Miller v. Automobile Club of New Mexico, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

PUBLISH August 19, 2005

PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

GINA L. MILLER,

Plaintiff-Appellant,

v.
No. 03-2276
AUTOMOBILE CLUB OF NEW
MEXICO, INC., doing business as
AAA New Mexico,

Defendant-Appellee.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CIV-01-1372 WFD/ACT)

Whitney Warner (Repps D. Stanford, with her on the briefs), of Moody & Warner,
P.C., Albuquerque, New Mexico, for the Plaintiff-Appellant.

Charlotte A. Lamont (Sarah K. Downey, with her on the brief), of Bannerman &
Williams, P.C., Albuquerque, New Mexico, for the Defendant-Appellee.

Before SEYMOUR, Circuit Judge, McKAY, Senior Circuit Judge, and
MURPHY, Circuit Judge.

SEYMOUR, Circuit Judge.
 Gina L. Miller filed suit against AAA New Mexico, alleging disparate

treatment on the basis of gender and age, in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and

retaliation under Title VII, the ADEA, and New Mexico state law. She also

asserted a claim under the Equal Pay Act, 29 U.S.C. § 206(d) (EPA), along with

state law claims for breach of an implied employment contract and breach of the

covenant of good faith and fair dealing. The district court dismissed Ms. Miller’s

discrimination, retaliation, and EPA claims on summary judgment. 1 Her implied

contract and breach of the covenant of good faith and fair dealing claims

proceeded to trial, but the jury was unable to reach a verdict. The court declared

a mistrial, and subsequently entered judgment as a matter of law on behalf of

AAA New Mexico. Ms. Miller appeals the district court’s rulings. We affirm.

I

Ms. Miller’s two basic contentions on appeal are that the district court

erred in granting summary judgment and judgment as a matter of law to AAA

New Mexico on her various claims. Our standards of review of these two

1
During proceedings before the district court, Ms. Miller stipulated to the
dismissal of her age discrimination and associated retaliation claims. Hence, we
will not discuss them further.

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judgments are highly similar and require that we view the facts in the light most

favorable to the non-moving party. See Coldesina v. Estate of Simper, 407 F.3d

1126, 1130-31 (10th Cir. 2005) (reviewing grant of summary judgment de novo,

and construing facts in light most favorable to non-moving party); Tyler v.

Re/Max Mountain States, Inc., 232 F.3d 808, 812 (10th Cir. 2000) (reviewing

judgment as matter of law de novo, and viewing evidence and inferences drawn

therefrom in favor of non-moving party). Under these required standards, the

record reflects the following.

Ms. Miller began working for AAA New Mexico 2 in August 1996 as a part-

time traffic reporter. Her position was officially classified as “senior clerk” and

she was paid on an hourly basis. 3 Ms. Miller reported directly to Brenda Yager,

manager of the Public and Government Affairs (PGA) department. At the start of

her employment, Ms. Miller received a copy of the AAA New Mexico Handbook

which detailed that her employment was at-will. The handbook also contained a

2
AAA New Mexico is the wholly owned subsidiary of AAA Club Services,
Inc. AAA Club Services, Inc., in turn, is the wholly owned subsidiary of the
Automobile Club of Southern California. The Automobile Club of Southern
California oversees the work of AAA organizations in New Mexico, Hawaii,
Texas, and California.

AAA New Mexico has both hourly and salaried employees. Salaried
3

employees are deemed to hold “regular” positions and can be full-time or part-
time. However, only regular employees receive benefits. When Ms. Miller began
her employment with AAA New Mexico, she understood that as an hourly
employee she was not entitled benefits.

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disclaimer stating in part: “This at-will employment relationship may not be

modified by any oral or implied agreement. No provision of this employee

handbook, including the Involuntary Termination section . . . or of any Club

policies shall create any contractual obligations inconsistent with the at-will

nature of the employment relationship.” App., vol. VII at 1369-70.

About three months after Ms. Miller began working for AAA New Mexico,

Ms. Yager asked if she would be interested in working extra hours performing

public relations duties at her current rate of pay. Ms. Miller agreed.

Acknowledging the extra duties Ms. Miller had assumed, Ms. Yager gave her

permission to call herself a “Public and Government Relations Specialist.” Ms.

Yager also had Ms. Miller distribute a memorandum to the rest of the AAA New

Mexico staff indicating she had taken on additional duties, in conjunction with

her traffic reporting duties, in the department. 4

Sometime during the early part of 1997, Ms. Miller asked Ms. Yager

whether she was working outside the scope of her official job description as a

4
At some point during her employment with AAA New Mexico, Ms. Miller
also began to refer to herself as “lead traffic reporter.” Ms. Yager did not object
to Ms. Miller using this title. While Ms. Miller was not in charge of the other
traffic reporters, she did take on the responsibility of scheduling and training the
other reporters, as well as maintaining a resource notebook for the department.
She also had “direct contact with affiliates . . . [and] she was actually responsible
for working with them to put together their contracts.” App., vol. II at 274. This
included filling in forms from AAA New Mexico’s legal department, and then
having any final negotiations approved by Ms. Yager.

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part-time traffic reporter/senior clerk, and whether she was being paid

appropriately. As Ms. Miller eventually testified at trial, Ms. Yager agreed that

she was “working outside [her] job description at the time, and . . . agreed that the

position should be graded higher, classified at a higher rate of pay.” Id., vol. III

at 640. In response to Ms. Miller’s query as to how or whether this could be

rectified, Ms. Miller testified Ms. Yager told her

not to worry, because the company was going through some changes
and they were actually getting ready to evaluate positions throughout
the company and that there was a good chance that the position was
going to be reclassified, in fact, would be reclassified at that time
and graded at a higher . . . rate.

Id. at 642.

In April 1997, Ms. Yager had Ms. Miller fill out two different job

questionnaires for a job study. One questionnaire was for her position as part-

time traffic reporter, and the other was to detail her public affairs duties. Ms.

Yager stated that the questionnaires were to be used by human resources in the

California main office to evaluate and reclassify positions. 5 She expected the

5
All of AAA New Mexico’s human resources functions were housed in and
provided for by the Automobile Club of Southern California. The parent
organization set “all of the human resource policies, benefits, compensation,
salary grades, [and] titles,” id., vol. IV at 855, 1032, for its subsidiary companies.
In order for Ms. Yager to create a regular salaried position within her department,
she was required to seek permission from her direct supervisor to request human
resources perform a job evaluation study. She could not unilaterally decide to
reclassify a position or create a regular benefitted post. Rather, if the business
(continued...)

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review and reclassification process would take “a few weeks . . . maybe two to

three months at the most.” Id. at 643. Ms. Miller anticipated that when the job

study reclassification process was complete, she would receive increased

compensation for her work.

The job study was completed in September 1997, but to both Ms. Miller’s

and Ms. Yager’s dissatisfaction, the study did not “actually take the information

that Ms. Miller provided and determine whether or not her title was correct or she

was being paid correctly.” Id., vol. IV at 868. Rather, the study used the job

questionnaires to perform a comparison between the different state AAA offices

under the auspices of the Automobile Club of Southern California to ensure the

current positions in the state offices were similarly ranked. 6 It was not the type of

“true job study” Ms. Yager had expected or what she “was originally told . . . was

going to happen.” Id. at 867. Ms. Yager was unhappy with the results of the

study, and continued to affirm to Ms. Miller that she thought Ms. Miller was

performing duties outside of her job classification, and should be better

5
(...continued)
needs of the department warranted reclassifying a position or creating a new one,
a request could made for such, but any final job creation or classification decision
had to be ultimately approved at “the executive level.” Id. at 1037, 1064; id., vol.
VI at 1325-26.
6
As a result of this company wide job study, Ms. Miller’s official
classification was changed from “senior clerk” to “clerk, intermediate.” This
change did not affect Ms. Miller’s hourly pay rate.

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compensated. Ms. Yager promised Ms. Miller she was going to follow up with

human resources and look into the problem.

On January 9, 1998, Ms. Yager sent a letter to her then direct supervisor,

Steve Lenzi, urging the review of the staffing needs in her department, especially

Ms. Miller’s position. Referring to the work Ms. Miller was performing as both a

public relations assistant and a traffic reporter, she wrote that “[t]wo positions

exist in the public and government affairs department . . . that need to [be]

evaluated for correct title and salary grade.” Id. at 874; id., vol. VI at 1279. She

informed Mr. Lenzi she believed the current titles and grades were inappropriate

and asked that the positions be upgraded. She also noted that an upgrade of the

two positions would impact Ms. Miller, who was then working about thirty-five

hours a week. Mr. Lenzi gave Ms. Yager permission to contact human resources

to request they perform an evaluation of her department’s needs as well as the

positions for possible upgrading.

Ms. Miller further testified that during the winter of 1998, Ms. Yager

assured her she was continuing her conversations with human resources and that

Ms. Miller “would receive an upgrade and be reclassified based on the

information that [Ms. Yager] had received from her management.” Id., vol. III at

657-58. Ms. Miller testified she believed an “upgrade” meant “a new job title,

the correct job description,” id. at 658, and a “regular” position with full benefits,

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in which she worked thirty-five hours a week. Id. at 657-58. She further testified

that Ms. Yager stated the upgrade would happen “soon, within a few weeks or a

few months.” Id. at 659. However, Ms. Miller was unable to testify as to the

exact date of the upgrade, or the exact salary she would receive upon that date.

Id.

In the meantime, Ms. Yager’s supervisors indicated to her that it would be

easier to provide wage increases to her employees than to go through the process

of creating regular posts. Ms. Yager testified she was informed that in order to

create regular posts in her department “a job study would have to be done, and

that it was a very lengthy process, and if I was looking at providing increased

compensation immediately, [a pay raise] was the way to do it.” Id., vol. II at 282.

Ms. Yager would rather have gone through the process of obtaining regular

positions, but she nonetheless increased Ms. Miller’s wage to $10.00 an hour.

Upon determining that one of the employees who also received a raise had just

joined the company and had been trained by Ms. Miller, Ms. Yager increased Ms.

Miller’s hourly rate to $10.50, retroactive to the date of the $10.00 wage

increase. 7

When Ms. Miller began her employment with AAA New Mexico in August
7

1996, she earned $7.50 an hour. In February 1997, her wage was increased to
$7.90 an hour. Then, in March 1998, her wage was raised to $10.00. She
subsequently received the additional raise to $10.50 an hour, retroactive to
(continued...)

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 All of Ms. Miller’s male colleagues in the PGA department were also

classified as “clerk, intermediate” and worked in hourly part-time positions.

There only appears to be one instance, during a three month period in 1997, when

a male co-worker earned eight cents an hour more than Ms. Miller. 8 Between

1998 and the spring of 2000, however, no male in Ms. Miller’s department

received an hourly wage that surpassed hers.

In November or December 1998, Leigh Matthewson, Ms. Miller’s mother,

began working in the PGA department as a contract employee doing public affairs

work. Ms. Yager eventually hired her in May 1999 in a hourly position with the

official classification of “clerk, intermediate.” At the time she was hired, Ms.

Matthewson said she was interested in a position with benefits but Ms. Yager

informed her she did not have a regular benefitted position to offer her. At trial,

Ms. Matthewson testified she agreed to work for AAA New Mexico because of

her understanding that the position she would be filling was in the process of

being upgraded to a regular post. She was unable to identify a specific date upon

7
(...continued)
February 5 of that year. On February 28, 1999, her hourly rate was further
increased to $10.68.
8
In her response to AAA New Mexico’s motion for summary judgment, as
well as on appeal, Ms. Miller makes no reference to this apparent disparity, and
instead asserts that her Title VII discrimination and EPA claims are based, in part,
on the disparity in wages between her hourly rate and that of the men in her
department from 1998 to 2000.

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which the position would in fact be upgraded, or a date on which she would start

receiving benefits.

In February 1999, Ms. Yager informed Ms. Miller she was still working on

obtaining the upgrade. Ms. Miller testified Ms. Yager “had promised that the

upgrade process was ongoing and that [the upgrade] would happen.” Id., vol. III

at 675. Ms. Yager, Ms. Miller, and Ms. Matthewson participated in a number of

brainstorming sessions during which they discussed how they hoped the

department might be reorganized in light of the potential upgrades. Throughout

this process, Ms. Yager testified she told the two women

“you know, I don’t know how much input, how much say I’m going
to have. But certainly, let’s talk about some things that might be
workable. And if I have input, then that’s good. Then I’m armed
with better information and with how we think things might work
best [for our department].”

Id., vol. IV at 946.

In May of that year, Ms. Yager included two regular positions in her 2000

budget proposal. In submitting her budget request to her general manager, she

noted that “[i]n the 2000 budget, I’ve upgraded [Ms. Miller’s] and [Ms.

Matthewson’s] positions to regular employees rather than hourly. They already

are working the hours (35 and 40 respectively) but they are not currently getting

benefits. This is the one item that I would like to protect above others.” Id. at

891; id., vol. VI at 1285. Ms. Yager testified that her manager agreed to honor

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her request. 9

On July 1, 1999, Ms. Yager again met with Ms. Miller and Ms. Matthewson

to discuss the status of the 2000 proposed budget which included the two regular

positions. Ms. Miller’s trial testimony indicated Ms. Yager informed the women

“[t]he upgrades were imminent. They were going to come through any time . . . .”

