The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for *

the Sixth Circuit, sitting by designation.

F I LED

United States Court of Appeals

Tenth Circuit

May 24, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHY SANTANA,

Plaintiff-Appellant,

v. No. 05-1111

CITY AND COUNTY OF DENVER,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE District of Colorado

(D.C. NO. 03-CV-00774)

David L. Worstell (Robert W. Kiensnowski, Jr., with him on the briefs) of

Worstell & Kiensnowski, Denver, Colorado, for Plaintiff-Appellant.

Robert A. Wolf (Mindi L. Wright, with him on the brief), Denver City Attorney’s

Office, Denver, Colorado, for Defendant-Appellee.

Before BRISCOE, McCONNELL, and SILER, Circuit Judges. *

SILER, Circuit Judge.

Plaintiff Kathy Santana appeals the district court’s grant of summary

judgment dismissing her gender discrimination claims against the City and
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County of Denver, Colorado (the “City”). Santana, a sergeant with the Denver

Sheriff’s Department, claims disparate treatment and disparate impact

discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-2, et seq., state law breach of contract for failure to promote, and error by

the district court in its discovery rulings. For the reasons stated below, we

REVERSE and REMAND with respect to Santana’s disparate impact claim

against the City. We AFFIRM summary judgment for the City on all other

claims. 

I. Facts and Procedural Background

Santana began working for the Denver Sheriff’s Department in 1977 as a

deputy sheriff. She was promoted to the rank of sergeant in 1992. In 2000, she

applied for a promotion to the position of captain. As part of the application

process, she completed the required skills assessment examination, scoring a 93.3

out of a possible 100. The Career Service Authority then certified her, along with

other top scoring candidates, to be interviewed by the Sheriff’s Department. The

interview consisted of three questions and candidates were provided as much time

as they needed to fully respond. 

Santana acknowledged that she did not perform well during her interview. 

She explained that she found it difficult “to go in front of three of [her]

supervisors” and felt it was “very hard to promote [herself]” in an interview

setting. According to the interviewers, Santana appeared to be uncomfortable,
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became emotional, and did not answer the questions completely. When asked by

the panelists if she was upset, Santana admitted that she was. 

At the conclusion of the interview process, the panelists each developed a

list of their top six or eight candidates in descending rank order. Santana was not

included as a top candidate on any interviewer’s list. The rankings were later

compiled into one list, and thereafter, according to the City, individuals were

promoted off the master list in descending rank order. Over a two-year period,

the Sheriff’s Department promoted a total of ten sergeants to the rank of captain,

including eight men and two women. The second female received her promotion

to captain only after the first female resigned.

Santana alleges that she and other women not selected for promotion were

more qualified and more experienced than the males ultimately chosen. She

argues that the City’s proffered non-discriminatory reason for not promoting her –

poor interview performance – was merely a pretext for gender discrimination. 

Furthermore, she contends that the promotion process was biased against women,

and, therefore, resulted in a disparate impact on female candidates. 

Applying the familiar burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973), the district court first found that

Santana did state a prima facie case of gender discrimination because she

demonstrated that she was qualified for the rank of captain. She had received

outstanding recommendations and past performance evaluations, she had higher
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scores on several objective promotion criteria than some of the promoted males,

and she had extensive experience as a supervisor. The court next determined that

the City had set forth legitimate, non-discriminatory reasons for hiring male

candidates instead of Santana, primarily that Santana performed poorly in her

interview. Finally, it concluded that Santana did not establish a genuine issue of

material fact as to whether the proffered legitimate reasons were a pretext for

gender discrimination.

As to Santana’s disparate impact claim, the district court first denied

summary judgment but later dismissed the claim for lack of standing. It reasoned

that under Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir. 1981),

Santana has standing to bring her disparate impact claim only if she was the

“victim of discrimination by the general practice which allegedly resulted in a

discriminatory impact on a protected group.” Because the court had dismissed

Santana’s disparate treatment claim, it concluded that she could not show that she

was a victim of a discriminatory promotion process that was adversely impacting

women in the Sheriff’s Department. Thus, the court held that Santana has not

suffered an injury-in-fact and does not have standing to advance the remaining

disparate impact claim.

The district court also granted summary judgment on Santana’s breach of

contract claim. It found that the Denver Charter provisions and the accompanying

Career Services Rules govern her employment with the City as an implied
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employment contract. These provisions require that all appointments or

promotions of employees be made solely upon merit and ability to perform the

work and through a process including a skills assessment examination and

interviews. They also prohibit discrimination on the basis of race, color, creed,

national origin, sex, or political affiliations. However, because the district court

concluded that the City did not participate in discriminatory treatment in failing

to promote Santana, the City did not breach the employment contract. The court

also noted that “[a] disparate impact claim does not result in a breach of contract

based on personnel policies and procedures where those procedures were followed

yet promotion disparities nonetheless occurred.” 

