UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
September 2, 1999
TO: ALL RECIPIENTS OF THE OPINION
RE: 98-1125, Bullington v. United Air Lines, Inc.
Filed on August 12, 1999
The opinion filed in this case contains a clerical error on line 1 of page 27.
The characters “74.)” were erroneously added to the beginning of the sentence.
The corrected sentence should appear as follows:
However, her own opinions about her qualifications do not give rise to a material
fact dispute.
Please make the correction to your copy of the opinion.
Very truly yours,
Patrick Fisher, Clerk
Kathleen M. Fabrizio
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 12 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
MARION S. BULLINGTON,
Plaintiff-Appellant,
v. No. 98-1125
UNITED AIR LINES, INC.,
Defendant-Appellee.
_______________
NATIONAL EMPLOYMENT LAWYERS
ASSOCIATION; AIR TRANSPORT
ASSOCIATION OF AMERICA,
Amici Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-WY-240-AJ)
Barry D. Roseman of Roseman & Kazmierski, LLC, Denver, Colorado, for
Plaintiff-Appellant.
Jerry N. Jones (Paul F. Lewis with him on the brief) of Moye, Giles, O’Keefe,
Vermeire & Gorrell LLP, Denver, Colorado, for Defendant-Appellee.
Elizabeth Lamb Kearney and Brent Ruther of Law Offices of Elizabeth Lamb
Kearney, Denver, Colorado; and Paula Brantner of National Employment Lawyers
Association, San Francisco, California, filed a brief for amicus curiae National
Employment Lawyers Association.
John J. Gallagher, Kenneth M. Willner and Neal D. Mollen of Paul, Hastings,
Janofsky & Walker LLP, Washington, D.C.; Brian M. Mumaugh and Marcy G.
Glenn of Holland & Hart LLP, Denver, Colorado; and David Berg of Air
Transport Association of America, Washington, D.C., filed a brief for amicus
curiae Air Transport Association of America.
Before TACHA, BARRETT and BRORBY, Circuit Judges.
BRORBY, Circuit Judge.
United Airlines, Inc. (“United”) interviewed and rejected Ms. Bullington
for the position of line pilot/flight officer on three separate occasions. Ms.
Bullington brought this action pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. , and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 - 634, claiming United refused to hire her because
of her gender, her age and in retaliation for complaining about alleged
discrimination during the interview process. Ms. Bullington further claims
United breached an implied contract or an otherwise enforceable promise by
refusing to hire her. The district court granted United’s motion for partial
dismissal and United’s subsequent motion for summary judgment, and Ms.
Bullington appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm in part and reverse in part.
-2-
I. Background
Ms. Bullington, a female over the age of forty, currently works for United
as a ground school academic instructor. Over a two-year period, Ms. Bullington
sought but was denied a position as line pilot with United on three occasions.
United’s application and selection process for flight officers involves three
phases. In the initial phase, United accepts applications from individuals meeting
certain minimum qualifications including 350 hours of flight experience,
commercial pilot certification, a high school diploma, and other physical and
medical requirements. United then ranks eligible applicants according to
aeronautical experience. Those applicants ranked at the top of the list advance to
the second phase of the selection process. Because female applicants typically
have less aeronautical experience than male applicants, United ranks male and
female applicants separately. United then selects a proportionate number of males
and females to proceed to the second phase. At the second phase, applicants must
complete a simulator flight and a formal interview. Based on the applicant’s
performance, a review board then decides whether to reject the applicant or to
extend a conditional offer. If United extends a conditional offer, the candidate
moves on to the third phase, which includes a medical exam and background
check. Ms. Bullington objects to the formal interview portion of the selection
process.
-3-
Two United employees conduct the formal interview, an employment
representative and a flight operations representative. These individuals assess the
applicant in seven broad categories or “dimensions” including: industry
motivation, decision making/problem solving, compliance and conformity,
leadership, interpersonal skills, technical evaluation, and appearance/presentation.
Each dimension is broken down into a set of attributes or “anchors” United deems
desirable in a flight officer. Interviewers ask applicants questions from a
suggested list and, based on the applicant’s response, evaluate whether the
applicant meets United’s set standards for each attribute. 1
Based on those
attribute evaluations, the interviewers give the applicant a numerical score for
each dimension, ranging from a low of “1” to a high of “5.” The dimension
scores are then averaged to arrive at the applicant’s overall score. An applicant
must have an overall score of “3” or better to be recommended for a flight officer
position. However, if an applicant scores a “2” or lower on any one dimension,
1
For example, under the dimension “leadership,” United lists
“responsibility” as a desired attribute or anchor. To evaluate whether an applicant
meets United standards, United suggests the following questions, “What has been
your most disappointing leadership experience? What did you learn from that
situation?” The interviewer then evaluates the applicant’s answer according to
United’s guidelines for that anchor. An applicant meets United’s “responsibility”
standards if she accepts responsibility for her own actions. The applicant exceeds
United standards if she accepts responsibility for her own and her subordinate’s
actions and initiates corrective action. The applicant falls below United standards
if she blames others for non-performance or failure.
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her overall score will also be a “2,” and the interviewers will not recommend her
for a flight officer position.
United interviewed Ms. Bullington for a flight officer position three times –
January 1993, March 1995 and May 1995. Each time, Ms. Bullington received an
overall score of “2,” thereby disqualifying her from further consideration. After
her first unsuccessful interview in January 1993, Ms. Bullington spoke with Ms.
Nancy Stuke, United’s Manager of Flight Officer Employment, and expressed her
concerns that one of her interviewers was biased against her. Ms. Bullington
claims Ms. Stuke failed to adequately address her complaints. After
unsuccessfully interviewing a second and third time, Ms. Bullington filed suit
alleging: (1) United failed to hire her on all three occasions because of her sex
and age, (2) United failed to hire her in 1995 in retaliation for her complaints to
Ms. Stuke in 1993, and (3) United’s failure to hire her breached an implied
contract or otherwise enforceable promise for career advancement.
United moved to dismiss Ms. Bullington’s claims to the extent they were
based on Ms. Bullington’s January 1993 rejection because those claims were
barred by the statute of limitations. The district court agreed and granted
United’s motion. United then moved for summary judgment on Ms. Bullington’s
-5-
remaining claims. The district court granted that motion as well, concluding Ms.
Bullington failed to establish a prima facie case of age or sex discrimination
under either a disparate impact or disparate treatment theory, failed to establish a
prima facie case of retaliation, and failed to present sufficient evidence of an
enforceable contract or promise. On appeal, Ms. Bullington argues: (1) the
district court erred in concluding her claims based on United’s 1993 hiring
decision were barred by the statute of limitations; (2) genuine issues of material
fact exist regarding her claims of sex and age discrimination, retaliation, and
breach of contract/promissory estoppel; and (3) the district court erred in using a
deferential standard of review in connection with United’s hiring decisions.