Id., vol. III at 678-79; id., vol. IV at 892. Ms. Yager testified that “I didn’t say

that was the final word. But yes, I said it was looking good, that at least at this

juncture, we had a long ways to go in the budget, but at least as of this juncture,

they were in the budget.” Id., vol. IV at 891-92. She also testified that “human

resources temporarily approved for the use of [the titles of Public Affair

Specialists] on business cards. And I actually said to them that they may not be

the job titles that we end up with, but for right now, they’re fine.” Id. at 892; id.,

vol. III at 678-79. Ms. Miller and her mother were “absolutely elated because

[Ms. Yager] said the positions were approved or going to be approved, just within

a short period of time . . . .” Id., vol. IV at 991.

Around this time, Ms. Miller raised the question of whether she would

receive retroactive pay for the public affairs work she had already performed for

the PGA department. She testified Ms. Yager was not clear on the answer to this

Ms. Yager testified that in the last two budgetary years she had requested
9

the addition of a regular benefitted position in her department, but that her request
was denied on both occasions.

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question, but would look into it for her. Ms. Miller said Ms. Yager “believed I

should receive retroactive compensation for the time that I have worked outside

of my job description; that I had clearly been working out[side] of my job

description for years . . . and that she believed I should receive retroactive

compensation.” Id., vol. III at 681, 772. However, at trial Ms. Miller also made

clear she had “never testified that anyone told me I was going to receive

retroactive compensation.” Id. at 773. Ms. Yager also testified that upon being

asked by Ms. Miller whether she would receive retroactive pay, Ms. Yager

responded it “was highly unlikely that the company would consider that, but [she]

wasn’t going to discount anything . . . .” Id., vol. IV at 950.

Despite Ms. Miller’s and Ms. Matthewson’s belief that the position

upgrades would occur soon after their July meeting with Ms. Yager, nothing

happened. Later that month, Ms. Miller contacted a member of the human

resources department in California and inquired as to the status of the job review

process. She was informed the process had not yet begun, but that “[a]ll positions

in New Mexico (as well as Texas and Hawaii) are going to be evaluated hopefully

this year.” Id., vol. VI at 1287; id., vol. III at 683. Ms. Miller was “shocked and

dismayed” at this response because it was her understanding that the upgrades

“were just around the corner.” Id., vol. III at 683. Ms. Miller testified that in

asking Ms. Yager about the delay, Ms. Yager assured her that “there was no

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problem at all with the upgrade. The upgrade was going to take place. It was

simply a matter of the timing . . . .” Id. at 684.

Ms. Yager met with Ms. Miller and her mother again in late September

1999. She said she was sorry the process was taking so long, but “[s]he was not

clear about a time line . . . because she couldn’t get a time line from human

resources.” Id. at 687. In an effort to garner more information about the job

evaluation process, Ms. Matthewson contacted human resources in October. The

response from the human resources staff member indicated that

[a]s far as I know, those positions are being looked at and it is
expected that they will be upgraded to reflect more of your current
duties. Those positions will not be even looked at until next month
sometime, and should be completed prior to January. When the study
is done it is expected that they will include the items you mentioned
including job description, status and compensation. . . . Since they
have not even been started yet, it is hard for me to give you much
more info. Our compensation department will be working on them
along with your local management and Public Affairs management
here in California. Hope this helps – currently I don’t have more
definitive answers.

Id., vol. VI at 1289; id., vol. III at 689. Ms. Miller and her mother were “shocked

[and] upset,” id., vol. III at 689, by the response, and could not understand why

the process was taking so long “especially when [Ms. Yager] had adamantly said

that she had submitted all the paperwork necessary and that the job upgrade was

just around the corner . . . .” Id. at 690.

Ms. Yager was equally “devastated” to learn the upgrade review process

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was so delayed. Id., vol. IV at 894. She testified it was her “understanding, at

least in the fall of 1999, that [human resources] was, in fact, working on [the]

positions,” id. at 893, and it was her belief that completion of the process “was

imminent.” Id. at 894. Her perception from speaking with staff in the human

resources department was that “everything was on track for the job study to be

completed by the end of the year.” Id. at 947. Hence, she was “upset” to learn

that the process “had not even been started yet.” Id. at 894. It was very

important to her that the regular positions be created because she had “been

telling Ms. Matthewson and Ms. Miller that the process was happening and it

would be soon” and “that the job study would be completed by the end of the

year.” Id.

Ms. Yager had another meeting with Ms. Miller and her mother during the

first week of November to further discuss the upgrade process. Ms. Yager

confirmed that at the meeting Ms. Miller stated she “thought the company was not

treating her equitably . . . it wasn’t fair . . . [and] was discriminatory.” Id., vol. II

at 289. In an affidavit, Ms. Miller also stated she

knew that the traffic reporters were paid nearly the same that [she
was], but the traffic reporters did not perform any “lead” traffic
reporting duties and did not perform public affairs specialist duties.
It seemed very unfair and [she] could not find any other explanation
for these differences except [her] sex . . . . [She] complained to [Ms.
Yager] that [she] thought what the company was doing was
discriminatory, that it was not right, and that it was unfair.

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Id. at 340; see also id. at 289-90 (Ms. Miller stated her “pay was unfair compared

to the men in the department”). Ms. Yager informed the Human Resources

department that Ms. Miller “thought she was being treated unfairly, that she was

being discriminated against, and that she thought she was being treated differently

than male employees.” Id. at 290.

On November 17, Ms. Yager met with Alice Bisno, her then direct

supervisor, and two other members of the human resources department, to discuss

her request to create two new regular positions in her department. While Ms.

Yager had previously discussed the upgrade requests with Ms. Bisno, the meeting

“was the first time [they] actually talked about possible ways to reorganize” the

department. Id., vol. IV at 896. Ms. Yager testified that her understanding of the

purpose of the meetings, as well as her request for upgrades, was to move the jobs

from “hourly position[s] to . . . regular position[s].” Id. at 897. She did not recall

ever directly engaging in a conversation about eliminating Ms. Miller and Ms.

Matthewson’s hourly positions, nor was a “conscious decision” ever made in this

regard. Id., vol. I at 156. Rather, she and her colleagues “looked at what the

business needs of the operation were and we decided that those two part-time

positions were not serving the needs of the department and that we needed two

full-time positions. And it was my understanding that that’s what the two

employees were requesting as well.” Id.; see also id., vol. II at 298-300; id., vol.

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IV at 898-99. 10

On December 15, 1999, Ms. Miller and her mother again met with Ms.

Yager to inquire as to the status of the review process, and whether they would be

classified as regular employees by Christmas so that they could take paid vacation

over the holidays. Ms. Yager “told [them] there was no news . . . that the upgrade

process had still not been completed, and it would be maybe sometime in January

before . . . she could give [them] a final [report] on the upgrade completion.” Id.,

vol. III at 694. Ms. Yager apologized to the women for length of time it was

taking to complete the process. Ms. Miller testified that “she said, ‘I believe what

the company is doing is morally wrong, and I don’t agree with it, and I’m really

sorry. And if you can just hang on a little bit longer, it’s going to come through.

I promise you.’” Id. at 696.

After the holidays, Ms. Miller testified that Ms. Yager was unable to

provide the two women with any further information about the job evaluation

process. Ms. Miller stated that upon asking Ms. Yager “when [she and her

mother] could expect the upgrade . . . her response . . . was ‘I have no idea. I

have no idea.’” Id. at 702. On January 31, 2000, Ms. Miller again met with Ms.

Yager. At that meeting, Ms. Yager indicated that

10
Ms. Yager also affirmed that she was not in charge of how the upgrade
process would proceed, and that “every step of the way, [she called] human
resources and follow[ed] their direction.” Id., vol. VI at 907.

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 she didn’t have any further answers for me at that time. She told me,
encouraged me to talk to human resources about all of my concerns,
because she didn’t feel like she could answer those questions. She
still told me that the upgrade was a certainty. That wasn’t the issue.
The issue was when it was going to be completed. . . . And then . . .
we talked about the retroactive compensation . . . . [a]nd she said that
she thought that I should receive the retroactive compensation.

Id. at 706.

Soon after that meeting, Ms. Miller and her mother learned they would be

meeting with Ms. Yager and Ms. Bisno to address their employment concerns. In

preparation for the meeting, Ms. Miller sent a memorandum to Ms. Bisno stating

she hoped Ms. Bisno could “provide a detailed status report on our forthcoming

job upgrades.” Id., vol. II at 379. She noted that while she understood the new

job title for the upgraded position would be “Public Affairs Specialist II,” she still

had “no idea of the job responsibilities and parameters” of the position. Id. She

further inquired as to what the “‘grade’ classification and salary band” was for the

proposed new post. Id. She also stated “[i]n that it is illegal to do so, how am I

to continue performing daily job duties outside of my classification, as I’ve done

for over three years, without any promise of good faith or compensation on the

part of the company?” Id. at 380.

Ms. Bisno, along with Ms. Yager, met with Ms. Miller and her mother in

New Mexico on February 10, 2000. Ms. Bisno informed the women that as a

result of the job study, their current part-time hourly positions were being

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eliminated, and replaced by two new full-time regular positions. At that time,

neither Ms. Bisno nor Ms. Yager knew “what the compensation for the position[s]

would be.” Id., vol. III at 714.

Pursuant to AAA New Mexico policy, the new positions had to be posted

and Ms. Miller and her mother would have to apply for them. 11 They were

encouraged to apply for the new positions, but were also told there were no

absolute guarantees they would be selected. The women were informed they

would not receive any retroactive pay for the public relations duties they had

performed under their “clerk, intermediate” titles. Id. at 717. Nonetheless, Ms.

Miller stated that Ms. Bisno “said she would promise to investigate our concerns

and our complaints about discrimination.” Id., vol. II at 347. 12

11
Ms. Yager testified she asked Clarence Sandy, a human resources staff
member for the Automobile Club of Southern California who was assigned to
human resources for AAA New Mexico, about the posting process for the new
positions. He informed her Ms. Miller and her mother would have to apply for
them. She indicated Ms. Miller and Ms. Matthewson would probably be unhappy
to learn about the posting requirement, but he responded “[t]hat it was company
policy that any new position in the company needed to be posted.” Id., vol. II at
299; see also id. at 302.
There existed only two exceptions to AAA New Mexico’s new job posting
requirement. First, if an individual’s position was “being phased out through the
Staff Reduction Program,” id. at 389, “they have to be given first consideration,
[and second,] . . . if someone is returning from a medical leave, then they’re also
given first consideration.” Id., vol. VI at 1042; id., vol. II at 389.

Ms. Bisno testified her initial understanding of Ms. Miller and her
12

mother’s concerns regarding “discrimination” was that “perhaps other employees
were being treated better.” Id., vol. II at 327. She stated she knew the women
(continued...)

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 Ms. Yager was involved in drafting the job descriptions for the new

positions. She maintained that they were not written with any one person in mind

but instead were based on the business needs of her department. As she testified

at trial, she and her colleagues

looked at the needs of the department and wrote the job description around
that. And when [she eventually] shared the job description with [Ms.
Miller], [she] told her . . . “We can’t write this job description specifically
for you, because when you leave the company, then we have a job
description that fits you but not the needs of the business. And so what we
have to do is write the job description so it fits the need of the business and
choose the most qualified candidate.”

Id., vol. IV at 925. She also testified that if Ms. Miller had applied for job, she

would have considered her for the position because she “was the most qualified

candidate.” Id. at 927. She commented that

[e]ven though . . . there were additional things in the job description
that [Ms. Miller] hadn’t done before, I felt that it was something that
she could do. She could learn many of those things that she hadn’t
done in the past, and even though we were changing the focus of the
job from . . . the primary focus before was traffic reporting and we
were actually changing that to become a very minor part of the job
and the public affairs piece was the greater piece, I felt [Ms. Miller]
could do the job.

Id., vol. II at 300. Ms. Yager also noted that while the new position required

12
(...continued)
were dissatisfied with issues regarding their pay, benefits, and job titles. Id. at
322. However, it was not until after both Ms. Miller and Ms. Matthewson left
AAA New Mexico that she came to understand their claims of discrimination
were grounded on “some protected basis.” Id. at 322, 327.

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some heavy lifting, she had previously made accommodations for Ms. Miller in

this respect in her hourly position and would do the same in the new job.

The new jobs were not merely reclassified positions representing the work

previously being performed by Ms. Miller and her mother. Rather, they included

“everything they were doing plus things.” Id., vol. IV at 903, 918. Ms. Yager

noted that her department’s needs included positions in which the employees

could devote more hours to their tasks as well as perform additional job duties.

For example, she needed someone to act as an advocate on behalf of the company.

Ms. Yager commented that “[w]e analyze information, and based on the

information we analyze, propose legislation. So I certainly wanted [someone

doing legislative advocacy work].” Id., vol. II at 294. She also stated she needed

“someone to be able to synthesize, research and be able to come up with programs

based on research.” Id.

In regard to the position best suited for Ms. Miller, Ms. Yager testified

there were several aspects of the new job Ms. Miller did not perform as an hourly

employee. 13 In reviewing the job description for the new post, Ms. Yager noted

Ms. Miller

13
When asked to compare Ms. Miller’s performance of public affairs duties
against that of a job description for a similar regular post at the Automobile Club
of Southern California, Ms. Yager testified that under that job description, Ms.
Miller was not fulfilling all the duties that would be expected of a full-time
regular Public Affairs Specialist.

