203 F.3d 748 (10th Cir. 2000)
FREDERICK A. JONES,  KATHERINE PRESTON, AND  LILLIAN B. TURNER,  Plaintiffs - Appellants,v.DENVER POST CORPORATION, a  Colorado corporation,  Defendant - Appellee.
No. 98-1458
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
February 10, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D. Ct. No. 96-S-2359[Copyrighted Material Omitted][Copyrighted Material Omitted]
Scot Melvin Peterson (Michael H. Berger with him on the briefs), Waldbaum,  Corn, Koff, Berger & Cohen, P.C., Denver, Colorado, appearing for Plaintiffs-Appellants.
Mary H. Stuart, Holme, Roberts & Owen, LLP, Denver, Colorado, appearing for  Defendants-Appellees.
Before TACHA, McKAY, and ANDERSON, Circuit Judges.
TACHA, Circuit Judge.


1
The district court granted summary judgment to defendants on plaintiffs'  claims of racial discrimination in employment.  Plaintiffs filed a timely appeal  and we exercise jurisdiction pursuant to 28 U.S.C. § 1291.   We affirm in part and  reverse in part.

I.

2
"We review the district court's grant of summary judgment de novo,  applying the same legal standard used by the district court."  Simms v. Oklahoma  ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326  (10th Cir.), cert. denied, 120 S. Ct. 53 (1999).  Summary judgment is appropriate  "if the pleadings, depositions, answers to interrogatories, and admissions on file,  together with the affidavits, if any, show that there is no genuine issue as to any  material fact and that the moving party is entitled to a judgment as a matter of  law."  Fed. R. Civ. P. 56(c).  "'We view the evidence and draw any inferences in a  light most favorable to the party opposing summary judgment, but that party must  identify sufficient evidence which would require submission of the case to a  jury.'"  Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997) (quoting Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993)).  In an employment  discrimination case, the trial court finding of intentional discrimination against a  protected class is a finding of fact.   EEOC v. Flasher Co., 986 F.2d 1312, 1317  (10th Cir. 1992).  We review this finding for clear error.  Id.

II.

3
The three plaintiffs allege that defendants' employment practices violated  42 U.S.C. § 2000e-2(a)(1) ("Title VII").1  We review each plaintiff's claims  individually.

A. Frederick Jones
1. Background

4
Frederick Jones, an African-American, began working at the Denver Post  ("Post") in 1989.  Between 1989 and 1996, Jones worked primarily as a voluntary  sales representative, processing phone requests for classified advertisements.


5
Beginning in 1992, Jones received letters from Post management regarding  his absenteeism.   On August 11, 1992, Rhonda Canino, one of Jones's  supervisors, issued him a written reprimand for insubordination concerning an  extended lunch hour.  On August 27, Canino advised Jones in writing that he had  abused the company's sick leave policy by taking an unauthorized medical  absence.


6
On January 3, 1995, Rosemary Reitz, another of Jones's supervisors,  issued him a written warning for long-distance telephone calls made on company  time and at company expense.  On September 20, 1995, Jones received an  additional written warning from Nancy Allen, another Post supervisor.  Allen  reprimanded Jones for using Post phones to conduct outside business.  Allen  cautioned Jones that future violations would result in his immediate termination.


7
From late 1995 to early 1996, Jones worked at the Post's fax desk, taking  fax orders from advertisers.  During this period, Reitz approached Jones about  complaints regarding his work.  Reitz advised Jones that if the situation at the  desk did not improve, changes would be made.  After a few months at the fax  desk,  Jones was sent back to the voluntary classified sales department.


