F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 21 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
ZORA L. TOTH, Ph.D.,
Plaintiff-Appellant,
No. 99-1017
v. (District of Colorado)
(D.C. No. 97-WY-2662-AJ)
GATES RUBBER COMPANY,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY and MURPHY, Circuit Judges, and COOK, District Judge. **
Plaintiff-Appellant, Zora Toth (“Toth”), appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee, Gates Rubber Company
(“Gates”). Toth sued Gates, her former employer, alleging unlawful
discrimination on the basis of gender and national origin. These allegations
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable H. Dale Cook, Senior District Judge, United States District
Court for the Northern District of Oklahoma, sitting by designation.
included failure-to-promote, discriminatory discharge, and wage discrimination
claims. Toth also alleged retaliation, breach of contract, promissory estoppel, and
violations of the Equal Pay Act.
Gates moved for summary judgment on all of Toth’s claims. The district
court ruled that Toth could not maintain a cause of action for breach of contract
or promissory estoppel because she had failed to demonstrate the existence of a
specific promise. Additionally, the district court held that Toth had failed to
establish a prima facie case on any of her discriminatory discharge, failure-to-
promote, and retaliation claims and had also failed to show pretext. The court
also concluded that Toth had failed to offer any evidence in support of either her
Equal Pay Act or her Title VII wage discrimination claims. The district court,
therefore, granted Gates’ motion for summary judgment and dismissed all of
Toth’s claims. Toth brought this appeal.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the
grant of summary judgment in part, reverses in part, and remands for further
proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
Toth was born in Yugoslavia and emigrated to the United States in 1967.
Toth obtained her Bachelor’s and Master’s degrees in chemistry from the
University of Belgrade, Yugoslavia. In 1987, Toth obtained her Ph.D. in
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chemical engineering from Century University. In 1973, Toth sought and
obtained employment with Gates. She initially held the position of Research
Librarian and during her twenty-three-year tenure with Gates also held the
positions of Chemist Research Librarian, Research Chemist I, and Senior
Research Chemist.
In October 1995 Toth was transferred to Gates’ Materials Analysis
Laboratory. On or about January 1, 1996, Doug Schneider (“Schneider”) became
Toth’s supervisor. Beginning on or about August 15, 1996, Toth began receiving
performance evaluations noting deficiencies in her performance and identifying
several areas in which she needed to improve her performance. These evaluations
were prepared by Schneider. In the evaluations Toth was criticized, in part, for:
(1) poor interpersonal skills, (2) poor written communication skills, and (3) an
inability to complete work in a timely manner.
In 1997, Toth sought to transfer from the Materials Analysis Laboratory to
Gates’ Air Springs Department where there was an opening for a Materials
Development Engineer. Toth claims she had held the position previously and had
performed successfully in the position. Toth was not hired for this position which
was instead awarded to Rich Larmi, a male with a background in chemical
engineering.
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Toth remained in the Materials Analysis Laboratory and was ultimately
placed on probation for 90 days and instructed to improve her performance or risk
termination. In a performance evaluation dated March 26, 1997, Toth was
informed that because she had failed to improve her performance in the areas in
which she had been rated as “below standard,” her employment with Gates was
terminated effective March 28, 1997.
Toth disagreed with the negative performance evaluations and contends that
she believed them to be the product of ongoing unlawful discrimination and
harassment. Toth communicated her concerns to Gates’ management and to
individuals in Gates’ Human Resources and Legal Departments but alleges no
action was taken to correct the perceived discrimination. Toth filed her first
charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”) on August 13, 1996 alleging retaliation; violations of the Equal Pay
Act; and unlawful discrimination based on sex, age, and national origin. Toth
filed supplemental charges with the EEOC on December 2, 1996; January 23,
1997; March 26, 1997; and April 18, 1997. Toth alleges that her complaints to
Gates and the EEOC led to continued harassment and retaliatory acts, including
additional negative job evaluations, the imposition of the probationary period,
and, eventually, her termination.
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Toth filed a complaint in federal district court on December 19, 1997. In
her complaint, Toth raised six claims for relief: (1) breach of contract; (2)
promissory estoppel; (3) retaliation; (4) unlawful discrimination on the basis of
sex including discriminatory discharge, discriminatory failure-to-promote, and
wage discrimination claims; (5) unlawful discrimination on the basis of national
origin including discriminatory discharge, discriminatory failure-to-promote, and
wage discrimination claims; and (6) violations of the Equal Pay Act. 1 Gates
moved for summary judgment. The district court granted Gates’ motion and
dismissed all of Toth’s claims. See Toth v. Gates Rubber Co., 31 F. Supp.2d 1249
(D. Colo. 1998). Toth appeals from the grant of summary judgment.