-20-
 wasn’t developing strategic approaches to project assignments. She
was doing limited research and investigation. She was not providing
technical authoritative information resource. She was not . . .
[c]omp[iling] and synthesiz[ing] information . . . . [S]he was not
evaluating “research findings and interpret[ing] for policy
development.” She was not tailoring “research results to become
[an] advocacy tool in [the] public forum. She was not recommending
“strategies and issues to management for policy development.” She
was doing very limited “influenc[ing] and persuad[ing] policy of
affiliate organizations.” . . . She was not . . . [acting as an] “advocate
within coalitions to further organizations, member and insured
interests.” She was not interpreting and refining “policy
incorporating affiliate and organizational feedback.”

Id. at 294-95. None of these tasks had previously been assigned to Ms. Miller in

her hourly position. Rather, Ms. Yager had been performing the tasks herself.

Likewise, there were duties inherent to a regular public relations position, like

being on-call for the company, that Ms. Miller was not performing.

Ms. Miller and her mother sent a memorandum to Ms. Bisno soon after the

February 2000 meeting outlining their understanding of what transpired and

asking a series of follow-up questions. Id., vol. VI at 1298-1300. Nothing in the

memorandum alleged discrimination based on protected status. On February 24,

Ms. Bisno informed Ms. Yager and the other human resources staff members

involved in the restructuring of Ms. Yager’s department that she

did not intend to respond to the memo . . . it’s all the same issues
discussed at our meeting in New Mexico. The employees simply do
not like the answers they got and, until we come to some resolution, I
don’t intend to change them and don’t see much value in repeating
them.

-21-
Id., vol. II at 381; see also id. at 332.

In early March 2000, Ms. Miller had a meeting with Clarence Sandy, the

human resources staff person assigned to AAA New Mexico, to “address some of

[her] concerns over departmental inequities as they relate to job title, description,

status, compensation and benefits.” Id. at 384. In a follow-up memorandum

memo to Mr. Sandy, Ms. Miller noted that all the male traffic reporters hired in

the PGA department had started at higher rates of pay than her starting rate of

pay, even though they came to the job “with little or no broadcast experience.”

Id. at 385. She further asserted that

I currently make a few cents more per hour than the two other Traffic
Reporters I trained and continue to manage, both men. I perform
“LEAD Traffic Reporter” operational duties while wearing the
second hat of “Public Affairs Specialist,” while these other
employees do nothing more than come and go to report traffic on a
part-time or back-up basis.

Id. While she understood that “club policy on compensation and benefits can vary

widely from department to department within the company,” id. at 386, she

nonetheless believed that “this type of arbitrary allocation [where she was

working 35 hours a week, but still being paid as a part-time hourly employee]

appears unusual in [her] experience and because it is arbitrary – inherently

discriminatory.” Id. 14 She also stated that as a result of the company’s

14
Ms. Matthewson sent a similar e-mail message to Ms. Yager on March 13,
(continued...)

-22-
“inequities and inconsistencies . . . in compensation,” she

felt particularly exploited. It’s led me to believe, after having
forthrightly expressed my concerns to [Ms. Yager] over the years
about compensation, lack of communication and direction, etc., that
the treatment I’ve received in this department as to compensation and
the denial of benefits, is egregiously unfair, retaliatory and
discriminatory.

Id. at 385.

In response, Mr. Sandy testified that “none of [Ms. Miller’s] statements . . .

would fit ‘discriminatory’ because hourlies don’t have benefits unless you became

a regular employee.” Id., vol. I at 214. He also testified that in response to Ms.

Miller’s allegation as to discriminatory payment practices in the PGA department,

he examined the departmental file but found Ms. Miller was making more than

any of the other men in her department. Hence, he determined there was “really

nothing there to support [a] discrimination [charge].” Id.

14
(...continued)
2000, stating she and Ms. Miller were
disadvantaged as compared to you and the majority of AAA New
Mexico employees who enjoy full benefits. . . . Of course, it is easy to
see that the results of these inequities have created a condition which
results in discrimination. I would think that the company would want
to administer their wages and benefits consistently from department to
department to eliminate the injustices [Ms. Miller] and I have
suffered.
Id. at 382. Ms. Matthewson was eventually dismissed from her position. Ms.
Yager testified that Ms. Matthewson was insubordinate and created a hostile
working environment by refusing, among other things, to perform certain job
duties asked of her.

-23-
 Ms. Yager usually met with her staff for annual employee evaluations in the

early spring, but she did not engage in a performance review with Ms. Miller in

February 2000. She testified that Ms. Miller’s

performance had not been good, but I certainly understood, and
wanted to be fair to her. She was very upset about the situation and I
understood her being upset with [the new job creation process]. It
took longer than any of us had ever anticipated, and I didn’t think it
would be fair to her to do an evaluation at that point. . . . [S]he had
spent all of her time writing all of these memos [regarding the
position evaluation process] and doing all this stuff . . . [so] I didn’t
think that [it] was fair to review her in this time period.

Id., vol. II at 304-05. She also noted that within a week of the meeting with Ms.

Bisno, Ms. Miller protested being evaluated in light of her unresolved questions

regarding the reorganization of the department and the new public affairs

position. Ms. Yager did perform an evaluation, however, for one of the men in

the department, who subsequently received a wage increase.

Ms. Miller declined to apply for the new position. At trial, she explained

I knew that they wanted me out, and they were going to get rid of me
no matter what. So I knew they had already made up their minds,
that no matter what hoops I jumped through to apply for this
position, I was not going to get the position. But beyond that . . . I
would have not been eligible for the position by a couple of criteria.

Id., vol. III at 738-39. In particular, Ms. Miller contended she did not meet two

of the qualifications listed for the new post: a minimum of five years experience

and a lifting requirement. Therefore, she thought that even if she applied for the

post, it would not have been offered to her. Ms. Yager testified to the contrary

-24-
that Ms. Miller was “way over” qualified for the position in light of her work

experience prior to joining AAA New Mexico. Id., vol. IV at 923. Moreover, as

referenced earlier, the company had already made accommodations to Ms. Miller

regarding her lifting limitations, and would have done the same for her in the new

post.

In light of Ms. Miller’s decision not to apply for the new position, Ms.

Yager contacted Mr. Sandy, who informed her that “once the full-time position

was filled . . . the other position . . . would end.” Id., vol. II at 310. After a

number of conversations between Ms. Miller and Ms. Yager, it was decided that

Ms. Miller’s last day of work would be May 5, 2000. Ms. Miller ended her

employment with AAA New Mexico on that day. After screening applicants for

the newly-created position, AAA New Mexico offered the job to a female

applicant. That applicant declined the company’s offer. AAA New Mexico then

offered the position to a male, Dan Ware, who accepted the job at an annual

starting salary of $35,000.

Ms. Miller filed this action in federal district court against AAA New

Mexico. As relevant to this appeal, she claimed the company discriminated

against her in violation of Title VII and the EPA. She specifically alleged AAA

New Mexico did not adequately pay her for the work she was performing as

compared to the compensation of men in her department, and that the company

-25-
paid the man who was offered the new position substantially more than she had

been earning doing the same job. She also asserted she suffered retaliatory

discharge under state and federal law when the company, in response to her

allegations that she was being discriminated against on the basis of her sex,

eliminated her position and forced her to apply for the newly created position.

Finally, she brought New Mexico state law claims for breach of implied contract

and breach of the covenant of good faith and dealing. These claims were

premised on her assertion that AAA New Mexico promised she would

automatically be placed in the upgraded position, but had, in bad faith, failed to

do so.

A magistrate judge handled the initial stages of Ms. Miller’s litigation,

including the discovery process during which Ms. Miller and the company had

some disputes. AAA New Mexico eventually moved for summary judgment on all

of Ms. Miller’s claims. The district court granted summary judgment on Ms.

Miller’s Title VII and EPA discrimination claims as well as her federal and state

retaliation claims. The remaining claims proceeded to trial. After both parties

presented their evidence, AAA New Mexico moved for judgment as a matter of

law. The district court reserved its ruling on this matter and the case was

submitted to the jury. The jury was unable to reach a verdict, and the court

declared a mistrial. The company renewed its motion for judgment as a matter of

-26-
law, which the district court subsequently granted. Ms. Miller now raises a host

of challenges to the district court’s rulings.

II

In order to address Ms. Miller’s challenge to the district court’s grant of

summary judgment on her discrimination and retaliation claims, we must also

disentangle a knotty discovery issue Ms. Miller raises. She requests that we

reverse a ruling of the magistrate judge denying her motion to compel AAA New

Mexico to produce specific documents and answer interrogatories. On appeal, she

contends the evidence denied to her by the magistrate judge’s ruling undermined

her ability to sufficiently challenge AAA New Mexico’s motion for summary

judgment. Ms. Miller’s appeal of the magistrate judge’s ruling is thus

inextricably intertwined with her challenge to the district court’s summary

judgment ruling.

As we discuss in more detail throughout this section, we determine the

district court implicitly rejected Ms. Miller’s challenge to the magistrate judge’s

ruling. So doing, and in the course of concluding the district court did not err in

granting summary judgment to AAA New Mexico, we also conclude the district

court did not abuse its discretion in rejecting Ms. Miller’s challenge to the

magistrate judge’s decision. Because our resolution of Ms. Miller’s discovery

-27-
claim is best understood in light of our examination of the district court’s grant of

summary judgment, we will address her challenges to the summary judgment

ruling and intersperse within our analysis the relevant aspects of her discovery

issues.

As mentioned earlier, “we review a grant of summary judgment de novo,

applying the same legal standard as the district court.” Coldesina, 407 F.3d at

1131 (citation omitted). Summary judgment is appropriate “if the pleadings,

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.” F ED . R. C IV .

P. 56(c). “When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving

party.” Steele v. Thiokol Corp., 241 F.3d 1248, 1252 (10th Cir. 2001).

A. Title VII discrimination claim

Pursuant to Title VII, Ms. Miller alleged she was compensated worse than

similarly situated male employees. We apply the McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973), framework for evaluating Title VII claims. See

Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002); Bullington

v. United Air Lines, 186 F.3d 1301, 1315 (10th Cir. 1999), overruled on other

-28-
grounds sub nom. by Boyler v. Cordant Techs., Inc., 316 F.2d 1137, 1140 (10th

Cir. 2003). Under McDonnell Douglas, Ms. Miller is required to first establish a

prima facie case of discrimination. In this context, we have stated “a female Title

VII plaintiff establishes a prima facie case of sex discrimination by showing that

she occupies a job similar to that of higher paid males.” Sprague v. Thorn Ams.,

Inc., 129 F.3d 1355, 1363 (10th Cir. 1997) (citing Meeks v. Computer Assocs.

Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994)). The district court determined Ms.

Miller failed to make out a prima facie case. We agree.

Ms. Miller contends there was a disparity in pay between what she received

and how the other men in the PGA department were compensated. She also

claims there was a disparity in compensation between what she was paid for doing

public affairs duties and what was paid to the man who was hired for the new

position. She has not established a prima facie case of gender discrimination with

respect to either of these claims.

First, Ms. Miller has not shown that she was paid less than any of the other

men in the PGA department. As noted earlier in the opinion, she and her male

colleagues in the PGA department were all classified in the same manner and

none of the men in the department ever earned more than she did barring a three

month period in 1997 during which one man earned eight cents an hour more.

Ms. Miller makes no effort to undermine these facts. Instead, she argues that

-29-
because she was performing additional public affairs duties as well as serving as

“lead traffic reporter” for the PGA department, her rate of pay should have been

substantially higher than that paid to the men in her department, who were only

performing traffic duties. While this may be true, her argument is not that she

was working the same hours as these men during which time she was doing far

more work but only getting paid marginally more. Instead, the record reflects she

was working thirty-five hours a week while the men in her department were only

working fifteen hours a week. 15 While it is uncontested Ms. Miller performed

more duties than the men in her department, she worked more hours than they did

and was compensated at a slightly higher rate than they were. Hence, Ms. Miller

has not shown she “occupied a job similar to that of higher paid males.” Id.

Nor can Ms. Miller establish her prima facie case by arguing there was

disparity in the pay she received and that paid to the man who accepted the new

post. She essentially argues she was replaced by Mr. Ware, who then earned

substantially more than she did for performing the same work. On these grounds,

she appears to argue she was treated less fairly than a similarly situated employee.

But Ms. Miller and Mr. Ware were not similarly situated employees

because they held two different positions. First, Ms. Miller was an hourly part-

15
In her March 2000 memorandum to Mr. Sandy, Ms. Miller commented
that the male employees “do nothing more than come and go to report traffic on a
part-time or back-up basis.” Id. at 385; see also Aplt. Reply Br. at 21-22.

-30-
time employee who performed a variety of traffic reporting and public affairs

duties. Conversely, Mr. Ware filled a newly-created, full-time, regular position.

