F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 6 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    MINA LUNDIEN,

                Plaintiff-Appellant,
                                                          No. 00-1083
    v.                                              (D.C. No. 98-WM-1651)
                                                           (D. Colo.)
    UNITED AIRLINES, a corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before TACHA , EBEL , and BRISCOE , 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.

         Plaintiff-appellant Mina Lundien appeals from the district court’s order

granting summary judgment in favor of defendant United Airlines (United) in her


*
      This order and judgment is not binding precedent, except under the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.
action claiming that United demoted her on the basis of gender in violation of

Title VII and in retaliation for her complaint of disparate treatment. We affirm

the district court’s grant of summary judgment on plaintiff’s retaliation claim.

Because the record indicates that plaintiff made a prima facie showing of gender

discrimination under Title VII and offered sufficient evidence of pretext to create

a genuine dispute of material fact as to the validity of United’s articulated reason

for demoting her, however, we reverse the grant of summary judgment on her

Title VII discrimination claim.


                                      I. Background

       The evidence and all reasonable inferences derived therefrom are presented

here in a light most favorable to the plaintiff, as the nonmoving party.   See

Bullington v. United Air Lines   , Inc ., 

, 1313 (10th Cir. 1999).

Plaintiff was hired by United in 1991 as a part-time ramp serviceworker. One

year later, she was promoted to ramp team leader at United’s Denver terminal, a

management position. Her responsibilities included supervising the loading and

unloading of baggage onto airplanes. Only three of United’s thirty-six ramp team

leaders in Denver were women. Plaintiff informally complained to supervisors on

at least two occasions that she believed she was being treated less favorably

because she was a woman; however, she never filed formal complaints with

United alleging discrimination.

                                             -2-
      Plaintiff was demoted from her job and precluded from all management

positions with United after an August 13, 1997 incident. Plaintiff was called to

investigate two packages that had been loaded on a flight from Houston to

Colorado Springs, and were now stopped-over in Denver. One package, a bucket,

had opened during the flight, spilling its contents of shotgun shells. The

passenger who had checked the bucket had also checked a forty-two pound box.

The box had two warning labels on it, one stating it contained flammable

explosives, the other stating it contained black powder, but this second label was

crossed out with black marker. Plaintiff asked one of her employees, William

Peterson, to find out what the rules were concerning the handling of these two

packages. She also asked that the passenger be brought to the boarding gate in

the terminal so that she could speak with him about the packages.

      The passenger was waiting inside the gate when plaintiff arrived to

interview him. He confirmed the packages were his, and explained that he was a

member of the United States Olympic shooting team. The passenger told plaintiff

that the box was mislabeled and contained more shotgun shells, not flammable

explosives or black powder. United usually allowed passengers to check only

eleven pounds of ammunition. In December 1995, however, United had granted a

variance to the U.S. Olympic shooting team, effective until January 1998,

allowing team members to check up to two fifty-pound boxes of shotgun shells.


                                         -3-
This variance was on file with United at the time, applied to this passenger, and

was noted on his passenger name record (PNR) in United’s computer.      See

Appellant’s App., Vol. II, 226-28, 235. Plaintiff told the passenger the open

bucket had to be removed from the flight because it was improperly packaged.

Based on the passenger’s statements, however, plaintiff determined that the

second package could remain on board.

      In the meantime, Peterson had called United’s training department, which

advised him to hold both packages off the flight for further inspection. It appears

from the record that neither Peterson nor the training department were aware at

that time that the passenger was a member of the Olympic shooting team with a

variance allowing him to check up to 100 pounds of ammunition. When plaintiff

returned and told Peterson the box could remain on the flight, he protested.