II. Statute of Limitations
In Colorado, ADEA and Title VII complainants must file a charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
within 300 days after the alleged unlawful discriminatory practice occurred. 2
42
U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2). This filing is a prerequisite to a
civil suit under either statute. Aronson v. Gressly , 961 F.2d 907, 911 (10th Cir.
2
The 300-day filing period applies to “deferral states” in which the EEOC
defers to the enforcement efforts of a state agency empowered to undertake
employment discrimination investigations. 42 U.S.C. § 2000e-5. Otherwise, the
filing period is 180 days. Id.
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1992). In this case, United first rejected Ms. Bullington for the position of flight
officer in January 1993. In March 1993, Ms. Bullington complained to Ms. Stuke
that she suspected one of her interviewers discriminated against her. In order for
a claim based on this conduct to be timely, Ms. Bullington was required to file an
EEOC charge within 300 days after the March 1993 incident. However, Ms.
Bullington waited almost three years, until February 6, 1996, to file her charge.
Ms. Bullington attempts to avoid this apparent untimeliness by invoking the
continuing violation doctrine. Under that doctrine, a plaintiff may recover for
incidents which occurred outside the statutory time limit if at least one instance of
the alleged discriminatory practice occurred within the limitations period and the
earlier acts are part of a “continuing pattern of discrimination.” Martin v. Nannie
and The Newborns, Inc. , 3 F.3d 1410, 1415 (10th Cir. 1993). To determine
whether alleged incidents of discrimination constitute a continuing violation, a
court considers three factors:
(i) subject matter – whether the violations constitute the same type of
discrimination; (ii) frequency; and (iii) permanence – whether the
nature of the violations should trigger an employee's awareness of
the need to assert her rights and whether the consequences of the act
would continue even in the absence of a continuing intent to
discriminate.
Id. at 1415.
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Applying these factors, the district court determined that the events arising
in 1993 and the later events in 1995 did not constitute a continuing violation.
Instead, the court concluded the 1993 non-hire was an isolated event and,
moreover, Ms. Bullington had reason to believe she was a victim of
discrimination as early as 1993. As such, the court found application of the
continuing violation doctrine inappropriate and Ms. Bullington’s claims, to the
extent they relied on the 1993 conduct, untimely. The court therefore dismissed
those claims for failure to state a claim upon which relief may be granted. 3
We
review de novo the district court’s dismissal for failure to state a claim upon
which relief can be granted. Mascheroni v. Board of Regents , 28 F.3d 1554, 1560
(10th Cir. 1994). We uphold a dismissal “only when it appears that the plaintiff
can prove no set of facts in support of the claims that would entitle [her] to relief,
accepting the well-pleaded allegations of the complaint as true and construing
them in the light most favorable to the plaintiff.” Yoder v. Honeywell, Inc. , 104
F.3d 1215, 1224 (10th Cir.) (internal quotation marks and citation omitted), cert.
3
We note that Rule 12(b)(6) is a proper vehicle for dismissing a complaint
that, on its face, indicates the existence of an affirmative defense such as
noncompliance with the limitations period. See Robinson v. Dalton , 107 F.3d
1018, 1021 (3d Cir. 1997) (“A complaint does not state a claim upon which relief
may be granted unless it asserts the satisfaction of the precondition to suit
specified by Title VII.”); 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 at 349-52 (2d ed. 1990) (“The complaint also is
subject to dismissal under Rule 12(b)(6) when its allegations indicate the
existence of an affirmative defense.”).
-8-
denied , 118 S. Ct. 55 (1997).
The continuing violation doctrine “is premised on the equitable notion that
the statute of limitations should not begin to run until a reasonable person would
be aware that his or her rights have been violated.” Martin , 3 F.3d at 1415 n.6.
Thus, a continuing violation claim will likely fail if the plaintiff knew, or through
the exercise of reasonable diligence would have known, she was being
discriminated against at the time the earlier events occurred. See id. We agree
with the district court’s conclusion that, although the 1993 conduct is of the same
general type as the 1995 conduct, the 1993 decision was a discrete and salient
event that put Ms. Bullington on notice that United violated her rights. The
allegations contained in Ms. Bullington’s Amended Complaint clearly indicate
that after United declined to hire her in January 1993, she spoke to Ms. Stuke in
March 1993 and expressed her opposition to “what she believed ... to have been
sex and age discrimination by [United] in not selecting her for the position of line
pilot.” Because Ms. Bullington was, at the very least, on inquiry notice of the
alleged discrimination as early as 1993, she had a duty to assert her rights at that
time and she cannot rely on a continuing violation theory to avoid the statutory
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time bar. 4
Ms. Bullington also argues for a continuing violation based on her
statistical evidence of a pattern and practice of discrimination. It is true that a
continuing violation may be based on either a series of related acts taken against a
single individual or the maintenance of a company-wide policy or practice of
discrimination. See Purrington , 996 F.2d at 1028. However, Ms. Bullington’s
argument below focused entirely on the specific acts taken against her and did not
contend that a company-wide policy of discrimination existed before and after the
4
Our decision in Martin does not require a different result. In Martin, we
concluded that plaintiff’s allegations of a consistent and frequent pattern of
sexual harassment were sufficient to raise a triable issue on her continuing
violation claim even though she failed to demonstrate all three factors in the
continuing violation analysis. 3 F.3d at 1415-16. This conclusion was possible
because the three-factor analysis we adopted in Purrington v. University of Utah
is not a bright line test. 996 F.2d 1025, 1028 (10th Cir. 1993). Rather, the
factors are merely tools to assist courts in analyzing whether incidents of
discrimination “constitute a continuing course of discrimination or whether they
are discrete unrelated acts.” Martin, 5 F.3d at 1415. A particular court’s use of
the factors will vary according to facts and procedural history of the case. Here,
the district court focused on what it considered to be the greatest weakness in Ms.
Bullington’s continuing violation argument – her apparent awareness of the
alleged discrimination in 1993. The court’s emphasis on the third, “permanence”
factor was not inappropriate considering the nature of Ms. Bullington’s
allegations and the underlying purpose of the continuing violation doctrine
discussed above. See Martin, 3 F.3d at 1415 n.6; see also Selan v. Kiley, 969
F.2d 560, 565 (7th Cir. 1992) (stressing the significance of the third,
“permanence” factor in a continuing violation analysis).