II. DISCUSSION
A. Standard of Review
This court reviews de novo a grant of summary judgment drawing all
reasonable inferences in favor of the nonmoving party. 2 See Trujillo v. University
1
Toth was fifty-nine years old at the time of her termination. Although the
charges Toth filed with the EEOC contained allegations that Gates discriminated
against her on the basis of her age, Toth’s complaint contained no such claim for
relief. The district court, however, addressed Toth’s allegations of age
discrimination and concluded that Toth had failed to establish pretext. In her
opening brief, Toth does not challenge the district court’s ruling and the issue is,
therefore, deemed waived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d
979, 984 n.7 (10th Cir. 1994).
2
This court’s review of Toth’s claims was made unnecessarily difficult by
the paucity of record citations in both her opening and reply briefs. Although this
court is not obligated to “search for the proverbial needle in a haystack,” we have
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of Colo. Health Sciences Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998); Curtis v.
Oklahoma City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998).
When, as in this case, the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary judgment stage by
identifying “a lack of evidence for the nonmovant on an essential element of the
nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 644, 671 (10th
Cir. 1998).
B. Breach of Contract and Promissory Estoppel Claims
“An employee who is hired in Colorado for an indefinite period of time is
an ‘at will employee,’ whose employment may be terminated by either party
without cause and without notice, and whose termination does not give rise to a
cause of action.” Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo.
1987) (en banc). Oral or written statements made by an employer restricting the
employer’s right to terminate an employee, however, may form the basis of a
breach of contract or promissory estoppel claim. See id. at 711-12; see also
Soderlun v. Public Serv. Co. of Colo., 944 P.2d 616, 621 (Colo. Ct. App. 1997) .
Toth argued to the district court that her at-will employment relationship with
Gates was altered by: (1) a manual prepared by Gates entitled “Policies and
made reasonable efforts, where appropriate, to review all of the record evidence
which might support Toth’s claims. Gamble, Simmons & Co. v. Kerr-McGee
Corp., 175 F.3d 762, 773 n.5 (10th Cir. 1999).
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Procedures,” (2) a publication prepared by Gates entitled “Handbook for Gates’
Associates,” (3) the application she signed at the time she sought employment
with Gates, (4) Gates’ Corporate Code of Business Conduct, and (5) oral
statements made by Toth’s supervisor, Doug Schneider. 3 The premise of Toth’s
argument is that these written and oral statements imposed restrictions on Gates’
right to terminate her employment.
The district court determined that Toth’s breach of contract and promissory
estoppel claims should be dismissed because Toth failed to show the existence of
an offer of employment or a promise upon which she could reasonably rely. See
Soderlun, 944 P.2d at 619 (holding that statements relied upon by a plaintiff as
the basis for breach of contract or promissory estoppel claims must be “of such a
nature as to constitute a legally binding promise upon which plaintiff[] could
reasonably rely”). Toth renews her argument on appeal. Our analysis of Toth’s
claims is governed by the precept that Toth may not aggregate the documents
upon which she relies to prove the existence of an enforceable promise but must
show the elements of a contract as to each document. See Vasey v. Martin
Marietta Corp., 29 F.3d 1460, 1464-65 (10th Cir. 1994) (applying Colorado law).
3
In her deposition, Toth also testified that enforceable agreements were
created when she drafted a plan for her work and when her supervisor signed a
“quality manual.” Toth’s appellate briefs do not contain a record citation to these
documents and it does not appear that they are included in the record on appeal.
This court, thus, refuses to speculate on their contents.
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The first page of Gates’ Policies and Procedures Manual consists solely of
the following language under the capitalized heading “IMPORTANT NOTICE TO
ALL EMPLOYEES”:
The information contained in this Personnel Policies and
Procedures Manual is intended to provide guidance for Gates’
personnel-related practices and is not a guarantee of employment nor
an expressed or implied contract. . . .
Employment with Gates is terminable at the will of either the
employee or Gates, at any time, without notice, without cause and
without any specific prior disciplinary procedures.