8
On April 22, 1996, Jones filed a discrimination charge with the Colorado  Civil Rights Division (CCRD) and the Equal Employment Opportunity  Commission (EEOC).  On August 1, 1996, the EEOC issued Jones a Notice of  Right to Sue.  Jones's discrimination charge alleged that the Post disciplined him  differently than other employees and that the Post demoted him from the fax desk  without warning.  Based on the scope of the charge, the district court limited its  jurisdiction to Jones's claims of disparate treatment and discriminatory demotion  based on race.2

2. Analysis

9
In Title VII cases, the inquiry is whether defendant intentionally  discriminated against plaintiff based on protected class characteristics.  Flasher,  986 F.2d at 1317.  A plaintiff may prove intentional discrimination "'either  directly by persuading the court that a discriminatory reason more likely  motivated the employer or indirectly by showing that the employer's proffered  explanation is unworthy of credence.'"  EEOC v. Wiltel, Inc., 81 F.3d 1508, 1513  (10th Cir. 1996) (quoting United States Postal Service v. Aikens, 460 U.S. 711,  716 (1983)) (second citation omitted).  A personnel policy which is  discriminatory on its face provides direct evidence of intentional discrimination. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22 (1985). Since  Jones offers no evidence of "an existing policy which itself constitutes  discrimination," Ramsey v. City & County of Denver, 907 F.2d 1004, 1008 (10th  Cir. 1990),  his claim rests on indirect evidence of discrimination.


10
In Title VII cases based on indirect evidence, plaintiff has the initial burden  of establishing a prima facie case.  McDonnell Douglas Corp. v. Green, 411 U.S.  792, 802 (1973).  If plaintiff does so, then defendant must "articulate some  legitimate, nondiscriminatory reason" for the challenged personnel action.  Id.  Plaintiff then bears the ultimate burden of demonstrating that defendant's stated  reason is in fact a pretext for unlawful discrimination.  Id. at 804.


11
The district court found that Jones failed to establish a prima facie case of  disparate treatment regarding his discipline by the Post.  We agree.   A prima  facie case of disparate discipline may be established if the plaintiff proves by a  preponderance of the evidence that (1) the plaintiff is a racial minority, (2) the  plaintiff was disciplined by the employer, and (3) the employer imposed the  discipline under circumstances giving rise to an inference of racial discrimination. Cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)  (articulating prima facie case for discriminatory treatment in context of failure to  promote claim); id., at 254 n.6 (The prima facie "standard is not inflexible, as  '[t]he facts necessarily will vary in Title VII cases, and the specification above of  the prima facie proof required from respondent is not necessarily applicable in  every respect in differing factual situations.") (quoting McDonnell Douglas, 411  U.S. at 802 n.13).  One of the ways this third prong may be met, and the method  chosen by Jones here, is by attempting to show that the employer treated similarly  situated employees differently.


12
In the instant case, Jones contends that Rhonda Canino took orders for  pastries from her husband's business during business hours, but the Post did not  discipline her for this alleged conduct.  Since the Post reprimanded Jones for  using Post phones to conduct his outside business, Jones claims disparate  treatment.  However, the comparison Jones makes between himself and Canino is  not legally relevant.  Canino was one of Jones's supervisors and therefore cannot  be deemed similarly situated in a disciplinary matter such as this one.  Jones  points to no other individual who was disciplined differently.  Thus, the district  court correctly granted defendants' motion for summary judgment on this count.


13
Jones also contends that his transfer from the fax desk back to voluntary  sales constituted a discriminatory demotion.  To establish a prima facie case of  discriminatory demotion, plaintiff must show (1) that he was within a protected  group, (2) adversely affected by defendant's employment decision, (3) qualified  for the position at issue,  Hooks v. Diamond Crystal Specialty Foods, Inc., 997  F.2d 793, 799 (10th Cir. 1993), overruled on other grounds by Buchanan v.  Sherrill, 51 F.3d 227, 229 (10th Cir. 1995), and (4) that the job from which he  was demoted was not eliminated,  Perry v. Woodward, 199 F.3d 1126, 1140-41 (10th Cir. 1999).


