*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 31 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAROLYN HANSEN,

Plaintiff - Appellant,

v.

ALTA SKI LIFTS COMPANY and

ALAN ENGEN,

Defendant - Appellee.

No. 96-4209

(D. Ct. No. 95-CV-528-J)

(D. Utah)

ORDER AND JUDGMENT*

Before TACHA, KELLY, and LUCERO, Circuit Judges.

Plaintiff Carolyn Hansen sued defendants Alta Ski Lifts Company (“Alta”)

and Alan Engen under Title VII, 42 U.S.C. § 2000e-3(a), alleging that the

defendants discriminated against her in retaliation for her filing a Title VII sexual

harassment suit. The United States District Court for the District of Utah entered

summary judgment for the defendants and dismissed Hansen’s claims. Hansen

now appeals the entry of summary judgment. We exercise jurisdiction pursuant to
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28 U.S.C. § 1291 and affirm.

BACKGROUND

Hansen began working for Alta as a ski instructor in 1983. In May 1992,

Hansen and other female ski instructors filed a Title VII suit against Alta and the

then-director of the Alta ski school, Paul Jones, based on claims that Jones had

sexually assaulted them. The parties to that suit negotiated a settlement and the

claims were dismissed in the summer of 1993. The plaintiffs, including Hansen,

then returned to work at Alta for the 1993-94 ski season under new ski school

director Alan Engen. 

Hansen asserts that after returning to Alta, she was treated differently from

other employees as a result of her participation in the sexual harassment suit. 

First, Hansen contends that she was affected adversely by the ski school’s method

of assigning her lessons during the 1993-94 ski season because she had fewer

teaching opportunities than the other instructors. Hansen also contends that Alta

discriminated against her by taking disciplinary action against her for having an

alleged poor attitude. Hansen argues both that the action was unwarranted and

that even if she did have an offensive demeanor, she was treated differently than

another employee with the same problem. Finally, she asserts that Alta decided

not to invite her back to teach during the 1994-95 ski season in retaliation for her

Title VII suit.
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Engen testified that he took disciplinary action against Hansen because of

his own personal observations and complaints from the ski school staff indicating

that she was confrontational and disrespectful toward the staff and had

communication problems. Engen stated that when he met with her she refused to

acknowledge these problems, leading him to decide not to invite her back. 

DISCUSSION

We review a grant of summary judgment de novo. See Kaul v. Stephan, 83

F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate if the facts

in the record “show that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” Id. (quoting Wolf v.

Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995)). In reviewing

the entry of summary judgment, we must construe all facts and reasonable

inferences to be drawn therefrom in the light most favorable to the nonmoving

party. See id. To defeat summary judgment, the nonmoving party must show a

“genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986) (emphasis in original). “[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment.” Id. at 247-48 (emphasis in original).

To establish a prima facie case of retaliation under Title VII, a plaintiff

must show that “(1) she engaged in protected opposition to Title VII
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discrimination or participated in a Title VII proceeding; (2) she suffered an

adverse employment action contemporaneous or subsequent to such opposition or

participation; and (3) there is a causal connection between the protected activity

and the adverse employment action.” Cole v. Ruidoso Municipal Schools, 43

F.3d 1373, 1381 (10th Cir. 1994). Hansen’s participation in the Title VII suit

against Alta and Jones satisfies the first prong of this test. See 42 U.S.C.

§ 2000e-3(a) (stating that filing Title VII action constitutes protected activity). 

The other two elements require more discussion.

1. Adverse Action

To meet the second prong of her prima facie case, Hansen alleges three

forms of adverse action by Alta. First, she refers to Alta’s decision not to invite

her back for the 1994-95 season. This constitutes adverse action. Although

Hansen was an at-will employee, at-will status does not preclude a plaintiff from

bringing a Title VII retaliation claim. See, e.g., Sprague v. Thorn Americas, Inc.,

129 F.3d 1355, 1366-67 (10th Cir. 1997) (addressing Title VII retaliation claims

of an at-will employee).

