Tabor v. Hilti, Inc.

• Decision Date: 15 January 2013
• Docket Number: No. 11–5131.,11–5131.
• Citation: 703 F.3d 1206
• Parties: Ronica R. TABOR; Dacia S. Gray, Plaintiffs–Appellants, v. HILTI, INC., a Domestic for Profit Business Corporation; Hilti of America, Inc., a Foreign for Profit Business Corporation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

703 F.3d 1206

Ronica R. TABOR; Dacia S. Gray, Plaintiffs–Appellants,
v.
HILTI, INC., a Domestic for Profit Business Corporation; Hilti of America, Inc., a Foreign for Profit Business Corporation, Defendants–Appellees.

No. 11–5131.

United States Court of Appeals,
Tenth Circuit.

Jan. 15, 2013.

[703 F.3d 1211]

Daniel E. Smolen (Donald E. Smolen, II, with him on the briefs), Smolen, Smolen & Roytman, PLLC, Tulsa, OK, appearing for Appellants.

J. Daniel Morgan, Newton, O'Connor, Turner & Ketchum, P.C., Tulsa, OK, appearing for Appellees.

Before LUCERO, O'BRIEN, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

Plaintiffs Ronica Tabor and Dacia Gray (collectively “Plaintiffs”) worked as inside sales representatives at Hilti, Inc., and Hilti of North America, Inc. (collectively “Hilti”). After being denied promotions to Account Manager (outside sales) positions, they each filed individual claims for gender discrimination under Title VII and moved to certify a class of all female inside sales representatives at Hilti who were denied similar promotions.

The district court refused to certify the class and granted summary judgment for Hilti on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part. We affirm the district court's grant of summary judgment on Ms. Tabor's individual claim for retaliation and Ms. Gray's individual claim for failure to promote. We also affirm the district court's refusal to certify the class. We reverse with respect to Ms. Tabor's individual claims for failure to promote and disparate impact, and we remand Ms. Gray's individual disparate impact claim because the district court did not address the claim in its analysis.

I. BACKGROUND A. Factual History¹

Hilti is a tool manufacturer. The company employs inside sales representatives,

[703 F.3d 1212]

who are responsible for providing customer assistance and sales support by phone. A common career track for inside sales employees in the Customer Service Department is promotion to Account Manager. Account Managers are responsible for outside sales or field sales, including site visits to customers within an assigned territory. This promotion sometimes involves transfer to a different city and requires some skills not required for inside sales, such as the ability to lift 60 pounds, engage with customers face-to-face, and offer hands-on demonstrations of the tools.

Hilti established a performance management and reporting process it called the “Global Develop and Coach Process” (“GDCP”).² GDCP included multiple components that tracked different aspects of an employee's readiness to promote. An important component was a priority rating, or “P” rating, indicating a direct supervisor's or manager's subjective assessment of an employee's promotion-readiness based upon his or her skills in areas such as “Functional Expertise,” “Understanding the Business,” “Getting Things Done,” “Working with Others,” and “Living Our Values.” Aplt. Appx. at 877–78. A P1 rating indicated the employee was ready for promotion within zero to 12 months, while a P5 rating indicated the employee was currently ineligible for promotion. Another important component was an “M” rating, which indicated the employee's reported mobility, i.e., willingness to relocate. Still another important GDCP component was employee's career goal, e.g., to become an Account Manager or a Team Leader in the Customer Service Department.

Hilti considered GDCP its official method for identifying employees who would be promoted internally. However, Hilti did not maintain careful records. Hilti's Applicant Flow Log data (“AFL data”) indicated that 282 individuals were promoted between 2005 and 2008, but fewer than 24% had been assigned a P rating at the time of promotion; fewer than 37% of promoted employees were assigned M ratings; fewer than 8% of individuals who were promoted to outside sales positions had actually identified outside sales as a future career goal; and more than 64% of employees were missing both P rating and M rating at the time of promotion.

Hilti managers also did not always follow the GDCP ratings in making promotion decisions. For example, of the promoted employees who had been assigned a P rating at the time of promotion, only 28% had a P1. Furthermore, 33 promoted employees were assigned a P rating of P5 at the time of promotion. A P5 rating indicated the employee was currently ineligible to promote because he or she did not meet the minimal qualifications, e.g., tenure in current position. Plaintiffs allege that a number of male inside sales representatives were placed in Account Manager positions through “tap on the shoulder” promotions, that is, extending promotion offers to male employees without posting an open position or allowing other interested employees to apply. Aplt. Br. at 8. Plaintiffs also allege that males who were ineligible for promotion under the GDCP system were allowed or even invited to apply for Account Manager positions, even as Plaintiffs and other female employees were told they could not apply for promotion until they earned a P1 rating.