Believing that the package violated United’s usual eleven-pound limit, Peterson

instructed the gate crew not to load either package. However, when plaintiff

returned to the gate, she removed the flammable explosive label from the box

based on the passenger’s representations, and ordered the crew to load it. When

Peterson heard about this, he called the pilot and told him that the package

exceeded United’s weight limit for ammunition.    

at 148. The pilot

instructed Peterson to remove the package. Peterson filed a report the next day

with United claiming that plaintiff had violated United’s eleven-pound weight


                                         -4-
limit. United concedes that the box was, in fact, properly packaged and did not

contain any hazardous materials.   

I, at 289.

      United’s Ramp Manager, Deborah Garner, investigated this incident.

Plaintiff testified that during the investigation she repeatedly asked what rule or

policy she was alleged to have violated, but United did not cite any. Plaintiff

testified that all of Garner’s questions focused on the eleven-pound weight

limitation for ammunition. A ramp team leader who was involved in the

investigation, Rich Feller, testified that the only reason he heard given to plaintiff

as to why her actions were wrong was the claimed violation of United’s eleven-

pound weight limitation. However, Garner was informed about United’s variance

for Olympic team members during the investigation.        

      At the conclusion of the investigation, Garner recommended to Rodney

Gonzales, a manager in United’s “People Services” department, that plaintiff be

removed from all safety-related management positions. Plaintiff then spoke with

Gonzales and said she hoped “that this [was] not an example of disparate

treatment.” 

Gonzales determined that plaintiff should be removed

from all management positions with United. In Garner’s letter demoting plaintiff

she stated only that plaintiff had exercised “poor judgment” and that her actions

were “inappropriate.”   

The letter did not explain how plaintiff had

exercised poor judgment, nor did it claim that plaintiff had violated any of


                                          -5-
United’s rules or policies. Plaintiff was placed on thirty-days’ paid administrative

leave and told that she would be terminated if she was unable to secure a

nonmanagement position with United within ninety days. Plaintiff applied for

two jobs with United during this period, but was not hired for either and,

therefore, was terminated from employment in December 1997.

       Plaintiff filed a discrimination claim with the Equal Employment

Opportunity Commission, which issued plaintiff a right-to-sue letter. Plaintiff

then filed a timely complaint in federal court alleging that United demoted and

terminated her based on gender discrimination and in retaliation for her

complaints of disparate treatment. Plaintiff’s complaint also asserts pendent state

law claims for discrimination, breach of contract, and promissory estoppel, but

plaintiff has not raised these claims on appeal; thus, they are deemed waived.    See

Headrick v. Rockwell Int’l Corp.    , 

, 1277-1278 (10th Cir. 1994).

The district court granted United’s motion for summary judgment, ruling that

plaintiff had failed to present evidence that her demotion was motivated, at least

in part, by her gender. Appellant’s App., Vol. IV at 684.




                                            -6-
                                       II. Analysis

                                  A. Standard of Review

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

applying the same legal standard as the court below.”       Munoz v. St. Mary-Corwin

Hosp ., 

, 1164 (10th Cir. 2000). 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). “In applying this standard, we examine the factual

record and draw reasonable inferences therefrom in a light most favorable to the

nonmoving party.”      Munoz , 221 F.3d at 1164.

                                  B. McDonnell Douglas

          Plaintiff relies on indirect evidence to support her claim of unlawful

discrimination. Thus, we analyze her claim using the three-step, burden-shifting

framework first articulated in    McDonnell Douglas Corp. v. Green     , 

(1973). Kendrick v. Penske Transp. Servs., Inc.       , 

, 1226 (10th Cir.

2000) .

          Under the McDonnell Douglas framework, the plaintiff must carry
          the initial burden under the statute of establishing a prima facie case
          of racial discrimination. Once the plaintiff has established a prima
          facie case, the burden then must shift to the employer to articulate
          some legitimate, nondiscriminatory reason for its employment action.


                                            -7-
       If the defendant makes this showing, the plaintiff must then show
       that the defendant’s justification is pretextual.

