                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 21, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    DAVA DALVIT;
    DEBRA BENJAMIN,

                Plaintiffs-Appellants,

    v.                                                   No. 08-1283
                                             (D.C. Nos. 1:07-CV-725-WDM-CBS
    UNITED AIRLINES, INC.,                         & 1:07-CV-726-WDM)
                                                          (D. Colo.)
                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, MURPHY, and HARTZ, Circuit Judges.



         Plaintiffs Dava Dalvit and Debra Benjamin sued United Air Lines, Inc.

(UAL) asserting discrimination and retaliation claims under a variety of federal

and state statutes. The district court granted summary judgment in favor of UAL

on all of their claims. Plaintiffs now appeal the grant of summary judgment on




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
their discrimination and retaliation claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

                                 BACKGROUND

      1. Organization of the FIT Team

      Plaintiffs worked as ramp supervisors at UAL’s facility at Denver

International Airport (DIA). Ramp supervisors were responsible for various tasks

associated with ensuring the on-time departure of aircraft. They reported to

Operating Managers, who reported to Department Managers, who reported in turn

to the Station Manager.

      Ramp supervisors were responsible for working an eight-hour day and for

certifying their hours worked using an automated “pay certification” process. 1

If they left early before completing an eight-hour day, they were required to

inform an Operating Manager before leaving. For hourly exceptions such as

arriving late or leaving early, they were expected to handwrite the exceptions on

their pay certifications. There is some question about how strictly the pay

certification process was enforced. While UAL’s policies do not permit




1
       Some evidence in the record suggests that ramp supervisors were actually
required to “cert” an eight-and-one-half hour day, with the half-hour being
allocated to a lunch break. Any such factual discrepancy is not material to the
issues in this appeal, and we refer throughout this order and judgment to an
eight-hour day.

                                         -2-
supervisors to certify that they have worked an eight-hour day when they have not

done so, plaintiffs assert that male supervisors did so at times without penalty.

      In late 2005, UAL began assembling a temporary “FIT Team” at DIA. As

initially constituted, the FIT Team included three women--both plaintiffs and one

other female ramp supervisor--and three male ramp supervisors. The purpose of

the FIT Team, whose initials stood for “fix, improve, transform,” was to improve

performance on the ramp. 2 Appointment to the FIT Team was not considered a

promotion, but Kevin Mortimer, UAL’s Department Manager of Ramp Services,

did tell at least one member of the FIT Team that it would be advantageous to his

career development to be part of the team.

      The FIT Team met for the first time on November 28, 2005. At this

meeting, Steve Nail, who was overseeing the team, set out his expectations

concerning working hours for team members. He stated that there would not be

any pre-determined start or finish times for their shifts, and that team members

could work a flexible schedule, with some days shorter than eight hours, and

some days longer, so long as they completed all their required tasks. Team

members were, however, required to keep him informed as to what shifts they

would be working.



2
      The “FIT Team” is sometimes referred to in the record as the “ROP Team.”
“ROP” stands for “resource optimization.” For the sake of consistency, we refer
throughout this order and judgment to the “FIT Team.”

                                         -3-
      Plaintiff Benjamin asked Nail, in light of their flexible hours, how FIT

Team members were supposed to “cert” their time. He said he would get

clarification for her on that issue, but he never did. Benjamin admits that while

working as a member of the FIT Team, she turned in pay certifications showing

that she had worked eight hours on some days when she had not. Pay

certification was complicated by the fact that the certification schedules were no

longer handwritten and she couldn’t write in her actual time on the certifications

as she had previously done. Instead, Benjamin kept a log of her actual hours on

the computer. She did not provide this log to management.

      Plaintiff Dalvit testified that while she was on the FIT Team, work start

times were flexible and sometimes she left early. She did not tell anyone on

occasions when she left early. As she understood it, communication about

leaving early was not expected of Team members.

      2. Initial Investigation of Plaintiffs’ Time Certifications

      In December 2005, shortly after the FIT Team was assembled, two

Operating Managers, Steve Peters and Terry Schenck, expressed concern to Nail

that plaintiffs may not have been working full, eight-hour shifts. Nail asked if the

men had any evidence. They replied that they did not.

      Around the same time, Nail assigned plaintiffs to attend a 5:00 a.m.

briefing to explain the purpose of the FIT Team to other supervisory employees.

When Nail later asked Peters how the briefing had gone, Peters had no idea what

                                         -4-
he was talking about. He told Nail that plaintiffs had not attended the briefing and

had not discussed the FIT Team as ordered.

      Nail took his concerns about plaintiffs’ attendance to his immediate

supervisor, Mortimer, and asked him for guidance on how to deal with the

situation. Mortimer told Nail to check plaintiffs’ “badge histories” to see what

they showed about their attendance. Nail obtained from the City and County of

Denver records showing plaintiffs’ entry and exits from the secure areas of DIA

and their entries and exits from the employee parking lots at DIA (referred to in

the record as plaintiffs’ “rings”). He then prepared spreadsheets using these

records summarizing plaintiffs’ access card use for December 2005. The records

and spreadsheets revealed that plaintiffs had failed to work an eight-hour day on

some of the days they had certified that they had worked eight hours.

      Armed with these records and spreadsheets, Mortimer approached

James Kyte, UAL’s Station Manager at DIA, and asked him for advice. Kyte

determined that an investigation was warranted. He selected Jean Massey,

Department Manager of Facilities and Ground Equipment Maintenance,

a department completely separate from Ramp Services, to conduct the

investigation. He felt that Massey would bring an unbiased perspective to

the situation.




                                         -5-
      3. Massey’s Investigation

      Massey examined the plaintiffs’ DIA rings and the spreadsheets Nail had

prepared. On December 28, 2005, Massey and Nail met separately with each

plaintiff to discuss the investigation. Massey advised plaintiffs that she was

conducting an investigation into discrepancies between the hours recorded on

their pay certifications and their arrival and departure records. She showed them

their DIA rings. Plaintiff Dalvit responded that they were part of a special

assignment team and had flexible hours. Massey replied that she was not

concerned about the days when plaintiffs worked late, only the days when they

went home early but turned in certifications showing that they had worked a

full day.

