Dunaway v. International Brotherhood of Teamsters

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2002 Decided November 15, 2002

No. 01-7122

Lynda Dunaway,
Appellant

v.

International Brotherhood of Teamsters,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 98cv01317)

Steven G. Polin argued the cause and filed the brief for
appellant.

James A. McCall argued the cause for appellee. On the
brief was Nicole R. Pollard.

Before: Sentelle, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

 Rogers, Circuit Judge: Lynda Dunaway appeals the grant
of summary judgment on her claim of unlawful termination
from employment on the grounds that the district court erred
in ruling that she failed to establish a prima facie case of
discrimination based on gender, national origin, or age, and
that she failed to show that she was a permanent employee,
rather than an at-will employee, by virtue of an implied
contract with the International Brotherhood of Teamsters
("Teamsters"). Because the record indicates that there are
genuine issues of material fact regarding whether Dunaway
was discharged because of gender or national origin, we
reverse and remand for trial on those claims; otherwise we
affirm.

I.

Dunaway, an Asian-American woman, worked for the
Teamsters for twenty-five years. Between 1971 and 1987,
she performed sufficiently well to merit a salary increase and
a promotion, over James Bosley, to the position of Payroll
Supervisor. Dunaway had a perfect employment record in
that position through 1992. In 1992, union elections were
held, and Thomas Sever became the new General Secretary-
Treasurer of the Teamsters. He appointed Bosley director of
the newly merged Accounting and Payroll Departments,
which made Bosley Dunaway's immediate supervisor as of
February 1992. In 1993, Bosley gave Dunaway her first
negative work evaluation in twenty-two years of working for
the Teamsters.

By memorandum of August 19, 1993, Bosley informed
Dunaway that she needed to improve her performance with
respect to timely payment of both employee health and
welfare insurance premiums and domestic and Canadian pay-
roll taxes. From time to time through October 1994, Duna-
way received other memoranda from Bosley stating that he
considered her work performance unacceptable, again citing
her tardiness in making health and welfare insurance pay-
ments as well as her delayed reply to his previous queries
about tax levies and failure to meet with a designated com-

puter specialist about implementing a new human resources
software program. By Bosley's own admission, these prob-
lems were all rectified or explained to his satisfaction. Duna-
way did not receive any negative performance evaluations
after October 1994.

Then, in January 1997, without prior notice, Bosley asked
Dunaway to submit her resignation because the Teamsters
planned to take the Payroll Department in a new direction
and wanted to make personnel changes. When she declined
to resign, Bosley told her she was terminated from employ-
ment, effective immediately. Dunaway filed a complaint in
June 1997 with the Equal Employment Opportunity Commis-
sion.

In June 1998, Dunaway sued the Teamsters for gender and
national origin discrimination in employment under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq.; age
discrimination in employment under both the Age Discrimina-
tion in Employment Act of 1967, 29 U.S.C. s 621 et seq., and
the Human Rights Act of the District of Columbia, D.C. Code
s 2-1402.01 et seq.; and breach of implied contract. The
Teamsters filed an answer and discovery followed. Thereaf-
ter, the Teamsters filed a motion for summary judgment,
which Dunaway opposed.

The district court granted summary judgment for the
Teamsters. The court found that Dunaway had not estab-
lished a prima facie case of discrimination because she had
failed to show that she was qualified for the position of
Payroll Supervisor in light of "uncontroverted evidence that
shows that ... [she] was not meeting her employer's expecta-
tions." The court also found that because Dunaway failed to
show a connection between "alleged stray remarks relating to
[her] protected characteristic[s]" and the decision to termi-
nate her employment, the evidence was "not probative of the
fact that Dunaway had been discharged because of her na-
tional origin." Upon reviewing the Teamsters' Retirement
and Family Protection Plan ("Retirement Plan"), Local 2
Collective Bargaining Agreement ("Local 2's Agreement"),
Teamsters' Confidentiality Agreement, and an Accounting

Department personnel manual, the court further found that
Dunaway failed to present sufficient evidence to establish an
implied contract for employment of any duration.

