*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

March 24, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DIANA LEWIS,

Plaintiff-Appellant,

v. Nos. 09-2032 & 09-2137

D. R. HORTON, INC.,

Defendant-Appellee.

(D.C. No. 1:06-CV-00434-WPJ-ACT)

(D. N. Mex.)

ORDER AND JUDGMENT*

Before HENRY, Chief Judge, HOLLOWAY, and BRISCOE, Circuit Judges.

In Case No. 09-2032, Plaintiff-Appellant Diana Lewis appeals the district

court’s grant of summary judgment in favor of her former employer, DefendantAppellee D.R. Horton, Inc. (“Horton”) on her claims of gender discrimination in

violation of the Equal Pay Act (“EPA”) and Title VII. In Case No. 09-2137,

Lewis also appeals the district court’s award of certain costs to Horton. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 

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2

General Background and Case History

In 1999, Lewis began working as an accounting manager in the New

Mexico Division of Horton. Horton is a home-building company with numerous

divisions in the United States, each with its own division president and

management staff. From 2001 until the spring of 2005, Lewis held the title of

Vice-President of Financial Operations/Division Controller in the New Mexico

Division. 

As Vice-President, Lewis was responsible for supervising the accounting

department in the New Mexico Division. During that time, the accounting

department consisted of “IT Systems, Human Resources Coordinator/Payroll,

Accounts Payable, and Contracts.” App. Vol. II at 333. In 2004, she hired an

Accounts Payable Manager and an Assistant Controller, who helped with

Horton’s conversion to a new software system. However, Mark Ferguson, the

New Mexico Division President, was not entirely supportive of Lewis’s decision

to hire an Assistant Controller. In addition to her supervisory duties, Lewis was

responsible for preparing various reports, including the Five-Year Budget

projections and Tract Pie, an analysis which was used to measure the cost of

buildings, land, and projected profit. Beginning in December 2004, Lewis also

prepared the Land Acquisition Funding Summary. 

In 2004, the New Mexico Division added two new positions: a Chief

Financial Officer (CFO) and a Senior Vice-President of Land. These positions

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3

were created after Horton’s corporate CEO insisted that each division upgrade its

teams in anticipation of future growth. Ferguson interviewed three male

candidates for the CFO position, including Dean Anderson. Anderson had twenty

years of experience in the home-building industry, including six years of

experience working as a CFO for two different home-building companies. At the

time of the interview, Anderson was employed by a competitor of Horton’s, and

he was earning over $120,000 in base salary. After a period of negotiations,

Ferguson hired Anderson as CFO, at a base salary of $120,000 per year, plus

bonus. In 2006, Anderson’s total compensation was $253,883. In 2004, Lewis’s

base salary was $56,000 per year, plus a bonus of $65,465.16. 

Anderson started working as CFO for the New Mexico Division in March

2005. He assisted Ferguson with Horton’s business operations, and he advised

Ferguson regarding construction, marketing, cost, infrastructure, and long-term

financial planning. Anderson also became responsible for the three reports that

Lewis was previously responsible for preparing; these reports took approximately

fifteen to twenty percent of his time. Lewis helped Anderson transition into his

responsibility for preparing these projects. Except for the preparation of those

reports, Lewis had the same job duties after Anderson was hired as she had

before, including being responsible for accounting reporting and supervising the

accounting staff. After Anderson was hired, Lewis’s title changed from “VicePresident/Division Controller” to “Controller.”

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1

 Horton had two bonus plans: a general bonus pool and a written bonus

plan. The written bonus plan was based on division performance and was subject

to change from year to year at Ferguson’s discretion. Lewis was on the written

bonus plan for the last quarter of fiscal year 2001, fiscal years 2002, 2003, and

2004, and the first quarter of fiscal year 2005.

