                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                      November 8, 2005
                               TENTH CIRCUIT
                                                                          Clerk of Court

 ANN GARRISON; PAMELA
 BIELSKI; VICKY DUNBAR;
 TERESITA WELLS; CONNIE
 BRADY; SHERRY CONWAY;
 PATRICIA ERICKSON,                                     No. 04-1409

             Plaintiffs-Appellants,

       v.

 GAMBRO, INC.,

             Defendant-Appellee.


Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Appellee’s motion to publish the order and judgment of October 6, 2005, is

granted. A copy of the published opinion is attached.



                                                  Entered for the Court
                                                  Clerk of Court


                                                  By:
                                                         Deputy Clerk
                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                       PUBLISH
                                                                       October 6, 2005
                    UNITED STATES COURT OF APPEALS
                                                                        Clerk of Court
                                TENTH CIRCUIT



    ANN GARRISON; PAMELA
    BIELSKI; VICKY DUNBAR;
    TERESITA WELLS; CONNIE
    BRADY; SHERRY CONWAY;
    PATRICIA ERICKSON,                                  No. 04-1409

              Plaintiffs-Appellants,

        v.

    GAMBRO, INC.,

              Defendant-Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
                    (D.C. No. 02-WM-2239 (MJW))


Submitted on the briefs: *

John R. Olsen of Olsen & Brown, LLC, Niwot, Colorado, for Appellants.

Kathleen E. Craigmile of Bennington, Johnson, Biermann & Craigmile, LLC,
Denver, Colorado for Appellees.




*
       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.
Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.


ANDERSON, Circuit Judge.



      Plaintiffs/appellants Ann Garrison, Pamela Bielski, Vicky Dunbar, Teresita

Wells, Connie Brady, Sherry Conway, and Patricia Erickson appeal from summary

judgment granted in favor of defendant/appellee Gambro, Inc., on their claims for

employment discrimination filed pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e-e17; the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621-634; and the Colorado Anti-Discrimination Act, Colo.

Rev. Stat. §§ 24-34-401 to -406. Our jurisdiction arises under 28 U.S.C. § 1291.

Because we conclude that plaintiffs failed to establish a prima facie case of

discrimination or retaliation, we affirm the grant of summary judgment.



                             I. Standard of Review

      Our standard of review is well established.

             We review the district court’s grant of summary judgment de
      novo, applying the same legal standard used by the district court.
      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). When applying this standard,
      we view the evidence and draw reasonable inferences therefrom in
      the light most favorable to the nonmoving party.

                                        -2-
             Although the movant must show the absence of a genuine issue
      of material fact, he or she need not negate the nonmovant’s claim.
      Once the movant carries this burden, the nonmovant cannot rest upon
      his or her pleadings, but must bring forward specific facts showing a
      genuine issue for trial as to those dispositive matters for which he or
      she carries the burden of proof. The mere existence of a scintilla of
      evidence in support of the nonmovant’s position is insufficient to
      create a dispute of fact that is ‘genuine’; an issue of material fact is
      genuine only if the nonmovant presents facts such that a reasonable
      jury could find in favor of the nonmovant.

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165

F.3d 1321, 1326 (10th Cir. 1999) (quotation marks, citations, and brackets

omitted).



                              II. Undisputed Facts

      The plaintiffs all are women over forty years old who work for Gambro as

assemblers of disposable medical products. Prior to November 2001, they worked

as assemblers in a medical equipment-manufacturing area with six men and two

other women, most of whom were also over forty years old. After the company

experienced significant quality-related problems in equipment assembly, Gambro

decided to reorganize that area, to make several changes in the manufacturing

process (including adding self-inspection duties and intensive formal training by

the company’s engineers), and to divide the equipment-assembly work into two

categories called EQ-1 (with only six positions) and EQ-2. Both new positions

had an elevated pay band.

                                         -3-
      As part of its reorganization plan, Gambro decided to require anyone who

wanted to work in either EQ-1 or EQ-2 positions to pass industry-approved,

standardized assessment examinations that measure four skills: assembly,

inspection, mechanical comprehension, and mechanical dexterity. If the

pre-reorganization equipment-assembly employees did not want to take the exam

or could not pass all sections of it, Gambro gave them the options of leaving the

company with or without a separation package, applying for other jobs within

Gambro, or moving to assembly jobs in the medical-disposables assembly area.

All of the plaintiffs and most of the other equipment-assembly employees decided

to apply for the EQ-1 and/or EQ-2 positions and to take the exam.

