not accurate reflections of her interview

performance. Further, she contends that those inaccuracies amount to fact issues

regarding the legitimacy of United’s proffered reason for not hiring her and that

the district court improperly ignored them in granting summary judgment. We

disagree.

A review of the record shows that the vast majority of the “factual

disputes” alleged by Ms. Bullington are in reality her opinion that the

interviewers were wrong in their assessment of her qualifications. 13

13
By and large, Ms. Bullington claims the interviewers relied on
misinterpretations, inaccurate assumptions, and highly subjective evaluations, and
(continued...)

-26-
74.) However, her own opinions about her qualifications do not give rise to a

material fact dispute. See Simms , 165 F.3d at 1329. Moreover, even if we were

to assume that United misjudged Ms. Bullington’s qualifications, such evidence

would not preclude summary judgment in this case. The relevant inquiry is not

whether United’s proffered reasons were wise, fair or correct, but whether United

honestly believed those reasons and acted in good faith upon those beliefs. 14
See

(...continued)
13

twisted her responses out of context. For example, one United interviewer
indicated that Ms. Bullington demonstrated an inability to focus on her career and
education goals and that her background raised serious concerns about her
dependability and long term commitment to United. In response, Ms. Bullington
“disagrees” with the interviewer’s comments and states that the interviewer failed
to giver her credit for the fact that she put her job duties at United ahead of her
educational goals or that she had completed her G.E.D. and flight school while
raising seven children and working several jobs. Ms. Bullington obviously has
her own opinions about her qualifications for the flight officer position. Those
subjective opinions, however, do not demonstrate a fact dispute about the
genuineness of United’s assessment of her qualifications. See Kariotis v.
Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (“[A]n
opportunity for rebuttal is not an invitation to criticize the employer’s evaluation
process or simply to question its conclusion about the quality of an employee’s
performance.”).

14
Ms. Bullington argues the district court, relying on our decision in
Spurlock, 475 F.2d 216, improperly granted special deference to United’s
employment decisions based on the economic and human risks involved in hiring
competent pilots. We disagree. First, we note that Spurlock is a disparate impact
case and that the discussion of risk factors contained therein relates to the second
prong of the disparate impact case–business necessity–an issue the district court
never reached in this case. See Spurlock, 475 F.2d at 218-20. Second, unlike Ms.
Bullington, we find no error in the district court’s pronouncement that it “is not
particularly well-suited to evaluating the qualifications that go into making a
(continued...)

-27-
Sanchez v. Philip Morris Inc. , 992 F.2d 244, 247 (10th Cir. 1993) (“Title VII is

not violated by the exercise of erroneous or even illogical business judgment.”);

Kariotis , 131 F.3d at 677 (“[A]rguing about the accuracy of the employer’s

assessment [of plaintiff’s performance] is a distraction, because the question is

not whether the employer’s reasons for a decision are right but whether the

employer’s description of its reasons is honest.” (Internal quotation marks and

citations omitted.)); Fischbach v. District of Columbia Dep’t of Corrections , 86

F.3d 1180, 1183 (D.C. Cir. 1996) (concluding relevant issue was whether the

employer honestly believed in the reasons it offered for not promoting plaintiff

and not the correctness or desirability of those reasons). Ms. Bullington presents

no evidence indicating United did not believe the interviewers’ assessment of her

qualifications, and our review of the record reveals no evidence that United failed

to act in good faith in reliance on those assessments. We therefore discern no

(...continued)
14

successful line pilot at United Airlines” and that it “is peculiarly ill-suited to
determine the best candidates.” We previously have recognized that district
courts, when analyzing the pretext issue, do not sit as “super-personnel
departments” free to second-guess the business judgment of an employer. Simms,
165 F.3d at 1330. Thus, the court’s role in this case was not to determine if
United’s hiring decisions were wise or fair, but rather, in the context of Ms.
Bullington’s disparate treatment claim, if those decisions were motivated by
discriminatory animus. The court gave no improper, “special deference” to
United’s business decisions in determining whether they were a pretext for
discrimination.

-28-
showing of pretext. 15

Likewise, we find little merit in Ms. Bullington’s argument that United

based its employment decisions on gender and age stereotypes. Our review of the

record reveals little that could be construed as stereotyped assumptions about the

qualifications, work habits, or personality traits of female or older interviewees.

See, e.g., Price Waterhouse v. Hopkins , 490 U.S. 228, 251 (1989). Rather, Ms.

Bullington’s argument merely takes issue with what she believes is an incorrect

assessment of her communication skills, goals, and motivation level. As

discussed above, Ms. Bullington’s opinion about the fairness or accuracy of the

interviewers’ evaluation is not evidence of pretext. See Simms , 165 F.3d at 1329.