II.

On appeal from the grant of summary judgment, our
review is de novo, and we apply the same standards as the
district court. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994). Federal Rule of Civil Procedure 56(c) provides that a
district court shall grant summary judgment "if the plead-
ings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." There is
a genuine issue as to a material fact "if the evidence is such
that a reasonable jury could return a verdict for the nonmov-
ing party." Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986). If factual issues can "reasonably be resolved in favor
of either party," there is a need for a trial. Id. at 250. The
court, therefore, "should review all of the evidence in the
record," Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000); cf. Waterhouse v. Dist. of Columbia, 298 F.3d
989, 992 (D.C. Cir. 2002), viewing the evidence in the light
most favorable to the non-moving party and according that
party the benefit of all reasonable inferences. Anderson, 477
U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)); cf. Fed. R. Civ. P. 50. See also Reeves, 530
U.S. at 150; Waterhouse, 298 F.3d at 991; Forman v. Small,
271 F.3d 285, 291 (D.C. Cir. 2001). At this stage of the
proceedings, the court is not to make credibility determina-
tions or weigh the evidence. Reeves, 530 U.S. at 150. Only
if, after examining the evidence, the court finds that a party
has failed "to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial," is
summary judgment appropriate. Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Jackson v. Finnegan, 101 F.3d 145, 150
(D.C. Cir. 1996).

 A.

When reviewing discrimination claims in which the plaintiff
alleges that a discriminatory motive was the only basis for the
employer's action, the court employs the McDonnell Douglas
burden-shifting scheme, McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), as refined in St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502 (1993), Texas Dep't. of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981), and Reeves, 530 U.S. 133. See
Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998)
(en banc); cf. Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), superseded in part by 42 U.S.C. s 2000e-2(m). The
McDonnell Douglas framework establishes an order for the
presentation of proof in discriminatory-treatment cases.
First, the plaintiff must establish a prima facie case of
discrimination. Reeves, 530 U.S. at 142; Aka, 156 F.3d at
1288. Once the plaintiff has done so, the burden of produc-
tion shifts to the defendant to articulate legitimate, non-
discriminatory reasons for the challenged employment deci-
sion. Id. If the employer presents such reasons, then the
burden shifts back to the plaintiff, who is "afforded the
'opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.' "
Reeves, 530 U.S. at 143 (citing Burdine, 450 U.S. at 253); see
also Aka, 156 F.3d at 1288-89. Although the "presumption of
discrimination 'drops out of the picture' once the defendant
meets its burden of production, the trier of fact may still
consider the evidence establishing the plaintiff's prima facie
case, 'and inferences properly drawn therefrom ... on the
issue of whether the defendant's explanation is pretextual.' "
Reeves, 530 U.S. at 143 (citing Hicks, 509 U.S. at 511, and
Burdine, 450 U.S. at 255 n.10).

Following instruction of the Supreme Court in U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983), our
analysis begins with the assumption that Dunaway presented
a prima facie case of discrimination based on gender, national
origin, and age. See also Waterhouse, 298 F.3d at 993;
Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554
(D.C. Cir. 1997). In Aikens, the Court, in reviewing a

judgment following a full trial on a Title VII claim of racial
discrimination in the failure to promote, expressed surprise
that the parties were still addressing whether the plaintiff
had made out a prima facie case. Id. at 714. By framing the
issue in those terms, the Court was of the view that the
parties "unnecessarily evaded the ultimate question of dis-
crimination vel non." Id. Rejecting the view that the prima
facie case method established in McDonnell Douglas was
intended to be "rigid, mechanized, or ritualistic," the Court
observed that once the defendant "has done everything that
would be required of him if the plaintiff had properly made
out a prima facie case, whether the plaintiff really did so is
no longer relevant" because "[t]he district court has before it
all the evidence it needs to decide whether 'the defendant
intentionally discriminated against the plaintiff.' " Id. at 715
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978), and Burdine, 450 U.S. at 253). Accordingly, because
the defendant in Aikens offered evidence to explain why the
plaintiff was not promoted, the Court instructed that at the
close of all the evidence, the district court should have
directly addressed whether the employer had discriminated
against Aikens because of his race. Id. Notably, in Aikens it
was undisputed that the plaintiff was a member of a protected
class (racial minority) and had applied for promotions for
which he was at least minimally qualified and for which the
defendant-employer had selected a non-minority applicant.
Id. at 713.

