* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GIOVANNA DIRUSSO,

Plaintiff, and SUZANNE NIVETTE,

Plaintiff-Appellant,

v. ASPEN SCHOOL DISTRICT NO. 1, also known as The Aspen School District Board of Education, a public school district organized and operated pursuant to Colorado law,

Defendant-Appellee. No. 03-1334 (D.C. No. 01-M-1501) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff-appellant Suzanne Nivette appeals from su mmary judgment granted in favor of her former employer, defendant- appellee Aspen School District, on her claims of age discrimination and r etaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S .C. §§ 621-34, which she brought after resigning from her teaching position. Our jurisdiction arises under 28 U.S.C. § 1291. We conclude that Nivette’s resig nation does not moot the issue of the District’s potential liability for discrimin ation in refusing to rehire Nivette because it is undisputed that Nivette resigned onlyafter notification that she would not be rehired. Thus, her resignation has no impact on our analysis in this case. But we conclude that the District was entitl ed to summary judgment on the failure-to-rehire claim because Nivette could not p roduce evidence tending to show that age was a determinative factor in her sup ervisor’s decision not to rehire her or that the reasons given for not rehiring her were pretextual. As to Nivette’s claim of retaliatory discrimination, which is based on a conversation during which the District’s superintendent informed a prospectiv e employer that Nivette had filed a discrimination claim against the District, we hold that no reasonable jury-3-

could conclude that the conversation supports a ret aliation claim. We therefore affirm the district court’s grant of summary judgme nt on both claims.
I. Standard of review “We review the district court’s grant of summary judgment de novo , applying the same legal standard used by the distri ct court” under Fed. R. Civ. P. 56(c). Simms v. Okla. ex rel. Dep’t of Mental Health & Sub stance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). In applying this standard, we view the evidence anddraw any inferences in a light most favorable to the nonmovi ng party, but the party must identify sufficient evidence that would require submission of the case to a jury. It is not enough that the n onmovant’s evidence be merely colorable or anything short of significan tly probative

. Jensen v. Redevelopment Agency , 998 F.2d 1550, 1555 (10th Cir. 1993) (citations and quotations omitted). “In considering whether a fact is material, we mus t look to the applicable substantive law. To determine wh ether a dispute is genuine, we must consider whether a reasonable jury could return a verdict for the nonmoving party.” Revell v. Hoffman , 309 F.3d 1228, 1232 (10th Cir. 2002) (quotation and citation omitted). II. Undisputed relevant facts In May 1998 Lisa Halverson, the District’s directorof special education and high-school assistant principal in charge of hi ring special education teachers, advertised a half-time high-school “inclusion facil itator” position. See Aplt. App.-4-

Vol. IV at 673. Historically, there has been a sho rtage of special education teachers in Colorado, and the District had a diffic ult time hiring qualified special education teachers. Id. at 524. Nivette was fifty years old at the time s he submitted her application, and she did not apply un til July 13. Nivette’s application indicated that, although she had “redev eloped” a special education/Title I reading program in the 1997-1998 school year, it had been seven years since she had taught special education, but s he was still qualified to teach special education. Aplt. App. Vol. II at 151. On July 15, Halverson initially recommended to the District that it hire Ms. Cheri Hasenburg, who was in her mid-to-late thi rties and who had specifically expressed an interest in the half-time high-school position on her application submitted in June . When Hasenburg later notified Halverson that sh e could not accept the job because she could not find housing, Halverson interviewed Nivette and offered her the job. Nivette signed a one-year, probationary contract fo r the “inclusion facilitator” position. A key part of this position is effective communication with regular classroom teachers and paraprofessionals wh o assist the special education teacher in making curriculum modifications so that special education students can participate in regular classroom instruction. Nive tte had never taught in an inclusion program before. She found it a challenge to serve five severe-needs-5-