Next, Ms. Bullington offers a comparison of her qualifications with those

of seven other male and/or younger individuals that United interviewed and hired

15
Ms. Bullington also contends the interviewers “did not report her
interview responses accurately, misinterpreted what she had said and twisted her
responses out of context” and claims that some of the interviewers’ summaries are
inconsistent with their notes or with their testimony in this case. We have
reviewed these alleged inconsistencies and find them to be insignificant at best
and too minor to give rise to an inference of pretext. Cf. Lucas v. Dover Corp.,
857 F.2d 1397, 1402 (10th Cir.1988) (concluding instances of alleged
contradictions and inconsistencies were too insubstantial to allow a reasonable
jury to infer pretext).

-29-
as flight officers. She claims United hired these individuals despite the fact many

were less qualified than her or, in many cases, had the same deficiencies

identified during her interview. As such, she argues, there is reason to disbelieve

United’s proffered nondiscriminatory reasons for not hiring her. It is true that a

comparative analysis of job applicants’ qualifications may be relevant in proving

pretext where, as here, the employer claims lack of qualification as reason for an

employment decision. See Sanchez v. Philip Morris , 992 F.2d at 247. However,

we emphasize that an employer does not violate Title VII by choosing between

equally qualified candidates, so long as the decision is not based on unlawful

criteria. See Burdine , 450 U.S. at 259. Therefore, pretext cannot be shown

simply by identifying minor differences between plaintiff's qualifications and

those of successful applicants. See Sanchez v. Philip Morris , 992 F.2d at 247-48;

Chock v. Northwest Airlines, Inc. , 113 F.3d 861, 864 (8th Cir. 1997) (“[A]

comparison that reveals that the plaintiff was only similarly qualified or not as

qualified as the selected candidate would not raise an inference of racial

discrimination.”). The disparity in qualifications must be “overwhelming” to be

evidence of pretext. Sanchez v. Philip Morris, 992 F.2d at 247; see also Odom v.

Frank , 3 F.3d 839, 847 (5th Cir. 1993) (difference in qualifications of applicants

must be so apparent as “to jump off the page and slap us in the face” to support a

finding of pretext).

-30-
 A comparison of Ms. Bullington’s qualifications with those of the other

interviewees in this case gives us no reason to question United’s explanation for

its hiring decision. Ms. Bullington evidence does not show that she was

overwhelmingly better qualified than the other candidates. At most, the seven

other candidates were similarly qualified and the fact that United chose between

them is not evidence of pretext. See Sanchez v. Philip Morris , 992 F.2d at 247

(concluding no evidence of pretext where plaintiff failed to demonstrate that he

was overwhelmingly better qualified that the other applicants).

Last, Ms. Bullington argues that the same statistical analysis of male and

female pass rates she offered as evidence of disparate impact is also persuasive

evidence of pretext. We disagree. The probative value of statistical evidence

varies greatly according to the type of discrimination alleged. In a disparate

impact case, statistical evidence plays a central role because the plaintiff is

attempting to show a particular practice had a disproportionate impact on a

particular group, and not the employer’s discriminatory intent. However, in an

individual disparate treatment case, the focus is on how and why an employer

treated a particular individual the way it did. As such, statistical evidence of the

employer’s general hiring patterns is considerably less probative. See LeBlanc v.

Great American Ins. Co. , 6 F.3d 836, 848 (1st Cir. 1993), cert. denied , 511 U.S.

-31-
1018 (1994). Moreover, because overall employment statistics have little bearing

on the specific intentions of the employer in making particular hiring decisions,

such statistical evidence will rarely suffice to rebut an employer’s legitimate,

nondiscriminatory reasons for a particular adverse employment action. See id . at

848 (statistical evidence did not provide sufficient basis for a reasonable jury to

find that defendant terminated plaintiff because of his age); Equal Employment

Opportunity Comm’n v. Texas Instruments, Inc. , 100 F.3d 1173, 1185 (5th Cir.

1996) (statistical evidence did not support an inference that defendant employer’s

reasons for terminating plaintiffs was merely pretextual).

In the instant case, we find the statistics insufficient to allow a reasonable

trier of fact to infer that United’s proffered reasons were a pretext for

discrimination. First, the statistics do not compare the ages of successful and

unsuccessful interviewees and are thus totally irrelevant to Ms. Bullington’s

disparate treatment claim under the ADEA. Second, the statistics were designed

to reflect the generalized impact of United’s interview process on women

applicants. They do not address United’s specific reasons for not hiring Ms.

Bullington, namely her poor interview performance and lack of qualifications.