Similarly, here, the Teamsters presented its full defense to
Dunaway's claims when it moved for summary judgment and
attached a Statement of Material Facts Not in Dispute, with
affidavits and other exhibits intended to demonstrate a non-
discriminatory reason for termination of her employment.
See Fed. R. Civ. P. 56; D.D.C. Local Civ. Rule 7.1(h).
Dunaway, in turn, responded with an opposition to the mo-
tion, filing a Statement of Material Facts in Genuine Dispute
as well as her deposition testimony and that of others. It is
undisputed that Dunaway is a member of a protected class
for purposes of her discrimination claims: she is female, of
Asian descent, and was more than forty years of age when

the Teamsters terminated her employment. She was not
required to prove that she was replaced by a person outside
of the protected class. See Stella v. Mineta, 284 F.3d 135,
146 (D.C. Cir. 2002); Lewis v. NVT Tech., Inc., 118 F. Supp.
2d 51, 53 (D.C. Cir. 2000); cf. O'Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996). As in Aikens, the
proper question now is whether the employer unlawfully
discriminated against the plaintiff. 460 U.S. at 715.

In a discrimination case, the question is "whether a reason-
able jury could have found such intentional discrimination."
McGill v. Munoz, 203 F.3d 843, 846 (D.C. Cir. 2000). The
plaintiff may meet her burden of proof by either direct or
circumstantial evidence. In Aikens, the Supreme Court re-
versed affirmance of the district court's judgment after trial
in part because the district court had "erroneously thought
that [the plaintiff] was required to submit direct evidence of
discriminatory intent," 460 U.S. at 717. The Court reiterated
that in Title VII cases, "[a]s in any lawsuit, the plaintiff may
prove h[er] case by direct or circumstantial evidence." Id.
714 n.3; see also Int'l Bhd. of Teamsters v. United States, 431
U.S. 324, 358 n.44 (1977). Thus, Dunaway may meet her
burden "either directly by persuading the court that a dis-
criminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explana-
tion is unworthy of credence." Aikens, 460 U.S. at 716
(quoting Burdine, 450 U.S. at 256). Ultimately, the question
is "whether the jury could infer discrimination from the
combination of (1) the plaintiff's prima facie case; (2) any
evidence the plaintiff presents to attack the employer's prof-
fered explanations for its actions; and (3) any further evi-
dence of discrimination that may be available to the plaintiff
(such as independent evidence of discriminatory statements
or attitudes on the part of the employer)." Waterhouse, 298
F.3d at 993 (citing Aka, 156 F.3d at 1289).

B.

In opposing summary judgment, Dunaway proffered, as
part of her Statement of Material Facts in Genuine Dispute,

evidence that responded to each of the Teamsters' five pur-
ported reasons for terminating her:

Failure to follow office protocol. The Teamsters state in
its Statement of Material Facts Not in Dispute that Dunaway
failed to follow office protocol. Both parties agree that in
1993, Bosley instituted a new chain of command that required
Dunaway to show him all letters sent by her section, not
contact any employees without his knowledge, and notify him
every time someone outside her section contacted her. Duna-
way states in her deposition that she did follow this chain of
command, and Bosley admits in his deposition that after he
made her aware of the policy, she followed it.