                              1. Prima Facie Case and
                      Legitimate, Nondiscriminatory Explanation

       To establish a prima facie case of discriminatory discipline or demotion, a

plaintiff must show that she was (1) a member of a protected group, (2) qualified

for the job, (3) despite her qualifications, she was demoted from the position, and

(4) the job was not eliminated after her demotion.    See Perry v. Woodward ,

, 1135 (10th Cir. 1999),     cert. denied , 

(2000).

United does not dispute that plaintiff established a prima facie case of

discrimination.

       The burden then shifted to United to articulate a legitimate,

nondiscriminatory reason for demoting plaintiff. United’s proffered justification

is that plaintiff “made a series of highly questionable decisions with potentially

very serious safety ramifications, causing Ms. Garner to lose confidence in her

ability to lead her workforce.” Appellant’s App. Vol. I, at 99. Plaintiff does not

dispute on appeal the district court’s conclusion that United’s explanation

satisfies its second-stage burden.   See EEOC v. Flasher Co. , 

, 1316

(10th Cir. 1992) (defendant need only articulate through some proof a facially




                                            -8-
nondiscriminatory reason; it need not litigate the merits of the reasoning at this

stage of the proceeding).

                                   2. Evidence of Pretext

       If a plaintiff “presents evidence that the defendant’s proffered reason for

the employment decision was pretextual-i.e. unworthy of belief, the plaintiff can

withstand a summary judgment motion and is entitled to go to trial.”        Randle v.

City of Aurora , 

, 451 (10th Cir.1995);      see also Reeves v. Sanderson

Plumbing Prods., Inc ., 

, 2109 (2000) (holding that “a prima facie

case and sufficient evidence to reject the employer’s explanation may permit a

finding of liability”). Plaintiff contends, correctly, that the district court applied

an incorrect legal standard at the third stage of the    McDonnell Douglas analysis

in evaluating her evidence of pretext. Citing an Eleventh Circuit articulation of

the standard, the district court ruled that even if plaintiff had presented evidence

that her actions on August 13, 1997, complied with United’s rules and

regulations, and that her demotion was based on erroneous facts, she failed to

establish pretext because she did not present “evidence indicating that her

demotion was motivated, at least in part, by her gender.” Appellant’s App.

Vol. IV, at 684. This is a “pretext-plus” test, which the Supreme Court recently

rejected in Reeves , 120 S. Ct. at 2109, and which this court previously rejected in

& 452 n.16 (citing        St. Mary’s Honor Ctr. v. Hicks , 509


                                              -9-
U.S. 502, 507 (1993)). Because a showing of pretext, in itself, is all that is

required to raise the inference of discriminatory intent, and no additional showing

of actual discriminatory animus is necessary, the district court incorrectly

evaluated plaintiff’s evidence.

      Plaintiff further contends she presented sufficient evidence of pretext to

withstand summary judgment. We agree. She presented evidence that United’s

proffered justification for demoting her is suspect because it gave only a vague

and subjective explanation for its action, and never specified what plaintiff did

wrong. She also showed that after she filed her complaint, United gave

explanations that were not the subject of the disciplinary investigation and were

not consistent with its standard policies and procedures. After reviewing the

admissible evidence plaintiff presented in response to United’s motion for

summary judgment, we conclude that plaintiff has shown that a jury could reject

United’s proffered explanation.   Hicks , 509 U.S. at 511.   1




1
       United contends that much of the evidence presented by plaintiff is
insufficient to withstand summary judgment because it is inadmissible hearsay;
generalized, unsupported opinions; speculation and conjecture; or states legal
conclusions. Some of plaintiff’s evidence, particularly her evidence that female
ramp team leaders were treated less favorably than their male counterparts, is
hearsay or general opinions unsupported by facts. In assessing plaintiff’s
evidence, we have considered only that evidence which we have concluded to be
admissible in a summary judgment proceeding.     See Gross v. Burggraf Constr.
Co. , 

, 1541 (10th Cir. 1995) (describing admissible evidence under
Rule 56).