The statistics thus shed little light on the central issue of the pretext analysis – the

motive behind United’s decision not to hire Ms. Bullington . See id., 100 F.3d at

-32-
1185 (plaintiffs’ statistics were not evidence of pretext because they did not even

purport to analyze the pertinent facts surrounding plaintiffs’ terminations);

Gadson v. Concord Hosp. , 966 F.2d 32, 35 (1st Cir. 1992) (statistics did not meet

plaintiff’s pretext burden because there was no indication of a connection

between the statistics and the employer’s treatment of plaintiff). This is not to

say that the evidence is totally irrelevant to the pretext issue. See McDonnell

Douglas , 411 U.S. at 804-05 (including statistics in list of evidence available to

plaintiff to show pretext); Bruno v. W.B. Saunders Co. , 882 F.2d 760, 767 (3d

Cir. 1989) (plaintiff’s statistical analysis was relevant and thus admissible on

issue of pretext), cert. denied , 493 U.S. 1062 (1990). However, considering the

limited insight it gives us into United’s motive in not hiring Ms. Bullington and

the lack of other probative evidence specifically rebutting United’s proffered

reasons, we conclude that the statistics are insufficient to demonstrate a genuine

fact issue in this case. See Texas Instruments , 100 F.3d at 1186 (statistical

evidence is only probative of intent when combined with other evidence

specifically rebutting the defendant’s legitimate, nondiscriminatory reasons).

In sum, we hold that Ms. Bullington has adduced insufficient evidence for a

reasonable trier of fact to infer that United’s decision not to hire her was

motivated by sex or age animus. The district court’s decision to grant summary

-33-
judgment in United’s favor on Ms. Bullington’s disparate treatment claims was

thus proper.

V. Retaliation

Ms. Bullington claims United retaliated against her based on a conversation

she had in March 1993 with Ms. Stuke, United’s Manager of Flight Officer

Employment. During this conversation, Ms. Bullington allegedly informed Ms.

Stuke of her “strong concerns” that one of her interviewers in the 1993 interview

was biased against her. Because of this complaint, Ms. Bullington claims Ms.

Stuke retaliated against her by influencing the interviewers’ hiring decisions in

her 1995 interviews. As proof of Ms. Stuke’s animus towards her, Ms. Bullington

points to a conversation which occurred shortly before her March 1995 interview

between Ms. Stuke and Mr. H. Jeffery Bartels about a recommendation Mr.

Bartels submitted in support of Ms. Bullington’s flight officer application. In his

affidavit, Mr. Bartels states that Ms. Stuke asked him if he was sure he wanted to

submit a recommendation for Ms. Bullington and told him that Ms. Bullington

acted like a “real airhead” and “held a troll doll for good luck” during her

previous interview. Ms. Stuke also allegedly suggested that if Mr. Bartels wanted

to assist Ms. Bullington, he would help her be “more professional” in her next

interview.

-34-
 To establish a prima facie case of retaliation, Ms. Bullington must show:

“1) she was engaged in protected opposition to Title VII or ADEA discrimination;

2) she was subjected to adverse employment action; and 3) a causal connection

existed between the protected activity and the adverse employment action.” See

Sanchez v. Denver Pub. Schls. , 164 F.3d at 533. The causal connection may be

shown by producing “evidence of circumstances that justify an inference of

retaliatory motive, such as protected conduct closely followed by adverse action.”

Burrus v. United Tel. Co. of Kansas, Inc. , 683 F.2d 339, 343 (10th Cir.), cert.

denied , 459 U.S. 1071 (1982). In other words, Ms. Bullington must present some

evidence that her employer undertook the adverse employment action for the

purpose of retaliation. See Randlett v. Shalala , 118 F.3d 857, 862 (1st Cir. 1997)

(“[T]he adverse action must have been taken for the purpose of retaliating.”); see

also Willis v. Marion County Auditor’s Office , 118 F.3d 542, 546-47 (7th Cir.

1997) (concluding plaintiff failed to demonstrate that relevant decision maker

harbored retaliatory animus towards plaintiff); Kneibert v. Thomson Newspapers,

Michigan Inc. , 129 F.3d 444, 455-56 (8th Cir. 1997) (concluding plaintiff

presented genuine issue of material fact where statements by employee involved

in decision making process revealed retaliatory motive).

The district court concluded summary judgment in favor of United was

-35-
appropriate because Ms. Bullington failed to establish a nexus or causal

connection between her 1993 complaint to Ms. Stuke and the interviewers’ hiring

selections in 1995. We agree. The interviewers’ decisions in 1995 were remote

in time from Ms. Bullington’s 1993 complaint, thus undercutting an inference of

retaliatory motive. See Burrus, 683 F.2d at 343. In addition, none of Ms.

