Tabor v. Hilti, Inc.

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 15, 2013

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

RONICA R. TABOR; DACIA S. GRAY,

Plaintiffs - Appellants,

v.

HILTI, INC., a Domestic For Profit No. 11-5131
Business Corporation; HILTI OF
AMERICA, INC., a Foreign For Profit
Business Corporation,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:09-CV-00189-GKF-PJC)

Daniel E. Smolen (Donald E. Smolen, II, with him on the briefs), Smolen, Smolen &
Roytman, PLLC, Tulsa, Oklahoma, appearing for Appellants.

J. Daniel Morgan, Newton, O’Connor, Turner & Ketchum, P.C., Tulsa, Oklahoma,
appearing for Appellees.

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Plaintiffs Ronica Tabor and Dacia Gray (collectively “Plaintiffs”) worked as
inside sales representatives at Hilti, Inc., and Hilti of North America, Inc. (collectively

“Hilti”). After being denied promotions to Account Manager (outside sales) positions,

they each filed individual claims for gender discrimination under Title VII and moved to

certify a class of all female inside sales representatives at Hilti who were denied similar

promotions.

The district court refused to certify the class and granted summary judgment for

Hilti on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and

reverse in part. We affirm the district court’s grant of summary judgment on Ms. Tabor’s

individual claim for retaliation and Ms. Gray’s individual claim for failure to promote.

We also affirm the district court’s refusal to certify the class. We reverse with respect to

Ms. Tabor’s individual claims for failure to promote and disparate impact, and we

remand Ms. Gray’s individual disparate impact claim because the district court did not

address the claim in its analysis.

I. BACKGROUND

A. Factual History1

Hilti is a tool manufacturer. The company employs inside sales representatives,

who are responsible for providing customer assistance and sales support by phone. A

common career track for inside sales employees in the Customer Service Department is

1
We recite the facts in this case as we must view them: in the light most favorable
to the party opposing summary judgment. See Mathews v. Denver Newspaper Agency
LLP, 649 F.3d 1199, 1204 (10th Cir. 2011).

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promotion to Account Manager. Account Managers are responsible for outside sales or

field sales, including site visits to customers within an assigned territory. This promotion

sometimes involves transfer to a different city and requires some skills not required for

inside sales, such as the ability to lift 60 pounds, engage with customers face-to-face, and

offer hands-on demonstrations of the tools.

Hilti established a performance management and reporting process it called the

“Global Develop and Coach Process” (“GDCP”).2 GDCP included multiple components

that tracked different aspects of an employee’s readiness to promote. An important

component was a priority rating, or “P” rating, indicating a direct supervisor’s or

manager’s subjective assessment of an employee’s promotion-readiness based upon his

or her skills in areas such as “Functional Expertise,” “Understanding the Business,”

“Getting Things Done,” “Working with Others,” and “Living Our Values.” Aplt. Appx.

at 877-78. A P1 rating indicated the employee was ready for promotion within zero to 12

months, while a P5 rating indicated the employee was currently ineligible for promotion.

Another important component was an “M” rating, which indicated the employee’s

reported mobility, i.e., willingness to relocate. Still another important GDCP component

was employee’s career goal, e.g., to become an Account Manager or a Team Leader in

the Customer Service Department.

2
Hilti uses several terms to refer to this system and its various components,
including Sales Management Development (“SMD”), Performance Management Process
(“PMP”), and “Red Thread Dimensions.”

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 Hilti considered GDCP its official method for identifying employees who would

be promoted internally. However, Hilti did not maintain careful records. Hilti’s

Applicant Flow Log data (“AFL data”) indicated that 282 individuals were promoted

between 2005 and 2008, but fewer than 24% had been assigned a P rating at the time of

promotion; fewer than 37% of promoted employees were assigned M ratings; fewer than

8% of individuals who were promoted to outside sales positions had actually identified

outside sales as a future career goal; and more than 64% of employees were missing both

P rating and M rating at the time of promotion.

Hilti managers also did not always follow the GDCP ratings in making promotion

decisions. For example, of the promoted employees who had been assigned a P rating at

the time of promotion, only 28% had a P1. Furthermore, 33 promoted employees were

assigned a P rating of P5 at the time of promotion. A P5 rating indicated the employee

was currently ineligible to promote because he or she did not meet the minimal

qualifications, e.g., tenure in current position. Plaintiffs allege that a number of male

inside sales representatives were placed in Account Manager positions through “tap on

the shoulder” promotions, that is, extending promotion offers to male employees without

posting an open position or allowing other interested employees to apply. Aplt. Br. at 8.

Plaintiffs also allege that males who were ineligible for promotion under the GDCP

system were allowed or even invited to apply for Account Manager positions, even as

Plaintiffs and other female employees were told they could not apply for promotion until

they earned a P1 rating.
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 One prerequisite for earning a P1 rating for the Account Manager position was

completion of field training. This training involved filling in for an Account Manager

who was on vacation by assuming his or her responsibilities for one to two weeks. Ms.

Gray participated in field training in Dallas, Texas, and she requested additional field

training on more than one occasion. Ms. Tabor also requested field training. Hilti did

not allow either plaintiff to participate in field training during the first half of 2008. The

company explains that it was short-handed during this time and that no customer service

representative was permitted to leave for field training. Plaintiffs claim that at least two

males were allowed to attend field training during this time—Berkeley Smith and an

unnamed male. Hilti says Mr. Smith was only allowed a short trip to Arkansas to decide

whether to accept a promotion offer to relocate there.

1. Ronica Tabor’s Experiences at Hilti

Ronica Tabor began work at Hilti in January 2006, selling and demonstrating tools

to customers face-to-face at a Hilti center in Dallas, Texas. She transferred to the

Customer Service Department in Tulsa, Oklahoma, in October 2006. She expressed

interest in becoming an Account Manager, and her immediate supervisor assigned her a

P1 rating.

Ms. Tabor applied for an Account Manager position located in Oklahoma City.

This position focused primarily on the company’s Interior Finish product line. Ms. Tabor

first interviewed with Regional Manager David Perkins and was selected for a second

interview. This second interview was on November 14, 2007, with Division Manager
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Glenn Teel and Mr. Perkins. During the interview, Mr. Teel and Mr. Perkins mentioned

a second position available in Arkansas, and Ms. Tabor expressed interest in that position

as well.

During the interview, Mr. Teel made a number of statements related to Ms.

Tabor’s gender. He told her that tools “are like guns for men” and using them is “almost

like second nature,” Aplt. Appx. at 2816, and that it would take more work for her, as a

woman, to learn the tools well enough to demonstrate them for customers or she would

be “chewed up and spit out,” Aplt. Br. at 10. Mr. Teel also suggested that as a woman,

Ms. Tabor might have some “advantages” in getting men to talk to her even if they were

reluctant to talk to a salesman. Aplt. Appx. at 2816. Mr. Teel expressed concern about

whether Ms. Tabor should travel as much as the job required because she was a wife and

mother. He stated that he would personally not want his wife to hold a job that required

travel, and he advised Ms. Tabor to ask her husband about whether she should pursue this

type of work.

Ms. Tabor was not offered either of the two Account Manager positions. Berkeley

Smith, a male, was offered the Arkansas position. A male employee, Clifford Kidwell,

was eventually hired as an Account Manager in Oklahoma City. Around this same time

frame, an external female applicant named Paulette Musso was hired as an Account

Manager in Tulsa, Oklahoma.

The district court found a dispute of material fact as to whether the Oklahoma City

position for which Ms. Tabor interviewed was offered to Mr. Kidwell or to Ms. Musso.
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Mr. Kidwell was offered an Account Manager position in Oklahoma City, and Ms.