4

On April 25, 2005, Lewis received a bonus of $1,000. She asked Anderson

why her bonus was much less than usual. The next day, Lewis met with Ferguson

and Anderson, and she was offered a reassignment to the land department. On

April 27, Ferguson wrote an e-mail to Lewis regarding her compensation in the

land department after Lewis asked why she was not on the bonus plan1

 starting in

January 2005. Ferguson told her that the bonus plan was always discretionary

and only for specific fiscal years. He further explained that because Horton hired

a CFO and she was no longer Vice-President/Division Controller, she would not

be on the bonus program after the first quarter—October through December 2004. 

Later that same day, Ferguson wrote another e-mail to Lewis stating that because

she did not want to be reassigned to the land department, the matter was “closed

and off the table.” App. Vol. II at 370. On April 28, Lewis submitted a letter of

resignation. She stated: 

I find I have no other choice since my job has been threatened if I do

not accept a much lower position as some sort of budget person in the

land department. I also was notified on Tuesday, April 26, 2005, that

I am no longer participating in the bonus program. Since I can only

construe this to mean that I no longer retain my position as controller,

I do hereby tender my resignation.

App. Vol. II at 373. The following day, Ferguson wrote an e-mail to Horton’s

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5

corporate account manager, stating: “We do not intend to replace the Controller

position at this time and feel that we are appropriately staffed at this time.” App.

Vol. II at 375. 

Lewis brought this action against Horton, alleging salary discrimination on

the basis of sex in violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1), and

employment discrimination in violation of Title VII, 42 U.S.C. § 2000e-2. 

Horton subsequently filed a motion for summary judgment. The magistrate judge

entered proposed findings and recommended that the district court grant Horton’s

motion for summary judgment on all claims. After Lewis filed various objections

to the magistrate’s report, the district court adopted the magistrate judge’s

recommendations and granted summary judgment for Horton.

Following the entry of summary judgment, Horton filed a motion with the

clerk of the court to tax costs of certain depositions. Lewis objected, arguing that

Horton had only submitted two depositions into evidence but was seeking costs

for additional depositions. The clerk allowed the depositions, taxing costs of

$5441.74 against Lewis and in favor of Horton.

Lewis sought review by the district court of the costs assessed, arguing that

four depositions were inappropriately taxed as costs because they were not

reasonably necessary to the litigation. She also contended that Horton was

awarded $2112.65 in costs for the copy of Chris Frandsen’s deposition transcript,

when the invoice indicated that the copy of the transcript cost only $324.90. The

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2

 The Federal Rules of Civil Procedure have been amended, effective

December 1, 2009. Citations are to the version of the rules in effect at the time of

the proceedings before the district court. 

6

district court concluded that all of the depositions were reasonably necessary to

the litigation because both parties used the depositions in their motions for

summary judgment, and the district court found them necessary in its ruling. The

district court then reviewed the $2112.65 costs for Frandsen’s transcript and

reduced the amount to $827.65 ($324.90 for actual transcripts and $502.75 for

deposition exhibits); the district court excluded the remainder, which was for

condensed transcripts, computerized transcripts, a video DVD, and shipping costs. 

 Lewis timely appealed the district court’s grant of summary judgment and

order taxing costs of depositions and deposition exhibits. We have consolidated

these two appeals for disposition. 

Case No. 09-2032

Lewis appeals the district court’s grant of summary judgment for Horton on

her EPA and Title VII claims. We review a district court’s grant of summary

judgment de novo. Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1310

(10th Cir. 2006). Summary judgment is appropriate if “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c).2

 “We view the evidence, and draw

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7

reasonable inferences therefrom, in the light most favorable to the nonmoving

party.” Mickelson, 460 F.3d at 1310.

As an initial matter, Horton contends that the firm waiver rule should bar

this appeal because Lewis failed to make specific objections to the magistrate

judge’s recommendations. “This court has adopted a firm waiver rule under

which a party who fails to make a timely objection to the magistrate judge’s

findings and recommendations waives appellate review of both factual and legal

questions.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).

Any objections “must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. 2121 E.

