Salemi v. Colo. Pub. Employees' Ret. Ass'n

ELHAM SALEMI, Plaintiff - Appellant, v. COLORADO PUBLIC EMPLOYEES' RETIREMENT ASSOCIATION;TIM MOORE, in his official and individual capacities;ANGELA SETTER, in her official and individual capacities, Defendants - Appellees.

No. 17-1085

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

August 17, 2018

(D.C. No. 1:13-CV-02826-WYD-CBS)

(D. Colorado)

ORDER AND JUDGMENT^*

Before HARTZ, MURPHY, and McHUGH, Circuit Judges.

Elham Salemi brought this action against the Colorado Public Employees' Retirement Association ("PERA"), and individual employees of PERA, raising claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981; the First Amendment, the Family and Medical Leave Act ("FMLA"), and the Equal Pay Act ("EPA"). The district court granted summary judgment on all of Ms. Salemi's claims, except the EPA claim as against PERA. The district court alsodenied Ms. Salemi's requests that the jury be instructed on an EPA retaliation claim, in addition to the EPA wage discrimination claim included in the final pre-trial order. The district court denied the requests, and the jury returned a verdict in favor of PERA on the EPA wage discrimination claim.

On appeal, Ms. Salemi challenges the district court's grant of summary judgment on her (1) Title VII claims for discrimination and retaliation; (2) 42 U.S.C. § 1981 retaliation claim; (3) First Amendment retaliation claim; and (4) FMLA retaliation claim. Ms. Salemi also challenges the district court's denial of her requests to submit an EPA retaliation claim to the jury. We affirm the district court's grant of summary judgment on the claims before us on appeal and conclude that the district court did not abuse its discretion in denying Ms. Salemi's requests to submit an EPA retaliation claim to the jury.

I. BACKGROUND

A. Ms. Salemi's Employment at PERA

1. Overview of Employment History Through January 2011

In 2004, PERA hired Ms. Salemi as a temporary intern in its Alternative Investments ("AI") Division. Ms. Salemi's starting salary was $27,040. Defendant Tim Moore was involved in the hiring process and Chris Reilly served as Ms. Salemi's immediate supervisor. At all times relevant, Jennifer Paquette served as Chief Investment Officer at PERA and was the supervisor for the head of the AI Division.

In September 2004, PERA promoted Ms. Salemi to a permanent Portfolio Associate position, with an annual salary of $50,000. According to Ms. Salemi, in late2006, her then-supervisor, Mr. Reilly, discussed the possibility of promoting her to the position of Analyst. But Mr. Reilly was leaving PERA and Ms. Paquette decided to select a replacement for Mr. Reilly before promoting Ms. Salemi. In February 2007, PERA selected Mr. Moore to head the AI Division, and he assumed a supervisory role over Ms. Salemi. Mr. Moore did not immediately promote Ms. Salemi to the position of Analyst. In January 2008, PERA gave Ms. Salemi a merit-based raise, resulting in an annual salary of $61,166. Six months later, in June 2008, Mr. Moore promoted Ms. Salemi to the position of Analyst, eventually resulting in an annual salary of $80,000 for 2009. As of January 2011, Ms. Salemi remained in an Analyst position as a grade 13P employee, with an annual salary of $90,400. The other Analyst in the AI Division, Dave Saunders, was also a grade 13P employee and had an annual salary of $90,900.

2. Ms. Salemi's Performance at PERA & Her Complaints of Discrimination

PERA conducted performance appraisals on a yearly basis. Mr. Reilly served as the appraiser relative to Ms. Salemi's performance in 2005 and 2006, and Mr. Moore served as the appraiser thereafter. Ms. Salemi's appraisers gave her an overall ranking of "fully successful," which equated to a rating of four out of five, for her performance in 2006 through 2011.

Elements of Ms. Salemi's yearly performance appraisals, however, were less favorable and noted a need for her to voice opinions at meetings and to develop communication and interpersonal skills. In the 2006 appraisal, Mr. Reilly identified "communication skills" as a "development focus" and noted that Ms. Salemi had "a slight tendency to hold back her opinions" and "should continue to gain confidence inverbalizing and defending her ideas to the team." App'x at 687, 690. In the 2007 appraisal, Mr. Moore indicated that Ms. Salemi should "take more initiative." Id. at 699, 702. And in the 2008 evaluation, Mr. Moore indicated that Ms. Salemi's "focus in the coming year should be to expand her knowledge base in Alternative Investments, contribute more to Investment Committee meetings, communicate her thoughts to the team, [and] continue to develop relationships outside of PERA." Id. at 716. Mr. Moore also identified "initiative/action orientation" as a "development focus," stating that Ms. Salemi "is very responsible in her dailey [sic] duties and in special requests. I would like to see her be more aggressive in analyzing the portfolio. She definitely has the skills to analyze the market and our portfolio in ways that could provide interesting debate within the team." Id. at 710-11. Similar notations about Ms. Salemi's need to take initiative and verbalize her opinions in meetings can be found in her 2009 and 2010 appraisals.¹