      Massey then confiscated plaintiffs’ access badges and sent them home. The

decision to send plaintiffs home was Massey’s. Massey later told plaintiffs they

could submit information to her to be considered as part of the investigation.

      The investigation continued. Massey discussed the problem of hours for

FIT Team members with Nail. He told her that he had told members of the Team

that they would have flexible hours but that they were to work eight and a half

hours each day. Massey spoke to other Team members. They told her that they

understood from Nail’s directives that they were allowed to work more or fewer

hours in a day than an eight-hour shift. While Massey was conducting her




                                        -6-
investigation, plaintiffs contacted other FIT Team members to obtain statements

from them about the Team’s flexible work schedules.

      4. Plaintiffs’ Complaint of Sex Discrimination

      After they were suspended, plaintiffs contacted Gary Thomas, a human

resources generalist at UAL’s Chicago headquarters. They complained that their

suspension was discriminatory. Jeanne Nelli of Human Resources (HR)

volunteered to come to Denver to conduct an investigation. But plaintiffs never

followed through by filing a formal complaint of discrimination with UAL;

as a result, Nelli ceased her investigatory efforts.

      5. Results of the Investigation

      On January 18, 2006, Massey and Mortimer met with plaintiffs. During

this meeting, Massey gave plaintiffs formal Letters of Counsel that summarized

her findings. In the Letters of Counsel, she stated that there was insufficient

evidence to conclude that either plaintiff had falsified company records. But she

further stated that plaintiffs’ conduct during their assignment to the FIT Team and

during the investigation had caused Massey to question their leadership abilities

at UAL. She had two concerns. First, plaintiffs had left early on numerous

occasions without obtaining authorization from an Operating Manager. Second,

they had failed to “respect the investigative process” by “call[ing] other

supervisors to solicit statements from them.” Aplt. App., Vol. II at 215, 217.




                                          -7-
       Massey’s letters informed plaintiffs that UAL was taking the following

actions against them. First, they would be removed from the FIT Team and

returned to the shifts they were on prior to their participation in the Team.

Second, they were to be placed on a ninety-day action plan. The letters warned

them that “[f]ailure to successfully meet the expectations outlined in that action

plan will lead to discipline up to and including discharge.” Id. In addition, the

Letters of Counsel would remain in plaintiffs’ personnel files for five years and

would have to be disclosed when they applied for other positions within UAL.

When plaintiffs returned to work on January 23, 2006, they were paid in full for

the time they were held out of service. After pursuing their administrative

remedies with the Equal Employment Opportunity Commission (EEOC),

they filed this suit.

                                    ANALYSIS

       1. Bankruptcy Discharge

       At the outset, we are confronted with UAL’s argument that since all of

plaintiffs’ claims were discharged by the 2006 confirmation of its Chapter 11

bankruptcy in the Northern District of Illinois, the district court lacked

subject-matter jurisdiction to entertain the claims on the merits. 3 Although


3
       Plaintiffs’ claims appear to have accrued in large part subsequent to the
filing of UAL’s bankruptcy petition but prior to confirmation of its Chapter 11
Plan, and thus would properly be treated as an administrative expense of the
                                                                      (continued...)

                                         -8-
the parties devoted nearly 400 pages of district court briefing and exhibits to the

bankruptcy discharge issue, the district court dismissed UAL’s argument in a

footnote, stating that it was not persuaded by the argument. It concluded that it

had jurisdiction to address the merits of UAL’s summary judgment motion.

Aplt. App., Vol. XII at 1364 n.1.

      In our view, the bankruptcy discharge issue is far from simple. 4 To begin

with, it remains an open question whether such a discharge operates as a

jurisdictional bar to suit or is merely an affirmative defense that can be waived. 5


3
 (...continued)
bankruptcy estate. See In re U.S. Airways, Inc., 365 B.R. 624, 628 n.8
(Bankr. E.D. Va. 2007).
4
       Plaintiffs assert that UAL cannot assert the bankruptcy discharge on appeal
because it failed to cross-appeal from the district court’s rejection of the defense.
But the bankruptcy discharge, if jurisdictional, may be raised at any time, and if
not jurisdictional, is simply an alternate ground for affirmance that did not require
a cross-appeal. See, e.g., Tinkler v. United States ex rel. FAA, 982 F.2d 1456,
1461 n.4 (10th Cir. 1992).
5
       Compare Lone Star Sec. & Video, Inc. v. Gurrola (In re Gurrola), 328 B.R.
158, 164 (9th Cir. B.A.P. 2005) (stating that provision in 11 U.S.C. § 524(a)
making judgments imposing personal liability on debtor with respect to a
discharged debt “void” involves “a term of art . . . that equates with the concept
of a nullity associated with lack of jurisdiction”) with Gagan v. Am. Cablevision,
Inc., 77 F.3d 951, 967-68 (7th Cir. 1996) (striking belated attempt to raise
bankruptcy discharge defense, concluding that under Fed. R. Civ. P. 8(c),
discharge in bankruptcy is affirmative defense that must be timely asserted or
waived). It should be noted that the Supreme Court has recently adopted an
amendment to Fed. R. Civ. P. 8, effective December 1, 2009, that eliminates
discharge in bankruptcy as an affirmative defense that is waived if not raised.
This amendment is consistent with § 524(a)(1), which voids any judgment on a
discharged debt and enjoins any attempt to collect the debt, whether or not the
                                                                        (continued...)

                                         -9-
If the discharge is jurisdictional, fundamental adjudicative principles required the

district court to resolve the discharge issue before proceeding to the merits of

plaintiffs’ Title VII claims. See generally Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998) (holding federal court may not decide cause of action

before resolving existence of Article III jurisdiction). To further complicate

matters, even assuming that such a discharge was jurisdictional, factual issues

remain concerning whether the discharge here applies to plaintiffs’ claims.