      At least five of the fifteen former equipment-assembly employees (four

men over forty and one woman who was 36) passed all sections of the assessment

test and were offered jobs in the EQ-1 and EQ-2 categories. Three women (21,

37, and 39 years old), who were not originally employed in the equipment-

manufacturing area, passed all sections of the exam and were also offered jobs in

EQ-1. After these hires, the female-to-male ratio in EQ-1 was 4 women and 2

men. Both men were over forty years old. As a result of the total reorganization

efforts, equipment-assembly quality dramatically improved.

      None of the plaintiffs passed all sections of the skills assessments, and

none were offered equipment-assembly jobs. But all of them were offered, and


                                         -4-
accepted, positions in the medical-disposables assembly area, which they

considered to be a demotion in pay grade and an alteration in the terms and

conditions of their employment. Plaintiffs contended that they were discriminated

against because of their sex and age by being demoted to the disposable-assembly

positions and/or not being hired in the EQ-1 positions, and filed complaints with

the EEOC. They received right-to-sue letters after the EEOC was “unable to

conclude that the information obtained establishes violations of the statutes.”

Aplt. App. at 24. In their federal complaint, they also claim that Gambro

retaliated against them for having asserted their claims, and they allege disparate

impact as an alternate theory of discrimination. See id. at 20.

      After extensive discovery, Gambro moved for summary judgment,

contending that plaintiffs could not establish a prima facie case of discrimination

based on age or sex because their failure to pass the mandatory skills assessments

precluded qualification for the EQ-1 positions they desired. Alternatively,

Gambro asserted that it had a valid, non-discriminatory reason for not placing

plaintiffs in the EQ-1 positions—that they did not pass the mandatory assessment

tests, and that no evidence supported an inference of pretext or a finding of

discrimination. The district court granted summary judgment on this alternate

ground.




                                         -5-
      Gambro presented evidence showing that the assessment testing did not

have a disparate impact upon women or individuals over forty years of age and

that it hired a greater percentage of female applicants in the position than male

applicants. The district court concluded that plaintiffs had failed to make a prima

facie showing that the assessment testing disparately affected women. As to the

retaliation claim, Gambro asserted, and the district court agreed, that plaintiffs

could not show a materially adverse employment action. Plaintiffs appeal,

arguing that the district court did not apply proper summary judgment standards

to their discrimination and retaliation claims and that they presented sufficient

evidence of pretext and disparate impact to survive summary judgment.



                                    III. Analysis

      We analyze the age and sex discrimination claims identically. See Garrett

v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002) (noting that the

three-step analytical framework established by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), for disparate-treatment claims

brought under Title VII also applies to ADEA claims). Here, the plaintiffs

presented no direct evidence of age or sex discrimination, relying instead on the

McDonnell Douglas framework of presenting indirect evidence of discrimination.




                                          -6-
      A. Qualification for the new positions. “In the context of summary

judgment, the McDonnell Douglas framework requires a plaintiff to raise a

genuine issue of material fact on each element of the prima facie case, as

modified to relate to differing factual situations.” Rakity v. Dillon Cos., 302 F.3d

1152, 1164 (10th Cir. 2002) (quotation marks omitted).

             In McDonnell Douglas, the Supreme Court enumerated the
      elements required in order for a plaintiff to establish a prima facie
      case in the failure to hire context. These are: (i) plaintiff belongs to
      a protected class; (ii) plaintiff applied and was qualified for a job for
      which the employer was seeking applicants; (iii) despite being
      qualified, the plaintiff was rejected; and (iv) after plaintiff’s
      rejection, the position remained open and the employer continued to
      seek applicants from persons of [plaintiff’s] qualifications.

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000)

(quotation marks omitted). Thus, plaintiffs first had to establish a prima facie

case of discriminatory demotion or failure to hire by showing that they were

qualified for the EQ-1 position at issue. Indeed, not being qualified for a job is

one of the two “most common nondiscriminatory reasons for [a] plaintiff’s

rejection.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981);

Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005).

      Gambro vigorously contends, both below and on appeal, that plaintiffs did

not show they were qualified for the position they sought to fill because they had

not successfully passed the mandatory skills assessment test, and therefore could

not make a prima facie case of discrimination. Burdine, 450 U.S. at 253 (noting

                                         -7-
that, to establish a prima facie case of disparate treatment a “plaintiff must prove

by a preponderance of the evidence that she applied for an available position for

which she was qualified, but was rejected under circumstances which give rise to

an inference of unlawful discrimination”); E. Tex. Motor Freight Sys., Inc. v.

