                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        April 7, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                        Clerk of Court
                                     TENTH CIRCUIT



 CAROL KLINE,

           Plaintiff-Appellant,
 v.                                                           No. 10-4082
 UTAH ANTI-DISCRIMINATION AND                       (D.C. No. 2:08-CV-00107-TC)
 LABOR DIVISION,                                              (D. Utah)

           Defendant-Appellee.



                                  ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and KELLY, Circuit Judges.



       Plaintiff Carol Kline sued her former employer the Utah Anti-Discrimination

Division (UALD) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et

seq. Kline appeals the district court’s grant of UALD’s motion for summary judgment on

her claims for hostile work environment, sex discrimination, retaliation, and breach of

contract. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
                                             I

                                   Factual Background

       Kline was employed as an anti-discrimination investigator at UALD from May

1998 until August 2005. As an investigator, Kline was primarily responsible for

preparing written reports analyzing the facts and legal merit of discrimination complaints

filed with UALD. When Kline finished a memo analyzing a discrimination claim, her

work was reviewed by her case manager and then submitted to the UALD Director for

formal approval and issuance. App. at 165.

A.     Kline’s Work History

       Between 1998 and 2004, Kline received eight separate “employee evaluations.”

Id. at 324. Five of the evaluations were part of her annual review, two were performance

reviews, and one was a probationary review. In these evaluations, Kline was eligible for

one of four performance ratings: unsuccessful; successful; highly successful; or

exceptional. Id. at 225. Kline was given a rating of “successful” on seven of her reviews

and “highly successful” on the other review. Id. at 324.

       1.     Deidre Marlowe

       Although Kline’s performance reviews up to 2004 indicated that she was

performing in an acceptable manner, her case managers consistently noted shortcomings

in her work product. In December 1999, Kline’s case manager, Deidre Marlowe, gave

Kline a memo documenting the problems with a case analysis she had completed. Id. at

62-63. Two months later, Marlowe placed a memo in Kline’s file indicating that Kline

                                             2
was having “trouble following instructions or remembering instructions given.” Id. at 65.

Marlowe also noted that there were many “factual and analytical gaps” in Kline’s writing

and that she was having difficulty following instructions given to her at previous

meetings. Id. at 65-66. Marlowe stated in the memo that she had also identified these

shortcomings in a discussion with Kline.

       Two weeks later, Marlowe sent an email to Joseph Gallegos, the UALD Director

at the time, informing him that she did not “trust [Kline’s] analysis.” Id. at 68. Three

days later, Marlowe sent Gallegos another letter indicating that she had to return Kline’s

work for correction despite the fact that she had given Kline specific directions regarding

the project. Id. at 70. In March 2000, Marlowe sent an email to Gallegos complaining

that she had to continually ask Kline to re-write her memoranda. Id. at 75. Around the

same time, Marlowe sent a memo to Kline in which she expressed concern regarding

Kline’s failure to follow instructions, inability to weigh evidence under the proper

standard of proof, failure to understand the elements of a prima facie discrimination

claim, and questionable analytical abilities. Id. at 77-78.

       2.     John Golom

       John Golom was Kline’s case manager from March 2000 until August 2002. Like

Marlowe, Golom expressed concern regarding Kline’s analytic and writing abilities. In

July 2000, Golom sent a memo to Director Gallegos informing him that he had to return a

project to Kline because it was “clearly incomplete” and needed significant revisions. Id.

at 86. In August 2000, Golom placed a memo in Kline’s file indicating that he had met

                                              3
with Kline to discuss the shortcomings in her work and what she needed to do to correct

them. Id. at 89.

       In October 2000, Kline was placed on a corrective action plan (CAP) for a three-

month period. Id. at 91-92. At UALD, a CAP is “not a form of discipline and is designed

specifically to help [investigators] improve in [their] analysis of discrimination

complaints.” Id. at 91. As part of the CAP, Kline was required to (1) submit her work to

the Fair Housing Coordinator prior to submitting it to her case manager; and (2) meet

with her case manager more often. Id. at 92. At the end of the CAP period, Golom

informed Kline in writing that while the work product she submitted during the CAP

period “improved a great deal . . ., lingering concerns about conceptual and analytical

concepts” remained. Id. at 94. As a result, Kline’s CAP was extended for forty-five more

days. Id.

       On March 1, 2001, Kline was given a Notice of Intent to Discipline, in which she

was informed that UALD intended to issue a formal letter of reprimand for her continued

failure to properly analyze discrimination complaints without the assistance of her

supervisors. Id. at 102. UALD issued the formal letter of reprimand on March 14, 2001.