14
The district court did not evaluate Jones's prima facie case under the  standard outlined above.  Instead, the judge focused on Jones's lack of evidence  concerning similarly situated non-African-American employees.  We therefore  assume without deciding that Jones established a prima facie case, and the burden  shifted to the Post to articulate a legitimate, nondiscriminatory reason for  returning him to voluntary sales.  At this stage, defendant need only "explain its  actions against the plaintiff in terms that are not facially prohibited by Title VII." Flasher, 986 F.2d at 1317.  Jones had a long history of problems at the Post: he  received both verbal and written warnings and was disciplined for various  workplace violations.  In addition, there were specific complaints about his  performance at the fax desk.  Thus, on this record, the Post has met its burden.


15
Jones bears the ultimate burden of demonstrating that defendant's proffered  reasons for his demotion were pretextual.  The district court concluded that the  evidence as a whole was insufficient to create a genuine issue of material fact  regarding pretext.  We agree.  Jones's replacement at the fax desk apparently was  passed over for another position at the Post.  Based on this singular objective fact, Jones offers his personal belief that the replacement was less qualified than he  was for the fax position.  "It is the manager's perception of the employee's  performance that is relevant, not plaintiff's subjective evaluation of his own  relative performance."  Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.  1996).  Based on documented workplace violations and specific complaints, a  Post manager returned Jones to voluntary sales.  We find no evidence of  pretextual behavior and thus affirm the district court's grant of summary  judgment on Jones's discriminatory demotion claim.

B. Katherine Preston
1. Background

16
Katherine Preston, an African-American, began working full-time at the  Post in December 1995 as a voluntary sales representative.  In February and May  of 1996, Preston applied for a promotion to the real estate contract desk.  On both  occasions, the Post selected another employee for the position.  On May 29, 1996,  Preston filed a discrimination charge with the CCRD and the EEOC.  On August  1, 1996, the EEOC issued Preston a Notice of Right to Sue.  In the discrimination  charge, she alleged that she was denied a promotion based on her race.  The  charge specifically limited the date of discrimination to May 22, 1996.

2. Analysis

17
In dismissing Preston's single claim for failure to promote, the district  court assumed she had established her prima facie case.  The court then found that  defendant set forth a legitimate, nondiscriminatory reason for its personnel  decision, and Preston could not make a sufficient showing of pretext.  We affirm  the district court's dismissal of Preston's claim.


18
The Post hired Tara Wagner, a white female, to the position Preston sought  in May 1996.  Nolan Epple, a Post manager, cited the following factors in support  of his decision to hire Wagner: (1) Wagner's experience for one year within the  department, (2) recommendations from both her supervisors, (3) her rapport with  clients, and (4) her ability to work in the team environment at the Post.  We agree  with the district court that Epple's testimony concerning Wagner's superior  qualifications constitutes a legitimate, nondiscriminatory reason for the Post's  decision not to promote Preston.


19
We also agree that Preston has not carried her ultimate burden in  demonstrating genuine issues of material fact concerning pretext.  Preston  counters Epple's objective criteria with her subjective belief that Wagner  contributed to the demotion of a fellow employee, thereby casting doubt on her  abilities as a team player.3   "[P]laintiff's  'mere conjecture that [her] employer's  explanation is a pretext for intentional discrimination is an insufficient basis for  denial of summary judgment.'"   Panis v. Mission Hills Bank, N.A., 60 F.3d 1486,  1491 (10th Cir. 1995) (quoting Branson v. Price River Coal Co., 853 F.2d 768,  772 (10th Cir. 1988)).   We therefore affirm the district court's dismissal of  Preston's May 1996 failure to promote claim.


20
In the First Amended Complaint, Preston alleged numerous additional  discriminatory practices at the Post.  Based on the scope of the discrimination  charge, the district court limited its jurisdiction to the single claim of failure to  promote in May 1996 and dismissed Preston's other claims for failure to exhaust.  On appeal, Preston contends that the district court erred in dismissing two of  these claims.


