F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 15 2004
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    GIOVANNA DIRUSSO,

                Plaintiff,

          and                                          No. 03-1334
                                                   (D.C. No. 01-M-1501)
    SUZANNE NIVETTE,                                     (D. Colo.)

                Plaintiff-Appellant,

    v.

    ASPEN SCHOOL DISTRICT NO. 1,
    also known as The Aspen School
    District Board of Education, a public
    school district organized and operated
    pursuant to Colorado law,

                Defendant-Appellee.


                             ORDER AND JUDGMENT         *




Before ANDERSON and BALDOCK , Circuit Judges, and           MARTEN , ** District
Judge.




*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      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.

      Plaintiff-appellant Suzanne Nivette appeals from summary judgment

granted in favor of her former employer, defendant-appellee Aspen School

District, on her claims of age discrimination and retaliation in violation of the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, which she

brought after resigning from her teaching position. Our jurisdiction arises under

28 U.S.C. § 1291. We conclude that Nivette’s resignation does not moot the issue

of the District’s potential liability for discrimination in refusing to rehire Nivette

because it is undisputed that Nivette resigned only after notification that she

would not be rehired. Thus, her resignation has no impact on our analysis in this

case. But we conclude that the District was entitled to summary judgment on the

failure-to-rehire claim because Nivette could not produce evidence tending to

show that age was a determinative factor in her supervisor’s decision not to rehire

her or that the reasons given for not rehiring her were pretextual. As to Nivette’s

claim of retaliatory discrimination, which is based on a conversation during which

the District’s superintendent informed a prospective employer that Nivette had

filed a discrimination claim against the District, we hold that no reasonable jury


                                          -2-
could conclude that the conversation supports a retaliation claim. We therefore

affirm the district court’s grant of summary judgment on both claims.

                              I. Standard of review

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

applying the same legal standard used by the district court” under Fed. R. Civ. P.

56(c). Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs.,

, 1326 (10th Cir. 1999).

      In applying this standard, we view the evidence and draw any
      inferences in a light most favorable to the nonmoving party, but the
      party must identify sufficient evidence that would require submission
      of the case to a jury. It is not enough that the nonmovant’s evidence
      be merely colorable or anything short of significantly probative .

Jensen v. Redevelopment Agency, 

, 1555 (10th Cir. 1993) (citations

and quotations omitted).   “In considering whether a fact is material, we must look

to the applicable substantive law. To determine whether a dispute is genuine, we

must consider whether a reasonable jury could return a verdict for the nonmoving

party.” Revell v. Hoffman, 

, 1232 (10th Cir. 2002) (quotation and

citation omitted).

                           II. Undisputed relevant facts

      In May 1998 Lisa Halverson, the District’s director of special education

and high-school assistant principal in charge of hiring special education teachers,

advertised a half-time high-school “inclusion facilitator” position. See Aplt. App.


                                         -3-
Vol. IV at 673. Historically, there has been a shortage of special education

teachers in Colorado, and the District had a difficult time hiring qualified special

education teachers. 

Nivette was fifty years old at the time she

submitted her application, and she did not apply until July 13. Nivette’s

application indicated that, although she had “redeveloped” a special

education/Title I reading program in the 1997-1998 school year, it had been seven

years since she had taught special education, but she was still qualified to teach

special education. Aplt. App. Vol. II at 151.

      On July 15, Halverson initially recommended to the District that it hire

Ms. Cheri Hasenburg, who was in her mid-to-late thirties and who had

specifically expressed an interest in the half-time high-school position on her

application submitted in June . When Hasenburg later notified Halverson that she

could not accept the job because she could not find housing, Halverson

interviewed Nivette and offered her the job.

      Nivette signed a one-year, probationary contract for the “inclusion

facilitator” position. A key part of this position is effective communication with

regular classroom teachers and paraprofessionals who assist the special education

teacher in making curriculum modifications so that special education students can

participate in regular classroom instruction. Nivette had never taught in an

inclusion program before. She found it a challenge to serve five severe-needs


                                         -4-
students within her twenty-hour work schedule. She complained to Halverson and

to other teachers that she could not do her teaching job and work other jobs in

order to support herself in Aspen.