Second, while there is no question Ms. Miller performed some of the duties that

were included within the job description for the new post, the record indicates

there were a number of central components of the new job that Ms. Miller did not

perform in her capacity as “clerk, intermediate.” Her case is similar to the female

employee in Sprague who took on some advanced duties similar to those

performed by other higher paid men in her company, but could not show that she

“de facto” held the same position as the men. Id. at 1359, 1363. In like fashion

to the employee in Sprague, Ms. Miller cannot show she was similarly situated

with Mr. Ware such as to make out a discrimination claim. Her status as an

hourly employee and the duties she performed in that position are not sufficiently

similar to the position held by Mr. Ware. We therefore agree with the district

court’s conclusion that Ms. Miller failed to make a prima facie case of gender

discrimination. 16

16
Ms. Miller’s additional contentions regarding her alleged adverse
treatment also fail. She asserts her starting pay in 1996 was less than that paid to
men who joined the PGA department between 1998 and 2000. While this is true,
none of the men during this time ever had hourly wages that surpassed Ms.
Miller’s. Second, she points to one instance in which a male employee in the
PGA department received an employment evaluation and raise in 2000, while she
did not. However, the record indicates Ms. Yager’s decision not to engage in an
employee evaluation with Ms. Miller in 2000 was in response, in part, to Ms.
Miller’s own protest that such an evaluation would be unfair in light of the
(continued...)

-31-
 In order to so conclude, we must return to the thorny discovery question

intertwined with Ms. Miller’s summary judgment challenges. This requires us to

detail some of the earliest stages of Ms. Miller’s litigation against AAA New

Mexico.

The majority of the pre-trial proceedings in Ms. Miller’s action were

conducted before a magistrate judge. During the course of discovery, a dispute

arose between Ms. Miller and AAA New Mexico. On November 15, 2002, Ms.

Miller filed a Combined Motion to Compel Answers to Interrogatories and

Production of Documents and Motion for Sanctions against the company. On

December 2, AAA New Mexico filed its response. It asserted that Ms. Miller’s

requests for discovery had been overly broad, and that it had long since objected

to them. The company noted that five and a half months after it had objected to

her discovery requests, on October 31, 2002, Ms. Miller sent a letter to AAA New

Mexico outlining her specific disagreement with the company’s discovery

objections and demanding a response in five days. By that point in time, the

discovery cutoff date of October 25, 2002 had passed and the magistrate judge

had denied a motion to extend discovery. The company had advised Ms. Miller

16
(...continued)
outstanding questions regarding her proper job classification and duties. Finally,
Ms. Miller makes vague reference to an equally vague notation found in Ms.
Yager’s notes regarding the job evaluation process stating, “sex change.” App.,
vol. II at 311. None of these things are sufficient to establish a prima facie case
of gender discrimination.

-32-
that it intended to respond but could not do so in the stated time frame. It pointed

out that it had responded to Ms. Miller’s letter on November 20, attempting to

narrow or resolve the discovery disputes, but Ms. Miller had not replied to the

letter. Given these circumstances, AAA New Mexico objected to Ms. Miller’s

motion to compel and for sanctions as untimely. It then reiterated some of its

prior objections regarding the breadth of Ms. Miller’s requests and also offered to

produce some additional documents. In her Reply, Ms. Miller agreed to some of

AAA New Mexico’s requested limitations regarding the breadth of a few of her

requests but also continued to make certain objections to the company’s refusal to

produce some information.

On December 23, 2002, prior to entry of any decision on Ms. Miller’s

motion to compel and for sanctions, AAA New Mexico moved for summary

judgment. Ms. Miller filed an additional motion for sanctions on December 26.

On January 21, 2003, the magistrate judge denied as untimely Ms. Miller’s motion

to compel and for sanctions, as well as her second motion for sanctions. The

court cited Local Rule 26.6, which requires a party to file a motion to compel

within twenty calendar days after a response. That “[r]ule states that ‘failure to

proceed within this time period constitutes acceptance of the objection.’” App.,

vol. II at 217. The magistrate judge also denied the motions for sanctions as

untimely, pointing out the discovery cutoff date of October 25, 2002. Id.

-33-
 On January 30, 2003, Ms. Miller filed a motion with the district court

pursuant to F ED . R. C IV . P. 72(a) objecting to the magistrate judge’s denial of her

motion to compel. The next day, she filed her brief in response to the company’s

motion for summary judgment. That document included the following language:

Ms. Miller has a motion to compel pending which seeks additional
discovery responses, including the personnel files of the males [sic]
traffic reporters and the public affairs specialist, which could create
additional factual support for [t]his Response if granted. Ms. Miller
requests supplemental briefing of these issues if her motion to
compel is granted.

Id. at 248. Throughout the rest of her summary judgment response, however, Ms.

Miller never explicitly stated what additional evidence she needed from AAA

New Mexico in order to sufficiently challenge its request for summary judgment.

In February, AAA New Mexico responded to Ms. Miller’s objection to the

magistrate judge’s ruling on her motion to compel and for sanctions, disputing her

claims that she had acted diligently in seeking additional discovery from the

company on an informal basis. Ms. Miller filed a reply. The record does not

reflect anything further regarding this matter until June 24, 2003, when the court

filed the final pre-trial order. The pre-trial order contained a section asking

whether there existed any discovery matters of which the court should be aware.

In response, the following appeared: “Yes, Plaintiff objects to the Magistrate’s

denial of her motion to compel and motion for sanctions . . . . The additional

discovery Plaintiff seeks relates primarily to comparable and similarly situated

-34-
employees.” Id. at 414.

In a telephonic hearing on July 11, 2003, the district court addressed what

it described as Ms. Miller’s Motion for Discovery Sanctions. The court stated it

had “considered the materials submitted in support and opposition” to the motion.

Aple. App. at 6. It then focused on AAA New Mexico’s belated production of

two memorandums from Ms. Yager, which it characterized as “extremely relevant

to the issue of breach implied employment contract.” Id. at 7. Concluding that

AAA New Mexico did not intentionally delay in producing the Yager

memorandums, the court declined to grant monetary sanctions but did order the

company to produce Ms. Yager for a supplemental deposition.

During the hearing, the court also indicated to the parties it was planning to

grant summary judgment on the sex discrimination, retaliation, and EPA claims.

At one point, the court addressed the parties and stated, “[i]f there are any

discovery disputes, I do not want those matters to fester . . . . So do you have any

questions of me?” Id. at 9. Ms. Miller’s attorney did not mention the motion to

compel nor did she object to the court’s verbal indication of its intention to grant

summary judgment to AAA New Mexico on the basis that she needed further

discovery. On July 28, the district court issued its partial summary judgment

ruling in favor of the company.

On appeal, Ms. Miller requests that in light of the district court’s failure to

-35-
respond to her Rule 72(a) objection, we reverse the magistrate judge’s denial of

her motion to compel. For the following reasons, we decline to do so.

Pursuant to 28 U.S.C. § 636(b)(1)(A), magistrate judges have the authority

to enter discovery rulings. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.

1997). “Review of the magistrate judge’s ruling is required by the district court

when a party timely files written objections to that ruling, and the district court

must defer to the magistrate judge’s ruling unless it is clearly erroneous or

contrary to law.” Id. Ms. Miller timely objected to the magistrate judge’s

discovery ruling, but there is no indication the district court explicitly ruled on

her objections to the denial of her motion to compel. Nonetheless, we may

properly construe a district court’s failure to address arguments raised in a Rule

72(a) objection “as an implicit denial of those arguments” and a refusal to

overrule the magistrate judge’s order. Hill v. SmithKline Beecham Corp., 393

F.3d 1111, 1116 (10th Cir. 2004); see also Alpine View Co. v. Atlas Copco AB,

205 F.3d 208, 219-20 (5th Cir. 2000). Based on our review of the record, we are

convinced the district court implicitly denied Ms. Miller’s Rule 72(a) challenge.

During the course of the district court’s telephonic hearing on Ms. Miller’s

sanction requests, the court stated it had reviewed all the materials in support of

and opposition to her requests for sanctions. The record indicates Ms. Miller’s

initial motion for sanctions was combined with her motion to compel. The parties

-36-
engaged in significant briefing in regard to this initial motion, as well in response

to Ms. Miller’s additional sanctions request. The magistrate judge’s ruling

addressed both of Ms. Miller’s requests for sanctions as well as her motion to

compel. In her Rule 72(a) objection to this ruling, Ms. Miller challenged the

denial of both her motion to compel and her motions for sanctions. She also

mentioned her pending motion to compel in her response to AAA New Mexico’s

motion for summary judgment, albeit in a very general manner. Likewise, the

pre-trial order indicates Ms. Miller again raised her outstanding discovery issues.

Taken together, we are convinced the district court was duly apprised of the scope

of Ms. Miller’s arguments relating to both her motion to compel and her motion

for sanctions. Given the court’s denial of her motion for sanctions in conjunction

with its subsequent order granting AAA New Mexico summary judgment on a

number of the claims implicated by her discovery requests, we conclude the

district court’s silence on Ms. Miller’s motion to compel was a conscious and

implicit denial of her discovery requests and a refusal to overrule the magistrate

judge’s order. See Hill, 393 F.3d at 1116; Alpine View Co., 205 F.3d at 219-20.

On appeal, Ms. Miller asks that we reverse the magistrate judge’s ruling.

In light of our conclusion that the district court implicitly rejected her motion to

compel, it is more appropriate for us to determine whether the district court

abused its discretion in so doing. See Cummings v. Gen. Motors Corp., 365 F.3d

-37-
944, 952-53 (10th Cir. 2004) (citing Motley v. Marathon Oil Co., 71 F.3d 1547,

1550 (10th Cir. 1995)) (court of appeals will not set aside district court discovery

rulings absent abuse of discretion). In this regard, “[s]uch an abuse will occur

only when the judge renders ‘an arbitrary, capricious, whimsical, or manifestly

unreasonable’ judgment.” Id. at 953 (quoting Coletti v. Cudd Pressure Control,

165 F.3d 767, 777 (10th Cir. 1999) (further internal quotations and citations

omitted)). 17

We also note that if Ms. Miller’s true goal in challenging the denial of her
17

motion to compel was to reopen discovery so as to garner additional evidence
before the district court’s summary judgment ruling, she should have filed an
affidavit pursuant to F ED . R. C IV . P. 56(f) seeking a continuance and explaining
why she could not currently present facts to justify her opposition to the
company’s motion. Ms. Miller concedes she did not file such an affidavit. Aplt.
Reply Br. at 26. Her failure to do so further undermines her challenge to the
magistrate judge’s discovery order, as well as her challenge to the district court’s
grant of summary judgment to AAA New Mexico.
Ms. Miller nonetheless argues that taken as a whole, her discovery
pleadings, the statement regarding the pending motion to compel in her response
to AAA New Mexico’s motion for summary judgment, and her Rule 72(a)
objection are sufficient to satisfy Rule 56(f). We do not agree. Rule 56(f) “may
not be invoked by the mere assertion that discovery is incomplete or that specific
facts necessary to oppose summary judgment are unavailable.” Pasternak v. Lear
Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986). Moreover,
unverified statements in attorney memoranda, including a response opposing
summary judgment, are not sufficient for a Rule 56(f) continuance. Comm. for
the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). Ms.
Miller’s other attempts to halt the district court’s summary judgment ruling are
insufficient to square with our precedents.
We have held that “[w]here a party opposing summary judgment and
seeking a continuance pending completion of discovery fails to take advantage of
the shelter provided by Rule 56(f) by filing an affidavit, there is no abuse of
discretion [by the district court] in granting summary judgment if it is otherwise
(continued...)

-38-
 We conclude the district court did not abuse its discretion in implicitly

denying Ms. Miller’s Rule 72(a) objection. As discussed above, the court had

before it all of the arguments and materials it needed to make this determination.

Included within these materials was Ms. Miller’s response to AAA New Mexico’s

motion for summary judgment, in which she included only a very limited

statement indicating that the personnel files of the other male traffic reporters in

the PGA department as well as the personnel file for Mr. Ware, the man who held

the new job, might “create additional factual support” for her summary judgment

response. App., vol. II at 248. The statement in the pre-trial order was similarly

limited. See id. at 414. Ms. Miller provided no details in these materials

regarding how her opposition to AAA New Mexico’s motion for summary

judgment was undermined by the lack of additional discovery, nor did she file an

affidavit pursuant to F ED . R. C IV . P. 56(f). Under these circumstances, we cannot

say the district court’s implicit rejection of Ms. Miller’s motion was “arbitrary,

capricious, whimsical, or manifestly unreasonable.” Cummings, 365 F.3d at 953.

(...continued)
17

appropriate.” Pasternak, 790 F.2d at 832-33; see also Weir v. Anaconda Co., 773
F.2d 1073, 1082 n.10 (10th Cir. 1985) (listing cases). Hence, even if we were to
determine the district court did not implicitly deny Ms. Miller’s Rule 72(a)
motion to compel in the course of making its sanctions ruling and granting
summary judgment to AAA New Mexico, Ms. Miller’s failure to comply with
Rule 56(f) would also undermine her challenge on appeal.

-39-
 B. EPA claim

Ms. Miller contended AAA New Mexico violated the EPA because it paid

her a lower wage than members of the opposite sex doing equal work. To make a

prima facie case under the EPA, Ms. Miller

has the burden of proving that (1) she was performing work which
was substantially equal to that of the male employees considering the
skills, duties, supervision, effort and responsibilities of the jobs; (2)
the conditions where the work was performed were basically the
same; (3) the male employees were paid more under such
circumstances.

Sprague, 129 F.3d at 1364 (quoting Tidwell v. Fort Howard Corp., 989 F.2d 406,

409 (10th Cir. 1993) (further citations omitted)). We agree with the district

court’s determination that Ms. Miller failed to make out a prima facie case.

Ms. Miller’s EPA claims mirrored her Title VII claims. She asserted the

men in the PGA department were better compensated than she, and that Mr. Ware

was paid more than she was for a substantially similar position. As we discussed

above, the evidence indicates Ms. Miller was paid a higher hourly wage than all

the men in her department. Her comparison of her work with Mr. Ware’s job is

equally faulty.

When addressing the “equal work” requirement of the EPA, we do not

construe it broadly. “[W]e have stated that failure to furnish equal pay for

‘comparable work’ or ‘like jobs’ is not actionable.” Id. (citations omitted).

Instead, “in order to prevail in such an EPA action, the jobs must be substantially

-40-
equal in terms of skill, effort, responsibility, and working conditions.” Id.

(internal quotations and citation omitted). Again, much like the employee in

Sprague who performed some but not all of the duties of higher paid male

employees, id. at 1364-65, the same can be said of Ms. Miller. As we have

thoroughly discussed, the record makes clear that while Ms. Miller did perform

some of the duties that were included in the newly created post, she did not

perform all of those duties. She simply has not made a prima facie case that the

jobs were substantially similar. As with the Title VII claim addressed above, we

conclude the district court did not err in its summary judgment ruling, or abuse its

discretion in impliedly rejecting Ms. Miller’s Rule 72(a) motion.

C. Retaliation claim

Finally, Ms. Miller claimed AAA New Mexico retaliated against her by

eliminating her hourly position and forcing her to apply for the new post after she

had complained of sex discrimination. In order to state a prima facie case of

retaliation, a plaintiff must demonstrate that (1) she was engaged in protected

opposition to discrimination; (2) she suffered an adverse employment action; and

(3) a causal connection existed between the protected activity and the adverse

employment action. Duncan v. Manager, Dep’t of Safety, City & County of

Denver, 397 F.3d 1300, 1314 (10th Cir. 2005); Stover v. Martinez, 382 F.3d 1064,

-41-
1070-71 (10th Cir. 2004); see also Shovelin v. Central N.M. Elec. Co-op, Inc.,

850 P.2d 996, 1006 (N.M. 1993) (setting out New Mexico state law requirements

for retaliatory discharge claim). Once a plaintiff establishes her prima facie case,

the burden shifts to the employer to offer a facially legitimate rationale for the

adverse action. The burden then shifts back to the plaintiff to show the

employer’s explanation is pretext. Stover, 382 F.3d at 1071. The district court

determined that Ms. Miller failed to make her prima facie case because there was

not a sufficient causal connection between her complaints of discrimination and

the elimination of her position and application requirement for the new post. The

court also held Ms. Miller had failed to show the company’s decision to perform a

job study, create two new regular positions, and eliminate her hourly part-time

position, was pretextual. We agree.

We find no real contest regarding Ms. Miller’s assertions that she satisfied

the first two prongs of the prima facie analysis for retaliation claims. The record

indicates that in early November 1999, during a meeting with Ms. Yager, Ms.

Miller first stated she “thought the company was not treating her equitably . . . it

wasn’t fair . . . [and] was discriminatory.” App., vol. II at 289. Lodging a

discrimination complaint is protected activity for retaliation claim purposes. See

O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1255 (10th Cir. 2001); Archuleta

v. Colo. Dep’t of Insts., Div. of Youth Servs., 936 F.2d 483, 486 (10th Cir. 1991);

-42-
Martinez v. City of Grants, 927 P.2d 1045, 1053 (N.M. 1996). Likewise, the

elimination of Ms. Miller’s hourly position, along with the company’s failure to

promote her as allegedly promised, constitute adverse employment actions.

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (“A tangible

employment action constitutes a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.”); Duncan,

397 F.3d at 1314 (“An adverse employment action must be materially adverse to

the employee’s job status. The adverse action must amount to a significant

change in employment status, such as firing, failing to promote, reassignment

with significantly different responsibilities, or a decision causing a significant

change in benefits.”) (quotation omitted). 18

The evidence also indicates that soon after Ms. Miller stated she believed

18
We note that generally, “[i]n order for a plaintiff to assert that her
employer retaliated against her by failing to hire, rehire, or promote her, that
employee must have applied for the position she was denied.” Stover v. Martinez,
382 F.3d 1064, 1072 (10th Cir. 2004). Here, Ms. Miller did not apply for the new
position. But at this point in our analysis, we are not entirely convinced this fact
wholly undermines her retaliation claim. Even if Ms. Miller could not assert that
AAA New Mexico’s failure to promote her was an adverse employment action,
her hourly position was terminated. Moreover, her retaliation allegations appear
to go hand in hand, rather than to be mutually exclusive. It was the final action of
AAA New Mexico in restructuring the PGA department, in which Ms. Miller’s
current hourly position was eliminated and she was required to apply for the new
job which supposedly had the same duties as her former post, that was the alleged
retaliatory act committed by AAA New Mexico.

-43-
she was being treated in a discriminatory fashion, Ms. Yager and Ms. Bisno met,

on November 17, 1999, to begin discussing how the PGA department might be

reorganized to include two new full-time regular positions. During the course of

these meetings and into January 2000, it was decided that Ms. Miller’s hourly

position would be eliminated, and she would have to apply for the newly created

position pursuant to AAA New Mexico policy. This decision was announced to

Ms. Miller in early February 2000, three months after her first articulated

allegations of discrimination. It was not until after Ms. Miller decided not to

apply for the new position and it was determined her last day at AAA New

Mexico would be May 5, 2000, however, that her hourly position was eliminated.

The district court determined Ms. Miller failed to show a causal connection

between her complaints of discrimination and the adverse employment actions she

suffered. We agree, although on a slightly different timeline. The district court

reasoned Ms. Miller began to complain of adverse treatment in March 1998, but it

was not until May of 2000, nearly two years after her initial allegations of unfair

treatment, that Ms. Miller’s position was eliminated. On these grounds, the court

determined that a sufficient temporal proximity was lacking between Ms. Miller’s

allegations of unfair treatment and her job termination. We draw a more narrow

time frame.

Ms. Miller certainly expressed discontent from at least March 1998, and

-44-
throughout her employment at AAA New Mexico, regarding her compensation,

job title, and work duties. But it was not until early November 1999 that she

made any specific allegations regarding being treated in an unfavorable manner

because of her sex. Within that same month, Ms. Yager and Ms. Bisno initiated a

series of meetings to discuss how to restructure the PGA department and

eventually settled on the elimination of Ms. Miller’s hourly position and the

creation of a new post for which she could apply. Ms. Miller was informed of

these facts in February 2000, and in May of that year her hourly position was

eliminated at the conclusion of her employment with AAA New Mexico. Hence,

instead of a two year window of time between Ms. Miller’s general complaints

about her treatment and her departure from the organization, as found by the

district court, there exists a six month window between Ms. Miller’s allegations

of discrimination based on her sex and the elimination of her post. Even within

this more narrowly circumscribed timeline, however, Ms. Miller failed to satisfy

the causal connection prong of her prima facie case.

We have held “[t]he causal connection may be demonstrated by evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kan.,

Inc., 683 F.2d 339, 343 (10th Cir. 1982). However, “unless the [adverse action]

is very closely connected in time to the protected activity, the plaintiff must rely

-45-
on additional evidence beyond mere temporal proximity to establish causation.”

Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (citing Anderson

v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). In Meiners, we

determined that a “six-week period between protected activity and adverse action

may be sufficient, standing alone, to show causation, but a three-month period,

standing alone, is insufficient.” Id. Here there exists a six month window

between Ms. Miller’s allegations of sexual discrimination and the elimination of

her hourly position. This alone is insufficient to establish a prima facie case, and

Ms. Miller does not point to much other evidence to support her cause.

Ms. Miller generally argues that the slow progress of the job review process

led her to “suspect that something unlawful accounted for the delay.” Aplt. Br. at

39. That seeming unlawfulness was connected to Ms. Miller’s perception that she

was being compensated less favorably than the men in her department. But her

own suppositions regarding the delay in the job review process are not sufficient

to establish a prima facie case of retaliation. Cf. Amro v. Boeing Co., 232 F.3d

790, 798 & n.6 (10th Cir. 2000) (employee’s own perceptions of lack of fair

treatment insufficient to state Title VII claim); Kelley v. Goodyear Tire & Rubber

Co., 220 F.3d 1174, 1177 (10th Cir. 2000) (“A plaintiff cannot create a triable

issue of fact by making an assertion without supporting facts.”); Jones v. Denver

Post Corp., 203 F.3d 748, 753-54 (10th Cir. 2000) (manager’s perception of

-46-
employee performance is relevant for demotion claim, not employee’s own

evaluation of performance). She also argues that AAA New Mexico effectively

“scrapped its promise” to upgrade her and “then set about finding a way to get rid

of [her] . . . without it looking illegal.” Aplt. Br. at 40. A review of the record

negates this argument.

Long before Ms. Miller raised her concerns regarding discrimination, Ms.

Yager had been advocating for changes in the PGA department. In particular, and

in large measure due to Ms. Miller’s inquiry as to whether she was being

appropriately compensated for her work, Ms. Yager sought to obtain two regular

employees in her department to perform public affairs duties, rather than having

the work done by part-time hourly employees. During a series of depositions, Ms.

Yager was repeatedly questioned regarding the process of deciding to eliminate

Ms. Miller’s hourly position and to create a new post in its place. Ms. Yager

consistently testified that

[t]here wasn’t a conscious decision to eliminate positions. It was
looked at what the business needs of the operation were and we
decided that those two part-time positions were not serving the needs
of the department and that we needed two full-time positions. And it
was my understanding that that’s what the two employees were
requesting as well.

App., vol. I at 156. When asked the same question later, Ms. Yager responded:

“I don’t think my answer is any different to that question. We had two hourly

positions which . . . were not meeting the needs of the department, and so when

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we looked at all the information, we knew that full-time positions were needed.”

Id. When questioned yet again as to why she did not just seek to upgrade the

positions rather than create two new posts, she stated

I don’t see that as a separate entity. When we looked at the tasks that
were currently being done and the tasks that needed to be done, and
we knew that the part-time hours were not enough, we knew that the
employees were upset by being in part-time positions, we looked to
see what would serve the needs of the department to the best of our
ability.

Id. at 209. 19

Ms. Bisno was posed with a similar series of questions, and responded in

kind. She stated that the decision to eliminate the two hourly positions was made

at the time that we were evaluating what we needed to do for public
affairs in AAA New Mexico, what kinds of positions we needed.
And since the determination was that we needed – we wanted two
full-time positions rather than two part-time hourly positions, that’s
when the discussion was started . . . . [T]he plan when we started
developing [it] was that we were not [going to] have hourly
positions, we were [going to] have full-time positions.

Id., vol. II at 326. When pressed as to why they eliminated the hourly jobs rather

than reclassifying their status from hourly to regular, she stated

While Ms. Yager may have expressed a desire and intent to have Ms.
19

Miller serve in the regular position once it was created, the record indicates that it
was “company policy that any new position in the company needed to be posted,
and that [Ms. Miller] would have to apply for the position[].” App., vol. II at
299. When Ms. Yager learned of this fact, she knew Ms. Miller would be
disappointed and upset, but Ms. Yager “thought it was just a matter of policy so
[she] didn’t think it was an unfair or unreasonable request to make.” Id. at 300.

-48-
 [b]ecause . . . aside from the hours, the positions were different. We
looked at not only what we were doing, but what we needed to do,
where we had to be in the future, and what the responsibilities of the
positions ought to be. And they were not the same as we had under
the current arrangement. So they were different enough. And
constantly in conversation with our hierarchy, with Human
Resources, the decision was, we would eliminate the old, create the
new.

Id. at 326-27. She further commented that “if [a] position changes sufficiently,

you essentially eliminate the old group of positions and you create new

positions.” Id. at 327. When pressed by counsel as to why the hourly positions

were not merely reclassified as regular, she again emphasized that the

existing position as defined by the duties that were being done was
not deemed to be the one that we needed for Public Affairs and AAA
New Mexico, that we needed different responsibilities . . . . My
understanding of a reclassification is when you look at the existing
position and you evaluate the existing position and decide, for
whatever reason, whether internal or external, that you need to
change where you have that. The whole position gets moved. But
the position itself doesn’t change. The job duties don’t change. The
qualifications needed don’t change.

Id. at 329 (emphasis added). Ms. Miller has pointed to nothing contrary in the

record except her own assertions that she was entitled to be placed in the new

position. We thus conclude she has failed to “provide evidence other than

temporal proximity to establish a prima facie case.” Meiners, 359 F.3d at 1231.

We also agree with the district court’s ruling on pretext. Ms. Miller’s

pretext argument seems to dovetail with her prima facie position regarding AAA

New Mexico’s elimination of her hourly post and creation of the regular position.

-49-
A grant of summary judgment is appropriate where a plaintiff cannot meet the

burden of proving that an employer’s articulated nondiscriminatory reason for an

alleged retaliatory action is pretextual. Kelley, 220 F.3d at 1174. “An employee

may demonstrate pretext by showing the employer’s proffered reason was so

inconsistent, implausible, incoherent, or contradictory that it is unworthy of

belief.” Stover, 382 F.3d at 1071 (citing Bausman v. Interstate Brands Corp., 252

F.3d 1111, 1120 (10th Cir. 2001)). Ms. Miller has failed to do so here.

In an attempt to show AAA New Mexico’s elimination of her position and

creation of the new post were pretext for dismissing her for her complaints of

discrimination, Ms. Miller cites to Butler v. City of Prairie Vill., 172 F.3d 736

(10th Cir. 1999). While Butler does present some initial similarities to Ms.

Miller’s case, we are not persuaded it supports her pretext argument.

In Butler, an employee brought a retaliation claim under the Americans

with Disabilities Act (ADA), asserting he was terminated as a result of his

requests for accommodations under the ADA. Id. at 751-52. In response, his

employer maintained his position was eliminated as a result of the reorganization

of the department in which he worked. On appeal, we held that genuine issues of

material fact existed as to whether the employer’s proffered reason for

terminating the plaintiff was pretextual. We noted most of the plaintiff’s former

job duties were resurrected in a new position nine months after the departmental

-50-
reorganization and his termination. Moreover, after he had requested an

accommodation, “he received more work than he could successfully complete and

his supervisors complained about having too much work because they had to

cover for him.” Id. at 752. Finally, his position was the only one to be eliminated

while it was occupied. Id. We also pointed to the temporal proximity of other

events during the plaintiff’s employment which supported his pretext argument.

For example, the employer’s “decision to reorganize [the department] occurred

within weeks of Plaintiff’s delivery of a complaint” to the mayor about his

supervisor, id., and his work evaluations “declined sharply within the months

after” he informed his employers of his disability and need for accommodations.

Id. We also commented that the duties of the new position appeared to

substantially overlap the duties the plaintiff had previously held. Id. at 750.

These facts together created genuine issues of material fact regarding whether the

employer’s reasons for terminating the plaintiff were pretextual.

Ms. Miller claims her case is sufficiently analogous to Butler to warrant a

reversal of the district court’s grant of summary judgment to AAA New Mexico

on her retaliation claim. We disagree. First, in contrast to Butler, Ms. Yager

instigated the job study and departmental reevaluation process long before Ms.

Miller ever alleged she was being discriminated against because of her sex. As

we have already stated, Ms. Yager’s initiation of this process was driven in large

-51-
measure by Ms. Miller’s own questions as to whether she was appropriately

classified and paid for the work she was performing. Moreover, Ms. Yager, as

well as Ms. Bisno, testified it was always their understanding that as a result of

the job study, there would no longer be two hourly part-time positions in the PGA

department, but instead the department would have two full-time hourly positions.

While the review of the department’s needs and the final creation of the two new

positions did not occur until after Ms. Miller raised her claims of discrimination,

we do not think this temporal proximity is sufficient to undermine the record

presented by AAA New Mexico that it had been involved in the job evaluation

process for some time, and that the decision to create two regular positions in lieu

of the hourly posts was anything other than a legitimate business decision. 20

20
We are also not convinced by Ms. Miller’s argument that failure to
exempt her from AAA New Mexico’s requirement that the new jobs be posted
was evidence of pretext. AAA New Mexico’s posting policy indicates that “[a]ll
positions are listed in the job vacancy bulletin, ‘Opportunity Knocks.’ Exceptions
may be made to: Consider [an] employee returning from a family, pregnancy or
illness/injury leave of absence, if qualified for a job guarantee. Consider an
employee whose position is being phased out through the Staff Reduction
Program.” Id. at 389. Ms. Miller makes no convincing argument as to how she
would be exempted under the policy.
We further disagree that the close timing of Ms. Matthewson’s termination
in relation to the events in this case is additional evidence of pretext. Ms.
Matthewson, who is not a party in this litigation, was fired within a month of the
February 2000 meeting for insubordination and for creating a hostile work
environment. But Ms. Miller poses no challenge to the articulated reasons given
by AAA New Mexico for her mother’s termination. Rather, she merely contends
that the close proximity of her mother’s firing with her own allegations of
discrimination creates pretext as to AAA New Mexico’s decision to eliminate Ms.
(continued...)

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 Second, Ms. Miller argues that similar to the employer in Butler, AAA New

Mexico eliminated her position but then created a new position with substantially

the same job duties. We have already rejected this similar argument in the

context of Ms. Miller’s Title VII and EPA claims, and do so again here. The new

job held by Dan Ware was not merely a refashioning of the work previously

performed by Ms. Miller. Rather, it represented a significant refocus in job duties

as well as additional duties that Ms. Miller had not performed in her hourly post.

Ms. Miller also contends Ms. Bisno’s statement that she did not intend to

respond to Ms. Miller’s concerns regarding discrimination is additional evidence

of pretext. We are not convinced. Nothing in the follow-up memorandum Ms.

Miller and her mother sent to Ms. Bisno after the February 2000 meeting

indicated they had any workplace discrimination concerns. Nor has Ms. Miller

presented anything to undermine Ms. Bisno’s statements that it was not until after

Ms. Miller quit working for the company that Ms. Bisno became aware her claims

of discrimination were based on “some protected basis.” App., vol. II at 322,

327. Hence, Ms. Miller has presented nothing to indicate Ms. Bisno’s

20
(...continued)
Miller’s hourly position and create a new regular position for which she could
apply. Even if the temporal proximity of her mother’s firing with Ms. Miller’s
allegations of discrimination might support her initial retaliation charge, Ms.
Miller has failed to demonstrate pretext by showing AAA New Mexico’s reason
for firing her mother “was so inconsistent, implausible, incoherent, or
contradictory that it is unworthy of belief.” Stover, 382 F.3d at 1070-71.

-53-
disinclination to respond to the women’s articulated concerns, none of which

addressed issues of sex discrimination, is further evidence that AAA New Mexico

intended to retaliate against Ms. Miller for her claims of discrimination.

Finally, we reject Ms. Miller’s claim that the process by which the AAA

Texas office treated an employee in a situation somewhat similar to Ms. Miller’s

supports her pretext argument. Ms. Miller asserts that around the same time AAA

New Mexico was engaged in the job study for the new position, the AAA office

in Texas was engaged in a similar process. The Texas organization was in the

final stages of receiving approval to fill a newly created Public Affairs Specialist

position and in the mean time, was given permission by human resources to

employ a woman named Rose Rougeau as a part-time temporary hourly employee.

Ms. Rougeau was to perform the duties of the soon to be finalized position. Once

final approval for the position was received, the Texas office had permission to

migrate Ms. Rougeau from the temporary hourly position into the regular post.

Ms. Bisno, who was involved in this process, testified that “when we arranged the

temporary hours, it was with the understanding that if the relationship worked out

satisfactorily when the position was created, that [Ms. Rougeau] would be moved

into it.” Id. at 325. She also stated Ms. Rougeau and the Texas office “knew

what duties she was hired to perform, but [Ms. Rougeau] was aware that at the

time we did not have a position to offer her.” Id. at 324. Ms. Rougeau did not

-54-
oppose the terms of this arrangement, and after working on a temporary hourly

part-time basis for about four months, and upon the finalization of the regular

Public Affairs Specialist position, she moved into that job without having to apply

for it.

Based on the events which occurred in the Texas AAA office, Ms. Miller

contends AAA had a policy of automatically transferring hourly employees into

regular positions and should have done the same for her. She argues the

company’s failure to do so is further evidence of pretext. While the two

situations do bear a measure of similarity, we are not convinced the facts

surrounding Ms. Rougeau’s job advancement are sufficiently analogous to Ms.

Miller’s case to support her argument. In contrast to Ms. Rougeau’s situation,

when Ms. Miller began working for AAA New Mexico, she began as an hourly

employee and continued to do so throughout her tenure for the company. Nor was

any promise made to Ms. Miller in the hiring process that a regular position was

on the verge of creation and immediately available for her to fill if she was

interested. Furthermore, unlike Ms. Rougeau, who was specifically hired to

perform the duties of a Public Affairs Specialist, despite the salaried position not

being quite yet finalized, Ms. Miller was hired to perform traffic reporting duties

within an established clerk position. It was only later during her time at the

company that Ms. Miller agreed to take on additional public affairs duties.

-55-
Therefore, the facts surrounding Ms. Rougeau’s advancement are inapposite to

Ms. Miller’s situation and insufficient to support her claims of pretext.

In conclusion, Ms. Miller has made numerous broad assertions in an

attempt to show that AAA New Mexico’s decision to eliminate her hourly

position and create a new post for which she was required to apply was pretext for

its alleged retaliation against her for making a discrimination claim. Viewing

these assertions as whole, we agree with the district court that Ms. Miller has

failed to show that the specific manner in which AAA decided to reorganize the

PGA department was pretext for releasing her.

Nor are we persuaded the district court abused its discretion in implicitly

rejecting Ms. Miller’s Rule 72(a) motion regarding this claim. In the assorted

material before the district court, Ms. Miller asserted generally that she needed a

variety of additional documents. These included information on how other

complaints of employment discrimination or retaliation were handled by AAA

New Mexico, as well as any documentation regarding her own claims of

discrimination; personnel files regarding other public affairs specialist positions

with the larger AAA organization; any additional documents in Ms. Yager’s

possession regarding Ms. Miller or Ms. Matthewson; and any documents having

to do with Ms. Miller’s job evaluations and the job study process. As noted

earlier, however, Ms. Miller did not highlight in her response to AAA New

-56-
Mexico’s motion for summary judgment what additional information she was

lacking, and how the presence of such evidence would support her in undermining

AAA New Mexico’s motion for summary judgment on her retaliation claims.

Rather, the single sentence in her summary judgment response seems to speak

more in terms of her Title VII and EPA claims and does not make any direct

reference to her retaliation claims. Ms. Miller’s statement included in the pre-

trial order is similarly silent regarding her retaliation claims. Nor did she file a

Rule 56(f) affidavit. Finally, in her reply brief on appeal, Ms. Miller limits her

discovery argument to her Title VII and EPA claims stating “if remand occurs on

the discrimination or EPA claims, production should too.” Aplt. Reply Br. at 26.

Coupled with our determination that the district court did not err in granting

summary judgment to AAA New Mexico on Ms. Miller’s retaliation claims, we

conclude the district court did not abuse its discretion in implicitly denying her

Rule 72(a) motion.

III

We finally address Ms. Miller’s argument that the district court erred in

granting judgment as a matter of law to AAA New Mexico on her claims for

breach of an implied employment contract and the covenant of good faith and fair

dealing. A close read of the trial record indicates the district court permitted Ms.

-57-
Miller’s breach of implied contract claim to be presented to the jury on very

narrow grounds. The court construed Ms. Miller’s claim to be that, after

allegedly agreeing to place Ms. Miller in a promoted position and after Ms. Miller

allegedly fulfilled the duties of the new position, AAA New Mexico retroactively

altered the terms of the agreement by failing to place Ms. Miller into the position

once it was finally created. The court concluded such a claim was not barred as a

matter of law, and permitted evidence to be presented to the jury. The jury was to

determine if, in fact, AAA New Mexico had entered into such an agreement with

Ms. Miller, and if so, whether she was entitled to retroactive pay in light of AAA

New Mexico’s failure to comply with the alleged contract.

After each side presented its evidence, the company moved for judgment as

a matter of law. While the district court expressed great skepticism that sufficient

evidence existed to support Ms. Miller’s claim, it nonetheless reserved its ruling

on the company’s motion and referred the matter to the jury. The court declared a

mistrial after the jury was unable to reach an unanimous verdict on Ms. Miller’s

claims. In accordance with F ED . R. C IV . P. 50(b)(2)(B), AAA New Mexico

renewed its motion for judgment as a matter of law. The court subsequently ruled

in the company’s favor, reasoning that Ms. Miller had failed to point to “any

specific and binding promise by AAA,” app., vol. II at 552, that would permit a

jury to determine the company had impliedly contracted with Ms. Miller to

-58-
upgrade her position, or that she should receive retroactive compensation.

AAA New Mexico presents two alternative arguments in challenging Ms.

Miller’s appeal on this issue. It initially contends that pursuant to the New

Mexico Court of Appeals rulings in Stieber v. Journal Publ’g Co., 901 P.2d 201,

204 (N.M. Ct. App. 1995), and Gormley v. Coca-Cola Enters., 85 P.3d 252, 259

(N.M. Ct. App. 2003), aff’d on other grounds, 109 P.3d 280 (N.M. 2005), Ms.

Miller’s at-will status precludes her implied breach of contract claim as a matter

of law. In the alternative, it contends that even if Ms. Miller was entitled to bring

the contract claim, she failed to present sufficient evidence to permit a jury to

determine that such a contract existed. Ms. Miller’s implied contract claim fails

under either approach. 21

A. Claim barred as a matter of law

We begin by noting that we need not employ the same analysis relied upon

by the district court. Rather, “we may affirm the judgment of the district court on

any grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court.” V-1 Oil Co. v. Means, 94

21
In light of our conclusion that Ms. Miller’s implied breach of contract
claim fails, we need not decide whether the district court erred in granting
judgment as a matter of law on her breach of the covenant of good faith and fair
dealing claim. We likewise need not address her associated challenges to the
district court’s jury instructions on her breach of contract claim, or its limitations
on damages available for the same.

-59-
F.3d 1420, 1423 (10th Cir. 1996); see also United States v. Davis, 339 F.3d 1223,

1227 (10th Cir. 2003); Dominion Video Satellite, Inc. v. EchoStar Satellite Corp.,

269 F.3d 1149, 1157 (10th Cir. 2001). Addressing the company’s first argument

against Ms. Miller, we conclude that as a matter of New Mexico law, Ms. Miller’s

implied contract claim against AAA New Mexico was precluded on the basis of

her at-will employment status.

AAA New Mexico contends that Stieber and Gormley wholly control the

disposition of this case and bar any implied contract action by Ms. Miller. While

we inevitably determine the rationale underlying Stieber and Gormley supports

the company’s argument, we are not entirely persuaded these two cases

automatically preclude Ms. Miller’s claims. Stieber and Gormley certainly do

place limits on an at-will employee’s ability to bring certain types of implied

contract claims. However, those two appellate court cases do not definitively

answer the question at issue here: can an at-will employee bring an implied

contract claim for an employer’s failure to fulfill promises to make future changes

to a job?

When assessing the propriety of a district court’s disposition of state law

claims, we have the “duty to apply state law as announced by the state’s highest

court.” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1230 (10th Cir. 2000). Absent

controlling precedent, we “must attempt to predict how the state’s highest court

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would resolve the issue.” Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d

1175, 1180 (10th Cir. 2005); see also Rancho Lobo, Ltd. v. Devargas, 303 F.3d

1195, 1202 n.2 (10th Cir. 2002); FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th

Cir. 2000). “In conducting our inquiry, we are free to consider all resources

available, including decisions of New Mexico courts, other state courts and

federal courts, in addition to the general weight and trend of authority.”

Schuchmann, 235 F.3d at 1225. Decisions of intermediate courts, while not

controlling authority, may be evidence for “ascertaining state law which is not to

be disregarded by a federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.” Rancho Lobo, Ltd.,

303 F.3d at 1202 n.2 (quoting Webco Indus., Inc. v. Thermatool Corp., 278 F.3d

1120, 1132 (10th Cir. 2002) (further internal citations omitted)).

In New Mexico, employment contracts are generally for an indefinite

period and deemed to be at-will. Garcia v. Middle Rio Grande Conservancy

Dist., 918 P.2d 7, 10 (N.M. 1996); see also Hartbarger v. Frank Paxton Co., 857

P.2d 776, 779 (N.M. 1993). “An at-will employment relationship can be

terminated by either party at any time for any reason or no reason, without

liability.” Hartbarger, 857 P.2d at 779. There exist two exceptions to this rule,

however: “wrongful discharge in violation of public policy (retaliatory discharge),

and an implied contract term that restricts the employer’s power to discharge.”

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Id.

A majority of New Mexico at-will employment implied contract cases

address the standard question of whether an implied contract has “restrict[ed] the

employer’s power to discharge.” Id.; see also id. at 786-87 (neither company

policies nor verbal and written statements by employer were sufficiently explicit

to create an implied contract limiting employer’s ability to terminate employee

without just cause); McGinnis v. Honeywell, Inc., 791 P.2d 452, 457-58 (N.M.

1990) (implied contract existed by virtue of company’s published policies that

altered employer’s ability to fire employee at-will); Forrester v. Parker, 606 P.2d

191, 192 (N.M. 1980) (company personnel policy guide sufficient to create

implied contract limiting employer’s right to discharge employee without just

cause); Hudson v. Vill. Inn Pancake House of Albuquerque, Inc., 35 P.3d 313, 318

(N.M. Ct. App. 2001) (policies outlined in handbook and company’s general

adherence to policies, created an implied contract by which company could not

fire employee without just cause, or without following specified procedures);

Mealand v. E. N.M. Med. Ctr., 33 P.3d 285, 292 (N.M. Ct. App. 2001) (handbook

altered at-will relationship, thereby precluding employer from at-will discharge of

employee); Kiedrowski v. Citizens Bank, 893 P.2d 468, 472-73 (N.M. Ct. App.

1995) (terms of handbook and employer’s conduct raised genuine issues of

material fact warranting implied contract claim to be submitted to jury).

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 New Mexico law also makes clear that where an employment relationship

remains at-will, an employee cannot bring a breach of implied contract claim

against her employer for prospective changes the employer makes to the

conditions of employment. See Gormley, 85 P.3d at 259; Stieber, 901 P.2d at

204. AAA New Mexico contends that the facts of Ms. Miller’s case fall squarely

within the ambit of Stieber and Gormley, and Ms. Miller is therefore precluded as

a matter of law from bringing an implied breach of contract claim against AAA

New Mexico for failing to promote her. But a careful examination of Stieber and

Gormley leads us to conclude that the type of implied contract claim raised and

rejected in those cases is distinguishable from the implied contract claim asserted

by Ms. Miller.

In Stieber, the New Mexico Court of Appeals rejected an at-will

employee’s implied breach of contract claim where the employee claimed that

after her employer assigned her job duties representing a promotion, she was later

assigned tasks contrary to the promotion, effectively resulting in a demotion. 901

P.2d at 203-04. In essence, the breach of contract claim was based on the

assumption that the employee had a vested right in the current terms of her

employment, i.e., the duties associated with her promotion. When her employer

changed those terms by requiring her to perform duties not in accord with her

promoted status, she alleged her employer breached the terms of her employment.

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The court rejected the employee’s argument, reasoning that “an employer’s right

to terminate an employee at will necessarily and logically includes what may be

viewed as a lesser-included right to insist upon prospective changes in the terms

of that employment as condition of continued employment.” Id. at 204. The

court went on to hold that “[n]o breach of contract action may lie where the

employer in an at-will employment relationship may prospectively change the

conditions of employment at will.” Id.

A similar situation was presented in Gormley. There, an at-will employee

had worked for his employer for approximately ten years as a route driver and

delivery man. Gormley, 85 P.3d at 254. His employer eventually assigned him to

a warehouse position which included lighter duties but did not impact his hours or

pay. He was told he could remain in the warehouse position and maintain his

work hours until he retired. Approximately four years later, the employee’s hours

were decreased and his duties altered. He continued working for at least another

year, but subsequently resigned from the position. Id. at 254. He brought an

implied breach of contract claim, asserting he had a contract right to the specified

number of hours and duties promised to him until he retired. Id. at 259. While

the appellate court determined a grant of summary judgment to the employer on

this question was inappropriate, it nonetheless emphasized that on remand,

“resolution of this issue depends on the fact-finder’s determination regarding [the

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employee’s] employment status.” Id. Citing to Stieber, the court stated that if an

employee remains at-will, “then any claims regarding breach of contract as to

hours and duties would necessarily fail.” Id. at 259.

The type of claims raised and subsequently deemed invalid in Stieber and

Gormley are different from Ms. Miller’s claim. She is not asserting AAA New

Mexico breached a contract with her by altering the terms of her current

employment. Rather, we construe the essence of Ms. Miller’s claim to be that

AAA New Mexico promised to promote her and failed to do so. Hence, Ms.

Miller’s claim is not about her reliance on present employment terms which were

undermined by AAA New Mexico’s alteration of those terms. Instead, she is

contending that AAA New Mexico’s promise regarding future terms was never

fulfilled. We therefore cannot fully agree with AAA New Mexico that Ms.

Miller’s claim is wholly resolved by the rulings in Stieber and Gormley.

Nonetheless, we are persuaded the rule articulated in those cases can legitimately

and logically be extended to bar an at-will employee from bringing a breach of

implied contract claim for an employer’s failure to fulfill a promise to make

future changes to the terms of employment.

If, pursuant to Stieber and Gormley, an at-will employee cannot rely on her

present terms of employment because the employer retains the right to make

prospective changes to the terms and conditions of employment, Stieber, 901 P.2d

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at 204, then it is reasonable to conclude that an at-will employee is equally barred

from relying on an employer’s statements regarding future changes regarding the

terms of employment. Where an at-will employee cannot bring a breach of

contract claim for alteration of her current terms of employment, a breach of

contract claim for violation of potential future terms appears equally, if not more,

tenuous.

Other jurisdictions addressing a similar issue have rejected at-will

employees’ breach of implied contract claims. See, e.g., Rouse v. Boehringer

Mannhiem Corp., 108 F.3d 859, 859 (8th Cir. 1997) (pursuant to Iowa law, at-will

employee cannot enforce employer’s promise to promote merely by continuing to

work); Shelton v. Ernst & Young, LLP, 143 F. Supp. 2d 982, 991-92 (N.D. Ill.

2001) (under Illinois law, at-will employee cannot bring failure to promote

claim); Edwards v. U.S. Fid. & Guar. Co., 848 F. Supp. 1460, 1465 (N.D. Cal.

1994) (under Maryland law, at-will employee cannot bring breach of contract

claim for rescinded promotion); Rodgers v. Prudential Ins. Co. of Am., 803 F.

Supp. 1024, 1031-32 (M.D. Pa. 1992) (Pennsylvania law precludes at-will

employee from bringing breach of contract claim for employer’s promise to

promote); Moore v. BellSouth Mobility, Inc., 534 S.E.2d 133, 135-36 (Ga. Ct.

App. 2000) (under Georgia law, no claim for failure to promote can be brought by

at-will employee); Tinkham v. Jenny Craig, Inc., 699 N.E.2d 1255, 1257 (Mass.

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App. Ct. 1998) (under Massachusetts law, promise to promote at-will employee is

illusory). In light of the rationale supporting the Stieber and Gormley decisions,

neither of which has been corrected or undermined by subsequent New Mexico

Supreme Court rulings, coupled with supporting authority from other states, we

predict that if faced with this particular question, the New Mexico Supreme Court

would hold an at-will employee is barred from bringing an implied breach of

contract claim for an employer’s failure to promote. On purely legal grounds,

therefore, we conclude Ms. Miller was barred from bringing her breach of implied

contract claim against AAA New Mexico.

B. Judgment as a matter of law

Even if we are wrong in divining the decision the New Mexico Supreme

Court would reach on this question, we are persuaded the district court did not err

in granting judgment as a matter of law to AAA New Mexico on Ms. Miller’s

implied breach of contract claim for lack of an evidentiary basis.

As referenced earlier, we review de novo a district court’s grant of

judgment as matter of law under F ED . R. C IV . P. 50(b). Tyler, 232 F.3d at 812;

Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1502 (10th Cir. 1996).

Judgment as a matter of law is only appropriate when “a party has been fully

heard on an issue and there is no legally sufficient evidentiary basis for a

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reasonable jury to find for that party on that issue.” F ED . R. C IV . P. 50(a)(1). We

review all the evidence in the record, construing it and any inferences therefrom

in favor of the non-moving party, and refraining from making credibility

determinations and weighing evidence. Tyler, 232 F.3d at 812. Thus, “a court

may grant the motion ‘only if the evidence points but one way and is susceptible

to no reasonable inferences which may support the opposing party’s position.’”

Finley v. United States, 82 F.3d 966, 968 (10th Cir. 1996) (quoting Q.E.R., Inc. v.

Hickerson, 880 F.2d 1178, 1180 (10th Cir. 1989)). Even extending to Ms. Miller

the benefit of all reasonable inferences, we cannot conclude the district court

erred in its ruling.

Generally, the New Mexico courts have “upheld findings that there was no

implied contract in cases where the alleged promise by the employer was not

sufficiently explicit.” Hartbarger, 857 P.2d at 780. “An employer creates

expectations by establishing policies or making promises. An implied contract is

created only where an employer creates a reasonable expectation. The

reasonableness of expectations is measured by just how definite, specific, or

explicit has been the representation or conduct relied upon.” Id. at 783. In ruling

in favor of AAA New Mexico, the district court concluded that Ms. Miller failed

to present the jury with anything but evidence of vague and indefinite promises

that her position was being reviewed for an upgrade. The court ruled that none of

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the promises could give rise to a reasonable expectation of a promotion, or a

promise to retroactively pay Ms. Miller for the additional services she provided

AAA New Mexico in anticipation of her potential upgrade.

In challenging the district court’s ruling, Ms. Miller contends “there was

sufficient evidence for the jury to decide that the statements, policies, conduct

and practices of AAA [New Mexico], in combination, created a reasonable

expectation by Ms. Miller that her position would be upgraded.” Aplt. Br. at 19.

We disagree. Certainly, there were statements made to Ms. Miller which could

have led her to hope the current position which she held would be upgraded and

she would be able to continue to work for AAA New Mexico in the newly created

position. But our review of the record indicates the evidence is simply

insufficient to show that AAA New Mexico’s statements, policies, or practices

were specific enough to create a binding promise upon which Ms. Miller could

reasonably rely. Hartbarger, 857 P.2d at 783.

Ms. Miller first points to sections from AAA New Mexico’s employee

handbook and human resources manual to support her allegation that the policies

outlined in those documents were sufficiently explicit to support her reasonable

expectation that once she had started performing additional duties outside of her

job description, she would be upgraded. We do not agree.

Under New Mexico law, an employee handbook or personnel manual may

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alter the terms of an at-will relationship and give rise to an implied contract

where the manual “controlled the employer-employee relationship and an

employee could reasonably expect his employer to conform to the procedures it

outlines.” Garcia, 918 P.2d at 11; see also Mealand, 33 P.3d at 292 (“Plaintiff

can prevail if the handbook modifies or supplements a pre-existing oral

employment agreement.”). Moreover, “an implied contract can still exist in spite

of a [handbook] disclaimer, where the employer’s conduct reasonably leads

employees to believe that they will not be terminated without just cause and a fair

procedure.” Kiedrowski, 893 P.2d at 471. We do not question the expansive

nature of the general terms appearing in the AAA New Mexico employee

handbook, nor do we need to question what impact its disclaimer may have had on

Ms. Miller’s at-will employment at AAA New Mexico. Regardless of the

handbook’s terms, we find nothing in it of a sufficiently explicit nature to enable

Ms. Miller to reasonably conclude that AAA New Mexico was obligated to

upgrade her upon her performance of additional duties for the organization.

The employee handbook’s section on compensation contains language

which reads “[t]he objective of the compensation plan is to pay employees for the

total contribution they make to the organization each year, tying employee

performance to meeting organizational goals, and on paying for results, not just

activity and effort.” App., vol. VII at 1565. When discussing promotions, the

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handbook indicates that

[p]romotional increases are financial rewards which recognize
increased responsibilities when employees are assigned to a higher
grade level. Promotional increases are not automatic. . . . When the
promotion involves an increase of more than four grades, the
promoting authority must submit a written recommendation to the
Vice President, outlining the reasons and justification for the
promotion. Each situation will be reviewed individually to determine
the appropriate salary increase.

Id. at 1567-68. The handbook also details that

[t]he Club maintains a position classification system whereby each
position has a unique title and description of duties and
responsibilities. All positions are ranked in relation to others, and
positions similar in level of responsibility and complexity are
classified at the same grade level. The classification plan,
consisting of all grade level classifications and position titles, is
evaluated by Human Resources.

Any new classification or reclassification of an existing position will
be based upon written analysis of the duties and responsibilities
assigned to the position.

A review of all jobs is periodically conducted by Human Resources.
Salary ranges will be adjusted periodically as external conditions
warrant.

Id. at 1569-70. Finally, in discussing temporary assignments, the handbook states

[i]t may be necessary to assign an employee temporarily to a job
within another salary range because of vacation, illness or other
reasons. A temporary assignment of this type does not require a
status change. However, if the assignment exceeds 30 days, Club
policy requires that a formal change of status be submitted to Human
Resources.

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Id. at 1567. 22

First, nothing in the handbook’s statements regarding AAA New Mexico’s

overall objectives regarding its compensation plan, when promotions might be

granted to employees, or how a job might be newly classified or reclassified, is

specific or definite enough for Ms. Miller to believe that she was individually

entitled to have her position upgraded from an hourly post to a regular position.

Rather, the cited portions of the handbook speak in qualified generalities. See id.

at 1565 (“[t]he objective of the compensation plan . . . .”); id. at 1567-68

(“Promotional increases are not automatic. . . . Each situation will be reviewed

individually to determine the appropriate salary increase.”); id. at 1569-70 (“Any

new classification or reclassification of an existing position will be based upon

written analysis of the duties and responsibilities assigned to the position. A

review of all jobs is periodically reviewed by Human Resources. Salary ranges

will be adjusted as periodically external conditions warrant.”) (emphasis added

throughout).

Second, an examination of the procedures outlined in the human resources

manual regarding the creation of new positions not already classified, see id. at

22
The human resources manual, which will be discussed in more detail
below, contains highly similar if not identical provisions to those identified in the
employee handbook. See App., vol. VI at 1320 (objective of compensation plan);
id. at 1323 (promotion policy); id. at 1325-26 (detailed description of job
classification, reclassification, and creation of new job process); id. at 1323
(temporary assignment policy).

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1326, indicates that AAA New Mexico followed these procedures, resulting in the

new public affairs post in the PGA department. However, nothing in the human

resources manual indicates that the company, in engaging in a job review process

for a new position, was obligated to give Ms. Miller the new job. Furthermore,

Mr. Sandy affirmed at trial that there was “nothing novel” about the process by

which the new position was created. Id., vol. IV at 1069.

Ms. Miller’s reliance on the temporary assignment policy does not assist

her. See id., vol. VII at 1567; id., vol. VI at 1323. When she began performing

additional duties in her capacity of “senior clerk” and then “clerk, intermediate,”

she was not performing a job in “another salary range.” Id., vol. VI at 1323. Mr

Sandy testified that Ms. Miller did not qualify for the terms outlined in the

temporary assignments policy because she merely took on “additional

responsibilities in her position as an intermediate clerk. That would not have

been a temporary assignment. That would have been additional responsibilities in

the position.” Id., vol. IV at 1061. Mr. Sandy further indicated that when Ms.

Yager asked Ms. Miller in 1996 if she would be interested in taking on some

public affairs work for the department, “there had been a discussion about the

additional responsibilities and there was a discussion of what the salary would be

for the position, and that’s what was accepted. That would not be a temporary

assignment. That would be a change in duties.” Id. at 1082-83. Moreover, he

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testified that the temporary assignment policy did not apply to hourly employees

and that “[t]o [his] knowledge, the only people [he knew to] have been on

temporary assignment [were] . . . regular employees within the organization.” Id.

at 1062.

Echoing the arguments she raised in her retaliation claim, Ms. Miller also

points to the AAA Texas office’s migration of Ms. Rougeau into a regular

position as evidence that AAA New Mexico should have done the same for her.

However, as we discussed earlier, we are not convinced the facts concerning Ms.

Rougeau’s advancement are sufficiently analogous to Ms. Miller’s situation to

warrant her belief that the company had a policy of automatically shifting

employees from hourly to regular positions. In particular, in contrast to Ms.

Rougeau’s situation, when Ms. Miller began working for AAA New Mexico there

was no regular position in existence, or even in formulation, in which she could

be employed. Throughout her entire employment at AAA New Mexico, she

worked as an hourly employee with a full understanding of the limitations of such

a position. Nor, unlike Ms. Rougeau, was she promised at the start of her

employment that a regular position would soon be in existence and hers for the

taking. The facts surrounding Ms. Rougeau’s advancement are inapposite to Ms.

Miller’s case and insufficient to support her implied contract claim.

Finally, Ms. Miller contends that AAA New Mexico, primarily through the

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statements made by Ms. Yager, promised Ms. Miller that she would be upgraded

to a regular position. Based on our review of the record, in which we have given

her the benefit of all reasonable inferences, see Finley, 82 F.3d at 968, we

conclude Ms. Miller has been unable to point to any sufficiently specific promise

made by Ms. Yager upon which she could base a reasonable expectation that she

was going to receive an automatic upgrade.

We, of course, accept Ms. Miller’s assertions that Ms. Yager made

promises and gave assurances that the upgrade process was moving forward and

was going to happen. As Ms. Miller testified, Ms. Yager told her a number of

times she was in the process of seeking an upgrade for her position, and that it

was going to happen soon. See App., vol. III at 642 (company was going to

evaluate positions and “good chance” post would be reclassified and graded at

higher rate); id. at 643 (job review process would take “a few weeks, . . . maybe

two to three months at the most”); id., vol. IV at 1279 (Ms. Yager sent letter to

supervisor requesting positions be upgraded); id., vol. III at 657 (Ms. Miller

“would receive an upgrade and be reclassified based on the information that [Ms.

Yager] received from her management”); id. at 658-59 (upgrade would happen

soon, within a few months); id. at 675 (upgrade process ongoing and would

happen); id., vol. IV at 891 (Ms. Yager included two regular positions in 2000

budget proposal); id., vol. III at 678-79, id., vol. IV at 892-94 (Ms. Yager

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informed Ms. Miller job was in budget, upgrade would happen soon, and she

could start using business cards); id., vol. III at 684 (despite delays, upgrade

going to take place); id. at 690 (upgrade “just around the corner”); id., vol. IV at

894 (Ms. Yager informed Ms. Miller job study would be completed by end of

year); id., vol. III at 696 (Ms. Yager promised Ms. Miller upgrade was going to

happen).

Ms. Yager’s own testimony affirmed she made promises to Ms. Miller

about the upgrade process. She testified, however, that her promises were more

limited in nature than how Ms. Miller interpreted them. She noted “[w]hat was

promised was the job study, but there was no promise of anything else.” Id., vol.

V at 1161. “I definitely promised that the job study would go on and that there

certainly weren’t any guarantees, but I was doing everything possible to try to

upgrade the positions.” Id. at 1163; see also id., vol. IV at 946 (Ms. Yager

informed Ms. Miller she did not know extent of input she would have in upgrade

process); id. at 891-92 (Ms. Yager noted initial success in keeping positions in

2000 budget, but also that there was a “long way” to go); id., vol. III at 687 (Ms.

Yager unclear about upgrade time line); id. at 702 (Ms. Yager had no idea when

job review process would be completed).

Likewise, while Ms. Yager may have promised Ms. Miller she would

receive an upgrade, the record makes clear that Ms. Yager did not possess the

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power to fulfill such a promise. See id., vol. IV at 855, 1032 (Automobile Club

of Southern California directs all human resources decisions); id. at 857-58, 872-

76, 1064, id., vol. VI at 1279-80 (Ms. Yager required to ask direct supervisor for

permission to request human resources to perform job study); id., vol. IV at 1037,

id., vol. VI at 1325-26 (final upgrade approval required at executive levels); id.,

vol. IV at 946 (Ms. Yager indicated she did not know extent of input she would

have in upgrade process); id. at 891-92 (Ms. Yager able to keep positions in 2000

budget, but noted there was a “long way” to go); id., vol. III at 687 (Ms. Yager

not clear about timeline for upgrade); id. at 702 (Ms. Yager uninformed as to

when job review process would be completed). Ms. Yager may have genuinely

wanted to upgrade Ms. Miller, and Ms. Miller certainly believed Ms. Yager’s

promises and assurances. Nevertheless, Ms. Miller’s reliance on Ms. Yager’s

promises evinces her lack of an understanding of AAA New Mexico’s job review

and new job creation process.

Finally, regardless of the promises Ms. Yager made, Ms. Miller was unable

to articulate with any specificity the exact nature of what was promised. At most,

Ms. Miller testified she was promised an upgrade. However, she was unable to

state any of the specifics: when exactly the upgrade would occur, what exactly her

anticipated job duties or job title would be, or how she would be compensated.

See id. at 659 (Ms. Miller was not told when upgrade would occur or what

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compensation she would receive); id., vol. VI at 1296 (Ms. Miller notes in

memorandum to Ms. Bisno that she has “no idea of the job responsibilities and

parameters” or grade classification or salary band of potential new position).

At trial, Ms. Miller argued that her compensation could be properly

calculated based on the pay range finally settled upon for the new position, and

the wage paid to the individual who eventually accepted that post. 23 But, Ms.

Miller has basically worked her way backwards into establishing a personal

conclusion of what she might have been compensated, if she had applied for the

position. She has failed to present any evidence that in the course of her ongoing

discussions with Ms. Yager, she was ever given a specific salary amount of what

she would receive in the new position.

Finally, Ms. Miller was unable to point to any specific promise made to her

that she would receive retroactive payment for the public affairs duties she

performed for AAA New Mexico in her hourly position. First, Ms. Miller stated

at trial that she had “never testified that anyone told me I was going to receive

retroactive compensation.” Id., vol. III at 773. Likewise, all of her statements

about her conversations regarding retroactive pay with Ms. Yager indicate that her

supervisor agreed that she should receive retroactive pay, but never guaranteed

23
The base pay for the new position was just over $40,000, with the market
rate being $44,308. When the position was finally filled, the new employee’s
salary, as determined by his experience and qualifications, was $35,000.

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that such payment would occur. See id. at 681, 772 (Ms. Yager expressed opinion

that Ms. Miller should receive retroactive pay for additional duties); id., vol. IV at

950 (Ms. Yager expressed opinion that it was highly unlikely company would give

Ms. Miller retroactive pay). Moreover, Ms. Miller’s prior receipt of retroactive

pay from the company did not necessarily indicate that in the present context,

AAA New Mexico was obliged to pay her retroactively for the additional public

affairs duties she performed. Mr. Sandy testified retroactive pay is generally

awarded when there

was an oversight. If an employee was supposed to be making $12 an
hour, and the staff form was submitted for $10, and that’s what [the
company] had been committed to, then yes, we certainly would
retroact back to that date, if the information supported the situation
. . . . And also if the manager had committed to paying a person a
certain amount, and the manager states that’s what they told them,
but for some reason, when the paperwork was submitted, there’s a
different amount, then we certainly would honor what the manager
had committed to.

Id., vol. IV at 1081. 24

Having extensively reviewed the record and giving to Ms. Miller all

inferences in her favor, we conclude the district court did not err in granting

He also indicated that where an hourly position is replaced by a regular
24

position, the hourly employee is not paid retroactively back to date of hire with
regular pay. Id., vol. IV at 1082. Rather, the date of the position advancement
serves as the employee’s new date of service for compensation purposes. Id., vol.
VI at 1328. Hence, even if Ms. Miller had filled the new position, she would not
have been retroactively compensated for her prior public relations work for AAA
New Mexico.

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judgment as a matter of law to AAA New Mexico on Ms. Miller’s implied

contract claim. AAA New Mexico’s polices, procedures, and statements were not

definite, specific, or explicit enough for Ms. Miller to reasonably rely upon them

to support her implied contract claim.

IV

In light of the foregoing, we AFFIRM the district court.

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