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limitations period. Moreover, she did not present her statistical evidence until
well after the district court issued its order granting partial dismissal. Cf. John
Hancock Mut. Life Ins. Co. v. Weisman , 27 F.3d 500, 506 (10th Cir. 1994) (“This
court has held that it cannot, in reviewing a ruling on summary judgment,
consider evidence not before the district court.”). Because Ms. Bullington failed
to properly assert this theory, we decline to review it on appeal. See Bancamerica
Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792, 798-99 (10th
Cir. 1996) (“Where a litigant changes to a new theory on appeal that falls under
the same general category as an argument presented at trial or presents a theory
that was discussed in a vague and ambiguous way the theory will not be
considered on appeal.” (Internal quotation marks and citation omitted).
The district court properly dismissed Ms. Bullington’s discrimination
claims for events arising in 1992/1993 as time barred. 5
We therefore turn to our
review of the district court’s grant of summary judgment on Ms. Bullington’s
remaining claims.
5
Ms. Miller does not appeal nor do we consider the district court’s
dismissal of that portion of the implied contract claim based on events arising in
1992/1993.
-11-
III. Disparate Impact
Ms. Bullington alleges both disparate treatment and disparate impact claims
under Title VII. A disparate impact claim involves employment practices that are
“fair in form, but discriminatory in operation.” Griggs v. Duke Power Co. , 401
U.S. 424, 431 (1971). A disparate impact claim differs from a disparate treatment
claim in that it does not require a showing of discriminatory intent. See Ortega v.
Safeway Stores, Inc. , 943 F.2d 1230, 1242 (10th Cir. 1991). Instead, a plaintiff
may establish a prima facie case of disparate impact discrimination by showing
that a “specific identifiable employment practice or policy caused a significant
disparate impact on a protected group.” Id. ; 42 U.S.C. § 2000e-2(k)(1)(A)(i).
This prima facie case, in many respects, is more rigorous than in a disparate
treatment case because a plaintiff must not merely show circumstances raising an
inference of discriminatory impact but must demonstrate the discriminatory
impact at issue. See Regner v. City of Chicago , 789 F.2d 534, 537 (7th Cir. 1986)
(internal quotation marks and citation omitted). If plaintiff establishes a prima
face case, the burden shifts to defendant to show that the challenged practice is
job related and consistent with business necessity. 42 U.S.C. § 2000e-
2(k)(1)(A)(i); Ortega , 943 F.2d at 1243-44. If defendant meets this burden, it is
then up to the plaintiff to suggest an alternative employment practice that serves
the employer’s legitimate employment goals yet lacks the undesirable
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discriminatory effect. Ortega , 943 F.2d at 1244.
Ms. Bullington argues United’s interview process caused a significant
disparate impact on women. As is typical in disparate impact cases, Ms.
Bullington relies on statistical evidence to establish her prima facie case. Her
statistics compare the “pass rates” of male and female applicants who interviewed
for United flight officer positions. The “pass rate,” as defined by Ms.
Bullington’s expert, represents the number of applicants who received an overall
score of “3" or better on the interview. 6
For interviews conducted after 1994, the
pass rate for women was 27.9% while the pass rate for men was 46.6%. As such,
the women’s pass rate is equal to only 60% of the pass rate for men – a
statistically significant disparity under EEOC guidelines. See 29 C.F.R.
§ 1607.4(D) (stating that a selection rate for a protected group which is less than
80% or 4/5 of the selection rate for the majority group is generally regarded as
evidence of adverse impact). This disparity, Ms. Bullington argues, is significant
enough to establish a prima facie case of disparate impact discrimination.
6
As such, Ms. Bullington’s statistics do not reflect the number of men and
women United actually hired as pilots, since not all applicants who received a
“passing” score were hired or even made an offer.
-13-
The district court disagreed. It determined Ms. Bullington’s statistics did
not establish a prima facie case because they failed to compare similarly situated
individuals. Specifically, the court noted that women interviewees for flight
officer positions generally have less aeronautical experience than male
interviewees. Although its reasoning is somewhat unclear, the court apparently
assumed that the male interviewee’s advanced aeronautical experience level
allowed them to perform better during interviews, thereby accounting for the
higher male pass rate. Because Ms. Bullington’s statistics did not factor in this
difference in experience level, the district court found the analysis “not
particularly meaningful,” and granted United’s motion for summary judgment.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court. Simms v. Oklahoma , 165
F.3d 1321, 1326 (10th Cir. 1999), petition for cert. filed (U.S. May 24, 1999) (No.
98-1884). We “examine the record to determine if any genuine issue of material
fact was in dispute; if not, we determine if the substantive law was correctly
applied.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238,
1241 (10th Cir. 1990). In applying this standard, we view the factual record and
inferences therefrom in the light most favorable to the nonmoving party. Simms ,
165 F.3d at 1326. However, to survive summary judgment, the nonmoving party
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may not rest upon the allegations or denials of his or her pleadings, but must set
forth specific facts showing that there is a genuine issue for trial. Id. Summary
judgment is appropriate if the evidence is such that no reasonable jury could
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477
U.S. 242, 248 (1986).
Ms. Bullington used a type of statistics called applicant flow data to
establish her disparate impact claim. 7
Applicant flow data, long recognized as an
acceptable comparison model in discrimination cases, generally contrasts the
racial or gender composition of persons who applied for the position and persons
holding the at-issue jobs. See Wards Cove Packing Co., Inc. v Atonio , 490 U.S.
642, 650-51 (1989) (recognizing that statistics measuring “otherwise qualified
applicants” may be probative in disparate impact cases); Hazelwood Schl. Dist. v.
United States , 433 U.S. 299, 309 n.13 (1977) (noting that applicant flow data may
be “very relevant” in proving discrimination). Such data is generally considered
probative because it reflects how the employer’s hiring procedure actually
operated. See, e.g., Ramona L. Paetzold & Steven L. Willborn, The Statistics of
7
We note Ms. Bullington’s data differ somewhat from traditional applicant
flow data in that it compares persons who interviewed for the at issue position
with persons who received a passing score, rather than comparing persons who
applied for the at issue position with persons who were hired.
-15-
Discrimination , § 4.03 at 7 (1998). Of course, applicant flow data, like all
statistical proof, is susceptible to distortion. 8
Accordingly, we require the data to
cross a “threshold of reliability before it can establish even a prima facie case of
disparate impact.” Ortega , 943 F.2d at 1243 (internal quotation marks and
citation omitted, and emphasis added). The “reliability” or usefulness of any
particular analysis will depend on the surrounding facts and circumstances of the
case. See Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 995 n.3, 997 (1988).
After examining the facts and circumstances of this case, we find Ms.