In March 2011, Ms. Salemi met with Mr. Moore and sought a promotion to the position of Portfolio Manager. Some of the qualifications for the Portfolio Manager position, as identified in the job description, included: (1) "[e]valuates, recommends and makes appropriate investment decisions based on fundamental, quantitative and economic research and analysis, conducts extensive reference checks and legal andbusiness negotiations"; (2) "[e]nsures compliance with investment agreements, analyzes partnership agreements, and coordinates activity with investment counsel"; and (3) "[m]aintains relationship base with current and potential investment partners and peer groups by serving on advisory committees." Id. at 668. The job description also indicated that the position required: (1) "[k]nowledge of financial and capital markets, concepts, principles, and theories"; (2) "[a]bility to understand, interpret and analyze balance sheets, income statements and cash flow statements"; and (3) "[s]trong oral and written communication skills." Id.

Mr. Moore rejected the idea of promoting Ms. Salemi on the grounds that Ms. Salemi lacked the necessary communication skills and was not sufficiently assertive or confrontational to serve as a Portfolio Manager.² Mr. Moore further opined that Ms. Salemi had not improved her communication skills, had not become more involved in team meetings, and had not taken advantage of mentoring opportunities. According to Ms. Salemi, Mr. Moore indicated that she "was not confrontational and it was not [her] forte to be on a portfolio manager track." Id. at 612.

During her March 2011 meeting with Mr. Moore, Ms. Salemi also expressed displeasure with the job duties he was assigning her. Ms. Salemi believed she was being assigned a disproportionate number of operational tasks compared to other AI Division members. Mr. Moore rejected her request to reduce her operational tasks, noting that her performance of operational tasks—such as cash flow activities—reduced conflicts and personnel issues both in the AI Division and at PERA more generally.

Following the March 2011 meeting, Mr. Moore spoke with Defendant Angela Setter, the Human Resources Director at PERA, about providing Ms. Salemi with opportunities to improve her communication and interpersonal skills. In May 2011, Ms. Salemi met with Ms. Setter. Ms. Salemi arrived at the meeting with the intent to file a formal written complaint about the job duties assigned to her by Mr. Moore. Ms. Setter's notes from the meeting indicate Ms. Salemi said "she was being treated differently than the rest of the male employees in her division." Id. at 800. After Ms. Setter suggested to Ms. Salemi that the filing of a formal written complaint might "create an adversarial situation," Ms. Salemi decided against submitting the complaint. Id. at 528. Instead, Ms. Salemi, at Ms. Setter's suggestion, agreed to work on improving her communication skills by taking communication classes.

On June 3, 2011, Ms. Salemi, Mr. Moore, and Ms. Setter met to discuss Ms. Salemi's employment plan for 2011 and the assignment of operational tasks. During the meeting, Ms. Salemi complained that Mr. Moore had recently stated that he "d[id] not want to force the guys to work with [her]." Id. at 797. Following the meeting, Ms. Salemi signed up for a conference that, in her words, was "designed for professional women andhow they should improve their communication skills at work." Id. at 462. Via an e-mail, Ms. Salemi also expressed appreciation for Ms. Setter's "help and support." Id.

On June 28, 2011, after another meeting with Ms. Setter, Ms. Salemi submitted a formal written complaint. In pertinent part, the complaint, dated May 16, 2011, read:

Dear Angela,

. . . .

As you may know, I joined the Alternative Investments team as an intern in May of 2004 and began working as an associate in September of 2004. I was promoted to an analyst in 2008, but only after I complained to [Ms. Paquette] that [Mr. Moore] should have, but did not, promote me. I would like to progress within the company to Portfolio Manager, but [Mr. Moore] is again holding me back and telling me that he does not see me as a Portfolio Manager.

I have been dedicated to my work, and my performance proves my competence, stability, and work ethics [sic]. If you examine my past annual performance appraisal, you will find that I have been described as a team player with a positive attitude. I have had a high level of interest in learning about alternative asset class [sic]. I also brought a wealth of quantitative knowledge with me to PERA. I am confident that I have exhibited the highest work standards and my performance has been consistent in the past seven years.

I'd like

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