Tabor v. Hilti, Inc.

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 2, 2014

Elisabeth A. Shumaker
Clerk of Court
RONICA R. TABOR; DACIA S. GRAY,

Plaintiffs-Appellants,

v. No. 13-5114
(D.C. No. 4:09-CV-00189-GKF-PJC)
HILTI, INC., a domestic for profit (N.D. Okla.)
business corporation; HILTI OF
AMERICA, INC., a foreign for profit
business corporation,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.

Ronica R. Tabor and Dacia S. Gray filed claims under Title VII of the Civil

Rights Act of 1964, alleging sex discrimination by Hilti, Inc. and Hilti of America,

Inc. (collectively, Hilti). Ms. Tabor appeals the district court’s judgment in favor of

Hilti, following separate bench and jury trials on her claims asserting disparate

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
impact and disparate treatment. Ms. Gray appeals the district court’s grant of

summary judgment to Hilti on her disparate impact claim.

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

I. Background

In their amended complaint, Ms. Tabor and Ms. Gray alleged that Hilti

discriminated against them and a class of similarly situated plaintiffs on the basis of

their sex in selecting employees for promotion from customer service jobs to outside

sales Account Manager positions. The district court refused to certify a class and

then granted summary judgment in Hilti’s favor on all claims. Tabor v. Hilti, Inc.,

703 F.3d 1206, 1211 (10th Cir. 2013). On appeal, we affirmed the district court’s

denial of class certification, as well as its grant of summary judgment on Ms. Tabor’s

retaliation claim and Ms. Gray’s disparate treatment claim. Id. at 1230. We reversed

the court’s grant of summary judgment on Ms. Tabor’s disparate treatment and

disparate impact claims. Id. We also directed the court to rule in the first instance on

Ms. Gray’s disparate impact claim since its earlier order did not spell out the basis

for summary judgment. Id. at 1227, 1230.

On remand, the district court first entered summary judgment in Hilti’s favor

on Ms. Gray’s disparate impact claim. At Ms. Tabor’s request, the court then

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bifurcated her disparate impact and disparate treatment claims, agreeing to try them

separately. A trial to the court on her disparate impact claim proceeded first.1

In support of that claim, Ms. Tabor was required to show “that (a) an employment

practice (b) causes a disparate impact on a protected group.” Id. at 1220. We have

noted that “[s]tatistical evidence is an acceptable, and common, means of proving

disparate impact.” Id. at 1222 (internal quotation marks omitted). Ms. Tabor

presented expert statistical analysis supporting her contention that Hilti’s Global

Development and Coach Process (the GDCP) was an employment practice that

caused a disparate impact on a protected group, specifically female employees

seeking promotions from customer service jobs to outside sales Account Manager

positions. It was also Ms. Tabor’s burden to show that she was “personally [a]

victim of discrimination by the challenged employment practice.” Id. at 1221 n.7

(internal quotation marks and brackets omitted).

The district court issued findings of fact and conclusions of law, holding that

Hilti was entitled to judgment on Ms. Tabor’s disparate impact claim because she had

not carried her burden to demonstrate that the GDCP caused a disparate impact on the

protected group. The district court further held that Ms. Tabor failed to show she

personally suffered discrimination as a result of the GDCP.

1
The district court had ruled that the disparate impact claim permitted only
equitable relief and therefore should be decided by the court. See Aplt. App., Vol. I
at 189-90.

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 After the bench trial concluded on Ms. Tabor’s disparate impact claim, the

court held a pretrial conference on Ms. Tabor’s disparate treatment case. The court

heard argument on whether the statistical evidence Ms. Tabor had presented in the

disparate impact trial should be included in the pretrial order for the jury trial on her

disparate treatment claim. The court ultimately decided to exclude that evidence

from the pretrial order.

As the jury trial was beginning, Ms. Tabor filed a motion to amend the pretrial

order to include the evidence regarding her statistical analysis. The district court

denied her motion, and Ms. Tabor’s disparate treatment case proceeded to trial

without admission of her expert statistical evidence. The jury returned a verdict in

favor of Hilti.

II. Discussion

Ms. Tabor contends that the district court erred in deciding her disparate

impact claim by holding that her statistical analysis failed to show that the GDCP

caused a disparate impact on the protected group. She also asserts that the district

court erred in concluding that she failed to show she personally suffered

discrimination as a result of the GDCP.

As to her disparate treatment claim, Ms. Tabor argues that the district court

erred in excluding her statistical evidence from the pretrial order and in denying her

motion to amend the pretrial order to include that evidence.