30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The firm waiver rule may be

excused “when (1) a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object, or when (2) the interests of

justice require review.” Morales-Fernandez, 418 F.3d at 1119 (internal quotation

omitted). 

After carefully reviewing the record, we conclude that Lewis has not

waived appellate review. Lewis submitted ten pages of objections to the

magistrate judge’s factual and legal conclusions. These objections were both

timely and “sufficiently specific to focus the district court’s attention on the

factual and legal issues that are truly in dispute . . . .” See 2121 E. 30th St., 73

F.3d at 1060. Thus, we turn to the merits of the issues presented on appeal. 

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8

A. Equal Pay Act

Lewis contends that the pay disparity between Anderson and Lewis violated

the Equal Pay Act. Pursuant to the EPA, 

[n]o employer . . . shall discriminate . . . between employees on the

basis of sex by paying wages to employees . . . at a rate less than the

rate at which he pays wages to employees of the opposite sex . . . for

equal work on jobs the performance of which requires equal skill,

effort, and responsibility, and which are performed under similar

working conditions, except where such payment is made pursuant to (I)

a seniority system; (ii) a merit system; (iii) a system which measures

earnings by quantity or quality of production; or (iv) a differential

based on any other factor other than sex . . . .

29 U.S.C. § 206(d)(1). 

There are two steps in our analysis of an EPA claim. “First, the plaintiff

must establish a prima facie case of discrimination by demonstrating that

employees of the opposite sex were paid differently for performing substantially

equal work.” Mickelson, 460 F.3d at 1311. If the plaintiff meets her prima facie

case, “the burden of persuasion then shifts to the defendant to prove that the wage

disparity was justified by one of four permissible reasons,” including “disparity

based on any factor other than sex.” Id. (emphasis and quotation omitted). 

“[B]ecause the employer’s burden in an EPA claim is one of ultimate persuasion,

in order to prevail at the summary judgment stage, the employer must prove at

least one affirmative defense so clearly that no rational jury could find to the

contrary.” Id. (quotation omitted). 

To meet her prima facie case, Lewis must provide evidence that she “was

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9

performing work which was substantially equal to that of employees of the

opposite sex, taking into consideration the skills, duties, supervision, effort and

responsibilities of the jobs.” Id. at 1311 n.5. “We do not construe the ‘equal

work’ requirement of the EPA broadly, and we have stated that failure to furnish

equal pay for ‘comparable work’ or ‘like jobs’ is not actionable.” Sprague v.

Thorn Americas, Inc., 129 F.3d 1355, 1364 (10th Cir. 1997). At the same time,

the jobs need not be identical, but rather, they must be “substantially equal.” 

Ammons v. Zia Co., 448 F.2d 117, 120 (10th Cir. 1971) (quotation omitted). 

Lewis has not met her prima facie case. Lewis contends that some of her

former duties became Anderson’s duties when he was hired as CFO. Lewis

directs our attention to Anderson’s testimony where he stated: “I took on a lot of

responsibilities that were part of the responsibility of the CFO position that, prior

to me starting, that [Lewis] was doing, yes.” App. Vol. II at 461. This is

insufficient to support a reasonable inference that she and Anderson performed

equal work. Although Anderson became responsible for preparing the three

reports that Lewis previously prepared, it is undisputed that those reports took

only fifteen to twenty percent of Anderson’s time. To satisfy her prima facie

showing, there must be evidence that she performed substantially all of the duties

of a higher-paid co-worker, and not simply that a higher-paid co-worker took over

some of her job duties. See Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098,

1119 (10th Cir. 2005) abrogated on other grounds by Burlington N. & Santa Fe

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10

Ry. Co. v. White, 126 S. Ct. 2405 (2006) (“[T]he record makes clear that while

Ms. Miller did perform some of the duties that were included in the newly created

post, she did not perform all of those duties. She simply has not made a prima

facie case that the jobs were substantially similar.”).