II. Discussion

We review the district court’s grant of summary judgment to the City de

novo, construing the facts in the light most favorable to Santana and resolving all

reasonable inferences in her favor. Kendrick v. Penske Transp. Servs., Inc., 220

F.3d 1220, 1225 (10th Cir. 2000). Summary judgment is appropriate only if there

is no genuine issue as to any material fact and the City is entitled to judgment as

a matter of law. FED. R. CIV. P. 56(c). 

A. Disparate Treatment

Neither party disputes the district court’s determination that Santana has

established a prima facie case of gender discrimination. Therefore, the only issue
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on appeal is whether Santana raises a genuine factual dispute concerning pretext. 

We conclude that she did not. 

In a Title VII disparate treatment claim, once a prima facie case has been

established, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for not promoting the plaintiff. Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981). After the defendant has offered its

non-discriminatory explanation, the prima facie case is rebutted and the burden of

proving pretext shifts back to the plaintiff. Id. at 255.

A plaintiff may establish pretext by showing “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 and hence infer that the

employer did not act for the asserted non-discriminatory reasons.” Morgan v.

Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen. Elec.

Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). However, “mere conjecture

that [an] employer’s explanation is a pretext for intentional discrimination is an

insufficient basis for denial of summary judgment.” Branson v. Price River Coal

Co., 853 F.2d 768, 772 (10th Cir. 1988). 

The City submits that Santana was not promoted because of her poor

interview performance. The panelists recalled that Santana had been very

emotional and seemed unable to endure the stress of the interview. Consequently,
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they questioned whether she would be able to withstand the stress associated with

a captain’s duties and responsibilities. 

Santana counters with the following two arguments as to why we should

reject the City’s justification and infer pretext: (1) the evidence shows that she

was significantly more qualified for promotion to captain than one of the men

who was promoted, and (2) the promotional process was very subjective. 

We will draw an inference of pretext where “the facts assure us that the

plaintiff is better qualified than the other candidates for the position.” Jones v.

Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2003) (citing Rea v. Martin Marietta

Corp., 29 F.3d 1450, 1457-58 (10th Cir. 1994)). We have cautioned that “pretext

cannot be shown simply by identifying minor differences between plaintiff’s

qualifications and those of successful applicants,” but only by demonstrating an

“overwhelming” merit disparity. Bullington v. United Air Lines, Inc., 186 F.3d

1301, 1319 (10th Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002). Moreover, we acknowledge that it is not

our role to “act as a super personnel department that second guesses employers’

business judgments.” Simms v. Oklahoma ex rel Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1329 (10th Cir. 1999). 

 Here, Santana compares herself to James Leahy, who was promoted to

captain in the Relief Factor Management System (“RFMS”) unit, and claims that

she was significantly more qualified for this position. She points to her higher
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skills assessment exam score and her greater experience, both as a sergeant and

specifically as a supervisor in the specialized RFMS office. However, Santana

does not argue that her interview performance was stronger than Leahy’s. 

Instead, she contrasts her exceptional annual reviews to Leahy’s allegedly

substandard work as a captain in the RFMS unit. 

Santana’s evidence fails to establish an “overwhelming” disparity between

her qualifications and those of Leahy. Both candidates received assessment

scores high enough to be placed in a pool of candidates qualified for a promotion

to captain. Once applicants reached the interview process, the panelists were free

to select any of the candidates in the group without regard to score. Therefore,

Santana’s higher score alone does not demonstrate pretext. See Jones v.

Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2003) (concluding that a promotional

candidate’s higher assessment-panel score was not dispositive of pretext where

the scores served as an initial separation of qualified from unqualified applicants).

Santana’s argument also overlooks our practice of assessing pretext by

examining “the facts as they appear to the person making the decision to [promote

the] plaintiff.” Kendrick, 220 F.3d at 1231. Santana concedes that the annual

reviews were not considered in the promotion process. Furthermore, evidence of

Leahy’s performance as a captain could not have been considered at the time

promotional decisions were made. We agree with the district court that “[m]any

of Ms. Santana’s proffered arguments are simply her subjective opinion that she
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was better qualified and the male applicants were less qualified.” See Simms, 165

F.3d at 1329-30 (an employee’s opinion about his or her qualifications does not

give rise to a material factual dispute). 

However, evidence of pretext may include the use of subjective criteria. 

Simms, 165 F.3d at 1328. Although “[s]ubjective considerations are not unlawful

per se[,] . . . [o]bviously subjective decision making provides an opportunity for

unlawful discrimination.” Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981). 

Santana argues that the promotion process at issue here provided just such an

outlet for discrimination. She claims the panelists applied no selection criteria

“against which candidates can be measured,” resulting in a “selection process

based upon much more subjective and amorphous standards, known and

fathomable only to the decision maker.” While there is certainly a level of

subjectivity in any interview-based selection process, Santana provides no

evidence that the interviewers used their discretion as a means for unlawful

discrimination. The panelists asked every applicant the same three questions and

then ranked the candidates based on their responses. Santana never discredits the

City’s explanation that she was not ranked highly, and therefore not selected,

because she did not answer the questions completely. The interviewers thought,

and Santana agreed, that she did not present herself as a strong candidate for

captain. In sum, Santana has failed to “raise a genuine doubt about Defendant’s

motivation,” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1200 (10th
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Cir. 2000), or produce evidence refuting or showing that the Sheriff’s

Department’s stated reasons for not promoting her were implausible, inconsistent,

or unworthy of credence. Thus, summary judgment was proper. 