Similarly, under the capitalized heading “IMPORTANT NOTICE TO ALL
ASSOCIATES,” the first page of the Handbook contains the following provision
printed in a type-face different from the other type-face appearing on the page,
The information contained in this Associate Handbook is intended to
provide general information about Gates’ practices and programs and
does not constitute an expressed or implied contract guaranteeing the
rights of any associate permanently. . . . Employment with Gates is
terminable at the will of either the associate or Gates, at any time,
without notice, cause or any specific disciplinary procedures, except
as otherwise stated herein.
Summary judgment in favor of the employer on an employee’s breach of
contract and promissory estoppel claims may be appropriate if “the employer has
clearly and conspicuously disclaimed intent to enter a contract limiting the right
to discharge employees.” Ferrera v. Nielsen, 799 P.2d 458, 461 (Colo. Ct. App.
1990). Here, both disclaimers were clearly worded and conspicuously located on
the first page of both the Manual and the Handbook. Additionally, both
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disclaimers were printed in italicized font, rendering them more prominent than
other provisions in the documents.
Even when a written document contains a clear and conspicuous disclaimer,
it can still form the basis of either a breach of contract or promissory estoppel
claim if it also “contains mandatory termination procedures or requires ‘just
cause’ for termination.” Evenson v. Colorado Farm Bureau Mut. Ins. Co., 879
P.2d 402, 409 (Colo. Ct. App. 1993). Toth, however, does not direct this court to
any specific provision in either the Manual or the Handbook that would support
her claims, but simply states “Gates had polices, practices and/or procedures
which referenced discipline for inappropriate conduct, fair treatment, non-
discrimination, and continued employment based upon merit.”
Taking as true Toth’s allegation that the Manual and the Handbook contain
Gates’ “policies, practices and/or procedures,” general statements describing an
employer’s present policies are insufficient to support a claim for breach of
contract or promissory estoppel. See Orback v. Hewlett-Packard Co., 97 F.3d
429, 432 (10th Cir. 1996) (“[G]eneral indefinite policy statements do not abrogate
employment at will.”) (applying Colorado law); see also Soderlun, 944 P.2d at
620. In light of the clear and conspicuous disclaimers present in both the Manual
and the Handbook, and the lack of any evidence pinpointing definite and specific
provisions that conflict with those disclaimers, this court agrees with the district
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court’s conclusion that Toth has failed to identify an alleged promise sufficient to
support her breach of contract or promissory estoppel claims. See Soderlun, 944
P.2d at 620 (holding that alleged promise must “be sufficiently specific so that the
judiciary can understand the obligation assumed and enforce the promise
according to its terms”).
At the time Toth initially sought employment with Gates, she completed
and signed a job application. The last page of the application contained a
paragraph headed by the word “Affidavit.” Toth’s signature appears at the end of
this paragraph. The following sentence appears in the middle of the paragraph,
“If employed by The Gates Rubber Company or any associate company or
companies, it is not for a definite period and may be terminated at any time by
either party upon such notice as the one terminating it feels should be given.”
The application also contains a statement at the top of the first page which reads,
“This company has a policy of employment on merit without discrimination
because of age, race, color, religion, creed, national origin or sex.” It is upon this
statement that Toth relies to support her claim that the application altered her at-
will employment relationship with Gates.
Although the disclaimer in the application is not clear and conspicuous, the
statement upon which Toth relies is nothing more than a general expression of
Gates’ policy that employment with Gates is based not on age, race, color,
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religion, creed, national origin, or sex but on merit. General policy statements are
insufficient to support claims for breach of contract or promissory estoppel. See
id.
Toth fails to identify any specific provision in Gates’ Code of Conduct that
would support her breach of contract or promissory estoppel claims. That
document, at best, contains nothing more than general descriptions of Gates’
present policies governing employee conduct. 4 It too, therefore, cannot form the
basis for Toth’s claims. See id.
Toth’s contention that Schneider made oral representations likewise fails to
provide support for her breach of contract and promissory estoppel claims. In her
affidavit and in her deposition testimony, Toth stated that at the time she was
placed on probation Schneider told her that if the conditions of her probation
were met her employment with Gates would not be terminated. Assuming,
without deciding, that Schneider’s comments, if made, constituted something
more than a description of Gates’ policies or a forecast of the likelihood of Toth
remaining employed by Gates, the comments are nothing more than “vague
4
The purpose of the Code of Conduct is described on page two of that
document where it states, “This Code is a unilateral statement of policy by The
Gates Corporation. Nothing in this Code is intended to create enforceable
employee contract rights.”
