                                                                           F I L E D
                                                     United States Court of Appeals
                                                             Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         January 26, 2007
                             FO R TH E TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

    KA REN K. SCHU LTE,

                Plaintiff-Appellant,

    v.                                                     No. 05-5209
                                                    (D.C. No. 03-CV-361-K(M ))
    JOHN E. PO TTER, Postmaster                            (N.D. Okla.)
    General, USPS,

                Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




         After a bench trial in this age discrimination suit, the district court entered

judgment in favor of defendant John E. Potter, Postmaster General of the United

States Postal Service (USPS or Postal Service). Plaintiff Karen K. Schulte

appeals. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                    Background 1

      Schulte was born on June 9, 1941, and has worked for the USPS since

1994, primarily as a rural route carrier. According to her testimony, she applied

for twenty-five supervisory positions over a thirty-eight month period. Three of

those positions are particularly relevant to our discussion. In July 2000, when

Schulte was fifty-nine, she applied for a promotion to a supervisory position

through the Postal Service’s Associate Supervisor Program (ASP). In the ASP

selection process, a committee of postal officials reviews applications in which

the identity, age, and certain other identifying characteristics of the applicants are

redacted. In addition, the application contains a section referred to as

“Knowledge, Skills, and Abilities,” or “KSA s,” in which applicants provide

narrative responses concerning their achievements in six different areas such as

leadership and decision making. Applicants whose KSA answers the committee

deems adequate move on to an interview.

      The position for which Schulte applied in 2000 was in processing and

distribution, involving work on the “plant” side of the USPS, which concerns the

behind-the-scenes movement of the mail. Schulte’s KSAs were deemed adequate

and she was interviewed, but she was not selected for the position. She initiated a

claim of gender discrimination through the Postal Service’s Equal Employment



1
      The background facts are drawn largely from the district court’s written
findings of fact and conclusions of law.

                                          -2-
Opportunity (EEO) process. The parties entered into a settlement agreement by

which the Postal Service offered Schulte a temporary supervisory position (204-B

position) in early 2001. Her tenure in that position ended in November 2001, and

she returned to working as a rural route carrier.

      In M arch 2002, Schulte, who was then sixty years old, applied for another

ASP position, this time in customer service. An entirely different committee

composed of Susan Beck, the postmaster of Tulsa, George Frame, the postmaster

of Oklahoma City, Elizabeth Inman, then postmaster of M uskogee, and Jacqueline

Bouffard, then manager of training, conducted the hiring process. Schulte was

notified in June 2002 that she was not selected for an interview because her KSA

answ ers were deficient, in particular her decision-making KSA.

      M eanwhile, on M arch 5, 2002, Schulte w as accused of recirculating mail

during a mail count at the Chimney Hills Postal Station in Tulsa, Oklahoma. To

understand this accusation, some background is necessary. The pay of a rural

route carrier such as Schulte is based in part on how much mail she delivers. To

make that determination, the USPS periodically counts the actual number of

pieces of mail that are distributed, or “thrown,” to a carrier’s route, or “scheme.”

M ail that is thrown to the wrong scheme is referred to as a “misthrow.” W hen a

carrier finds a misthrow in her “case,” she is supposed to bring it to the

“misthrow case” for redistribution by the clerks through the “hot case.” During a

mail count, a carrier is supposed to inform the person counting the mail if they


                                          -3-
receive a misthrow that was counted. But if, as alleged here, a carrier places into

the misthrow case properly sorted mail that has already been counted and does not

tell the counter, it would be counted again w hen it is throw n back to that carrier’s

scheme, thereby inflating the number of pieces of mail that are counted and

increasing her annual salary. Fifteen or sixteen extra pieces of mail can inflate an

annual salary by as much as $1,600.

      W ith this understanding w e may turn to the events of M arch 5, 2002. On

that day, Pam Cameron, a U SPS clerk who had developed familiarity with

Schulte’s scheme over a twenty-year period, was sorting mail to the carriers at

Chimney Hills. Cameron noticed that some misthrow s were coming through more

than once, even after she had paid particular attention to sorting the mail to the

correct scheme through the hot case. She marked those pieces with a small “x”

and sorted them to the correct route only to have them come back again through

the misthrow case. Cameron observed Schulte return the marked mail to the

misthrow case at least once and concluded that Schulte must be taking it from the

hot case and placing it in the misthrow case.

      Cameron brought this to the attention of Schulte’s supervisor, Lila

Lawrence. Lawrence confronted Schulte with the marked mail and informed her

of the nature of the accusation. Schulte acknowledged that some of the marked

mail (approximately thirteen pieces) belonged to her scheme but denied the

charge. Lawrence excluded several pieces of mail Schulte claimed did not belong


                                          -4-
to her scheme and conducted an investigation, after which she submitted a report

to a USPS labor relations specialist, Jeffrey Dalton, recommending termination.

Schulte filed a union grievance that went to arbitration, and Dalton represented

the USPS. The arbitrator found that Schulte had recirculated mail but imposed a

tw enty-two month unpaid suspension rather than termination.

      Schulte also filed an EEO complaint of discrimination with the Postal

Service. Initially she alleged only retaliation for an earlier EEO filing, not age

discrimination. She later amended her EEO complaint to include a claim of age

discrimination. Obtaining no relief, Schulte filed the action underlying this

appeal. Some of her claims were dismissed during pretrial proceedings, including

her claim that the denial of her 2000 ASP application and her removal from the

204-B position were because of her age and in violation of the Age

Discrimination in Employment Act, 42 U.S.C. §§ 621-634 (ADEA). Two of her

other ADEA claims, those based on the proposed termination and resultant

discipline for recirculating mail and on the denial of her 2002 ASP application,

proceeded to a four-day bench trial. After trial, the district court issued thirty-one

pages of detailed findings of fact and conclusions of law and entered judgment in

favor of the USPS on both of Schulte’s claims. This appeal followed.

                                       Analysis

      Schulte’s statement of the issues presented on appeal is somewhat unclear.

