May 22, 2019

Tenth Circuit: Gender Discrimination Case Will Go Forward on Plaintiff’s Failure to Promote and Disparate Impact Discrimination Claims

The Tenth Circuit published its opinion in Tabor v. Hilti, Inc. on Monday, January 15, 2013.

Plaintiffs Ronica Tabor and Dacia Gray (“Plaintiffs”) worked as inside sales representatives at Hilti, Inc., and Hilti of North America, Inc. (“Hilti”). After being denied promotions to Account Manager, they 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. Ms. Tabor appealed her individual claims for failure to promote, retaliation, and disparate impact. Ms. Gray appeals her individual claims for failure to promote and disparate impact. Both Plaintiffs appeal denial of class certification.

The Tenth Circuit reversed with respect to  Ms. Tabor’s individual claim for failure to promote, concluding that Ms. Tabor’s claim survived summary judgment under either the direct evidence or McDonnell Douglas standard.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Tabor’s individual claim for retaliation agreeing with the district court that she had met the first part of her prima facie burden to show that she engaged in protected opposition to discrimination, but failed to show that Hilti took adverse action against her because of this opposition.

The Court reversed the district court’s rejection of Ms. Tabor’s individual claim for disparate impact discrimination. Applying Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006), the Tenth Circuit held that Ms. Tabor established a prima facie case of disparate impact discrimination.

Regarding Ms. Gray’s individual claim for failure to promote/deterrence, the Tenth Circuit affirmed the district court’s dismissal of this claim because she did not show she was qualified for a promotion.

The Tenth Circuit also affirmed the district court’s dismissal of Ms. Gray’s disparate impact discrimination claim, because Hilti offered undisputed evidence that multiple managers warned Ms. Gray about performance and disciplinary problems.

Finally, the Tenth Circuit affirmed the district court’s refusal to certify the class. The requirements for class certification are outlined in Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs had not shown “there are questions of law or fact common to the class” as required by Rule 23(a)(2).

AFFIRMED in part and REVERSED in part.

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