Plaintiffs contend that at least some of their claims accrued after the bankruptcy

was confirmed and that they received inadequate notice of the confirmation,

factors that could preclude application of the discharge to at least some of

their claims.

      Fortunately, we need not resolve these thorny issues. Even if UAL’s

bankruptcy discharge created a jurisdictional bar to plaintiffs’ claims, an

exception to the general rule that jurisdictional issues must be addressed before

consideration of the merits allows us to affirm the decision of the district court.

Under what has been called the “foreordained” exception, a court may rule that a

party loses on the merits without first establishing jurisdiction if the merits have

already been decided in the court’s resolution of a claim over which it did have

jurisdiction. Starkey ex rel. A.B. v. Boulder County Soc. Servs., 569 F.3d 1244,


5
 (...continued)
debtor invokes the discharge.

                                         -10-
1259-61 (10th Cir. 2009) (citing Steel Co., 523 U.S. at 98-100). In such cases,

the court is “not producing an advisory opinion . . . . it is merely parroting a prior

decision.” Id. at 1260. As it turns out, due to the nature of the claims in

plaintiffs’ complaint, we may reach certain claims notwithstanding the bankruptcy

discharge. Provided that the claims subject to the bankruptcy discharge depend

on the same factual and legal predicates as those claims over which the federal

courts unquestionably have jurisdiction, we may then dispose of the allegedly

discharged claims as well.

      In their complaint, plaintiffs asserted claims for both damages and

equitable relief. Specifically, they sought the following forms of equitable relief:

(1) a declaratory judgment declaring that UAL violated Title VII; (2) removal of

disciplinary actions and notations from their files; and (3) promotion or a new job

assignment. Dalvit’s claims for promotion or a new job assignment and for

removal of disciplinary actions from her UAL file have arguably been mooted by

her departure from UAL. 6 All of Benjamin’s equitable claims remain pending.

      Claims for equitable relief are dischargeable under the bankruptcy code if

they can be “reduced to a monetary obligation.” Ohio v. Kovacs, 469 U.S. 274,

282 (1985). That is, such claims to be discharged must involve “a right to



6
      Dalvit presented no evidence that the ongoing existence of disciplinary
actions and notations in her UAL file will have any adverse effect on her now that
she has left UAL.

                                          -11-
payment.” 11 U.S.C. § 101(5). Included within a discharge are equitable claims

that can be viably replaced with an alternative remedy involving a right to

payment. See generally Rederford v. US Airways, Inc., 586 F. Supp. 2d 47, 51-53

(D.R.I. 2008) (analyzing equitable claim for reinstatement under Americans With

Disabilities Act and concluding claim involved right to payment and was thus

discharged in defendant’s bankruptcy). The reverse is also true: equitable

remedies, such as a request for prospective injunctive relief, may survive the

debtor’s discharge if not reducible to a monetary obligation. Kovacs, 469 U.S.

at 284-85.

      Benjamin’s claim for “removal of any and all disciplinary actions and

notations in [her personnel] files,” Aplt. App., Vol. I at 13, 29, has no monetary

equivalent. We therefore conclude that at least one of Benjamin’s equitably-

based claims is justiciable, irrespective of UAL’s bankruptcy discharge. We will

proceed to adjudicate the summary judgment issues as to that claim. The results

of that adjudication may then foreordain the fate of both plaintiffs’ remaining

claims, notwithstanding any unresolved issues concerning UAL’s bankruptcy

discharge, provided that the legal and factual issues we have resolved

conclusively dispose of those involving their other claims.

      2. Standard of Review

      We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. Pinkerton v. Colo. Dep’t of

                                        -12-
Transp., 563 F.3d 1052, 1058 (10th Cir. 2009). Summary judgment is appropriate

if “there is no genuine issue as to any material fact and . . . the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In making this

determination, we “examine the record and all reasonable inferences that might be

drawn from it in the light most favorable to the non-moving party.” Pinkerton,

563 F.3d at 1058 (citation omitted). “At this stage, [c]redibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge. . . .The evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.

(quotation omitted). But “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986)).

      3. District Court’s Striking of Plaintiffs’ Summary Judgment
         Affidavits

      In opposition to UAL’s motion for summary judgment, plaintiffs submitted

personal declarations replete with inadmissible hearsay and speculation. The

district court granted UAL’s motion to strike them, finding that they primarily

contained cumulative information and conclusory, unsubstantiated statements.

Generally, “a court will disregard only those portions of an affidavit that are

inadmissible and consider the rest of it.” Casas Office Mach., Inc. v.


                                          -13-
Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir. 1994). Here, however,

plaintiffs raised no issue concerning the district court’s decision to strike their

declarations in their opening brief on appeal. We therefore consider the issue

waived, see Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007), and

affirm the striking of plaintiffs’ declarations in their entirety.

      4. Claims Not Included in EEOC Charge

      Before reaching the merits of Benjamin’s equitably-based claim for

removal of disciplinary notations in her personnel file, we will address the district

court’s dismissal of plaintiffs’ claims based on alleged retaliation after their

reinstatement. “Exhaustion of administrative remedies is a jurisdictional

prerequisite to suit under Title VII.” Jones v. Runyon, 91 F.3d 1398, 1399

(10th Cir. 1996). 7 “A plaintiff’s claim in federal court is generally limited by the

scope of the administrative investigation that can reasonably be expected to

follow the charge of discrimination submitted to the EEOC.” Jones v. United

Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007) (quotation omitted).

Under this rule, “each discrete incident of [retaliatory] treatment constitutes its

own unlawful employment practice for which administrative remedies must be


7
       Because exhaustion is jurisdictional, we may determine the issue of
whether plaintiffs exhausted these claims without first determining whether these
claims would be barred by UAL’s bankruptcy discharge. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 578, 585 (1999) (stating there is “no unyielding
jurisdictional hierarchy” and federal courts may “choose among threshold grounds
for denying audience to a case on the merits.”).