Musso was hired as an Account Manager in Tulsa. In its brief, Hilti simply asserted that

Ms. Musso was hired for the Oklahoma City position and offered no explanation for the

conflicting facts in the record or the district court’s finding that this fact was disputed. At

oral argument, Hilti explained that after they interviewed Ms. Tabor, Mr. Teel and Mr.

Perkins decided to move the Oklahoma City position to Tulsa and offered that position to

Ms. Musso. Around the same time, in what it describes as an unrelated decision, Hilti

created a brand new Oklahoma City Interior Finish position, which it offered to Mr.

Kidwell.

The posting for the Oklahoma City position stated that the job would focus on the

Interior Finish product line, that a bachelor’s degree was strongly preferred, and that the

position required ability to work with Spanish-speaking customers. Ms. Tabor had a

bachelor’s degree and was fluent in Spanish. The parties agree she exhibited the

strongest knowledge of the Interior Finish products. She had experience selling Interior

Finish products over the phone and face-to-face from her experience at the Hilti center in

Dallas, Texas. Mr. Smith had a bachelor’s degree, but Mr. Kidwell did not. Ms. Musso’s

educational qualifications are unknown.3

3
Hilti offers no information about Ms. Musso’s professional qualifications, and
repeatedly describes her only as a single mother with two small children. According to
Ms. Tabor, Ms. Musso had no experience at Hilti and no prior knowledge of tools; she
had previously worked as a pharmaceutical salesperson. Ms. Tabor presented evidence
Continued . . .
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 After the interview, Mr. Teel and Mr. Perkins documented their evaluation of Ms.

Tabor. They gave her high ratings in several areas, including personal skills and

qualities, working with others, and developing herself and others. They assigned her low

ratings in other areas, including time and territory management, knowledge of the

business, and construction site etiquette. Mr. Teel and Mr. Perkins assigned Ms. Tabor a

rating of P2, indicating she would not be ready for promotion for 12-24 months.

After the interview, Ms. Tabor complained to her supervisor about Mr. Teel’s

comments and made a complaint to Human Resources (“HR”). After several days, an

HR representative followed up and advised her “to just brush it under the rug . . . start

fresh . . . and to just not speak of it again.” Aplt. Appx. at 2817. The HR representative

assured her that her complaint would not affect her future at the company. Ms. Tabor

alleges, however, that she was subsequently told her P2 rating would remain in place with

respect to any future Account Manager applications. She asked to do additional field

training to improve the P rating but was not allowed to do so. Ms. Tabor concedes that as

a formal matter her rating in the GDCP tracking system remained P1, but she contends

the P2 interview rating affected her eligibility to interview for other Account Manager

positions.

______________________________________
Cont.

that Ms. Musso was a personal friend of Mr. Teel’s wife. Hilti records indicate Ms.
Musso was the only person to apply for the Tulsa position.

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 Ms. Tabor claims these events caused depression, anxiety, loss of sleep, loss of

appetite, and upset stomach; she sought medical attention and was prescribed anti-

depression medication. She resigned from Hilti on April 5, 2008.

2. Dacia Gray’s Experiences at Hilti

Dacia Gray became a Hilti Customer Service Representative in January 2005.

Like Ms. Tabor, Ms. Gray hoped to become an Account Manager. When Ms. Gray

shared this goal with her supervisor, Larry Brown, he told her: “Women do not make it

out in the field. . . . They don’t succeed. They don’t do well. Men don’t respond to

women.” Aplt. Appx. at 2525.

Unlike Ms. Tabor, Ms. Gray never applied for an Account Manager position and

was never assigned a P1 rating. She attempted to complete additional field training to

achieve a P1 rating but was not permitted to do so.

In a December 2007 performance review, Ms. Gray’s performance was rated as

meeting expectations for her current job. Notwithstanding this satisfactory evaluation,

several supervisors and managers at Hilti testified to performance deficiencies on Ms.

Gray’s part. They described disciplinary problems, such as frequent tardiness,

inattentiveness, sleeping on the job, lack of commitment, and poor attitude. One

supervisor sent Ms. Gray a letter warning that she had exhausted her sick leave in

violation of Hilti policy and was in danger of termination. In addition, Mr. Brown claims

to have warned Ms. Gray twice in 2008 that she was in danger of termination due to

tardiness and inattentiveness.
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 On June 30, 2008, Ms. Gray resigned in a letter to Mr. Brown, accusing him of

discriminating against her and other female employees on the basis of sex and disability.

B. Procedural History

Ms. Tabor and Ms. Gray brought individual claims against Hilti alleging

intentional and disparate impact sex discrimination in violation of Title VII, as well as

class claims for disparate impact and pattern and practice discrimination. They filed a

motion to certify a class composed of “all women employed by Hilti in the United States

denied promotion to Account Manager . . .” Aplt. Appx. at 1672.

The district court denied class certification and granted summary judgment for

Hilti on all claims. Ms. Tabor appeals individual claims for failure to promote,

retaliation, and disparate impact. Ms. Gray appeals her individual claims for failure to

promote and disparate impact. Both Plaintiffs appeal denial of class certification.

II. DISCUSSION

“We review de novo the district court’s decision to grant summary judgment.”

Turner v. Public Serv. Co., 563 F.3d 1136, 1142 (10th Cir. 2009). We view facts in the

light most favorable to Ms. Tabor and Ms. Gray and “draw all reasonable inferences” in

their favor. Id. Summary judgment is appropriate only if Hilti shows “‘there is no

genuine dispute as to any material fact and [it] is entitled to judgment as a matter of

law.’” Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012)

(quoting Fed. R. Civ. P. 56(a)). “A fact is ‘material’ if, under the governing law, it could

have an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’
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if a rational jury could find in favor of the nonmoving party on the evidence presented.”

E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)

(citation omitted).

We first address each of Ms. Tabor’s individual claims. Next, we consider Ms.

Gray’s individual claims. Finally, we consider the Plaintiffs’ class action claims.

A. Ms. Tabor’s Individual Claims

Ms. Tabor appeals three individual claims for gender discrimination under Title

VII. The first two claims, failure to promote and retaliation, charge Hilti with intentional

discrimination. The third claim charges Hilti with disparate impact discrimination.

1. Failure to Promote

The district court agreed that Mr. Teel’s interview comments were “inappropriate”

but nevertheless determined that Hilti’s low ratings of Ms. Tabor’s qualifications were

unrelated to her gender. Aplt. Appx. at 2826. The court then concluded that Hilti’s

reasons for not promoting Ms. Tabor were non-discriminatory and non-pretextual and

therefore dismissed her claim. We reverse.

a. Legal Background

“Title VII of the Civil Rights Act of 1964 prohibits, among other things, unlawful

employment discrimination on the basis of an individual’s sex.” Horizon/CMS, 220 F.3d

at 1190; see 42 U.S.C. § 2000e-2. The parties disagree about what legal standard applies

to this claim.

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 When a plaintiff offers direct evidence of discrimination in a Title VII claim, her

claim may move forward without being subjected to the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ramsey v. City &

Cnty. of Denver, 907 F.2d 1004, 1007-08 (10th Cir. 1990) (“‘[T]he McDonnell Douglas

test is inapplicable where the plaintiff presents direct evidence of discrimination.’”

(quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). The classic

example of direct evidence of discrimination comes from Trans World Airlines, where

the Supreme Court held that an explicit, mandatory age requirement was direct evidence

of age discrimination. 469 U.S. at 121.