21
First, Preston claims that the district court should have considered her  claim of failure to promote in February 1996.  We disagree.  A plaintiff must  exhaust her administrative remedies before bringing suit under Title VII. Aramburu, 112 F.3d at 1409.  "The suit may include allegations of discrimination  reasonably related to the allegations listed in the administrative charge, including  new acts occurring during the pendency of the administrative charge."  Id. Preston expressly limited the allegation in the charge to May 22, 1996.  She now attempts to plead past acts not documented in that charge.  Exhaustion gives the  charged party notice of the alleged violation.  Ingels v. Thiokol Corp., 42 F.3d  616, 625 (10th Cir. 1994).  Here, Preston gave notice of a singular failure to  promote and apparently declined to allege a pattern of discrimination.   The  district court therefore properly dismissed this claim for failure to exhaust.


22
Second, Preston argues that the district court should have considered her  claim that the Post retaliated against her for filing an administrative charge. Preston contends that, after the charge was filed, the Post limited her  opportunities to substitute on other desks for extra pay.   It is true that "'an act  committed by an employer in retaliation for the filing of an EEOC complaint is  reasonably related to that complaint, obviating the need for a second EEOC  complaint.'"  Id. (quoting Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d  680, 682 (10th Cir. 1988)).  Thus, the district court should have considered the  retaliation claim on the merits.


23
The Post asserts that Preston did not raise her retaliation claim before the  district court and therefore cannot maintain it on appeal.  We disagree.  Both the  First Amended Complaint and Preston's brief opposing summary judgment raised  this claim, and the district court ruled on it.  We therefore hold that Preston's  retaliation claim is not barred for failure to exhaust, and that Preston adequately  raised it below.  We thus remand the claim for consideration by the district court  on the merits.

C. Lillian Turner
1. Background

24
Lillian Turner, an African-American, joined the Post in 1984 as a contract  sales representative in the automotive department.  During the course of her  employment with the Post, Turner has received numerous verbal and written  warnings concerning absenteeism and performance problems.  On February 29,  1988, M. Jean O'Toole, a manager in the classified department, expressed  concern in writing about Turner's attendance record.  In the spring of 1995,  Rhonda Canino counseled Turner about an error in a particular advertisement.  On  June 9, 1995, Canino issued Turner a written warning based on additional errors  in published advertisements.  On June 20, 1995, Bob Haddad, another Post  supervisor, suspended Turner for one day without pay as a result of continued  customer complaints.


25
Finally, on August 16, 1995, after another customer complaint, the Post  moved Turner from contract to voluntary sales.  Her base salary remained the  same but was frozen for a period of time.  According to plaintiff, she was  eventually promoted back to contract sales.  Defendant neither admits nor denies  this fact.


26
On April 17, 1996, Turner filed a discrimination charge with the CCRD and  the EEOC.  On August 1, 1996, the EEOC issued Turner a Notice of Right to Sue. Given Turner's allegations in the charge, the district court limited its jurisdiction  to Turner's claims of disparate treatment and discriminatory demotion in violation  of Title VII.4

2. Analysis

27
The district court did not expressly evaluate Turner's prima facie case for  discriminatory demotion under the controlling criteria set forth in Hooks and Perry.   We therefore assume without deciding that Turner established a prima  facie case and the burden shifted to the Post to articulate a legitimate,  nondiscriminatory reason for returning Turner to voluntary sales.  As set forth  above, Turner had a history of discipline problems at the Post.  The company  imposed progressive discipline for continued violations, which culminated in the  demotion at issue.  By documenting a pattern of performance problems, the Post  has met its burden at this stage of the McDonnell Douglas analysis.


28
To survive summary judgment, Turner must demonstrate that "there is a  genuine dispute of material fact as to whether the employer's proffered reason for  the challenged action is pretextual   i.e. unworthy of belief."  Randle v. City of  Aurora, 69 F.3d 441, 451 (10th Cir. 1995).  Turner has not done so on the record  before us.  Turner concedes that she was the lowest producer on the automotive  desk and admits to making numerous errors with her advertisements.  The  gravamen of her allegation is that other employees on the contract desk made  similar errors and were not disciplined accordingly.   However, Turner has  produced only generic and conclusory testimony to support this allegation.  When  opposing a motion for summary judgment, the non-movant may not rest upon  "mere allegations" but must "set forth specific facts showing that there is a  genuine issue for trial."  Fed. R. Civ. P. 56(e).  The affidavits Turner produced  are wholly devoid of any specific instances of disparate treatment.