Id. at 108-09.

       3.        EEOC Complaint

       In November 2002, Kline and three other female investigators filed a sexual

harassment complaint with the EEOC against then Director Gallegos. Id. at 588-89. As a

result of this complaint, Gallegos resigned from his position as director. Id. In June

                                              4
2003, Kline and UALD reached a settlement agreement. In the agreement, Kline agreed

that she would not file suit against UALD for claims arising out of her EEOC complaint,

and UALD agreed that it would not discriminate or retaliate against Kline “as a result of

filing [the EEOC] charge” against Gallegos. Id. at 445.

       4.     Harold Stephens

       Sherrie Hayashi became the UALD Director in June 2003. Shortly thereafter,

Harold Stephens became Kline’s case manager. Id. at 164. Stephens apparently had

concerns regarding Kline’s performance because in January 2004, UALD placed her on

another CAP, which she successfully completed. Id. at 168. In August 2004, Stephens

placed a memo in Kline’s file indicating that she was experiencing “difficulty in

completing her determinations in an administratively acceptable manner” and had been

“exhibit[ing] . . . a resistance to suggestions.” Id. at 115. Stephens also indicated that he

had spoken with Kline and explained to her that “the quality of her work [was]

unacceptable for an investigator of her longevity.” Id. at 115-16.

       From September 2004 to March 2005, Kline was again placed on a CAP to assist

her in becoming “a more proficient writer and [to] aid [her] in the required analysis” of

her investigative work. Id. at 118-20. As part of her CAP requirements, Kline was

required to meet with Stephens on the second and fourth Wednesday of every month to

discuss her work. Id. at 119. She was also required to “complet[e] a critical analysis and

legal writing course at an institution to be agreed upon” at a later date. Id. Kline was

required to complete the course by February 28, 2005. Id.

                                              5
       Although this CAP did not require Kline to receive assistance from her co-

workers, the record indicates that Stephens assigned a fellow investigator named Ashlee

Jolley to help Kline improve her writing. Id. at 228. In an email to Stephens regarding

her assistance to Kline, Jolley noted that while she had “seen some definite

improvements” in Kline’s work, Kline was still making “continuous errors” and having a

difficult time applying the proper analysis. Id. Jolley also informed Stephens that the

most recent work Kline had given her was “not very coherent or organized.” Id.

       Because UALD had some difficulty identifying a legal writing class for Kline to

attend, it extended her CAP through May 2005. Id. at 122-23. In addition, UALD added

new requirements to her CAP and ordered her to attend additional training meetings and

meet with a licenced attorney who was assigned to assist her with her cases. Id. at 156-

62. Kline eventually completed all of these requirements, including the legal writing

class, although she claims that the attorney assigned to work with her “did not understand

what Mr. Stephens wanted.” Aplt. Br. at 21.

       In March 2005, Stephens sent an email to Kline informing her that rather than

meet with her and instruct her to re-write an assignment, he re-wrote the assignment and

sent it to Director Hayashi for approval. App. at 127. Stephens also informed Kline that

she needed to “begin thinking in a more linear, analytical fashion.” Id. He concluded by

telling her: “[i]t is absolutely critical over the next two months that you begin showing

significant improvement in your ability to think critically and produce a logically

supportable determination.” Id.

                                             6
          According to UALD, Kline’s work product did not improve enough over this two

month period. Id. at 157, 170. On June 3, 2005, Stephens and Hayashi gave Kline her

annual performance review. Id. at 225. Stephens and Hayashi indicated in the report that

Kline had “been unable to develop reasonable expertise in [the] functional areas” of her

job and they gave her an “unsuccessful” performance rating. Id. On July 11, 2005,

Hayashi issued Kline a Notice of Intent to Dismiss. Id. at 170-71. Kline initially filed an

administrative grievance regarding her proposed dismissal, but she chose to forgo the

administrative hearing and resigned from her employment position in August 2005.1 Id.

at 172.

B.        UALD’s Alleged Mistreatment of Kline

          Kline alleges that shortly after she and three other women filed the EEOC charges

against Gallegos, they “had their productivity standards raised and their flex schedule and

telecommute options . . . taken away by management.” Aplt. Br. at 10-11. She further

alleges that Gallegos, Stephens, and another manager named Bel Randall began excluding

the four women from department meetings, instructing UALD employees to ostracize

them, and giving their work greater scrutiny. App. at 364, 380.