Comments in the workplace that reflect personal bias do not qualify as direct

evidence of discrimination unless the plaintiff shows the speaker had decisionmaking

authority and acted on his or her discriminatory beliefs. Ramsey, 907 F.2d at 1008. We

also have explained that discriminatory statements do not qualify as direct evidence if the

context or timing of the statements is not closely linked to the adverse decision. Riggs v.

AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir. 2007). Furthermore, if the content

and context of a statement allow it to be plausibly interpreted in two different ways—one

discriminatory and the other benign—the statement does not qualify as direct evidence.

Id.

When evidence of discrimination is circumstantial, rather than direct, a plaintiff’s

claim is subject to the McDonnell Douglas burden-shifting framework. See Ramsey, 907

F.2d at 1008. Under McDonnell Douglas, a plaintiff carries the initial burden of
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establishing a prima facie case of discrimination. Id. at 1007. The burden at this stage is

“‘not onerous.’” Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005)

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

To state a prima facie case of discrimination under McDonnell Douglas, a plaintiff

must demonstrate by a preponderance of the evidence that (1) she belongs to a protected

class; (2) she applied for an available position for which she was qualified; (3) she “was

rejected under circumstances which give rise to an inference of unlawful discrimination.”

Burdine, 450 U.S. at 253; see Orr, 417 F.3d at 1149.4

If a plaintiff states a prima facie case, the burden shifts to the employer to proffer

“a legitimate non-discriminatory purpose for the adverse employment action.” Orr, 417

F.3d at 1149. If the employer makes this offering, the plaintiff will avoid summary

judgment only if she shows her sex “was a determinative factor in the . . . employment

decision, or show[s] the [employer’s] explanation for its action was merely pretext.”

Horizon/CMS Healthcare, 220 F.3d at 1191 (quotations omitted).

4
We note that the district court evaluated Ms. Tabor’s prima facie case under an
older, four-part test from the original McDonnell Douglas. We use a more recent
variation of this test, a three-part test articulated by the Supreme Court in Burdine, which
the Tenth Circuit expressly prefers. See Sorbo v. United Parcel Serv., 432 F.3d 1169,
1173 (10th Cir. 2005). Similar variations of this test have also been applied in this
circuit. E.g., Turner, 563 F.3d 1142 (articulating a slightly different four-part test).
Under all of these tests, the prima facie burden is “slight,” and Hilti has not disputed that
Ms. Tabor meets it. Orr, 417 F.3d at 1149 (“The female Plaintiffs’ burden in articulating
a prima facie case is slight . . . not onerous . . . which is evidenced by the small amount of
proof necessary to create an inference of discrimination.” (quotations omitted)).

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 Ms. Tabor argues that Mr. Teel’s comments are direct evidence of discrimination

and that McDonnell Douglas therefore does not apply. Hilti disputes that Mr. Teel’s

comments are discriminatory at all and insists that McDonnell Douglas does apply. We

conclude that Ms. Tabor’s claim survives summary judgment under either standard.

b. Application of the Direct Evidence Standard

Hilti does not dispute that Mr. Teel made the alleged comments during the

interview, but it insists they are “innocuous and non-discriminatory.” Aplee. Br. at 12.

Hilti points to our decisions in Ramsey and Heim v. State of Utah, 8 F.3d 1541 (10th Cir.

1993). In these cases, we emphasized that “stray remarks in the workplace” based on sex

stereotypes do not constitute direct evidence of discrimination. Heim, 8 F.3d at 1547

(quotations omitted). “The plaintiff must show that the employer actually relied on . . .

gender in making its decision.” Id. (quotations omitted).

But none of Hilti’s cited cases involve statements by a decisionmaker during an

interview expressing discriminatory beliefs about whether members of the plaintiff’s

protected class are capable of doing the job at issue. We have previously emphasized the

importance of context and temporal proximity in determining whether comments

reflecting personal bias qualify as direct evidence of discrimination. Riggs, 497 F.3d at

1118. Here, Mr. Teel explicitly stated a view that women have inferior knowledge of

tools and inferior ability to sell tools. These statements spoke directly to central

requirements of the job for which Ms. Tabor was interviewing, and he made them during

a discussion about her fitness for the position. The content of his statements, the
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interview context, and the temporal proximity to the adverse employment decision

directly link the discriminatory statements to his decision not to promote Ms. Tabor.5

Given these circumstances, Mr. Teel’s remarks may be considered direct evidence

of discrimination.

c. Application of the McDonnell Douglas Standard

Ms. Tabor’s claim also survives summary judgment under McDonnell Douglas.

The parties agree that the first two McDonnell Douglas steps are satisfied: 1) Ms. Tabor

established a prima facie case, and 2) Hilti responded by asserting a legitimate

nondiscriminatory reason for not promoting her—namely, Mr. Teel and Mr. Perkin’s

assessment that her knowledge of tools and time management skills were insufficient.

We therefore arrive at the third McDonnell Douglas step. To satisfy this step and

overcome summary judgment, Ms. Tabor must show that Hilti’s asserted reason “was not

the true reason for the employment decision.” Burdine, 450 U.S. at 256. A plaintiff can

meet this burden to show pretext in either of two ways: (1) by showing that the proffered

reason is factually false or (2) by showing that discrimination was a primary factor in the

employer’s decision, which is often accomplished by revealing “weaknesses,

5
Ms. Tabor argues that another of Mr. Teel’s statements also qualifies as direct
evidence of discrimination, specifically his suggestion that married women with children
either should not hold, or were less likely to succeed in, positions that require travel. At
oral argument, Hilti argued that this statement was not discriminatory because Mr. Teel
routinely cautions all employees to consider family obligations before committing to a
demanding travel schedule. We do not address whether this particular comment qualifies
as direct (rather than circumstantial) evidence of discrimination. The other interview
comments satisfy the standard.

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implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered reason[],” such that a reasonable fact finder could deem the employer’s reason

“unworthy of credence.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir.

2002) (quotations omitted).

The district court found that Mr. Teel’s comments manifested a discriminatory

belief that “women . . . have inferior natural skill with tools.” Aplt. Appx. at 2824-25.

Nevertheless, the court found that the interviewers’ negative ratings of Ms. Tabor’s

qualifications raised “specific and practical” concerns that were “unrelated to generalized

concerns over gender.” Id. at 2825. We agree with the district court that Mr. Teel’s

comments revealed discriminatory views, but we disagree with its conclusion that Ms.

Tabor failed to establish an inference that the negative ratings were related to the

discriminatory views.

Ms. Tabor has raised a genuine dispute of material fact as to whether Hilti’s

proffered reasons for rejecting her are “unworthy of credence.” Garrett, 305 F.3d at

1217 (quotations omitted). A reasonable jury could infer that the negative ratings the

interviewers assigned Ms. Tabor did not represent objective individualized assessments

of her qualifications but rather a reflection of the discriminatory views Mr. Teel

expressed during the interview. See id. (“A plaintiff can withstand summary judgment by

presenting evidence sufficient to raise a genuine dispute of material fact regarding

whether the defendant’s articulated reason for the adverse employment action is

pretextual.”); see also Simms v. Dep’t of Mental Health and Substance Abuse Servs., 165
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F.3d 1321, 1328 (10th Cir. 1999) (evidence of pretext may include use of subjective

criteria). For example, the low rating given to Ms. Tabor on knowledge of the

construction business relates closely to Mr. Teel’s expressed belief that women generally

have inferior knowledge of tools. Similarly, the low rating in time management relates to

Mr. Teel’s expressed concern that she would not be able to handle the workload because

she was a wife and mother. As Ms. Tabor argues, a reasonable jury could infer that Mr.