                                         -10-
      A plaintiff can show pretext by revealing “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could rationally find them unworthy of credence.”     Morgan v. Hilti, Inc. , 

, 1323 (10th Cir. 1997) (quotations omitted).

      [T]he evidence which a plaintiff can present in an attempt to
      establish that a defendant’s stated reasons are pretextual may take a
      variety of forms. . . . A plaintiff may not be forced to pursue any
      particular means of demonstrating that a defendant’s stated reasons
      are pretextual. A plaintiff typically makes a showing of pretext in
      one of three ways: (1) with evidence that the defendant’s stated
      reason for the adverse employment action was false; (2) with
      evidence that the defendant acted contrary to a written company
      policy prescribing the action to be taken by the defendant under the
      circumstances; or (3) with evidence that the defendant acted contrary
      to an unwritten policy or contrary to company practice when making
      the adverse employment decision affecting the plaintiff.

Kendrick , 220 F.3d at 1230 (citations, quotation and alterations omitted).

      Plaintiff’s evidence indicates that the explanation proffered by United for

the discipline is subjective and vague. The only explanation given by United at

the time of the discipline was its statement that plaintiff exercised poor judgment

and acted inappropriately, and that Garner had lost confidence in her. There is

nothing in the record to indicate that United told plaintiff how it is that she

exercised poor judgment or acted inappropriately or why Garner lost confidence

in her. Rich Feller, the ramp team leader who participated in the investigation,

testified that plaintiff was told the basis of the demotion was that the ammunition

                                          -11-
weighed too much; that there was a “safety issue” with the shipment; and that

plaintiff had “broken the trust.” Appellant’s App., Vol III at 396-98. Months

later, when plaintiff applied for unemployment benefits after her termination, the

Colorado Department of Labor and Employment was unable to obtain from United

any explanation as to why plaintiff was discharged, and made a finding in

February 1998 that plaintiff was discharged “without being given a reason.”        

I at 224.

       The use of subjectivity in the decision-making process can create a “strong”

inference of bias if the plaintiff shows a significant disparity in the representation

of a particular group.   Bauer v. Bailar , 

, 1045 (10th Cir. 1981).

Here, only three of United’s thirty-six ramp team leaders in Denver were women,

clearly a significant disparity in representation. United does not contend that

plaintiff actually violated any of its rules. Appellee’s Br. at 32. Without its

subjective explanations that Garner “lost confidence” in plaintiff because she

exercised “poor judgment,” United cannot account for why it demoted and

ultimately terminated plaintiff.

       Plaintiff presented evidence indicating that United gave shifting

explanations for what plaintiff did wrong.      See Cole v. Ruidoso Mun. Sch. , 

, 1380-81 (10th Cir. 1994). Plaintiff testified that during the

investigation, all Garner implied that she had done wrong was allow a passenger


                                             -12-
to board more than eleven pounds of ammunition. Appellant’s App. Vol. II

at 214-15. Similarly, Rich Feller testified that the only reason he heard given to

plaintiff for the disciplinary action related to the claimed weight violation.       

II at 396. Garner was made aware of the Olympic team variance only days

after the incident. Yet, even during her deposition, Garner first stated it was a

safety violation for plaintiff to allow the forty-two pound box to remain on board

because of United’s eleven-pound weight limit for ammunition.            

I at

286-87. Under further questioning, however, Garner conceded that the box was

permitted on board under United’s Olympic team variance, and that there was no

violation of the weight limit.    

       Although the evidence indicates that United focused exclusively on the

package’s weight during its investigation, and never gave plaintiff a specific

reason for her demotion, Garner gave new, specific reasons for demoting plaintiff

after plaintiff filed her complaint. Garner testified during her deposition that

plaintiff failed to ask the passenger for identification or to get documentation of

United’s weight variance; failed to obtain “hazardous material” paperwork for the

box; was required to verify that the box did not contain hazardous materials by

some means other than simply asking the passenger--such as by opening it and

visually inspecting its contents or by asking the passenger to open it; and that she

lacked authority to remove the hazardous material sticker from the box.