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 Ms. Gray contends that the district court erred in granting Hilti summary

judgment on her disparate impact claim.

A. Ms. Tabor’s Disparate Impact Claim

Ms. Tabor had the burden to show that the challenged employment practice—

the GDCP—caused a disparate impact on female employees seeking promotions from

customer service jobs to outside sales Account Manager positions. See Tabor,

703 F.3d at 1222. For her statistical evidence to be reliable, it had to “isolate and

identify the specific employment practices that are allegedly responsible for any

observed statistical disparities.” Id. at 1223 (internal quotation marks and brackets

omitted).

The requirement to isolate the challenged employment practice is
important because it goes directly to causation. . . . [A] plaintiff cannot
establish her claim simply by showing that, at the bottom line, there is
an imbalance in the work force. The imbalance must actually be a result
of the challenged employment practice.

Id. at 1223-24 (citation and internal quotation marks omitted).

The district court found that Hilti’s GDCP and its interview process are

separate processes. It then held that, because Ms. Tabor’s statistical analysis failed to

isolate the GDCP from the interview process, the evidence did not show that the

disparate impact was caused by the GDCP. The court ultimately ruled that Ms. Tabor

had not carried her burden to demonstrate that the GDCP caused a disparate impact

on the protected group.

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 The district court did not commit clear error in concluding that Hilti’s GDCP

and interview process are separate. We do not reach Ms. Tabor’s second contention

that the GDCP and the interview process were not capable of separation for analysis

because she did not raise that issue in the district court.

To better understand Ms. Tabor’s contentions, we begin our analysis with a

summary of the district court’s relevant findings of fact and conclusions of law.

1. District Court’s Findings of Fact

a. Facts Regarding the GDCP

Ms. Tabor alleged that “the GDCP was the employment practice responsible

for the alleged disparate impact.” Aplt. App., Vol. V at 1574. The district court

found that the “GDCP tracks different aspects of an employee’s readiness to promote,

and is made up of two components: the Performance Management Process (‘PMP’)

and the Strategic Management Development (‘SMD’) process.” Id. at 1570-71.

Under the PMP, a Hilti manager evaluates an employee’s past performance and sets

her goals going forward. The SMD process includes ratings assessing an employee’s

mobility (M-rating) and her promotability (P-rating). For example, an M1-D rating

means the employee is “[r]eady to move anywhere domestically.” Id. at 1572. An

employee with a P1 rating is considered “[r]eady for next development step within

12 months.” Id.

The court further found that “The Red Thread Dimensions are Hilti’s ‘core

values’ that run through everything in the organization and its employee

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management.” Id. at 1573 (internal quotation marks omitted). The Red Thread

Dimensions consist of six criteria: “Understanding and Defining what need[s] to be

done,” “Getting things done,” “Working with Others,” “Developing Yourself &

Others,” “Functional Expertise,” and “Understanding the Business.” Id. These

dimensions “are interwoven into both components of the GDCP[:] the PMP and SMD

processes.” Id. at 1574. They are also “interwoven into the interview process.

Interviewers rate a candidate on a scale of 1-5 based on the interviewer’s judgment of

whether the candidate meets or exceeds the criteria for successful job performance

within each of the dimensions.” Id. (citation omitted).

Importantly, the district court also found that “[t]he SMD process identifies

employees who are interested in promotional opportunities within Hilti,” and that

“[t]he output of the SMD process is a ‘pool’ or list of employees used as a

management tool to track employees interested in promotions.” Id. at 1571. The

court further found that “[t]he potential candidates on the SMD list must interview

and compete for future jobs. Thus, the promotional process for prospective Account

Managers involves both the GDCP and a separate interview process. The SMD

process and the interview process are different processes.” Id. (citation omitted).

b. Facts Regarding Ms. Tabor’s Statistical Analysis

The district court noted that Ms. Tabor’s expert analysis found “a statistically

significant (at a 95% confidence level) disparate impact based on sex when reviewing

Account Managers hired [during the relevant time periods] compared to the proxy

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feeder group [of all Base Market employees].” Id. at 1579. But as we discuss below,

the district court did not credit this testimony.

c. Facts Regarding Ms. Tabor
The district court found that Ms. Tabor worked for Hilti in customer service

positions beginning in January 2006. As of April 2007, she had expressed an interest

in becoming a customer service Team Leader. She was rated a P1 under the SMD

process at that time. During the third quarter of 2007, Ms. Tabor decided she wanted

to pursue promotion to an Account Manager position. She applied to be an Account

Manager in the fall of 2007, and interviewed for jobs located in two different cities in

November of that year. Three candidates were interviewed—two women and one

man. The other candidates were both offered Account Manager positions; Ms. Tabor

was not. Ms. Tabor’s PMP review dated January 31, 2008, indicated she was mobile

with a geographic preference for five states. Her review predicted that she would be

an Account Manager by the first or second quarter of 2008. Ms. Tabor resigned from

Hilti effective April 5, 2008.