Teel’s discriminatory views are “mirrored in his ratings” of Ms. Tabor. Aplt. Br. at 53.

Hilti claims that its alleged choice to hire a single mother (Ms. Musso) for the

Oklahoma City position proves that it did not discriminate against Ms. Tabor. One

problem with this argument is that Ms. Tabor has raised a genuine dispute regarding

whether Ms. Musso was actually the person hired for the Oklahoma City Interior Finish

position: It is undisputed that Ms. Tabor applied for an Interior Finish Account Manager

position in Oklahoma City, and that she did not apply for a position in Tulsa. It is also

undisputed that a male candidate, Mr. Kidwell, was hired for an Interior Finish Account

Manager position in Oklahoma City and that Ms. Musso was hired for an Account

Manager position in Tulsa.

Hilti explains that it relocated the Oklahoma City position for which Ms. Tabor

applied to Tulsa and offered it to Ms. Musso. Then, in an unrelated decision, it created a

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new, separate Oklahoma City position that it offered to Mr. Kidwell.6 Under this logic,

Hilti insists, Ms. Musso (and not Mr. Kidwell) was selected over Ms. Tabor and thus any

inference of gender discrimination is impossible. Perhaps this explanation is true, but

that is for a factfinder to determine. A reasonable jury could reject this explanation and

infer that Hilti’s proffered reasons for rejecting Ms. Tabor are unworthy of credence and

therefore pretextual.

* * *

In short, we find Ms. Tabor has raised a genuine and material dispute as to

whether Hilti failed to promote her for discriminatory reasons in violation of Title VII.

We therefore reverse the district court’s dismissal of this claim.

2. Retaliation

The district court rejected Ms. Tabor’s retaliation claim. It found she had met the

first part of her prima facie burden to show that she engaged in protected opposition to

discrimination but failed to show that Hilti took adverse action against her because of this

opposition. We agree.

6
Hilti also argues that we should ignore any facts about Mr. Kidwell’s placement
in the Oklahoma City position because it did not offer Mr. Kidwell the position until after
Ms. Tabor left the company. Ms. Tabor has responded with copies of Hilti records that
raise a genuine dispute regarding this fact. The date of Mr. Kidwell’s promotion is not
determinative, however. The legally relevant question is whether Hilti rejected Ms.
Tabor for discriminatory reasons—regardless of whether it immediately filled the
position with a male candidate or left the job vacant. See Kendrick v. Penske Trans.
Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000) (“Significantly, the Supreme Court did
not indicate in McDonnell Douglas that a plaintiff is required to show that the defendant
hired someone outside the protected class in order to make out a prima facie case.”).

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 “Title VII forbids retaliation against an employee because she has ‘opposed’ any

practice made unlawful by Title VII, or because she has ‘participated . . . in an

investigation, proceeding, or hearing’” regarding a claim of discrimination. Stover v.

Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004) (quoting 42 U.S.C. §2000e-3(a)).

Because Ms. Tabor does not allege direct evidence of retaliation, the McDonnell Douglas

framework applies. See id.

To state a prima facie case of retaliation, Ms. Tabor must show: “(1) that [s]he

engaged in protected opposition to discrimination, (2) that a reasonable employee would

have found the challenged action materially adverse, and (3) that a causal connection

existed between the protected activity and the materially adverse action.” Argo v. Blue

Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006) (footnote

omitted) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 66-68 (2006)).

The district court and the parties agree that Ms. Tabor engaged in protected

opposition to discrimination when she complained to her supervisor and to HR about Mr.

Teel’s discriminatory comments during the interview. The parties disagree whether Hilti

took adverse employment action against Ms. Tabor. The district court found that any

adverse action could not have been causally connected to Ms. Tabor’s complaint because

the company did not take any action after her complaint to HR.

Ms. Tabor argues that Hilti took two adverse actions against her: first, it kept her

in a P2 status, and second, it refused to allow her to complete additional field training, a

necessary step to changing her status to a P1. These actions, she argues, blocked her
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from applying for promotions for at least 12-24 months. She correctly notes that the

Tenth Circuit construes the term “adverse action” liberally. See Gunnell v. Utah Valley

State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998) (“[I]n our retaliation cases, we have

liberally interpreted the phrase ‘adverse employment action’. . . Rather than defining a set

rule . . . this court takes a case-by-case approach to determining whether a given

employment action is adverse.”).

But as the district court noted, Ms. Tabor’s argument faces a timing problem. The

lowered P rating happened immediately after the interview, before her complaint to HR.

She has alleged only that HR “kept” her at this lowered P rating after her complaint,

which shows at most that Mr. Teel and Mr. Perkins discriminated against her before the

HR complaint and that HR failed to correct their actions—not that the company engaged

in an act of retaliation. Leaving the P rating where it was before the HR complaint is not

such an act.

Both parties agree that Ms. Tabor requested field training to improve her P rating

and that Hilti refused. She contends this refusal was retaliatory. But Hilti asserts a

legitimate, non-retaliatory business reason: that no Customer Service employees were

allowed to attend field training because the department was short-handed. Ms. Tabor

fails to show that this reason was pretextual. The only admissible evidence she provides

is that one individual, Mr. Smith, completed a one-day field ride on November 21, 2007.

She offers no evidence to dispute Hilti’s assertion that Mr. Smith’s field ride was not

-20-
field training but a one-day ride-along as part of his application for the Arkansas Account

Manager position.

Because Ms. Tabor fails to establish any adverse employment action causally

related to her HR complaint, her claim for retaliation fails. We therefore affirm the

district court’s dismissal of this claim.

3. Disparate Impact

The district court rejected Ms. Tabor’s individual claim for disparate impact

discrimination, finding that she failed to state a prima facie case because her statistical

evidence did not compare promotion rates between qualified male employees with

qualified female employees. The district court relied heavily on our decision in

Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006). We disagree with the district

court’s application of Carpenter to Ms. Tabor’s case and reverse the summary judgment

order on this claim.

Title VII forbids not only intentional discrimination based on disparate treatment

but also “practices that are fair in form, but discriminatory in operation,” most often

referred to as “disparate impact” discrimination. Lewis v. City of Chicago, 130 S. Ct.

2191, 2197 (2010); see 42 U.S.C. § 2000e-2(k). The disparate impact “doctrine seeks the

removal of employment obstacles, not required by business necessity, which create built-

in headwinds and freeze out protected groups from job opportunities and advancement.”

E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000) (quotations

omitted).
-21-
 To survive summary judgment on an individual claim for disparate impact

requires three steps. First, Ms. Tabor must establish a prima facie case that (a) an

employment practice (b) causes a disparate impact on a protected group. See Carpenter,

456 F.3d at 1193. Second, if Ms. Tabor presents a prima facie case, the burden will shift

to Hilti “to demonstrate that the challenged practice is job related for the position in

question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i);

Maldonado v. City of Altus, 433 F.3d 1294, 1304 (10th Cir. 2006), overruled on other

grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Third,

assuming Hilti shows business necessity, Ms. Tabor may still prevail by “showing that

the employer refuses to adopt an available alternative employment practice that has less

disparate impact and serves the employer’s legitimate needs.” Ricci v. DeStefano, 557