Bullington’s statistical data sufficiently reliable to raise a genuine issue of
material fact regarding the existence of a statistical disparity. Her analysis
8
For example, an employer’s hidden hiring preferences may indirectly
affect the overall make-up of the applicant pool. See, e.g., International Bhd. of
Teamsters v. United States, 431 U.S. 324, 369 (1977) (noting employer’s
reputation for not hiring blacks may have deterred employees from applying
thereby distorting the applicant pool); Allen v. Seidman, 881 F.2d 375, 379 (7th
Cir. 1989) (noting employer’s affirmative action plan may cause applicant pool to
overassess the availability of qualified minority applicants). In addition,
applicant flow data may fail to account for important variations within the pool
itself such as differences in education level and experience. Failure to account
for these variables may result in statistical anomalies that are not really probative
of discrimination. See, e.g., Coward v. ADT Sec. Sys. Inc., 140 F.3d 271, 312
(D.C. Cir. 1998) (finding plaintiff’s regression analysis so incomplete as to be
irrelevant because it failed to account for key variables in the applicant pool); see
also Bazemore v. United States, 478 U.S. 385, 400 (1986) (noting that the
omission of variables from a regression analysis may render the analysis less
probative).
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identified a specific employment practice (the interview) and identified two
relevant populations for impact comparison – persons who interviewed for flight
officer positions and persons who received a passing score on the interview. See
Wards Cove, 490 U.S. at 650-51 (noting the proper comparison in a disparate
impact case is between the racial composition of qualified persons in the labor
market and persons holding the at-issue jobs). Her analysis focused on the
specific position at issue, namely flight officer. See Ortega , 943 F.2d at 1245-46
(noting importance and difficulty of identifying the at-issue job where plaintiff
challenges employer’s hiring process in general). In addition, her applicant pool
was appropriately limited to persons who sought out and were at least minimally
qualified for the position of flight officer. See Wards Cove, 490 U.S. at 651, 653-
54 (concluding plaintiff’s applicant pool was too broad because it included
persons who were not qualified for and did not seek the at-issue jobs). In fact,
each member of the applicant pool not only applied for the at-issue position, as is
the usual case with applicant flow data, but actually interviewed for the at-issue
position. Based on United’s interview eligibility requirements, we can therefore
assume each member of the applicant pool was, at the very least, a certified pilot
with a high school diploma and at least 350 hours of flight experience. The
relative homogeneity of the applicant pool reassures us that its members are not
so diverse as to render her statistics totally meaningless. See Wards Cove , 490
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U.S. at 650-54 (concluding plaintiff’s statistics were not probative of disparate
impact because applicant pool was at once too broad and too narrow for at issue
positions based of differences pool members’ skill and interest level); Allen , 881
F.2d at 379 (concluding eligibility requirements for taking at-issue test resulted in
applicant pool that was reasonably homogeneous, making large disparity in
performance between blacks and whites suggestive of racial bias).
This is not to say Ms. Bullington’s statistics are without fault. As the
district court noted, her analysis fails to account for differences in male and
female interviewees’ aeronautical experience – a potentially non-discriminatory
explanation for the disparate impact. Cf. Fallis v. Kerr-McGee Corp. , 944 F.2d
743, 746 (10th Cir. 1991) (concluding statistics offered by plaintiff in disparate
treatment case did not support the jury’s verdict for plaintiff because statistics
failed to eliminate nondiscriminatory explanations for the alleged disparity).
However, we do not believe that fault renders Ms. Bullington’s statistics
incapable of raising a genuine issue of material fact. We emphasize that Ms.
Bullington’s burden as the nonmovant is to set forth specific facts establishing a
genuine issue for trial. Anderson , 477 U.S. at 248 (internal quotation marks and
citation omitted). The issue of material fact, here the existence of a significant
statistical disparity, need not be resolved conclusively in Ms. Bullington’s favor.
-18-
First Nat’l Bank v. Cities Serv. Co. , 391 U.S. 253, 288 (1968). Rule 56 requires
only that she present “sufficient evidence supporting the claimed factual dispute
... to require a jury or judge to resolve the parties’ differing versions of the truth
at trial.” Id. at 288-89. Ms. Bullington’s statistics, for the reasons discussed
above, are sufficiently reliable to make this showing and her failure to include
one potentially relevant factor ( i.e. , education level) does not undermine the
probativeness of the statistics to such a degree that no reasonable jury could
return a verdict in her favor. 9
See Bazemore , 478 U.S. at 400 (noting a statistical
analysis that includes less than all measurable variables may serve to prove a
plaintiff’s case of discrimination); Maitland v. University of Minnesota , 155 F.3d
1013, 1017 (8th Cir. 1998) (“[I]t is for the finder of fact to consider the variables
that have been left out of an analysis, and the reasons given for the omissions, and
then to determine the weight to accord the study’s results.”); Smith v. Virginia
Commonwealth Univ. , 84 F.3d 672, 676-77 (4th Cir. 1996) (concluding omission
of variables from statistical analysis and evidence that variables were crucial
9
We recognize that some statistical analyses may be so incomplete as to be
irrelevant. See Bazemore, 478 U.S. at 400 n.10. Such an analysis would be
insufficient to defeat summary judgment. See Anderson, 477 U.S. at 249-50
(noting summary judgment may be granted if evidence offered by nonmovant is
merely colorable or not significantly probative); Coward, 140 F.3d at 312
(granting summary judgment for defendant employer where plaintiffs’ statistical
analysis was flawed as a matter of law). However, for the reasons discussed
above, we do not find that to be the case here.
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demonstrated dispute of material fact regarding validity of statistical study).
Nor do we suggest United cannot rebut Ms. Bullington's statistics. We
simply conclude the district court’s basis for granting summary judgment was
insufficient, and United has not shown an absence of issues of material fact with
respect to Ms. Bullington’s prima facie case. United did attempt to demonstrate
the incompleteness of Ms. Bullington’s statistics by listing the relative
aeronautical experience of male and female flight officers actually hired during
the relevant time frame. However, United did not correlate this data with the
interview pass rates in any meaningful way and we are left to speculate about the
actual impact of experience level on interview performance. Thus, while United’s
evidence does show a potential weakness in Ms. Bullington’s statistics, we are
unable to conclude that the evidence is so one-sided that United must prevail as a
matter of law. See Anderson , 477 U.S. at 251-52 (stating that relevant inquiry is
whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law);
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (stating that movant’s burden
is to show that there is an absence of evidence to support the nonmoving party’s
case); Cities Serv. , 391 U.S. at 288-90 (concluding that summary judgment was
appropriate in the absence of any significant probative evidence tending to
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support the complaint). Accordingly we conclude the district court’s grant of
summary judgment in favor of United on this issue was premature. 10
IV. Disparate Treatment
Ms. Bullington next asserts that the district court erred in granting summary
judgment on her disparate treatment claims. Disparate treatment claims involve
“the most easily understood type of discrimination” in which an employer treats
an individual less favorably than others because of her protected status.
International Bhd. of Teamsters , 431 U.S. at 335 n. 15. Because disparate
treatment is a form of intentional discrimination, the plaintiff must prove that her
employer acted with a discriminatory intent or motive. See Faulkner v. Super
Valu Stores, Inc. , 3 F.3d 1419, 1424 (10th Cir. 1993). The basic allocation of
burdens for a disparate treatment claim is set forth in McDonnell Douglas Corp.
v. Green , 411 U.S. 792 (1973). Under the McDonnell Douglas framework, Ms.
Bullington has the initial burden of establishing a prima facie case of
discrimination, which in an ADEA or Title VII case requires her to show: “1) she
10
Because the district court never reached the second step of the disparate
impact analysis, we decline to address any arguments relating to business
necessity/job-relatedness of the interview process or the proper level of deference
the court should give to United’s showing under Spurlock v. United Airlines, Inc.,
475 F.2d 216 (10th Cir. 1972).
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is a member of the class protected by the statute; 2) she suffered an adverse
employment action; 3) she was qualified for the position at issue; and 4) she was
treated less favorably than others not in the protected class.” Sanchez v. Denver
Pub. Schls. , 164 F.3d 527, 531 (10th Cir. 1998). If she establishes a prima facie
case, the burden shifts to United to articulate a legitimate, nondiscriminatory
reason for the adverse employment decision. McDonnell Douglas , 411 U.S. at
802-03. If United offers a legitimate, nondiscriminatory reason for its actions, the
burden reverts to Ms. Bullington to show United’s proffered reason was a pretext
for discrimination. Id. at 804-05.
After applying this framework, the district court discerned two bases for
granting summary judgment. First, the court concluded that Ms. Bullington failed
to establish a prima facie case of disparate treatment. Second, the court
determined Ms. Bullington failed to present any evidence that United’s proffered
reasons for not selecting her were a pretext for discrimination. Of these two
bases, the district court appears to have focused more closely on the second,
scrutinizing United’s proffered reasons for not hiring Ms. Bullington – i.e., her
poor performance during the interviews–and Ms. Bullington’s attacks on those
proffered reasons. We therefore find it appropriate to assume, for the purposes of
this opinion, that Ms. Bullington established a prima facie case of discrimination
-22-
and proceed directly to the second and third steps of the McDonnell Douglas
analysis. 11
See V-1 Oil Co. v. Utah State Dep’t of Public Safety , 131 F.3d 1415,
11
United argues we should consider these arguments at the prima facie
stage of the McDonnell Douglas analysis because they relate to Ms. Bullington’s
qualifications for the at-issue position. Our decision in Kenworthy v. Conoco,
Inc. precludes such an approach. 979 F.2d 1462 (10th Cir. 1992). In Kenworthy,
the district court entered judgment in favor of the defendant on plaintiff’s
discrimination claims because it determined plaintiff failed to establish a prima
facie case. Id. at 1469. However, the court’s reasoning focused on the legitimate
non-discriminatory reasons offered by defendant for not promoting the plaintiff,
specifically her failure to meet qualifications for the at-issue position. Id. Such a
legal analysis, we concluded, was in error because it inappropriately short-
circuited the McDonnell Douglas framework at the prima facie stage and
frustrated the plaintiff’s ability to establish that the defendant’s proffered reasons
were pretextual. Id. at 1469-70.
To avoid this result, we held that the defendant’s reasons for not promoting
the plaintiff – i.e., her failure to meet subjective criteria for the at-issue
position–should be considered in addressing whether those articulated reasons are
legitimate or pretextual and not as a challenge to the sufficiency of plaintiff’s
prima facie case. Id. at 1470; see also Thomas v. Denny’s, Inc., 111 F.3d 1506,
1510-11 (10th Cir.) (noting the employer’s subjective reasons for not promoting
plaintiff are not properly considered at the prima facie stage), cert. denied, 118 S.
Ct. 626 (1997). At the prima facie stage, the court need only conclude that the
plaintiff has shown through credible evidence, including her own testimony, that
she was minimally qualified for the position she sought, even if the defendant
disputes that evidence. Id. In this way, the court could fully consider the
defendant’s evidence of legitimate nondiscriminatory reasons for the adverse
action as well as the plaintiff’s evidence that those proffered reasons were
pretextual. Id.
This reasoning applies with equal force to the instant case. We will not
allow United to “short circuit” the McDonnell Douglas analysis by challenging
Ms. Bullington’s qualifications at the prima facie stage. Such an approach would
unduly limit our ability to consider Ms. Bullington’s evidence that United’s
assessment of her qualifications was a pretext for discrimination.
(continued...)
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1422 (10th Cir. 1997) (“[W]e may affirm for any grounds supported in the
record.”).
The district court concluded that United chose not to hire Ms. Bullington
because she did not meet criteria United believed necessary for a position as
flight officer. The court emphasized that all four United representatives who
interviewed Ms. Bullington concluded that she did not possess “attributes” United
considers essential for flight officers and gave her unsatisfactory ratings in
several of the seven “dimensions” United uses to assess flight officer suitability. 12
Thus, the district court essentially found that United articulated legitimate,
nondiscriminatory reasons for not hiring Ms. Bullington. The record supports this
conclusion. The only remaining issue, then, is whether Ms. Bullington has shown
“that there is a genuine dispute of material fact as to whether the employer’s
proffered reason for the challenged action is pretextual.” Randle v. City of
11
(...continued)
12
Specifically, United interviewers gave Ms. Bullington unacceptable
scores in six of the seven dimensions. Among other alleged deficiencies, United
claims Ms. Bullington’s presentation and interpersonal skills were very poor, that
her responses indicated a significant lack of confidence, focus and motivation,
and that each interviewer had serious doubts about her leadership abilities,
problem-solving skills, dependability and ability to focus on goals. Ms.
Bullington also received failing scores in her technical evaluations.
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Aurora , 69 F.3d 441, 451 (10th Cir. 1995).
To establish pretext a plaintiff must show either that “a discriminatory
reason more likely motivated the employer or ... that the employer's proffered
explanation is unworthy of credence.” Texas Dep’t of Community Affairs v.
Burdine , 450 U.S. 248, 256 (1981). Plaintiff may accomplish this by
demonstrating “‘such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence.’”
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v.