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assurances” not sufficiently definite, as a matter of law, to support Toth’s breach
of contract or promissory estoppel claims. See Vasey, 29 F.3d at 1464.
Based on our review of the record, this court concludes that the district
court properly granted summary judgment in favor of Gates on Toth’s breach of
contract and promissory estoppel claims. 5
C. Equal Pay Act Claims
Toth also claims she was paid less than two male co-workers in
contravention of the Equal Pay Act. See 29 U.S.C. § 206(d)(1). To establish a
prima facie case under the Equal Pay Act, a plaintiff must demonstrate “that (1)
she was performing work which was substantially equal to that of the male
employees considering the skills, duties, supervision, effort and responsibilities of
the jobs; (2) the conditions where the work was performed were basically the
same; (3) the male employees were paid more under such circumstances.”
Tidwell v. Fort Howard Corp., 989 F.2d 406, 409 (10th Cir. 1993). Toth’s
opening appellate brief is completely devoid of any record citations that establish
any element of her prima facie case. Toth not only fails to set out the elements of
the prima facie case, she fails to even inform this court of her rate of pay or the
5
In light of this court’s disposition of Toth’s breach of contract and
promissory estoppel claims, it is unnecessary for us to also address Gates’
alternative contention that Toth’s claims fail, in their entirety, by the application
of the after-acquired evidence defense.
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rate of pay received by the two individuals who were allegedly paid more than
her. Toth does not mention her Equal Pay Act claim in her reply brief. Without
any citation to the record, it is impossible for this court to evaluate the evidence,
if any, upon which Toth relies to support her contention that she was paid less
than two male co-workers. 6 We refuse to engage in speculation and thus conclude
that the district court properly dismissed Toth’s Equal Pay Act claims for failure
to present genuine issues of material fact which would support those claims.
D. Claims Alleging Discrimination Based on National Origin and
Sex
Toth raises several claims based on Title VII of the Civil Rights Act of
1964, as amended. See 42 U.S.C. § 2000e-2(a). Specifically, Toth claims the
decision to discharge her was based upon her sex and/or national origin. Toth
also claims she failed to receive four promotions because of her sex and/or
6
Toth alleges, again without record support, that she requested certain
documents in discovery necessary to respond to Gates’ allegation that she had
failed to offer any evidence supporting her Equal Pay Act claim. This contention
also appears in the brief Toth filed with the district court in response to Gates’
motion for summary judgment. Assuming, without deciding, that this contention,
if true, has any relevance to the matter before this court, and further assuming that
Toth’s statement could be properly construed as a request for a continuance
pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, Toth has failed to
submit an affidavit specifically demonstrating how the requested discovery would
provide evidence relevant to the motion for summary judgment. See Pasternak v.
Lear Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986) (holding
that district court did not abuse its discretion in granting summary judgment
where nonmoving party failed to file an affidavit explaining the alleged need for
additional discovery).
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national original. Finally, Toth claims she was paid less than co-workers who did
not share her protected attributes.
A plaintiff alleging violations of Title VII must present either direct or
indirect evidence sufficient to show intentional discrimination. See Shorter v.
ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999). To support each of
her Title VII claims, Toth has elected to rely on indirect evidence of
discrimination by employing the burden-shifting framework first articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Toth, thus,
bears the initial burden of establishing a prima facie case by a preponderance of
the evidence. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
252-53 (1981). The burden of production then shifts to Gates who must articulate
a legitimate, nondiscriminatory reason for the adverse employment action Toth
suffered. See McDonnell Douglas, 411 U.S. at 802. Once Gates meets this
burden, Toth can avoid summary judgment only if she can show discriminatory
motive or, alternatively, show that Gates’ proffered explanation is pretextual. See
Reeves v. Sanderson Plumbing Prods., Inc. , No. 99-536, 2000 WL 743663, at *9
(U.S. June 12, 2000) (“[A] plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer's asserted justification is false, may permit the
trier of fact to conclude that the employer unlawfully discriminated.”); see also
Randle v. City of Aurora , 69 F.3d 441, 453 (10th Cir. 1995). A plaintiff can
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show pretext by revealing “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)
(quotations omitted).
