                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 6 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DONITA PFAHL; RAMONA BALES,

                Plaintiffs-Appellants,

    v.                                                   No. 00-1095
                                                     (D.C. No. 97-Z-2150)
    SYNTHES (USA), a Pennsylvania                          (D. Colo.)
    Corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , BARRETT , and KELLY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiffs Donita Pfahl and Ramona Bales filed this discrimination action

against Synthes (USA) alleging various employment-related claims. The district

court granted summary judgment to Synthes and plaintiffs appealed. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s judgment

as to all claims of both plaintiffs.


I.    Donita Pfahl

      Pfahl, who has a bachelor’s degree in industrial technology, was employed

by Synthes at its manufacturing facility for orthopedic implant devices in

Monument, Colorado, from December 1988 until May 1998.       1
                                                                 She began work as

a manufacturing engineer and, by 1992, advanced to the position of production

manager. During her tenure as a manager, Pfahl consistently received positive

comments on her technical abilities, but negative evaluations of her

communication, interpersonal, and management skills. In late 1996, when the

new position of manufacturing manager was created as an intervening level of

supervision between production manager and plant manager, Pfahl was not

considered for the job.




1
      We review the evidence in the light most favorable to plaintiffs, the
nonmoving parties on summary judgment.    Simms v. Okla. ex rel. Dep’t of Mental
Health & Substance Abuse Servs ., 165 F.3d 1321, 1326 (10th Cir. 1999).

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      After Timothy Menke, a male production manager, was promoted to the

manufacturing manager position, Pfahl’s difficulties with subordinates and

coworkers appeared to escalate. Pfahl complained to Menke, who was now her

supervisor, that certain operators were speaking of her in offensive, gender-based

terms and making jokes about her weight. For their part, several operators

approached Menke, telling him that Pfahl’s confrontational and hostile manner

had led to such dangerously low morale that employees were leaving the

department.

      On January 7, 1997, the plant manager and Menke met with Pfahl to

express their concerns about the personnel problems in her department. Pfahl

was told that she was a liability the company could no longer afford, and that

appropriate action would be taken against her. She left the meeting feeling that

her “job was on the line.” Appellant’s App., Vol. II at 306. On January 15,

Pfahl went to the Denver office of the Equal Employment Opportunity

Commission (EEOC), where she completed a questionnaire preparatory to filing

a discrimination charge against Synthes. Later that month, Pfahl told the Synthes

human resources manager that she had filed an EEOC complaint.

      Meanwhile, plant and corporate management reached a decision on Pfahl’s

future with Synthes. She was to be reassigned to a technical position without

management responsibilities, at the same pay as her previous position. Pfahl was


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informed of this determination on February 18. A week later, she signed a formal

EEOC charge. Pfahl remained a Synthes employee until May 1, 1998, when she

accepted a position at another firm.

       Pfahl filed a complaint against Synthes in district court alleging, as relevant

to this appeal, sexual harassment in the form of a hostile work environment,

gender discrimination in failure to promote, and retaliatory demotion. In this

appeal, we review the district court’s entry of summary judgment “de novo,

applying the same legal standard used by the district court.”       Simms v. Okla.

ex rel. Dep’t of Mental Health & Substance Abuse Servs.         , 165 F.3d 1321, 1326

(10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

       A.     Hostile Work Environment Claim

       Pfahl contends that she has raised a genuine issue of material fact as to

whether Synthes maintained a hostile work environment. “For a hostile

environment claim to survive a summary judgment motion, ‘a plaintiff must show

that a rational jury could find that the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter


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the conditions of the victim’s employment and create an abusive working

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

1998) (quoting Davis v. United States Postal Serv   ., 142 F.3d 1334, 1341

(10th Cir. 1998)). Pfahl’s claim is based on her allegations that (1) some

operators spoke of her in derogatory, gender-based terms; (2) in 1993 or 1994

another production manager had hugged her and rubbed her shoulders; (3) a bottle

labeled “holy water for she-devils” was left on her desk; and (4) “Reeses Pieces”

candy wrappers were left on her desk. The totality of this conduct does not add

up to an abusive working environment. The district court properly granted

summary judgment to Synthes on this claim.

      B.     Failure to Promote

      Pfahl argues that Synthes’ failure to promote her to the manufacturing

manager position was discriminatory. A prima facie case of illegal failure to

promote under Title VII requires a plaintiff to demonstrate: (1) there was

a promotional opportunity available; (2) the plaintiff was qualified and had

established availability for the position; (3) despite the plaintiff’s qualifications,

she was not promoted to the position; and (4) the promotional opportunity

remained opened or was filled.     See Sprague v. Thorn Americas, Inc   ., 129 F.3d

1355, 1362 (10th Cir. 1997);     see also Amro v. Boeing Co. , 232 F.3d 790, 796

& n.2 (10th Cir. 2000) (clarifying that the fourth prong does not require


                                           -5-
a showing that the position “was filled by someone outside the plaintiff’s

protected class”). “Once the plaintiff has established a prima facie case,

‘[t]he burden then must shift to the employer to articulate some legitimate,

nondiscriminatory reason’ for its employment action. If the defendant makes

this showing, the plaintiff must then show that the defendant’s justification is

pretextual.” Kendrick v. Penske Trans. Servs.   , Inc. , 220 F.3d 1220, 1226

(10th Cir. 2000) (quoting   McDonnell Douglas Corp. v. Green    , 411 U.S. 792,

802, 804 (1973)).