One prerequisite for earning a P1 rating for the Account Manager position was completion of field training. This training

[703 F.3d 1213]

involved filling in for an Account Manager who was on vacation by assuming his or her responsibilities for one to two weeks. Ms. Gray participated in field training in Dallas, Texas, and she requested additional field training on more than one occasion. Ms. Tabor also requested field training. Hilti did not allow either plaintiff to participate in field training during the first half of 2008. The company explains that it was short-handed during this time and that no customer service representative was permitted to leave for field training. Plaintiffs claim that at least two males were allowed to attend field training during this time—Berkeley Smith and an unnamed male. Hilti says Mr. Smith was only allowed a short trip to Arkansas to decide whether to accept a promotion offer to relocate there.

1. Ronica Tabor's Experiences at Hilti

Ronica Tabor began work at Hilti in January 2006, selling and demonstrating tools to customers face-to-face at a Hilti center in Dallas, Texas. She transferred to the Customer Service Department in Tulsa, Oklahoma, in October 2006. She expressed interest in becoming an Account Manager, and her immediate supervisor assigned her a P1 rating.

Ms. Tabor applied for an Account Manager position located in Oklahoma City. This position focused primarily on the company's Interior Finish product line. Ms. Tabor first interviewed with Regional Manager David Perkins and was selected for a second interview. This second interview was on November 14, 2007, with Division Manager Glenn Teel and Mr. Perkins. During the interview, Mr. Teel and Mr. Perkins mentioned a second position available in Arkansas, and Ms. Tabor expressed interest in that position as well.

During the interview, Mr. Teel made a number of statements related to Ms. Tabor's gender. He told her that tools “are like guns for men” and using them is “almost like second nature,” Aplt. Appx. at 2816, and that it would take more work for her, as a woman, to learn the tools well enough to demonstrate them for customers or she would be “chewed up and spit out,” Aplt. Br. at 10. Mr. Teel also suggested that as a woman, Ms. Tabor might have some “advantages” in getting men to talk to her even if they were reluctant to talk to a salesman. Aplt. Appx. at 2816. Mr. Teel expressed concern about whether Ms. Tabor should travel as much as the job required because she was a wife and mother. He stated that he would personally not want his wife to hold a job that required travel, and he advised Ms. Tabor to ask her husband about whether she should pursue this type of work.

Ms. Tabor was not offered either of the two Account Manager positions. Berkeley Smith, a male, was offered the Arkansas position. A male employee, Clifford Kidwell, was eventually hired as an Account Manager in Oklahoma City. Around this same time frame, an external female applicant named Paulette Musso was hired as an Account Manager in Tulsa, Oklahoma.

The district court found a dispute of material fact as to whether the Oklahoma City position for which Ms. Tabor interviewed was offered to Mr. Kidwell or to Ms. Musso. Mr. Kidwell was offered an Account Manager position in Oklahoma City, and Ms. Musso was hired as an Account Manager in Tulsa. In its brief, Hilti simply asserted that Ms. Musso was hired for the Oklahoma City position and offered no explanation for the conflicting facts in the record or the district court's finding that this fact was disputed. At oral argument, Hilti explained that after they interviewed Ms. Tabor, Mr. Teel and Mr. Perkins decided to move the Oklahoma City position to Tulsa and offered that position

[703 F.3d 1214]

to Ms. Musso. Around the same time, in what it describes as an unrelated decision, Hilti created a brand new Oklahoma City Interior Finish position, which it offered to Mr. Kidwell.

The posting for the Oklahoma City position stated that the job would focus on the Interior Finish product line, that a bachelor's degree was strongly preferred, and that the position required ability to work with Spanish-speaking customers. Ms. Tabor had a bachelor's degree and was fluent in Spanish. The parties agree she exhibited the strongest knowledge of the Interior Finish products. She had experience selling Interior Finish products over the phone and face-to-face from her experience at the Hilti center in Dallas, Texas. Mr. Smith had a bachelor's degree, but Mr. Kidwell did not. Ms. Musso's educational qualifications are unknown.³

After the interview, Mr. Teel and Mr. Perkins documented their evaluation of Ms. Tabor. They gave her high ratings in several areas, including personal skills and qualities, working with others, and developing herself and others. They assigned her low...