Bullington v. United Air Lines, 98-1125

• Citation: 186 F.3d 1301
• Decision Date: 12 August 1999
• Docket Number: No. 98-1125,98-1125
• Parties: (10th Cir. 1999) MARION S. BULLINGTON, Plaintiff-Appellant, v. UNITED AIR LINES, INC., Defendant-Appellee. NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; AIR TRANSPORT ASSOCIATION OF AMERICA, Amici Curiae
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1301

186 F.3d 1301 (10th Cir. 1999)

MARION S. BULLINGTON, Plaintiff-Appellant, v. UNITED AIR LINES, INC., Defendant-Appellee.

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; AIR TRANSPORT ASSOCIATION OF AMERICA, Amici Curiae.

No. 98-1125

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 12, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 97-WY-240-AJ

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[Copyrighted Material Omitted] Barry D. Roseman of Roseman & Kazmierski, LLC, Denver, Colorado, for Plaintiff-Appellant.

Jerry N. Jones (Paul F. Lewis with him on the brief) of Moye, Giles, O'Keefe, Vermeire & Gorrell LLP, Denver, Colorado, for Defendant-Appellee.

Elizabeth Lamb Kearney and Brent Ruther of Law Offices of Elizabeth Lamb Kearney, Denver, Colorado; and Paula Brantner of National Employment Lawyers Association, San Francisco, California, filed a brief for amicus curiae National Employment Lawyers Association.

John J. Gallagher, Kenneth M. Willner and Neal D. Mollen of Paul, Hastings, Janofsky & Walker LLP, Washington, D.C.; Brian M. Mumaugh and Marcy G. Glenn of Holland & Hart LLP, Denver, Colorado; and David Berg of Air Transport Association of America, Washington, D.C., filed a brief for amicus curiae Air Transport Association of America.

Before TACHA, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

United Airlines, Inc. ("United") interviewed and rejected Ms. Bullington for the position of line pilot/flight officer on three separate occasions. Ms. Bullington brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 - 634, claiming United refused to hire her because of her gender, her age and in retaliation for complaining about alleged discrimination during the interview process. Ms. Bullington further claims United breached an implied contract or an otherwise enforceable promise by refusing to hire her. The district court granted United's motion for partial dismissal and United's subsequent motion for summary judgment, and Ms. Bullington appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part and reverse in part.

I. Background

Ms. Bullington, a female over the age of forty, currently works for United as a ground school academic instructor. Over a two-year period, Ms. Bullington sought but was denied a position as line pilot with United on three occasions. United's application and selection process for flight officers involves three phases. In the initial phase, United accepts applications from individuals meeting certain minimum qualifications including 350 hours of flight experience, commercial pilot certification, a high school diploma, and other physical and medical requirements. United then ranks eligible applicants according to aeronautical experience. Those applicants ranked at the top of the list advance to the second phase of the selection process. Because female applicants typically have less aeronautical experience than male applicants, United ranks male and female applicants separately. United then selects a proportionate number of males and females to proceed to the second phase. At the second phase, applicants must complete a simulator flight and a formal interview. Based on the applicant's performance, a review board then decides whether to reject the applicant or to extend a conditional offer. If United extends a conditional offer, the candidate moves on to the third phase, which includes a medical exam and background check. Ms. Bullington objects to the formal interview portion of the selection process.

Two United employees conduct the formal interview, an employment representative and a flight operations representative. These individuals assess the applicant in seven broad categories or "dimensions" including: industry motivation, decision making/problem solving, compliance and conformity, leadership, interpersonal skills, technical evaluation, and appearance/presentation. Each dimension is broken down into a set of attributes or "anchors" United deems desirable in a flight officer. Interviewers ask applicants questions from a suggested list and, based on the applicant's response, evaluate whether the applicant meets United's set standards for each attribute. ¹ Based on those attribute evaluations, the interviewers give the applicant a numerical score for each dimension, ranging from a low of "1" to a high of "5." The dimension scores are then averaged to arrive at the applicant's overall score. An applicant must have an overall score of "3" or better to be recommended for a flight officer position. However, if an applicant scores a "2" or lower on any one dimension, her overall score will also be a "2," and the interviewers will not recommend her for a flight officer position.