      In 1996, when the position of manufacturing manager was created

and filled, Synthes’ perception of Pfahl’s management weaknesses was

well-documented in her annual performance appraisals. Although Pfahl has

made out the requisite prima facie case, she has failed to come forward with any

evidence on the issue of pretext. Accordingly, summary judgment was the

appropriate disposition of this claim.

      C.     Retaliation

      Pfahl claims that Synthes retaliated against her for asserting her charges

of gender discrimination. To satisfy the prima facie case of retaliation, a plaintiff

must establish that: “(1) he or she engaged in protected opposition to

discrimination; (2) he or she was subject to adverse employment action; and

(3) a causal connection exists between the protected activity and the adverse


                                         -6-
action.” Kendrick , 220 F.3d at 1234. As with discrimination claims, if the

plaintiff establishes a prima facie case of retaliation,

       the burden shifts to the employer to articulate a nondiscriminatory
       reason for the adverse employment action. If the employer satisfies
       this burden of production, then, in order to prevail on her retaliation
       claim, the plaintiff must prove that the employer’s articulated reason
       for the adverse action “is pretextual, i.e. unworthy of belief.”

Selenke v. Med. Imaging of Colo.     , 248 F.3d 1249, 1264 (10th Cir. 2001) (quoting

Anderson v. Coors Brewing Co ., 181 F.3d 1171, 1177 (10th Cir. 1999)) (further

quotation omitted).

       For summary judgment purposes, we conclude that Pfahl has satisfied the

first two prongs of the test by showing that she sought the assistance of the EEOC

and that she was removed from her management position. However, Pfahl has

not shown a causal connection between the protected activity and the removal.

Under the uncontested facts, Pfahl’s job was in jeopardy before she engaged in

any protected activity. As we have stated, further disciplinary action “simply

complet[ing] the disciplinary process already set in motion,” does not necessarily

lead to an inference of retaliatory motive.     Morgan v. Hilti, Inc ., 108 F.3d 1319,

1324 (10th Cir. 1997). Moreover, even assuming Pfahl established a prima facie

case, she has offered no evidence to show that Synthes’ concerns about her

management shortcomings were pretextual. The district court’s grant of summary

judgment on the retaliation claim was correct.


                                              -7-
II.   Ramona Bales

      In September 1995, Bales was hired as a machine operator in the plate

department in Synthes’ Monument facility. The manager who hired her

determined that she had no direct experience, but believed that she had a strong

work ethic and that, with experience, she would be proficient at the job. Bales’

starting pay rate was the highest of the other three machine operators (all male)

hired in her department in 1995. Because Bales proved to be an exemplary

employee, she was promoted to senior lead machine operator and subsequently

received more pay than four males who also hold the position of senior lead

machine operator.

      Bales, however, contends that her initial pay rate was set in contravention

of the Equal Pay Act,   see 29 U.S.C. § 206(d)(1). She points out that, at the time

she was hired, Synthes started an individual named Larry Dozal as a machine

operator in another department at higher pay rate. To establish a prima facie

case under the Equal Pay Act, a plaintiff must demonstrate “‘that (1) she was

performing work which was substantially equal to that of the male employees

considering the skills, duties, supervision, effort and responsibilities of the jobs;

(2) the conditions where the work was performed were basically the same;

(3) the male employees were paid more under such circumstances.’”        Sprague ,




                                          -8-
129 F.3d at 1363-64 (quoting    Tidwell v. Fort Howard Corp ., 989 F.2d 406, 409

(10th Cir. 1993)).

       Bales argues that there is a genuine issue of material fact as to whether she

was paid less than Dozal for equal work in a job which required equal skill,

effort, and responsibility and which was performed under similar working

conditions. As the district court stated, however, “Dozal was hired by a different

person in a different department which had different machines” and that Dozal

had “extensive [previous] milling experience.” Appellant’s App., Vol. III at 23

(Tr. of Jan. 13, 2000 hearing). The record fully supports this statement.   2



Bales failed to produce evidence showing that Dozal’s job functions were

substantially similar to hers and, therefore, the entry of summary judgment

was proper.




2
       Bales also claims error in the district court’s limitation of her discovery
requests for pay information on all the machine operators in the plant. The denial
of Bales’ overbroad requests was well within the district court’s discretion.    See
Munoz v. St. Mary-Corwin Hosp ., 221 F.3d 1160, 1169 (10th Cir. 2000) (stating
that we review a district court’s discovery order for abuse of discretion).

                                            -9-
III.   Conclusion

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED.


                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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