2. District Court’s Conclusions of Law

The court determined that, “[b]ecause the GDCP is an employee development

process that generates a talent pool of internal candidates who may be interviewed

for promotions, it functions as an employment practice.” Aplt. App., Vol. V at 1583.

But the court held that the evidence was insufficient to demonstrate that the GDCP

caused a disparate impact.

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 The court initially held that Ms. Tabor’s expert statistical analysis was

“methodologically sound and reliable.” Id. Due to a lack of data indicating which

Hilti employees had actually applied for Account Manager positions, the court

concluded that Ms. Tabor’s analysis had identified a proper proxy for the applicant

pool for those jobs, specifically three categories of customer service positions that

Hilti considered the “Base Market.” Id. at 1584. The statistical analysis also

“controlled for important variables other than sex that could impact promotion rates.”

Id. As a result of Hilti’s incomplete data, the court held that Ms. Tabor’s failure to

control for SMD P- and M-ratings did not render the analysis unreliable.

The court held, however, that Ms. Tabor’s statistical analysis “did not isolate

the GDCP.” Id. at 1585. It elaborated as follows:

[The expert] report compares eventual Account Managers to the proxy
of Base Market employees. The GDCP outputs a pool of potentially
promotable employees. To move from Base Market to Account
Manager requires an employee to go through an additional process – the
interview process – which is separate from the GDCP. And external
applicants are not directly subject to the GDCP at all.

Id. The court concluded that, “[b]ecause [the expert analysis] does not isolate the

GDCP from the interview process, the disparate impact may be caused by one or both

of those processes. And without knowing which of those processes cause[s] the

alleged disparate impact, the court would be unable to fashion an appropriate

equitable remedy.” Id. Ultimately, the court held that “[b]ecause the statistical

evidence does not isolate the GDCP, [Ms.] Tabor has not carried her burden of

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demonstrating that the GDCP causes a disparate impact on female feeder pool

applicants who apply for outside sales Account Manager positions.” Id. at 1586.

The district court further determined that Ms. Tabor was not affected by the

GDCP: “Tabor applied for an Account Manager position, participated in the GDCP,

earned the highest [P-]rating possible, and interviewed for the Account Manager

positions. Thus, through the GDCP, Tabor secured an interview for the Account

Manager positions.” Id. at 1587. The court concluded that the decision not to hire

Ms. Tabor as an Account Manager “resulted from the interview process, not the

GDCP. Therefore, even if [Ms.] Tabor had demonstrated the GDCP caused a

disparate impact on female Account Manager applicants, that discrimination would

not have applied to her personally.” Id.

3. Standards of Review

“In an appeal from a bench trial, we review the district court’s factual findings

for clear error and its legal conclusions de novo.” Keys Youth Serv., Inc. v. City of

Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001).2 The district court’s factual findings

are clearly erroneous only if they are “without factual support in the record, or if the

appellate court, after reviewing all the evidence, is left with the definite and firm

conviction that a mistake has been made. If there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be clearly erroneous.”

2
Ms. Tabor does not address in her opening brief the standard of review
applicable to each of her claims, as required by Fed. R. App. P. 28(a)(8)(B).

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Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir. 1998)

(citation and internal quotation marks omitted).

The applicable standard of review for a claim of error in a disparate impact

case “depends upon the basis of the alleged error.” Villanueva v. Carere, 85 F.3d

481, 486 (10th Cir. 1996). We review for clear error the district court’s factual

determination that Hilti’s GDCP and interview processes are separate processes. See

id. at 486-87 (applying clear error review to factual findings underlying the court’s

disparate impact determination). We review de novo the district court’s holding that

Ms. Tabor did not satisfy her burden to show a disparate impact because her

statistical analysis failed to isolate the GDCP. See id. (holding appellate court

reviews district court’s “method of analysis” de novo).

4. The District Court’s Finding that Hilti’s GDCP and its
Interview Process are Separate Processes was not Clearly
Erroneous

Ms. Tabor asserts there is no evidence that the interview process and the

GDCP are separate processes. She maintains that the interview is a component of the

GDCP and that all GDCP components are interrelated through the Red Thread

Dimensions. She fails, however, to show that the district court’s finding on this issue

was clearly erroneous.

Khesa Pinkard, a former Regional Manager with Hilti (and plaintiff’s witness),

testified that the GDCP consists of the PMP and the SMD, intertwined with the Red

Thread Dimensions. Aplt. App., Vol. III at 683-84; 689-90. She stated, as well, that

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a document titled Hilti’s SMD & Red Thread Process Manual outlines the GDCP.

Id. at 685. That process manual cautions employees that “[t]he SMD process

never guarantees a promotion to an individual. The output is a ‘pool’ of potential

candidates that will need to interview and compete for future jobs!” Id., Vol. II

at 425.

Ms. Tabor’s statistical analysis was intended to demonstrate a disparate impact

on women caused by the GDCP. Her expert witness testified regarding his

understanding of the GDCP, stating that it included “coaching,” “feedback,” and

“evaluations.” Id., Vol. III at 984. He also indicated that the SMD & Red Thread

Process Manual described what he understood to be the GDCP. Id. at 985.

David Perkins, a director with Hilti, testified that the SMD process and the

interview process are separate processes. Id., Vol. IV at 1275. Christy Graybill,

another Hilti director, testified that the SMD is not a selection process; rather, “[i]t

helps coach and develop our team members in their career path.” Id. at 1326. She

stated that the outcome of the SMD process is to provide “a talent pool from which

we’ve identified candidates who are ready to take on a next role and as soon as

they’re able to interview for a next position.” Id. Addressing the SMD & Red

Thread Process Manual, see id. at 1329, Ms. Graybill testified the process described

in the manual is designed to help employees get into the interview pool for positions

they are interested in, and that it does not impact who is actually selected for a

competitive job, id. at 1331-32. She also made clear that, in addition to promoting

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from within, Hilti also fills Account Manager positions through external hires.

Id. at 1389.

The district court found that the GDCP is made up of two components: the

PMP and the SMD. It concluded that the SMD process outputs a pool of employees

interested in promotion to other positions within Hilti, who “must interview and

compete for future jobs. Thus, the promotional process for prospective Account

Managers involves both the GDCP and a separate interview process. The SMD

process and the interview process are different processes.” Id., Vol. V at 1571

(citation omitted). The court concluded further that “[t]he GDCP applie[s] only to

internal applicants, and thus [does] not apply to all prospective Account Managers.”

Id. at 1574. Based on the evidence presented at trial and the reasonable inferences

therefrom, the district court’s findings are not clearly erroneous.

5. Ms. Tabor Failed to Raise in the District Court her
Contention that the GDCP and the Interview Process are not
“Capable of Separation for Analysis”

Title VII provides that a plaintiff must “demonstrate that each particular

challenged employment practice causes a disparate impact.” 42 U.S.C.

§ 2000e-2(k)(1)(B)(i). But the statute provides for an exception to that burden if the

plaintiff can instead “demonstrate to the court that the elements of a respondent’s

decisionmaking process are not capable of separation for analysis.” Id. In that case,

“the decisionmaking process may be analyzed as one employment practice.” Id.

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 Ms. Tabor contends that, even if the GDCP and the interview process are

separate processes, the district court erred by presuming that the interview process is

capable of analytic isolation from the GDCP components. In that way it thereby

erred in concluding that she failed to carry her burden to prove a disparate impact

caused by the GDCP. She argues that all of the components of the GDCP and the

interview process are interrelated and tightly integrated through the use of

overlapping criteria, namely the Red Thread Dimensions. As a result, she maintains,

the GDCP and the interview process are not capable of separation for analysis. See,

e.g., Muñoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000) (“[W]here a promotion system

uses tightly integrated and overlapping criteria, it may be difficult as a practical

matter for plaintiffs to isolate the particular step responsible for observed

discrimination.”). And she contends that the district court erred in presuming

otherwise.

Under § 2000e-2(k)(1)(B)(i), it was Ms. Tabor’s burden to demonstrate that

the GDCP and the interview process are not capable of separation for analysis and

should be analyzed as one employment practice. She argued in the district court that

the elements of the GDCP are not capable of separation for analysis, and she does not

assert on appeal that the district court failed to treat the GDCP as a single

employment practice. But she did not raise that contention with respect to the GDCP

and the interview process. “[O]ur general rule is not to address arguments that were

not first presented to the district court.” Carpenter v. Boeing Co., 456 F.3d 1183,

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1198 n.2 (10th Cir. 2006) (declining to address contention that evidence was

“sufficient to trigger subsection 2000e-2(k)(1)(B)(i),” when plaintiffs failed to show

they raised that issue in the district court); see also Utah Animal Rights Coal. v. Salt

Lake Cnty., 566 F.3d 1236, 1244 (10th Cir. 2009) (“[W]e generally do not consider

new theories on appeal—even those that fall under the same general category as one

that was presented in the district court.”).