          Of these case managers, Kline alleges Stephens mistreated her the most following

her settlement with UALD. Kline alleges Stephens unfairly scrutinized her work and

          1
         Although she admits resigning from her employment, Kline alleges that her
employment was effectively terminated once she received the Notice of Intent to Dismiss.
In ruling on UALD’s motion for summary judgment, the district court assumed Kline had
been terminated. In our review of the district court’s ruling, we will make the same
assumption.

                                               7
used his position as case manager to punish her. According to Kline, when she

confronted Stephens about the excessive noise other employees were making outside her

office, he promptly issued a memo criticizing her work. Id. at 218, 573. Kline also

alleges she was placed on CAP in January 2004 not because of problems with her work

performance, but because Stephens was still upset about her EEOC complaint against

Gallegos. Id. at 454. Finally, Kline alleges Stephens verbally mistreated her by yelling at

her in front of other employees, calling her “stupid” and “incompetent”, and going out of

his way to harass her at staff meetings. Id. at 548-51; 577-79.

       On one occasion, Kline directly approached Stephens about the way he was

treating her. In March 2005, the day after Stephens told Kline that it was “absolutely

critical” that she improve her writing, Kline wrote a memo to Stephens in which she

levied two complaints against him. Id. at 127-28. First, Kline complained about the

constant noise level around her office and asked Stephens to require that the other

employees not socialize so loudly around her work area. Id. at 129. Kline also

mentioned a time when Stephens, along with another co-worker named Julie, teased Kline

for always asking others not to be so loud around her. Id.

       Second, Kline informed Stephens that she was uncomfortable with the number of

sexual innuendos she heard around the office, including offensive sexual jokes between

Stephens and Julie. Id. Kline also mentioned an offensive comment Stephens made to

her directly. Id. at 132. Kline recalled an incident in which she was in Stephens’ office

searching for some files. After she thanked Stephens for letting her search through his

                                             8
office, he responded “you can fondle my files any time.” Id. In her deposition, Kline

also mentioned another incident involving Stephens. One day Kline asked him “so what

does someone have to do to work in the [the] wage and hour [department]?” Id. at 244.

Stephens allegedly responded: “why don’t you come over and sit on my lap and see what

comes up?” Id.

      Stephens immediately notified Director Hayashi of Kline’s accusations. Hayashi

investigated these incidents by interviewing Kline, Stephens, and other employees. Id. at

156, 171. In April 2005, Hayashi wrote a memo to Stephens in which she (1) reiterated

UALD’s policy regarding communication, inappropriate jokes, age and gender related

comments, and general harassment; (2) instructed him to “correct deficiencies in [Kline’s]

work” in a manner “conducive to appropriate management demeanor”; and (3) requested

that he attend an upcoming management class to help him “effectively communicate with

persons of various communication styles.” Id. at 134-35. In her deposition, Kline

admitted that she did not hear Stephens make any inappropriate comments after Director

Hayashi issued her memo to Stephens. She did testify, however, that she tried to “avoid

[Stephens] as much as [she] could.” Id. at 247.

C.    Thomas Hauser

      Thomas Hauser is the only male investigator at UALD. Hauser testified that in

September 2004, when Kline was again placed on CAP, Stephens came to Hauser and

told him that he would also be placed on CAP. When Hauser asked Stephens what was

wrong with his work product, Stephens allegedly responded: “Well, I have to do this

                                            9
because I wrote up Carol and I don’t want her to think that I’m singling her out.” Id. at

607-08. Hauser testified that his CAP stated that he was to have weekly meetings with

Stephens regarding his work, but that the meetings “never happened.” Id. at 608.

According to Hauser, his CAP was “on paper only.” Id.

       Hauser also testified that he believed Stephens was “zeroing in” on Kline and

treating her more harshly than the other investigators. In his deposition, Hauser testified

that Stephens made “caustic comments or harsh comments” regarding Kline’s work in his

written performance evaluations. Id. at 598. According to Hauser, Stephens would “on

several occasions . . . stand at Kline’s cubicle and say things . . . that should have been

said in [his] office.” Id. at 598-99. Hauser testified that he did not “remember specific

comments” made by Stephens, but he felt that what Stephens said was inappropriate. Id.

at 599. Hauser also testified that he spoke with Director Hayashi “on several occasions”

regarding the fact that he thought Stephens was “targeting” Kline. Id. at 601-02. Hauser

further testified that after Kline resigned, Stephens began berating another female

employee, Joan Carter, by “criticiz[ing] her reports . . . and her performance issues” in an

“unprofessional” manner. Id. at 604.

                                     Procedural History

       In February 2008, Kline filed suit against UALD in federal district court alleging

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000. Kline alleged

claims for (1) hostile work environment; (2) sex discrimination; (3) retaliation; and (4)

breach of the settlement contract. UALD moved for summary judgment on all of Kline’s

                                              10
claims. The district court granted UALD’s motion for summary judgment, concluding

that “there [was] not enough evidence in the record for a rational trier of fact to find that

Ms. Kline was targeted because she is a woman or because she had lodged discrimination

complaints.” App. at 842-856.

                                              II

                                     Standard of Review

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

same legal standards used by the district court in addressing motions for summary

judgment. Carpenter v. Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 2006). Summary

judgment is appropriate, when construing the record in the light most favorable to the

non-moving party, “there is no genuine issue of material fact and one party is entitled to

judgment as a matter of law.” MediaNews Grp., Inc. v. McCarthey, 494 F.3d 1254, 1261

(10th Cir. 2007).

                                           Analysis

       Title VII prohibits an employer from “discriminat[ing] against any individual with

respect to . . . compensation, terms, conditions, or privileges of employment, because of

such individual’s . . . sex.” 42 U.S.C. § 2000e2(a)(1). Kline brings three claims under

Title VII: (1) hostile work environment based on sex; (2) sex discrimination; and (3)

retaliation.

A.     Hostile Work Environment

       Title VII’s prohibition on discrimination “prohibits [an employer] from subjecting

                                              11
an employee to a hostile work environment.” Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 64 (1986). Here, Kline alleges she was subjected to a hostile work environment

because of her gender.2 Aplt. Br. at 35. To establish that a sexual hostile work

environment existed, a plaintiff must prove: (1) she is a member of a protected group; (2)

she was subject to unwelcome harassment; (3) the harassment was based on gender; and

(4) due to the harassment’s severity or pervasiveness, the harassment altered a term,

condition, or privilege of the plaintiff’s employment and created an abusive working

environment. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007).

       A hostile work environment claim survives summary judgment only when the

plaintiff presents sufficient evidence indicating that “the workplace [was] permeated with

discriminatory intimidation, ridicule, and insult” such that it “create[d] an abusive

working environment.” Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir.

1998). In making this determination, courts are to consider “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes with an employee’s

       2
         In her opening brief, Kline asks this court to consider her hostile work
environment claim as a claim based on retaliation as well. Kline admits that causes of
action for retaliatory hostile work environment have not been formally recognized by the
Tenth Circuit, but she notes that at least two district courts have concluded that such a
claim does arise under Title VII. See King v. Salazar, 2009 WL 1300740 (D.N.M 2009);
Jones v. Wichita State Univ., 528 F. Supp. 1196, 1218 (Dist. Ct. Kan. 2007). We decline
to address this argument because Kline never raised it in the district court. See United
States v. Dewitt, 946 F.2d 1497, 1499 (10th Cir. 1991) (The court does “not consider
issues which are raised for the first time on appeal unless a party demonstrates an
impediment which prevented raising the argument below.”).


                                             12
work performance.” Trujillo v. Univ. of Colo. Health Sci. Ctr., 157 F.3d 1211, 1214

(10th Cir. 1998). In order to reach the level of a hostile work environment, the

misconduct must amount to more than “a few isolated incidents”; instead a plaintiff must

show “pervasive or severe harassment.” Id. (citation omitted).

       The district court concluded that Kline brought forth enough evidence to create a

genuine issue of material fact regarding whether Stephens created a hostile work

environment. App. at 854. Nonetheless, the court granted UALD’s motion for summary

judgment because Kline “provided no evidence that [she] was discriminated against

because of her sex.” Id. Kline argues the district court erred because the following

evidence indicates that she was mistreated because of her gender: (1) the two

inappropriate sexual comments Stephens made directly to her; (2) the inappropriate

sexual comments she overheard around the office; (3) Hauser’s testimony that Stephens

was unduly harsh in his evaluation of her work; (4) Hauser’s testimony that Stephens

made comments to her in public that should have been made in his office; (5) Hauser’s

testimony regarding why Stephens placed him on CAP; and (6) Hauser’s testimony that

after Kline left, Stephens began to harass another female employee. Id.

       We are not persuaded by these arguments, and we conclude that Kline did not

present sufficient evidence to indicate that she suffered an abusive working environment

because of her gender. In analyzing this issue, we note that Kline’s evidence comes from

two sources: (1) Hauser’s testimony regarding what he observed around the office, and

(2) her own testimony regarding how she was treated at work.


                                            13
       1.     Hauser’s Testimony

       We conclude that Hauser’s testimony does not create a genuine issue of material

fact regarding whether Kline was mistreated because of her gender. First, Hauser

testified that Stephens “zeroed in” on Kline by making “caustic” and “harsh” comments

regarding her work in his written performance reviews. Id. at 598-99. This testimony,

however, does not establish that Stephens’ alleged mistreatment of Kline was related to

her gender. The record indicates that Stephens harshly criticized Kline’s work not

because she is a woman, but because her work product was deficient. In addition to

Stephens’ own complaints regarding Kline’s performance, Kline’s two previous

supervisors both repeatedly noted the shortcomings in her written work. Id. at 62-66; 86-

89. Also, Ashlee Jolley, the co-worker assigned to help Kline, told Stephens that Kline’s

work product was still “not very coherent or organized.” Id. at 228. Finally, Director

Hayashi testified that she made the decision to terminate Kline based on her poor work

product. Id. at 170-71. Thus, while Hauser testified that Stephens was unduly critical of

Kline, the record indicates that Stephens’ criticism was related to her work performance,

not her gender.

       Second, Hauser’s testimony that Stephens made inappropriate comments to Kline

at her cubicle does not establish that gender discrimination motivated Stephens’ actions.

For one, Hauser does not indicate exactly what Stephens said to Kline. He admits that he

does not “remember specific comments”—he simply testified that the things Stephens

said “should have been handled in the office.” Id. at 599. Without knowing what


                                            14
Stephens said, we cannot simply assume that his comments were inappropriate or a form

of sexual harassment. We therefore conclude that Hauser’s testimony regarding the

incidents at Kline’s cubicle do not support a claim for gender-based hostile work

environment.

       Third, we conclude that Hauser’s testimony that Stephens put him on CAP so that

Kline was not singled out does not reasonably indicate that Kline was subjected to a

hostile work environment because of her gender. Kline essentially argues that since

Stephens did not want her to be the only employee placed on CAP, he must have put

Hauser on CAP to cover up for the fact that he was punishing Kline because of her

gender. Such an interpretation of Hauser’s testimony, however, requires us to infer facts

that are not supported by the record. Even taking Hauser’s testimony as true, Hauser

never stated that Stephens told him he placed Kline on CAP because of her gender;

instead, Stephens told Hauser that he was placing him on CAP so Kline would not appear

to be singled out. Id. at 607-08. Further, the record indicates that what set Kline apart

from the other investigators was her poor work performance. In addition to the fact that

Kline was placed on CAP multiple times because of her poor work product, Director

Hayashi testified that none of the other investigators “experienced the degree of difficulty

in meeting performance expectations” that Kline did. Id. at 170-71. Thus, while Kline

asks us to conclude that Stephens placed Hauser on CAP so he could cover up his sexist

motives, the facts indicate that Kline had greater difficulty in satisfactorily completing her

work than any other employee.


                                             15
       Finally, Hauser testified that soon after Kline resigned from her position, Stephens

began mistreating Joan Carter, another female investigator. We are not persuaded that

this testimony creates a material factual dispute regarding whether Stephens harassed

Kline because of her gender. Even if Stephens’ mistreatment of Carter could lead a

reasonable juror to infer that he similarly mistreated Kline, Hauser’s testimony is

inconclusive. Hauser testified only that Stephens mistreated Carter by “criticiz[ing] her

reports and . . . her performance issues” in an “unprofessional” manner. Id. at 604. Like

Hauser’s testimony regarding Stephens’ criticism of Kline’s work, this testimony

indicates that Stephens was not pleased with Carter’s work product, not that his actions

were motivated by gender discrimination. More important than Hauser’s testimony,

however, is the fact that Kline did not present to the district court any other evidence of

Stephens’ alleged mistreatment of Carter. Kline did not introduce Carter’s testimony on

this matter or whether Carter complained to UALD management or her co-workers about

the way Stephens treated her. For these reasons, Hauser’s vague assertion that Stephens

was unduly critical of Carter does not indicate that Kline was mistreated because of her

gender.

       2.     Kline’s Testimony Regarding Workplace Comments

       Kline testified regarding two inappropriate comments Stephens made, directly to

her, and comments she overheard him make to others. Stephens does not dispute that he

made two very inappropriate comments directly to Kline. In addition, the sexually

charged comments Kline apparently overheard around the office were clearly


                                             16
inappropriate, even if they were not directed at her. While we obviously do not condone

such activity, two inappropriate jokes and a few overheard comments which contained

sexual innuendo are not severe or pervasive enough to create a hostile work environment.