Rodriguez, 431 U.S. 395, 403-04 (1977) (noting that, since “plaintiffs lacked the

qualifications to be hired . . . they could have suffered no injury as a result of the

alleged discriminatory practices”); Faulkner v. Super Valu Stores, Inc., 3 F.3d

1419, 1427 (10th Cir. 1993) (“An important prerequisite to establishing a prima

facie case is that each plaintiff was qualified for the job.”).

      Plaintiffs argued that they were qualified for the EQ-1 positions because

those positions involved essentially the same assembly work as their previous jobs

and they had received good job-performance evaluations in the past. The district

court held that this evidence created a genuine issue of material fact regarding

qualification and denied summary judgment on this theory.

      But it was undisputed that the new EQ-1 positions required the assemblers

to self-inspect their work and to undergo 200 hours of formal, intensive training

by engineers, which created increased workplace expectations. Thus, it was not

unreasonable to require more than good, subjective past-performance evaluations

in selecting the very best applicants, particularly in light of the quality problems.

As the Seventh Circuit has noted,


                                           -8-
      [e]mployers, not employees or courts, are entitled to define the core
      qualifications for a position, so long as the criteria utilized by the
      company are of a nondiscriminatory nature. And there is certainly
      nothing inherently discriminatory about an employer’s decision to
      use criteria other than past performance evaluations to determine
      whether its employees can meet the increased workplace expectations
      that often coincide with a corporate reorganization. Gorence v.
      Eagle Food Centers, Inc., 242 F.3d 759, 765 (7th Cir. 2001) (noting
      that “[w]hat the qualifications for a position are, even if those
      qualifications change, is a business decision, one courts should not
      interfere with”).

Cerutti v. BASF Corp., 349 F.3d 1055, 1064-65 (7th Cir. 2003) (citation omitted).

Like the Seventh Circuit, we have emphasized that we “will not second guess

business decisions made by employers, in the absence of some evidence of

impermissible motives.” Lucas v. Dover Corp., 857 F.2d 1397, 1403-04 (10th

Cir. 1988).

      As mentioned above, it was undisputed that serious quality-control

problems existed in the equipment-assembly area despite the fact that the

employees there had been given good evaluations in the past and were considered

by some to be great employees. Gambro’s expert witness opined that one “fair

and job-related” way to improve quality and choose the most qualified individuals

for Gambro’s EQ-1 positions was to select individuals who performed well on

industry-approved, standardized tests specifically designed to measure assembly,

inspection, and mechanical aptitudes and abilities. Aplt. App. at 197, 204.

Plaintiffs contend that they submitted evidence to counter the expert’s opinion.


                                        -9-
But a review of the proffered evidence shows that the “evidence” was nothing

more than plaintiffs’ and another employee’s personal opinions that the

assessments did not test what they did in the past on a day-to-day basis. This,

however, was not the purpose of the assessment tests. Plaintiffs presented no

evidence that the assessments did not validly measure skills and aptitudes

required in the EQ-1 and EQ-2 positions. We conclude that this testimony does

not raise a genuine issue whether the assessment tests were fair and job related.

      We also reject plaintiffs’ claim that basing the EQ-1 qualification on the

skills assessments results were invalid because there allegedly were “disturbing

procedural irregularities in the testing.” Aplt. Br. at 13. Despite their claims that

certain of the written tests were “largely illegible” and the “typeface too small to

read,” all the applicants were given the same test and all of the applicants chosen

for the EQ-1 and EQ-2 positions, including females and individuals over forty

years old, could read it well enough to pass it. This is not the type of disturbing

procedural irregularity that may give rise to a jury question regarding intent to

discriminate. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1138 n.11

(10th Cir. 2003) (recognizing “deviations from normal company procedure” as

evidence of a “disturbing procedural irregularit[y]”) (quotation marks omitted);

Simms, 165 F.3d at 1328 (listing “falsifying or manipulating hiring criteria” as

examples of “disturbing procedural irregularities”).