Second, Hansen alleges that Engen took adverse action against her when he

“undertook to discipline [her] without basis and in so doing treated her differently

than other employees.” Complaint ¶ 12. The disciplinary action here consisted of

a two-hour meeting between Hansen and Engen to discuss alleged attitude and
1

 On the scanty record before us, it is impossible to determine exactly how the ski

staff assigned lessons to the plaintiff, and how or why this may have varied from normal

practice. Appellant’s Appendix includes only highly selective excerpts from the relevant

depositions. As reproduced in the record, at least four deponents’ explanations of

Hansen’s lesson assignments for the 1993-94 season are incomplete, beginning or ending

abruptly in mid-sentence. See, e.g., Appellant’s App. at 179 (cutting off Annette

Carhart’s deposition in midst of discussion about how Hansen’s lessons were scheduled);

id. at 186 (cutting off David Robinson’s deposition in midst of discussion about lesson

assignments); id. at 304-05 (cutting off, in mid-sentence, Engen’s description of a change

in Hansen’s teaching status during the 1993-94 season, and picking up seven pages later

in the deposition); id. at 332-33 (skipping from p. 38 to p. 41 in Robinson’s deposition in

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behavioral problems, at the end of which Engen requested that Hansen sign a

“Commitment of Understanding and Agreement” expressing a commitment to

“work in harmony” with all Alta employees. Adverse action may include

disciplinary action taken against the plaintiff. See Marx v. Schnuck Markets,

Inc., 76 F.3d 324, 329 (10th Cir.) (noting that pattern of alleged retaliation began

with plaintiff being “written up”), cert. denied, 116 S. Ct. 2552 (1996). We will

assume, for purposes of evaluating plaintiff’s prima facie case, that the

disciplinary action here constitutes adverse action.

Third, Hansen asserts that Alta “refus[ed] to make available to [her] ski

lessons on the same basis as others who were similarly situated.” Complaint ¶ 10. 

Specifically, Hansen contends that Engen instructed the ski staff to give her

lessons last. Even looking at the facts in the light most favorable to the plaintiff

as the non-moving party, there is no merit to her contentions that Alta took

adverse action against her in the way it assigned lessons.1
middle of discussion about Hansen’s status); id. at 344 (beginning excerpt from Lynn

Nichol’s deposition in middle of discussion about Hansen’s unhappiness with

scheduling); id. at 358-59 (skipping from p. 33 to p. 44 in Carhart’s deposition, cutting

off discussion of Engen’s instructions to ski staff regarding Hansen’s lessons); id. at 423

(cutting off in middle of question to Engen about his instructions to ski school staff); id.

at 453 (picking up Robinson deposition in middle of statements about Hansen’s teaching

status). At any rate, any factual dispute regarding the ski staff’s approach to assigning

Hansen lessons is immaterial, given our finding that Hansen was not adversely affected in

the assignment of lessons. See Liberty Lobby, 477 U.S. at 247-48 (“[T]he mere existence

of some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment.”).

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Hansen was one of seven ski instructors on “independent status,” a group of

Alta’s more experienced ski instructors created by Engen for the 1993-94 season. 

Hansen requested and received independent status even though, as the result of an

injury, her teaching hours from the 1992-93 season did not make her eligible for

independent status. “Independents” were expected to generate their own clients. 

They also could be assigned walk-in clients; Hansen contends that she was

discriminated against in the assignment of these walk-in lessons. Alta produced

evidence, which Hansen does not dispute, that Hansen was assigned 28 lessons in

the 1993-94 season—placing her squarely in the middle of the seven independents

with regard to assigned lessons. See Appellant’s App. at 480 (showing that the

numbers for the other six independent instructors were 8, 11, 26, 44, 49, and 57

lessons). Hansen asserts that her total numbers of students and teaching hours

were lower than all the others. However, those numbers are not evidence of

disparate treatment or adverse action by Alta. As Alta points out, Alta is
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responsible only for the assigned numbers; Hansen herself was responsible for

arranging the non-assigned lessons. The total numbers of lessons are irrelevant to

Hansen’s allegations of adverse action by Alta in assigning lessons.

Thus, we find that Hansen experienced adverse action when Engen took

disciplinary action against her and when he decided not to invite her back for the

1993-94 season, but that Alta’s manner of assigning lessons did not constitute

adverse action.

2. Causation

To complete her prima facie case, the plaintiff must show that there was a

causal connection between her protected activity and the adverse action taken

against her. We agree with the district court that plaintiff has failed to

demonstrate a causal connection between her participation in the 1992 Title VII

suit and either the disciplinary action or the decision not to invite her back. Thus,

she fails to make the third part of her prima facie case.

a. Timing

Hansen relies heavily on the timing of the adverse actions to show that they

were prompted by her participation in the 1992 sexual harassment suit. 