Late tax payments. The Teamsters also state that it
repeatedly incurred penalties and levies as the result of
Dunaway's failure to pay withholding taxes, both U.S. and
Canadian, in a timely fashion. Dunaway counters that the
late payments were caused by a number of factors over which
she had no control. First, she states in her deposition that
delays in Accounts Payable created delays outside of her
department. She further states that, in an attempt to resolve
the problem, she met with the manager of Accounts Payable,
Louie Blyden, and then-Manager of the Accounting Depart-
ment, Joseph Selsavage. Second, Dunaway states that the
late U.S. payments and subsequent tax levies referenced by
the Teamsters are for the years 1993-1994, the same period
in which the payroll department implemented a new computer
system, Oracle. She states that she tried to get training for
the new system, but that the person in charge of her training
was never available. Third, citing Bosley's deposition, Duna-
way states that even after management initiated a pre-audit
to eliminate the tax problem, and after Dunaway was termi-
nated, the problem of late taxes continued. Fourth, Dunaway
states, in her deposition and also citing Bosley's deposition,
that although she wanted to use overnight mail to avoid late
Canadian tax payments, Bosley and Selsavage wanted to
avoid the extra cost. It was not until May 1996 that Selsa-
vage approved overnight mailing. Fifth, Robert Wilson, who
served as Sever's Executive Assistant from February 1992 to
October 1995, stated in his deposition that many of the tax

penalties were abated by the Internal Revenue Service upon
presentation by Dunaway of appropriate documentation or
legitimate reasons for the late payments.

Failure to pay premiums for health and welfare cover-
age. The Teamsters further state that Dunaway failed to
make timely payments of health and welfare premiums, en-
dangering the coverage of the company's 500 employees.
Dunaway, citing her deposition and that of Wilson, responds
that the premiums could not be paid until the Department of
Human Resources provided the necessary information to her
department, and that because the chain of command then
required her to turn the information over to Bosley, she had
to wait for his often-tardy response in forwarding the infor-
mation back to her. Dunaway, citing Bosley's deposition, also
states that there were no late payments of health and welfare
premiums after September 1993.

Failure to pay election dues in timely fashion. The
Teamsters state that in 1996 Dunaway failed to remit in a
timely manner the election dues for then-President Ron
Carey. She made a double payment the next month to
correct her error, but this raised the suspicion of the officers
supervising the election, and resulted in an investigation.
Dunaway, citing Bosley's deposition, responds that Carey was
able to run in the election, and that at the time, no one,
including Carey, thought that she should face adverse conse-
quences as a result of her mistake.

Inability to work with other departments and people.
The Teamsters also state that Bosley and Selsavage received
complaints from other departments and employees concern-
ing delays associated with requests made to Dunaway, as well
as her rudeness and uncooperativeness. The Teamsters prof-
fered declarations by five employees, not including Bosley
and Salsavage, who say they experienced delays and rudeness
with Dunaway. Dunaway counters in her deposition that she
was never made aware of these complaints against her. She
also notes that one of the employees acknowledges in his
affidavit that he cannot recall any specific instances of prob-
lems with Dunaway, and points to Wilson's deposition testi-

mony that another employee was biased against Dunaway's
gender and national origin.

Dunaway also proffered evidence on animus and pretext
with regard to comments about her national origin and gen-
der, and comments directly related to the termination of her
employment. In addition to her own testimony, Dunaway
proffered Wilson's deposition as corroborating evidence that
she was not fired for being a poor employee but because
Bosley harbored an intense dislike for her because she was an
Asian and a woman, and for those reasons often exaggerated
the nature of incidents involving her. Wilson's deposition and
declaration would support findings of fact that:

National origin-related comments. Bosley would refer to
Dunaway as his "China doll," called Dunaway and an auditor
from Vietnam, "Little Gook," and questioned Dunaway about
whether she was born in the United States. Bosley would
talk to Dunaway "like something out of a Charlie Chan
movie" and use expressions like "chop chop." Bosley also
treated Dunaway differently than the Caucasian women who
worked in her office. Sever did not think non-Americans
should work for a union or that Dunaway should have the job
because she was Asian.