U.S. 557, 578 (2009); see 42 U.S.C. § 2000e-2(k)(1)(A)(ii).7

7
In addition to these steps, we note another burden plaintiffs must meet to succeed
in a disparate impact claim. Even if a factfinder determines an employer violated Title
VII’s disparate impact provision, a plaintiff may not receive individual relief unless she
shows that she “personally has been the victim of discrimination by the [challenged
employment] practice.” Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir.
1981). “[E]ach person seeking individual relief . . . [must] show that . . . she suffered an
adverse employment decision and therefore was a potential victim of the proved
discrimination.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012)
(quotations omitted).
Thus, in an individual disparate impact claim (not involving a class action) that
challenges an internal promotion process, a court could grant summary judgment to the
employer if there is no genuine dispute that the individual plaintiff failed to meet some
minimum qualification for promotion unconnected to the challenged policy. In Ms.
Tabor’s case, there is no dispute that she met the minimal qualifications for the Account
Manager position: she was assigned a rating of P1 by her supervisor, given an initial
Continued . . .
-22-
 We turn to whether Ms. Tabor has established a prima facie case of disparate

impact.

a. Challenged Employment Practice

“The first step in raising a disparate-impact claim is to identify the specific

employment practice allegedly causing the discriminatory impact.” Carpenter, 456 F.3d

at 1193. Ms. Tabor identifies Hilti’s GDCP system for this purpose. All parties agree

that the GDCP system is facially neutral, but Ms. Tabor alleges that managers and

supervisors at Hilti exercise discretion under the GDCP system in a discriminatory

fashion. She alleges that Hilti supervisors choose to assign (or sometimes not assign) the

subjective GDCP ratings, in particular P ratings, differently for male and female

employees. She also alleges that Hilti managers used their discretion to waive GDCP

minimum requirements to promote male employees with low or no P ratings, while

requiring female employees to obtain a P1 rating before applying for promotion.

Hilti argues that the GDCP system cannot be the basis of a disparate impact claim

because the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.

Ct. 2541 (2011), rejects use of a discretionary practice as the basis of such a claim. But

Hilti misunderstands the Supreme Court’s opinion in Wal-Mart and the Court’s precedent

______________________________________
Cont.

interview for the position, and then selected for a final interview. As we later explain,
however, Ms. Gray’s disparate impact claim is vulnerable to summary judgment on this
ground.

-23-
on this issue. The Court has said that discretionary practices may form the basis for an

individual disparate impact claim. See Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 990 (1988) (“[D]isparate impact analysis is in principle no less applicable to

subjective employment criteria than to objective or standardized tests.”). Wal-Mart did

not disturb this precedent.8 In Wal-Mart, the Court held that the company’s practice of

leaving hiring and promotion decisions to the discretion of local supervisors without a

more specific policy could not form the basis for class certification. See 131 S. Ct. at

2554-56. The issue in Wal-Mart was factual commonality across all plaintiffs in the

class. The Court found it unlikely that thousands of Wal-Mart managers across different

regions of the country “would exercise their discretion in a common way without some

common direction.” Id. at 2555.

8
As the Seventh Circuit explained:

After the holding in Wal-Mart Stores, Inc. v. Dukes, that an
employer’s [discretionary] policy . . . can’t be the subject of a class action
. . . it is easy to jump to the conclusion that such a policy cannot be the
basis of an individual (as distinct from class action) suit against the
employer, either. Easy, but wrong. Wal-Mart distinguishes between the
lack of ‘commonality’ among the class members . . . and the possibility that
. . . discretion . . . can be the basis of Title VII liability . . . .

Gschwind v. Heiden, 692 F.3d 844, 848 (7th Cir. 2012) (citation omitted)
(quotations omitted).

-24-
 The Court explicitly acknowledged its prior holding in Watson and emphasized

that different considerations are at issue in a class certification analysis compared with an

individual disparate impact claim, namely the former’s focus on uniformity. Id. at 2554.

Ms. Tabor has identified a specific employment practice that meets the

requirements for a disparate impact claim. We turn to whether she has shown that this

practice caused a disparate impact.

b. Causation of a Disparate Impact on Women

The second part of the prima facie case requires Ms. Tabor to show the challenged

employment practice caused a disparate impact on women. Ms. Tabor presented

statistical evidence for this purpose. “Statistical evidence is an acceptable, and common,

means of proving disparate impact.” Carpenter, 456 F.3d at 1196. In determining

whether Ms. Tabor’s statistical evidence is sufficiently reliable to make a prima facie

case, we are concerned with three issues: (1) the size of the disparity between male and

female promotions; (2) the statistical significance of the disparity, measured by standard

error rate or standard deviation; and (3) whether the statistical evidence effectively

isolates the challenged employment practice. See id. at 1195, 1196, 1202; see also

Watson, 487 U.S. at 994-96.

i. Size of Disparity

A plaintiff’s statistical evidence must show a significant disparity in the rate of

employees in the protected group receiving an employment benefit or opportunity (e.g.,

promotion) compared with “the rate for the group with the highest rate.” Carpenter, 456
-25-
F.3d at 1202 (quoting 29 C.F.R. § 1607.4(D)); see also Shidaker v. Tisch, 833 F.2d 627,

631 (7th Cir. 1986) (“In the use of statistical evidence to demonstrate the disparate

impact of an allegedly discriminatory practice, the statistical disparity demonstrated must

be significant or substantial.” (quotations omitted)). The disparity rate here measures the

difference between male and female promotion rates.

The Equal Employment Opportunity Commission (“EEOC”) guidelines provide

that a disparity of 20% or more in selection rate will be considered evidence of adverse

impact in a disparate impact claim. 29 C.F.R. § 1607.4(D) (“[A] selection rate for any

. . . group that is less than four-fifths (4/5) (or eighty percent) of the rate for the group

with the highest rate will generally be regarded . . . as evidence of adverse impact.”).

Although not controlling on courts, this guideline is persuasive. See Carpenter, 456 F.3d

at 1202; Maldonado, 433 F.3d at 1305; Smith v. Xerox Corp., 196 F.3d 358, 365 (2d Cir.

1999) overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d

134 (2d Cir. 2006).

Ms. Tabor’s statistical evidence included a regression analysis performed by Mark

R. Killingsworth, a professor of economics at Rutgers University. Dr. Killingsworth

analyzed Hilti’s promotion data, controlling for employee age, area at Hilti, and tenure.

He concluded that, between 2005 and 2008, the promotion rate for male inside sales

representatives in Hilti’s Customer Service Department was 60% greater than the

promotion rate for female inside sales representatives. After Hilti argued that this

analysis did not cover the correct time frame, Dr. Killingsworth repeated the analysis
-26-
using only data from Hilti’s proposed time frame of October 18, 2007, to December 31,

2008. These data showed that during Hilti’s preferred time frame “the rate of promotion

for women (5.5 percent) was only about half the rate of promotion for men (10.8

percent).” Aplt. Appx., at 1598. In both instances, the disparity rate far exceeded the

EEOC guideline of 20% and constituted a significant disparity.

ii. The Statistical Significance

It is not enough for a plaintiff to present data showing a disparity between groups.

To be reliable, the result also must be statistically significant. Statistical significance

measures the likelihood that the disparity between groups is random, i.e., solely the result

of chance. It is expressed in terms of standard errors or standard deviations.9

“The Supreme Court has recognized that a disparity of more than two or three

standard deviations in a large sample makes ‘suspect’ the contention that the differential

occurs randomly.” Carpenter, 456 F.3d at 1195 (quoting Hazelwood Sch. Dist. v. United

States, 433 U.S. 299, 308 n.14 (1977)). Ms. Tabor’s evidence was statistically significant

at 2.777 standard errors. Dr. Killingsworth concluded that “the probability is less than

9
“The standard error is often called the standard deviation, and courts generally
use the latter term.” David H. Kaye & David A. Freedman, Reference Guide on
Statistics, Federal Judicial Center, Reference Manual on Scientific Evidence 174 (3d ed.
2011). “Case law often erroneously interchanges [the term ‘standard deviation’] with the
more technically appropriate term ‘standard error,’ which describes the distribution of
sample estimators, such as the mean, around its true value.” Allan G. King, “Gross
Statistical Disparities” as Evidence of a Pattern and Practice of Discrimination:
Statistical Significance versus Legal Significance, 22 Lab. Law. 271, 275 n.23 (2007).