“[R]etaliatory motive can be inferred from the fact that an adverse employment

action follows charges by an employee against his/her employer.” Candelaria v.

EG&G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994). An
2

 The relevant date for this plaintiff’s protected activity is the filing date, see

Candelaria, 33 F.3d at 1262, not, as plaintiff suggests, the date the lawsuit was settled.

- 8 -

inference based on timing “can only be made, however, where ‘close temporal

proximity’ exists between the bringing of charges and the subsequent adverse

action.” Id. at 1262 (quoting Smith v. Maschner, 899 F.2d 940, 948-49 (10th Cir.

1990)) (emphasis added). Applying this rule, we have held that a two-day time

lapse can support an inference of causal connection. See Sauers v. Salt Lake

County, 1 F.3d 1122, 1128 (10th Cir. 1993). By contrast, a period of three or four

months or more between the protected activity and the adverse action generally is

insufficient to support an inference of causation. See Richmond v. ONEOK, Inc.,

120 F.3d 205, 209 (10th Cir. 1997) (finding three months insufficient); Conner v.

Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (holding four

months insufficient); Candelaria, 33 F.3d at 1262 (holding three-year intervening

time period insufficient). “Unless the termination is very closely connected in

time to the protected conduct, the plaintiff will need to rely on additional

evidence beyond mere temporal proximity to establish causation.” Conner, 121

F.3d at 1395. The plaintiff here filed her sexual harassment claim in May, 1992.2

The earliest adverse action taken by Alta was over two years later, on June 13,

1994, when Engen called Hansen to his office to discuss complaints he had

received about her behavior. Engen did not make the decision not to rehire
3

 The Hansen memorandum of understanding was very similar to the Johnson

memorandum. Compare Appellant’s App. at 287 (Hansen memo) with id. at 478

(Johnson memo).

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Hansen for the 1993-94 season until July, 1994. Our cases demonstrate that an

intervening period of over two years cannot be considered “close temporal

proximity,” such that an inference of causation is warranted based on timing

alone.

b. Allegedly Differential Treatment

 Hansen also attempts to prove causation by showing that she was subject to

adverse action when other, similarly situated employees were not. Both the

plaintiff and Steve Johnson, another Alta employee, met with Engen to discuss

concerns about their attitude and behavior. While Engen presented both the

plaintiff and Johnson with a document of “Understanding and Agreement,” he

only required the plaintiff to sign it. Engen explained that when he met with

Johnson and went over the memorandum with him, Johnson appeared conciliatory

and willing to change, so Engen decided not to require him to sign the document. 

By contrast, Hansen was not at all conciliatory or understanding, so Engen felt it

was necessary to take the step of having her sign a memorandum.3

 Hansen

alleges that Engen’s current explanation differs from his contemporaneous notes

and contends that Johnson’s attitude actually had an overall hostile tone. 

However, Engen’s contemporaneous notes do reflect that Johnson’s attitude had
4

 In her brief, the plaintiff twice asserts that Johnson had “refused to sign” the

memorandum drafted by Engen. To characterize this statement as mere exaggeration

would be too generous. Engen’s contemporaneous notes, as well as his deposition

testimony and affidavit, clearly state that Engen decided not to ask Johnson to sign the

memo. See Appellant’s App. at 319-20 (deposition), id. at 470-72 (affidavit); id. at 479

(notes dated Oct. 6, 1993, describing the meeting with Johnson). Plaintiff does not cite to

any evidence, nor could we find any, that supports her contention that Johnson “refused”

to sign the memo.

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changed and that he appeared to accept Engen’s comments.4 See Appellant’s

App. at 479 (Engen’s notes of October 6, 1993). Thus, Engen had legitimate

reasons for requiring plaintiff, but not Johnson, to sign the memorandum. There

is no reason to believe that Engen’s decision to take disciplinary action against

the plaintiff, including the request to sign the memorandum, was caused by the

plaintiff’s participation in the Title VII suit.

c. Alleged Comments by Lynn Nichol

Hansen contends that when she complained to Lynn Nichol, one of her

supervisors, about the manner in which she was being assigned lessons, his

response was to tell her that she “should just talk to [her] lawyer.” Hansen

characterizes this statement as “a definite reference” to her earlier lawsuit against

Alta. Nichol counters that his only reference to attorneys was in response to

Hansen’s assertion that she was going to get a lawyer: “I said: ‘Well, you do what

you have to do.’” Appellant’s App. at 342. Even assuming Hansen’s version of

Nichol’s remark is accurate, and even if he did intend it as a reference to her prior
5

 Here, too, the record is inadequate. See Appellant’s App. at 292-94 (containing

Engen’s deposition testimony regarding his approach to disciplining employees, and

including pages 43, 45, and 47 of the deposition, but omitting pages 44 and 46).