United interviewed Ms. Bullington for a flight officer position three times January 1993, March 1995 and May 1995. Each time, Ms. Bullington received an overall score of "2," thereby disqualifying her from further consideration. After her first unsuccessful interview in January 1993, Ms. Bullington spoke with Ms. Nancy Stuke, United's Manager of Flight Officer Employment, and expressed her concerns that one of her interviewers was biased against her. Ms. Bullington claims Ms. Stuke failed to adequately address her complaints. After unsuccessfully interviewing a second and third time, Ms. Bullington filed suit alleging: (1) United failed to hire her on all three occasions because of her sex and age, (2) United failed to hire her in 1995 in retaliation for her complaints to Ms. Stuke in 1993, and (3) United's failure to hire her breached an implied contract or otherwise enforceable promise for career advancement.

United moved to dismiss Ms. Bullington's claims to the extent they were based on Ms. Bullington's January 1993 rejection because those claims were barred by the statute of limitations. The district court agreed and granted United's motion. United then moved for summary judgment on Ms. Bullington's remaining claims. The district court granted that motion as well, concluding Ms. Bullington failed to establish a prima facie case of age or sex discrimination under either a disparate impact or disparate treatment theory, failed to establish a prima facie case of retaliation, and failed to present sufficient evidence of an enforceable contract or promise. On appeal, Ms. Bullington argues: (1) the district court erred in concluding her claims based on United's 1993 hiring decision were barred by the statute of limitations; (2) genuine issues of material fact exist regarding her claims of sex and age discrimination, retaliation, and breach of contract/promissory estoppel; and (3) the district court erred in using a deferential standard of review in connection with United's hiring decisions.

II. Statute of Limitations

In Colorado, ADEA and Title VII complainants must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days after the alleged unlawful discriminatory practice occurred.² 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2). This filing is a prerequisite to a civil suit under either statute. Aronson v. Gressly, 961 F.2d 907, 911 (10th Cir. 1992). In this case, United first rejected Ms. Bullington for the position of flight officer in January 1993. In March 1993, Ms. Bullington complained to Ms. Stuke that she suspected one of her interviewers discriminated against her. In order for a claim based on this conduct to be timely, Ms. Bullington was required to file an EEOC charge within 300 days after the March 1993 incident. However, Ms. Bullington waited almost three years, until February 6, 1996, to file her charge.

Ms. Bullington attempts to avoid this apparent untimeliness by invoking the continuing violation doctrine. Under that doctrine, a plaintiff may recover for incidents which occurred outside the statutory time limit if at least one instance of the alleged discriminatory practice occurred within the limitations period and the earlier acts are part of a "continuing pattern of discrimination." Martin v. Nannie and The Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993). To determine whether alleged incidents of discrimination constitute a continuing violation, a court considers three factors:

(i) subject matter whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.

Id. at 1415.

Applying these factors, the district court determined that the events arising in 1993 and the later events in 1995 did not constitute a continuing violation. Instead, the court concluded the 1993 non-hire was an isolated event and, moreover, Ms. Bullington had reason to believe she was a victim of discrimination as early as 1993. As such, the court found application of the continuing violation doctrine inappropriate and Ms. Bullington's claims, to the extent they relied on the 1993 conduct, untimely. The court therefore dismissed those claims for failure to state a claim upon which relief may be granted.³ We review de novo the district court's dismissal for failure to state a claim upon which relief can be granted. Mascheroni v. Board of Regents, 28 F.3d 1554, 1560 (10th Cir. 1994). We uphold a dismissal "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle [her] to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Yoder v. Honeywell, Inc., 104...