                                          -14-
exhausted.” Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (quotation

omitted).

      Prior to filing this lawsuit, each plaintiff filed a charge of discrimination

and retaliation with the EEOC. These charges described the personal harm

resulting from UAL’s actions as follows:

      On December 28, 2005, I was suspended from my job as a ramp
      supervisor on special assignment and later removed from the special
      assignment as a punishment. I was then placed on probation, and
      later a disciplinary letter was placed in my file, which has the effect
      of continuing me on probation and affecting my employment for five
      years. In addition the company has docked our pay for leaving work
      early, treating us like an hourly non-exempt employee, but failed to
      pay overtime for working late, treating us like a salaried exempt
      employee. This difference in pay structure is a violation of the Fair
      Labor Standards Act [FLSA] and impacts females more than males.

Aplt. App., Vol. V at 501, 504. 8

      Plaintiffs complain of numerous adverse actions not described in their

EEOC charge that allegedly occurred after they returned from suspension in

January 2006. See Aplt. Opening Br. at 36-40. Although these actions were

included in their first amended complaint, they did not exhaust their

administrative remedies concerning these adverse actions prior to bringing the

complaint. 9 The district court therefore properly concluded that it lacked

8
      Plaintiffs do not pursue their FLSA claims in this appeal.
9
      As the district court pointed out, plaintiff Dalvit filed a second charge of
discrimination on or about September 21, 2007, subsequent to the filing of her
complaint in this action. This charge asserted claims relating to constructive
                                                                        (continued...)

                                         -15-
jurisdiction to consider discrimination and/or retaliation claims based on

these incidents.

      5. McDonnell-Douglas Standard

      We may now proceed to the adjudication under our de novo summary

judgment standard of Benjamin’s equitably-based discrimination and retaliation

claims involving the notation placed in her personnel file. We analyze these

claims using the familiar burden-shifting framework of McDonnell Douglas Corp.



9
 (...continued)
discharge, but also included claims concerning harassment and denial of
promotion leading up to the alleged constructive discharge. Aplt. App., Vol. V
at 534. She received a “right to sue” letter from the EEOC on February 1, 2008,
after UAL had filed its motion for summary judgment. She initially moved to
amend her complaint to include a claim for constructive discharge, then dropped
that effort and filed a separate action based on constructive discharge. Plaintiffs
argue, nevertheless, that this belated exhaustion cured Dalvit’s failure to obtain a
right-to-sue letter on her post-suspension claims before filing this suit.

       Some circuits hold that a party may “file an action prior to receiving [a]
right to sue letter, provided there is not evidence showing that the premature
filing precluded the [EEOC] from performing its administrative duties or that the
defendant was prejudiced by such filing.” Edwards v. Occidental Chem. Corp.,
892 F.2d 1442, 1445 n.1 (9th Cir. 1990) (emphasis added). In this circuit,
however, exhaustion before the EEOC is considered jurisdictional. See Jones,
91 F.3d at 1399 & n.1. Where exhaustion is jurisdictionally required prior to
bringing a claim, a party generally may not cure the jurisdictional defect by
belatedly pursuing her administrative remedies. Cf. McNeil v. United States,
508 U.S. 106, 111-12 (1993) (determining that prematurity of unexhausted FTCA
claim was not cured by subsequent exhaustion of administrative claim).
Moreover, even if we were to permit post-hoc exhaustion, the district court here
made a specific finding that permitting such a belated cure would prejudice UAL.
Aplt. App., Vol. XII at 1390. Plaintiffs fail to demonstrate that this finding
represents an abuse of discretion.

                                        -16-
v. Green, 411 U.S. 792, 802-04 (1973). Under this framework, Benjamin had the

burden of initially establishing a prima facie case of discrimination. Turner v.

Pub. Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009). To do this, she

had to show that (1) she was a member of a protected class; (2) she suffered an

adverse employment action; and (3) the challenged action took place under

circumstances giving rise to an inference of discrimination. E.E.O.C. v. PVNF,

L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).

      Assuming Benjamin made her prima facie case, the burden then shifted to

UAL to articulate a legitimate, non-discriminatory reason for its actions. Turner,

563 F.3d at 1142. If it did so, then the burden shifted back to Benjamin to show

that UAL discriminated against her on the basis of her gender. Id. She could

carry this burden by showing that UAL’s legitimate, non-discriminatory reason

was pretextual, i.e., unworthy of belief. Id.

      The analysis for Benjamin’s retaliation claim is similar, except for the

elements of the prima facie case. To prove a prima facie case of retaliation, she

had to show (1) that she engaged in protected activity, (2) that UAL took a

material “adverse action” against her, and (3) that there was a causal connection

between the protected activity and the adverse action. See Montes v. Vail Clinic,

Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).




                                         -17-
      6. Equitable Claim for Removal of Letter of Counsel

      Benjamin contends that UAL discriminated and retaliated against her by

placing a disciplinary Letter of Counsel in her personnel file. She contends that

this action was discriminatory because men were not treated in the same way, and

retaliatory because it was orchestrated by Mortimer, who had retaliatory animus

against her because of her previous discrimination complaints.

               a. Prima Facie Case

      UAL contends that Benjamin has failed to make out a prima facie case of

either discrimination or retaliation, because Letters of Counsel do not rise to the

level of an “adverse employment action.” The consequences of UAL’s Letters of

Counsel in general and those issued to plaintiffs in particular are hotly disputed

and there is significant factual dispute in the record concerning their effect.

      Benjamin claimed that such letters are “huge” with UAL. Aplt. App.,

Vol. I at 91 (depo. p. 241). They are used to weed out candidates for promotion

or job change. The letters were discipline and would remain in plaintiffs’ files

for five years, poisoning their chances for advancement. Benjamin testified she

was told that she would not be interviewed for jobs at UAL because of the

disciplinary letter in her file. Id., Vol. III at 364. Rhonda Patterson-Eachus,

another supervisor at UAL, confirmed that the effect of the letters in plaintiffs’

files was that they would have no further advancement at UAL under Mortimer’s

supervision.

                                         -18-
      Mortimer provided an entirely different perspective on the letters. He

stated that he did not consider them a form of discipline. They would have no

effect on an employee’s career. Moreover, he opined that the effect of these

particular letters was mitigated by the fact that they explicitly stated that there

was no evidence that plaintiffs violated UAL’s rules.

      Jeanne Nelli from HR testified that a Letter of Counsel is not a form of

discipline. Rather, it is designed to change behavior before discipline is imposed.

In her affidavit, she stated that Letters of Counsel do not limit an individual’s

ability to be hired for other positions at UAL.

      Although the facts are disputed, we will assume for summary judgment

purposes that Benjamin has made out a prima facie case of discrimination

and retaliation in connection with the placement of the Letter of Counsel in

her file. We must next ask whether UAL has advanced a legitimate,

non-discriminatory and non-retaliatory reason for the discipline it imposed.

             b. UAL’s Legitimate Reasons

      UAL’s reasons are detailed in the Letter of Counsel. The Letter explains

UAL’s actions as follows:

      (1) UAL met with Benjamin on December 28, 2005, “to collect

information regarding discrepancies between the hours you recorded on your pay

certification instruments and the electronic records of your arrivals and departures




                                          -19-
at work.” Aplt. App., Vol. II at 215. “At the end of that meeting you were held

out of service pending an investigation.” Id.

      (2) Massey conducted an investigation within the FIT Team, and

concluded that there was insufficient information to support a violation of UAL’s

rule of conduct prohibiting falsification of company records or reports.

      (3) She also concluded, however, that Benjamin had shown questionable

ability as a leader in the organization. She reached this conclusion for two

reasons:

      (a) The electronic records of Benjamin’s arrivals and departures showed

that she had left work early on numerous occasions without authorization of an

Operating Manager. “In fact, several members of management and frontline

employees noticed your frequent absence and questioned your assignment and

schedule.” Id. Massey noted that even though Benjamin was on special

assignment, she was responsible for notifying her manager when she left work

early and for making up the hours.

      (b) Benjamin was notified that Massey’s investigation was ongoing and

that she would be contacting other supervisors. Massey concluded that Benjamin

had “ignored my direction and you called other supervisors to solicit statements

from them.” Id.

      (4) Massey removed Benjamin from the FIT Team but retained her in a

supervisory role. She placed her on the swing shift. She also stated that she

                                        -20-
would be placed on a ninety-day action plan and that her “[f]ailure to successfully

meet the expectations outlined in that action plan will lead to discipline up to and

including discharge.” Id.

             c. Benjamin’s Pretext Arguments

      UAL thus provided non-discriminatory, non-retaliatory reasons for its

actions in the Letter Benjamin seeks to have removed from her files. Benjamin

contends that these explanations are pretextual, however, for the following

reasons:

                   (1). Mortimer’s Participation

      First, and generally, Benjamin contends that Mortimer was openly sexist

with female employees in general and personally angry with her for making

allegations of discrimination with UAL’s personnel department. His

discriminatory and retaliatory animus, she claims, caused him to orchestrate the

actions taken against her that are reflected in the Letter of Counsel.

      The record does not bear out the contention that Mortimer orchestrated the

adverse actions taken against Benjamin. The evidence shows, rather, that it was

Massey who made most of the decisions of which she now complains. Benjamin

attempts to use the fact that Massey often communicated her findings to Mortimer

during the investigation, and sought his approval or authorization as well as that

of other supervisors for the actions she proposed, to suggest that she was a sort of




                                         -21-
puppet whose strings he pulled to mastermind her downfall. But the record does

not support this theory.

      Benjamin contends that Mortimer “triggered” the investigation into her

working hours. But the uncontroverted evidence shows that Mortimer asked Nail

to investigate only after Nail reported to him concerns from co-workers about

plaintiffs’ attendance. Benjamin also complains that Mortimer knew that Nail had

no evidence of wrongdoing at the time Nail brought these concerns to him. But,

as Mortimer explained, it was precisely the lack of hard evidence, coupled with

Nail’s expressions of concern, that prompted him to have Nail investigate and

look at plaintiffs’ badge histories, to determine the facts based on objective

evidence.

      After Mortimer brought it to Kyte’s attention that there were individuals

who were not working their full shifts, Kyte recommended to Mortimer that he

employ another department manager to conduct the investigation. Kyte

recommended Massey to conduct the investigation, because she was unbiased. 10

Mortimer followed Kyte’s recommendation.




10
       The evidence is in conflict concerning whether Kyte “recommended” or
“selected” Massey. Kyte stated that he recommended Massey to conduct the
investigation. Mortimer also stated that Kyte recommended Massey to him, but
when asked who “selected” Massey, he said “Jim Kyte.” Aplt. App., Vol. II at
167. On summary judgment review, we adopt the set of facts most favorable to
Benjamin and assume that Kyte “recommended” rather than “selected” Massey.

                                         -22-
      Massey testified that it was her decision to send Benjamin home during the

investigation. 11 Jeff Gill agreed to this. She also told Mortimer of her decision.

She also informed Mortimer she was going to send Benjamin home without pay. 12

She conferred first with Gill “to make sure that we’d been consistent in the past

with what we’d done with other management employees.” Id., Vol. VI at 599.

The record thus makes it clear that it was Massey, not Mortimer, who decided to

suspend Benjamin pending the investigation. 13

      Massey then conducted the investigation. Nail provided her with

information about working hours and reporting requirements for the FIT Team.

Mortimer was not involved in the investigation. At the close of her investigation,

Massey determined that Benjamin would be brought back to work.



11
       Although Benjamin asserts that “Mortimer controlled every personnel
action during his tenure in Denver” and that she “could not have been suspended
without his approval,” Aplt. Opening Br. at 44, the record evidence she cites for
these conclusory contentions comes from Benjamin’s stricken declaration.
12
       Benjamin contends that Massey “conferred with Mortimer when [the]
plaintiffs were suspended.” Aplt. Opening Br. at 44. She refers to Massey’s
deposition, which actually states “I let Kevin Mortimer know and I let Jim Kyte
know” that she had decided to send Benjamin home. Aplt. App., Vol. VI at 600
(emphasis added). When asked in a follow-up question what Mortimer said when
she informed him of this decision, Massey responded “[n]othing.” Id.
13
       As proof of Mortimer’s role in suspending Benjamin, she cites Rhonda
Patterson-Eachus’s statement that “Kevin Mortimer was a manager who very
much ran the operation.” Aplt. Opening Br. at 44 (quoting Aplt. App., Vol. IV
at 388, (depo. p. 13)). But this statement was made in the context of his
knowledge of the investigation of Benjamin’s discrimination complaint, not his
role in her suspension.

                                        -23-
       Massey drafted the Letters of Counsel and asked Mortimer to proofread

them. He made no changes to the Letters.

       It was Massey’s suggestion, approved by Kyte, Gill, and Mortimer, to

remove Benjamin from the FIT Team. While Kyte, Gill, and Mortimer approved

or agreed with this course of action, she did not discuss the decision with

Mortimer beforehand and he did not provide input about it.

       Benjamin claims Mortimer placed her on a ninety-day action plan. But the

evidence she cites shows only that Mortimer informed her new supervisor,

Patterson-Eachus, that she would be placed on the plan. Id., Vol. IV at 388

(depo. p. 8). It was Patterson-Eachus’s responsibility to draw up the plan.

Mortimer did not tell her what to put in it. Id. at 387-88 (depo. pp. 8-11).

Although she gave it to Mortimer, he did not comment to her about it.

Id. at 392 (depo. p. 27). 14

       Benjamin complains that it was Mortimer who told her that the Letters

would stay in her file for five years. But the evidence shows that the five-year

requirement was UAL’s policy, not Mortimer’s personal decision. Id., Vol. IV

at 450 (Jeanne Nelli depo. pp. 58-59).



14
       The evidence is in conflict concerning whether an action plan even existed.
Mortimer told Dalvit that she would not be placed on a ninety-day action plan as
stated in her Letter of Counsel, because he did not know how to write up such a
plan, given that the Letter had found insufficient evidence to support a violation.
Instead, he purportedly stated, the Letter would stand as the action plan.

                                         -24-
      Benjamin further asserts that it was Mortimer who decided that the Letter

constituted a form of “discipline” and that she would have to disclose that she

was “on discipline” when applying for other jobs at UAL. If Mortimer made such

a statement to her, however, it was in contravention of UAL policy. See Aplt.

App., Vol. VI at 589-90 (Nelli affidavit). Moreover, any actual denial of

employment opportunities based on Mortimer’s interpretation lies beyond the

scope of Benjamin’s EEOC complaint.

      In sum, the evidence and reasonable inferences therefrom, taken in the light

most favorable to Benjamin, fails to support her theory that Mortimer

masterminded and instigated a campaign of discrimination and retaliation against

her, culminating in the Letter of Counsel and the discipline imposed in it and in

accordance with it. Benjamin’s contention that Mortimer’s involvement in the

disciplinary process demonstrates pretext fails.

                   (2). UAL’s Decision to Suspend Benjamin

      Benjamin next contends that her suspension was “groundless.” Aplt.

Opening Br. at 13. She claims that the parking lot arrival and departure records

established that she had worked eighty hours every two weeks, and that this

was all UAL required. She supports this contention with an out-of-context

misreading of UAL’s response to her EEOC charge. See id. (quoting Aplt. App.,

Vol. V at 509).




                                        -25-
      UAL’s EEOC response states that UAL had “frequent reports” concerning

Benjamin’s absences, Aplt. App., Vol. V at 508, and that investigation by Massey

established that she had left work early on numerous occasions but certified that

she had worked full days, see id. Massey then began an investigation to

determine whether Benjamin had in fact falsified company records. In the course

of this investigation, Massey found that Benjamin’s arrival and departure records

indicated that she had left work early, while certifying that she had worked a full

eight-hour day. As the investigation continued, Massey learned from FIT Team

members that they “understood that work hours were ‘flexible’ in that on

occasions when members of the team might work less than 8 1/2 hours per day,

there would be other occasions [when] they would be required to work more

than 8 1/2 hours per day, but the expectation was that team members worked at

least 80 hours in a two week pay period.” Id. at 509. Thus, the “80 hour”

requirement came from Massey’s interview of Team members and their

understanding of the FIT Team requirements. Nothing in UAL’s EEOC response,

however, indicates that it was UAL’s policy that Benjamin was free to work

whatever schedule she liked, without notifying anyone, so long as she worked

eighty hours in a pay period.




                                        -26-
                   (3). Length and Conditions of Suspension

      As the Letter of Counsel notes, UAL suspended Benjamin on December 28,

2005 and she was not reinstated to duty until January 23, 2006. Benjamin argues

that UAL kept her on suspension for the full four weeks because she complained

about discrimination during the suspension. She further contends that UAL’s

justification, that it was conducting an investigation of her work hours during this

time period, is pretextual because UAL knew from witnesses within a week that

hours on the FIT Team were flexible and that she had therefore done nothing

wrong. Benjamin contends that once Massey obtained this knowledge from the

witnesses, she should have been immediately reinstated.

      Benjamin’s contention that the length of the suspension was retaliatory

cannot survive summary judgment. First, she did not contend in the district court,

or in her opening brief in this appeal, that Massey knew of her discrimination

complaint to HR in Chicago during her suspension. 15 The district court

specifically found that it was undisputed that Massey did not know of

the discrimination complaint until this suit was filed. Aplt. App., Vol. XII


15
       In her opening brief, Benjamin asserts, in passing, that she complained to
Massey that she was being suspended because she was female, and that she knew
of this complaint when she took subsequent adverse actions against her. Aplt.
Opening Br. at 64 n.3. Therefore, Benjamin asserts, there is a sufficient
connection between her complaint and Massey’s actions to prove a prima facie
case of retaliation separate and apart from retaliation based on the complaint to
HR and without any involvement by Mortimer. Benjamin did not make this
argument to the district court, and we do not consider it here.

                                        -27-
at 1386 n.13. Benjamin does not challenge this finding in her opening brief in

this court. It was Massey who chose when to bring her back from suspension, and

Benjamin has failed to demonstrate that she had any reason to retaliate against

her. 16

          Benjamin has also failed to show that UAL’s explanation for the length of

the suspension was pretextual. Regarding the three to four weeks it took to bring

Benjamin back from suspension, Massey stated:

          I don’t believe that that’s a long period of time when you’re trying
          to -- you’re in a middle of a holiday season, you have different work
          schedules, and just reviewing all the facts and trying to do a
          complete investigation and reviewing everything with HR, I’m not
          sure that I agree that that’s a long period of time.

Aplt. App., Vol. XII at 1235.

          Massey conducted her investigation by speaking to UAL employees during

the first week that Benjamin was on suspension. Between the time she finished

these interviews, sometime during the first week of January 2006, and the time

Benjamin was called in and presented with the Letter of Counsel, on January 18,

2006, only two weeks elapsed. During this time, Massey had to decide on the

discipline to be imposed, consult with her superior Kyte and others involved, and

draw up the Letter.


16
      If Massey was unaware of the discrimination complaint, Benjamin arguably
does not even establish a prima facie case of retaliation, because she failed to
show a causal connection between the protected activity and the adverse
employment action. See Jones, 502 F.3d at 1195.

                                           -28-
       UAL’s response to Benjamin’s EEOC complaint further explains that

“[u]ltimately, it was determined that there may have been some confusion

regarding the FIT team members’ schedules.” Id., Vol. V at 509. Benjamin fails

to show that in a case involving such confusion and the employer’s perceived

need for a complete investigation, that the delay in returning her from suspension

was so excessive that UAL’s explanation should be considered a pretext for

retaliation.

       Benjamin also complains that she was singled out by being suspended

without pay. But Massey testified that she specifically checked with UAL’s

human resources department to make sure that suspension without pay was

consistent with UAL’s usual practice. Benjamin fails to show that this

explanation is unworthy of belief.

                   (4). Massey’s Decision Concerning Wrongdoing

       Benjamin contends that since Massey ultimately found that she had

committed no wrongdoing, the justifications UAL advanced for the discipline

imposed on her in the Letter of Counsel are unworthy of belief. In her deposition,

Massey testified that she had found no “indications or evidence of any

wrongdoing” by Benjamin. Id., Vol. IV at 419 (depo. p. 21). 17 Reading further in


17
      Benjamin further contends that she concluded that no discipline was
appropriate, citing Aplt. App., Vol. IV at 421. But this statement was in
explanation of why no “discipline” was imposed. See id. Obviously, “discipline”
                                                                     (continued...)

                                       -29-
her deposition, however, she explains that although Benjamin had not violated a

rule or policy of UAL, UAL took action to remove her from the FIT Team

because her actions called into doubt her “credibility” as a member of the Team.

Id. at 421 (depo. p. 40).

      Massey acted consistently with this understanding. She reinstated

Benjamin to her employment as a supervisor and arranged for her to be paid for

the time she had been suspended. The Letter of Counsel, signed by Massey

herself, then explained that some additional actions would be taken against

Benjamin because of her questionable conduct. Whether or not these actions

seem warranted to a detached judicial observer is not the issue. “The relevant

inquiry is not whether the employer’s proffered reasons were wise, fair or correct,

but whether it honestly believed those reasons and acted in good faith upon those

beliefs.” Rivera v. City & County of Denver, 365 F.3d 912, 924-25 (10th Cir.

2004) (quotation omitted). Benjamin fails to show that Massey’s understanding

of “no wrongdoing” required her to avoid imposing the measures outlined in the

Letter of Counsel. Her conclusion that Benjamin had not violated UAL’s official

rules or policies does not demonstrate that the reasons given for the further

actions taken in the Letters of Counsel were pretextual.


17
 (...continued)
meant something different to Massey than the sanctions set out in the Letter of
Counsel, because she did find those appropriate and they were imposed on
Benjamin.

                                        -30-
                   (5). Male Comparators

      Benjamin contends that UAL’s reasons are pretextual because

similarly-situated male supervisors and FIT Team members did the same things

for which she was sanctioned in the Letter of Counsel, without being punished as

she was. The record does not bear out this claim, however.

      Massey stated that she spoke with two male Team members, George

Bellopatrick and Jeff Freitas. Each of them told her that he would sometimes

work more or less hours in a day, but that his operating manager was informed of

the hours he was working. The Letter of Counsel specifically censured Benjamin

for not keeping her managers similarly advised of her schedule. 18 Benjamin

claims she was not required to notify her supervisor of her working hours. But it

is UAL’s understanding of this requirement, not hers, that counts. She has not

shown that UAL excused FIT Team members from communicating with their

Operations Manager concerning their work schedules.

      Benjamin has also failed to show that there were complaints from fellow

employees about other male managers as there were about her, or that these other



18
       Nail also stated that he investigated and prepared spreadsheets concerning
Bellopatrick and Freitas, but that these showed no discrepancies in hours as
Benjamin’s did. Aplt. App., Vol. II at 145-46. It is difficult to square this claim
with Bellopatrick and Freitas’s admission to Massey that they worked flexible
hours while on the FIT Team, sometimes putting in less than a full day. See id.,
Vol. IV at 418. In any event, we do not rely on Nail’s conclusions as a basis for
distinguishing Bellopatrick and Freitas from Benjamin.

                                        -31-
managers missed a meeting at which they were scheduled to give a presentation,

as Benjamin did. Benjamin makes broad-ranging claims about a variety of male

supervisors who were allowed to go home early without changing their

certifications, see id., Vol. III at 347, but she fails to show that these men were

similarly-situated to her: that is, that they had the same supervisor or were subject

to the same standards involving performance evaluation and discipline. See

Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).

                    (6). Benjamin’s Failure to Respect the Investigative
                         Process

      One of the reasons given in the Letter of Counsel for disciplining Benjamin

was that she contacted other supervisors during Massey’s investigation and

therefore failed to respect the investigative process. Benjamin contends this

explanation is unworthy of belief. She cites her own deposition testimony to

establish that (1) she did not sign a confidentiality agreement; (2) no one told her

not to contact others; and (3) she thought she had been terminated rather than

suspended and that it was permissible to contact her fellow employees because

there was in effect no ongoing investigation. This evidence has value in showing

pretext only to the extent that it tends to show that Massey’s statement that

Benjamin failed to respect the investigative process is unworthy of belief.

Benjamin’s own, subjective beliefs about confidentiality are irrelevant.




                                         -32-
      While Benjamin was not asked to sign a confidentiality agreement, the

Letter of Counsel did not admonish her for failure to adhere to the terms of such

an agreement. Instead, it noted that Massey had “informed you that the

investigation was ongoing and I would be contacting other Supervisors. Yet, you

ignored my direction and you called other supervisors to solicit statements from

them.” Aplt. App., Vol. II at 215. In other words, Massey concluded that her

instruction to Benjamin about the investigation should have forestalled her from

interfering by conducting her own “investigation” and contacting the same

supervisors with whom Massey intended to speak.

      While Benjamin contends that she did not know whether there was an

ongoing investigation, she does not specifically deny Massey’s statement that she

told Benjamin she would be contacting other supervisors. And there is evidence

that Benjamin should have known that the investigation was ongoing. Plaintiff

Dalvit admitted that Massey never told her that the investigation had been

concluded. Id., Vol. II at 123 (depo. p. 155). She did not recall Massey saying

that she had come to any conclusions. Id. (depo. p. 156). Plaintiff Benjamin

stated that she was told before she was sent home that “We’ll get back to you.”

Id., Vol. I at 96 (depo. p. 309). Plaintiff Dalvit was told she was being sent home

“until further notice.” Id., Vol. II at 121 (depo. p. 143). While it would perhaps

have been preferable for Massey to have been more clear with Benjamin




                                        -33-
concerning the ongoing nature of the investigation, and even to have requested

her to sign a confidentiality agreement, her failure to do so does not demonstrate

pretext.

             d. Conclusion

      Benjamin has failed to show that UAL’s legitimate, stated reasons for the

discipline imposed upon her were a pretext for either discrimination or retaliation.

This being the case, she is not entitled to the equitable relief sought of removal of

the Letters of Counsel from her file.

      7. Effect on Remaining Claims

             a. Benjamin’s Remaining Claims

      In addition to the other forms of equitable relief Benjamin sought that are

reducible to monetary terms and thus dischargeable in bankruptcy, she sought

damages including

      all compensation, salary raises, normal performance reviews, back
      pay, equal pay, front pay and benefits that plaintiffs were denied
      because of defendant’s acts and failures to act, in a sum to be
      determined by the court and jury; liquidated and compensatory
      damages, including for future pecuniary losses, emotional pain,
      suffering, inconvenience, mental anguish, and loss of enjoyment of
      life, in a sum to be determined by the court and jury; exemplary or
      punitive damages in a sum to be determined by the court and jury;
      legal fees, disbursements, expert fees, and costs of this action [and]
      all legal interest on sums awarded.

Aplt. App., Vol. VIII at 855-56.




                                        -34-
      Her remaining claims for legal and equitable relief damages fail, for the

same reasons outlined above in relation to her claim for removal of the Letter of

Counsel from her file. Simply put, UAL’s legitimate reasons are the same and

our holding with regard to her failure to show pretext for purposes of surviving

UAL’s summary judgment motion on the Letter of Counsel claim applies with the

same force to each and every one of her other properly-exhausted claims, whether

legal or equitable, and whether or not dischargeable in bankruptcy. The analysis

and factual basis are essentially undistinguishable. For this reason, our

disposition of the Letter of Counsel claim, over which we unquestionably have

jurisdiction, foreordains the defeat of all of her other claims over which

jurisdiction is uncertain. See Starkey, 569 F.3d at 1259-61. Thus, in affirming

the district court’s summary judgment disposition of these claims, we merely

parrot our decision as to her Letter of Counsel claim rather than producing an

advisory opinion. Id. at 1260.

             b. Dalvit’s Claims

      A careful review of plaintiffs’ appellate briefs and the entire record on

appeal, especially including plaintiffs’ EEOC charges, their complaints, and the

final pretrial order, demonstrates that Dalvit’s legal and equitable claims are in

essential terms identical in law and fact to Benjamin’s. Dalvit’s claims for

removal of the disciplinary letter from her file and for promotion and a new job

assignment at UAL have been mooted by her departure from UAL, and her claim

                                         -35-
for conduct after suspension, up to and including constructive discharge, was not

properly exhausted before the EEOC. But as to the remainder of her claims,

which are before the court, the reasoning we have advanced above concerning

Benjamin’s claims applies to Dalvit’s claims as well. For this reason, we may

and do, without producing an advisory disposition but also without deciding

whether UAL’s bankruptcy discharge has barred Dalvit’s claims for relief, affirm

the district court’s summary judgment on each of Dalvit’s claims. Cf. Carolina

Cas. Ins. Co. v. Pinnacol Assurance, 425 F.3d 921, 928 (10th Cir. 2005) (stating

that where court has jurisdiction to “affirm the judgment against [one plaintiff] on

a ground that would also require affirmance of the judgment against [a second

plaintiff] . . . we can affirm the judgment against [the second plaintiff] without

first determining [as Steel Co. requires] that he has Article III standing.”).

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge




                                         -36-