Horton’s regional CFO, Chris Frandsen, testified regarding the difference

between the division CFO and controller positions as follows: 

[T]he controller is responsible for the accounting team and the

personnel, the day to day activities and the things that they may do are

often task-oriented reports. Monthly issues to handle with clos[ing] or

review of budgets and things of that nature.

Whereas, the division CFO role is primarily strategic being a

business partner to the division president and handling forecasting and

issues that are less concrete than what the controller may handle. It is

more making estimates and assumptions and also trying to work within

the division and bridging all the different departments to bring the data

to the division president to help him make those [decisions].

. . .

Typically the controller becomes the person who has the longer

list of tasks. Whereas, oftentimes the division CFO spends their time

identifying needs within the division or helping to resolve those needs,

once identified, or if the division president of the department is having

issues with something that they are the person available to step in and

strengthen the controls and fix the process, whether it be operation[al]

or financial [in] nature. 

App. Vol. I at 186. 

Lewis contends that prior to Horton hiring Anderson, she met with the

Division President “daily to discuss and address not only financial, accounting,

and planning issues, but also operational issues involving construction, marketing,

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3

 On appeal, Lewis also relies on the testimony of another Horton

employee, Bill Allen, a former Vice-President/Division Controller in Tucson, who

became a CFO, and testified that “in general the job did not change significantly.” 

App. Vol. II at 477. However, Lewis has not directed our attention to any

evidence that Allen performed the same work as Lewis or as the CFO in the New

Mexico Division.

11

land acquisition, and infrastructure.” App. Vol. II at 330.3

 However, there is no

evidence in the record detailing any of these meetings, or how they compare to

the CFO’s responsibilities, as described above. Without any details or specific

facts, this general and vague statement is insufficient to create a triable fact

regarding equal work. See Piercy v. Maketa, 480 F.3d 1192, 1197–98 (10th Cir.

2007) (“When a party relies on affidavit evidence, it may be insufficient to create

a triable fact if it is nonspecific or otherwise non-responsive, vague, conclusory,

or self-serving.”). 

Lewis argues that “Horton did not put forth any competent evidence

showing ‘the full extent’ of Dean Anderson’s job duties.” Appellant’s Br. at 19. 

However, as plaintiff she bears the burden of meeting her prima facie case. See

Sprague, 460 F.3d at 1364. Although it may be difficult to provide evidence of

the job duties and responsibilities of management-level employees, it is

incumbent upon Lewis to produce evidence adequately detailing the jobs at issue. 

See Younts v. Fremont County, Iowa, 370 F.3d 748, 753 (8th Cir. 2004)

(employer was entitled to summary judgment because “Plaintiffs have not

produced evidence of [the higher-paid male employee’s] actual job duties, the

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4

 Because we conclude that Lewis did not meet her prima facie case under

her EPA claim, we do not address whether Horton is entitled to summary

judgment on its affirmative defense. 

12

skill, effort and responsibility associated with his job . . . or the working

conditions under which [he] fulfills his job duties.” (quotation omitted)). If the

evidence is so deficient that we cannot adequately compare the jobs at issue, then

Lewis has not met her prima facie case. See id.

We have found no evidence in the record that would allow a reasonable

factfinder to conclude that Lewis and Anderson performed substantially equal

work, and therefore, Lewis has failed to meet her prima facie showing. See

Miller, 420 F.3d at 1119. Accordingly, Horton is entitled to summary judgment

on Lewis’s Equal Pay Act claim.4

 

B. Title VII

The district court analyzed Lewis’s Title VII claims as alleging pay

discrimination, discriminatory demotion, and discriminatory discharge. When a

plaintiff relies on circumstantial evidence to prove discrimination, we apply the

familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under McDonnell Douglas, a plaintiff must first establish a

prima facie showing of discrimination. Id. at 802. “If the plaintiff makes such a

showing, the burden of production shifts to the [defendant] to state a legitimate,

nondiscriminatory reason for its adverse employment action.” Mickelson, 460

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5

 We note that Lewis did not bring a Title VII pay discrimination claim

under County of Washington v. Gunther, 452 U.S. 161 (1981), where an employee

in a unique position may bring a Title VII action even though there are no higherpaid, opposite-sex employees in an equal job. See Lloyd v. Phillips Bros., 25