Stuke’s comments to Mr. Bartels, on their face, indicate a discriminatory animus

towards Ms. Bullington and we do not believe a reasonable jury could infer such a

motive based on that conversation alone. See Little v. Cox’s Supermarkets , 71

F.3d 637, 643 (7th Cir. 1995) (“[C]ourts are not required to evaluate every

conceivable inference which can be drawn from evidentiary matter, but only

reasonable ones.” (Internal quotation marks and citation omitted.)). Moreover,

even if we assume that Ms. Stuke harbored some retaliatory animus, that evidence

would not establish the requisite causal link because we find no evidence that Ms.

Stuke played any part in the adverse employment decisions. Instead, the record

reveals that the four interviewers were solely responsible for making the hiring

recommendations, and we find no evidence that a retaliatory animus motivated

their decisions or that they were even aware of Ms. Bullington’s 1993 complaint.

Ms. Bullington claims Ms. Stuke “was in a position to influence the interviewers’

recommendations” because she selected them to perform the interviews and

supervised them. However, evidence of an opportunity to influence does not

-36-
amount to evidence of actual influence and Ms. Bullington’s mere speculation

about Ms. Stuke’s influence is not enough to demonstrate a genuine issue of

material fact. See Branson , 853 F.2d at 772 (“[T]he plaintiffs’ mere conjecture

that their employer's explanation is a pretext for intentional discrimination is an

insufficient basis for denial of summary judgment.”); see also Willis , 118 F.3d at

547 (affirming summary judgment of plaintiff’s retaliation claim where no

reasonable juror could conclude that relevant decision maker acted with

retaliatory motive or was a conduit for other employees’ racial animosity).

Because Ms. Burlington has failed to provide any evidence demonstrating a causal

connection between the adverse employment decisions and her protected activity,

she has failed to establish a prima facie case of retaliation.

VI. Breach of Contract/Promissory Estoppel

Lastly, Ms. Bullington claims the district court erred in granting summary

judgment on her breach of contract or promissory estoppel claims. Ms.

Bullington contends the United representative who initially interviewed her for

the position of academic instructor told her United loved to hire from within and

after one year’s work, she would be “almost guaranteed a job.” In addition, Ms.

Bullington claims the second United representative who interviewed her for the

flight instructor position told her “it will take you a year and they’ll hire you as a

-37-
pilot,” and the United Vice President for Flight Standards and Training told all

academic instructors on many occasions United employees could and usually did

work their way up. Ms. Bullington argues these statements amount to a

“promise[] of preferential treatment and a virtual guarantee of employment as a

flight officer.”

Under Colorado law, an implied contract can arise out of a company’s

personnel policies and procedures. See Vasey v. Martin Marietta Corp. , 29 F.3d

1460, 1464 (10th Cir. 1994). To establish such a contract, an employee must

show that the employer’s actions manifested an intent to be bound. Id. To

establish an employer’s binding intent, the terms of the offer must be sufficiently

definite and detailed to enable the court to determine whether a contract has been

performed. Id. at 1465. Terms which are nothing more than “vague assurances”

by the employer will not suffice. Id. If the employee fails to show an implied

contract, she may nevertheless attempt to enforce her employer’s policies under a

theory of promissory estoppel. Id. at 1466. To succeed under that theory, the

employee must demonstrate that the employer should have reasonably expected

the employee to consider the policy as a commitment from the employer, that the

employee reasonably relied on the statements to her detriment, and that injustice

can be avoided only by enforcement of the policy. Orback v. Hewlett-Packard

-38-
Co., 97 F.3d 429, 433 (10th Cir. 1996), cert. denied , 520 U.S. 1241 (1997).

After a thorough review of the record, we conclude that no reasonable juror

could find that the statements Ms. Bullington allegedly relied on amount to an

enforceable contract or promise. The statements, at most, constitute vague

assurances about career advancement opportunities and a general preference for

promoting from within. See Vasey, 29 F.3d at 1465. They do not manifest an

intent to contract and any reliance upon them as creating a contract or promise

was unwarranted. See id. at 1466; Orback, 97 F.3d at 433; see also Dobbs v.

Chevron U.S.A., Inc. , 39 F.3d 1064, 1069 (10th Cir. 1994) (applying similar state

law to conclude vague oral statements by employer did not amount to contract for

continued employment). Accordingly, we agree with the district court that, as a

matter of law, the statements are not sufficiently definite to be legally enforceable

representations. Summary judgment was therefore appropriate.

The district court’s partial dismissal of Ms. Bullington’s claims on statute

of limitations grounds and its grant of summary judgment in favor of United on

the disparate treatment, retaliation, and breach of contract/promissory estoppel

claims is AFFIRMED . The district court’s grant of summary judgment on the

disparate impact claim is REVERSED and that claim is REMANDED for further

-39-
proceedings.

-40-