Gender-related comments. Sever stated that women do
not belong in the workplace, and that "they should either be
on their backs or on their knees scrubbing floors." Sever
said women do not have the mental capacities to handle
professional situations like men. Bosley referred to all wom-
en as "Sylvia," but did not call all men by one name. When
Dunaway was dressed in a tight shirt or short skirt, Bosley
would create an excuse for her to go to Sever's office so that
they could ogle her. Bosley once stood up after she left,
grabbed his crotch, and said "This is what she needs."
Bosley would take off his belt and snap it, while making
comments like "no checkie, no wash." Sever was also upset
that Judy Scott was an executive assistant because she was a
woman, and "should be home having children, watching her
kids." Sever further said that he thought Bosley should have

been promoted to Payroll Supervisor over Dunaway because
she was a woman.

Comments directly related to terminating Dunaway's
employment. Bosley said, "This goddamn Oriental bitch got
the job over me. I want to get rid of her." Bosley told Sever
he wanted to "get rid" of Dunaway because she was a woman.
Bosley expressed desire to terminate Dunaway because she
was Asian. Bosley said to Wilson: "I think I got something
on the China doll, something legitimate on the China doll."

In granting summary judgment for the Teamsters, the
district court ruled that Dunaway's pre-1993 job performance
was irrelevant in view of "uncontroverted evidence" that she
was unqualified for her position and that complaints about her
job performance continued. This ruling is inconsistent with
viewing the evidence most favorably to Dunaway, as it ig-
nores, for example, her proffered evidence of systemic expla-
nations to explain payment delays. The court also found that
the derogatory national origin and gender comments made by
Bosley and Sever were "stray remarks," which the court
defined as remarks "made outside the context of the chal-
lenged decision," and thus were not probative evidence that
Dunaway was fired for discriminatory reasons. This finding
ignores the four derogatory remarks about her national origin
and sex that were directly connected to the Teamsters' desire
to terminate Dunaway's employment. The credibility of her
witnesses and the weight of her evidence are not matters to
be considered at this stage of the proceedings. Reeves, 530
U.S. at 150.

We hold that Dunaway produced sufficient evidence to
entitle her to present her claims to a jury. Viewing the
evidence in the light most favorable to the non-moving party,
Dunaway presented sufficient evidence from which a reason-
able jury could find under the standards set out in Burdine,
450 U.S. at 253 n.6, and Neuren v. Adduci, Mastriani, Meeks
& Schill, 43 F.3d 1507, 1512 (D.C. Cir. 1995), that she was
performing at or near her employer's reasonable expecta-
tions. During twenty-five years of service, her only formal
unsatisfactory performance evaluation occurred in 1993, after

Bosley became her supervisor. Dunaway proffered evidence
that Bosley's negative evaluations of her work were less the
result of her job performance than of Bosley's intense dislike
for her because of her gender and national origin. In addi-
tion, Dunaway presented evidence, including derogatory
statements about her gender and national origin that were
made in connection with termination of her employment, from
which a reasonable jury could find that the purported expla-
nations for her termination were pretextual. Her evidence
would permit a reasonable jury to find that the Teamsters
terminated her employment because of either her national
origin or gender, and that the Teamsters' explanation is
unworthy of credence. See Aikens, 460 U.S. at 716.

C.

By contrast, the district court could appropriately grant
summary judgment on Dunaway's breach of contract and age
discrimination claims. As evidence of an implied contract,
Dunaway points to oral assurances made by Teamsters' offi-
cials at the time she was hired and several Teamsters' policies
and manuals. According to Dunaway, when she was hired,
after she passed a probationary period of employment, she
expected that she would remain employed at the Teamsters
until retirement, because as then-General Secretary-Treasur-
er Thomas Flynn told her, the Teamsters was a good place to
work and took care of its employees. Dunaway further states
that Judy Scott, then-Executive Assistant to the General
President, told Dunaway that she was covered under the
Teamsters' Retirement Plan and Local 2's Agreement. In
addition, Dunaway points to the manuals setting forth the
Retirement Plan, Local 2's Agreement, and the personnel
policies for the Accounting Department, as well as a confiden-
tiality agreement she signed and an anti-discrimination policy.