F.3d 518, 525 (7th Cir. 1994) (“Even when jobs are not sufficiently similar to

constitute ‘equal work’ under the [EPA], a Title VII claim for wage

discrimination is not precluded.”). Instead, Lewis argues on appeal that she

performed work similar to Anderson. See Appellant’s Br. at 28 (“A prima facie

showing for ‘pay discrimination’ under Title VII consists of evidence that a

female employee performed work similar to that of the higher paid male.”).

13

F.3d at 1311 (quotation omitted). “If the [defendant] meets this burden, then

summary judgment is warranted unless the [plaintiff] can show there is a genuine

issue of material fact as to whether the proffered reasons are pretextual.” Id.

(quotation omitted). 

Lewis contends that the district court erred in concluding that she failed to

make her prima facie showing of her Title VII pay discrimination claim. In a

Title VII pay discrimination claim, “a prima facie showing of discrimination

consists of evidence that a female employee occupies a job similar to that of

higher paid males.”5

 Id. (quotation omitted). On appeal, Lewis simply repeats

her arguments from her EPA claim. For the same reasons as discussed above, we

conclude that Lewis has not met her prima facie showing that she and Anderson

occupied similar jobs. Moreover, even if she had made her prima facie showing,

she has not demonstrated that Horton’s proffered justifications were merely

pretextual, as discussed more fully below.

For purposes of this appeal, we assume that Lewis could meet her prima

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6

 The district court analyzed Lewis’s discriminatory demotion prima facie

showing under the following framework: “that she was: (1) within a protected

group, (2) adversely affected by defendant’s employment decision, (3) qualified

for the position at issue, (4) and that the job from which [s]he was demoted was

not eliminated.” App. Vol. I at 579 (citing Jones v. Denver Post Corp., 203 F.3d

748, 753 (10th Cir. 2000)). The district court analyzed Lewis’s discriminatory

discharge prima facie showing as follows: “(1) she belonged to a protected class;

(2) she was qualified for the position; (3) she was discharged; and (4) the position

was not eliminated after her discharge.” App. Vol. I at 574 (citing Adamson v.

Multi Cmty. Diversified Servs. Inc., 514 F.3d 1136, 1150 (10th Cir. 2008)). The

parties do not challenge the prima facie frameworks employed by the district

court.

7

 Horton also provided the justification that the CFO and controller were

two different positions. We understand this not as a nondiscriminatory

justification, but rather, as repeating the argument that Lewis was not similarly

situated to Anderson, i.e., that Lewis cannot meet her prima facie case. 

14

facie showing for her claims of discriminatory demotion and discriminatory

discharge.6

 Horton has provided legitimate, nondiscriminatory reasons for its

employment decisions: (1) Anderson was hired as CFO at a base salary of

$120,000 because of negotiations and market conditions, as well as Anderson’s

prior salary, experience, and skills; and (2) the New Mexico Division was large

enough to justify both a controller and a CFO.7

 

Lewis contends that these justifications are merely pretexts for

discrimination. Lewis can “demonstrate[] pretext by producing evidence of ‘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.’” Jaramillo

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15

v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (per curiam)

(quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)). Here, the

record does not support a reasonable inference that Horton’s proffered

justifications are unworthy of belief. 

We begin with Horton’s justification that its employment decisions were

based on Anderson’s experience and skills. Lewis avers that this justification is a

pretext for discrimination because she was just as qualified as Anderson, if not

more so. According to Lewis, she had been performing her job as Vice-President

at Horton for four years, she had more experience with Sarbanes-Oxley reporting,

and she trained Anderson to prepare the three reports. 