      Halverson observed and evaluated Nivette several times. A December 1998

evaluation indicated that Nivette needed to improve her performance in

understanding the district curriculum and state content standards, assisting in

special education assessments, and meeting with regular classroom teachers on a

consistent basis. Halverson testified that Nivette was not happy with having to

attend special training sessions. She also testified that the classroom teachers

complained that Nivette had not established a collegial working relationship with

them and was not available to, and did not consistently check in with, them, and

that Nivette did not talk to them as equal colleagues. In March 1999, Halverson

intervened in an on-going conflict Nivette was having with one of the special

education paraprofessionals who worked with her. Halverson was concerned that

Nivette had communicated to students and other teachers about the problem.

      At her second evaluation conference, held in April 1999, Halverson

informed Nivette that she would not recommend that Nivette’s teaching contract

be renewed. Halverson testified about her reasons for deciding not to renew

Nivette’s contract:

      [A]s an inclusion facilitator, [Nivette] needed to maintain good
      communication skills with the teachers with whom she was working

                                         -5-
      and [I] felt that she had not demonstrated that consistently; that she
      had some difficulties in communicating with the staff regarding
      students’ [individual educational programs] and in looking at making
      some curricular modifications for them, . . . [I] felt . . . that it was
      not a good fit for her as an inclusion facilitator, that her skills were
      not suited to that particular role.

Aplt. App. Vol. IV at 673. Halverson testified that teachers complained that

Nivette had performed curriculum modifications that were too simplistic because

they only reduced the quantity of work required, and that Nivette had not

identified curriculum objectives to students or teachers before the teachers began

their instruction on a particular unit. Nivette was perceived as not listening to

colleagues and not being receptive to new learning. Halverson saw little evidence

of Nivette facilitating or fostering social relationships between her students and

their peers. But Halverson had no criticism of Nivette’s skills as an instructor.

      A classroom teacher who worked with Nivette testified that, although she

personally had no complaints about Nivette’s performance, “the word on the

street was that [Nivette] was not doing her job,” and she knew that “people were

bringing concerns [about Nivette] directly to Lisa Halverson throughout the year.”

She testified that another special education teacher “ran screaming

‘fire’” to Halverson about Nivette’s job performance. 

teacher had

heard used to describe Nivette were “flaky, flighty, very involved personal

problems, inconsistent.” 

special education paraprofessional testified that Nivette attended only

one class in a series of monthly classes the District offered for paraprofessionals

and new special education staff to teach them how to effectively implement

inclusion concepts. She testified that, “it seemed as if [Nivette] misrepresented

herself on what she knew [about inclusion concepts],” and that Nivette said she

had not taught special education in quite a while. 

      Halverson did not offer to place Nivette on a remediation plan to improve

her performance even though District policies had provisions for doing so and at

least one inexperienced probationary teacher at the high school had been placed

on a remediation plan in the past. But Halverson gave Nivette the opportunity to

resign in lieu of recommending to the District that Nivette’s contract not be

renewed. Halverson told Nivette she would write a letter of recommendation for

her if she resigned.

      Nivette appealed in writing Halverson’s decision not to rehire her to Tom

Farrell, the superintendent of the District. He informed Nivette on May 10 that

Halverson was responsible for high-school special-education-teacher evaluations

and for hiring special education staff for the following school year, but invited

Nivette to set up a meeting with him. They met on May 14, and Farrell told

Nivette that he would talk with Halverson to see if her mind was made up about

not rehiring Nivette in the fall.


                                         -7-
      That same day, Nivette submitted a letter of resignation to Farrell. In her

deposition, she explained that she felt pressure to resign before Halverson’s

recommendation not to renew her contract was made to the District, as such a

recommendation could have negative consequences on her ability to obtain

another teaching position. The letter explained that Nivette needed full-time

work and that she felt that it took more than twenty hours per week to create an

efficient, manageable special education program for the students she served.

Thus, Halverson did not recommend nonrenewal of Nivette’s teaching contract to

the District, and the District accepted Nivette’s resignation in its May 17 meeting.

Halverson wrote a letter of recommendation for Nivette on May 27. Halverson

subsequently interviewed and hired a fifty-one-year-old special education teacher

to replace Nivette on July 27, 1999. Nivette filed age discrimination charges with

the EEOC in January 2000.

      In the spring of 2000, Nivette interviewed for, and was offered, a teaching

position in Durango after Farrell had spoken with the Durango administrator in

charge of hiring. Nivette subsequently accepted another, higher-paying job in

Summit County. Nivette filed suit against the District on August 2, 2001. The

district court granted summary judgment to the District on Nivette’s claims, and

this appeal followed.