General Elec. Astrospace , 101 F.3d 947, 951-52 (3d Cir. 1996)). However, the
plaintiff’s “mere conjecture that [her] employer's explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary
judgment.” Branson v. Price River Coal Co. , 853 F.2d 768, 772 (10th Cir. 1988).
In this case, Ms. Bullington bases her pretext argument on the following
evidence: disputes regarding things she said and did during the interview, the
interviewers’ use of gender and age stereotypes, a comparison of her
qualifications with those of successful flight officer interviewees, and statistical
evidence. We conclude that, even viewing this evidence in the light most
-25-
favorable to Ms. Bullington, it fails to demonstrate a genuine issue of fact as to
whether United’s reasons for not hiring her were pretextual.
First, Ms. Bullington lists numerous disputes she has with the notes and
summaries prepared by her interviewers. The disputed “notes” are essentially the
United representatives’ informal, handwritten notations of Ms. Bullington’s
responses to various questions during the interview. The “summaries” are typed
memos in which the interviewer summarizes and assesses Ms. Bullington’s
performance and makes a final recommendation regarding hiring. Ms. Bullington
claims the notes and summaries are not accurate reflections of her interview
performance. Further, she contends that those inaccuracies amount to fact issues
regarding the legitimacy of United’s proffered reason for not hiring her and that
the district court improperly ignored them in granting summary judgment. We
disagree.
A review of the record shows that the vast majority of the “factual
disputes” alleged by Ms. Bullington are in reality her opinion that the
interviewers were wrong in their assessment of her qualifications. 13
13
By and large, Ms. Bullington claims the interviewers relied on
misinterpretations, inaccurate assumptions, and highly subjective evaluations, and
(continued...)
-26-
74.) However, her own opinions about her qualifications do not give rise to a
material fact dispute. See Simms , 165 F.3d at 1329. Moreover, even if we were
to assume that United misjudged Ms. Bullington’s qualifications, such evidence
would not preclude summary judgment in this case. The relevant inquiry is not
whether United’s proffered reasons were wise, fair or correct, but whether United
honestly believed those reasons and acted in good faith upon those beliefs. 14
See
(...continued)
13
twisted her responses out of context. For example, one United interviewer
indicated that Ms. Bullington demonstrated an inability to focus on her career and
education goals and that her background raised serious concerns about her
dependability and long term commitment to United. In response, Ms. Bullington
“disagrees” with the interviewer’s comments and states that the interviewer failed
to giver her credit for the fact that she put her job duties at United ahead of her
educational goals or that she had completed her G.E.D. and flight school while
raising seven children and working several jobs. Ms. Bullington obviously has
her own opinions about her qualifications for the flight officer position. Those
subjective opinions, however, do not demonstrate a fact dispute about the
genuineness of United’s assessment of her qualifications. See Kariotis v.
Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997) (“[A]n
opportunity for rebuttal is not an invitation to criticize the employer’s evaluation
process or simply to question its conclusion about the quality of an employee’s
performance.”).
14
Ms. Bullington argues the district court, relying on our decision in
Spurlock, 475 F.2d 216, improperly granted special deference to United’s
employment decisions based on the economic and human risks involved in hiring
competent pilots. We disagree. First, we note that Spurlock is a disparate impact
case and that the discussion of risk factors contained therein relates to the second
prong of the disparate impact case–business necessity–an issue the district court
never reached in this case. See Spurlock, 475 F.2d at 218-20. Second, unlike Ms.
Bullington, we find no error in the district court’s pronouncement that it “is not
particularly well-suited to evaluating the qualifications that go into making a
(continued...)
-27-
Sanchez v. Philip Morris Inc. , 992 F.2d 244, 247 (10th Cir. 1993) (“Title VII is
not violated by the exercise of erroneous or even illogical business judgment.”);
Kariotis , 131 F.3d at 677 (“[A]rguing about the accuracy of the employer’s
assessment [of plaintiff’s performance] is a distraction, because the question is
not whether the employer’s reasons for a decision are right but whether the
employer’s description of its reasons is honest.” (Internal quotation marks and
citations omitted.)); Fischbach v. District of Columbia Dep’t of Corrections , 86
F.3d 1180, 1183 (D.C. Cir. 1996) (concluding relevant issue was whether the
employer honestly believed in the reasons it offered for not promoting plaintiff
and not the correctness or desirability of those reasons). Ms. Bullington presents
no evidence indicating United did not believe the interviewers’ assessment of her
qualifications, and our review of the record reveals no evidence that United failed
to act in good faith in reliance on those assessments. We therefore discern no
(...continued)
14
successful line pilot at United Airlines” and that it “is peculiarly ill-suited to
determine the best candidates.” We previously have recognized that district
courts, when analyzing the pretext issue, do not sit as “super-personnel
departments” free to second-guess the business judgment of an employer. Simms,
165 F.3d at 1330. Thus, the court’s role in this case was not to determine if
United’s hiring decisions were wise or fair, but rather, in the context of Ms.
Bullington’s disparate treatment claim, if those decisions were motivated by
discriminatory animus. The court gave no improper, “special deference” to
United’s business decisions in determining whether they were a pretext for
discrimination.
-28-
showing of pretext. 15
Likewise, we find little merit in Ms. Bullington’s argument that United
based its employment decisions on gender and age stereotypes. Our review of the
record reveals little that could be construed as stereotyped assumptions about the
qualifications, work habits, or personality traits of female or older interviewees.
See, e.g., Price Waterhouse v. Hopkins , 490 U.S. 228, 251 (1989). Rather, Ms.
Bullington’s argument merely takes issue with what she believes is an incorrect
assessment of her communication skills, goals, and motivation level. As
discussed above, Ms. Bullington’s opinion about the fairness or accuracy of the
interviewers’ evaluation is not evidence of pretext. See Simms , 165 F.3d at 1329.
Next, Ms. Bullington offers a comparison of her qualifications with those
of seven other male and/or younger individuals that United interviewed and hired
15
Ms. Bullington also contends the interviewers “did not report her
interview responses accurately, misinterpreted what she had said and twisted her
responses out of context” and claims that some of the interviewers’ summaries are
inconsistent with their notes or with their testimony in this case. We have
reviewed these alleged inconsistencies and find them to be insignificant at best
and too minor to give rise to an inference of pretext. Cf. Lucas v. Dover Corp.,
857 F.2d 1397, 1402 (10th Cir.1988) (concluding instances of alleged
contradictions and inconsistencies were too insubstantial to allow a reasonable
jury to infer pretext).