Trujillo, 157 F.3d at 1214 (holding that federal law “does not guarantee a utopian

workplace or even a pleasant one”) (citation omitted). Our conclusion is further bolstered

by the fact that Stephens took Kline’s complaints about his conduct seriously. He

immediately informed Director Hayashi of Kline’s complaints and, as Kline admits, never

made any other inappropriate comments to her. For these reasons, we conclude that

Stephens’ sexually charged comments were not pervasive or severe enough to create a

material factual dispute regarding Kline’s gender-based hostile work environment claim.

B.     Sexual Discrimination

       Kline also alleges UALD unlawfully discriminated against her based on her gender

by terminating her employment. Because Kline seeks to prove discrimination by indirect

or circumstantial evidence, we apply the McDonnell Douglas burden-shifting analysis.

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Under this analysis, the

plaintiff has the initial burden of proving a prima facie case of discrimination by a

preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). If the plaintiff puts forth a prima facie case of discrimination, the burden shifts to

the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s

rejection.” Id. If the plaintiff carries this burden, he or she must then prove by a

preponderance of the evidence that the reasons offered by the defendant for its


                                              17
employment actions were actually a pretext for discrimination. Id. at 804.

       In order to prove a prima facie case of sex discrimination, Kline must prove that

(1) she is a member of a protected class; (2) her job performance was satisfactory; (3)

UALD took an adverse employment action against her; and (4) similarly situated

employees were treated differently from her. Goodwin v. Gen. Motors Corp., 275 F.3d

1005, 1012 (10th Cir. 2002). The district court assumed for the sake of argument that

Kline brought forth sufficient evidence to establish a prima facie case of sex

discrimination. Accordingly, it considered (1) whether UALD brought forth evidence of

a non-discriminatory reason for terminating Kline’s employment; and (2) whether Kline

presented sufficient evidence for a reasonable juror to conclude that UALD’s stated

reason for terminating her employment was pretextual.

       1.     Non-Discriminatory Reason for Terminating Kline’s Employment

       The district court concluded that UALD brought forth enough evidence to indicate

that its stated reason for terminating Kline’s employment was not discriminatory, but

rather was due to her poor work performance. We agree with the district court’s

conclusion because the record shows that Kline had a lengthy history of mediocre work

performance prior to her termination.

       In 1999 and 2000, Deidre Marlowe documented problems with Kline’s work

performance multiple times. In addition to noting the numerous “factual and analytical

gaps” in Kline’s writing, she also informed Director Gallegos that she did not “trust her

analysis.” App. at 65-66, 68. From 2000 to 2002, John Golom documented various


                                            18
shortcomings with Kline’s work, and he also met with her to discuss how she could

improve her writing. Id. at 86, 89. During this time period, Kline was placed on a CAP

to help her improve her writing abilities, but the CAP was extended because of “lingering

concerns” about the quality of her work. Id. at 94. In addition, while Golom was still

Kline’s supervisor, UALD issued Kline a formal reprimand for failing to properly

complete her assignments as a UALD investigator. Id. at 108-09. Finally, from 2003 to

2005, Stephens, like Marlowe and Golom, reported numerous shortcomings in Kline’s

work. Stephens concluded on multiple occasions that Kline’s work was “unacceptable”

and that she need to “begin showing significant improvement” in her work product. Id. at

115-16, 127.

       In addition to the testimony of Kline’s first three cases managers, Director Hayashi

testified that she read one of Kline’s memos and that it “made no sense.” Id. at 169.

Hayashi also testified that she decided to issue the Notice of Intent to Dismiss because

Kline repeatedly failed to properly complete her work at the expected level and because

no other investigators, male or female, “experienced the degree of difficulty in meeting

performance expectations” that she did. Id. at 171. Finally, Ashlee Jolley, the co-worker

assigned to help Kline improve her work product, reported that Kline was making

“continuous errors” and was submitting writing assignments that were “not very coherent

or organized.” Id. at 228. Given that numerous UALD employees documented the

problems with Kline’s work product, we conclude that the district was correct in finding

that UALD had shown a non-discriminatory reason for terminating her employment. See


                                            19
Bryant v. Farmers Ins., 432 F.3d 1114, 1125 (10th Cir. 2005) (“Poor performance is a

quintessentially legitimate and nondiscriminatory reason for termination.”).

       2.     Pretext

       The district court also granted summary judgment on Kline’s sex discrimination

claim because she failed to present evidence indicating that UALD’s stated reason for

terminating her employment was pretextual. A plaintiff can demonstrate pretext by

showing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions

in the employer’s . . . reasons for its action,” which “a reasonable factfinder could

rationally find . . . unworthy of credence.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323

(10th Cir. 1997).

       Kline argues the district court erred in granting summary judgment on her sex

discrimination claim because a genuine factual dispute exists regarding whether UALD

terminated her employment for pretextual reasons. In support of this assertion, Kline

points to the following as evidence of pretext: (1) Hayashi’s inconsistent testimony

regarding why she issued the Notice of Intent to Dismiss; (2) the manner in which UALD

carried out her CAPs; and (3) Stephens’ inconsistent directions regarding her work. We

are not persuaded by any of these assertions.

       First, Kline argues that Hayashi’s testimony regarding why she terminated her

employment is both inconsistent and implausible. According to Kline, this is evident by

the fact that Hayashi testified to directly reviewing only one of Kline’s memos (in

January 2004) and that she did not issue the Notice of Intent to Dismiss until July 2005,


                                             20
eighteen months after she read the alleged poorly written memo. We disagree. First,

Hayashi testified that she read Kline’s memo in 2004 at Kline’s request, and there is no

evidence that this was the only work product of Kline’s that Hayashi ever read. More

important, however, is the fact that as UALD Director, Hayashi relies on the observations

and reports of her case managers who directly oversee the work of the investigators. The

record indicates that all three cases managers—Marlowe, Golom, and Stephens—

informed the UALD Director that Kline was having significant problems completing her

work in a satisfactory manner. Thus, while Kline argues that Hayashi terminated her

employment based on a memo she wrote eighteen months before her termination, the

record indicates that Hayashi made the decision to issue the notice of dismissal based on

reports from the case managers and Kline’s “failure to improve the long-noted

deficiencies” in her work. App. at 168-70.

       Kline also argues that the manner in which UALD carried out her CAPs indicates

that she was terminated for pretextual reasons. Kline alleges she repeatedly requested

legal writing classes so that she could improve her writing, but that her requests were

“either ignored or rejected by UALD management.” Aplt. Br. at 55. She also claims that

her CAPs required her to meet with Stephens regularly, but that he refused to meet with

her. We are not persuaded by these arguments. First, Kline’s assertion that UALD

ignored her requests for legal writing classes is entirely without merit. Kline did not

initially request access to these classes: her September 2004 CAP required that she

complete a legal training course by the end of February 2005. Although Kline sent two


                                             21
emails to Stephens asking for information on a course so she could complete her CAP on

time, App. at 467-68, she did not (as she implies) request to enroll in a legal writing

program simply out of a desire to improve her writing.

       Further, the record indicates that UALD did not ignore Kline’s request for access

to a legal writing class. Because it had some trouble identifying the proper legal training

course, UALD extended Kline’s CAP to May 2005 so she could complete the required

course—which she ultimately did. Moreover, UALD provided Kline with other

improvement opportunities: it required her to attend additional training meetings, it

assigned an attorney to assist her with her cases, and it assigned Ashlee Jolley, a fellow

investigator, to help her with her writing. App. at 156-62, 228. Thus, despite Kline’s

assertions to the contrary, UALD did not ignore her requests for training, and its actions

on this matter do not reveal evidence of pretext.

       Kline also argues that Stephens refused to meet with her regularly, as required by

her CAP. Even taking this assertion as true, however, it does not establish a genuine

factual dispute regarding whether UALD terminated Kline’s employment for pretextual

reasons. First, Hauser testified that Stephens was supposed to meet with him after he was

placed on CAP, but that Stephens never met with him either. Thus, based on the record,

it appears that it was not uncommon for Stephens to not actually meet with his

investigators as contemplated in the CAPs. More important, however, is the fact that

Kline’s poor work performance since the time she was hired is very well documented.

Multiple supervisors, both men and women, reported that Kline’s work product was poor,


                                             22
and in response, UALD (1) assigned multiple people to help Kline and (2) required her to

enroll in classes, attend workshops, and receive one-on-one help. In the end, however,

Kline’s work product did not improve. Given this fact, we conclude that Stephens’

alleged failure to meet with Kline regularly does not reasonably indicate that UALD’s

stated reason for terminating her employment was pretextual.