We reach this conclusion for several reasons. First, the final pretrial order for

the bench trial on Ms. Tabor’s disparate impact claim identified the GDCP as the

challenged employment practice, Aplt. App., Vol. II at 392, and listed as an issue to

be tried: “Whether the elements of defendants’ decision-making process are capable

of separation for analysis and, if so, whether the court should analyze the decision-

making process as one employment practice,” id. at 394. Hilti argued in closing that

the evidence showed the GDCP and the interview process are separate processes and

that the GDCP is not a selection process. The district court indicated at that time that

it was struggling with the question of what aspect of the GDCP Ms. Tabor contended

was the cause of the disparate impact.

Then, in her post-trial brief, Ms. Tabor described the GDCP as made up of the

PMP, the SMD, and the Red Thread Dimensions. See id., Vol. V at 1539. She did

not mention the interview process. Ms. Tabor acknowledged the district court’s

request that she pinpoint what aspect of the GDCP caused the disparate impact.

See id. at 1540. She argued that the court should characterize the GDCP as a single

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employment practice because the GDCP is an overly subjective process lacking

uniform criteria and providing supervisors with unbridled discretion. She continued

by describing the overly subjective aspects of the SMD and the PMP, again not

mentioning the interview process. See id. at 1540-42. Thus, Ms. Tabor did not

indicate to the district court that she was “attempting to make the required showing of

analytical inseparability,” Carpenter, 456 F.3d at 1198 n.2, specifically with regard

to the GDCP and the interview process, and the district court did not make any ruling

on that issue. We therefore decline to address her argument for the first time on

appeal.

We affirm the district court’s judgment in favor of Hilti on Ms. Tabor’s

disparate impact claim.3

B. Ms. Tabor’s Disparate Treatment Claim

Regarding her disparate treatment claim, Ms. Tabor argues that the district

court erred in excluding her statistical analysis evidence from the pretrial order, and

in denying her motion to amend the pretrial order to include that evidence. Both at

the pretrial conference, and in response to Ms. Tabor’s motion to amend the pretrial

order, the district court emphasized its decision, at her request, to try separately her

disparate impact and disparate treatment claims. It noted its bifurcation decision was

3
Because Ms. Tabor has not shown error in the district court’s dispositive ruling
that her statistical analysis failed to demonstrate that the GDCP had a disparate
impact on the protected group, we need not address her alternative argument that the
district court erred in concluding that she was not personally affected by the GDCP.

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based, in part, on avoiding jury confusion regarding the statistical evidence. We find

no abuse of discretion in the district court’s rulings.

Federal Rule of Civil Procedure 16(c) “authorizes the district courts to hold

pretrial conferences designed to aid in the disposition of cases, and enter orders

subsequent thereto which control the subsequent course of the action, unless

modified at trial to prevent manifest injustice.” Smith v. Ford Motor Co., 626 F.2d

784, 795 (10th Cir. 1980) (internal quotation marks and ellipsis omitted). The

pretrial order “insure[s] the economical and efficient trial of every case on its merits

without chance or surprise,” and “measures the dimensions of the lawsuit, both in the

trial court and on appeal.” Id. (internal quotation marks omitted). Rule 16 lists the

matters to be considered at the pretrial conference, including “formulating and

simplifying the issues,” “avoiding unnecessary proof and cumulative evidence,”

“determining the form and content of the pretrial order,” and “ordering a separate

trial under [Fed. R. Civ. P.] 42(b) of a claim.” Fed. R. Civ. P. 16(c)(2)(A), (D), (J)

& (M). Rule 42(b) provides that, “[f]or convenience, to avoid prejudice, or to

expedite and economize, the court may order a separate trial of one or more

separate . . . claims.”