-29-
as flight officers. She claims United hired these individuals despite the fact many
were less qualified than her or, in many cases, had the same deficiencies
identified during her interview. As such, she argues, there is reason to disbelieve
United’s proffered nondiscriminatory reasons for not hiring her. It is true that a
comparative analysis of job applicants’ qualifications may be relevant in proving
pretext where, as here, the employer claims lack of qualification as reason for an
employment decision. See Sanchez v. Philip Morris , 992 F.2d at 247. However,
we emphasize that an employer does not violate Title VII by choosing between
equally qualified candidates, so long as the decision is not based on unlawful
criteria. See Burdine , 450 U.S. at 259. Therefore, pretext cannot be shown
simply by identifying minor differences between plaintiff's qualifications and
those of successful applicants. See Sanchez v. Philip Morris , 992 F.2d at 247-48;
Chock v. Northwest Airlines, Inc. , 113 F.3d 861, 864 (8th Cir. 1997) (“[A]
comparison that reveals that the plaintiff was only similarly qualified or not as
qualified as the selected candidate would not raise an inference of racial
discrimination.”). The disparity in qualifications must be “overwhelming” to be
evidence of pretext. Sanchez v. Philip Morris, 992 F.2d at 247; see also Odom v.
Frank , 3 F.3d 839, 847 (5th Cir. 1993) (difference in qualifications of applicants
must be so apparent as “to jump off the page and slap us in the face” to support a
finding of pretext).
-30-
A comparison of Ms. Bullington’s qualifications with those of the other
interviewees in this case gives us no reason to question United’s explanation for
its hiring decision. Ms. Bullington evidence does not show that she was
overwhelmingly better qualified than the other candidates. At most, the seven
other candidates were similarly qualified and the fact that United chose between
them is not evidence of pretext. See Sanchez v. Philip Morris , 992 F.2d at 247
(concluding no evidence of pretext where plaintiff failed to demonstrate that he
was overwhelmingly better qualified that the other applicants).
Last, Ms. Bullington argues that the same statistical analysis of male and
female pass rates she offered as evidence of disparate impact is also persuasive
evidence of pretext. We disagree. The probative value of statistical evidence
varies greatly according to the type of discrimination alleged. In a disparate
impact case, statistical evidence plays a central role because the plaintiff is
attempting to show a particular practice had a disproportionate impact on a
particular group, and not the employer’s discriminatory intent. However, in an
individual disparate treatment case, the focus is on how and why an employer
treated a particular individual the way it did. As such, statistical evidence of the
employer’s general hiring patterns is considerably less probative. See LeBlanc v.
Great American Ins. Co. , 6 F.3d 836, 848 (1st Cir. 1993), cert. denied , 511 U.S.
-31-
1018 (1994). Moreover, because overall employment statistics have little bearing
on the specific intentions of the employer in making particular hiring decisions,
such statistical evidence will rarely suffice to rebut an employer’s legitimate,
nondiscriminatory reasons for a particular adverse employment action. See id . at
848 (statistical evidence did not provide sufficient basis for a reasonable jury to
find that defendant terminated plaintiff because of his age); Equal Employment
Opportunity Comm’n v. Texas Instruments, Inc. , 100 F.3d 1173, 1185 (5th Cir.
1996) (statistical evidence did not support an inference that defendant employer’s
reasons for terminating plaintiffs was merely pretextual).
In the instant case, we find the statistics insufficient to allow a reasonable
trier of fact to infer that United’s proffered reasons were a pretext for
discrimination. First, the statistics do not compare the ages of successful and
unsuccessful interviewees and are thus totally irrelevant to Ms. Bullington’s
disparate treatment claim under the ADEA. Second, the statistics were designed
to reflect the generalized impact of United’s interview process on women
applicants. They do not address United’s specific reasons for not hiring Ms.
Bullington, namely her poor interview performance and lack of qualifications.
The statistics thus shed little light on the central issue of the pretext analysis – the
motive behind United’s decision not to hire Ms. Bullington . See id., 100 F.3d at
-32-
1185 (plaintiffs’ statistics were not evidence of pretext because they did not even
purport to analyze the pertinent facts surrounding plaintiffs’ terminations);
Gadson v. Concord Hosp. , 966 F.2d 32, 35 (1st Cir. 1992) (statistics did not meet
plaintiff’s pretext burden because there was no indication of a connection
between the statistics and the employer’s treatment of plaintiff). This is not to
say that the evidence is totally irrelevant to the pretext issue. See McDonnell
Douglas , 411 U.S. at 804-05 (including statistics in list of evidence available to
plaintiff to show pretext); Bruno v. W.B. Saunders Co. , 882 F.2d 760, 767 (3d
Cir. 1989) (plaintiff’s statistical analysis was relevant and thus admissible on
issue of pretext), cert. denied , 493 U.S. 1062 (1990). However, considering the
limited insight it gives us into United’s motive in not hiring Ms. Bullington and
the lack of other probative evidence specifically rebutting United’s proffered
reasons, we conclude that the statistics are insufficient to demonstrate a genuine
fact issue in this case. See Texas Instruments , 100 F.3d at 1186 (statistical
evidence is only probative of intent when combined with other evidence
specifically rebutting the defendant’s legitimate, nondiscriminatory reasons).
In sum, we hold that Ms. Bullington has adduced insufficient evidence for a
reasonable trier of fact to infer that United’s decision not to hire her was
motivated by sex or age animus. The district court’s decision to grant summary
-33-
judgment in United’s favor on Ms. Bullington’s disparate treatment claims was
thus proper.
V. Retaliation
Ms. Bullington claims United retaliated against her based on a conversation
she had in March 1993 with Ms. Stuke, United’s Manager of Flight Officer
Employment. During this conversation, Ms. Bullington allegedly informed Ms.
Stuke of her “strong concerns” that one of her interviewers in the 1993 interview
was biased against her. Because of this complaint, Ms. Bullington claims Ms.
Stuke retaliated against her by influencing the interviewers’ hiring decisions in
her 1995 interviews. As proof of Ms. Stuke’s animus towards her, Ms. Bullington
points to a conversation which occurred shortly before her March 1995 interview
between Ms. Stuke and Mr. H. Jeffery Bartels about a recommendation Mr.
Bartels submitted in support of Ms. Bullington’s flight officer application. In his
affidavit, Mr. Bartels states that Ms. Stuke asked him if he was sure he wanted to
submit a recommendation for Ms. Bullington and told him that Ms. Bullington
acted like a “real airhead” and “held a troll doll for good luck” during her
previous interview. Ms. Stuke also allegedly suggested that if Mr. Bartels wanted
to assist Ms. Bullington, he would help her be “more professional” in her next
interview.