       Finally, Kline argues that the fact that Stephens provided her with “inconsistent

directions” regarding her work is evidence of pretext. Even assuming Kline’s allegation

is true and Stephens provided inconsistent directions, the fact remains that numerous

other UALD supervisors and employees, Marlowe, Golom, Hayashi, and Jolley reported

that Kline had problems consistently following directions and properly completing her

written work. Because Kline’s problems were not limited to just her work with Stephens,

her allegations regarding his inconsistent directions would not persuade a reasonable juror

to find that UALD’s stated reason for terminating her employment was pretextual.

C.     Retaliation

       Kline also alleges UALD violated Title VII by retaliating against her for filing an

EEOC complaint against former-Director Gallegos. Kline alleges UALD retaliated

against her by placing her on CAPs, subjecting her to Stephens’ “unprofessional and

excessive tirades,” and eventually terminating her employment. In order to prove a prima

facie case of retaliation, Kline must demonstrate (1) that she engaged in protected

opposition to discrimination; (2) that a reasonable employee would have found the

challenged action materially adverse; and (3) that a causal connection existed between the


                                            23
protected activity and the material adverse action. Argo v. Blue Cross & Blue Shield of

Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006).

       As with Kline’s sex discrimination claim, the district court assumed Kline brought

forth enough evidence to establish a prima facie case of retaliation. The court granted

UALD’s motion for summary judgment on Kline’s retaliation claim, concluding (1) that

UALD brought forth sufficient evidence of a non-retaliatory reason for terminating

Kline’s employment, and (2) that Kline did not provide evidence indicating that this

stated reason was pretextual.

       We affirm the district court’s grant of UALD’s motion for summary judgment on

this claim. As previously noted, we conclude based on the undisputed evidence that

UALD had a non-discriminatory reason for terminating Kline’s employment— namely,

her poor work performance over the course of several years. We also affirm the district

court’s conclusion that Kline did not bring forth sufficient evidence indicating that

UALD’s stated reason for terminating her employment was pretextual. First, Kline

argues that she met this burden because the same arguments for finding pretext as to her

sex discrimination claim apply to her retaliation claim. We disagree with this argument

and conclude, for the reasons stated above, that (1) Hayashi’s testimony regarding her

reasons for terminating Kline’s employment, (2) the manner in which UALD carried out

her CAPs, and (3) Stephens’ allegedly inconsistent instructions regarding her work

product do not indicate that Kline was terminated for pretextual reasons.

       Second, Kline argues that Director Hayashi’s response to her complaints regarding


                                             24
Stephens’ behavior reveals evidence of pretext. According to Kline, when she informed

Hayashi of Stephens’ improper behavior and overall mistreatment of her, Hayashi did no

more than engage in a “sham investigation.” Aplt. Br. at 66. Essentially, Kline argues

that the fact that Hayashi did not take Kline’s accusations seriously indicate that she

condoned Stephens’ mistreatment of her, which was motivated by a desire to retaliate

against her for filing the EEOC complaint against Gallegos.

       We are not persuaded by this argument because Kline has brought forth no

evidence to indicate that Director Hayashi conducted a sham investigation or otherwise

did not take Kline’s accusations seriously. For one, Kline does nothing more than simply

allege that Hayashi did not adequately investigate her complaint. She points to no

testimonial or documentary evidence in the record to support this broad assertion. More

important, the evidence concerning Hayashi’s investigation disproves Kline’s claim.

After interviewing Kline, Stephens, and other employees, Hayashi wrote a letter to

Stephens explaining her “clear expectations” that he follow UALD policy regarding

communication, inappropriate jokes, age and gender related comments, and general

harassment. App. at 134-35. Hayashi also informed Stephens that he needed to address

Kline’s work deficiencies in a manner “conducive to appropriate management

demeanor.” Id. at 135. Finally, Hayashi asked Stephens to attend an upcoming

management class that she believed would help him “effectively communicate with

persons of various communication styles.” Id. Given that Hayashi interviewed Kline,

Stephens, and other employees and then instructed Stephens to cease his inappropriate


                                             25
conduct and requested that he attend a class to help him communicate properly, we

conclude that Hayashi adequately investigated Kline’s accusations and that Hayashi’s

conduct regarding this matter does not reveal evidence of pretext.

D.     Breach of Contract

       Finally, Kline alleges the district court erred in granting summary judgment on her

breach of contract claim because, contrary to its written promise not to retaliate against

her for filing an EEOC claim against then-Director Gallegos, UALD terminated her

employment in retaliation against her. Because we conclude as a matter of law that

UALD did not retaliate against Kline, we affirm the district court’s ruling that UALD did

not breach the settlement agreement.

                                             III

       The judgment of the district court is AFFIRMED.



                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Chief Judge




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