Barone v. United Air Lines, Inc. , 355 F. App'x 169 ( 2009 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    December 7, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    MARY BARONE,
    Plaintiff-Appellant,
    v.                                                      No. 08-1348
    UNITED AIRLINES, INC.,                      (D.C. No. 07-cv-01277-LTB-KMT)
    (D. Colo.)
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before BRISCOE, TYMKOVICH, and HOLMES, Circuit Judges.
    Plaintiff-Appellant Mary Barone appeals the district court’s grant of
    summary judgment to Defendant-Appellee United Airlines, Inc. (“United”) on her
    Title VII claims of gender discrimination and retaliation. The district court
    concluded that Barone could not demonstrate a prima facie case under either
    theory of discrimination. Exercising jurisdiction pursuant to 
    28 U.S.C. § 1291
    ,
    we reverse the district court’s ruling and remand for further proceedings.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    I
    United employed Barone in February 1995. App. at 736. In October 2005,
    Todd Sprague promoted Barone to Manager of Business Administration at
    United’s Denver station; he supervised Barone until her employment ended. 
    Id. at 105
    . Sprague reported to Jim Kyte, General Manager of Customer Service. 
    Id. at 546
    .
    Barone has submitted a declaration stating that it was her job “to
    continually check and conduct investigations to correct pay and other systematic
    problems that were costing the company dollars[,] . . . . [and] to go into the
    records and develop reports,” 
    id. at 494
    , and she has testified that in executing
    these duties associated with her new position, she initiated several investigations
    that uncovered payroll irregularities, especially within the “ramp organization”
    (employees that worked with aircraft on the runway). Barone discovered that
    United was improperly paying male ramp organization managers shift differential.
    
    Id. at 112
    . Sprague told her “to look the other way,” 
    id. at 111
    , but when Barone
    completed a formal investigation and threatened to report her findings to the code
    of business conduct, Sprague said that “he would look into it,” 
    id. at 112
    . Kevin
    Mortimer, the Ramp Manager, eventually corrected the problem. 
    Id. at 164
    .
    Barone also discovered that United was improperly paying ramp
    servicemen “EZ Hours,” that is, a full overtime hour for a few minutes that an
    employee worked beyond a normal shift. 
    Id. at 112
    . Sprague first told her “to
    2
    stop the investigation, get rid of it, throw it away, delete it,” 
    id.,
     but as the
    problem continued to surface, he told Barone to work with Carolyn Forrest on the
    issue, 
    id. at 112-13
    .
    In April 2006, United promoted Scott Hildebrand to the newly created
    Business Analyst position. 
    Id. at 167
    . Barone never applied for this position, but
    when she learned that Hildebrand received a larger raise with his promotion than
    she did, she asked Sprague about the difference. 
    Id. at 107-08
    . Sprague said that
    the difference was “[b]ecause he’s a man.” 
    Id. at 108
    . Barone told him that she
    considered this discrimination. 
    Id.
    According to Barone, her working relationship with Sprague “spiraled out
    of control” after this conversation. 
    Id. at 114
    . Sprague began telling her about
    Mortimer’s impression of her investigations: specifically, Sprague told her that
    Mortimer thought the spreadsheets Barone was providing the ramp organization
    were not useful, and Sprague told her that Mortimer said she “needed to grow
    some kahones, that [she] need[ed] to work on the ramp to be put in [her] place
    because [she didn’t] get it.” 
    Id. at 113-14
    . Sprague himself “was demeaning with
    his words,” 
    id. at 114
    , and would “talk down” to two other female employees “in
    front of their peers to the point where they would be crying,” 
    id. at 393-94
    . He
    told Barone “not to cooperate with world headquarters” with her EZ hours
    investigation, and not to provide those reports to Mortimer. 
    Id. at 114
    . He also
    3
    criticized Barone’s performance, even after she followed his directions. 1 
    Id. at 115
    . When Barone’s responsibilities were adjusted in June 2006 to include
    scheduling manpower for customer service and the ramp organization, she was
    worried because she believed the previous manager had been forced out of that
    position. She contacted Jeanne Nelli, Senior Human Resources Generalist, to
    verify she would be supported. 
    Id. at 115-16, 843
    .
    Despite Barone’s reservations, her email communications after the June
    2006 adjustment of her responsibilities revealed an initial positive relationship
    with her superiors. Sprague emailed Barone on June 29, 2006 that he “was so
    happy that [she was] a part of [his] team and appreciate[d] [her] willingness to
    adapt to a changing organization. Scheduling is already a better place because of
    [her] leadership.” 
    Id. at 173
    . Barone replied with “[j]ust so you know I LOVE IT
    down here- there is so much to do.” 
    Id.
     On July 26, 2008, Kyte praised her prior
    work: “[n]ice job. Have I told you lately how much I appreciate you?” 
    Id. at 120, 180
    . On August 1, 2006, Sprague praised her leadership: “[t]ruly,
    performance management is one of your strong suits! I embrace your enthusiasm
    1
    Barone also claims that in 2000, Sprague “took [her] in a van and drove
    [her] around the concourse and threatened” Barone that if she “were to ever go
    over his head again there would be serious consequences.” App. at 433-34.
    Barone explained that when she was on leave Sprague’s supervisor asked her to
    perform a “book move,” and after Sprague called her house several times “yelling
    at [her] because [she] did it incorrectly,” she called Sprague’s supervisor to
    complain about his conduct. 
    Id. at 433, 442
    .
    4
    to raise the bar for our organization.” 
    Id. at 182
    . “Honey- you have no idea,”
    was Barone’s reply. 
    Id.
    Barone continued to report what she perceived to be instances of gender
    discrimination. When Barone questioned why her 2005 annual evaluation only
    rated her as “successful” (an overall rating of “3”), Sprague explained that anyone
    who was recently promoted was not capable of earning a score higher than a “3.”
    
    Id. at 404
    . After Barone compiled the entire station’s evaluation scores and
    learned that only men in her job group and higher job groups received scores
    higher than “3”–even men that recently had been promoted like Barone–she told
    Sprague that she considered this practice discrimination and told him that she
    wanted it reported to Human Resources. 
    Id. at 404-05, 439
    . Barone also reported
    to Sprague that United was hiring young male ramp organization employees who
    were earning significantly more than female management employees in a higher
    job grade. 
    Id. at 141
    . Sprague told her that United was “bringing in these men at
    a higher rate of pay, that it was not something that was set up in Denver.” 
    Id.
    Barone’s final investigation, and the thrust of her Title VII claims,
    concerned male management improperly receiving vacation pay. 
    Id. at 142-43, 439
    . When she reported her findings to Sprague on July 21, 2006, Sprague
    notified Kyte, and emailed Mortimer:
    Kevin,
    I don’t appreciate your comments to Mary! She is
    responsible for payroll for the station. She is getting
    5
    direction from me. The ORD excellence team is expecting
    us to have the entire station in MARS now. We need to
    clean this stuff up before outsiders come in and question
    our inconsistencies. We need to be consistent as a station.
    We don’t allow this for front line employees after several
    discussions with labor relations. This could put us in a
    difficult position if the union were to find out this was
    happening.
    As far as Mary is concerned, she is trying to help...and fix
    things. If you don’t think you need it, then I’ll take the
    drug test with you.
    
    Id. at 142-43, 611
     (ellipses in original). Mortimer testified that he determined the
    ramp organization was only compensating employees for accrued vacation days,
    and he informed Barone about these results. 
    Id. at 489
    . Barone claims that he
    responded to “the one employee that [she] pointed out.” 
    Id. at 433
    . Nonetheless,
    Barone continued preparing a final report up until her employment ended.
    Barone’s employment ended on August 17, 2006. During that final month
    of employment, Sprague met with Barone several times. Although the timing of
    these meetings is unclear, and the parties dispute the substance of several
    meetings, the record reflects that the following interactions occurred.
    On Thursday, August 3, Sprague criticized Barone for poorly handling a
    union investigation. Barone had previously discovered an unusually high
    percentage of employees who neglected to either “punch in” at the beginning of a
    shift, or “punch out” at the end, but who nevertheless claimed that they worked
    the entire shift. 
    Id. at 117-18
    . Sprague wanted Barone to implement a process
    6
    with the union that would resolve the problem, 
    id.,
     but in that meeting he
    criticized her for handling the investigation improperly and for not following
    procedure or protocol, 
    id. at 127
    . In an email that afternoon, Barone questioned
    whether Sprague had discussed “[t]he union’s perception of me or your perception
    of me? I AM NOT HAPPY.” 
    Id. at 193
    . Barone was absent from work on
    Friday, 
    id. at 127
    , and when she received Sprague’s reply email and similarly
    worded text message–“Mary, you need to come talk with me. I am a Mary
    Barone fan and it appears that you don’t think so,” 
    id. at 128
    , 193–Barone wrote a
    two-page email and sent it to Sprague’s personal account. 2 
    Id. at 128
    . In the
    email Barone detailed what she believed to be “[f]alse accusations by my boss,”
    
    id. at 189-90
    . She described how it “[l]ooks like . . . I have a choice here, one
    would think with this track record of never doing anything right, they are not the
    right person for the job,” told Sprague that he was “the only one who made [her]
    average,” and ended with “I am sick to my stomach– I can only work when I
    know I am of value– I know now that I am not. You will never be able to change
    my mind. THE PICTURE IS VERY CLEAR!” 
    Id.
    Sprague met with Barone the following Monday to discuss this email. 
    Id. at 130
    . Shortly thereafter, Sprague met with Barone and Nelli to discuss the
    email again. 
    Id.
     Barone testified that she explained to Sprague that her email
    2
    Barone testified that she sent the email to Sprague, but she did not intend
    for him to receive it at his home account. App. at 128.
    7
    “was a reaction from [Sprague] telling [her] that [she was] not doing anything
    right, that [she could not] do anything right, that [she was] providing reports that
    [were not] beneficial. And then [Sprague] tells [her], in writing, that he’s a fan.
    [She] was confused. [She] didn’t understand.” 
    Id. at 129
    . She testified that she
    never told Sprague she sent him the email because she wanted to “make him
    mad.” 
    Id. at 129, 131
    .
    Sprague also had three discussions with Barone about her mid-year
    evaluation. Barone testified that when Sprague first discussed the evaluation with
    her over the telephone he told her that she was “not effective, that [she did not]
    do good work, that [she was] basically a clerk, [and] that [she did not] follow
    directions.” 
    Id. at 124
    . When they discussed the evaluation in person Sprague
    repeated this criticism, told her that she “work[ed] too hard; [she] even work[ed]
    on the weekends,” and told her that Mortimer thought that she did not “get it, that
    [she] needed a dose of reality; and that’s why they want[ed] to put [her] on the
    ramp. He even said that Jim Kyte felt that way . . . .” 
    Id. at 125
    .
    The third mid-year evaluation discussion occurred on August 14, 2006. 
    Id. at 724
    . Barone and Sprague met with Jeanne Nelli. In stark contrast to the
    previous two discussions, Barone testified that she received “a very
    complimentary evaluation in front of Jeanne Nelli.” 
    Id. at 129
    . Sprague testified
    that he described her performance as “successful,” but he also noted that Barone
    needed to improve “her ability to accept feedback and learn from that as a
    8
    manager.” 
    Id. at 724
    . Sprague testified that the conversation then shifted to
    Barone’s August 4 email, and when Barone “stated that she was trying to make
    [Sprague] mad with that email,” Nelli questioned why Barone would “deliberately
    do something to make [her] manager mad.” 
    Id.
     According to Sprague’s
    testimony, Barone then began expressing her “frustrations with her work
    environment under” Sprague, during which she said that she was “not a 3” and
    that if she was a “3,” she could not work for Sprague. 
    Id.
     Barone does not
    remember these conversations, but she testified that she remembered “saying
    [she] was not of value.” 
    Id. at 129
    .
    At some point during her last week of employment, Barone remembers
    telling Sprague about the findings on the vacation pay discrimination report that
    she was finishing. 3 Also, at some point in August, Barone remembers that
    Sprague “put it in [her] head to leave United.” 
    Id. at 136
    . Barone telephoned
    Sprague on August 15, 2006 to tell him that she wanted to remain with United,
    and to demonstrate how she was “trying to improve on all the feedback
    [Mortimer] was giving [her],” Barone requested that Mortimer write her year-end
    3
    It is hard to determine the precise date when Barone made this report.
    Although Barone testified that she made her final complaint of vacation pay
    discrimination to Sprague three days before her employment ended, App. at 434,
    she later testified her final oral complaint occurred during “the last week that
    [she] was working at United,” 
    id. at 435
    . Additionally, Barone clarified that after
    she made the July 21, 2006 report of discrimination to Sprague, she “believe[d]
    that [she] continued to talk about this particular situation into August, because
    [she] never got to finish the investigation.” 
    Id. at 437
    .
    9
    evaluation. 
    Id.
     Sprague complimented her, but was unwilling to grant this
    request. 
    Id.
    Despite this conciliation, Barone’s employment essentially ended two days
    later on August 17, 2006. According to Barone, Sprague held a “very short”
    meeting that day:
    [H]e requested that I come and meet him in his
    office. When I got there, [Senior Human Resources
    Generalist] Jeanne Nelli was there.
    And he said to me that he had thought long and hard
    about his decision, and it was the hardest decision he ever
    had to make. He said: Here are your two choices: You can
    either move to Orange County as a part-time customer
    service agent, or you can resign from the company.
    
    Id. at 130-31
    . In response to this ultimatum, Barone told Sprague that she could
    not move to California because of her three children, and she asked Sprague why
    he was making her choose between these options. Sprague “said it was because
    he could not get over the fact that [she] wanted to make him mad.” 
    Id. at 131
    .
    Barone did not understand what Sprague meant, and asked to speak privately with
    Nelli. 4 
    Id.
     Before leaving, Sprague “slid a blank piece of paper [Barone’s] way
    and said to write out [her] resignation.” 
    Id.
     She wrote her resignation, but tore it
    up when Sprague left the room. When Barone asked Nelli for help, the Senior
    4
    Barone also remembers that she asked if the ultimatum had “anything to
    do with Kevin Mortimer,” and Sprague said that it did not. 
    Id. at 131
    . Barone
    also asked if the ultimatum had anything to do with the behavior that Mortimer
    and Sprague exhibited toward Barone. 
    Id.
     She remembers that Sprague only
    acknowledged that Sprague had previously used foul language. 
    Id.
    10
    Human Resources Generalist repeated that Barone could either resign from the
    company or go to Orange County, 
    id. at 424
    , and further confirmed that “[t]here’s
    nothing I can do; they contacted me first, and the station made up their mind,” 
    id. at 132
    . Barone again wrote her resignation letter, and received two weeks of
    administrative leave compensation. 
    Id. at 728
    .
    Sprague offered a different version of that meeting. He testified that “Mary
    was a person that [he] trusted and believed was capable of continuing as a leader
    at United Airlines; albeit, she made some mistakes.” Sprague Depo. 36; Aple.’s
    Br. Ex. 10. His thought process going into that meeting was the following:
    If she accepts accountability for feedback and
    accepts the fact that I, as her manager, am going to give
    her constructive feedback and takes ownership of the fact
    and apologizes for what I felt was an inappropriate email
    . . ., I was willing to let her continue her employment. I
    was going to wait and see what the tone of the discussion
    was.
    If she was adamant that she was not going to accept
    accountability, I was prepared to discharge her. And that’s
    why I had pre-established that she had rights back to
    Orange County.
    ...
    [I]f the conversation did not result in her taking
    accountability for her actions and apologizing for some of
    her actions, that I would fire her.
    And it did not go that way. . . . [S]he said: Maybe I
    should resign. And my words were: At this point, I would
    accept that.
    
    Id. at 36-38
    . Sprague testified that employees that resign or are removed from
    management have the right to resume their last union position with the company.
    11
    App. at 726. He also testified that prior to the meeting, he did not consider
    demoting Barone to a leadership position because if “she wasn’t going to take
    accountability for her actions as a leader, [he] did not want her to continue in a
    leadership position . . . .” Id. at 727. At that time, he did not consider demoting
    her to a non-leadership position in Denver. Id. Sprague also testified that he
    believed Barone improperly accessed her mid-year evaluation. Mid-year
    evaluations contain a confidential score that superiors do not disclose to
    subordinates, and Sprague believed that Barone accessed her evaluation “and
    found out she was going to be rated a 3 before [he] ever had an opportunity to
    discuss it with her.” Id. at 729.
    Certain aspects of Sprague’s testimony contradict the version of events he
    told Jim Kyte. For example, although Sprague testified that he consulted Kyte
    about possibly terminating Barone, id. at 727, Kyte testified that Sprague never
    consulted him about removing Barone from management, and he also testified
    that he had no information about whether Barone was involuntarily removed from
    management, id. at 547. Additionally, although Sprague testified that his actions
    during the August 17, 2006 meeting were not based on his suspicion that Barone
    improperly accessed her mid-year evaluation, id. at 730, Kyte, in contrast,
    testified that Sprague told him that Barone resigned because she was unhappy
    with her evaluation and because she “had a breach of trust by accessing her
    evaluation prior to it being released to her.” Id. at 547.
    12
    Following Barone’s resignation, Sprague, Nelli, Kyte, and another United
    employee all decided that in the event Barone reapplied, she would not receive a
    management position. Id. at 733, 843. Sprague testified that while he did not
    believe that Barone “was fit for a leadership position in Denver,” he also did not
    believe she was fit for a non-leadership salaried position in Denver because it
    would not “be a good thing for somebody who wasn’t taking accountability for
    their actions to be demoted and continue working with the same people that she
    was just managing . . . .” Id. at 728. He never considered placing her in a non-
    leadership position in Denver that did not require her to interact with previous co-
    workers. Id. Barone requested reinstatement after she resigned, and United
    denied the request. Id. at 136. United temporarily filled her position with a male
    employee until it selected a permanent female replacement. Id. at 579.
    Mortimer testified that Sprague never spoke to him about removing Barone
    from management, and Mortimer learned of Barone’s resignation from an
    interoffice note. Id. at 490. Mortimer also testified that he complained to
    Sprague about some of Barone’s reports because he was frustrated with “her style
    of discovering perceived deficiencies . . . and how she handled that . . . . [S]he
    would gather information and then give it to [him] with the expectation that [he]
    would fix it.” Id. at 882. Mortimer was “looking for support administratively.”
    Id. Barone, however, believed that Mortimer played a role in ending her
    employment with United. She testified that Sprague told her many times that “he
    13
    was doing something because Kevin [Mortimer] asked him to . . . . Sprague told
    [her] of things that Kevin [Mortimer] said for treatment for [her] . . . . [T]here
    were things that [] Sprague made decisions on that Kevin told him to do.” Id. at
    429. Barone also claims that Mortimer was “demeaning and disrespectful”
    toward women, id. at 434, that he made sexually derogatory comments about
    women, id. at 534, and that Mortimer often inappropriately commented on her
    appearance and made a vulgar sexual remark to her in the spring of 2006, id. at
    534, 840.
    Barone brought suit against United in the District Court of Colorado. She
    invoked federal question jurisdiction to assert claims of age discrimination and
    retaliation in violation of the Age Discrimination in Employment Act of 1967, 
    29 U.S.C. §§ 621-634
     (“ADEA”), and claims of gender discrimination and retaliation
    in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
    2000e-17 (“Title VII”). She invoked supplemental jurisdiction to assert a
    discrimination claim pursuant to Colorado’s Anti-Discrimination Act, 
    Colo. Rev. Stat. §§ 24-34-401
     to -406 (“CADA”), and state law claims for breach of contract
    and estoppel. Barone agreed to dismiss her ADEA claims, App. at 36, 48, 99, and
    United moved for summary judgment on all other claims. The district court
    granted United summary judgment on the Title VII claims, declined to exercise
    supplemental jurisdiction over state law claims and dismissed them without
    prejudice, and dismissed the ADEA claims without prejudice pursuant to Federal
    14
    Rule of Civil Procedure 41. Barone v. United Air Lines, Inc., No. 07-cv-01277,
    
    2008 WL 4372674
    , at *9 (D. Colo. Sept. 19, 2008).
    After Barone filed her notice of appeal in this case, she reasserted her state
    law claims against United in Colorado state court. United invoked diversity
    jurisdiction to remove that action, 5 and then moved for summary judgment. The
    district court, relying on our Title VII precedent, denied summary judgment on
    the CADA claim, concluding that genuine issues of material fact existed as to the
    constructive discharge issue. Barone v. United Air Lines, Inc., No. 08-cv-02487,
    
    2009 WL 2710150
     at *1 & n.3 (D. Colo. Aug. 26, 2009).
    II
    Before reviewing the merits of this appeal, we first address United’s
    concern that we lack appellate jurisdiction. United contends that the district
    court’s disposition of Barone’s first action was not a final decision under 
    28 U.S.C. § 1291
     because the district court dismissed Barone’s ADEA claims
    without prejudice pursuant to Federal Rule of Civil Procedure 41, and dismissed
    her supplemental state law claims without prejudice pursuant to 
    28 U.S.C. § 1367
    (c). We disagree; neither dismissal without prejudice prevents us from
    exercising appellate jurisdiction.
    We have jurisdiction over “appeals from all final decisions of the district
    5
    United is incorporated in Delaware and maintains its principal place of
    business in Illinois. Barone is a citizen of Colorado.
    15
    courts of the United States . . . .” 
    28 U.S.C. § 1291
    . “Although a dismissal
    without prejudice is usually not a final decision, where the dismissal finally
    disposes of the case so that it is not subject to further proceedings in federal
    court, the dismissal is final and appealable.” Amazon, Inc. v. Dirt Camp, Inc.,
    
    273 F.3d 1271
    , 1275 (10th Cir. 2001). “The critical determination as to whether
    an order is final is whether plaintiff has been effectively excluded from federal
    court under the present circumstances.” 
    Id.
     (quoting Facteau v. Sullivan, 
    843 F.2d 1318
    , 1319 (10th Cir. 1988)) (alteration omitted).
    United claims that Barone has not been effectively excluded from federal
    court because diversity jurisdiction existed over Barone’s state law claims and
    “[a]s a result, [those] state law claims are, once again, pending in federal district
    court, albeit in a new case before a different judge.” Aple.’s Br. at 25. But the
    possibility that diversity jurisdiction existed over Barone’s state law claims does
    not mean that the district court’s disposition was not a final appealable decision.
    In Amazon, the plaintiff’s complaint asserted federal and state law claims against
    multiple defendants, and claimed that both supplemental and diversity jurisdiction
    existed over the state law claims. 
    273 F.3d at 1273
    . The parties disagreed
    whether one defendant’s citizenship destroyed complete diversity. When the
    district court granted the defendants summary judgment on the federal claims, it
    then declined to exercise supplemental jurisdiction over the state law claims,
    dismissing them without prejudice. 
    Id. at 1274
    . One of the prevailing defendants
    16
    appealed, arguing that because diversity jurisdiction existed, the district court
    should have addressed the merits of the state law claims. 
    Id.
     While the appeal
    was pending, the plaintiff then filed its state law claims in state court against the
    defendant that had appealed, and that defendant removed that case to federal
    court. 
    Id.
     at 1274 n.3.
    Despite the possibility that complete diversity existed, we held that the
    district court’s disposition was a final decision because the “district court
    dismissed the entire action, effectively excluding Amazon’s suit from federal
    court.” 
    Id. at 1275
    . United attempts to distinguish Amazon by arguing that
    appellate jurisdiction in that case depended on the “hotly disputed” issue of
    diversity of citizenship, whereas in this case diversity is undisputed. This is an
    immaterial distinction: we placed no emphasis on the underlying citizenship
    dispute when we concluded that we had appellate jurisdiction in Amazon. Only
    after concluding that we had appellate jurisdiction did we then turn to the
    prevailing defendant’s appeal regarding the existence of diversity jurisdiction. 
    Id. at 1276
    .
    Additionally, the voluntary dismissal of Barone’s ADEA claims does not
    divest this court of appellate jurisdiction. It is true that “when a plaintiff
    voluntarily requests dismissal of her remaining claims without prejudice in order
    to appeal from an order that dismisses another claim with prejudice, we conclude
    that the order is not ‘final’ for purposes of § 1291.” Cook v. Rocky Mtn. Bank
    17
    Note Co., 
    974 F.2d 147
    , 148 (10th Cir. 1992); see also Heimann v. Snead, 
    133 F.3d 767
    , 769 (10th Cir. 1998). But Barone agreed to abandon her ADEA claims
    before the district court ruled on United’s summary judgment motion. Moreover,
    it is important to note that the voluntary dismissal of Barone’s ADEA claims is
    essentially with prejudice because the statute of limitations prevents her from
    refiling them. 6 Thus, the voluntary dismissal of Barone’s ADEA claims, though
    without prejudice, effectively excluded those claims from federal court. See
    Jackson v. Volvo Trucks N. Am., Inc., 
    462 F.3d 1234
    , 1238 (10th Cir. 2008)
    (holding that the dismissal of a state civil conspiracy claim without prejudice to
    refiling was a final decision because the underlying tort claims were dismissed
    with prejudice).
    III
    “We review a district court’s grant of summary judgment de novo, applying
    6
    Under the ADEA, a complainant has ninety days to bring suit after
    receiving notice of the EEOC’s final determination. 
    29 U.S.C. § 626
    (e). Barone
    alleged that she filed suit within this period, App. at 17, but her Rule 41 voluntary
    dismissal did not toll this limitations period because, “as a general rule, a
    voluntary dismissal without prejudice leaves the parties as though the action had
    never been brought,” Brown v. Hartshorne Pub. Sch. Dist., 
    926 F.2d 959
    , 961
    (10th Cir. 1991) (holding that a voluntary dismissal under Rule 41(a)(1) did not
    toll Title VII’s limitations period, which requires claimants to bring suit ninety
    days after receiving a right-to-sue letter from the EEOC), abrogated on other
    grounds as stated in Keeler v. Cereal Food Processors, 250 F. App’x 857, 860-61
    (10th Cir. 2007); see also Garfield v. J.C. Nichols Real Estate, 
    57 F.3d 662
    , 664,
    666-67 (8th Cir. 1995) (holding that § 626(e) barred an age discrimination suit
    when the original action was filed within the ninety day period, but after the
    parties agreed to a dismissal without prejudice, the plaintiffs again filed suit
    seven months later).
    18
    the same standards as the district court.” Timmerman v. U.S. Bank, N.A., 
    483 F.3d 1106
    , 1112 (10th Cir. 2007). Summary judgment is only appropriate if “the
    pleadings, the discovery and disclosure materials on file, and any affidavits show
    that there is no genuine issue as to any material fact and that the movant is
    entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c). In resolving this
    question, “[t]he evidence of the non-movant is to be believed, and all justifiable
    inferences are to be drawn in h[er] favor.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986). Because “[c]redibility determinations, the weighing of the
    evidence, and the drawing of legitimate inferences from the facts are jury
    functions, not those of a judge,” 
    id.,
     our role in this procedural posture is “simply
    to determine whether the evidence proffered by [the] plaintiff would be sufficient,
    if believed by the ultimate factfinder, to sustain her claim,” Jones v. Barnhart,
    
    349 F.3d 1260
    , 1265-66 (10th Cir. 2003) (quotations and citations omitted).
    The district court granted United summary judgment because it concluded
    that under either theory of employment discrimination Barone could not establish
    that her employer subjected her to a cognizable adverse action. It thus ended its
    inquiry at the prima facie stage of the familiar burden-shifting framework of
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
     (1973), without considering the
    remaining stages. We conclude Barone has presented sufficient evidence to
    establish a prima facie case of gender discrimination and retaliation. We also
    reject United’s invitation to affirm the district court’s judgment on alternative
    19
    grounds not addressed by the district court, i.e. that United’s proffered reasons for
    the constructive discharge were not pretextual. Accordingly, we reverse the
    district court’s grant of summary judgment and remand this case to the district
    court for further proceedings.
    A
    Barone relied on circumstantial evidence to prove her claims of
    employment discrimination in the district court; accordingly, we analyze her
    claims of gender discrimination and retaliation under the burden-shifting
    framework that the Supreme Court established in McDonnell Douglas. Plotke v.
    White, 
    405 F.3d 1092
    , 1099 (10th Cir. 2005) (gender discrimination); Stover v.
    Martinez, 
    382 F.3d 1064
    , 1070-71 (10th Cir. 2004) (retaliation). Under this
    framework, the plaintiff has the burden of establishing a prima facie case of
    prohibited employment action by a preponderance of the evidence. Plotke, 
    405 F.3d at 1099
    . Once the employee demonstrates a prima facie case, the burden of
    production shifts to the employer to articulate “some nondiscriminatory reason for
    its behavior.” Exum v. U.S. Olympic Comm., 
    389 F.3d 1130
    , 1135 (10th Cir.
    2004). Once the employer satisfies this burden of production, in order to prevail
    the employee must show the employer’s reasons are pretextual. 
    Id.
    We emphasize that the burden of establishing a prima facie case is “not
    onerous.” See Tex. Dep’t of Cmty. Affairs v. Burdine, 
    450 U.S. 248
    , 253 (1981);
    see also Wiley v. Glassman, 
    511 F.3d 151
    , 155-56 (D.C. Cir. 2007) (“In either
    20
    situation [discrimination or retaliation], as the Supreme Court has made clear, the
    burden of establishing a prima face case is not onerous.” (quotations and
    alterations omitted)); Orr v. City of Albuquerque, 
    417 F.3d 1144
    , 1149 (10th Cir.
    2005) (describing the burden of establishing a prima facie case as “slight”). The
    McDonnell Douglas framework, “intended progressively to sharpen the inquiry
    into the elusive factual question of intentional discrimination,” Burdine, 
    450 U.S. at
    255 n.8, functions as an analytical tool that “serves to bring the litigants and
    the court expeditiously and fairly to th[e] ultimate question” of whether the
    employee was the victim of intentional gender discrimination, or whether the
    employer’s adverse actions were motivated by a retaliatory intent, 
    id. at 253
    ; see
    Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 153 (2000); Wallace v.
    DTG Operations, Inc., 
    442 F.3d 1112
    , 1119 (8th Cir. 2006). As such, we have
    described the prima facie showing as “relatively lax.” Annett v. Univ. of Kan.,
    
    371 F.3d 1233
    , 1241 (10th Cir. 2004).
    Bearing these descriptions of plaintiff’s burden in mind, we now turn to the
    individual prima facie showings required for Barone’s claims of disparate
    treatment and retaliation.
    1
    Barone claims that United’s actions on August 17, 2006 constituted
    unlawful gender discrimination. Title VII prohibits an employer from
    “discriminat[ing] against any individual with respect to h[er] compensation,
    21
    terms, conditions, or privileges of employment, because of such individual’s . . .
    sex.” 42 U.S.C. § 2000e-2(a)(1). Although the precise articulation of the prima
    facie case “depend[s] on the context of the claim and the nature of the adverse
    employment action alleged,” Plotke, 
    405 F.3d at 1099
    , a prima facie case of
    disparate treatment has three essential elements: Barone must show that (1) she
    “belongs to a protected class;” (2) she “suffered an adverse employment action;”
    and (3) “the challenged action took place under circumstances giving rise to an
    inference of discrimination.” E.E.O.C. v. PVNF, Inc., 
    487 F.3d 790
    , 800 (10th
    Cir. 2007). Within the “sensible, orderly way [that McDonnell-Douglas]
    evaluate[s] the evidence in light of common experience,” Furnco Constr. Corp. v.
    Waters, 
    438 U.S. 567
    , 577 (1978), the analytical function of the prima facie case
    is to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s”
    challenged adverse action, Burdine, 
    450 U.S. at 254
    . Establishing a prima facie
    case narrows the “inquiry into the elusive factual question of intentional
    discrimination” by “in effect creat[ing] a presumption that the employer
    unlawfully discriminated against the employee,” which thereby compels the
    employer to respond with a nondiscriminatory explanation for its decision.
    Burdine, 
    450 U.S. at 254
    , 255 n.8.
    We broadly construe what qualifies as an adverse employment action in
    light of Title VII’s remedial nature. Orr, 
    417 F.3d at 1150
    . An adverse
    employment action occurs under circumstances that “constitute[] a significant
    22
    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.” Stinnett v. Safeway, Inc., 
    337 F.3d 1213
    , 1217
    (10th Cir. 2003) (quotations and citations omitted). We employ a “case-by-case
    approach, examining the unique factors relevant to the situation at hand.” 
    Id.
    (quotations and citations omitted).
    Thus, the operative question with respect to Barone’s gender discrimination
    claim is whether the limited options United presented to Barone during the
    August 17, 2006 meeting “constitute[d] a significant change in employment
    status.” 
    Id.
     (quotations and citations omitted). Despite Barone’s allegations that
    she was removed from management, demoted, transferred, and reduced to part-
    time status, the district court concluded that she could not prove that any such
    adverse employment action occurred, especially because she subsequently
    resigned as a full-time management employee. We disagree with this analysis
    because it fails to view the evidence in the light most favorable to Barone, and it
    fails to assess the immediate impact United’s ultimatum had upon Barone’s
    employment.
    In the light most favorable to Barone, United presented her with two
    definite and clear options on August 17, 2006: she could “either move to Orange
    County as a part-time customer service agent, or [she could] resign from the
    company.” App. 130-31. We conclude that forcing a management employee with
    23
    a successful performance record to “choose” between resigning and relocating
    across several states to continue her employment in a part-time and non-
    management capacity effectively changed Barone’s employment status. United
    compelled Barone to choose between two undesirable options. Whichever option
    Barone chose, it would significantly, and immediately, alter her “compensation,
    terms, conditions, [and] privileges of employment.” 42 U.S.C. § 2000e-2(a)(1).
    Because a reasonable jury could find that these consequences amounted to an
    adverse employment action, we reverse the district court’s grant of summary
    judgment on her gender discrimination claim. See Nance v. Maxwell Fed. Credit
    Union, 
    186 F.3d 1338
    , 1340-41 (11th Cir. 1999) (concluding that the choice
    between a demotion with a salary reduction or a resignation with severance pay
    was an adverse employment action under the ADEA because either option
    “constituted a change in respect to [the employee’s] terms of employment”).
    United characterizes these options as “threats [that] never materialized and
    thus were unfulfilled at the time [Barone] quit.” Aple.’s Br. at 37. As such,
    United contends a third option existed: Barone could have “refused either to
    resign or to accept a demotion, and continued to work in the Manager Position
    until Sprague took–as opposed to threatened to take–an adverse employment
    action against her either by discharging her or demoting her.” 
    Id.
     We reject this
    argument because it ignores our standard of review. In viewing the August 17,
    2006 meeting under the summary judgment standard, we look at only those
    24
    options that United actually presented to Barone. According to Barone’s
    testimony, Sprague gave her only two alternatives, without contingencies, and
    without any opportunity for Barone to avoid these options by somehow improving
    her performance, or even by continuing in her present employment. Sprague
    stressed the urgency of Barone’s response to this ultimatum by “slid[ing] a piece
    of paper [her] way and [telling her] to write out [her] resignation” after Barone
    insisted she could not move to Southern California. App. at 131. And Senior
    Human Resources Generalist Jeanne Nelli confirmed that Sprague’s decision was
    United’s decision by repeating these options after Sprague left and emphasizing
    that she could offer Barone no help: “There’s nothing I can do; they contacted me
    first, and the station made up their mind.” Id. at 132. Thus, in the light most
    favorable to Barone, it is clear that Barone’s demotion and transfer to Southern
    California was not a mere threat but a final decision of her employer, to take
    effect immediately should Barone refuse to resign. 7
    7
    United relies on Seventh Circuit precedent for the proposition that “[a]n
    unfulfilled threat, which results in no material harm, is not materially adverse,”
    Ajayi v. Aramark Bus. Servs., Inc., 
    336 F.3d 520
    , 531 (7th Cir. 2003), but the
    facts of that case are presently distinguishable. In Ajayi, an employer gave its
    employee “a memorandum stating that her position was being eliminated and that
    she would be demoted two weeks later.” 
    Id.
     That demotion never materialized,
    and when the employee later filed suit, the Seventh Circuit concluded that she
    could not establish a prima case of discriminatory demotion because “she, in fact,
    never was demoted.” 
    Id.
    As just discussed, the factual circumstances in this case, viewed in the light
    most favorable to Barone, stand in stark contrast to the facts of Ajayi. Barone’s
    employment consequences had fully materialized as a result of the August 17
    (continued...)
    25
    United does not dispute the remaining elements of Barone’s prima facie
    case of disparate treatment on appeal, and we conclude that she has presented
    sufficient evidence for a reasonable jury to conclude that she belonged to a
    protected class and that the circumstances of her adverse employment action give
    rise to an inference of discrimination. Generally the most common
    nondiscriminatory reasons for an adverse employment action, such as a
    termination, demotion, or failure to hire, are a plaintiff’s lack of qualification or
    the elimination of the position at issue. Beaird v. Seagate Tech., Inc., 
    145 F.3d 1159
    , 1166-67 (10th Cir. 1998); see also Jones v. Denver Post Corp., 
    203 F.3d 748
    , 753 (10th Cir. 2000) (requiring the plaintiff to prove, in a prima facie case of
    discriminatory demotion, that he was “qualified for the position at issue” and that
    “the job from which he was demoted was not eliminated”). Here, Barone has
    presented sufficient evidence to dispel both explanations because United rated her
    as successful three days before her employment ended and United temporarily
    filled her position with a male until selecting a permanent female replacement.
    This evidence, combined with her testimony concerning Sprague’s and
    Mortimer’s demeaning and derogatory behavior toward her and other female
    employees, sufficiently establishes the necessary “logical connection between
    each element of the prima facie case and the inference of discrimination.” Plotke,
    7
    (...continued)
    ultimatum: if Barone did not resign, she would be immediately demoted and
    transferred.
    26
    
    405 F.3d at 1100
    . Accordingly, we conclude Barone has “made the de minimus
    showing required for a prima facie case of gender discrimination.” 
    Id. at 1102
    .
    2
    Barone also claims that United unlawfully retaliated against her for the
    discriminatory payroll practices that she was uncovering. “Title VII’s
    antiretaliation provision forbids employer actions that ‘discriminate against’ an
    employee (or job applicant) because he has ‘opposed’ a practice that Title VII
    forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII
    ‘investigation, proceeding, or hearing.’” Burlington N.& Santa Fe Ry. Co. v.
    White, 
    548 U.S. 53
    , 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). To establish a
    prima facie case of retaliation, Barone must show “(1) that she engaged in
    protected opposition to discrimination, (2) that a reasonable employee would have
    found the challenged action materially adverse–that is, that the action might
    ‘dissuade[] a reasonable worker from making or supporting a charge of
    discrimination,’ and (3) that a causal connection exists between the protected
    activity and the materially adverse action.” PVNF, 
    487 F.3d at 803
     (10th Cir.
    2007) (quoting White, 
    548 U.S. at 68
    ).
    In White, the Supreme Court determined that Title VII’s substantive
    provision, which governs claims of disparate treatment, was not “coterminous”
    with its antiretaliation provision. White, 
    548 U.S. at 67
    . Concluding that “[t]he
    scope of the antiretaliation provision extends beyond workplace-related or
    27
    employment-related retaliatory acts and harm,” the Court adopted a different
    standard to describe “the level of seriousness to which [retaliatory] harm must
    rise before it becomes actionable.” 
    Id.
     “[A] plaintiff must show that a reasonable
    employee would have found the challenged action materially adverse, which in
    this context means it well might have dissuaded a reasonable worker from making
    or supporting a charge of discrimination.” 
    Id. at 68
     (quotations and citations
    omitted). The standard is objective, but it is phrased in “general terms because
    the significance of any given act of retaliation will often depend upon the
    particular circumstances.” 
    Id. at 69
    . “Context matters” in analyzing this
    question; for example, “[a] schedule change in an employee’s work schedule may
    make little difference to many workers, but may matter enormously to a young
    mother with school-age children.” 
    Id.
    Thus, the operative question with respect to Barone’s retaliation claim is
    whether a “reasonable employee in [Barone’s] shoes would have found the
    defendant’s conduct sufficiently adverse that he or she well might have been
    dissuaded by such conduct from making or supporting a charge of
    discrimination.” Williams v. W.D. Sports, N.M., Inc., 
    497 F.3d 1079
    , 1090 (10th
    Cir. 2007). The adverse employment action analysis set forth above applies here
    with equal force, but given that material adversity is a broader standard, we
    expand our view to consider more thoroughly the “‘constellation of surrounding
    circumstances, expectations, and relationships’” that culminated in the August 17,
    28
    2006 consequences. White, 
    548 U.S. at 69
     (quoting Oncale v. Sundowner
    Offshore Servs., Inc., 
    523 U.S. 75
    , 82 (1998)). In the light most favorable to
    Barone, she encountered considerable friction in carrying out her job
    responsibilities, which entailed “continually check[ing] and conduct[ing]
    investigations to correct pay and other systematic problems that were costing the
    company dollars[,] . . . . [and] go[ing] into the records and develop[ing] reports.”
    App. at 494. According to Barone’s testimony, Sprague initially rebuffed her
    findings on improper shift differential, Sprague prohibited her from working with
    World Headquarters on her “EZ Hours” investigation, and as Barone became
    more vocal about her investigations which unearthed discriminatory practices,
    Sprague became more vocal about Mortimer’s perceptions of her investigations as
    useless and unhelpful, as well as Mortimer’s suggestion that Barone should be
    demoted to the ramp to experience reality. Given this opposition to her
    investigations, and given that Barone informed Sprague about the vacation pay
    discrimination report she was finishing during the final week of her employment,
    a reasonable employee in Barone’s shoes could well conclude that the August 17,
    2006 ultimatum was more than mere discouragement of her investigations, but
    was instead an effort to silence the investigator herself. Because a reasonable
    jury could conclude that a reasonable employee in such circumstances might well
    have been dissuaded from making or supporting a charge of discrimination, we
    reverse the district court’s grant of summary judgment on her retaliation claim.
    29
    As with Barone’s gender discrimination claim, United does not dispute the
    remaining elements of Barone’s prima facie case of retaliation on appeal, and we
    conclude that she has presented sufficient evidence for a reasonable jury to
    conclude that she satisfied the remaining two elements. “Protected opposition can
    range from filing formal charges to voicing informal complaints to superiors,”
    Hertz v. Luzenac Am., Inc., 
    370 F.3d 1014
    , 1015 (10th Cir. 2004), and Barone’s
    oral reports to Sprague about the discriminatory payroll practices she was
    discovering certainly fall within this definition. Finally, Barone first reported her
    findings of vacation pay discrimination on July 21, 2006, less than one month
    before her employment ended, and she again informed Sprague about her findings
    during her final week of employment. The close temporal proximity between her
    challenged action (United’s August 17 ultimatum) and her last instances of
    opposition activity (her reports of discrimination) is itself sufficient to infer a
    causal connection. See PVNF, 
    487 F.3d at 804
     (concluding that a temporal
    proximity of less than one month is sufficient to establish a causal connection).
    Accordingly, we conclude that Barone has presented sufficient evidence to
    establish a prima facie case of retaliation.
    3
    In granting United summary judgment on Barone’s Title VII claims of
    disparate treatment and retaliation, the district court ultimately framed the limited
    options that United presented to Barone during the August 17, 2006 meeting as a
    30
    case of constructive discharge, and concluded that Barone’s evidence did not meet
    this substantial showing. Although we have already concluded that Barone can
    establish a prima facie case of disparate treatment and retaliation, we also
    conclude that Barone has presented sufficient evidence to establish a prima facie
    case of constructive discharge.
    As previously outlined, for each claim Barone has raised she must establish
    as a part of her prima facie showing that her employer subjected her to a
    cognizable adverse action. In the district court, Barone also attempted to
    establish that the limited options United presented her during the August 17, 2006
    meeting constituted a constructive discharge. As regards the prima facie showing
    for either disparate treatment or retaliation, constructive discharge is a cognizable
    employment action. Fischer v. Forestwood Co., Inc., 
    525 F.3d 972
    , 979 (10th
    Cir. 2008). To establish a constructive discharge, Barone must meet the
    substantial burden of showing that her employer’s “illegal discriminatory acts
    ha[ve] made working conditions so difficult that a reasonable person in [her]
    position would feel compelled to resign.” PVNF, 
    487 F.3d at 805
     (quotations and
    citations omitted). This is an objective standard: “the employer’s subjective
    intent and the employee’s subjective views on the situation are irrelevant.”
    Strickland v. United Parcel Serv., Inc., 
    555 F.3d 1224
    , 1228 (10th Cir. 2009).
    “We evaluate the voluntariness of an employee’s resignation under an objective,
    totality of the circumstances standard.” Fischer, 
    525 F.3d at 980
    .
    31
    In determining whether the factual circumstances presented also amount to
    a constructive discharge, the question in this case becomes whether Barone’s
    working conditions became so intolerable after the August 17, 2006 meeting that
    a reasonable person in her position would feel compelled to resign. In concluding
    that her working conditions did not meet this standard, the district court
    emphasized how Barone’s own testimony described her options as a “choice,”
    how her request for reinstatement was inconsistent with her claim of intolerable
    working conditions, and how Sprague’s and Mortimer’s offensive behavior did
    not meet this standard. We disagree with this analysis because it improperly
    considered Barone’s subjective views, which we have held are irrelevant to the
    constructive discharge inquiry, see PVNF, 
    487 F.3d at
    806 n.10 (“This [objective]
    standard cuts both ways–just as an employee’s subjective feelings that her
    working conditions were intolerable is not controlling . . ., neither is an
    employee’s desire to continue working despite conditions so intolerable any
    reasonable employee would have long since quit.”), and it failed to assess how the
    options United presented Barone impacted her working conditions.
    Again, viewing the August 17, 2006 meeting in the light most favorable to
    Barone, United presented Barone with two definite and clear options: “move to
    Orange County as a part-time customer service agent, or . . . resign from the
    company.” App. 130-31. In light of the totality of circumstances, we conclude
    that the “choice” between resignation and a compound removal from
    32
    management, demotion to part-time status, and transfer to a distant state was
    effectively no choice at all. Given the drastic employment and personal
    consequences Barone would have to endure were she to continue her employment
    with United, a reasonable jury could conclude that Barone’s working conditions
    became so difficult as a result of the August 17, 2006 meeting that a reasonable
    person in her position would feel compelled to resign.
    We cannot accept United’s argument that these options were mere threats,
    and that Barone should have essentially called United’s bluff by declining either
    option, and remaining in her management position until United took more
    decisive action. The factual circumstances in this case significantly differ from
    those we faced in Exum, where a director with the United States Olympic
    Committee (“USOC”) resigned shortly after his supervisor, in response to the
    director’s refusal to obey an order, called the director “insubordinate, repeated his
    order, and stated that [the director] could leave the USOC sooner rather than
    later.” Exum, 
    389 F.3d at 1132-33
     (internal quotations omitted). There, we
    decided that the plaintiff was not constructively discharged because “[i]nstead of
    resigning, [the director] could have chosen to comply with his superior’s order or,
    alternatively, refused to comply and faced the possible consequences of that
    choice.” 
    Id. at 1136
     (emphasis added). Further foreclosing his contention that he
    was constructively discharged was his decision to remain obstinate even though
    the USOC “suggested alternatives to resignation” and offered to investigate his
    33
    allegations that the USOC encouraged doping and was hostile toward racial
    minorities. 
    Id. at 1133, 1136
    .
    Here, in stark contrast to the director in Exum, Barone faced more than the
    mere possibility of employment consequences. Barone’s supervisor and a senior
    human resources officer made it completely apparent that should she not
    immediately resign from her position, she faced a definite and immediate
    demotion and transfer. In further contrast, United was unwilling to compromise
    post-resignation: Sprague testified that he would not place her in either a
    management or non-management position in Denver that required her to interact
    with prior co-workers, and he did not consider her for any other non-management
    positions in Denver.
    B.
    Notwithstanding our conclusion that Barone can establish a prima facie
    case of disparate treatment and retaliation, United urges us to affirm the district
    court’s grant of summary judgment on the alternative ground that it has offered
    legitimate non-discriminatory reasons for its employment action that Barone
    cannot prove are pretextual. Aple.’s Br. at 40-41. We agree that as an appellate
    court “[w]e may affirm the grant of summary judgment for reasons other than
    those used by the district court as long as they are adequately supported by the
    record.” Aramburu v. Boeing Co., 
    112 F.3d 1398
    , 1402-03 (10th Cir. 1997). We
    decline this invitation, however, because the district court never reached the issue
    34
    of pretext, and given the somewhat conflicting evidence in the record, it will
    likely prove to be a highly fact intensive inquiry.
    IV.
    For the reasons stated, we REVERSE the district court’s grant of summary
    judgment to United and REMAND this case for further proceedings.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    35
    

Document Info

Docket Number: 08-1348

Citation Numbers: 355 F. App'x 169

Judges: Briscoe, Tymkovtch, Holmes

Filed Date: 12/7/2009

Precedential Status: Non-Precedential

Modified Date: 10/19/2024

Authorities (28)

Delores J. Cook v. Rocky Mountain Bank Note Company, a ... , 974 F.2d 147 ( 1992 )

Plotke v. White , 405 F.3d 1092 ( 2005 )

Reeves v. Sanderson Plumbing Products, Inc. , 120 S. Ct. 2097 ( 2000 )

Equal Employment Opportunity Commission v. PVNF, L.L.C. , 487 F.3d 790 ( 2007 )

arthur-r-facteau-v-george-e-sullivan-individually-and-in-his-official , 843 F.2d 1318 ( 1988 )

Fischer v. Forestwood Co., Inc. , 525 F.3d 972 ( 2008 )

Aramburu v. The Boeing Company , 112 F.3d 1398 ( 1997 )

Texas Department of Community Affairs v. Burdine , 101 S. Ct. 1089 ( 1981 )

Burlington Northern & Santa Fe Railway Co. v. White , 126 S. Ct. 2405 ( 2006 )

Orr v. City of Albuquerque , 417 F.3d 1144 ( 2005 )

Wiley v. Glassman , 511 F.3d 151 ( 2007 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Stover v. Martinez , 382 F.3d 1064 ( 2004 )

Williams v. WD SPORTS, NM, INC. , 497 F.3d 1079 ( 2007 )

Stinnett v. Safeway, Inc. , 337 F.3d 1213 ( 2003 )

Vicki H. Brown v. Hartshorne Public School District 1, ... , 926 F.2d 959 ( 1991 )

jeanette-g-garfield-v-jc-nichols-real-estate-a-common-joint-venture , 57 F.3d 662 ( 1995 )

j-casper-heimann-jay-dee-heimann-plaintiffs-counter-defendants-v-ray-a , 133 F.3d 767 ( 1998 )

Annett v. University of Kansas , 371 F.3d 1233 ( 2004 )

View All Authorities »