1. District Court’s Bifurcation Decision

“District courts have broad discretion in deciding whether to sever issues for

trial . . . .” F.D.I.C. v. Everett A. Holseth & Co., 36 F.3d 1004, 1008 (10th Cir. 1994)

(internal quotation mark omitted). Here, the district court’s initial inclination was to

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proceed with one trial addressing both of Ms. Tabor’s discrimination claims. See

Aplt. App., Vol. I at 190 (directing parties to address how the disparate impact claim

would be tried and suggesting “[o]ne alternative might be to try the [disparate

treatment claim] to the jury, and to present any additional evidence to the court on

the disparate impact claim during jury deliberations”). The court indicated that,

under its suggested approach, Ms. Tabor could present her disparate impact evidence

to the court in written form. Id. at 212.

Ms. Tabor responded that she would prefer to try the disparate impact claim

first and thereby avoid “confusing the jury with it.” Id. at 213. The court

preliminarily agreed with this proposal, likewise expressing a concern about the jury

being confused by the statistical data to be presented on the disparate impact claim.

See id. at 213-14. Ms. Tabor then commented that “part of the reason the disparate

impact claim is viewed as equitable . . . is that there’s judicial expertise in dealing

with difficult statistical information like that.” Id. at 214. The district court

ultimately decided to grant Ms. Tabor’s request to try her disparate impact claim to

the court first, followed by a separate jury trial on her disparate treatment claim.

2. The District Court did not Abuse its Discretion by Excluding
the Statistical Evidence from the Pretrial Order in
Ms. Tabor’s Disparate Treatment Case

At the pretrial conference for Ms. Tabor’s disparate treatment claim, the court

heard argument on whether her statistical evidence should be included in the pretrial

order. The court initially observed:

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 It seems to the court that we bifurcated this matter at plaintiff’s request
and tried the disparate impact case first at plaintiff’s request. Disparate
impact evidence has no bearing in terms of statistics and the like in a
disparate treatment case so . . . that evidence is simply not going to
come in again in the disparate treatment [trial].

Id., Vol. V at 1590-91. The court noted further that the disparate treatment trial

would focus on comments related to Ms. Tabor’s gender allegedly made by a Hilti

Division Manager during her interview for the Account Manager positions, not on

whether the GDCP caused a disparate impact on female employees. Ms. Tabor did

not disagree, but argued nonetheless that the statistical analysis was evidence that a

jury could consider in a disparate treatment trial.

The court then reviewed its rationale for bifurcating the claims and trying them

separately, stating that “part of the rationale given for trying disparate impact first to

the court was so as not to confuse the jury with statistics. . . . And frankly, I am very

reluctant to go that direction.” Id. at 1603. The court stated further:

[W]e’ve already spent four days in trial on this case, and one of the
reasons for doing that was for judicial economy as well as to try to save
money for the clients for both sides. And now you’re saying the same
evidence that came in before me can come in before the jury. Now, I
really have a little problem with that because basically we’re doing the
same thing twice. Had you persuaded me of that beforehand, we would
have tried it all [at] once and I would have decided the equitable side
and the jury would have decided the legal side. And, in fact, that’s how
I went into our first series of final pretrial conferences, of wanting to do
that, and you took the position that it was necessary to bifurcate and
persuaded me of that.

Id. at 1604-05.

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 Ms. Tabor countered that the reason for bifurcating the claims was to prevent

the jury from deciding the disparate impact claim. She maintained that jury

confusion could be avoided and judicial economy could be served by admitting only

the transcript of the expert’s testimony in the disparate treatment trial. The district

court was not persuaded and concluded as follows:

I don’t think that testimony which focuses on the alleged disparate
impact of the GDCP process is proper before a jury particularly after I
was persuaded to bifurcate so as to avoid confusing the jury with it.

And in terms of regression analyses, frankly it’s hard enough for
us as lawyers and judges to wrap our heads around that as opposed to a
jury. That’s what the focus of the expert testimony was.

. . . . So based upon what I’ve been presented here, we’ll keep
the statistical evidence separate, and that is firmly within the bosom of
the court, believe me.

Id. at 1606-07 (emphasis added).

In making this ruling, the court carried through its previous reasoning in

bifurcating the claims. “A trial court necessarily possesses considerable discretion in

determining the conduct of a trial, including the orderly presentation of evidence.

Even evidence which is relevant may be excluded in order to promote the

administration of the judicial process . . . .” Thweatt v. Ontko, 814 F.2d 1466, 1470

(10th Cir. 1987) (citation omitted). As noted, Ms. Tabor requested the separate trials

and expressed agreement with the court’s primary basis for doing so. She has not

shown that the district court abused its discretion in excluding her statistical evidence

from the pretrial order for her disparate treatment jury trial.