                                         -10-
      Before even conducting the skills assessments, Gambro decided that

passing those tests with a minimum score would be a mandatory requirement for

qualification for the EQ-1 and EQ-2 positions. It is undisputed that the same

assessment tests were administered to all applicants for the EQ-1 positions,

regardless of age or sex; that only those applicants who passed the test with a

minimum score were offered EQ-1 jobs; and that all displaced equipment-

assembly employees over forty and females who passed the assessment were

offered EQ-1 positions. Under these facts, as a matter of law plaintiffs cannot

make a prima facie case of employment discrimination because they were not

qualified to apply for the positions. See Faulkner, 3 F.3d at 1427. Therefore,

summary judgment was properly granted to Gambro on the issues of intentional

age and sex discrimination. See Ross v. U.S. Marshal, 168 F.3d 1190, 1194 n.2

(10th Cir. 1999) (court may affirm the district court’s judgment on ground not

relied on by the district court if supported by the record, “provided the litigants

have had a fair opportunity to develop the record”) (quotation marks omitted).

We need not address all of plaintiffs’ arguments regarding pretext. See Simms,

165 F.3d at 1328 (noting that only after the plaintiff has met his prima facie

burden is a discriminatory intent presumed, which then shifts the burden to the

defendant to “articulate a facially nondiscriminatory reason for the challenged

employment action”) (quotation marks omitted).


                                         -11-
      B. Retaliation. The district court dismissed plaintiffs’ retaliation claim

because their allegations did not rise to the level of a materially adverse

employment action sufficient to satisfy their burden of showing that Gambro

altered their compensation, terms, conditions, or privileges of employment or

adversely affected their status as employees. See Aplt. App. at 899. Plaintiffs

complain that the court ignored evidence. Specifically they assert that, after the

decision not to hire one of the plaintiffs in an EQ-1 position had already been

made and she asked to have her lawyer present in conversations about an optional

separation package, Gambro’s vice-president asked, “What do you want? Do you

want money or a better job? . . . You can’t have your job back, and let’s not get

the lawyers involved in this.” Aplt. App. at 461, 463; Aplt. Br. at 49. Plaintiffs

assert that this statement, in the context of the situation, provides sufficient

evidence of retaliation to avoid summary judgment. We disagree. “[N]ot

everything that makes an employee unhappy qualifies as retaliation.” Sanchez v.

Denver Pub. Sch., 164 F.3d 527, 533 (10th Cir. 1998) (quotation marks omitted).

The plaintiff to whom this comment was allegedly made ended up accepting

employment in the medical-disposables assembly department and choosing not to

terminate her employment. Suggesting that the parties work out a satisfactory

resolution without involving lawyers was not a retaliatory act that affected her

employment status and, therefore, did not constitute an adverse employment


                                         -12-
action. See id. The district court properly granted summary judgment on the

retaliation claim.

      C. Disparate impact. Disparate impact is an alternate theory for recovery

for discrimination. Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 448 (10th Cir.

1981). A disparate impact claim may be established when a plaintiff shows that a

facially neutral employment practice falls “more harshly on one group than

another and cannot be justified by business necessity.” Id. (quotation marks

omitted). The district court held that plaintiffs had not supplied sufficient

evidence of disparate impact because “[t]he only evidence presented by Plaintiffs

on this subject is that Plaintiffs’ ‘replacements’ were ‘mostly young and men,’”

which was insufficient “to create a genuine issue for trial.” Aplt. App. at 897.

      Plaintiffs allege that the district court “strain[ed] to grant summary

judgment” by ignoring their evidence. Aplt. Br. at 45-46. They point to a

document showing the names and other information regarding eighteen current

employees in the whole equipment-assembly area. But the plaintiffs only applied

for the six positions available in the EQ-1 area, choosing not to apply for the

EQ-2 and EQ-3 positions. The document therefore is not relevant to their

disparate-impact claim. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642,

650-51 (1989) (“It is such a comparison—between the racial composition of the

qualified persons in the labor market and the persons holding at-issue jobs—that


                                        -13-
generally forms the proper basis for the initial inquiry in a disparate-impact

case.”). As the district court pointed out, Gambro provided undisputed evidence

that

       as to the EQ-1 positions applied for by Plaintiffs, Defendant hired
       four women for the six positions, and in fact hired approximately
       19% of the women who applied and only 7% of the men who applied
       for these positions. . . . [S]ix out of twenty-seven women
       (approximately 22%) received jobs in the reorganized Equipment
       Manufacturing, while twelve out of sixty-five men (approximately
       18%) received jobs in reorganized Equipment Manufacturing.

Aplt. App. at 897 (emphasis added). The district court properly granted summary

judgment on the disparate-impact claim. 2

       Plaintiffs’ motion to amend the sub-heading in their reply brief is

GRANTED. The judgment of the district court is AFFIRMED.




2
      Plaintiffs do not appeal from the dismissal of the disparate-impact claim
based on age.

                                         -14-