-27-
0.006 that a disparity at least as large as this could occur solely as the result of chance

factors, if promotions were unrelated to sex.” Aplt. Appx. at 1083.

iii. Isolating the Challenged Employment Practice

For Ms. Tabor’s statistical evidence to be reliable, it also must “isolat[e] and

identify[] the specific employment practices that are allegedly responsible for any

observed statistical disparities.” Watson, 487 U.S. at 994. A plaintiff isolates the specific

employment practice by controlling for key factors outside the challenged practice that

could potentially cause or contribute to the disparity. See Carpenter, 456 F.3d at 1196.

The data need not include “all measurable variables” but must be sufficient to prove

discrimination by “a preponderance of the evidence.” Bazemore v. Friday, 478 U.S. 385,

400 (1986).

The requirement to isolate the challenged employment practice is important

because it goes directly to causation. The Supreme Court has emphasized that a plaintiff

cannot establish her claim “simply by showing that, at the bottom line, there is [an]

imbalance in the work force.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657

(1989) (quotations omitted), superseded by statute on other grounds by 42 U.S.C.

§ 2000e-2(k). The imbalance must actually be a result of the challenged employment

practice. An employer will not, for example, be liable for a gender imbalance in its work

force that “is due to a dearth of qualified [female] applicants (for reasons that are not [the

employer’s] fault).” Id. at 651.

-28-
 When the challenged employment practice involves employer discretion, the

plaintiff’s statistical analysis must “control for the constraints placed upon the

decisionmaker’s discretion.” Carpenter, 456 F.3d at 1196. This is necessary

“[e]specially in cases where an employer combines subjective criteria with the use of

more rigid standardized rules or tests.” Watson, 487 U.S. at 994; see also Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 266-67 (4th Cir. 2005).

The issue therefore is whether there are any nondiscretionary factors missing from

Ms. Tabor’s analysis that could explain the significant disparities in promotion rates

between men and women. Ms. Tabor presented statistical evidence comparing the

promotion rates of all female inside sales representatives with all male inside sales

representatives in Hilti’s Customer Service Department. The district court concluded that

she should have restricted this analysis to a narrower pool of “qualified” employees.

Aplt. Appx. at 2818. We disagree.

At Hilti, discretion in assigning promotions was not constrained by mandatory

objective criteria or by “rigid standardized rules or tests.” Watson, 487 U.S. at 994. The

GDCP system allowed supervisors and managers such broad discretion that there was no

such thing as a true “qualified” subgroup for promotion. Hilti management exercised

discretion in choosing whether to assign a P rating, in determining what the P rating

would be, in allowing or not allowing employees to apply for promotions based upon or

in spite of their P ratings, and in selecting employees for promotion either because of or

irrespective of P ratings. Even under its own subjective definition of what made an
-29-
employee “qualified,” Hilti promoted dozens of employees who were unqualified—33

promoted employees had a P5 rating, indicating they were unqualified or ineligible to

promote.

As previously discussed, the law requires plaintiffs to control for constraints

placed on an employer’s discretionary choices. But in Ms. Tabor’s case, the record

suggests the GDCP system is not subject to any such constraints. Nor has Hilti pointed to

any mandatory, objective criteria that actually served to limit supervisor discretion. Ms.

Tabor’s statistical evidence captured a broad pool of employees because Hilti selected

employees for Account Manager promotions from the same broad pool. See Shidaker,

833 F.2d at 631 (“Where a company is shown to promote from within, the relevant labor

pool of qualified applicants for upper level positions may be the group of employees in

the company from which promotees will be drawn.”) (citing Hazelwood, 433 U.S. at 308

n.13).

In dismissing Ms. Tabor’s disparate impact claim, the district court relied heavily

on our statement in Carpenter that “it is not enough for Plaintiffs to show simply that . . .

men get a higher percentage of . . . assignments . . . . They must compare qualified men to

qualified women.” 456 F.3d at 1194. But as we explain below, this conclusion failed to

account for critical differences between Carpenter and the present case.

In Carpenter, a certified class of female employees at Boeing alleged that

Boeing’s policy of giving supervisors discretion in assigning overtime caused a disparate

impact on female employees. 456 F.3d at 1188. The plaintiffs’ statistical evidence
-30-
showed that male employees received more overtime assignments than female

employees, but we rejected that evidence because it did not isolate the challenged

employment practice of assigning overtime based on supervisor discretion. Other non-

discretionary factors likely contributed to the disparity.

For instance, Boeing supervisors’ discretion was constrained by mandatory,

objective criteria outlined in a collective bargaining agreement (“CBA”). Id. at 1194.

The CBA required that any overtime offer be made first to the employee regularly

assigned to the particular machine, job, crew, or position involved in the overtime work.

Id. The plaintiffs’ statistical analysis failed to control for these CBA limitations. Id. at

1196, 1198-99. It did not, for example, consider whether available overtime hours had

been concentrated among particular crews or positions that had few or no female

employees. Id. at 1202-03.10 We explained that because the statistical analysis failed to

control for objective, mandatory constraints on supervisors’ discretion, it was not

possible to reasonably infer that the discretion caused the disparate impact. Id. at 1202

(“Clearly, something in the overtime process consistently results in males obtaining more

overtime . . . than females” but because of its flaws, the data “tell[] us nothing about what

that ‘something’ is.” (emphasis added)).

10
We acknowledged that, “[o]f course, such gender disparities in these positions
could indicate discrimination in hiring for those jobs, but that is not the claim made by
Plaintiffs.” Carpenter, 456 F.3d at 1202-03.

-31-
 But Carpenter’s reasoning does not apply here. In Carpenter, only a narrow

subgroup of employees was eligible, i.e., qualified, for overtime. That subgroup was

defined by objective, mandatory criteria well before supervisor discretion came into play,

and there was no evidence Boeing supervisors departed from CBA rules when assigning

discretionary overtime.

As we have already explained, at Hilti, the exercise of supervisor or manager

discretion and the process of defining “qualified” employees were one and the same. All

inside sales representatives in the Customer Service Department were subject to the

challenged discretionary employment practice, the GDCP system, and we do not see any

objective factors that genuinely limited the pool of employees from which Hilti selected

its promotees—nor has Hilti pointed to any. In theory, the subjective GDCP factors

should have limited the pool of employees eligible for promotion. But Hilti plainly did

not treat GDCP ratings as mandatory, since it promoted employees who had substandard

P ratings or no P ratings.11

11
We briefly note two other distinctions between Ms. Tabor’s statistical evidence
and that in Carpenter. First, Ms. Tabor’s data permit a narrower analysis. Where the
Carpenter plaintiffs lumped together all overtime assignments across multiple crews and
departments, 456 F.3d at 1198-99, Ms. Tabor compares the promotion rates of male and
female employees from only the inside sales position in the Customer Service
Department. See Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1245 (10th Cir. 1991)
(emphasizing that statistical evidence must be constrained to the “at-issue jobs.”),
superseded by statute, 42 U.S.C. § 2000e-2(k).
Second, even if the GDCP qualification data had somehow served to constrain
decisionmaker discretion, Ms. Tabor’s evidence would satisfy her prima facie burden
because reliable qualification data does not exist. For example, 76 percent of employees
Continued . . .
-32-
 In short, the district court erred in requiring Ms. Tabor to identify a subgroup of