- 11 -

legal action, we find that the comment is irrelevant and does not tend to prove

causation. See Liberty Lobby, 477 U.S. at 247-48 (requiring nonmoving party to

demonstrate existence of a “genuine issue of material fact”). Engen, not Nichol,

took disciplinary action against Hansen and made the decision to terminate the

plaintiff. 

Hansen also alleges that Nichol boasted to other ski instructors that he had

fired Hansen, a comment Nichol denies making. Given that it was Engen, not

Nichol, who made the decisions regarding adverse action against the plaintiff, we

find this allegation immaterial as well.

d. Failure to Follow Policy

Next, Hansen asserts that one can infer causation from Engen’s alleged

failure to follow company policy in disciplining her. However, Alta had no

formal mechanism or written policy for disciplining its employees. The record

does include some testimony from Engen and Nichol regarding steps that they

would try to take with employees who appeared to have attitude or behavior

problems.5 See Appellant’s App. at 293, 338-39. For example, Nichol stated that

he would try to call the employee into his office to discuss inappropriate

behavior, although he also testified that he never called Hansen into his office. 
6

 Again, the incomplete nature of the deposition excerpts in the Appellant’s

Appendix makes it very difficult to determine the nature of the factual dispute here, or to

determine if a factual dispute exists at all. See, e.g., Appellant’s App. at 311-314

(reproducing selective, non-consecutive pages from Engel’s deposition).

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See id. at 338-39. However, nothing in the record indicates that Alta policy

precluded Engen from dealing directly with allegedly problematic employees, as

he did with Hansen. Moreover, his treatment of Hansen is very similar to his

treatment of Steve Johnson earlier in the same season. Given the informal nature

of Alta’s procedures for disciplining employees, we cannot find that in taking this

course, Engen varied from normal procedures in such a way as to raise an

inference that his actions were related to Hansen’s lawsuit of two years earlier.

e. Evidence of Pretext

Hansen argues that Engen’s reasons for disciplining and eventually

terminating her were pretextual. Hansen contends that Engen’s assertions

regarding her disrespectful manner are belied by statements from others that her

behavior was not inappropriate, or at most, was no different from that displayed

in her previous years at Alta.6 See Appellant’s App. at 239, 242, 246, 249. 

Although she has produced affidavits that challenge Engen’s proffered reasons for

the adverse action, Hansen has offered no evidence that suggests that his real

reason was retaliation. We find this failure significant.

Evidence of pretext can be relevant to show discriminatory intent, but
- 13 -

Hansen misunderstands the nature of her burden in this case. In a discrimination

case, evidence rebutting a defendant’s explanation for the action generally is not

relevant until after the plaintiff has met the burden of proving her prima facie

case. Once the plaintiff proves the prima facie elements of discrimination, an

inference of discriminatory motive is raised and the defendant assumes a burden

to produce a legitimate, nondiscriminatory reason for the adverse action. See

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-54 (1981). 

Then, for the purpose of defeating a motion for summary judgment, it is sufficient

for the plaintiff to present evidence that the proffered explanation is not the real

one. See Randle v. City of Aurora, 69 F.3d 441, 451-453 & n.17 (10th Cir. 1995)

(holding that to avoid summary judgment, plaintiff need not prove that

discrimination is the real motive, but only that the proffered reason is pretextual);

but cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (holding that, at

trial, mere rebuttal of defendant’s proffered reason allows but does not compel a

finding of discriminatory motive). Plaintiff here cannot defeat summary judgment

simply by showing pretext, as she has yet to prove her prima facie case. To

satisfy the causation element of her prima facie case, she must provide evidence,

either direct or circumstantial, that her protected activity caused the defendants to

take adverse action. Evidence contesting defendant’s given reason for

terminating her, without more, does not support an inference of causation at this
- 14 -

stage.

In short, on the record before us we find no evidence of causation.

CONCLUSION

Plaintiff has failed to produce evidence, direct or circumstantial, to show

that the adverse action taken against her was caused by her participation in the

1992 sexual harassment suit. Thus, she has failed to establish a prima facie case

of retaliation, and we AFFIRM the district court’s entry of summary judgment for

the defendant.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge