Tabor v. Hilti, Inc. , 577 F. App'x 870 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 2, 2014
Elisabeth A. Shumaker
Clerk of Court
RONICA R. TABOR; DACIA S. GRAY,
Plaintiffs-Appellants,
v. No. 13-5114
(D.C. No. 4:09-CV-00189-GKF-PJC)
HILTI, INC., a domestic for profit (N.D. Okla.)
business corporation; HILTI OF
AMERICA, INC., a foreign for profit
business corporation,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
Ronica R. Tabor and Dacia S. Gray filed claims under Title VII of the Civil
Rights Act of 1964, alleging sex discrimination by Hilti, Inc. and Hilti of America,
Inc. (collectively, Hilti). Ms. Tabor appeals the district court’s judgment in favor of
Hilti, following separate bench and jury trials on her claims asserting disparate
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
impact and disparate treatment. Ms. Gray appeals the district court’s grant of
summary judgment to Hilti on her disparate impact claim.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
In their amended complaint, Ms. Tabor and Ms. Gray alleged that Hilti
discriminated against them and a class of similarly situated plaintiffs on the basis of
their sex in selecting employees for promotion from customer service jobs to outside
sales Account Manager positions. The district court refused to certify a class and
then granted summary judgment in Hilti’s favor on all claims. Tabor v. Hilti, Inc.,
703 F.3d 1206, 1211 (10th Cir. 2013). On appeal, we affirmed the district court’s
denial of class certification, as well as its grant of summary judgment on Ms. Tabor’s
retaliation claim and Ms. Gray’s disparate treatment claim. Id. at 1230. We reversed
the court’s grant of summary judgment on Ms. Tabor’s disparate treatment and
disparate impact claims. Id. We also directed the court to rule in the first instance on
Ms. Gray’s disparate impact claim since its earlier order did not spell out the basis
for summary judgment. Id. at 1227, 1230.
On remand, the district court first entered summary judgment in Hilti’s favor
on Ms. Gray’s disparate impact claim. At Ms. Tabor’s request, the court then
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bifurcated her disparate impact and disparate treatment claims, agreeing to try them
separately. A trial to the court on her disparate impact claim proceeded first.1
In support of that claim, Ms. Tabor was required to show “that (a) an employment
practice (b) causes a disparate impact on a protected group.” Id. at 1220. We have
noted that “[s]tatistical evidence is an acceptable, and common, means of proving
disparate impact.” Id. at 1222 (internal quotation marks omitted). Ms. Tabor
presented expert statistical analysis supporting her contention that Hilti’s Global
Development and Coach Process (the GDCP) was an employment practice that
caused a disparate impact on a protected group, specifically female employees
seeking promotions from customer service jobs to outside sales Account Manager
positions. It was also Ms. Tabor’s burden to show that she was “personally [a]
victim of discrimination by the challenged employment practice.” Id. at 1221 n.7
(internal quotation marks and brackets omitted).
The district court issued findings of fact and conclusions of law, holding that
Hilti was entitled to judgment on Ms. Tabor’s disparate impact claim because she had
not carried her burden to demonstrate that the GDCP caused a disparate impact on the
protected group. The district court further held that Ms. Tabor failed to show she
personally suffered discrimination as a result of the GDCP.
1
The district court had ruled that the disparate impact claim permitted only
equitable relief and therefore should be decided by the court. See Aplt. App., Vol. I
at 189-90.
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After the bench trial concluded on Ms. Tabor’s disparate impact claim, the
court held a pretrial conference on Ms. Tabor’s disparate treatment case. The court
heard argument on whether the statistical evidence Ms. Tabor had presented in the
disparate impact trial should be included in the pretrial order for the jury trial on her
disparate treatment claim. The court ultimately decided to exclude that evidence
from the pretrial order.
As the jury trial was beginning, Ms. Tabor filed a motion to amend the pretrial
order to include the evidence regarding her statistical analysis. The district court
denied her motion, and Ms. Tabor’s disparate treatment case proceeded to trial
without admission of her expert statistical evidence. The jury returned a verdict in
favor of Hilti.
II. Discussion
Ms. Tabor contends that the district court erred in deciding her disparate
impact claim by holding that her statistical analysis failed to show that the GDCP
caused a disparate impact on the protected group. She also asserts that the district
court erred in concluding that she failed to show she personally suffered
discrimination as a result of the GDCP.
As to her disparate treatment claim, Ms. Tabor argues that the district court
erred in excluding her statistical evidence from the pretrial order and in denying her
motion to amend the pretrial order to include that evidence.
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Ms. Gray contends that the district court erred in granting Hilti summary
judgment on her disparate impact claim.
A. Ms. Tabor’s Disparate Impact Claim
Ms. Tabor had the burden to show that the challenged employment practice—
the GDCP—caused a disparate impact on female employees seeking promotions from
customer service jobs to outside sales Account Manager positions. See Tabor,
703 F.3d at 1222. For her statistical evidence to be reliable, it had to “isolate and
identify the specific employment practices that are allegedly responsible for any
observed statistical disparities.” Id. at 1223 (internal quotation marks and brackets
omitted).
The requirement to isolate the challenged employment practice is
important because it goes directly to causation. . . . [A] plaintiff cannot
establish her claim simply by showing that, at the bottom line, there is
an imbalance in the work force. The imbalance must actually be a result
of the challenged employment practice.
Id. at 1223-24 (citation and internal quotation marks omitted).
The district court found that Hilti’s GDCP and its interview process are
separate processes. It then held that, because Ms. Tabor’s statistical analysis failed to
isolate the GDCP from the interview process, the evidence did not show that the
disparate impact was caused by the GDCP. The court ultimately ruled that Ms. Tabor
had not carried her burden to demonstrate that the GDCP caused a disparate impact
on the protected group.
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The district court did not commit clear error in concluding that Hilti’s GDCP
and interview process are separate. We do not reach Ms. Tabor’s second contention
that the GDCP and the interview process were not capable of separation for analysis
because she did not raise that issue in the district court.
To better understand Ms. Tabor’s contentions, we begin our analysis with a
summary of the district court’s relevant findings of fact and conclusions of law.
1. District Court’s Findings of Fact
a. Facts Regarding the GDCP
Ms. Tabor alleged that “the GDCP was the employment practice responsible
for the alleged disparate impact.” Aplt. App., Vol. V at 1574. The district court
found that the “GDCP tracks different aspects of an employee’s readiness to promote,
and is made up of two components: the Performance Management Process (‘PMP’)
and the Strategic Management Development (‘SMD’) process.” Id. at 1570-71.
Under the PMP, a Hilti manager evaluates an employee’s past performance and sets
her goals going forward. The SMD process includes ratings assessing an employee’s
mobility (M-rating) and her promotability (P-rating). For example, an M1-D rating
means the employee is “[r]eady to move anywhere domestically.” Id. at 1572. An
employee with a P1 rating is considered “[r]eady for next development step within
12 months.” Id.
The court further found that “The Red Thread Dimensions are Hilti’s ‘core
values’ that run through everything in the organization and its employee
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management.” Id. at 1573 (internal quotation marks omitted). The Red Thread
Dimensions consist of six criteria: “Understanding and Defining what need[s] to be
done,” “Getting things done,” “Working with Others,” “Developing Yourself &
Others,” “Functional Expertise,” and “Understanding the Business.” Id. These
dimensions “are interwoven into both components of the GDCP[:] the PMP and SMD
processes.” Id. at 1574. They are also “interwoven into the interview process.
Interviewers rate a candidate on a scale of 1-5 based on the interviewer’s judgment of
whether the candidate meets or exceeds the criteria for successful job performance
within each of the dimensions.” Id. (citation omitted).
Importantly, the district court also found that “[t]he SMD process identifies
employees who are interested in promotional opportunities within Hilti,” and that
“[t]he output of the SMD process is a ‘pool’ or list of employees used as a
management tool to track employees interested in promotions.” Id. at 1571. The
court further found that “[t]he potential candidates on the SMD list must interview
and compete for future jobs. Thus, the promotional process for prospective Account
Managers involves both the GDCP and a separate interview process. The SMD
process and the interview process are different processes.” Id. (citation omitted).
b. Facts Regarding Ms. Tabor’s Statistical Analysis
The district court noted that Ms. Tabor’s expert analysis found “a statistically
significant (at a 95% confidence level) disparate impact based on sex when reviewing
Account Managers hired [during the relevant time periods] compared to the proxy
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feeder group [of all Base Market employees].” Id. at 1579. But as we discuss below,
the district court did not credit this testimony.
c. Facts Regarding Ms. Tabor
The district court found that Ms. Tabor worked for Hilti in customer service
positions beginning in January 2006. As of April 2007, she had expressed an interest
in becoming a customer service Team Leader. She was rated a P1 under the SMD
process at that time. During the third quarter of 2007, Ms. Tabor decided she wanted
to pursue promotion to an Account Manager position. She applied to be an Account
Manager in the fall of 2007, and interviewed for jobs located in two different cities in
November of that year. Three candidates were interviewed—two women and one
man. The other candidates were both offered Account Manager positions; Ms. Tabor
was not. Ms. Tabor’s PMP review dated January 31, 2008, indicated she was mobile
with a geographic preference for five states. Her review predicted that she would be
an Account Manager by the first or second quarter of 2008. Ms. Tabor resigned from
Hilti effective April 5, 2008.
2. District Court’s Conclusions of Law
The court determined that, “[b]ecause the GDCP is an employee development
process that generates a talent pool of internal candidates who may be interviewed
for promotions, it functions as an employment practice.” Aplt. App., Vol. V at 1583.
But the court held that the evidence was insufficient to demonstrate that the GDCP
caused a disparate impact.
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The court initially held that Ms. Tabor’s expert statistical analysis was
“methodologically sound and reliable.” Id. Due to a lack of data indicating which
Hilti employees had actually applied for Account Manager positions, the court
concluded that Ms. Tabor’s analysis had identified a proper proxy for the applicant
pool for those jobs, specifically three categories of customer service positions that
Hilti considered the “Base Market.” Id. at 1584. The statistical analysis also
“controlled for important variables other than sex that could impact promotion rates.”
Id. As a result of Hilti’s incomplete data, the court held that Ms. Tabor’s failure to
control for SMD P- and M-ratings did not render the analysis unreliable.
The court held, however, that Ms. Tabor’s statistical analysis “did not isolate
the GDCP.” Id. at 1585. It elaborated as follows:
[The expert] report compares eventual Account Managers to the proxy
of Base Market employees. The GDCP outputs a pool of potentially
promotable employees. To move from Base Market to Account
Manager requires an employee to go through an additional process – the
interview process – which is separate from the GDCP. And external
applicants are not directly subject to the GDCP at all.
Id. The court concluded that, “[b]ecause [the expert analysis] does not isolate the
GDCP from the interview process, the disparate impact may be caused by one or both
of those processes. And without knowing which of those processes cause[s] the
alleged disparate impact, the court would be unable to fashion an appropriate
equitable remedy.” Id. Ultimately, the court held that “[b]ecause the statistical
evidence does not isolate the GDCP, [Ms.] Tabor has not carried her burden of
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demonstrating that the GDCP causes a disparate impact on female feeder pool
applicants who apply for outside sales Account Manager positions.” Id. at 1586.
The district court further determined that Ms. Tabor was not affected by the
GDCP: “Tabor applied for an Account Manager position, participated in the GDCP,
earned the highest [P-]rating possible, and interviewed for the Account Manager
positions. Thus, through the GDCP, Tabor secured an interview for the Account
Manager positions.” Id. at 1587. The court concluded that the decision not to hire
Ms. Tabor as an Account Manager “resulted from the interview process, not the
GDCP. Therefore, even if [Ms.] Tabor had demonstrated the GDCP caused a
disparate impact on female Account Manager applicants, that discrimination would
not have applied to her personally.” Id.
3. Standards of Review
“In an appeal from a bench trial, we review the district court’s factual findings
for clear error and its legal conclusions de novo.” Keys Youth Serv., Inc. v. City of
Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001).2 The district court’s factual findings
are clearly erroneous only if they are “without factual support in the record, or if the
appellate court, after reviewing all the evidence, is left with the definite and firm
conviction that a mistake has been made. If there are two permissible views of the
evidence, the fact-finder’s choice between them cannot be clearly erroneous.”
2
Ms. Tabor does not address in her opening brief the standard of review
applicable to each of her claims, as required by Fed. R. App. P. 28(a)(8)(B).
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Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir. 1998)
(citation and internal quotation marks omitted).
The applicable standard of review for a claim of error in a disparate impact
case “depends upon the basis of the alleged error.” Villanueva v. Carere, 85 F.3d
481, 486 (10th Cir. 1996). We review for clear error the district court’s factual
determination that Hilti’s GDCP and interview processes are separate processes. See
id. at 486-87 (applying clear error review to factual findings underlying the court’s
disparate impact determination). We review de novo the district court’s holding that
Ms. Tabor did not satisfy her burden to show a disparate impact because her
statistical analysis failed to isolate the GDCP. See id. (holding appellate court
reviews district court’s “method of analysis” de novo).
4. The District Court’s Finding that Hilti’s GDCP and its
Interview Process are Separate Processes was not Clearly
Erroneous
Ms. Tabor asserts there is no evidence that the interview process and the
GDCP are separate processes. She maintains that the interview is a component of the
GDCP and that all GDCP components are interrelated through the Red Thread
Dimensions. She fails, however, to show that the district court’s finding on this issue
was clearly erroneous.
Khesa Pinkard, a former Regional Manager with Hilti (and plaintiff’s witness),
testified that the GDCP consists of the PMP and the SMD, intertwined with the Red
Thread Dimensions. Aplt. App., Vol. III at 683-84; 689-90. She stated, as well, that
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a document titled Hilti’s SMD & Red Thread Process Manual outlines the GDCP.
Id. at 685. That process manual cautions employees that “[t]he SMD process
never guarantees a promotion to an individual. The output is a ‘pool’ of potential
candidates that will need to interview and compete for future jobs!” Id., Vol. II
at 425.
Ms. Tabor’s statistical analysis was intended to demonstrate a disparate impact
on women caused by the GDCP. Her expert witness testified regarding his
understanding of the GDCP, stating that it included “coaching,” “feedback,” and
“evaluations.” Id., Vol. III at 984. He also indicated that the SMD & Red Thread
Process Manual described what he understood to be the GDCP. Id. at 985.
David Perkins, a director with Hilti, testified that the SMD process and the
interview process are separate processes. Id., Vol. IV at 1275. Christy Graybill,
another Hilti director, testified that the SMD is not a selection process; rather, “[i]t
helps coach and develop our team members in their career path.” Id. at 1326. She
stated that the outcome of the SMD process is to provide “a talent pool from which
we’ve identified candidates who are ready to take on a next role and as soon as
they’re able to interview for a next position.” Id. Addressing the SMD & Red
Thread Process Manual, see id. at 1329, Ms. Graybill testified the process described
in the manual is designed to help employees get into the interview pool for positions
they are interested in, and that it does not impact who is actually selected for a
competitive job, id. at 1331-32. She also made clear that, in addition to promoting
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from within, Hilti also fills Account Manager positions through external hires.
Id. at 1389.
The district court found that the GDCP is made up of two components: the
PMP and the SMD. It concluded that the SMD process outputs a pool of employees
interested in promotion to other positions within Hilti, who “must interview and
compete for future jobs. Thus, the promotional process for prospective Account
Managers involves both the GDCP and a separate interview process. The SMD
process and the interview process are different processes.” Id., Vol. V at 1571
(citation omitted). The court concluded further that “[t]he GDCP applie[s] only to
internal applicants, and thus [does] not apply to all prospective Account Managers.”
Id. at 1574. Based on the evidence presented at trial and the reasonable inferences
therefrom, the district court’s findings are not clearly erroneous.
5. Ms. Tabor Failed to Raise in the District Court her
Contention that the GDCP and the Interview Process are not
“Capable of Separation for Analysis”
Title VII provides that a plaintiff must “demonstrate that each particular
challenged employment practice causes a disparate impact.” 42 U.S.C.
§ 2000e-2(k)(1)(B)(i). But the statute provides for an exception to that burden if the
plaintiff can instead “demonstrate to the court that the elements of a respondent’s
decisionmaking process are not capable of separation for analysis.” Id. In that case,
“the decisionmaking process may be analyzed as one employment practice.” Id.
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Ms. Tabor contends that, even if the GDCP and the interview process are
separate processes, the district court erred by presuming that the interview process is
capable of analytic isolation from the GDCP components. In that way it thereby
erred in concluding that she failed to carry her burden to prove a disparate impact
caused by the GDCP. She argues that all of the components of the GDCP and the
interview process are interrelated and tightly integrated through the use of
overlapping criteria, namely the Red Thread Dimensions. As a result, she maintains,
the GDCP and the interview process are not capable of separation for analysis. See,
e.g., Muñoz v. Orr, 200 F.3d 291, 304 (5th Cir. 2000) (“[W]here a promotion system
uses tightly integrated and overlapping criteria, it may be difficult as a practical
matter for plaintiffs to isolate the particular step responsible for observed
discrimination.”). And she contends that the district court erred in presuming
otherwise.
Under § 2000e-2(k)(1)(B)(i), it was Ms. Tabor’s burden to demonstrate that
the GDCP and the interview process are not capable of separation for analysis and
should be analyzed as one employment practice. She argued in the district court that
the elements of the GDCP are not capable of separation for analysis, and she does not
assert on appeal that the district court failed to treat the GDCP as a single
employment practice. But she did not raise that contention with respect to the GDCP
and the interview process. “[O]ur general rule is not to address arguments that were
not first presented to the district court.” Carpenter v. Boeing Co., 456 F.3d 1183,
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1198 n.2 (10th Cir. 2006) (declining to address contention that evidence was
“sufficient to trigger subsection 2000e-2(k)(1)(B)(i),” when plaintiffs failed to show
they raised that issue in the district court); see also Utah Animal Rights Coal. v. Salt
Lake Cnty., 566 F.3d 1236, 1244 (10th Cir. 2009) (“[W]e generally do not consider
new theories on appeal—even those that fall under the same general category as one
that was presented in the district court.”).