29
Beyond that, there is no evidence in the record that any supervisor was  aware of the alleged mistakes committed by fellow employees.   In fact, one  supervisor, in his written reprimand, expressly informed Turner that other sales  representatives with comparable responsibilities were not having the same  problems.  Turner even acknowledged that she does not know if advertisers were  making similar complaints about other employees.  Thus, Turner has not  demonstrated that there is a genuine issue of material fact concerning pretext, and  we therefore affirm the district court's dismissal of this count.


30
Turner's claim of disparate treatment fails for the same reasons.  One  method plaintiff may employ to give rise to an inference of racial discrimination  is to show that she was treated differently than other similarly situated employees. The record contains the affidavits of similarly situated employees who state that,  in their opinion, the Post subjected Turner to disparate treatment.  However, these  employees reference no particular incidents to support the charge.  Without  specific examples of unlawful discrimination, Turner cannot withstand a motion  for summary judgment.  See id. at 1408 n.7 (stating that fellow employees'  subjective belief that employer discriminated against plaintiff is not sufficient to  preclude summary judgment).  In addition, we have found no objective evidence  of disparate treatment in the record.  For example, there is no independent  evidence that a white employee made the same mistakes as Turner and that this  white employee's supervisor knew about the mistakes but did not discipline the  employee.  Thus, we also affirm the district court's dismissal of Turner's  disparate treatment claim.

D. Attorney Fees to Canino

31
Finally, plaintiffs contend that the district court erred in awarding  attorney  fees to defendant Canino.  We review the factual findings underlying an attorney  fee award for abuse of discretion.  Mann v. Reynolds, 46 F.3d 1055, 1062 (10th  Cir. 1995).  However, we review de novo the legal conclusions supporting the  award.  Bryan v. Office of Personnel Mgmt., 165 F.3d 1315, 1320 (10th Cir.  1999).


32
In the First Amended Complaint, Turner asserted a single claim against  Canino for "Aggravation of Preexisting Medical Conditions."  The district court  found that this self-styled allegation did not state a claim for relief under  Colorado law.  The court thus dismissed the claim pursuant to Fed. R. Civ. P.  12(b)(6).


33
"When exercising jurisdiction over pendent state claims, we must apply the  substantive law of the forum state . . . just as we would if our jurisdiction rested  on diversity of citizenship."  Lytle v. City of Haysville, 138 F.3d 857, 868 (10th  Cir. 1998).  In the Tenth Circuit, attorney fee statutes are considered substantive. See Boyd Rosene & Assocs. v. Kansas Mun. Gas Agency, 174 F.3d 1115,  1118  (10th Cir. 1999) (finding that attorney fees are substantive for diversity purposes).  Therefore, the district court properly consulted Colo. Rev. Stat. Ann. § 13-17-201 (West  1999), the applicable Colorado fee recovery statute.5


34
Section 13-17-201 provides that if a court dismisses a personal injury  action pursuant to a 12(b) motion, then "defendant shall have judgment for his  reasonable attorney fees."6  Because the  district court dismissed Turner's  "personal injury" action on a Rule 12(b) motion, the court properly awarded her  fees.  See Smith v. Town of Snowmass Village, 919 P.2d 868, 873 (Colo. Ct.  App. 1996) (finding that where entire action against one defendant was dismissed  but claims remained against another defendant,  § 13-17-201 entitles prevailing  defendant to attorney fees).


35
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for  further proceedings consistent with this opinion.



Notes:


1
 Denesia Bey was also a  plaintiff in the  district court.  Ms. Bey did not  appeal from the final judgment of that court and therefore is not a party to this  appeal.


2
 In his First Amended Complaint, Jones  raised additional claims that the  district court found unrelated to his discrimination charge.  The court dismissed  these claims for failure to exhaust, and Jones does not appeal the dismissal of  these additional claims.