B. Disparate Impact

We turn next to Santana’s assertion that the promotional interview process

had a disparate impact on female candidates. After reviewing the district court’s

standing analysis, we find that Santana’s claim was improperly dismissed. 

As the trial court correctly observed, constitutional standing requirements

apply with equal force to Title VII discrimination claims. Santana must

demonstrate her “personal stake in the outcome of the case” by showing that

“[she] had been denied an available position for which [she] was qualified.” Coe

v. Yellow Freight, 646 F.2d at 451. The record reveals that Santana has done just

that. In Coe, the plaintiff was unable to point to an available position for which

he was qualified. Id. Here, Santana undisputedly met the minimum qualifications

necessary to be considered for promotion to the open position of captain. She

asserts that she was the victim of discrimination because the interview selection

process resulted in a disparate impact on female candidates. She therefore meets

the standing requirements as set forth in Coe. 

The district court’s contrary conclusion implies that where a plaintiff’s

disparate treatment claim is dismissed, she lacks standing to proceed under a

disparate impact theory. Such a holding conflates the two distinct theories of
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discrimination. A claim of disparate impact, as opposed to disparate treatment,

does not require a showing of discriminatory motive or intent. Id. at 450;

Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 669-70 (7th Cir. 1996)

(concluding that a failure to prove discriminatory intent as to a disparate

treatment claim does not preclude success on a disparate impact claim). For

Santana to have standing to proceed with a disparate impact claim, she need not

demonstrate that the interviewers rated her poorly because of her gender. 

Therefore, the district court erred by dismissing Santana’s disparate impact claim

for lack of standing. 

C. State Law Breach of Contract

We agree with the district court’s resolution of Santana’s state law claim

for breach of contract. Santana argues that “[p]roof of intentional discrimination

is not an element to prove a breach of contract claim.” However, because she

failed to prove intentional discrimination, she cannot show that the City’s

promotion process was not based solely upon merit and the ability to perform the

work. Santana has not presented evidence that the City breached any of the

provisions of the Denver Charter and the accompanying Career Services Rules. 

Summary judgment was proper. 

D. Testimony of Dr. Lynn Sanders

After the close of discovery, Santana requested to re-open discovery in

order to take the deposition of Dr. Lynn Sanders, an official at the Denver County
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Jail who allegedly witnessed discriminatory conduct in 1996. According to

Santana, Dr. Sanders’ deposition testimony would show pretext and that all

promotions were a sham. 

We review discovery rulings for abuse of discretion. Smith v. United

States, 834 F.2d 166, 169 (10th Cir. 1987). Santana did not disclose Dr. Sanders’

purported testimony through Rule 26 disclosure or written responses to discovery

requests. The district court upheld the magistrate judge’s ruling, finding that

Santana did not exercise due diligence in regard to this witness. Dr. Sanders was

available to Santana before discovery closed, yet, without good cause, Santana

failed to disclose her as a witness until after the discovery deadline. The district

court acted within the bounds of discretion in enforcing the discovery deadline. 

E. Discovery

Santana’s final argument is that the magistrate judge’s September 2004

order excluding any witness and exhibits not listed in the pre-trial order was an

abuse of discretion. Defendants moved to strike 36 exhibits from the final

pretrial order that had never been disclosed by Santana, or were disclosed after

the close of discovery. The magistrate judge agreed and excluded any exhibits

that were not listed or designated in a timely fashion. The district court affirmed

that decision. Santana responds that the court could not effectively consider

exhibits that were never submitted to the court for review. She further asserts

that there was no harm in admitting the documents because the trial date had been
delayed. We agree with the district court. It is generally not an abuse of

discretion for a court to exclude evidence based upon failure to timely designate. 

See generally Worm v. American Cyanamid Co., 5 F.3d 744, 749 (4th Cir. 1993)

(finding no abuse of discretion and upholding the denial of motion for additional

discovery because there had been adequate time for discovery and the requesting

party had not made a timely request); Turnage v. Gen. Elec. Co., 953 F.2d 206,

208-09 (5th Cir. 1992) (finding no abuse of discretion and upholding the denial of

a discovery motion because requesting party had failed to make the request until

trial was imminent and the discovery deadline was impending).

III. Conclusion

For the reasons stated above, we REVERSE the district court’s grant of

summary judgment to the City on Santana’s claim of disparate impact, and we

REMAND for further proceedings on that claim. In all other respects, the district

court’s judgment is AFFIRMED. We GRANT Santana’s motion to supplement

the record.