                                         -8-
                                 II. Discrimination

      Under the ADEA, “[i]t shall be unlawful for an employer . . . to   discharge

any individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1).

      To prevail on an ADEA claim a plaintiff must establish that age was
      a determining factor in the employer’s challenged decision. The
      plaintiff need not prove that age was the     sole reason for the
      employer’s acts, but must show that age made the difference in the
      employer’s decision. Under our precedents, an ADEA plaintiff may
      proceed by either of two general methods to carry the burden of
      making her or his case. A party may attempt to meet his burden
      directly, by presenting direct or circumstantial evidence that age was
      a determining factor in his discharge. Or, more typically, a party
      may rely on the proof scheme for a      prima facie case established in
      McDonnell Douglas Corp. v. Green,         

, 802-04 (1973),
      and Texas Department of Community Affairs v. Burdine,          

, 252-56 (1981).

Greene v. Safeway Stores, Inc. , 

, 557-58 (10th Cir. 1996) (quotations

and citations omitted).

      The District moved for summary judgment on Nivette’s age discrimination

claim on the bases that (1) she could not establish that she suffered an adverse

employment action because she resigned; and (2) she was not replaced by a

younger teacher, and therefore could not create a prima facie case of age

discrimination. Aplt. App. Vol. II at 85. Nivette submitted a vigorous response,




                                          -9-
challenging the District’s legal theories and alleging multiple examples of what

she claims is direct evidence of both discriminatory motive and pretext.

       A. Constructive discharge.       The District argued that, because she

resigned, Nivette had to rely on the theory of constructive discharge and could not

meet the requirements of that theory because she could not establish that her

working environment was so intolerable that a reasonable person in her position

would have felt compelled to quit.     

In response, Nivette argued that

she was constructively discharged because she was given no choice but to resign

or be terminated.

       The District was incorrect in its premise that the only way Nivette could

show an adverse employment action under the ADEA was to prove that she was

constructively discharged. Section     623(a)(1) specifically prohibits an

employer from discharging “or otherwise discriminat[ing] against any individual

with respect to his . . . terms . . . of employment, because of such individual’s

age.” We consider whether a particular action was adverse on “a case-by-case

approach, examining the unique factors relevant to the situation at hand.”      Stinnett

v. Safeway, Inc., 

, 1217 (10th Cir. 2003) (internal quotation marks

omitted). Here, Nivette claimed that Halverson’s decision not to recommend

renewal of her contract was motivated by age discrimination. It is this decision

that forms the adverse action required, and Nivette did not have to prove that she


                                           -10-
was constructively discharged.        Cf. Cole v. Ruidoso Mun. Sch., 

(10th Cir. 1994) (holding, in Title VII case, that plaintiff demonstrated adverse

employment action in school district’s decision not to renew principal’s contract

for the following year, but offering principal a demotion).

       B. Resignation.     The district court properly rejected the constructive-

discharge theory presented by the District, noting that, because Nivette’s contract

was only for one year and she completed the whole contract, there had been no

termination and therefore no constructive discharge. The district court viewed the

contract nonrenewal as a “failure to hire” case. Aplt. App. Vol. VII at 1042.

       In McDonnell Douglas, the Supreme Court enumerated the elements
       required in order for a plaintiff to establish a prima facie case in the
       failure to hire context. These are: (i) plaintiff belongs to a protected
       class; (ii) plaintiff applied and was qualified for a job for which the
       employer was seeking applicants; (iii) despite being qualified, the
       plaintiff was rejected; and (iv) after plaintiff’s rejection, the position
       remained open and the employer continued to seek applicants from
       persons of [plaintiff’s] qualifications.

Kendrick v. Penske Transp. Servs., Inc.      , 

, 1226 (10th Cir. 2000)

(internal quotation marks and citations omitted). The district court dismissed the

discrimination charge without discussing its rationale for doing so and finding

only that “this . . . is not a compensable coerced resignation.” Aplt. App. Vol.

VII at 1053. The district court must have agreed with the District that, since she

resigned, Nivette could not satisfy      Kendrick’s second requirement–that she

applied for the job. But

                                             -11-
       [e]mployment discrimination law does not require that a plaintiff
       formally apply for the job in question. Rather, the law requires
       either that the employer be on specific notice that the plaintiff seeks
       employment or, where informal hiring procedures are used, that the
       plaintiff be in the group of people who might reasonably be
       interested in the particular job.