1. Discriminatory Discharge Claims
Both Toth and Gates contend that Toth can establish a prima facie case of
discriminatory discharge by showing that: (1) she is a member of a protected
class, (2) she was qualified for the job she was performing, (3) she was the
subject of an adverse employment action, and (4) she was treated less favorably
than employees outside the protected group. Gates concedes that Toth has
introduced sufficient evidence to satisfy the first and third elements of her prima
facie case but argues that she has failed to demonstrate she is qualified or she
was treated less favorably than similarly-situated co-workers who do not share
her protected attributes.
Although neither party has brought the controlling case law to this court’s
attention, it is well-settled in this circuit that “a plaintiff may make out a prima
facie case of discrimination in a discharge case by credible evidence that she
continued to possess the objective qualifications she held when she was hired, or
by her own testimony that her work was satisfactory, even when disputed by her
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employer, or by evidence that she had held her position for a significant period of
time.” MacDonald v. Eastern Wyo. Mental Health Ctr. , 941 F.2d 1115, 1121
(10th Cir. 1991) (citations omitted); see also Bullington v. United Air Lines, Inc. ,
186 F.3d 1301, 1316 n.11 (10th Cir. 1999) (holding, in a failure-to-hire case,
that plaintiff had met her prima facie burden by showing, through credible
evidence that included plaintiff’s own testimony, that she was minimally
qualified for the position she sought, even though the defendant disputed that
evidence). In support of her contention that she was qualified to perform the job
from which she was terminated, Toth has offered the testimony of her co-worker,
Steve Letherland (“Letherland”), who testified in his deposition that he believed
Toth was both capable of performing her job and performing it sufficiently at the
time of her termination. See Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1470
(10th Cir. 1992) (holding, in a failure-to-promote case, that plaintiff met her
prima facie burden of showing she was qualified through her own testimony and
that of co-workers who were in a position to know the plaintiff's qualifications).
In her affidavit, Toth asserts that she is qualified and she has included relevant
documents in the record to back up that assertion. There is no evidence that Toth
no longer possessed the objective qualifications she held when she was hired for
the position in the Materials Analysis Laboratory. The district court, thus, erred
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when it concluded that Toth failed to show she was qualified for the position
from which she was terminated.
Both parties next argue over whether Toth was able to demonstrate that she
was treated less favorably than similarly-situated employees who did not share
her protected attributes. In finding that Toth had failed to satisfy the fourth
element of her prima facie case, the district court concluded that Toth had failed
to demonstrate that the individuals to whom she compared herself were similarly-
situated. On appeal, Gates again disputes Toth’s assertions that these individuals
were similarly-situated.
It is unnecessary for this court to address the question of whether Toth has
demonstrated that the individuals to whom she compares herself are similarly-
situated. Although Toth may satisfy the fourth element of her prima facie burden
by presenting evidence that she was treated less favorably than similarly-situated
employees, in a discriminatory discharge case a plaintiff may also satisfy the
fourth element by demonstrating that she was replaced by someone outside the
protected class. 7
See Crawford v. Northeastern Okla. State Univ. , 713 F.2d 586,
7
Toth may also be able to satisfy her prima facie burden simply by
introducing evidence that the position was not eliminated, without also
demonstrating that she was replaced by someone outside her protected class. See
Perry v. Woodward, 199 F.3d 1126, 1140 (10th Cir. 1999) (holding that Hispanic
plaintiff alleging discriminatory discharge on the basis of race had satisfied the
fourth element of the prima facie test without showing that her replacement was
outside her protected class), cert. denied, 120 S. Ct. 1964 (2000).
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588 (10th Cir. 1983) (holding that female plaintiff had established the fourth
element of her prima facie case by introducing evidence that the position from
which she was discharged was filled by a man). It is uncontested that Toth was
replaced by an Anglo male. Thus, Toth has satisfied the fourth element of her
prima facie case.
Toth concedes that Gates has articulated a facially non-discriminatory
reason for her discharge, i.e., poor job performance. Thus, the inquiry moves to
whether Toth was able to demonstrate that Gates’ proffered explanation is a
pretext for unlawful discrimination. See Randle , 69 F.3d at 453.
Toth was terminated by her supervisor, Doug Schneider, who also authored
her performance evaluations. Schneider stated in his deposition that during
Toth’s probationary period, he directly observed Toth at her job “a few times . . .
but not many.” Schneider, however, had no specific recollection of any of these
incidents. Additionally, Schneider testified that he had not reviewed Toth’s work
in detail. Schneider testified that he relied primarily upon Steve Letherland to
evaluate Toth’s performance and arrive at the decision that her termination was
warranted by her poor performance. Although Letherland testified that he had no
direct involvement in the decision to terminate Toth, he also testified that he
regularly communicated to Schneider his criticisms of Toth’s written
communication skills and her inability to complete her assignments. The record
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contains a document, authored by Letherland, identifying those specific areas in
which Toth needed to improve.
Letherland also testified, however, that while he occasionally found it
difficult to comprehend Toth’s written and oral communication, her
communication was not less than acceptable. Letherland further testified he
believed Toth was capable of performing her job and that at no point did he
believe Toth’s job performance merited her discharge. Because Letherland
supplied Schneider with the information upon which Schneider relied in making
the decision to terminate Toth, this court concludes that a reasonable factfinder
could rationally conclude from the contradictory evidence presented by Toth that
Gates’ proffered reason for terminating Toth was pretextual. 8
The district court
erred when it concluded that Toth had not presented sufficient evidence of pretext
to survive summary judgment on her discriminatory discharge claims.
2. Failure-to-Promote Claims
8
In light of this conclusion, it is unnecessary for this court to evaluate
Toth’s other evidence of pretext including Toth’s assertions that: (1) she was
treated less favorably than similarly-situated male co-workers and (2) Schneider,
Letherland, and others made disparaging remarks about her accent and
ethnenticity. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)
(discussing the comparisons between plaintiff and his similarly-situated co-
workers at the pretext stage); Carino v. University of Okla. Bd. of Regents, 750
F.2d 815, 819 (10th Cir. 1984) (holding that comments regarding a plaintiff’s
accent may constitute indirect evidence of discrimination).
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A plaintiff alleging violations of Title VII must file a charge of
discrimination with the EEOC “within three hundred days after the alleged
unlawful employment practice occurred.” See 42 U.S.C. § 2000e-5(e)(1). A
plaintiff may not file a civil lawsuit unless she has first filed a timely charge with
the EEOC. See Aronson v. Gressly , 961 F.2d 907, 911 (10th Cir. 1992). In her
deposition, Toth alleged she applied for but was denied promotions in 1982 or
1983, 1987 or 1988, 1994 or 1995, and 1997. Toth filed her first charge with the
EEOC on August 13, 1996. Thus, with the exception of the 1997 incident, Toth
failed to file charges with the EEOC within the 300-day period. Toth sought to
avoid the dismissal of her untimely failure-to-promote claims by attempting to
invoke the continuing violation doctrine.
The district court addressed the issue and concluded that Toth had failed to
establish a continuing violation. Further, the court concluded that Toth had
failed to present sufficient evidence to support the one failure-to-promote claim
that was not time barred.
Under the continuing violation doctrine, a plaintiff may base her claims of
unlawful discrimination on incidents occurring outside the statutory time
limitations of Title VII if she is able to demonstrate that those incidents are not
discrete unrelated acts but, instead, “constitute a continuing course of
discrimination.” Martin v. Nannie and The Newborns, Inc. , 3 F.3d 1410, 1415
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(10th Cir. 1993). To prevail under a continuing violation theory, therefore, Toth
“must show that events inside and outside the statutory period share commonality
and are related acts of discrimination.” Robbins v. Jefferson County Sch. Dist. R-
1, 186 F.3d 1253, 1257 (10th Cir. 1999)
Although Toth correctly points out in her appellate brief that the question
of whether a continuing violation has occurred “is one of fact,” she then fails to
reference even one fact to support her argument. There is not a single reference
in Toth’s appellate brief to any of the three positions she allegedly sought prior
to 1997. Toth’s entire appellate argument, instead, centers solely on the failure
to promote her to the position in Gates’ Air Springs Department in 1997. This
argument consists of a two-sentence paragraph in which Toth asserts, without
reference to either the record or any legal authority that she “was better qualified
than the individual who obtained the position, including based upon prior
experience and the fact that she had held that specific job.”
An appellant has the responsibility to provide this court with specific
citations to the record and to tie relevant facts to her legal arguments. See Fed. R.
App. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . the argument, which
must contain: appellant’s contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant relies . . . .”); see
also United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) (per curiam)
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(“Judges are not like pigs, hunting for truffles buried in briefs.”). Toth has
utterly failed to meet this responsibility and this court, thus, treats all her failure-
to-promote claims as waived.
3. Wage Discrimination Claims
Toth also claims she was paid less than two male co-workers in violation
of Title VII. A plaintiff who raises a Title VII wage discrimination claim must
show, as part of her prima facie burden, that she was paid less than the male
employees to whom she compares herself. See Sprague v. Thorn Americas, Inc. ,
129 F.3d 1355, 1363 (10th Cir. 1997). After a thorough review of the record, we
agree with the district court’s conclusion that Toth has presented no genuine
issue of material fact sufficient to satisfy her prima facie burden. Although she
attempts to compare herself to two male co-workers, Toth has not directed this
court to any record evidence indicating the rate of pay she received or the rate of
pay received by the two individual to whom she attempts to compare herself.
Toth, therefore, has failed to demonstrate that these individuals received a higher
wage than she received. The district court, thus, properly granted summary
judgment in favor of Gates on Toth’s Title VII wage-discrimination claims.
E. Retaliation Claims
Toth also claims Gates retaliated against her for engaging in an activity
protected by Title VII. Specifically, Toth alleges that the negative performance
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evaluations she received from Schneider upon which her probation and eventual
termination were based, were given in retaliation for the complaints she filed
with the EEOC. 9
Gates concedes that the decision to terminate Toth’s
employment was based on the negative performance evaluations she received.
To establish her prima facie case of retaliation, Toth must show: “1) she
engaged in protected opposition to discrimination or participation in a proceeding
arising out of discrimination; 2) adverse action by the employer subsequent to
the protected activity; and 3) a causal connection between the employee’s
activity and the adverse action.” Archuleta v. Colorado Dep’t. of Insts., Div. of
Youth Servs. , 936 F.2d 483, 486 (10th Cir. 1991). On appeal, Gates argues that
Toth has failed to satisfy the second and third elements of her prima facie case.
Gates argues the negative performance evaluations Toth received after she
filed charges with the EEOC cannot constitute adverse employment actions
sufficient to satisfy the second element of her prima facie case. In support of this
argument, Gates directs this court to a case decided by the Seventh Circuit Court
of Appeals. See Smart v. Ball State Univ. , 89 F.3d 437, 442 (7th Cir. 1996)
In the initial charge she filed with the EEOC, Toth stated that she had
9
already “lodged several complaints to Gates [sic] EEO department.” Although
Toth does not disclose the dates on which she complained to Gates’ internal EEO
department, those complaints also constitute protected activities under Title VII.
See Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir.
1999).
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(holding that the receipt of unjustified performance evaluations, without
additional evidence the employee was placed on probation, does not constitute an
adverse employment action sufficient to support a Title VII retaliation claim).
Gates, however, fails to acknowledge that this court liberally construes the phrase
“adverse employment action.” See Gunnell v. Utah Valley State College , 152
F.3d 1253, 1264 (10th Cir. 1998). This court has held that actions having an
adverse impact on future employment opportunities can constitute adverse
employment actions for purposes of Title VII retaliation claims. See Berry v.
Stevinson Chevrolet , 74 F.3d 980, 986 (10th Cir. 1996). Because Toth’s ultimate
discharge was based on the negative performance evaluations she received after
she had filed charges with the EEOC, we conclude that she has made a showing,
sufficient to withstand summary judgment, that she suffered an adverse
employment action when she received the negative performance evaluations.
Gates does not argue that Toth has failed to show a causal connection
between the series of charges she filed with the EEOC and her receipt of the
negative performance evaluations upon which her probation and ultimate
termination were based. 10
However, a “causal connection may be demonstrated
10
Gates’ argument that Toth has failed to meet the third element of her
prima facie case is based solely on its assumption that the only adverse
employment action Toth suffered was her termination. Gates argues that Toth has
failed to show a causal connection between her termination and the protected
activity in which she engaged because her termination occurred more than eight
-24-
by 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 Kan., Inc. , 683 F.2d 339, 343 (10th Cir. 1982). Toth filed a charge with
the EEOC on August 13, 1996. Toth’s first negative performance evaluation is
dated August 15, 1996 and was signed by Toth and Schneider on August 16,
1996. Toth, thus, has shown that the adverse employment action she suffered
occurred two days after she engaged in a protected activity. Toth has also
presented evidence that she received additional negative job reviews over the
course of the same period in which she filed a series of supplemental charges
with the EEOC. This court concludes that Toth has satisfied the third element of
her prima facie case by presenting evidence that the negative performance
evaluations she received were temporally related to the filing of her charges with
the EEOC. See Marx v. Schnuck Mkts., Inc. , 76 F.3d 324, 329 (10th Cir. 1996)
(holding that a causal connection can be inferred from “protected conduct closely
followed by adverse action”).
Gates has stated that Toth received her negative performance evaluations
because of her poor performance. The record is sufficiently developed to allow
this court to address the question of whether Gates’ proffered explanation is
months after she filed her initial complaint with the EEOC. Gates’ argument has
no relevance in light of our conclusion that Toth’s receipt of the poor
performance evaluations constituted an adverse employment action.
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pretextual. See Randle , 69 F.3d at 453. In an affidavit, Toth supports her
argument that Gates’ proffered explanation for her negative performance
evaluations is pretextual with the following statement,
I was informed during my performance evaluation by Mr. Douglas
Schneider that essentially, as a result of my creating so much
negative stuff around Gates that there was no other way to go,
referring to my negative performance evaluation. This comment was
followed up with a statement to the effect that my EEO complaints
had made the year miserable. As a result, I understood that the
negative job evaluation was directly related to my complaints of
discrimination/harassment.
Although Schneider’s comments are ambiguous and would be insufficient to
constitute direct evidence of unlawful discrimination, they are sufficient to raise
a genuine issue of material fact as to whether Gates’ proffered explanation for
Toth’s negative performance evaluations is pretextual. Based on its erroneous
assumption that Toth’s termination is the only adverse employment action
sufficient to support her retaliation claim, Gates concedes as much in its appellate
brief when it states, “At most, the alleged statement evidences a motivating factor
behind the poor performance review at the time of the alleged statement.” Thus,
Toth has satisfied her burden of showing pretext and the district court erred when
it granted summary judgment in favor of Gates on Toth’s retaliation claim.
F. Hostile Work Environment Claims
Construing Toth’s complaint to include harassment claims based on a
hostile work environment theory, Gates argued before the district court that Toth
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had failed to present sufficient evidence to support this claim because she had
failed to present any evidence that the alleged harassment to which she was
subjected was pervasive or severe enough to alter the terms, conditions, or
privileges of her employment. See Bolden v. PRC, Inc. , 43 F.3d 545, 551 (10th
Cir. 1994). In her reply brief to the district court, Toth did not direct the court to
specific incidents but argued that the entire statement of facts included in her
brief supported her hostile work environment theory. The district court
addressed the issue by evaluating four incidents in which negative comments
regarding Toth’s national origin were allegedly made by co-workers. The court
concluded that Toth’s allegations were insufficient to support a hostile work
environment claim. Toth’s appellate argument on this issue consists of a single
paragraph that is essentially identical to the paragraph included in her brief to the
district court.
To survive summary judgment on a hostile environment claim, Toth “must
show that a rational jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Davis v. United States Postal Serv. , 142 F.3d
1334, 1341 (10th Cir. 1998) (quotations omitted). After a review of the entire
record, this court concludes that Toth has failed to raise a genuine issue of
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material fact to support her harassment claims based on a hostile work
environment theory. 11
Any indignities she allegedly suffered were not
sufficiently severe or pervasive enough to alter the conditions of her employment.
III. CONCLUSION
Upon review of the parties’ appellate briefs and de novo review of the
district court’s memorandum order and judgment and the entire record on appeal,
this court affirms the grant of summary judgment in favor of Gates on Toth’s
breach of contract, promissory estoppel, Equal Pay Act, failure-to-promote, and
Title VII wage discrimination claims. This court reverses the district court’s
grant of summary judgment on Toth’s Title VII retaliation and discriminatory
discharge claims and remands to the district court for further proceedings
consistent with this opinion.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
The district court focused it’s analysis on whether Toth had shown a
11
hostile work environment based on comments allegedly made about her national
origin. In her appellate brief, Toth argues that the hostile work environment was
based on gender-related comments. The record is insufficient to support a hostile
work environment claim premised either on comments relating to Toth’s gender
or her national origin.
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Toth v. Gates Rubber
Combined Opinion