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 3. The District Court did not Abuse its Discretion in Denying
Ms. Tabor’s Motion to Amend the Pretrial Order

On the first day of the jury trial, Ms. Tabor moved the district court to amend

the pretrial order to include her statistical evidence. She argued the amendment was

necessary to prevent manifest injustice because the evidence was relevant to her

disparate treatment claim, and without it she would not be able to fully and fairly

litigate her claim; that Hilti would not be prejudiced, or any prejudice could be cured;

and that she was not proceeding in bad faith by seeking an amendment.

After further argument by the parties, the district court denied Ms. Tabor’s

motion to amend. While acknowledging “that evidence of pretext may include prior

treatment of plaintiff, [and] the employer’s policy and practice regarding minority

employment, including statistical data,” Aplt. App., Vol. V at 1754 (internal

quotation marks omitted), the court nonetheless concluded:

Given where we are – and I think I need to put this in context –
the plaintiff[] had convinced me before we tried the disparate impact
case to bifurcate and to try the disparate impact case first. One of the
convincing arguments or the convincing considerations at that time –
and the record will reflect – that by doing that we wouldn’t have to
present to a jury in the disparate treatment portion of the case the
statistical evidence here.
....

. . . [H]aving bifurcated the case in part to consider the statistical
data in connection with the disparate impact claim . . . .

. . . I believe it would, No. 1, be extremely prejudicial to the
defense given that here just minutes before trial we have a motion to
amend to admit the statistical evidence and it would severely prejudice
the defendant insofar as the defendant would then have to marshal facts

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 to defend against that statistical evidence in the disparate treatment
case.
....

I think now it would be extremely prejudicial to do an about-face,
particularly an about-face with regard to plaintiff’s procedural position
that we would present the statistical evidence to me in the disparate
impact case, and had it been clear to me that the plaintiff wished to
present statistical evidence in the disparate treatment case, we would
have tried this once and I would simply have made the decision on the
disparate impact claim separately and apart from the jury.

So with due respect, the last-minute motion to amend the pretrial
order . . . will be denied.

Id. at 1753-55.

“We review the denial of a motion to amend a pretrial order for an abuse of

discretion.” Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002).

A pretrial order will only be amended “to prevent manifest injustice.” Id. (internal

quotation mark omitted).

We consider the following factors in a challenge to a district court’s
denial of a motion to amend the pretrial order and resulting exclusion of
an issue: (1) prejudice or surprise to the party opposing trial of the
issue; (2) the ability of that party to cure any prejudice; (3) disruption
by inclusion of the new issue; and (4) bad faith by the party seeking to
modify the order. We also take into consideration the timeliness of the
movant’s motion to amend the order.

Id. at 1210 (citation and internal quotation marks omitted).

The district court did not abuse its discretion in applying these factors. It

reiterated that one of the considerations in bifurcating the disparate impact claim and

trying it first was to avoid confusing the jury with the statistical evidence. The court

referred to Ms. Tabor’s “about-face” with regard to that procedural position, to which

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she had previously acquiesced. Aplt. App., Vol. V at 1755. It stated it would have

tried both claims together had she made clear her intent to present the statistical

evidence in her disparate treatment case. The court concluded that Hilti would be

prejudiced by having to marshal facts to defend against that evidence in the disparate

treatment jury trial. And it referred to Ms. Tabor’s “last-minute motion to amend the

pretrial order.” Id.

Ms. Tabor first asserts that her statistical evidence was relevant to her

disparate treatment claim, but the district court did not hold otherwise. She contends

that she did not intend, by bifurcating her claims, that she would later be precluded

from introducing relevant evidence to the jury in her disparate treatment case. But

this argument ignores her agreement during the pretrial conference preceding the

bench trial that separate trials would avoid jury confusion regarding the statistical

evidence. Finally, Ms. Tabor contends that Hilti would not have been prejudiced or

surprised. But she ignores that Hilti had proceeded since the court’s decision to

bifurcate her claims on the assumption that it would not be defending against the

statistical evidence in the jury trial on her disparate treatment claim. It was within

the district court’s discretion to consider the impact of Ms. Tabor’s last-minute

motion to amend the pretrial order on Hilti’s prepared defense. Finding no abuse of

discretion in the district court’s determinations regarding the pretrial order for

Ms. Tabor’s disparate treatment trial, we affirm the judgment in favor of Hilti on that

claim.

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 C. Ms. Gray’s Disparate Impact Claim

In discussing Ms. Gray’s disparate impact claim in Tabor, we stated that “Hilti

has offered undisputed evidence that multiple managers warned Ms. Gray about

performance and disciplinary problems.” 703 F.3d at 1227. We advised that, “[i]f

the district court determines there is no genuine dispute that Ms. Gray was

unqualified for the promotion based upon criteria not connected to the challenged

employment practice, then summary judgment in Hilti’s favor is appropriate.” Id.