students within her twenty-hour work schedule. She complained to Halverson and to other teachers that she could not do her teachin g job and work other jobs in order to support herself in Aspen. Halverson observed and evaluated Nivette several ti mes. A December 1998 evaluation indicated that Nivette needed to improve her performance in understanding the district curriculum and state content standards, assisting in special education assessments, and meeting with reg ular classroom teachers on a consistent basis. Halverson testified that Nivette was not happy with having to attend special training sessions. She also testifi ed that the classroom teachers complained that Nivette had not established a colle gial working relationship with them and was not available to, and did not consiste ntly check in with, them, and that Nivette did not talk to them as equal colleagu es. In March 1999, Halverson intervened in an on-going conflict Nivette was havi ng with one of the special education paraprofessionals who worked with her. H alverson was concerned that Nivette had communicated to students and other teac hers about the problem. At her second evaluation conference, held in April 1999, Halverson informed Nivette that she would not recommend that Nivette’s teaching contract be renewed. Halverson testified about her reasons for deciding not to renew Nivette’s contract: [A]s an inclusion facilitator, [Nivette] needed to maintain good communication skills with the teachers with whom sh e was working-6-

and [I] felt that she had not demonstrated that con sistently; that she had some difficulties in communicating with the sta ff regarding students’ [individual educational programs] and in looking at making some curricular modifications for them, . . . [I] f elt . . . that it was not a good fit for her as an inclusion facilitator, that her skills were not suited to that particular role. Aplt. App. Vol. IV at 673. Halverson testified that teachers complained that Nivette had performed curriculum modifications thatwere too simplistic because they only reduced the quantity of work required, an d that Nivette had not identified curriculum objectives to students or tea chers before the teachers began their instruction on a particular unit. Nivette wa s perceived as not listening to colleagues and not being receptive to new learning. Halverson saw little evidence of Nivette facilitating or fostering social relatio nships between her students and their peers. But Halverson had no criticism of Niv ette’s skills as an instructor. A classroom teacher who worked with Nivette testifi ed that, although she personally had no complaints about Nivette’s performance, “the word on the street was that [Nivette] was not doing her job,” a nd she knew that “people were bringing concerns [about Nivette] directly to Lisa Halverson throughout the year.” Id. at 708. She testified that another special educat ion teacher “ran screaming ‘fire’” to Halverson about Nivette’s job performanc e. Id. Words the teacher had heard used to describe Nivette were “flaky, flighty , very involved personal problems, inconsistent.” Id.-7-

A special education paraprofessional testified thatNivette attended only one class in a series of monthly classes the Distri ct offered for paraprofessionals and new special education staff to teach them how t o effectively implement inclusion concepts. She testified that, “it seemed as if [Nivette] misrepresented herself on what she knew [about inclusion concepts] ,” and that Nivette said she had not taught special education in quite a while. Id. at 714. Halverson did not offer to place Nivette on a remed iation plan to improve her performance even though District policies had p rovisions for doing so and at least one inexperienced probationary teacher at the high school had been placed on a remediation plan in the past. But Halverson g ave Nivette the opportunity to resign in lieu of recommending to the District thatNivette’s contract not be renewed. Halverson told Nivette she would write a letter of recommendation for her if she resigned. Nivette appealed in writing Halverson’s decision no t to rehire her to Tom Farrell, the superintendent of the District. He in formed Nivette on May 10 that Halverson was responsible for high-school special-e ducation-teacher evaluations and for hiring special education staff for the foll owing school year, but invited Nivette to set up a meeting with him. They met on May 14, and Farrell told Nivette that he would talk with Halverson to see if her mind was made up about not rehiring Nivette in the fall.-8-

That same day, Nivette submitted a letter of resign ation to Farrell. In her deposition, she explained that she felt pressure to resign before Halverson’s recommendation not to renew her contract was made t o the District, as such a recommendation could have negative consequences on her ability to obtain another teaching position. The letter explained th at Nivette needed full-time work and that she felt that it took more than twenty hours per week to create an efficient, manageable special education program forthe students she served. Thus, Halverson did not recommend nonrenewal of Niv ette’s teaching contract to the District, and the District accepted Nivette’s r esignation in its May 17 meeting. Halverson wrote a letter of recommendation for Nive tte on May 27. Halverson subsequently interviewed and hired a fifty-one-year -old special education teacher to replace Nivette on July 27, 1999. Nivette filed age discrimination charges with the EEOC in January 2000. In the spring of 2000, Nivette interviewed for, andwas offered, a teaching position in Durango after Farrell had spoken with the Durango administrator in charge of hiring. Nivette subsequently accepted an other, higher-paying job in Summit County. Nivette filed suit against the Dist rict on August 2, 2001. The district court granted summary judgment to the District on Nivette’s claims, and this appeal followed.-9- II. Discrimination Under the ADEA, “[i]t shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of e mployment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail on an ADEA claim a plaintiff must establ ish that age was a determining factor in the employer’s challenged d ecision. The plaintiff need not prove that age was the sole reason for the employer’s acts, but must show that age made the di fference in the employer’s decision. Under our precedents, an ADEAplaintiff may proceed by either of two general methods to carry t he burden of making her or his case. A party may attempt to mee t his burden directly, by presenting direct or circumstantial ev idence that age was a determining factor in his discharge. Or, more typically, a party may rely on the proof scheme for a prima facie case established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981).
Greene v. Safeway Stores, Inc. , 98 F.3d 554, 557-58 (10th Cir. 1996) (quotations and citations omitted). The District moved for summary judgment on Nivette’ s age discrimination claim on the bases that (1) she could not establishthat she suffered an adverse employment action because she resigned; and (2) she was not replaced by a younger teacher, and therefore could not create a p rima facie case of age discrimination. Aplt. App. Vol. II at 85. Nivette submitted a vigorous response,-10-

challenging the District’s legal theories and alleg ing multiple examples of what she claims is direct evidence of both discriminatory motive and pretext. A. Constructive discharge. The District argued that, because she resigned, Nivette had to rely on the theory of cons tructive discharge and could not meet the requirements of that theory because she co uld not establish that her working environment was so intolerable that a reaso nable person in her position would have felt compelled to quit. Id. at 85-86. In response, Nivette argued that she was constructively discharged because she was g iven no choice but to resign or be terminated. The District was incorrect in its premise that the only way Nivette could show an adverse employment action under the ADEA wa s to prove that she was constructively discharged. Section 623(a)(1) specifically prohibits an employer from discharging “or otherwise discriminat[ing] againstany individual with respect to his . . . terms . . . of employment , because of such individual’s age.” We consider whether a particular action was adverse on “a case-by-case approach, examining the unique factors relevant to the situation at hand.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (internal quo tation marks omitted). Here, Nivette claimed that Halverson’s decision not to recommend renewal of her contract was motivated by age discri mination. It is this decision that forms the adverse action required, and Nivette did not have to prove that she-11-

was constructively discharged. Cf. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373 (10th Cir. 1994) (holding, in Title VII case, that plaintiff demonstrated adverse employment action in school district’s decision notto renew principal’s contract for the following year, but offering principal a de motion). B. Resignation. The district court properly rejected the constructi vedischarge theory presented by the District, noting that, because Nivette’s contract was only for one year and she completed the whole c ontract, there had been no termination and therefore no constructive discharge . The district court viewed the contract nonrenewal as a “failure to hire” case. Aplt. App. Vol. VII at 1042.
In McDonnell Douglas, the Supreme Court enumerated the elements required in order for a plaintiff to establish a pr ima facie case in the failure to hire context. These are: (i) plaintiff belongs to a protected class; (ii) plaintiff applied and was qualified fora job for which the employer was seeking applicants; (iii) despite bein g qualified, the plaintiff was rejected; and (iv) after plaintiff’s rejection, the position remained open and the employer continued to seek ap plicants from persons of [plaintiff’s] qualifications. Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1226 (10th Cir. 2000) (internal quotation marks and citations omitted). The district court dismissed the discrimination charge without discussing its ration ale for doing so and finding only that “this . . . is not a compensable coerced resignation.” Aplt. App. Vol. VII at 1053. The district court must have agreed w ith the District that, since she resigned, Nivette could not satisfy Kendrick’s second requirement–that she applied for the job. But-12-

[e]mployment discrimination law does not require th at a plaintiff formally apply for the job in question. Rather, th e law requires either that the employer be on specific notice thatthe plaintiff seeks employment or, where informal hiring procedures are used, that the plaintiff be in the group of people who might reaso nably be interested in the particular job. Whalen v. Unit Rig, Inc. 974 F.2d 1248, 1251-52 (10th Cir. 1992). Here, itis undisputed that Halverson knew that Nivette desiredto keep her job, and that Nivette resigned only because she knew that Halvers on was not going to rehire her. We therefore conclude that the district courtimproperly granted summary judgment on Nivette’s age discrimination claim on t he ground that there was no compensable coerced resignation. Thus, we move to the question whether Nivette presented sufficient evidence that age discriminati on was a determinative factor in the decision not to renew her teaching contract. C. Discriminatory motive/pretext. Nivette was not required to show that the District hired an individual who was not in herprotected class in order to establish a prima facie case of age discrimination. See Kendrick, 220 F.3d at 1231. But because Halverson subsequently hired an individual who was the same age as Nivette, once the District came forward with a non-discriminatory reason for not rehiring Nivette, Nivette could not rest on her prima facie showing alone to get the age-discrimination question to a jury. See Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1166 (10th Cir. 2000) (holding that ADEA plaintiff had failed to make a prima facie case of age discrimination when he was replaced by-13-

someone only two years younger and within the prote cted age group and there was no other evidence of age discriminatory motive). “ The critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination.” Kendrick , 220 F.3d at 1227; see O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) (“As the very name ‘pr ima facie case’ suggests, there must be at least a logical co nnection between each element of the prima facie case and the illegal discriminat ion for which it establishes a legally mandatory, rebuttable presumption.”) (citation and quotations omitted).
1. Pretext. In order to withstand summary judgment, Nivette m ust come forward with “evidence that [Halverson’s] profferedreason for the employment decision was pretextual–i.e. unworthy of belief.” Kendrick , 220 F.3d at 1230. A plaintiff typically makes a showing of pretext i n one of three ways: (1) with evidence that the defendant’s stated reaso n for the adverse employment action was false ; (2) with evidence that the defendant acted contrary to a written company policy prescrib ing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an un written policy or contrary to company practice when making the advers e employment decision affecting the plaintiff. Id. (citations omitted). Critically, Nivette did not present any evidence t o rebut Halverson’s evaluation of Nivette’s skills as they related to being a good “inclusion facilitator” or to cast doubt upon Halve rson’s concerns with Nivette’s problems in communicating and working with other staff. Cf. Munoz , 221 F.3d at1 For example, DiRusso did not have a Colorado teachi ng certificate and

never obtained one; Griff Smith (her principal) mad e the final decision not to renew her contract; Smith gave different reasons fo r not renewing the contract, and DiRusso challenged Smith’s recommendation. The District’s motion for summary judgment against DiRusso was denied, but th e district court certified Nivette’s judgment for immediate appeal under Fed. R. Civ. P. 54(b). Aplt. App. Vol. VII at 1083. -14- 1167-68 (affirming grant of summary judgment becaus e plaintiff failed to rebut reasons for plaintiff’s termination). The record c ontains nothing to indicate that Halverson’s concerns were not honest or that they w ere not based on her evaluations and information given to her by Nivette ’s peers and co-workers. But Nivette points to two facts as evidence of pretext: (a) Nivette and her co-plaintiff, Giovanna DiRusso, were the only teachers Halverson ever recommended for non-renewal, and the y were both in the protected age group. We decline to compare DiRusso ’s situation with that of Nivette’s because they are too different. 1 It is uncontroverted that Griff Smith, DiRusso’s principal, recommended with Halverson that DiRusso’s contract not be renewed. Aplt. App. at 109, 190, 196. The fact th at Nivette is the only teacher Halverson ever solely recommended for non-renewal, by itself, will not give rise to an inference of age discrimination in light of t he valid, non-discriminatory reasons Halverson gave for not renewing Nivette’s c ontract and in light of the fact that she hired another person Nivette’s age to fill the position. Further, Nivette does not present any evidence regarding howmany older teachers-15-

Halverson recommended for renewal, and without a nu mber to compare to, the recommendation for non-renewal of one older person in ten years is virtually meaningless. (b) Halverson did not give Nivette a remediation pl an, as required by District policy, but the high-school principal gave a young, probationary teacher that opportunity two years before. First, Nivette’ s citation to the record does not support her claim that District policy requires giv ing a probationary teacher a remediation plan in all circumstances. Nivette did not submit the policy in her summary judgment materials, but, rather, relied on a Board member’s testimony that he “assumed” that the policy applied to probat ionary teachers. Aplt. App. Vol. IV at 659. Second, the fact that a different administrator offered a teacher with no previous teaching experience an opportunityto go to summer school and to quit coaching in order to improve his teaching s kills has no bearing on the very different situation Halverson faced. See Rivera , 365 F.3d at 923 (“Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluationand discipline.”) (quotation omitted). No comparison between the two situations is reasonable, given that Halverson believed Nivette’s skills were not suitedto the job, Nivette had failed to attend seminars to improve her skills, Nivette w as an experienced teacher, and Nivette had personality conflicts and difficulty in communicating with other staff.-16-

2. Discriminatory motive. a. Farrell’s alleged discriminatory policy. In response to the district court’s inquiry regarding what evidence could suppo rt a finding that Halverson was motivated by age, Nivette first stated: (1) “F arrell had the ability to discipline Halverson without any input from the board,” (2) “Halverson went to Farrell and discussed Nivette’s situation about whe ther or not to recommend renewal . . . before she made the decision,” and, t herefore, (3) “all the ageist policies attributed to Farrell are in this decision -making process. It’s tainted by those two facts.” Aplt. App. Vol. VII at 1043-44. She also claimed that (4) ageism was a district-wide policy that Halverson si mply enforced. It is undisputed that Halverson made her employmentdecision independently, before she informed Farrell of her d ecision, and that she was the decision-maker. See Aplt. App. Vol. IV at 673; id. Vol. VII at 1035, 1039. Even though we view the facts in the light most favorabl e to Nivette, “a challenge of pretext requires us to look at the facts as they ap pear to the person making the [adverse employment] decision.” Kendrick, 220 F.3d at 1231. Because Halverson made the decision not to rehire Nivette, we must view the facts from her perspective. See id. “The relevant inquiry is not whether [Halverson’s ] proffered reasons were wise, fair or correct, but w hether [she] honestly believed2 The fact that an individual has just obtained a tea ching certificate and is

“new” to the profession does not necessarily mean that the individual is also “young.” Further, the newspaper article Nivette su bmitted as “proof” of Farrell’s ageist policy shows that the author used the word “ young” as a substitute for “new” or “inexperienced,” noting that the school di strict wanted to hire “young teachers–fresh out of college or with a couple year s of experience,” that by “recruiting young teachers, the district estimates . . . salary savings by paying less to entry-level teachers than it would to veterans” and that “veteran teachers earn $64,000 a year whereas entry-level teachers earn $2 5,000 a year.” Aplt. App. Vol. IV at 625. -17- those reasons and acted in good faith upon those beliefs.” Rivera , 365 F.3d at 924-25 (quotation omitted) . Thus, assuming, for the purposes of our analysis , that Farrell had a policy of recruiting teachers right out of college, 2 we reject Nivette’s argument in points (1)-(3), supra , that it should be attributed to Halverson. Cf. Kendrick , 220 F.3d at 1231. b. The District’s alleged discriminatory policy. We also reject Nivette’s claim that she presented sufficient evide nce of a District policy of hiring only young teachers that Halverson simply en forced. Nivette argues that ageism is demonstrated by the facts that the Distri ct (1) sought to hire former Aspen students and secured outside funding to creat e a position for a former student under forty who had become a teacher; (2) s ought to develop relationships with college placement officers as part of its recr uiting strategies; (3) looked for teachers trained in the “best practices methodology ;” (4) wanted to hire teachers “who were quality educators and were knowledgeable of . . . recent practice;”-18-

(5) had received a report that “[s]ome veteran teac hers are feeling undervalued” because of the salary schedule, Aplt. App. Vol. IV at 924-25; (6) had discussed the concept that “the closer people are in age to t he technological revolution, then the more technologically savvy they tended to be;” and (7) had “discussed the advantages and disadvantages of hiring younger teac hers” and the idea that “older teachers . . . might be burned out and not as enthu siastic” at one meeting. Aplt. Br. at 19, 20. But none of facts (1)-(5) are neces sarily connected to age, and “there is no disparate treatment under the ADEA whe n the factor motivating the employer is some feature other than the employee’s age.” Hazen Paper Co. v. Biggins , 507 U.S. 604, 609 (1993). Further, as to fact (1), it is not ageist to desire former residents because they are more likely to remain in the area. Regard ing fact (2), the most likely place to find unemployed, qualified teachers, no matter their age, is through college placement officers, and it is not ageist to recruit at a college. Nor is it ageist as alleged in facts (3) and (4), to desire t eachers who are trained in the best practices. Indeed, the District showed that it mak es sure that its teachers are all offered “best practices” instruction on a regular b asis. Aplt. App. Vol. IV at 681. As to fact (5), it is further undisputed that, when Farrell received the report stating that some veteran teachers perceived that t hey were valued less than new teachers, he noted that the teachers had proposed b oth the salary schedules, which-19-

gave new teachers a proportionally-higher starting salary than veteran teachers, and a three-year early retirement plan. He also no ted that, “there is little advantage to the District to early retire good teac hers because the District can’t replace them.” Id. at 925. Fact (6), that the Board discussed a stereotypical concept, does not indicate that it actually used that concept to reject older applicants, and a teacher testified that the District has done “a really good job” of p roviding in-service technology training to all the teachers. Id. at 706. And as to “fact” (7), the record reflects that the Board member was testifying in response to Nivette’s counsel’s question regarding whether he thought Farrell believed there were advantages to hiring younger teachers as opposed to older teachers. Id. at 693. The record shows that the Board member interpreted the words “younger” vs . “older,” in discussing teaching applicants, as “new” vs. “experienced” – not in terms of actual age. See id. ; Hazen Paper Co. , 507 U.S. at 611 (noting that “an employee’s age i s analytically distinct from his years of service”). Thus, the record shows that the Board member did not testify that Farrell or the Di strict thought “older” teachers might be burned out; he stated, “with experienced t eachers[,] the potential negatives were that they might be burned out, they might not be as enthusiastic as they were originally.” Id. Thus, none of Nivette’s evidence is sufficient t o raise a genuine issue whether the District had a policy o f hiring only young teachers or-20-

of not hiring older teachers, or of using age as a determinative factor in the hiring decisions. Further, a teacher who served on several of the Dis trict’s hiring committees testified that she did not believe that the Distric t sought out young teachers or ever used age as a deciding factor in determining w ho to hire. She testified that, although administrators “may like young new teacher s, that would never be the deciding factor. It would be who’s best for the job.” Id. at 706. c. Evidence of Halverson’s discriminatory motive. Nivette submitted the following “facts” as direct or circumstantial e vidence of Halverson’s alleged discriminatory motive, and we address each seriatim : (1) Halverson testified that “she believes that one of the advantages of hiring younger teachers is that they come out of tr aining having ‘new practices, best practices.’” Aplt. Br. at 19; Aplt. App. Vol. VII at 1045. This statement mischaracterizes the record. Halverson answered “n o” to the question, “was there a sense at the school district that the newer teach ers coming out of school now were better because they had better training or better practices.” Aplt. App. Vol. IV at 678. (2) Halverson stated “that younger teachers can rel ate to some of the adolescent issues . . . and that somebody who’s you nger may have more similar experiences to adolescents.” Aplt. Br. at 19; Aplt . App. Vol. IV at 1045. This-21-

statement also mischaracterizes the record. In res ponse to the question, “[d]o you think . . . you can generalize, although there may be exceptions, where the younger you are and the more recently you went thro ugh being an adolescent, the easier it is for you to relate to that?”, Halverson answered, “I don’t think you can generalize that, no.” Aplt. App. Vol. IV at 681. And even if Halverson believed that younger teachers may relate more easily to ado lescent issues because they have been more recently confronted with those issue s themselves, that would not be indicative that Halverson employed age as a dete rminative factor in Nivette’s non-renewal. (3) Hasenburg, who was younger than Nivette, was of fered the high-school position before it was offered to Nivette. Withoutmore, no reasonable jury could infer from this fact that age played the determinat ive role in Halverson’s decision

not to renew Nivette’s contract a year later, especially in lig ht of the undisputed facts that Nivette submitted her application only two days before Halverson made her hiring recommendation to the District, Hasenbur g was the only candidate who specifically expressed an interest in the position on her application, Hasenburg submitted her application more than a month before Nivette did, and Nivette had no experience in the inclusion facilitation positio n offered. (4) Nivette, DiRusso, and Carolyn Hogue, Nivette’s replacement, were not hired until July of each year, but the majority of the regular teachers were hired-22-

earlier in the summer of both years, supporting an inference that Halverson hired older teachers only after she could not find anyone younger. It is undisputed that Nivette and DiRusso were hired late in the summer b ecause the teachers they replaced either reneged on accepting the job or res igned unexpectedly late in the year. And it is undisputed that young special educ ation teachers, such as DiRusso’s replacement, were also hired late in July . It is also undisputed that Hogue, who was fifty-one, was the only person Halve rson interviewed for the job Nivette had held, and that Halverson did not even a dvertise the position once Hogue indicated her interest. And it is undisputedthat there is a shortage of qualified special education teachers in Colorado. No inference of age discrimination could be reasonably gleaned from the se undisputed facts. We conclude, as a matter of law, that Nivette’s pro ffered evidence does not reasonably give rise to an inference that the reaso ns Halverson gave for not renewing Nivette’s contract were pretextual or thatHalverson utilized age as a determinative factor in her employment decision. W e therefore conclude that summary judgment was properly granted to the Distri ct on the age discrimination claim.
III. Retaliation The ADEA’s anti-retaliation provision forbids an employer from discriminating against an employee because she “has opposed any practice made-23-

unlawful” by the statute, or because she “has made a charge, testified, assisted, or participated in any manner in an investigation, pro ceeding, or litigation” under the statute. 29 U.S.C. § 623(d). The anti-retaliation provisions of Titl e VII “are materially identical” to the ADEA’s provisions. Twisdale v. Snow, 325 F.3d 950, 952 (7th Cir.), cert. denied, 124 S. Ct. 957 (2003). To establish a prima facie case of retaliation under the ADEA, Nivette must sh ow (1) she engaged in protected activity; (2) she suffered adverse action at the District’s hands either after, or contemporaneously with, her protected act ivity; and (3) a causal connection exists between her protected activity an d the adverse action. See Corneveaux v. CUNA Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996). Adverse employment action is something that “disadv antage[s]” the employee. Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) (stating that Title VII retaliation plaintiff must show “she was disadvantaged by an action of her employer”). “The causal-connectio n element of a prima facie retaliation claim requires the employee to show that the employer’s motive for taking adverse action was its desire to retaliate for the protected activity.” Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1218 (10th Cir. 2003). Nivette alleged retaliation based on a single conve rsation between the principal of Durango High School, Gene Giddings, an d Farrell, after Giddings contacted Farrell for a reference. Farrell initial ly told Giddings that he could not-24-

provide a reference because he had never observed N ivette’s teaching skills, and that he should call Halverson. Giddings stated he had tried, but Halverson was not available. Giddings testified that Farrell “di d not make any negative statements about Ms. Nivette,” and “at no time stat ed or suggested that [Giddings] should not hire [her].” Aplt. App. Vol. II at 265. When Giddings asked whether Farrell could foresee any problems with hiring Nive tte, Farrell answered, “no.” Id. , Vol. IV at 619. When pressed to answer whether N ivette resigned on her own or was under pressure, Farrell responded that he th ought there was some pressure. Giddings then asked whether Nivette’s resignation w as amicable, and Farrell responded that he “was hearing [Nivette] had a lawsuit against the District.” Id. Giddings responded that he was going to recommend N ivette for hire anyway, and Farrell responded that he would, too, if he were in Giddings’ position. Giddings called Nivette and asked if she had a laws uit against the Aspen Schools. Nivette responded, “not right now,” but t old him that she had filed an EEOC complaint against the District. Id. at 605. Giddings offered, and Nivette initially accepted, the Durango teaching position, but she later reneged to accept a higher-paying job. At the hearing, the district court and Nivette’s co unsel had the following colloquy: Court: What disadvantage did Ms. Nivette suffer fr om Farrell’s conversation?-25-

Counsel: She had the humiliation of being question ed by a potential employer about legal action she had against a very similar employer . . . and she had the uncomfortable feeli ng that, even if she got the job offer, which probably was going to go in the tank, if she got – Court: Do you think uncomfortable feelings are compensable under this law? Counsel: I think under Jeffries [v. Kansas , 147 F.3d 1220 (10th Cir. 1998)], and under Berry [v. Stevinson Chevrolet , 74 F.3d 980 (10th Cir. 1996)]. Berryhad no employer calling to ask questions, a theoretical employer out there. Berrysaid damage to reputation and humiliation resulting from that c reate the adverse employment action. She had humiliation. S he had, like the plaintiff in Berry , she had damage to her reputation by somebody she wanted to have a long-term employment relationship with. . . . I think we forget that th e word “lawsuit” carries a very derogatory [connotation] f or average Americans. And I believe the jury would have no pr oblem seeing that as a retaliatory act. Aplt. App. Vol. VII at 1052-53. The district courtconcluded that summary judgment was appropriate for Nivette’s retaliation claim because “there just isn’t any injury. Now, I don’t dispute Ms. Nivette’s fee lings about it, but there’s a difference between harm that we experience and harm that is a basis for a lawsuit.” Id. at 1053. On appeal, Nivette argues that she does not have to show actual injury in order to prevail on a retaliation claim; she only h as to show retaliatory intent. In her brief on appeal, Nivette also cites Rutherford v. American Bank of Commerce , 565 F.2d 1162 (10th Cir. 1977). In that case, we a ffirmed a district court’s finding that the following facts established an int ent to retaliate: (1) the former-26-

employer gave a “highly complimentary letter of rec ommendation” before the plaintiff filed a discrimination claim, but (2) aft er she filed her complaint, the employer “volunteered” to a prospective employer th at she had filed the charge and (3) informed the plaintiff that an updated refe rence letter would “set forth the circumstances surrounding her termination . . . andwould mention the fact that she had filed a discrimination charge,” and (4) the prospective employer decided not to hire the plaintiff after its conversation wi th the former employer. 565 F.2d at 1163-64. The facts in Nivette’s case are clearl y distinguishable from those in Rutherford

. Nivette also argues that, because she had not filed a lawsuit against the District at the time Farrell responded to Giddings that he “was hearing [Nivette] had a lawsuit against the District,” Aplt. App. Vol . IV at 619, Farrell’s statement was false, and was an adverse action as a matter of law because it had a potential effect of interfering with prospective employment. See Berry , 74 F.3d at 986-87 (adverse employment action under Title VII encompas ses acts that carry a “significant risk of humiliation, damage to reputat ion, and a concomitant harm to future employment prospects”). We first note that the facts in this case are easil y distinguishable from those in Berry. In Berry , the employer’s agent falsely accused a former emp loyee of committing felonies, which is cause for humiliation and which would have an-27-

obvious impact on future employment. See id. at 983-86. It is not similarly humiliating for a prospective employer to become aw are of the truth that an applicant has filed EEOC charges against a former e mployer. But we recently held that a Title VII plaintiff whose former employ er gave negative references to a prospective employer in retaliation for the emplo yee’s prior discrimination complaints did not have to prove that she would hav e received the prospective job but for those negative references to establish an a dverse employment action. Hillig v. Rumsfeld , 381 F.3d 1028, 1029 (10th Cir. 2004). Instead, she must show only that the negative action would have “a likely effect on future job opportunities.” Id. We specifically excluded from the definition of “ adverse employment actions,” however, “those acts that mere ly have a de minimus impact upon an employee’s future job opportunities.” Id. at 1033. Thus, in Hilligwe found sufficient evidence of more than de minimus harm to the employee because “the negative references were very unfavorable,” an d, therefore, carried a significant risk of harm to future employment prosp ects. Id. at 1035. Assuming, without deciding, that the Title VII stan dards for determining what is an adverse employment action should be usedin ADEA cases and that informing future employers that discrimination char ges have been filed may provide an inference of retaliatory intent, we conc lude that no reasonable jury could hold that the single conversation Farrell hadwith Giddings carried a-28-

significant risk of harm to her future employment. It is undisputed that Halverson gave Nivette an excellent job reference and Farrell did not detract from that reference. While Farrell informed Giddings that Ni vette may have a legal action against the District, he made no negative statement s about her, did not suggest that Giddings should not hire Nivette, and in fact told Giddings that he would offer Nivette a teaching job if he were in Giddings ’ position, and Giddings followed that recommendation. Thus, under these un disputed facts, we conclude that summary judgment was properly granted to the D istrict on Nivette’s retaliation claim. The judgment of the district court is AFFIRMED.

Entered for the Court
Stephen H. Anderson Circuit Judge