In the District of Columbia, employment contracts for no
definite period of time are terminable at the will of either
party absent clear evidence of the parties' intent to contract
otherwise. Willoughby v. Potomac Elec. Power Co., 100 F.3d
999, 1001 (D.C. Cir. 1996); Minihan v. Am. Pharm. Ass'n,

812 F.2d 726, 727 (D.C. Cir. 1987); Hodge v. Evans Fin.
Corp., 707 F.2d 1566, 1569 (D.C. Cir. 1983); Sullivan v.
Heritage Found., 399 A.2d 856, 860 (D.C. 1979). Although
the oral assurances relied on by Dunaway are insufficiently
precise to raise a genuine issue regarding the Teamsters'
intent upon employing her, see Willoughby, 100 F.3d at 1001;
Minihan, 812 F.2d at 727-28, it is well established that
material issues of fact exist as to whether an employment
manual and related materials between a former employee and
a former employer create a contract. See Yesudian v. How-
ard Univ., 153 F.3d 731 (D.C. Cir. 1998); Nickens v. Labor
Agency of Metro. Washington, 600 A.2d 813 (D.C. 1991);
Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613
(D.C. 1985).

Dunaway, however, cannot rest her implied contract claim
on the Retirement Plan, which expressly states that it shall
not be construed as giving any member in the Retirement
Plan "the right to be retained in the employ of the [Team-
sters], and all employees shall remain subject to discharge
... to the same extent as if the [Retirement] Plan had never
been executed." The other manuals and policies to which she
points also provide no evidence from which a reasonable jury
could find an implied contract of permanent employment.
Dunaway did not proffer evidence that she was told that she
could rely on Local 2's Agreement with regard to termination
from employment. To the contrary, she admitted in her
deposition that as Payroll Supervisor she was not covered by
Local 2's Agreement and that sometime after 1992 she was
told by Scott that non-bargaining employees would be cov-
ered by a separate benefits document. Nor did she offer
evidence to show that the personnel manual drew a distinc-
tion between probationary and permanent employees or set
preconditions to termination, and thus was the type of manual
that could rebut the at-will presumption. See Nickens, 600
A.2d at 817-18; Wheeler, 496 A.2d at 615-16. Likewise, she
failed to offer any evidence that the confidentiality agreement
or the anti-discrimination policy included language clearly
showing that the Teamsters intended it to confer contractual
rights regarding employment. Taken together, the oral rep-

resentations and various manuals and policies fail to consti-
tute evidence that she had an implied contract of permanent
employment as would entitle her to certain rights prior to
being terminated.

Dunaway's age-discrimination claim fares no better, for she
failed to proffer evidence from which a reasonable jury could
find that she was discriminated against on the basis of age, in
violation of the ADEA and the D.C. Human Rights Act, when
she was replaced by a woman who was seven years her
junior. The Teamsters' decision to replace her with a youn-
ger woman is insufficient for a jury to conclude that she "lost
out because of [her] age," O'Connor, 517 U.S. at 312; Adkins
v. Safeway Inc., 985 F.2d 1101, 1104 (D.C. Cir. 1993); Cuddy
v. Carmen, 694 F.2d 853, 857-58 (D.C. Cir. 1982). Dunaway
proffered no other evidence that she was terminated because
of her age and, to the contrary, her Statement of Material
Facts insisted that the only reason she was fired was that she
was an Asian woman. Moreover, to the extent that she links
her age discrimination claim to the fact that she was only five
years away from retirement and claims that the Teamsters
were trying to avoid paying her retirement benefits, Hazen
Paper Co. v. Biggens, 507 U.S. 604 (1993), is dispositive. The
Court in Hazen observed that "an employee's age is analyt-
ically distinct from his years of service," and held that "an
employer does not violate the ADEA just by interfering with
an older employee's pension benefits that would have vested
by virtue of the employee's years of service," id. at 1707-08.

Accordingly, because a reasonable jury could find by a
preponderance of the evidence in Dunaway's favor on her
gender and national origin claims, we reverse the grant of
summary judgment and remand the case for trial on those
claims. In all other respects, we affirm the grant of sum-
mary judgment to the Teamsters because Dunaway's contract
and age discrimination claims fail either as a matter of law or
on evidentiary grounds.