As we see it, she raises three issues: (1) the district court erred in denying one of


                                          -5-
her discovery motions; (2) the district court erred by excluding certain evidence at

trial; and (3) the district court did not properly consider certain evidence at trial.

W e address each point in turn.

      1. Discovery error

      Schulte propounded two requests for the production of documents that are

at issue, Request Nos. 44 and 45, that in essence demanded the production of

documents showing the makeup of the USPS workforce according to age for the

previous ten years both nationally and in the Oklahoma and/or Tulsa region. See

Aplt. App., Vol. I at 306. The USPS objected on overbreadth and relevance

grounds and also claimed that it did not have any responsive documents and

would have to write and install a new computer program to extract the

information from its computerized databases. Schulte filed a motion to compel,

which was her second in the case (Second M otion to Compel). A magistrate

judge held a hearing and, on July 2, 2004, issued a written order denying the

motion because there were “no responsive documents in existence,” and stating

that he would not require the USPS to create reports based on “statistics

concerning the age of Defendant’s work force.” Id. at 230. In reaching his

decision on the merits, the magistrate judge excused Schulte’s counsel’s “failure

to confer in good faith” prior to filing the m otion, a requirement under the court’s

local rule, LCvR 37.1. Id. at 226-27.




                                           -6-
      Schulte did not file any objections to the magistrate judge’s order with the

district court. Instead, on September 29, 2004, less than three months before the

scheduled trial date, she filed a motion styled as a motion to reopen discovery and

strike all scheduled dates. The motion was based on allegedly newfound

“evidence that calls into question the veracity of the discovery answers of

Defendant USPS . . . concerning the availability of . . . statistical data [of its

promotion practices].” Id. at 231. The new evidence was an affidavit from a

USPS employee, Gus Reinolds, who claimed to be familiar with USPS computer

systems and who averred that those systems contained data about the age of

promoted employees. In the motion, Schulte asked the district court to “reopen

discovery for the limited purpose of pursuing the statistical data the availability

of which she has apparently been misinformed by Defendant USPS.” Id. at 233.

      The magistrate judge held a hearing at which Schulte presented two

witnesses, Reinolds and F. Bennett Callicoat, an attorney with computer database

experience who testified that databases ordinarily can be queried quickly and

easily, without writing a new program, in order to extract information of the type

Schulte sought, namely, the age of employees when they were promoted.

Callicoat, however, had no first-hand knowledge of the USPS’s databases.

      The magistrate judge treated the motion as one to compel rather than one to

reopen discovery and denied it on two alternate grounds, the first being Schulte’s

counsel’s failure to comply with the meet-and-confer requirements of Fed. R. Civ.


                                           -7-
P. 37(a)(2)(B) 2 and LCvR 37.1. 3 In reaching this decision, the magistrate judge

specifically noted that it was not the first time Schulte’s counsel had failed to

comply with these rules, Aplt. App., Vol. I at 304, 4 and he rejected the futility

argument Schulte’s counsel had presented at the hearing because LCvR 37.1 did

not list futility as an exception, id. at 305.


2
       Federal Rule of Civil Procedure 37(a)(2)(B) requires any motion to compel
discovery to “include a certification that the movant has in good faith conferred
or attempted to confer with the person or party failing to make the discovery in an
effort to secure the information or material w ithout court action.”
3
     At the time of the magistrate judge’s decision in November 2004,
LCvR 37.1A . provided as follow s:

      Regarding all motions relating to discovery pursuant to Rules 26
      through 37, Federal Rules of Civil Procedure, the court will refuse to
      hear any such motion, unless counsel for movant first advises the
      court in writing that the lawyers have personally met and conferred
      in good faith, but that, after a sincere attempt to resolve differences
      has been made, they have been unable to reach an accord. However,
      no personal conference shall be required where the movant’s counsel
      represents to the court in writing that counsel have conferred by
      telephone and the distance between counsels’ offices renders a
      personal conference not feasible. An exchange of correspondence
      alone does not satisfy this requirement.

See Aplee. Supp. App. at 81. The rule also listed two exceptions not relevant
here. The rule was amended as of M arch 2, 2005, but we apply the rule in effect
at the time the magistrate judge rendered his decision. See United States v.
51 Pieces of Real Property, 17 F.3d 1306, 1310 n.6 (10th Cir. 1994) (applying
procedural rule in effect at time of relevant event in district court rather than
amended version).
4
      The magistrate judge also noted that Schulte had failed to comply with
LCvR 7.1E, which extends the meet-and-confer requirement to all nondispositive
motions. However, it does not appear the magistrate judge’s first basis for
denying Schulte’s motion was grounded in that rule, so we need not consider it.

                                           -8-
      Alternately, the magistrate judge denied Schulte’s motion on the merits.

He compared the language of the written requests seeking documents pertaining

to “the makeup of the U SPS’s workforce according to age” with Schulte’s

contention that she was seeking “statistical data of [USPS] promotion practices,”

id. at 307, and concluded that Schulte’s “current motion seeks to rewrite Requests

44 and 45 to obtain information that was not previously requested,” id. at 309.

The magistrate judge declined to “accept a broad construction of [Schulte’s]

inartfully drafted discovery requests,” noting that she had “more than adequate

time to develop her case, but has not been diligent in doing so. She has

repeatedly failed to follow Court rules, has not properly sought discovery of the

information she now seeks, and has offered only speculation that the information

she now seeks would assist her case.” Id. at 310. The magistrate judge also

stated that Reinolds’s affidavit presented no new information because the court,

in its ruling on Schulte’s Second M otion to Compel, had previously

acknowledged the existence of “age-related data, but ruled that it would not

require [the USPS] to create reports to respond to Request Nos. 44 and 45.” Id.

at 309. Schulte filed a motion asking the district court to review the magistrate

judge’s order, which the district court denied.

      As an initial matter, we conclude that the magistrate judge properly treated

the motion as one to compel rather than one to reopen discovery. The relief

Schulte requested was a court order directing the USPS to produce the requested


                                         -9-
reports on the grounds that it was easy to do and would not require writing a new

computer program. Indeed, in this court, despite claiming that her motion was not

one to compel, Schulte states that at the hearing before the magistrate judge, she

“argued that . . . production should be compelled” for these very reasons. Aplt.