Whalen v. Unit Rig, Inc. 

, 1251-52 (10th Cir. 1992). Here, it is

undisputed that Halverson knew that Nivette desired to keep her job, and that

Nivette resigned only because she knew that Halverson was not going to rehire

her. We therefore conclude that the district court improperly granted summary

judgment on Nivette’s age discrimination claim on the ground that there was no

compensable coerced resignation. Thus, we move to the question whether Nivette

presented sufficient evidence that age discrimination was a determinative factor

in the decision not to renew her teaching contract.

       C. Discriminatory motive/pretext.            Nivette was not required to show that

the District hired an individual who was not in her protected class in order to

establish a prima facie case of age discrimination.       See 

. But because Halverson subsequently hired an individual who was the same

age as Nivette, once the District came forward with a non-discriminatory reason

for not rehiring Nivette, Nivette could not rest on her prima facie showing alone

to get the age-discrimination question to a jury.      See Munoz v. St. Mary-Corwin

Hosp. , 

, 1166 (10th Cir. 2000) (holding that ADEA plaintiff had

failed to make a prima facie case of age discrimination when he was replaced by

                                            -12-
someone only two years younger and within the protected age group and there was

no other evidence of age discriminatory motive). “The critical prima facie inquiry

in all cases is whether the plaintiff has demonstrated that the adverse employment

action occurred under circumstances which give rise to an inference of unlawful

discrimination.”    Kendrick , 220 F.3d at 1227; see O'Connor v. Consol. Coin

Caterers Corp., 

, 311-12 (1996) (“As the very name ‘prima facie

case’ suggests, there must be at least a logical connection between each element

of the prima facie case and the illegal discrimination for which it establishes a

legally mandatory, rebuttable presumption.”)     (citation and quotations omitted).

       1. Pretext. In order to withstand summary judgment, Nivette must come

forward with “evidence that [Halverson’s] proffered reason for the employment

decision was pretextual–i.e. unworthy of belief.” Kendrick , 220 F.3d at 1230.

       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.

   Critically, Nivette did not present any evidence to rebut

Halverson’s evaluation of Nivette’s skills as they related to being a good

“inclusion facilitator” or to cast doubt upon Halverson’s concerns with Nivette’s

problems in communicating and working with other staff.        Cf. Munoz , 221 F.3d at

                                          -13-
1167-68 (affirming grant of summary judgment because plaintiff failed to rebut

reasons for plaintiff’s termination). The record contains nothing to indicate that

Halverson’s concerns were not honest or that they were not based on her

evaluations and information given to her by Nivette’s peers and co-workers. But

Nivette points to two facts as evidence of pretext:

       (a) Nivette and her co-plaintiff, Giovanna DiRusso, were the only teachers

Halverson ever recommended for non-renewal, and they were both in the

protected age group. We decline to compare DiRusso’s situation with that of

Nivette’s because they are too different.   1
                                                It is uncontroverted that Griff Smith,

DiRusso’s principal, recommended with Halverson that DiRusso’s contract not be

renewed. Aplt. App. at 109, 190, 196. The fact that Nivette is the only teacher

Halverson ever solely recommended for non-renewal, by itself, will not give rise

to an inference of age discrimination in light of the valid, non-discriminatory

reasons Halverson gave for not renewing Nivette’s contract and in light of the

fact that she hired another person Nivette’s age to fill the position. Further,

Nivette does not present any evidence regarding how many older teachers


1
      For example, DiRusso did not have a Colorado teaching certificate and
never obtained one; Griff Smith (her principal) made the final decision not to
renew her contract; Smith gave different reasons for not renewing the contract,
and DiRusso challenged Smith’s recommendation. The District’s motion for
summary judgment against DiRusso was denied, but the district court certified
Nivette’s judgment for immediate appeal under Fed. R. Civ. P. 54(b). Aplt. App.
Vol. VII at 1083.

                                            -14-
Halverson recommended for renewal, and without a number to compare to, the

recommendation for non-renewal of one older person in ten years is virtually

meaningless.