We reach this conclusion for several reasons. First, the final pretrial order for
the bench trial on Ms. Tabor’s disparate impact claim identified the GDCP as the
challenged employment practice, Aplt. App., Vol. II at 392, and listed as an issue to
be tried: “Whether the elements of defendants’ decision-making process are capable
of separation for analysis and, if so, whether the court should analyze the decision-
making process as one employment practice,” id. at 394. Hilti argued in closing that
the evidence showed the GDCP and the interview process are separate processes and
that the GDCP is not a selection process. The district court indicated at that time that
it was struggling with the question of what aspect of the GDCP Ms. Tabor contended
was the cause of the disparate impact.
Then, in her post-trial brief, Ms. Tabor described the GDCP as made up of the
PMP, the SMD, and the Red Thread Dimensions. See id., Vol. V at 1539. She did
not mention the interview process. Ms. Tabor acknowledged the district court’s
request that she pinpoint what aspect of the GDCP caused the disparate impact.
See id. at 1540. She argued that the court should characterize the GDCP as a single
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employment practice because the GDCP is an overly subjective process lacking
uniform criteria and providing supervisors with unbridled discretion. She continued
by describing the overly subjective aspects of the SMD and the PMP, again not
mentioning the interview process. See id. at 1540-42. Thus, Ms. Tabor did not
indicate to the district court that she was “attempting to make the required showing of
analytical inseparability,” Carpenter, 456 F.3d at 1198 n.2, specifically with regard
to the GDCP and the interview process, and the district court did not make any ruling
on that issue. We therefore decline to address her argument for the first time on
appeal.
We affirm the district court’s judgment in favor of Hilti on Ms. Tabor’s
disparate impact claim.3
B. Ms. Tabor’s Disparate Treatment Claim
Regarding her disparate treatment claim, Ms. Tabor argues that the district
court erred in excluding her statistical analysis evidence from the pretrial order, and
in denying her motion to amend the pretrial order to include that evidence. Both at
the pretrial conference, and in response to Ms. Tabor’s motion to amend the pretrial
order, the district court emphasized its decision, at her request, to try separately her
disparate impact and disparate treatment claims. It noted its bifurcation decision was
3
Because Ms. Tabor has not shown error in the district court’s dispositive ruling
that her statistical analysis failed to demonstrate that the GDCP had a disparate
impact on the protected group, we need not address her alternative argument that the
district court erred in concluding that she was not personally affected by the GDCP.
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based, in part, on avoiding jury confusion regarding the statistical evidence. We find
no abuse of discretion in the district court’s rulings.
Federal Rule of Civil Procedure 16(c) “authorizes the district courts to hold
pretrial conferences designed to aid in the disposition of cases, and enter orders
subsequent thereto which control the subsequent course of the action, unless
modified at trial to prevent manifest injustice.” Smith v. Ford Motor Co., 626 F.2d
784, 795 (10th Cir. 1980) (internal quotation marks and ellipsis omitted). The
pretrial order “insure[s] the economical and efficient trial of every case on its merits
without chance or surprise,” and “measures the dimensions of the lawsuit, both in the
trial court and on appeal.” Id. (internal quotation marks omitted). Rule 16 lists the
matters to be considered at the pretrial conference, including “formulating and
simplifying the issues,” “avoiding unnecessary proof and cumulative evidence,”
“determining the form and content of the pretrial order,” and “ordering a separate
trial under [Fed. R. Civ. P.] 42(b) of a claim.” Fed. R. Civ. P. 16(c)(2)(A), (D), (J)
& (M). Rule 42(b) provides that, “[f]or convenience, to avoid prejudice, or to
expedite and economize, the court may order a separate trial of one or more
separate . . . claims.”