                                             -13-
Appellant’s App. Vol. II at 287, 290-92. Yet, United’s motion for summary

judgment did not claim that any of these specific explanations offered by Garner

during her deposition were, in fact, why United demoted plaintiff. United cited

these reasons for the first time in its reply brief to the motion for summary

judgment. Even on appeal, United never claims these specific explanations

constitute its legitimate nondiscriminatory reason for demoting plaintiff.

Although United states in its recitation of the facts that plaintiff failed to obtain

verification of the passenger’s identification and did not open the box to verify its

contents before removing the hazardous material sticker, it does not claim that

these actions violated any of United’s rules or policies. A rational factfinder

could conclude from United’s subjective and shifting explanations that its

proffered justification for demoting plaintiff is false.

       Moreover, plaintiff presented additional evidence that Garner’s

explanations are false and that all of plaintiff’s actions with respect to loading the

second package were permitted under United’s rules and normal practices. With

respect to the claim that plaintiff was required to check the passenger’s

identification and verify that he was a member of the Olympic shooting team,

Feller testified that this issue never came up during the investigation.   

II

at 396. Further, United does not dispute that the passenger had already been

identified by other United employees when plaintiff arrived at the boarding gate


                                            -14-
to interview him. United does not dispute that the weight variance was on file

with United and listed on the passenger’s PNR on United’s computer, nor does it

claim plaintiff was required by any rule or policy to verify independently the

passenger’s identification.

       With respect to verifying the contents of the box and removing the

hazardous material label, Garner conceded during her deposition that there is no

United rule requiring plaintiff to have opened the box in order to verify its

contents. 

I at 290-91. Although Garner claimed that plaintiff was not

permitted to remove the sticker from the box herself, and that only the shipper can

remove the label, she was unable to point to any rule in support of this claim and

acknowledged that United’s rules state that items offered as baggage with a

hazardous material label are required to have the label removed if the contents are

not dangerous.   

United’s safety policies provide that a hazardous

material label should be removed if the contents are not dangerous.           

Vol. III at 448-49. Plaintiff testified that she was taught that it was a ramp team

leader’s responsibility to remove a hazardous material label if the contents were

not hazardous.   

I at 216-17.

       Rich Feller testified that it is normal practice for ramp team leaders to

ascertain the contents of a package by simply asking the passenger what is inside,

and that it is not normal practice to open a package to check its contents.        

III at 374-75. He testified that if a package has a hazardous materials label

on it, United’s rules do require a ramp team leader to ascertain what is in the

package, but permit any number of methods for doing so, including interviewing

the passenger and asking him or her what is inside the box, checking with the

terminal where the package was originally boarded, or opening the box.         

at 135-36, Vol. III at 375-76, 379-81. Walt Harris, an operating ramp manager

since 1984 and a ramp team leader since 1974 testified that, to his knowledge, a

team leader could verify the contents of a package marked with a hazardous

materials label by verbal discussion with the passenger and that there is no

requirement that the team leader open the box.       

II at 435, 438-39.

      Michael Pijanowski, a ramp safety instructor for six years, testified that he

was trained that a ramp team leader was supposed to remove a hazardous

materials label if the package was verified as not being dangerous, and that he

teaches ramp team leaders that they can remove the label if they discuss the

contents of the box with the customer.    

He testified that it is

regular, everyday practice to take the passenger’s word for what is in a package.

Pijanowski testified that he has never been instructed that a ramp

team leader must open such a package in order to verify its contents; indeed, that

he has been instructed not to open such a package.       

a ramp

team leader for fourteen years, testified that it was routine procedure for ramp


                                          -16-
team leaders to remove a sticker on a package if the passenger said the sticker did

not match the contents, and that he was not aware of any United requirement that

ramp team leaders open a package to verify its contents unless he or she was

suspicious of the passenger’s answers.     