       (b) Halverson did not give Nivette a remediation plan, as required by

District policy, but the high-school principal gave a young, probationary teacher

that opportunity two years before. First, Nivette’s citation to the record does not

support her claim that District policy requires giving a probationary teacher a

remediation plan in all circumstances. Nivette did not submit the policy in her

summary judgment materials, but, rather, relied on a Board member’s testimony

that he “assumed” that the policy applied to probationary teachers. Aplt. App.

Vol. IV at 659. Second, the fact that a different administrator offered a teacher

with no previous teaching experience an opportunity to go to summer school and

to quit coaching in order to improve his teaching skills has no bearing on the very

different situation Halverson faced.   See Rivera , 365 F.3d at 923 (“Similarly

situated employees are those who deal with the same supervisor and are subject to

the same standards governing performance evaluation and discipline.”) (quotation

omitted). No comparison between the two situations is reasonable, given that

Halverson believed Nivette’s skills were not suited to the job, Nivette had failed

to attend seminars to improve her skills, Nivette was an experienced teacher, and

Nivette had personality conflicts and difficulty in communicating with other staff.


                                         -15-
       2. Discriminatory motive.

       a. Farrell’s alleged discriminatory policy.       In response to the district

court’s inquiry regarding what evidence could support a finding that Halverson

was motivated by age, Nivette first stated: (1) “Farrell had the ability to

discipline Halverson without any input from the board,” (2) “Halverson went to

Farrell and discussed Nivette’s situation about whether or not to recommend

renewal . . . before she made the decision,” and, therefore, (3) “all the ageist

policies attributed to Farrell are in this decision-making process. It’s tainted by

those two facts.” Aplt. App. Vol. VII at 1043-44. She also claimed that (4)

ageism was a district-wide policy that Halverson simply enforced.

       It is undisputed that Halverson made her employment decision

independently, before she informed Farrell of her decision, and that she was the

decision-maker.    See Aplt. App. Vol. IV at 673;    

at 1035, 1039. Even

though we view the facts in the light most favorable to Nivette, “a challenge of

pretext requires us to look at the facts as they appear to the person making the

[adverse employment] decision.”      

. Because

Halverson made the decision not to rehire Nivette, we must view the facts from

her perspective.   See 

inquiry is not whether [Halverson’s]

proffered reasons were wise, fair or correct, but whether [she] honestly believed


                                          -16-
those reasons and acted in good faith upon those beliefs.”          Rivera , 365 F.3d at

924-25 (quotation omitted) . Thus, assuming, for the purposes of our analysis, that

Farrell had a policy of recruiting teachers right out of college,      2
                                                                           we reject Nivette’s

argument in points 

, that it should be attributed to Halverson.       Cf.

Kendrick , 220 F.3d at 1231.

       b. The District’s alleged discriminatory policy.             We also reject

Nivette’s claim that she presented sufficient evidence of a District policy of

hiring only young teachers that Halverson simply enforced. Nivette argues that

ageism is demonstrated by the facts that the District (1) sought to hire former

Aspen students and secured outside funding to create a position for a former

student under forty who had become a teacher; (2) sought to develop relationships

with college placement officers as part of its recruiting strategies; (3) looked for

teachers trained in the “best practices methodology;” (4) wanted to hire teachers

“who were quality educators and were knowledgeable of . . . recent practice;”



2
       The fact that an individual has just obtained a teaching certificate and is
“new” to the profession does not necessarily mean that the individual is also
“young.” Further, the newspaper article Nivette submitted as “proof” of Farrell’s
ageist policy shows that the author used the word “young” as a substitute for
“new” or “inexperienced,” noting that the school district wanted to hire “young
teachers–fresh out of college or with a couple years of experience,” that by
“recruiting young teachers, the district estimates . . . salary savings by paying less
to entry-level teachers than it would to veterans” and that “veteran teachers earn
$64,000 a year whereas entry-level teachers earn $25,000 a year.” Aplt. App.
Vol. IV at 625.

                                             -17-
(5) had received a report that “[s]ome veteran teachers are feeling undervalued”

because of the salary schedule, Aplt. App. Vol. IV at 924-25; (6) had discussed

the concept that “the closer people are in age to the technological revolution, then

the more technologically savvy they tended to be;” and (7) had “discussed the

advantages and disadvantages of hiring younger teachers” and the idea that “older

teachers . . . might be burned out and not as enthusiastic” at one meeting. Aplt.