“qualified” employees at Hilti when no such subgroup existed. Ms. Tabor’s statistical

evidence isolates the challenged employment practice enough to raise “an inference of

causation.” Watson, 487 U.S. at 994-95; see also Aiken v. City of Memphis, 37 F.3d

1155, 1163 (6th Cir. 1994) (holding that statistical evidence comparing promotion rates

among all entry-level officers and firefighters was sufficiently reliable to show disparate

impact on the basis of race).12

______________________________________
Cont.

who were promoted had not been assigned a P rating. There is no way for Ms. Tabor to
determine now what P rating the relevant supervisors would have assigned those
employees in 2007 or 2008. The passage of time and subsequent onset of litigation
would render any estimate or proxy highly unreliable. See McClain v. Lufkin Indus., 519
F.3d 264, 280 (5th Cir. 2008) (“Where actual data are unreliable, courts often permit
parties to analyze potential applicant flow data.” (emphasis added)); Malave v. Potter,
320 F.3d 321, 323 (2d Cir. 2003) (holding that “a per se rule” requiring a plaintiff’s
statistical analysis to focus on the “applicant pool or the eligible labor pool for the at-
issue positions . . . is not appropriate in cases . . . where the data . . . are not available”
(quotations omitted)).
12
Hilti has argued, and the district court also noted, that the disparity in promotion
rates between male and female Customer Service Representatives may be caused by
“unique challenges” of the Account Manager position that may make the position
“unattractive” for some (presumably female) employees. Aplt. Appx. at 1676. For
example, the position often involves relocation and “requires working outside in the
elements” and “the capability to carry 60 pounds of tools.” Id. Although it is
conceivable that the inequality in promotion rates is a reflection of employee preferences,
we are unable to make this determination because Hilti’s GDCP data—which purports to
track employees’ individual career interests and willingness to relocate—is incomplete.
Title VII does not permit us to presume that female inside sales representatives are
significantly less able or willing than their male colleagues to relocate, carry tools, or
work outside. See, e.g., Palmer v. Shultz, 815 F.2d 84, 106 (D.C. Cir. 1987) (possible
Continued . . .
-33-
 We conclude that Ms. Tabor has stated a prima facie disparate impact claim and

we remand to the district court for further proceedings consistent with this opinion.

B. Ms. Gray’s Individual Claims

Ms. Gray brings two individual claims for gender discrimination under Title VII.

The first claim charges Hilti with intentional discrimination for failure to promote based

on theories of deterrence and failure to train. The second claim charges Hilti with

disparate impact discrimination.

1. Failure to Promote/Deterrence

Ms. Gray did not actually apply for an Account Manager position but asserts that

she desired this promotion and she was deterred from pursuing it because of Hilti’s

intentionally discriminatory actions. The district court held that Ms. Gray failed to state a

prima facie case for intentional discrimination because she failed to demonstrate she was

qualified for promotion. We affirm.

The Supreme Court has allowed discrimination claims based on a theory of

deterrence, reasoning that “[a] consistently enforced discriminatory policy can surely

______________________________________
Cont.

impact of individual preferences is insufficient to justify rejection of plaintiffs’ analysis);
E.E.O.C. v. Gen. Tel. Co., 885 F.2d 575, 582 (9th Cir. 1987); see also Sobel v. Yeshiva
Univ., 839 F.2d 18, 33-34 (2d Cir. 1988).
Of course, nothing prevents Hilti from offering reliable evidence that the disparity
in promotions is the result of legitimate factors and not a discriminatory impact of the
GDCP system. See E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d 302, 308, 334 (7th Cir.
1988).

-34-
deter job applications from those who are aware of it and are unwilling to subject

themselves to the humiliation of explicit and certain rejection.” Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 326 (1977). To establish a discrimination claim based on

deterrence, a plaintiff must show: (1) there were promotional opportunities that were

filled by males; (2) she was qualified and available for the job; (3) despite her

qualifications she was not promoted; and (4) the employer intentionally discriminated

against her. See Sprague v. Thorn Ams, Inc., 129 F.3d 1355, 1362 (10th Cir. 1997).

Ms. Gray fails to establish the second factor because she has not shown she was

qualified for a promotion. She fails to rebut evidence of disciplinary and performance

issues that would likely have prevented her from being selected for any promotion at

Hilti. Multiple managers testified in their depositions that Ms. Gray had been warned

about many issues, including excessive tardiness and absenteeism, poor attitude, and

sleeping at her desk. Ms. Gray argues that she has raised a genuine issue of fact

regarding Hilti’s reasons for not promoting her and not encouraging her to pursue

promotion, pointing to Mr. Brown’s comments that “women do not make it out in the

field” and the fact that Mr. Brown refused to allow her to participate in field training.

Aplt. Appx. at 2807.

Although Mr. Brown’s comments may reflect a discriminatory view, Ms. Gray

cannot establish a cause of action for intentional discrimination unless she proves that she

was qualified for promotion. Unlike in Ms. Tabor’s case, the negative evaluations of Ms.

Gray’s performance do not come only or primarily from individuals associated with
-35-
discriminatory remarks. Two managers other than Mr. Brown testified to concerns

regarding Ms. Gray’s work performance and discipline.

We therefore affirm the district court’s dismissal of Ms. Gray’s intentional

discrimination claim.

2. Disparate Impact

The district court did not address Ms. Gray’s individual disparate impact claim in

its summary judgment order. Where an issue has not been ruled on by the court below,

we generally favor remand for the district court to examine the issue. See In re R. Eric

Peterson Constr. Co., 951 F.2d 1175, 1182 (10th Cir. 1991). We therefore remand to the

district court to address Hilti’s motion for summary judgment on this claim.

We note, however, that Ms. Gray’s individual disparate impact claim may face

one challenge that Ms. Tabor’s does not. Even when an employer is shown to have

violated Title VII’s disparate impact provision, “[e]ach person seeking individual relief

[must] show that . . . she . . . suffered an adverse employment decision and therefore was

a potential victim of the proved discrimination.” Chin, 685 F.3d at 151; see also Coe,

646 F.2d at 451 (“[I]n individual actions rather than class actions . . . [i]t is not sufficient

for an individual plaintiff to show that the employer followed a discriminatory policy

without also showing that plaintiff [herself] was injured.”).

As we discuss above, Hilti has offered undisputed evidence that multiple managers

warned Ms. Gray about performance and disciplinary problems. If the district court

determines there is no genuine dispute that Ms. Gray was unqualified for promotion
-36-
based upon criteria not connected to the challenged employment practice, then summary

judgment in Hilti’s favor is appropriate.

C. Class Certification

1. Background

Plaintiffs appeal the district court’s denial of their motion for class certification.

The decision whether to grant or deny class certification “involves intensely practical

considerations,” Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988), and therefore

“belongs within the discretion of the trial court,” Monreal v. Potter, 367 F.3d 1224, 1235

(10th Cir. 2004) (quotations omitted). In ruling on a class certification question, the court

is not limited to the pleadings but may “probe behind the pleadings” and examine the

facts and evidence in the case. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982).

The requirements for class certification are outlined in Rule 23 of the Federal

Rules of Civil Procedure. To certify a class, Plaintiffs must first meet all of four

requirements outlined in Rule 23(a), namely (1) numerosity, (2) commonality, (3)

typicality, and (4) adequacy of representation. Second, Plaintiffs must show that at least

one of three conditions defined in Rule 23(b) is satisfied. The only Rule 23(b) condition

at issue on appeal is 23(b)(3), which allows class certification when the district court

finds that common questions of law or fact predominate over individualized questions.