3
 In her brief,  Preston also relies on affidavit  testimony from two co-workers.  However, this testimony only relates to a claim Preston failed  to  exhaust below.


4
 In her First Amended Complaint, Turner  raised additional claims that the  district court found unrelated to the administrative charge.  The court dismissed  these claims for failure to exhaust, and Turner does not appeal the dismissal of  these additional claims.


5
 At one point in its order, the district court  cites both state and federal law  concerning fee recovery.  However, the court clearly relied upon Colorado law in  its final order awarding fees to Canino.  We therefore review the district court's  application of Colorado law and do not address the court's reference to federal  law.


6
 Section 13-17-201 expressly applies only to  actions dismissed under Rule  12(b) of the Colorado Rules of Civil Procedure.  However, we find the statute  applies with equal force when a federal court dismisses a pendent state tort  pursuant to Fed. R. Civ. P. 12(b)(6).



36
McKAY, Circuit Judge, concurring in part and dissenting in part:


37
I join in the court's opinion except as to Appellant Turner.  I am persuaded  that the trial court erred in treating the affidavit testimony of fellow employees  Jeffry J. Mangin and Gloria K. Smith as conclusory and nonprobative.  This  testimony, viewed in a light most favorable to Ms. Turner, is sufficient to  establish a prima facie claim for disparate treatment.  Based on this evidence, a  trier of fact could find that "the employer imposed the discipline [on Ms. Turner]  under circumstances giving rise to an inference of racial discrimination."  Maj.  Op. at 6.  As noted by the majority, a showing that she was treated differently  than similarly situated employees is sufficient to demonstrate such circumstances. See id.  The testimony is also sufficient to create a substantial fact issue  concerning pretext in connection with the discriminatory demotion claim.


38
Far from being merely conclusory as the majority determines, the testimony  of these fellow employees in the classified advertising department represents both  specific facts and specific observations which are both relevant and persuasive.

Mr. Mangin's affidavit stated:

39
All of us made mistakes and Lillian made no more mistakes  than the rest of us. . . .


40
... When I made errors I was not written up[;] however when  Lillian made errors she was written up by Rhonda Canino.  The  volume was enormous, as I stated above, and everyone made  mistakes so why did they single out Lillian.  Susan Passwalt and I  even had discussions regarding the fact that Lillian was being  singled out.


41
Appellants App., Vol. 2 at 404-05.1  This is  not mere conclusion and allegation. It is statement of fact by one who knows whether his mistakes were known to  their joint supervisor and who was in a clear position to observe the difference in  consequences.  Who better to know the facts than the one receiving preferential  treatment.  At the summary judgment stage it is not necessary for a witness who  is integral to the environment at issue to submit a comparative table of errors or  even to cite specific cases.  When he says he was "not written up," that  adequately implies that his errors were known.


42
Ms. Smith's testimony included the fact that "Rhonda was out to get  Lillian and some of the charges were minor and common for the people working  in that department.  It was clear to me and many others in classified that Lillian  was being badgered."  Id. at 426.  This is not the "vague and conclusory" stuff  the trial court held it to be.  First of all, "badgering" does not lend itself to tables  and charts.  It is uniquely one of those things any person can recognize.  This is a  fellow employee, intimately and uniquely in a position both to observe and  compare.  Moreover, the affidavits reveal that the badgering was so open and  notorious as to be a matter of common discussion within the office.  The detailed  differences in the frequency of errors is a matter for cross-examination at  trial not for dismissal at summary judgment.


43
Because Ms. Turner has presented evidence demonstrating genuine issues  of material fact, I would reverse and remand for trial in her case.



Notes:


1
 Ms. Smith's affidavit indicates that the two  employees who worked at the  automotive contract desk in the same position as Ms. Turner, Mr. Mangin and Ms.  Passwalt (or Patzwaldt), were not of minority descent.  See Appellant's App.,  Vol. 2 at 426.