Br. at 19, 20. But none of facts (1)-(5) are necessarily connected to age, and

“there is no disparate treatment under the ADEA when the factor motivating the

employer is some feature other than the employee’s age.” Hazen Paper Co. v.

Biggins, 

, 609 (1993).

      Further, as to fact (1), it is not ageist to desire former residents because

they are more likely to remain in the area. Regarding fact (2), the most likely

place to find unemployed, qualified teachers, no matter their age, is through

college placement officers, and it is not ageist to recruit at a college. Nor is it

ageist as alleged in facts (3) and (4), to desire teachers who are trained in the best

practices. Indeed, the District showed that it makes sure that its teachers are all

offered “best practices” instruction on a regular basis. Aplt. App. Vol. IV at 681.

      As to fact (5), it is further undisputed that, when Farrell received the report

stating that some veteran teachers perceived that they were valued less than new

teachers, he noted that the teachers had proposed both the salary schedules, which


                                          -18-
gave new teachers a proportionally-higher starting salary than veteran teachers,

and a three-year early retirement plan. He also noted that, “there is little

advantage to the District to early retire good teachers because the District can’t

replace them.” 

        Fact (6), that the Board discussed a stereotypical concept, does not indicate

that it actually used that concept to reject older applicants, and a teacher testified

that the District has done “a really good job” of providing in-service technology

training to all the teachers.   

And as to “fact” (7), the record reflects

that the Board member was testifying in response to Nivette’s counsel’s question

regarding whether he thought      Farrell believed there were advantages to hiring

younger teachers as opposed to older teachers.      

The record shows that

the Board member interpreted the words “younger” vs. “older,” in discussing

teaching applicants, as “new” vs. “experienced” – not in terms of actual age.       See

Paper Co. , 507 U.S. at 611 (noting that “an employee’s age is

analytically distinct from his years of service”). Thus, the record shows that the

Board member did not testify that Farrell or the District thought “older” teachers

might be burned out; he stated, “with experienced teachers[,] the potential

negatives were that they might be burned out, they might not be as enthusiastic as

they were originally.”     

of Nivette’s evidence is sufficient to raise

a genuine issue whether the District had a policy of hiring only young teachers or


                                            -19-
of not hiring older teachers, or of using age as a determinative factor in the hiring

decisions.

       Further, a teacher who served on several of the District’s hiring committees

testified that she did not believe that the District sought out young teachers or

ever used age as a deciding factor in determining who to hire. She testified that,

although administrators “may like young new teachers, that would never be the

deciding factor. It would be who’s best for the job.”   

       c. Evidence of Halverson’s discriminatory motive.         Nivette submitted

the following “facts” as direct or circumstantial evidence of Halverson’s alleged

discriminatory motive, and we address each seriatim:

       (1) Halverson testified that “she believes that one of the advantages of

hiring younger teachers is that they come out of training having ‘new practices,

best practices.’” Aplt. Br. at 19; Aplt. App. Vol. VII at 1045. This statement

mischaracterizes the record. Halverson answered “no” to the question, “was there

a sense at the school district that the newer teachers coming out of school now

were better because they had better training or better practices.” Aplt. App.

Vol. IV at 678.

       (2) Halverson stated “that younger teachers can relate to some of the

adolescent issues . . . and that somebody who’s younger may have more similar

experiences to adolescents.” Aplt. Br. at 19; Aplt. App. Vol. IV at 1045. This


                                           -20-
statement also mischaracterizes the record. In response to the question, “[d]o you

think . . . you can generalize, although there may be exceptions, where the

younger you are and the more recently you went through being an adolescent, the

easier it is for you to relate to that?”, Halverson answered, “I don’t think you can

generalize that, no.” Aplt. App. Vol. IV at 681. And even if Halverson believed

that younger teachers may relate more easily to adolescent issues because they

have been more recently confronted with those issues themselves, that would not

be indicative that Halverson employed age as a determinative factor in Nivette’s

non-renewal.

      (3) Hasenburg, who was younger than Nivette, was offered the high-school

position before it was offered to Nivette. Without more, no reasonable jury could

infer from this fact that age played the determinative role in Halverson’s decision

not to renew Nivette’s contract a year later, especially in light of the undisputed

facts that Nivette submitted her application only two days before Halverson made

her hiring recommendation to the District, Hasenburg was the only candidate who

specifically expressed an interest in the position on her application, Hasenburg

submitted her application more than a month before Nivette did, and Nivette had

no experience in the inclusion facilitation position offered.