Opening Br. at 53 (emphasis added). Accordingly, the meet-and-confer

requirement of both Fed. R. Civ. P. 37(a)(2)(B) and LCvR 37.1 applied.

      W e review the denial of a motion to compel for abuse of discretion. Norton

v. City of M arietta, 432 F.3d 1145, 1156 (10th Cir. 2005) (per curiam). “Under

this standard, we w ill not disturb a trial court’s decision absent a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. (quotation omitted). W e

review a district court’s application of its local rules for abuse of discretion. See

Hernandez v. George, 793 F.2d 264, 266 (10th Cir. 1986).

      To reiterate, the magistrate judge denied Schulte’s motion to compel

because futility was not a listed exception to the meet-and-confer requirement of

LCvR 37.1. Schulte argues that futility is an appropriate exception and cites to

one district court opinion, In re Sulfuric Acid Antitrust Litigation, 231 F.R.D.

351, 356 (N.D. Ill. 2005), that acknowledged that the futility doctrine was

applicable to meet-and-confer requirements of the local rule.

      Assuming that the futility doctrine is applicable, a matter we need not

decide, we conclude that compliance with the meet-and-confer requirement would


                                          -10-
not have been futile in this instance. Schulte’s motion was based on allegedly

new information, the Reinolds affidavit, and she supported her motion with

Callicoat’s testimony. The magistrate judge could not understand how Schulte

could be simply “rehashing” the same discovery request (and thus claiming

futility) when she had information of w hich the U SPS allegedly was unaw are

concerning the ease with which the requested information could be drawn from

USPS databases. Aplt. App., Vol. I at 240:5-8. W e agree. Had Schulte presented

this information to opposing counsel prior to filing her motion, the USPS may

have reconsidered its position or argued that Schulte’s new information was

erroneous, either of w hich in turn may have avoided the need for court

intervention and fulfilled the purpose of the meet-and-confer requirement.

Futility therefore was not an appropriate reason for noncompliance. The

magistrate judge’s order denying the motion to compel on the ground that Schulte

did not comply with the meet-and-confer requirement was not an abuse of

discretion, particularly in view of the fact that the magistrate judge previously

had excused Schulte’s failure to comply with the requirement in connection with

her Second M otion to Compel and the magistrate judge’s reference to Schulte’s

repeated failure to follow court rules and lack of diligence in developing her case.

Accordingly, we affirm the magistrate judge’s order on this basis and need not

address the alternate basis on which the magistrate judge relied.




                                         -11-
      2. Exclusion of evidence

      Schulte contends that the district court wrongly excluded evidence from

Steve Lundak, who was the station manager at the Chimney Hills Postal Station at

the time she w orked the temporary 204-B position. “W e review a district court’s

exclusion of evidence for an abuse of discretion.” Cartier v. Jackson, 59 F.3d

1046, 1048 (10th Cir. 1995).

      At trial, Schulte’s attorney asked Lundak if he knew what factors typically

cause the termination of a 204-B position. The district court sustained an

objection by the USPS because Schulte’s claim as to that job action had been

dismissed. Schulte’s counsel then made an offer of proof, stating that Lundak’s

testimony would show that he did not want Schulte removed because she did a

good job for him but that “he had to have that happen,” and that his evaluation of

her work performance in her 204-B position was relevant to her performance just

a few months later in connection with the allegation that she had recirculated the

mail. Aplt. App., Vol. II at 546:22 to 547:7. The court noted that counsel had

just asked Lundak about his view of her performance, which he had answered,

repeated that the objection would be sustained, see id. at 547:8-12, and sustained

further objections as counsel continued to question Lundak about the termination

of Schulte’s 204-B position, see id. at 547:14 to 550:4.

      Schulte now claims that Lundak’s testimony would have revealed the role

that Susan Beck, postmaster of Tulsa, played in the decision to remove Schulte


                                        -12-
from her 204-B position, which would have put “into a very different light”

Beck’s role in Schulte’s discipline and the denial of her 2002 ASP application.

Aplt. Opening Br. at 29-30. This theory differs from the offer of proof counsel

made at trial, which concerned only Lundak’s opinion of Schulte’s performance

and the fact that he did not want her removed. W e ordinarily do not consider new

theories on appeal, even one “that falls under the same general category as an

argument presented at trial or . . . a theory that was discussed in a vague and

ambiguous way.” Bancamerica Comm’l Corp. v. M osher Steel of Kan., Inc.,

100 F.3d 792, 798-99 (10th Cir.) (quotation omitted), opinion amended on other

grounds, 103 F.3d 80 (10th Cir. 1996). But even considering Schulte’s argument,

it fails because Schulte has made no showing that Beck’s role in Schulte’s

removal from her 204-B supervisory position was motivated by age bias.

Lundak’s testimony, therefore, if indeed it would have encompassed Beck’s role

in that removal, as Schulte argues on appeal, would have been irrelevant to

whether any role Beck might have played in either of the later employment

actions was motivated by age bias. W e therefore conclude that the district court

did not abuse its discretion when it refused to permit Lundak to testify about

Schulte’s removal from her 204-B position.

      3. The district court’s consideration of the evidence

      The bulk of Schulte’s appellate argument concerns her view that the district

court overlooked or mischaracterized certain evidence presented at trial. She


                                         -13-
suggests that properly construed, the evidence is so overwhelmingly in her favor

that this court should enter judgment in her favor. 5 To the extent Schulte

challenges the district court’s findings of fact, we review for clear error, giving

due regard to the trial court’s opportunity to judge the credibility of the witnesses.

See Fed. R. Civ. P. 52(a). “[T]he question for this court under Rule 52(a) is not

whether it would have made the findings the trial court did, but whether on the

entire evidence [we are] left with the definite and firm conviction that a mistake

has been committed.” N.L.R.B. v. Viola Indus.-Elevator Div., Inc., 979 F.2d

1384, 1387 (10th Cir. 1992) (quotations and alteration omitted) (en banc).

“W here there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

470 U.S. 564, 574 (1985). Further, it is not our function “to infer material facts.”

Transport Equip. Co. v. Guaranty State Bank, 518 F.2d 377, 383 (10th Cir. 1975).


5
       The Postal Service argues that by failing to move for judgment as a matter
of law under Federal Rule of Civil Procedure 50 in the district court, Schulte has
waived appellate review of the sufficiency of the evidence insofar as she
repeatedly suggests that this court may enter judgment in her favor because the
evidence weighs so strongly in her favor. Rule 50 by its express language applies
only to jury trials, not bench trials. The applicable rule in bench trials provides
that “[w]hen findings of fact are made in actions tried without a jury, the
sufficiency of the evidence supporting the findings may be later questioned
whether or not in the district court the party raising the question objected to the
findings, moved to amend them, or moved for partial findings.”
Fed. R. Civ. P. 52(b). See also Colonial Penn Ins. v. M arket Planners Ins.
Agency, Inc., 157 F.3d 1032, 1036-37 & nn.2-3 (5th Cir. 1998) (failure to file
post-trial motion after bench trial does not preclude appellate challenge to
sufficiency of the evidence). Accordingly, Schulte’s arguments concerning the
sufficiency of the evidence are not waived.

                                         -14-
And we may not make a controlling inference that the trial court did not make

“and which, if done, would in effect constitute a trial de novo.” Id.

      Schulte’s contention that the court overlooked evidence is based in large

part on the fact that the district court stated a number of times in its decision that

she had presented “no evidence” (or some variant of that phrase) on a certain

point. See, e.g., Aplt. App., Vol. I at 360, ¶ 32; 364, ¶50; 366, ¶60; 366, ¶62;

373, ¶88; 377, ¶97; 378, ¶104; 380, ¶109; 382, ¶114. Schulte concludes that these

types of statements mean that the district court based its ruling only on her failure

to present any direct evidence of discrimination when in fact, according to her,

she presented a large quantity of indirect evidence that supported her claims such

“that judgment may be entered [in her favor] on the strength of the omitted

evidence alone,” Aplt. Opening Br. at 9. To this extent, Schulte in effect

contends that the district court committed a legal error. W e review the district

court’s application of legal standards de novo. Sinajini v. Bd. of Educ., 233 F.3d

1236, 1240 (10th Cir. 2002).

      As we proceed to discuss with reference to the district court’s treatment of

the evidence, Schulte’s reading of the court’s use of the phrase “no evidence” and

its variants is flawed. The court’s use of that phrase encompassed direct or

indirect evidence, or both, depending on the context. It is clear that on certain

points Schulte had presented no competent evidence, direct or indirect, while on

others she presented no persuasive evidence either because the witness was not


                                          -15-
credible or less credible than another witness, the testimony was irrelevant,

immaterial, speculative, or nonprobative, or the testimony conflicted with other

testimony that the court considered persuasive. As to still other points, the

district court was not required to discuss particular testimony for reasons we have

explained as follow s:

      The exclusion of certain testimony from the findings is not
      necessarily an error. In making findings under [Rule 52], a trial
      court is not a dictating machine. Its findings do not have to contain
      evidence supporting every possible viewpoint. The judge weighs the
      evidence and ascertains what the facts are. Nor need the trial court
      make findings as to every detail. [Rule 52] does not require the
      making of elaborate findings extending into minute and unnecessary
      detail on every feature of the case, but is met in full measure if the
      findings cover in clear, definite and concise language the contested
      issue or issues in the case. Findings of fact are sufficient if they
      indicate the factual basis for the court’s general conclusion as to
      ultimate facts and are broad enough to cover all material issues.

Nulf v. Int’l Paper Co., 656 F.2d 553, 561 (10th Cir. 1981) (internal citations and

quotation marks omitted). W ith these prefatory remarks in mind, we now turn to

Schulte’s specific arguments concerning witness testimony.

      Thomas Stone. Stone testified as an expert witness for Schulte. Schulte

argues that his function was not to establish age discrimination but to establish

that the method used to select a candidate for the 2002 ASP position was

unreliable. Nevertheless, as Schulte acknowledges, Stone discussed the

comparative qualifications of Schulte and Jorge Torrico. Both Schulte and

Torrico had applied for the 2000 and 2002 ASP positions. In 2000, when Schulte



                                         -16-
was fifty-nine and Torrico was thirty-eight years of age, each candidate had

similar KSA scores but Schulte scored higher in the interview process. Neither

was selected. In the 2002 process, each of their KSA answ ers w ere substantially

similar to the answers each gave in 2000, yet Torrico’s scores stayed the same or

went up while Schulte’s score went dramatically down on the KSA concerning

decision-making, which led to her disqualification from consideration. Stone

concluded that the disparity in scores could not be explained by anything other

than age bias. See Aplt. App., Vol. II at 415:24 to 416:1; 424:22 to 425:5.

      Stone further discussed documents he review ed, which, according to

Schulte, show that both candidates for the 2000 ASP position over fifty were

eliminated quickly and only one candidate over forty made it past the first stage

of review and even then was rated fifth out of six. Aplt. Opening Br. at 16. 6 And

also according to Schulte, the documentation shows that in 2002, candidates over

forty-six years of age were eliminated in the first round, including Schulte, and

the successful candidates were ranked in reverse order by age (i.e., youngest first,

oldest last). See id.

      The district court found that Stone’s opinion concerning age bias in the

2002 ASP application process was unsupported because he could not offer any



6
       W e note that this summation of the documentary evidence does not appear
to account for Schulte’s selection for an interview for the 2000 ASP position. See
Aplt. App., Vol. IV at 1034 (letter informing Schulte that she was selected for
interview ).

                                        -17-
empirical data that the hiring system w as infected with age bias, could not

exclude other biases, failed to review relevant evidence such as testimony or

statements by the A SP decision-makers or the guidelines they used, was unaw are

that the 2000 ASP position was in the plant side of operations and the 2002 ASP

position was in customer service (ostensibly requiring different skill sets), and

made no allowance for innocent differences of opinion between the 2000 and

2002 ASP committees. Aplt. App., Vol. I at 368-69, ¶ 71-72, 74. The court also

noted several of Stone’s admissions about the deficiencies in his opinion that can

best be summed up by an excerpt from his own testimony: “I don’t have the kind

of evidence I would need for a clear finger that points to age bias. I know there

must have been some kind of bias because the qualifications were so equal yet the

outcome w as so different.” Id., Vol. II at 448:18-21.

      W e conclude that the district court’s findings of fact as to Stone are not

clearly erroneous. Contrary to Schulte’s argument, the court did not “shut its

eyes” to the evidence of age bias that Stone presented or the supporting

documentation in the record, Aplt. Opening Br. at 17. The court heard Stone’s

extensive testimony, considered its shortcomings, and found considerable flaw s in

it. Nothing in Stone’s testimony or the documentation required the district court

to find otherwise. Even if we agreed with Schulte that Stone’s testimony

established that the 2002 ASP committee “could” eliminate older workers if it




                                         -18-
wanted to do so because the selection system was flawed, see id. at 42, Stone’s

speculation did not require the district court to find that the committee did so.

      In its conclusions of law, the district court noted that Schulte had offered

Stone’s opinion, as well as her own, that she was qualified for the 2002 ASP

position, but concluded that the relevant consideration was the USPS’s perception

of her abilities. See Aplt. App., Vol. I at 379, ¶ 108. Schulte contends that this

was a legal error because the evidence is relevant to the legitimacy of the Postal

Service’s asserted perception under Tyler v. RE/M AX M ountain States, Inc.,

232 F.3d 808 (10th Cir. 2000). As we explained in Tyler, “evidence indicating

that an employer misjudged an employee’s performance or qualifications is, of

course, relevant to the question whether its stated reason is a pretext masking

prohibited discrimination.” Id. at 814 (quotation and brackets omitted). W e

agree therefore that the evidence of Schulte’s qualifications was relevant, but the

district court further stated that even if the committee’s assessment of Schulte’s

qualifications was incorrect, there was no reason to believe that the committee

had acted in bad faith or that their decision was the result of age bias, see Aplt.

App., Vol. I at 380, ¶ 109. Schulte takes issue with that statement, which is a

factual finding although not denominated as such, see Sanchez v. Philip M orris

Inc., 992 F.2d 244, 247 (10th Cir. 1993) (w hether discrimination is intentional is

a factual question), by asserting that “[t]he evidence is overwhelming that the

2002 comm ittee did not act in good faith.” Aplt. Opening Br. at 42. The district


                                          -19-
court disagreed with Schulte’s evaluation of the evidence, and we see no clear

error in that disagreement. As discussed below, the evidence was not

overwhelming that the 2002 committee acted in bad faith.

      G us Reinolds. Reinolds had worked in human resources for the USPS in

Tulsa in the early 1980s and later held USPS positions in Texas related to

transportation services and contracts. Although the district court found that he

had no involvement with Schulte’s employment or her 2002 ASP application, see

Aplt. App., Vol. I at 369, ¶¶ 75-76, which implicitly suggests the court found his

testimony to be irrelevant, the two were socially acquainted. Schulte told him

that she was concerned that her nonselection for the 2002 ASP position was due

to age bias. The only portion of Reinolds’s testimony that Schulte references is

the following, which she contends is evidence of the Postal Service’s pattern and

practice of age bias: “M yself personally, . . . at age 59, that’s kind of late to be

putting in for that type of position because if you want to go higher, you’ve got to

put some time into those positions. . . . [I]f I’ve got 30 applicants, I’d say younger

versus older.” Id., Vol. II at 465:11-18. The district court sustained a relevancy

objection to that testimony. Id. at 465:22.

      W hile pattern or practice evidence may be relevant to a disparate treatment

case, the evidence must relate to the employer’s practice. See Coe v. Yellow

Freight Sys., Inc., 646 F.2d 444, 449 (10th Cir. 1981). Contrary to Schulte’s

argument, the preface to Reinolds’s statement, “[m]yself personally,” Aplt. A pp.,


                                          -20-
Vol. II at 465:11, clearly indicates that regardless of w hether or not his past work

experience was in a managerial capacity, as Schulte contends, he was providing

his own view s, not those of the Postal Service. The district court did not err in

determining that Reinolds’s statement was irrelevant.

      Paula Quinn. Quinn worked with Pam Cameron sorting mail at the

Chimney Hills Postal Station. Her testimony primarily concerned innocent ways

mail could be recirculated and Cameron’s work ethic and sorting accuracy. The

district court discounted Quinn’s testimony because she could not remember if

she w as present on the day Schulte allegedly recirculated the mail and because

her description of scenarios in which there could be continued errors in

recognizing a scheme did not exist on the date in question and could not apply

where “Schulte acknowledged, on sight, that the mail in question belonged to her

route.” Id., Vol. I at 362, ¶ 41. W e see no clear error in the district court’s

treatment of Quinn’s testimony as it relates to Cameron.

      Lynn Jones. Jones, who worked as a postmaster for twenty years in

several Oklahoma communities and was retired at the time of trial, testified that

she had been discriminated against in a number of w ays because of her age. In

particular, she stated that younger postmasters were able to secure various

supervisory assignments while she was not, and that after she turned fifty, her

requests for support staff and funding went unfulfilled while younger

postmasters’ staffing requests were fulfilled and she experienced budget cuts.


                                         -21-
The district court determined that her ambiguous testimony failed to exclude

nondiscriminatory explanations and also was irrelevant because there were no

decision-makers common to, and no similarity between, the adverse employment

actions Jones alleged were due to age bias and Schulte’s nonselection for the

2002 ASP position. See id. at 369-70, ¶¶ 77-79; 381, ¶ 114.

      Schulte argues that the district court overlooked Jones’s testimony and that

the testimony was relevant. W e disagree. Contrary to Schulte’s argument, the

district court did not overlook Jones’s testimony— the court expressly discussed

it, although perhaps not in as much detail as Schulte would have liked. See id.

And while Jones’s testimony may have been relevant despite the fact that there

were no common decision makers, it was of little persuasive value. In

M endelsohn v. Sprint/United M gmt. Co., 466 F.3d 1223 (10th Cir. 2006), we

declined to extend the “same supervisor” requirement to contexts other than those

involving discriminatory discipline, in particular to a case where a plaintiff claims

to be a victim of a company-w ide discriminatory reduction in force. See id.

at 1226-28. This reasoning applies equally to a failure to promote claim. An

inference that an employer maintains a broad discriminatory policy can be draw n

from evidence that an employer refused to promote other employees w ho are in

the same protected class as the plaintiff. Such evidence therefore may be relevant

to the plaintiff’s individual claim that a particular failure to promote is

discriminatory regardless of whether the same decision makers w ere involved in


                                          -22-
the various decisions. On that score, the district court properly admitted Jones’s

testimony over objection. But when testimony like Jones’s is, as the district court

concluded, “so ambiguous as to wholly fail to eliminate nondiscriminatory

explanations for any disparate treatment she may have observed,” Aplt. A pp.,

Vol. I at 382, ¶ 114, it would be unreasonable to draw an inference that the

employer maintains a broad discriminatory policy, particularly when the employer

is as large as the Postal Service and the plaintiff presents only one witness

complaining of allegedly similar treatment. Accordingly, Jones’s testimony,

although marginally relevant, was not persuasive evidence in support of Schulte’s

claims, and we see no clear error in the district court’s conclusion.

      Steve Lundak. Schulte asserts that the district court failed to consider

certain “critical facts in its deliberations.” Aplt. Opening Br. at 21. The first of

these purportedly critical facts is the relative length of time Lundak and Law rence

had supervised her. Schulte contends that because Lundak supervised her for a

much longer period (seven years) than Law rence (three months), the district court

erred in not weighing Lundak’s positive assessment of her performance for him

against the negative assessment Lawrence provided in an evaluation related to

Schulte’s 2002 ASP application. W e disagree. Lundak’s testimony about

Schulte’s job performance and the length of time he had supervised Schulte w ere

of little probative value in deciding whether Lawrence’s own evaluation of

Schulte’s performance was genuine or motivated by an improper factor.


                                         -23-
      Schulte also notes the discrepancy between Lundak’s testimony that there

were a small number of employees who were over fifty when they were promoted

to a supervisory position and her own testimony that none of those employees

were over fifty. She then criticizes the Postal Service for not producing any

employees over the age of fifty who were promoted. Schulte has provided no

legal authority for the proposition implied in her argument— that the Postal

Service w as required to identify employees over the age of fifty who were

promoted in order to prevail at trial— and we have found none. W hether or not

Lundak’s testimony concerning the age of promoted employees w as incorrect,

therefore, concerns a detail that is of little import in the overall analysis of the

evidence, and the district court had no reason to discuss it.

      Schulte further takes issue with the district court’s treatment of a comment

she alleges Lundak made to her in February 2002, that there are no 204-B

temporary supervisors over the age of fifty nor are such persons entered into ASP

training. See Aplt. App., Vol. II at 621:1-3. Lundak testified that he had never

made any such age-related comment to Schulte. See id. at 551:22. The court

found that Schulte failed to establish any nexus between the alleged comments

and the 2002 ASP selection process, in particular because Lundak did not know

the identity of any of the members of the 2002 ASP committee. Id., Vol. I at 367,

¶ 66. Schulte offers only her own view that Lundak offered his alleged comments

in order to advise her “of the postal pattern and practice of refusing promotion to


                                          -24-
its older workers.” Aplt. Reply Br. at 9. W e agree with the district court that if

Lundak made the alleged comment, Schulte failed to establish any nexus between

it and her nonselection for the 2002 ASP position.

      The court further stated that Schulte’s initial EEO claim of discrimination,

filed three months after Lundak’s alleged comment, was “wholly inconsistent

with her testimony about Lundak’s statements” because she did not assert age

discrimination as a basis for her claim until later. A plt. A pp., Vol. I at 367, ¶ 65.

This was a proper inference for the district court to draw, albeit one of minimal

importance.

      Jeffrey D alton. Dalton, the U SPS investigator, testified that when he first

received Lawrence’s report recommending that Schulte be removed for

recirculating the mail, his opinion was that the report did not support removal.

He sent a fax to O.D. Curry, a USPS labor relations specialist, to this effect. See

id., Vol. IV at 1063. Dalton further testified that after receiving copies of the

allegedly recirculated mail and interviewing witnesses, he agreed that removal

was proper. Schulte, however, contends that Dalton initially received copies of

the marked mail because the report Law rence sent indicated that the letters w ere

attached and Lawrence testified to that effect at trial. By this assertion, Schulte

apparently would have us conclude that Dalton’s original opinion— that removal

was not warranted— was based on all the evidence and his later, contrary position




                                          -25-
is the sort of inconsistency that undermines the Postal Service’s asserted

nondiscriminatory reason for disciplining her.

      The district court’s resolution of these two plausible versions of events

cannot be clearly erroneous. See Anderson, 470 U.S. at 574. Contrary to

Schulte’s contention that the district court “glossed over this evidence merely

because it did not contain a direct admission of age discrimination,” A plt.

Opening Br. at 22, the district court found that Dalton did not receive copies of

the mail until later in his investigation, and that receipt of those letters eliminated

innocent explanations. Aplt. App., Vol. I at 361, ¶ 35. In reaching this finding,

the court also considered Curry’s corroborating testimony that early on, he and

Dalton did not have copies of the letters. See id., ¶ 36. M oreover, the district

court acknowledged Dalton’s testimony that he needed more particular

information from witnesses, not just copies of the mail pieces, see id., ¶ 35, which

undermines Schulte’s theory that his initial opinion represented his true opinion

of the case simply because he already had seen the mail pieces.

      Lila Law rence. Schulte notes contradictions in the witness statements

Lawrence obtained from other Postal Service employees in connection with her

investigation, such as who had marked the mail and whether the mail was marked

with an “x” or either an “x” or a checkmark. Schulte concludes that the

statements formed an unreliable basis for Lawrence’s conclusion that Schulte had

recirculated mail, which apparently suggests that the Postal Service’s explanation


                                          -26-
for why it disciplined Schulte w as implausible. Schulte also points to Law rence’s

testimony that she did not include in the report she sent to D alton a witness

statement from Quinn that was beneficial to Schulte. W hile these points might

support a finding that the investigation was imperfect, they are too minor to show

that Lawrence’s belief that Schulte had recirculated mail w as not genuine. See

Pastran v. K-M art Corp., 210 F.3d 1201, 1206 (10th Cir. 2000) (inquiry is not

whether employer was right to think an employee engaged in misconduct but

whether the belief was genuine).

      Lawrence also testified that she had actually seen Schulte recirculate mail.

Schulte asserts that this was the first time Lawrence had ever mentioned this,

implying that Lawrence fabricated the statement. Even if Schulte is correct, the

alleged fabrication does not exclusively suggest age bias such that we might see

clear error in the trial court’s conclusion that Lawrence had a good-faith belief

that Schulte had recirculated the mail, see Aplt. A pp., Vol. I at 373, ¶ 88.

      Schulte’s final contention, that the failure to inquire into whether or not the

recirculated mail w ould have actually increased her salary, appears irrelevant.

Lawrence’s testimony suggests that the mere attempt would have been a sufficient

basis for termination because it “could inflate her count.” See id., Vol. II

at 751:11.

      G eorge Frame and Susan Beck. As noted, Frame and Beck, postmasters

of Oklahoma City and Tulsa, respectively, were members of the 2002 ASP


                                          -27-
comm ittee. The district court found that Schulte “presented no evidence that any

comm ittee member in the 2002 ASP application review process calculated or

estimated M s. Schulte’s age or the age of any other applicant.” Id., Vol. I at 364,

¶ 50. Schulte takes issue with Beck’s claim that she did not identify Schulte from

the redacted application form submitted for the 2002 ASP position, comparing it

with the testimony of Lynn Jones that, while Jones w as a postmaster, all

promotion applications came to her unredacted. To the extent Jones’s testimony

suggests that as a general matter postmasters always receive unredacted

application forms and therefore Beck must have, it supports one of two plausible

findings, and the district court’s choice between them cannot be clearly

erroneous. See Anderson, 470 U.S. at 574.

      Schulte also places much stock in the purportedly conflicting explanations

she received concerning why her answer to the decision-making KSA led to her

nonselection for the 2002 ASP position. She claims that she was told both that

she did not describe making a decision at all and that she described making a

decision that she did not have the authority to make. She compares this with the

2000 ASP committee’s approval of the substantially same answer she submitted

then and concludes that the reason for her nonselection in 2002 was a fabrication.

See Aplt. Opening Br. at 49-50.

      Again, evidence that an employer misjudged an employee’s qualifications

is relevant to whether its stated reason is a mask for prohibited discrimination.


                                         -28-
See Tyler, 232 F.3d at 814. But as the district court found, different committees

and committee members could reach different results concerning qualifications.

See Aplt. App., Vol. I at 365-66, ¶¶ 59-60. We agree even if, as Schulte

contends, her authority to make the decision she described in her KSA presented a

factual question that each committee should have answered in the same way.

Inconsistencies that may be attributable to differences in employer representatives

or human error are of insufficient probative value to render the district court’s

findings in this case clearly erroneous.

      Schulte further contends that she was given conflicting answers about the

number of KSAs on which she failed to demonstrate adequate achievement. See

Aplt. Opening Br. at 30-31. The record, however, does not unequivocally support

this contention. Two letters written by Gwen O’Brien showed that she had not

demonstrated proficiency in five of the KSAs. Aplt. A pp., Vol. IV at 1073, 1075.

A later email from Jackie Bouffard, one of the 2002 ASP committee members,

discussed only one of the KSAs because, as Bouffard wrote, the failure to

demonstrate one KSA required no further evaluation. See id. at 1077. That em ail

does not indicate whether Schulte’s answers to the other KSA s were deficient or

not. The perceived “conflict” among these letters therefore is minimal at best,

and the district court was not required to address it.

      Jackie Bouffard. Bouffard testified that the 2002 ASP committee worked

to build consensus about each applicant’s answers to the KSA s. Schulte argues


                                           -29-
that Bouffard’s testimony tended to support that there was undue influence on the

comm ittee and that the district court ignored that testimony. Again, the district

court found that each testifying board member stated that no undue influence

occurred. Id., Vol. I at 364, ¶ 50. Schulte’s reading of Bouffard’s testimony as

suggesting otherwise is contrary to the record. Bouffard did not recall anyone

talking about the age of the applicants, particularly as might be gleaned from the

listed dates of high school graduation on the redacted application form. See id.,

Vol. III at 893:15-22. She further stated that “[a]ge has no bearing on these

applications” and is “not necessarily something you discuss.” Id. at 894:1-5.

W hen asked if she would change her evaluation about the answer to a particular

KSA if another committee member brought up the applicant’s age, Bouffard

stated that she looks at “what’s written. You’re not looking at those other

factors.” Id. at 899:5-9. She further testified that she would be unable to know if

another committee member had a bad motive if it w as not communicated to her.

Id. at 899:20 to 900:3. Nothing in her testimony suggests that the district court’s

factual finding was clearly erroneous.

      O .D. Curry. Schulte contends that Curry’s testimony shows that another

Postal Service employee who also was accused of recirculating mail during the

M arch 2002 mail count, Sherry Birt, was not treated similarly to Schulte because

Birt was offered a settlement and Schulte allegedly was not. This contention

overlooks the district court’s primary reason for rejecting it— that the only


                                         -30-
evidence of Birt’s age was Schulte’s own assessment. See id., Vol. I at 376, ¶ 95;

see also id., Vol. II at 666:12-13 (Schulte’s testimony that Birt was “a number of

years younger than” her). N o reasonable inference as to Birt’s age may be drawn

from Schulte’s ambiguous testimony. See Sunward Corp. v. Dun & Bradstreet,

Inc., 811 F.2d 511, 521 (10th Cir. 1987) (reasonable inferences must be more than

speculation and conjecture). 7 W e need not address the district court’s alternate

basis for rejecting the Postal Service’s treatment of Birt as a comparator case, that

Schulte did receive the same offer but refused it, and we decline to address the

remainder of Schulte’s arguments concerning Curry’s testimony because they

raise matters of no consequence.