When determining whether a proffered justification is pretextual, “[t]he

relevant inquiry is not whether the employer’s proffered reasons were wise, fair

or correct, but whether [the employer] honestly believed those reasons and acted

in good faith upon those beliefs.” Rivera v. City and County of Denver, 365 F.3d

912, 924–25 (10th Cir. 2004) (alterations and quotation omitted). This is because

“[o]ur role is to prevent unlawful [employment] practices, not to act as a super

personnel department that second guesses employers’ business judgments.” 

Simms v. Oklahoma ex rel. Dep’t of Mental Health and Substance Abuse Servs.,

165 F.3d 1321, 1330 (10th Cir. 1999) (quotation omitted). Accordingly, “[w]e

must proceed with caution when considering the relative merits of individual

employees.” Jaramillo, 427 F.3d at 1308 (quotation omitted). 

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16

Generally, “an employee’s own opinions about [her] qualifications do not

give rise to a material factual dispute.” Simms, 165 F.3d at 1329 (10th Cir. 1999)

(quotation and alterations omitted). Instead, Lewis “must come forward with

facts showing an overwhelming disparity in qualifications” in order to support an

inference of pretext regarding Horton’s justification that Anderson had superior

experience and qualifications. See Johnson v. Weld County, Colo., 594 F.3d

1202, 1211 (10th Cir. 2010) (quotation omitted). According to the undisputed

evidence in the record, Anderson had nearly twice as much experience in the

home-building industry as Lewis: Anderson had been working in the industry for

approximately twenty years, whereas Lewis had been working in the industry for 

ten years. Further, Anderson had six years of experience as a CFO. Thus, based

on the evidence presented, Lewis does not come close to establishing an

“overwhelming” disparity in qualifications, i.e., that she was more qualified than

Anderson. 

Additionally, Lewis argues that Anderson’s salary was not based on

negotiations or market conditions, but that Ferguson “paid Dean Anderson what

he wanted to pay him.” Appellant’s Br. at 33. However, the record does not

support Lewis’s interpretation of Ferguson’s testimony. Ferguson explicitly

described how Anderson’s salary was based on their negotiations:

At the time that I interviewed Mr. Anderson in January of 2005, Mr.

Anderson wanted more than I wanted to provide for [his] salary, and

coming to the $120,000 figure was a negotiated process. I ended up

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17

with a figure for Mr. Anderson’[s] salary based on our negotiations,

market conditions, what Mr. Anderson made previously, and Mr.

Anderson’s work history and skills. . . . Because of Mr. Anderson’s

salary demands, I in fact negotiated over a significant period of time

from Mr. Anderson’s first job interview to when Mr. Anderson was first

hired because Mr. Anderson wanted more than I wanted to pay.

App. Vol. I at 277–78. In his deposition, Ferguson also testified as follows:

I knew that the general range that [Anderson] was at, I believe,

was in the low 100s. In fact, he might have been like in the 130s or

140s where he was currently at, on his salary with some other bonus

potential.

That was well above what I had in mind, and I believe it was

thirty days or more between the time we first met before an offer was

ever extended, because he was out of the range of where I wanted to be

on that position.

App. Vol. II at 440. Thus, Ferguson’s testimony supports Horton’s proffered

justification. There is no evidence in the record to contradict the suggestion that

the hiring decision was based on negotiations and market conditions.

 Further, Lewis contends that Horton’s justifications are post hoc

rationalizations because Horton never raised these arguments with the EEOC. 

However, Lewis’s contention is clearly contradicted by the record. Horton’s

position statement to the EEOC stated that Horton

was looking for someone with a Master’s degree or equivalent; or four

to ten years related experience and/or training in a CFO position; or

equivalent combination of education and experience. . . . In order to

garner Mr. Anderson, who was at the time gainfully employed with a

competitor of Horton, Mr. Ferguson had to engage in extensive

negotiations with Mr. Anderson over compensation, resulting in a

salaried position of $120,000 a year.

App. Vol. II at 395.

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8

 There are exceptions to this general rule, but none of them apply to the

case at bar. See Jaramillo, 427 F.3d at 1310 (“(1) the reasons are so intertwined

that a showing of pretext as to one raises a genuine question whether the

remaining reason is valid; (2) the pretextual character of one explanation is so

fishy and suspicious that a jury could find that the employer (or its

decisionmaker) lacks all credibility, (3) the employer offers a plethora of reasons,

and the plaintiff raises substantial doubt about a number of them; (4) the plaintiff

discredits each of the employer’s objective explanations, leaving only subjective

reasons to justify its decision; or (5) the employer has changed its explanation

under circumstances that suggest dishonesty or bad faith.”) (internal citations and

quotations omitted)).

18

Based on the undisputed evidence in the record, Anderson had considerably

more experience in the home-building industry than Lewis, including previous

experience as a CFO, and his salary was a result of extensive negotiations and his

prior salary. Thus, the record does not support a reasonable inference that

Horton’s justification was merely pretext for discrimination.

“[A]s a general rule, an employee must proffer evidence that shows each of

the employer’s justifications are pretextual.”8

 Tyler v. RE/MAX Mountain States,

Inc., 232 F.3d 808, 814 (10th Cir. 2000). Because the record does not support a

reasonable inference that this justification was pretextual, we may end our

analysis here. See id. Nonetheless, turning to Horton’s justification that the New

Mexico Division could support both a controller and CFO, there is no evidence

suggesting that this justification was pretext. 

According to Lewis, this justification is unworthy of belief because it is

contradicted by Ferguson’s statement in an e-mail that he was “having a hard time

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19

justifying the need for a CFO, Controller, Assistant Controller, and an Accounts

Payable Manager, all overseeing very few staff workers.” App. Vol. II at 370. 

This statement does not suggest that Horton’s justification is unworthy of belief. 

In context, Ferguson’s statements regarding staffing involved his concern that

Lewis’s department was overstaffed. Later in that e-mail, Ferguson stated:

“When you [Lewis] wanted to hire . . . an [Accounts Payable] Manager, I

questioned why the AP management could not be handled by the . . . Assistant

Controller, out of my expressed concern that you were building too much staff

below you while knowing that I intended to place a CFO above you.” App. Vol.

II at 370. The fact that Ferguson believed that four managers was overstaffing

the department does not contradict the statement that the department could

support two managers. 

Additionally, Lewis argues that there is other evidence of discriminatory

intent. Lewis contends that in the New Mexico Division the base pay for male

vice-presidents ranged from $75,000 to $145,000, and the base pay for female

vice-presidents ranged from $56,000 to $65,000. Although statistical data may be

used to show pretext, “in order to create an inference of pretext, a plaintiff’s

statistical evidence must focus on eliminating nondiscriminatory explanations for

the disparate treatment by showing disparate treatment between comparable

individuals.” Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1115 (10th Cir.

2007) (quotation omitted). Thus, statistical evidence must compare employees

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who are “similarly situated.” See id. But there is no evidence in the record

regarding who these vice-presidents were, their responsibilities, skills,

qualifications, or experience. Accordingly, this alleged pay disparity is

insufficient to support an inference of discriminatory intent. 

Lewis also argues that Ferguson called her “Aunt Bea” on a regular basis. 

However, such isolated and ambiguous comments, without any details, are by

themselves insufficient to create a genuine issue as to unlawful discrimination. 

See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000) (“[I]solated

or ambiguous comments may be, as here, too abstract to support . . . an inference”

of discrimination. (quotation omitted)). Because there is no genuine issue as to

pretext, Lewis’s Title VII claims cannot survive summary judgment.

Case No. 09-2137

Lewis also appeals the district court’s order taxing costs of various

depositions and deposition exhibits to Lewis. Specifically, Lewis contends that

the district court erroneously taxed as costs the depositions of Andrew Lewis,

Mark Ferguson, Bill Allen, and Tamera Jensen. Lewis argues that these expenses

could not be taxed as costs because the district court did not cite or quote these

depositions in its order granting summary judgment.