      (4) Nivette, DiRusso, and Carolyn Hogue, Nivette’s replacement, were not

hired until July of each year, but the majority of the regular teachers were hired


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earlier in the summer of both years, supporting an inference that Halverson hired

older teachers only after she could not find anyone younger. It is undisputed that

Nivette and DiRusso were hired late in the summer because the teachers they

replaced either reneged on accepting the job or resigned unexpectedly late in the

year. And it is undisputed that young special education teachers, such as

DiRusso’s replacement, were also hired late in July. It is also undisputed that

Hogue, who was fifty-one, was the only person Halverson interviewed for the job

Nivette had held, and that Halverson did not even advertise the position once

Hogue indicated her interest. And it is undisputed that there is a shortage of

qualified special education teachers in Colorado. No inference of age

discrimination could be reasonably gleaned from these undisputed facts.

         We conclude, as a matter of law, that Nivette’s proffered evidence does not

reasonably give rise to an inference that the reasons Halverson gave for not

renewing Nivette’s contract were pretextual or that Halverson utilized age as a

determinative factor in her employment decision. We therefore conclude that

summary judgment was properly granted to the District on the age discrimination

claim.

                                   III. Retaliation

         The ADEA’s anti-retaliation provision forbids an employer from

discriminating against an employee because she “has opposed any practice made


                                          -22-
unlawful” by the statute, or because she “has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or litigation” under the

statute. 29 U.S.C. § 623(d). The anti-retaliation provisions of Title VII “are

materially identical” to the ADEA’s provisions. Twisdale v. Snow, 

,

952 (7th Cir.), cert. denied, 

(2003). To establish a prima facie

case of retaliation under the ADEA, Nivette must show (1) she engaged in

protected activity; (2) she suffered adverse action at the District’s hands either

after, or contemporaneously with, her protected activity; and (3) a causal

connection exists between her protected activity and the adverse action. See

Corneveaux v. CUNA Mut. Ins. Group, 

, 1507 (10th Cir. 1996).

Adverse employment action is something that “disadvantage[s]” the employee.

Burrus v. United Tel. Co. of Kan., Inc.,     

, 343 (10th Cir. 1982)

(stating that Title VII retaliation plaintiff must show “she was disadvantaged by

an action of her employer”). “The causal-connection element of a prima facie

retaliation claim requires the employee to show that the employer’s motive for

taking adverse action was its desire to retaliate for the protected activity.”    Wells

v. Colo. Dep’t of Transp. , 

, 1218 (10th Cir. 2003).

       Nivette alleged retaliation based on a single conversation between the

principal of Durango High School, Gene Giddings, and Farrell, after Giddings

contacted Farrell for a reference. Farrell initially told Giddings that he could not


                                             -23-
provide a reference because he had never observed Nivette’s teaching skills, and

that he should call Halverson. Giddings stated he had tried, but Halverson was

not available. Giddings testified that Farrell “did not make any negative

statements about Ms. Nivette,” and “at no time stated or suggested that [Giddings]

should not hire [her].” Aplt. App. Vol. II at 265. When Giddings asked whether

Farrell could foresee any problems with hiring Nivette, Farrell answered, “no.”

IV at 619. When pressed to answer whether Nivette resigned on her own

or was under pressure, Farrell responded that he thought there was some pressure.

Giddings then asked whether Nivette’s resignation was amicable, and Farrell

responded that he “was hearing [Nivette] had a lawsuit against the District.”   

that he was going to recommend Nivette for hire anyway, and

Farrell responded that he would, too, if he were in Giddings’ position.

       Giddings called Nivette and asked if she had a lawsuit against the Aspen

Schools. Nivette responded, “not right now,” but told him that she had filed an

EEOC complaint against the District.      

Giddings offered, and Nivette

initially accepted, the Durango teaching position, but she later reneged to accept a

higher-paying job.

       At the hearing, the district court and Nivette’s counsel had the following

colloquy:

       Court: What disadvantage did Ms. Nivette suffer from Farrell’s
             conversation?