1. District Court’s Bifurcation Decision
“District courts have broad discretion in deciding whether to sever issues for
trial . . . .” F.D.I.C. v. Everett A. Holseth & Co., 36 F.3d 1004, 1008 (10th Cir. 1994)
(internal quotation mark omitted). Here, the district court’s initial inclination was to
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proceed with one trial addressing both of Ms. Tabor’s discrimination claims. See
Aplt. App., Vol. I at 190 (directing parties to address how the disparate impact claim
would be tried and suggesting “[o]ne alternative might be to try the [disparate
treatment claim] to the jury, and to present any additional evidence to the court on
the disparate impact claim during jury deliberations”). The court indicated that,
under its suggested approach, Ms. Tabor could present her disparate impact evidence
to the court in written form. Id. at 212.
Ms. Tabor responded that she would prefer to try the disparate impact claim
first and thereby avoid “confusing the jury with it.” Id. at 213. The court
preliminarily agreed with this proposal, likewise expressing a concern about the jury
being confused by the statistical data to be presented on the disparate impact claim.
See id. at 213-14. Ms. Tabor then commented that “part of the reason the disparate
impact claim is viewed as equitable . . . is that there’s judicial expertise in dealing
with difficult statistical information like that.” Id. at 214. The district court
ultimately decided to grant Ms. Tabor’s request to try her disparate impact claim to
the court first, followed by a separate jury trial on her disparate treatment claim.
2. The District Court did not Abuse its Discretion by Excluding
the Statistical Evidence from the Pretrial Order in
Ms. Tabor’s Disparate Treatment Case
At the pretrial conference for Ms. Tabor’s disparate treatment claim, the court
heard argument on whether her statistical evidence should be included in the pretrial
order. The court initially observed:
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It seems to the court that we bifurcated this matter at plaintiff’s request
and tried the disparate impact case first at plaintiff’s request. Disparate
impact evidence has no bearing in terms of statistics and the like in a
disparate treatment case so . . . that evidence is simply not going to
come in again in the disparate treatment [trial].
Id., Vol. V at 1590-91. The court noted further that the disparate treatment trial
would focus on comments related to Ms. Tabor’s gender allegedly made by a Hilti
Division Manager during her interview for the Account Manager positions, not on
whether the GDCP caused a disparate impact on female employees. Ms. Tabor did
not disagree, but argued nonetheless that the statistical analysis was evidence that a
jury could consider in a disparate treatment trial.
The court then reviewed its rationale for bifurcating the claims and trying them
separately, stating that “part of the rationale given for trying disparate impact first to
the court was so as not to confuse the jury with statistics. . . . And frankly, I am very
reluctant to go that direction.” Id. at 1603. The court stated further:
[W]e’ve already spent four days in trial on this case, and one of the
reasons for doing that was for judicial economy as well as to try to save
money for the clients for both sides. And now you’re saying the same
evidence that came in before me can come in before the jury. Now, I
really have a little problem with that because basically we’re doing the
same thing twice. Had you persuaded me of that beforehand, we would
have tried it all [at] once and I would have decided the equitable side
and the jury would have decided the legal side. And, in fact, that’s how
I went into our first series of final pretrial conferences, of wanting to do
that, and you took the position that it was necessary to bifurcate and
persuaded me of that.
Id. at 1604-05.
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Ms. Tabor countered that the reason for bifurcating the claims was to prevent
the jury from deciding the disparate impact claim. She maintained that jury
confusion could be avoided and judicial economy could be served by admitting only
the transcript of the expert’s testimony in the disparate treatment trial. The district
court was not persuaded and concluded as follows:
I don’t think that testimony which focuses on the alleged disparate
impact of the GDCP process is proper before a jury particularly after I
was persuaded to bifurcate so as to avoid confusing the jury with it.
And in terms of regression analyses, frankly it’s hard enough for
us as lawyers and judges to wrap our heads around that as opposed to a
jury. That’s what the focus of the expert testimony was.
. . . . So based upon what I’ve been presented here, we’ll keep
the statistical evidence separate, and that is firmly within the bosom of
the court, believe me.
Id. at 1606-07 (emphasis added).
In making this ruling, the court carried through its previous reasoning in
bifurcating the claims. “A trial court necessarily possesses considerable discretion in
determining the conduct of a trial, including the orderly presentation of evidence.
Even evidence which is relevant may be excluded in order to promote the
administration of the judicial process . . . .” Thweatt v. Ontko, 814 F.2d 1466, 1470
(10th Cir. 1987) (citation omitted). As noted, Ms. Tabor requested the separate trials
and expressed agreement with the court’s primary basis for doing so. She has not
shown that the district court abused its discretion in excluding her statistical evidence
from the pretrial order for her disparate treatment jury trial.
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3. The District Court did not Abuse its Discretion in Denying
Ms. Tabor’s Motion to Amend the Pretrial Order
On the first day of the jury trial, Ms. Tabor moved the district court to amend
the pretrial order to include her statistical evidence. She argued the amendment was
necessary to prevent manifest injustice because the evidence was relevant to her
disparate treatment claim, and without it she would not be able to fully and fairly
litigate her claim; that Hilti would not be prejudiced, or any prejudice could be cured;
and that she was not proceeding in bad faith by seeking an amendment.
After further argument by the parties, the district court denied Ms. Tabor’s
motion to amend. While acknowledging “that evidence of pretext may include prior
treatment of plaintiff, [and] the employer’s policy and practice regarding minority
employment, including statistical data,” Aplt. App., Vol. V at 1754 (internal
quotation marks omitted), the court nonetheless concluded:
Given where we are – and I think I need to put this in context –
the plaintiff[] had convinced me before we tried the disparate impact
case to bifurcate and to try the disparate impact case first. One of the
convincing arguments or the convincing considerations at that time –
and the record will reflect – that by doing that we wouldn’t have to
present to a jury in the disparate treatment portion of the case the
statistical evidence here.
....
. . . [H]aving bifurcated the case in part to consider the statistical
data in connection with the disparate impact claim . . . .
. . . I believe it would, No. 1, be extremely prejudicial to the
defense given that here just minutes before trial we have a motion to
amend to admit the statistical evidence and it would severely prejudice
the defendant insofar as the defendant would then have to marshal facts
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to defend against that statistical evidence in the disparate treatment
case.
....
I think now it would be extremely prejudicial to do an about-face,
particularly an about-face with regard to plaintiff’s procedural position
that we would present the statistical evidence to me in the disparate
impact case, and had it been clear to me that the plaintiff wished to
present statistical evidence in the disparate treatment case, we would
have tried this once and I would simply have made the decision on the
disparate impact claim separately and apart from the jury.
So with due respect, the last-minute motion to amend the pretrial
order . . . will be denied.
Id. at 1753-55.
“We review the denial of a motion to amend a pretrial order for an abuse of
discretion.” Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208 (10th Cir. 2002).
A pretrial order will only be amended “to prevent manifest injustice.” Id. (internal
quotation mark omitted).
We consider the following factors in a challenge to a district court’s
denial of a motion to amend the pretrial order and resulting exclusion of
an issue: (1) prejudice or surprise to the party opposing trial of the
issue; (2) the ability of that party to cure any prejudice; (3) disruption
by inclusion of the new issue; and (4) bad faith by the party seeking to
modify the order. We also take into consideration the timeliness of the
movant’s motion to amend the order.
Id. at 1210 (citation and internal quotation marks omitted).
The district court did not abuse its discretion in applying these factors. It
reiterated that one of the considerations in bifurcating the disparate impact claim and
trying it first was to avoid confusing the jury with the statistical evidence. The court
referred to Ms. Tabor’s “about-face” with regard to that procedural position, to which
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she had previously acquiesced. Aplt. App., Vol. V at 1755. It stated it would have
tried both claims together had she made clear her intent to present the statistical
evidence in her disparate treatment case. The court concluded that Hilti would be
prejudiced by having to marshal facts to defend against that evidence in the disparate
treatment jury trial. And it referred to Ms. Tabor’s “last-minute motion to amend the
pretrial order.” Id.
Ms. Tabor first asserts that her statistical evidence was relevant to her
disparate treatment claim, but the district court did not hold otherwise. She contends
that she did not intend, by bifurcating her claims, that she would later be precluded
from introducing relevant evidence to the jury in her disparate treatment case. But
this argument ignores her agreement during the pretrial conference preceding the
bench trial that separate trials would avoid jury confusion regarding the statistical
evidence. Finally, Ms. Tabor contends that Hilti would not have been prejudiced or
surprised. But she ignores that Hilti had proceeded since the court’s decision to
bifurcate her claims on the assumption that it would not be defending against the
statistical evidence in the jury trial on her disparate treatment claim. It was within
the district court’s discretion to consider the impact of Ms. Tabor’s last-minute
motion to amend the pretrial order on Hilti’s prepared defense. Finding no abuse of
discretion in the district court’s determinations regarding the pretrial order for
Ms. Tabor’s disparate treatment trial, we affirm the judgment in favor of Hilti on that
claim.
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C. Ms. Gray’s Disparate Impact Claim
In discussing Ms. Gray’s disparate impact claim in Tabor, we stated that “Hilti
has offered undisputed evidence that multiple managers warned Ms. Gray about
performance and disciplinary problems.” 703 F.3d at 1227. We advised that, “[i]f
the district court determines there is no genuine dispute that Ms. Gray was
unqualified for the promotion based upon criteria not connected to the challenged
employment practice, then summary judgment in Hilti’s favor is appropriate.” Id.
On remand, the district court entered summary judgment against Ms. Gray on
her disparate impact claim, holding there was “no genuine dispute that [she] was
unqualified for promotion based on criteria not connected to the GDCP system.”
Aplt. App., Vol. VIII at 2802. In reaching this conclusion, the court referenced its
previous summary judgment ruling on Ms. Gray’s disparate treatment claim, in which
it held she was not qualified for the Account Manager position due to her lack of
field training and personal concerns about her job performance expressed by her
managers. The court held that these criteria were not connected to the GDCP.
We review a district court’s grant of summary judgment de novo, viewing the
facts in the light most favorable to Ms. Gray and drawing all inferences in her favor.
Tabor, 703 F.3d at 1215. Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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Ms. Gray contends the district court erred in concluding that Hilti’s failure to
promote her was unconnected to the GDCP. She maintains that her lack of field
training and her managers’ concerns about her job performance were connected to the
challenged employment practice because manager discretion and the process of
defining “qualified” employees were one and the same under the overly subjective
GDCP.
As to her performance issues, Ms. Gray points to evidence that male
employees with lower P-ratings than hers were nonetheless promoted. She asserts
that “[e]vidence that Plaintiff Gray’s supervisors had personal concerns regarding her
qualification for promotion go directly to the subjective nature of the GDCP and are
not unconnected to the challenged employment practice at all.” Aplt. Opening Br. at
50. We agree. The district court failed to explain its conclusion that a manager’s
personal concerns regarding an employee’s performance are unrelated to the
subjective ratings assigned to the employee under the GDCP.
But the district court also relied on evidence of Ms. Gray’s lack of field
training. She does not dispute that field training was an objective requirement for
promotion to Account Manager. She maintains, however, that this criterion is
likewise connected to the overly subjective GDCP because managers had unfettered
discretion to allow only male employees to complete field training, thereby keeping
female employees “unqualified” to become Account Managers. The district court
held that this criterion was unrelated to the GDCP because no one from Ms. Gray’s
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division—male or female—was permitted to do field training during the relevant
time period. Ms. Gray argues there is a genuine dispute regarding that fact.
In reaching its conclusion that field training was unavailable to any employee,
the district court referenced its summary judgment ruling on Ms. Gray’s disparate
treatment claim.4 There the court stated that Ms. Gray
attempted to get more field experience in 2008 because it was a
prerequisite for promotion to outside sales. During the period
[Ms.] Gray sought field experience, however, no customer service
employees were permitted to go on field training because the
department was short-handed and field training typically lasted one to
two weeks.
ECF 123 at 3. Ms. Gray does not contest the district court’s finding regarding the
relevant time period during which she sought further field training. We conclude that
the evidence she cites does not show that male employees were permitted to do field
training at that time. See Aplt. App., Vol. VIII at 2524, 2548 (Ms. Gray’s deposition
testimony identifying four male employees who she witnessed being offered field
training or engaging in field training, without any indication of the timeframe); id. at
2612 (document noting male job applicant completed a “[f]ield ride” in November
2007); see also ECF 120-2 at 2 (affidavit of same job applicant distinguishing his
4
Ms. Gray did not include this order in the Appellants’ Appendix. We take
judicial notice of the district court’s docket, specifically its order granting summary
judgment in favor of Hilti on Ms. Gray’s disparate treatment claim. See Tabor v.
Hilti, Inc., No. 09-cv-189-GKF-FHM (N.D. Okla. Sept. 2, 2011) (order granting
summary judgment), ECF No. 123 (hereafter cited by ECF and page number); see
also United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (court has
discretion to take judicial notice of publicly filed records concerning matters bearing
directly on disposition of case at hand).
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one-day field ride in November 2007 from “field coverage” completed by inside sales
employees for training purposes).5 Ms. Gray has not shown error in the district
court’s conclusion that she was unqualified for a promotion to Account Manager
based upon a criterion—lack of field training—not connected to the GDCP.
The judgment of the district court is affirmed.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
5
We take judicial notice of Hilti’s reply and exhibits in support of its summary
judgment motion, which Ms. Gray also did not include in the Appellants’ Appendix.
See Tabor v. Hilti, Inc., No. 09-cv-189-GKF-FHM (N.D. Okla. Mar. 11, 2011) (reply
in support of summary judgment motion), ECF No. 120.
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