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To establish a prima facie case of retaliation, Ms. Bullington must show:
“1) she was engaged in protected opposition to Title VII or ADEA discrimination;
2) she was subjected to adverse employment action; and 3) a causal connection
existed between the protected activity and the adverse employment action.” See
Sanchez v. Denver Pub. Schls. , 164 F.3d at 533. The causal connection may be
shown by producing “evidence of circumstances that justify an inference of
retaliatory motive, such as protected conduct closely followed by adverse action.”
Burrus v. United Tel. Co. of Kansas, Inc. , 683 F.2d 339, 343 (10th Cir.), cert.
denied , 459 U.S. 1071 (1982). In other words, Ms. Bullington must present some
evidence that her employer undertook the adverse employment action for the
purpose of retaliation. See Randlett v. Shalala , 118 F.3d 857, 862 (1st Cir. 1997)
(“[T]he adverse action must have been taken for the purpose of retaliating.”); see
also Willis v. Marion County Auditor’s Office , 118 F.3d 542, 546-47 (7th Cir.
1997) (concluding plaintiff failed to demonstrate that relevant decision maker
harbored retaliatory animus towards plaintiff); Kneibert v. Thomson Newspapers,
Michigan Inc. , 129 F.3d 444, 455-56 (8th Cir. 1997) (concluding plaintiff
presented genuine issue of material fact where statements by employee involved
in decision making process revealed retaliatory motive).
The district court concluded summary judgment in favor of United was
-35-
appropriate because Ms. Bullington failed to establish a nexus or causal
connection between her 1993 complaint to Ms. Stuke and the interviewers’ hiring
selections in 1995. We agree. The interviewers’ decisions in 1995 were remote
in time from Ms. Bullington’s 1993 complaint, thus undercutting an inference of
retaliatory motive. See Burrus, 683 F.2d at 343. In addition, none of Ms.
Stuke’s comments to Mr. Bartels, on their face, indicate a discriminatory animus
towards Ms. Bullington and we do not believe a reasonable jury could infer such a
motive based on that conversation alone. See Little v. Cox’s Supermarkets , 71
F.3d 637, 643 (7th Cir. 1995) (“[C]ourts are not required to evaluate every
conceivable inference which can be drawn from evidentiary matter, but only
reasonable ones.” (Internal quotation marks and citation omitted.)). Moreover,
even if we assume that Ms. Stuke harbored some retaliatory animus, that evidence
would not establish the requisite causal link because we find no evidence that Ms.
Stuke played any part in the adverse employment decisions. Instead, the record
reveals that the four interviewers were solely responsible for making the hiring
recommendations, and we find no evidence that a retaliatory animus motivated
their decisions or that they were even aware of Ms. Bullington’s 1993 complaint.
Ms. Bullington claims Ms. Stuke “was in a position to influence the interviewers’
recommendations” because she selected them to perform the interviews and
supervised them. However, evidence of an opportunity to influence does not
-36-
amount to evidence of actual influence and Ms. Bullington’s mere speculation
about Ms. Stuke’s influence is not enough to demonstrate a genuine issue of
material fact. See Branson , 853 F.2d at 772 (“[T]he plaintiffs’ mere conjecture
that their employer's explanation is a pretext for intentional discrimination is an
insufficient basis for denial of summary judgment.”); see also Willis , 118 F.3d at
547 (affirming summary judgment of plaintiff’s retaliation claim where no
reasonable juror could conclude that relevant decision maker acted with
retaliatory motive or was a conduit for other employees’ racial animosity).
Because Ms. Burlington has failed to provide any evidence demonstrating a causal
connection between the adverse employment decisions and her protected activity,
she has failed to establish a prima facie case of retaliation.
VI. Breach of Contract/Promissory Estoppel
Lastly, Ms. Bullington claims the district court erred in granting summary
judgment on her breach of contract or promissory estoppel claims. Ms.
Bullington contends the United representative who initially interviewed her for
the position of academic instructor told her United loved to hire from within and
after one year’s work, she would be “almost guaranteed a job.” In addition, Ms.
Bullington claims the second United representative who interviewed her for the
flight instructor position told her “it will take you a year and they’ll hire you as a
-37-
pilot,” and the United Vice President for Flight Standards and Training told all
academic instructors on many occasions United employees could and usually did
work their way up. Ms. Bullington argues these statements amount to a
“promise[] of preferential treatment and a virtual guarantee of employment as a
flight officer.”
Under Colorado law, an implied contract can arise out of a company’s
personnel policies and procedures. See Vasey v. Martin Marietta Corp. , 29 F.3d
1460, 1464 (10th Cir. 1994). To establish such a contract, an employee must
show that the employer’s actions manifested an intent to be bound. Id. To
establish an employer’s binding intent, the terms of the offer must be sufficiently
definite and detailed to enable the court to determine whether a contract has been
performed. Id. at 1465. Terms which are nothing more than “vague assurances”
by the employer will not suffice. Id. If the employee fails to show an implied
contract, she may nevertheless attempt to enforce her employer’s policies under a
theory of promissory estoppel. Id. at 1466. To succeed under that theory, the
employee must demonstrate that the employer should have reasonably expected
the employee to consider the policy as a commitment from the employer, that the
employee reasonably relied on the statements to her detriment, and that injustice
can be avoided only by enforcement of the policy. Orback v. Hewlett-Packard
-38-
Co., 97 F.3d 429, 433 (10th Cir. 1996), cert. denied , 520 U.S. 1241 (1997).
After a thorough review of the record, we conclude that no reasonable juror
could find that the statements Ms. Bullington allegedly relied on amount to an
enforceable contract or promise. The statements, at most, constitute vague
assurances about career advancement opportunities and a general preference for
promoting from within. See Vasey, 29 F.3d at 1465. They do not manifest an
intent to contract and any reliance upon them as creating a contract or promise
was unwarranted. See id. at 1466; Orback, 97 F.3d at 433; see also Dobbs v.
Chevron U.S.A., Inc. , 39 F.3d 1064, 1069 (10th Cir. 1994) (applying similar state
law to conclude vague oral statements by employer did not amount to contract for
continued employment). Accordingly, we agree with the district court that, as a
matter of law, the statements are not sufficiently definite to be legally enforceable
representations. Summary judgment was therefore appropriate.
The district court’s partial dismissal of Ms. Bullington’s claims on statute
of limitations grounds and its grant of summary judgment in favor of United on
the disparate treatment, retaliation, and breach of contract/promissory estoppel
claims is AFFIRMED . The district court’s grant of summary judgment on the
disparate impact claim is REVERSED and that claim is REMANDED for further
-39-
proceedings.
-40-
Bullington v. United Air Lines, Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 1999-08-12
Citations: 186 F.3d 1301
Copy CitationsCombined Opinion