On remand, the district court entered summary judgment against Ms. Gray on

her disparate impact claim, holding there was “no genuine dispute that [she] was

unqualified for promotion based on criteria not connected to the GDCP system.”

Aplt. App., Vol. VIII at 2802. In reaching this conclusion, the court referenced its

previous summary judgment ruling on Ms. Gray’s disparate treatment claim, in which

it held she was not qualified for the Account Manager position due to her lack of

field training and personal concerns about her job performance expressed by her

managers. The court held that these criteria were not connected to the GDCP.

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

facts in the light most favorable to Ms. Gray and drawing all inferences in her favor.

Tabor, 703 F.3d at 1215. Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

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 Ms. Gray contends the district court erred in concluding that Hilti’s failure to

promote her was unconnected to the GDCP. She maintains that her lack of field

training and her managers’ concerns about her job performance were connected to the

challenged employment practice because manager discretion and the process of

defining “qualified” employees were one and the same under the overly subjective

GDCP.

As to her performance issues, Ms. Gray points to evidence that male

employees with lower P-ratings than hers were nonetheless promoted. She asserts

that “[e]vidence that Plaintiff Gray’s supervisors had personal concerns regarding her

qualification for promotion go directly to the subjective nature of the GDCP and are

not unconnected to the challenged employment practice at all.” Aplt. Opening Br. at

50. We agree. The district court failed to explain its conclusion that a manager’s

personal concerns regarding an employee’s performance are unrelated to the

subjective ratings assigned to the employee under the GDCP.

But the district court also relied on evidence of Ms. Gray’s lack of field

training. She does not dispute that field training was an objective requirement for

promotion to Account Manager. She maintains, however, that this criterion is

likewise connected to the overly subjective GDCP because managers had unfettered

discretion to allow only male employees to complete field training, thereby keeping

female employees “unqualified” to become Account Managers. The district court

held that this criterion was unrelated to the GDCP because no one from Ms. Gray’s

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division—male or female—was permitted to do field training during the relevant

time period. Ms. Gray argues there is a genuine dispute regarding that fact.

In reaching its conclusion that field training was unavailable to any employee,

the district court referenced its summary judgment ruling on Ms. Gray’s disparate

treatment claim.4 There the court stated that Ms. Gray

attempted to get more field experience in 2008 because it was a
prerequisite for promotion to outside sales. During the period
[Ms.] Gray sought field experience, however, no customer service
employees were permitted to go on field training because the
department was short-handed and field training typically lasted one to
two weeks.

ECF 123 at 3. Ms. Gray does not contest the district court’s finding regarding the

relevant time period during which she sought further field training. We conclude that

the evidence she cites does not show that male employees were permitted to do field

training at that time. See Aplt. App., Vol. VIII at 2524, 2548 (Ms. Gray’s deposition

testimony identifying four male employees who she witnessed being offered field

training or engaging in field training, without any indication of the timeframe); id. at

2612 (document noting male job applicant completed a “[f]ield ride” in November

2007); see also ECF 120-2 at 2 (affidavit of same job applicant distinguishing his
4
Ms. Gray did not include this order in the Appellants’ Appendix. We take
judicial notice of the district court’s docket, specifically its order granting summary
judgment in favor of Hilti on Ms. Gray’s disparate treatment claim. See Tabor v.
Hilti, Inc., No. 09-cv-189-GKF-FHM (N.D. Okla. Sept. 2, 2011) (order granting
summary judgment), ECF No. 123 (hereafter cited by ECF and page number); see
also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (court has
discretion to take judicial notice of publicly filed records concerning matters bearing
directly on disposition of case at hand).

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one-day field ride in November 2007 from “field coverage” completed by inside sales

employees for training purposes).5 Ms. Gray has not shown error in the district

court’s conclusion that she was unqualified for a promotion to Account Manager

based upon a criterion—lack of field training—not connected to the GDCP.

The judgment of the district court is affirmed.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge

5
We take judicial notice of Hilti’s reply and exhibits in support of its summary
judgment motion, which Ms. Gray also did not include in the Appellants’ Appendix.
See Tabor v. Hilti, Inc., No. 09-cv-189-GKF-FHM (N.D. Okla. Mar. 11, 2011) (reply
in support of summary judgment motion), ECF No. 120.

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