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       Counsel: She had the humiliation of being questioned by a potential
             employer about legal action she had against a very similar
             employer . . . and she had the uncomfortable feeling that, even
             if she got the job offer, which probably was going to go in the
             tank, if she got –
       Court: Do you think uncomfortable feelings are compensable under
             this law?
       Counsel: I think under Jeffries [v. Kansas, 

(10th Cir.
             1998)], and under Berry [v. Stevinson Chevrolet, 

             (10th Cir. 1996)]. Berry had no employer calling to ask
             questions, a theoretical employer out there. Berry said damage
             to reputation and humiliation resulting from that create the
             adverse employment action. She had humiliation. She had,
             like the plaintiff in Berry, she had damage to her reputation by
             somebody she wanted to have a long-term employment
             relationship with. . . . I think we forget that the word
             “lawsuit” carries a very derogatory [connotation] for average
             Americans. And I believe the jury would have no problem
             seeing that as a retaliatory act.

       Aplt. App. Vol. VII at 1052-53. The district court concluded that summary

judgment was appropriate for Nivette’s retaliation claim because “there just isn’t

any injury. Now, I don’t dispute Ms. Nivette’s feelings about it, but there’s a

difference between harm that we experience and harm that is a basis for a

lawsuit.” 

       On appeal, Nivette argues that she does not have to show actual injury in

order to prevail on a retaliation claim; she only has to show retaliatory intent. In

her brief on appeal, Nivette also cites   Rutherford v. American Bank of Commerce      ,

(10th Cir. 1977). In that case, we affirmed a district court’s

finding that the following facts established an intent to retaliate: (1) the former


                                           -25-
employer gave a “highly complimentary letter of recommendation” before the

plaintiff filed a discrimination claim, but (2) after she filed her complaint, the

employer “volunteered” to a prospective employer that she had filed the charge

and (3) informed the plaintiff that an updated reference letter would “set forth the

circumstances surrounding her termination . . . and would mention the fact that

she had filed a discrimination charge,” and (4) the prospective employer decided

not to hire the plaintiff after its conversation with the former 

. The facts in Nivette’s case are clearly distinguishable from those in

Rutherford .

      Nivette also argues that, because she had not filed a lawsuit against the

District at the time Farrell responded to Giddings that he “was hearing [Nivette]

had a lawsuit against the District,” Aplt. App. Vol. IV at 619, Farrell’s statement

was false, and was an adverse action as a matter of law because it had a potential

effect of interfering with prospective employment.    See Berry , 74 F.3d at 986-87

(adverse employment action under Title VII encompasses acts that carry a

“significant risk of humiliation, damage to reputation, and a concomitant harm to

future employment prospects”).

      We first note that the facts in this case are easily distinguishable from those

in Berry. In Berry , the employer’s agent falsely accused a former employee of

committing felonies, which is cause for humiliation and which would have an


                                          -26-
obvious impact on future employment.      See 

It is not similarly

humiliating for a prospective employer to become aware of the truth that an

applicant has filed EEOC charges against a former employer. But we recently

held that a Title VII plaintiff whose former employer gave negative references to

a prospective employer in retaliation for the employee’s prior discrimination

complaints did not have to prove that she would have received the prospective job

but for those negative references to establish an adverse employment action.

Hillig v. Rumsfeld , 

, 1029 (10th Cir. 2004).    Instead, she must show

only that the negative action would have “a likely effect on future job

opportunities.” 

excluded from the definition of “adverse

employment actions,” however, “those acts that merely have a de minimus impact

upon an employee’s future job opportunities.” 

Thus, in Hillig we

found sufficient evidence of more than de minimus harm to the employee because

“the negative references were very unfavorable,” and, therefore, carried a

significant risk of harm to future employment prospects. 

      Assuming, without deciding, that the Title VII standards for determining

what is an adverse employment action should be used in ADEA cases and that

informing future employers that discrimination charges have been filed may

provide an inference of retaliatory intent, we conclude that no reasonable jury

could hold that the single conversation Farrell had with Giddings carried a


                                          -27-
significant risk of harm to her future employment. It is undisputed that Halverson

gave Nivette an excellent job reference and Farrell did not detract from that

reference. While Farrell informed Giddings that Nivette may have a legal action

against the District, he made no negative statements about her, did not suggest

that Giddings should not hire Nivette, and in fact told Giddings that he would

offer Nivette a teaching job if he were in Giddings’ position, and Giddings

followed that recommendation. Thus, under these undisputed facts, we conclude

that summary judgment was properly granted to the District on Nivette’s

retaliation claim.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Stephen H. Anderson
                                                    Circuit Judge




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