Even Peterson, who filed

the report on the August 13 incident, testified it was his understanding that ramp

team leaders could remove labels if they did not match the contents.       

I at

349.

       Plaintiff also presented evidence that it was not United’s normal practice to

demote a ramp team leader for a safety violation. It is undisputed that no ramp

team leader has ever been demoted for a safety-related violation. Peterson

testified that in his experience, ramp team leaders improperly load radioactive or

hazardous material onto a plane approximately once every two weeks, and that

United’s only discipline is to talk to the ramp team leader about the problem.       

Feller testified that United’s demotion of plaintiff was the most severe

discipline he had ever seen during his employment for a violation of this nature,

compared to many similar incidents of which he was aware.         

II at

391-92. Feller testified that he was aware of numerous ramp team leaders who

had exercised poor judgment with respect to safety-related matters and that it was

United’s normal practice to simply talk to the ramp team leader about the

problem, or require them to take additional retraining.     

400-01.


                                           -17-
Pijanowski, the ramp safety instructor, testified that he filed a safety report and

brought to United’s attention, on “almost a daily basis for a long time,” the fact

that numerous male ramp team leaders were parking motorized vehicles directly

under the vents in the wings of aircraft during the refueling operation.    

at 463-64. He testified that is a very serious safety violation that could

result in an explosion, but that Garner told him she was ordering the ramp team

leaders be briefed about the problem, and that none of the ramp team leaders were

ever disciplined for this violation.   

       In sum, contrary to the standard applied by the district court in evaluating

plaintiff’ s evidence, a jury may infer discriminatory animus from “the simple

showing of pretext,” and it may find illegal discrimination upon a prima facie

case and pretext.   Randle , 69 F.3d at 451. Further, plaintiff produced sufficient

admissible evidence of “weaknesses, implausibilities, inconsistencies,

incoherencies, [and] contradictions” in United’s proffered reasons for demoting

her and excluding her from all management positions for a reasonable factfinder

to reject United’s explanation for demoting her, and hence infer that United did

not act for the asserted non-discriminatory reasons.      Morgan , 108 F.3d at 1323;

see also Reeves , 120 S. Ct. at 2109. Thus, the district court erred in granting

summary judgment in United’s favor on plaintiff’s Title VII claim of gender

discrimination.


                                            -18-
                                C. Retaliation Claims

      Plaintiff also claims that she was demoted from all management jobs in

retaliation for her complaints of gender discrimination. Title VII retaliation

claims are analyzed under the same   McDonnell Douglas burden-shifting analysis,

and, thus, to establish a prima facie case of retaliation, plaintiff must show that:

1) she was engaged in protected opposition to Title VII discrimination, 2) she was

subject to adverse employment action, and 3) there is a causal connection between

the protected opposition and the adverse employment action.      Kelley v. Goodyear

Tire & Rubber Co ., 

, 1179 (10th Cir. 2000).

      We conclude that plaintiff has failed to make out a prima facie case of

retaliation. As support for her retaliation claim, plaintiff points to her remark to

Gonzales during the ammunition package investigation that she hoped the

proposed disciplinary action was not an example of disparate treatment. Her

statement was immediately followed by Gonzales’ decision to demote plaintiff not

just from safety-related management positions, as recommend by Garner, but from

all management positions. Complaints to management, even informally, can

under some circumstances be sufficient to invoke the participation clause.

Jeffries v. Kansas , 

, 1231 & n. 9 (10th Cir. 1998). Plaintiff’s

isolated remark that she hoped this was not an example of disparate treatment

falls short, however, of being considered protected conduct. Her statement was


                                         -19-
simply a conclusory remark, without sufficient detail for Gonzales or United to

know what to investigate. Thus, the district court correctly granted summary

judgment in favor of United on plaintiff’s Title VII retaliation claim.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings consistent with this order and judgment.



                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                         -20-