We review the district court’s award of costs only for an abuse of

discretion. In re Williams Sec. Litigation-WCG Subclass, 558 F.3d 1144, 1148

(10th Cir. 2009). “The costs statute [28 U.S.C. § 1920] allows a judge or clerk of

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 The New Mexico District Court Local Rules of Civil Procedure provide: 

A deposition is reasonably necessary to the litigation when:

(A) a substantial portion of the deposition is admitted into

evidence or used at trial for impeachment purposes;

(B) the deposition is used by the Court in ruling on a motion

for summary judgment; or

(C) the Court so determines.

D.N.M. Local R. 52.4(b)(2). 

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any court of the United States to tax costs for transcripts and copies ‘necessarily

obtained for use in the case.’” Id. at 1147. Whether materials were “necessarily

obtained for use in the case is a question of fact that we review only for clear

error.” Id. at 1149 (quotation omitted). Additionally, “[w]e review a district

court’s application of its local rules for an abuse of discretion.” Amundsen v.

Jones, 533 F.3d 1192, 1197 (10th Cir. 2008).

“To be recoverable, a prevailing party’s transcription and copy costs must

be reasonably necessary to the litigation of the case.” Williams Sec., 558 F.3d at

1148 (quotation omitted). The district court ruled that costs for these depositions

were appropriate under Local Rule 54.2(b)(2)(B) and (C).9

 The district court

found that “[a]ll of the depositions for which costs were awarded were used by

the parties and discussed by both sides in the course of briefing the motion for

summary judgment. . . . Even though Horton did not attach [Ferguson’s]

deposition to its motion for summary judgment, nevertheless the Court found it

necessary to use the deposition in its ruling.” Appellant’s App. at 25. Lewis

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argues that under the Local Rules, depositions are “reasonably necessary to the

litigation” only when they are “used by the Court,” which requires the district

court to quote or cite to that deposition. Appellant’s Br. at 6. This argument is

without merit. The Local Rules provide that “[a] deposition is reasonably

necessary to the litigation when . . . [it] is used by the Court in ruling on a motion

for summary judgment; or . . . the Court so determines.” D.N.M. Local R.

54.2(b)(2) (emphasis added). Thus, the local rules plainly do not require

depositions to be quoted or cited by the district court.

Further, Lewis’s interpretation is not supported by the costs statute, 28

U.S.C. § 1920. See Williams Sec., 558 F.3d at 1149 (rejecting the argument “that

a district court may only award costs for depositions the district court actually

used in deciding summary judgment”). “Our cases establish that if deposition

transcripts or copies were offered into evidence, were not frivolous, and were

within the bounds of vigorous advocacy, costs may be taxed.” Id. at 1148

(quotations omitted). There is no indication that the depositions were frivolous or

otherwise inappropriate, and accordingly, costs were properly taxed. Thus, the

district court did not abuse its discretion in awarding costs for these depositions.

Lewis also argues that certain deposition exhibits should not have been

taxed as costs. Lewis did not argue before the district court that deposition

exhibits are not taxable as costs because they were prepared only for the

convenience of counsel. Therefore, we do not address that argument on appeal. 

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See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1475 (10th Cir. 1997)

(declining to address argument regarding taxation of deposition exhibits where

party failed to raise the issue before the district court). Even if we were to

address Lewis’s argument, she has not demonstrated that the district court abused

its discretion. Lewis has offered no support for her claim that the deposition

exhibits were made for the convenience of counsel. Instead, Lewis relies on other

district court decisions concluding that deposition exhibits were made for the

convenience of counsel in those particular cases. But it does not follow that the

exhibits in the case at bar were made for convenience of counsel or that the

district court otherwise abused its discretion. 

We AFFIRM the district court’s grant of summary judgment on Lewis’s

EPA and Title VII claims. We also AFFIRM the district court’s order assessing

costs.

Entered for the Court

Mary Beck Briscoe

Circuit Judge 

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