      Pam Cameron. Schulte takes issue with a perceived discrepancy between

Cameron’s testimony that she saw Schulte return marked mail to the misthrow

case, which the district court noted in its findings, see Aplt. App., Vol. I at 355,

¶ 12, and the omission of this detail from the contemporaneous witness statement

Cameron had given to Lawrence. W hen asked about this discrepancy, Cameron

testified that she was only required to write a short statement about what

happened, which did not require her to include her observation of Schulte, and



7
       Schulte points to the testimony of another witness who was forty-seven at
the time of trial, Randy Robinson. W hen asked if Birt was about his same age,
Robinson replied “I don’t— I guess.” Aplt. App., Vol. III at 866:25 to 867:2. To
the follow up query, “M ore or less?,” he replied, “Uh-huh.” Id. at 867:3-4. Like
Schulte’s testimony, Robinson’s is so ambiguous as to offer no support for her
claim.

                                         -31-
that she wrote a very short statement because she had never dealt with anything

like this in her twenty years with the Postal Service. Id., Vol. III at 978:4-9. This

suggests a credibility issue on which sufficient evidence existed for the district

court to find Cameron credible.

      Schulte points to Cameron’s description of other w ays the marked letters

could have been sent through the misthrow case in support of her disagreement

with the district court’s finding that she offered no innocent explanation for the

same mail pieces coming through as misthrows multiple times, see id., Vol. I at

355, ¶ 13. This presents a factual question implicating Cameron’s repeated

testimony that those methods would not account for the same mail being

recirculated multiple times. See id., Vol. III at 966:19-22; 972:23. The district

court apparently resolved that question against Schulte, and we see no clear error.

      K aren Schulte. Schulte’s primary discontent with the district court’s

findings as to her testimony is the following: “Schulte admitted at trial that she

has absolutely no evidence of any kind to support her allegation that

M s. Lawrence’s actions in proposing her removal were motivated by age bias.”

Id., Vol. I at 360, ¶ 32. Schulte argues that at most, this admission concerns only

direct evidence, then concludes that the court’s finding indicates its disregard of

indirect evidence. Aplt. Opening Br. at 12. W e see nothing improper about the

district court’s accurate finding as to Schulte’s express agreement that she had not

presented any “incidents” or other “anecdotal evidence” that showed Lawrence


                                         -32-
was motivated by age bias. See Aplt. App., Vol. II at 663:19-22. And as we

noted above, this finding does not indicate that the court was looking for only

direct evidence of discrimination or based its decision exclusively on the absence

of direct evidence.

      Schulte further takes issue with the district court’s treatment of evidence

that she applied for and did not receive a number of other supervisory positions,

which the court admitted as pattern or practice evidence. The court noted only

that Schulte admitted she was not qualified for some of the positions for which

she had applied. Id., Vol. I at 368, ¶ 69. She artfully claims that “[t]he Court did

not consider the far more numerous positions which [I] was denied, although [my]

eligibility for them was never challenged.” A plt. Opening Br. at 40. Schulte’s

testimony regarding those other positions does not show that she was qualified for

them. In presenting pattern or practice evidence to bolster her case, the burden

was on her to present evidence from which an inference could be drawn that age

bias was the reason she did not receive any promotions. She only established that

she had applied for a variety of positions and that she was either not contacted

about her application, overlooked for an unspecified reason, or denied for a

nondiscriminatory reason. See, e.g., Aplt. App, Vol. II at 599:16-23; 604:11 to

605:6; 606:9-18. Nothing suggests that she w as qualified for any of those

positions or overlooked or denied because of her age.




                                         -33-
      Schulte also offered testimony about Tom M ullins, a USPS human-relations

employee who worked as a mail counter for Schulte’s route in M arch 2002.

According to Schulte, M ullins introduced himself a day or two before the mail

count and asked her about her retirement plans. Id. at 628:4 to 629:9. She further

testified that M ullins took mail pieces to a clerk to inquire whether they belonged

to her scheme and later completed a witness statement accusing her of

recirculating mail. Id. at 629:18 to 630:5. She contends that M ullins’s comm ent

about her retirement was not a stray remark lacking any nexus to the employment

decision, as the district court stated, see id., Vol. I at 358-59, ¶ 28; 374, ¶ 91, but

part of a “mosaic of evidence that, taken together, creates an inference of age

discrimination,” ostensibly under the “cat’s paw” theory of liability, see Aplt.

Reply Br. at 8-9.

      As we recently explained, the “cat’s paw” theory of liability (also referred

to as the “rubber stamp” or “subordinate bias” theory) requires “a plaintiff [to]

establish more than mere ‘influence’ or ‘input’ in the decisionmaking process.

Rather, the issue is whether the biased subordinate’s discriminatory reports,

recommendation, or other actions caused the adverse employment action.”

E.E.O.C. v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 487 (10th Cir. 2006),

cert. granted, 75 U.S.L.W . 3106 (U.S. Jan. 5, 2007) (No. 06-341). W e further

explained that “an employer can avoid liability by conducting an independent

investigation of the allegations against an employee.” Id. at 488. Here, assuming


                                          -34-
that M ullins’s remark about Schulte’s retirement plans was evidence of his ow n

age bias, any discriminatory animus he may have had toward Schulte could be a

factor under the cat’s paw theory if it caused Lawrence to recommend

termination. But because there was sufficient evidence to show that Lawrence

conducted an independent investigation, Schulte may not avail herself of the cat’s

paw theory of liability, and M ullins’s alleged comment is irrelevant.

      In addition to the foregoing, we have reviewed the remainder of Schulte’s

arguments and find that they either are presented in a conclusory fashion or, like

many of those we have expressly considered, concern immaterial matters even

when considered in the aggregate. W e also have considered the points set forth in

Schulte’s supplemental authority and find them unpersuasive.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




                                         -35-