Plaintiffs moved to certify a proposed class of “approximately 294 women in

inside sales who were denied opportunities to promote to an outside sales position at

Hilti.” Aplt. Appx. at 1672 (quotations omitted). The district court refused to certify
-37-
Plaintiffs’ proposed class, finding they had failed to meet the numerosity requirement

under Rule 23(a)(1) and failed to satisfy any conditions under Rule 23(b). Because

failure to satisfy Rule 23(a)(1) is dispositive, the court did not consider whether Plaintiffs

met the other three requirements of Rule 23(a).

After the district court issued its decision and while this appeal was pending, the

Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), which

substantially clarified the Rule 23(a)(2) commonality requirement. Applying the Court’s

most recent guidance, we affirm the denial of Plaintiffs’ motion for class certification on

the ground that Plaintiffs have not shown “there are questions of law or fact common to

the class.” Fed. R. Civ. P. 23(a)(2); Wal-Mart, 131 S. Ct. at 2549. Although failure to

satisfy any requirement under Rule 23(a) is dispositive, we also briefly discuss the district

court’s Rule 23(b)(3) analysis as it relates to the commonality issue in Rule 23(a)(2).

2. Rule 23(a)(2)

“A party seeking class action certification must demonstrate, under a strict burden

of proof, that all of the requirements of 23(a) are clearly met.” Rex v. Owens ex rel. State

of Okla., 585 F.2d 432, 435 (10th Cir. 1978). With respect to Rule 23(a)(2)’s

commonality requirement, a plaintiff must show that class members “have suffered the

same injury,” Gen. Tel. Co., 457 U.S. at 157, and that “the incidents of discrimination

complained of . . . present a common issue that could be resolved efficiently in a single

proceeding,” McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482,

488 (7th Cir. 2012), cert. denied, Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
-38-
McReynolds, 133 S. Ct. 338 (2012).

In Wal-Mart, a nationwide class of current and former female employees sued

Wal-Mart under Title VII. 131 S. Ct. at 2548. They alleged that Wal-Mart’s policy of

leaving personnel decisions to the discretion of local managers had a disparate impact on

women and resulted in disparate treatment toward them. Id. The Court explained that

“in resolving an individual’s Title VII claim, the crux of the inquiry is the reason for the

particular employment decision.” Id. at 2552. “What matters to class certification . . . is

not the raising of common ‘questions’—even in droves—but, rather the capacity of a

classwide proceeding to generate common answers apt to drive the resolution of

litigation.” Id. (quotations omitted).

The Court found that the Wal-Mart policy of allowing broad discretion to local

managers “is just the opposite of a uniform employment practice that would provide the

commonality needed for a class action.” Id. at 2554. It held that neither the disparate

impact nor the disparate treatment sex discrimination claim met the commonality

requirement. In arriving at this conclusion, the Court emphasized the extraordinary size

and scope of the proposed class, which included 1.5 million female employees at 3,400

Wal-Mart stores. It was unlikely that thousands of Wal-Mart managers across different

regions of the country would exercise their discretion in a common way without some

common direction, and the plaintiffs had “not identified a common mode of exercising

discretion that pervades the entire company.” Id. at 2554-55.

After Wal-Mart, federal courts reviewing class certification questions have
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generally denied certification when allegedly discriminatory policies are highly

discretionary and the plaintiffs do not point to “a common mode of exercising discretion

that pervades the entire company.” In re Wells Fargo Residential Mortg. Lending

Discrimination Litg., No. 08-MD-01930 MMC, 2011 WL 3903117, at *4-5 (N.D. Cal.

Sept. 6, 2011); see also, e.g., Rodriguez v. Nat’l City Bank, 277 F.R.D. 148, 154-55 (E.D.

Pa. 2011); Daskalea v. Wash. Humane Soc’y, 275 F.R.D. 346, 360 (D.D.C. 2011). Other

courts have allowed certification of smaller plaintiff classes in cases challenging policies

that grant only limited discretion to supervisors. See, e.g., McReynolds, 672 F.3d at 488-

89, 492 (allowing class certification in Title VII claim where plaintiffs pointed to a

uniform company policy that based account distributions on employees’ past success and

gave limited discretion to managers); Ross v. RBS Citizens, N.A., 667 F.3d 900, 909-10

(7th Cir. 2012) (allowing class certification in FLSA claim where plaintiffs pointed to a

uniform, unofficial company-wide policy compelling employees to work without

overtime).

In the current case, Plaintiffs challenge a highly discretionary policy for granting

promotions. They have not shown that Hilti maintained “a common mode of exercising

discretion that pervade[d] the entire company.” 131 S. Ct. at 2254-55. To the contrary,

the record suggests that Hilti failed to maintain the GDCP system in any uniform manner.

Even if Plaintiffs’ statistical evidence demonstrates (at least facially) that this haphazard

policy caused an overall disparate impact on women, Plaintiffs have not shown that the

facts and circumstances involved in Hilti’s promotion choices are common across the
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class of female employees. The very circumstances at issue in the individual claims of

the two current plaintiffs illustrate this point: Ms. Tabor received a P1 rating and applied

for at least two promotions, whereas Ms. Gray did not receive a P1 rating, did not apply

for promotion, and apparently received disciplinary warnings. In each case, Hilti offers a

very different defense to allegations of discrimination.

Given the broad discretion involved in Hilti’s alleged discriminatory employment

practice and the highly individualized facts and circumstances raised in each employment

decision, we cannot say that the proposed class “present[s] common issue[s] that could be

resolved efficiently in a single proceeding.” McReynolds, 672 F.3d at 488; see Fed. R.

Civ. P. 23(a)(2).

3. Rule 23(b)(3)

Although our determination that Plaintiffs’ proposed class fails to meet Rule

23(a)(2) is dispositive, we briefly address the district court’s 23(b)(3) analysis because

both requirements hinge on some of the same fact-intensive questions.

In addition to meeting all Rule 23(a) requirements, to certify a class, “Plaintiffs

must satisfy at least one subsection of Rule 23(b).” Monreal, 367 F.3d at 1235. Rule

23(b) has three subsections, but only subsection (b)(3) is raised in this appeal. Rule

23(b)(3) allows certification of a class when the court finds that “questions of law or fact

common to class members predominate over any questions affecting only individual

members, and that a class action is therefore superior to other available methods for fairly

and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3) (emphasis added).
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 In determining whether common issues of law and fact predominate over

individual ones, the following considerations are relevant:

(A) the interest of members of the class in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy
already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the
claims in the particular forum; and
(D) the difficulties likely to be encountered in the management of a class
action.

Fed. R. Civ. P. 23(b)(3).

The district court noted that “[t]he defendants allege that both named plaintiffs

were denied promotion for specific, objective, and individualized reasons.” Aplt. Appx.

at 1681. The court determined that Hilti’s factual defenses “raised the inference that . . .

individualized concerns predominate over the common questions.” Id. It therefore

concluded that Hilti’s promotion decisions involve “highly individualized” facts and

defenses that cannot be effectively resolved in a class suit. Id. We agree with this

analysis.

* * *

We therefore affirm the district court’s refusal to certify the class.

III. CONCLUSION

We affirm the grant of summary judgment as to Ms. Tabor’s retaliation claim and

Ms. Gray’s failure to promote claim. We further affirm the district court’s refusal to

certify Plaintiffs’ proposed class. We remand Ms. Gray’s disparate impact claim because

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the district court failed to analyze the claim in its order. Finally, we reverse the grant of

summary judgment as to Ms. Tabor’s failure to promote and disparate impact claims and

remand for further proceedings consistent with this opinion.

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