Robertson v. Mylan Laboratories, Inc.

Annotate this Case
Robertson v. Mylan Laboratories, Inc. (2001-466); 176 Vt. 356; 848 A.2d 310

2004 VT 15

[Filed 06-Feb-2004]
[Motion for Reargument Denied 8-Mar-2004]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 15

                                No. 2001-466


  Lynne Robertson	                         Supreme Court

                                                 On Appeal from
       v.	                                 Franklin Superior Court


  Mylan Laboratories, Inc., Bertek, Inc. 	 June Term, 2002
  and Sharad Govil


  Ben W. Joseph, J.


  Andrew Jackson, Middlebury, for Plaintiff-Appellant.

  Patricia M. Sabalis of Downs Rachlin Martin PLLC, Burlington, and Kathryn
    Mrkonich-Wilson of Littler Mendelson, P.C., Minneapolis, Minnesota, for
    Defendants-Appellees.


  PRESENT:  Amestoy, C.J., Dooley, Morse (FN1), Johnson and Skoglund, JJ.


       ¶  1.  DOOLEY, J.   In this workplace gender discrimination case
  brought under the Vermont Fair Employment Practices Act, 21 V.S.A. §§
  495-496, plaintiff Lynne Robertson appeals the superior court's grant of
  summary judgment in favor of defendants Mylan Laboratories, Inc., Bertek,
  Inc., and Sharad Govil.  Plaintiff claims that defendants discriminated
  against her by failing to promote her, by giving her a low level of pay
  relative to her male peers at the company, and by terminating her in
  retaliation for her gender discrimination complaint.  We affirm.
   
                    I. Facts and Procedural History (FN2)

       ¶  2.  Plaintiff was employed as a scientist in the Research and
  Development Division at Bertek, Inc. (now known as Mylan Technologies,
  Inc.), a St. Albans-based pharmaceutical company that develops and
  manufactures transdermal (through the skin) drugs.  Bertek is a subsidiary
  of Mylan Laboratories, Inc.  Plaintiff was hired by Bertek in September
  1993 after interviewing with Dr. Ludwig Weimann and Dr. Sharad Govil. 
  According to Govil, he supported hiring plaintiff, although plaintiff
  disputes that fact.  At that time, plaintiff held a B.S. degree in biology
  and a master's degree in biochemistry, and had previous experience in the
  pharmaceutical industry and drug formulation, but had no prior educational
  or work experience in transdermal drug development. Throughout her career
  at Bertek, she worked directly or indirectly under Govil, who is now
  General Manager of Bertek.

       ¶  3.  In 1994, while working full-time at Bertek, plaintiff began
  taking courses in pharmacology at the University of Vermont in pursuit of
  her doctoral degree, with Govil's approval. Plaintiff claims that Govil
  initially did not wish to approve her education, and did so only after she
  went to higher management with her request.  Regardless, Govil twice
  approved plaintiff's request for a flexible work schedule, and also
  approved Bertek's payment of her tuition.  Plaintiff completed the course
  requirements for the Ph.D. at the end of 1995. 
   
       ¶  4.  Plaintiff worked under Govil in 1994 and 1995, and was
  promoted twice during that time, first to Senior Scientist in May 1995 at a
  salary of $46,275, then to Manager of Permeation and Dissolution in July
  1995 at a salary of $52,000.  In late 1996, plaintiff asked Govil to
  transfer her to the Formulations Group because she did not like the way she
  was being treated by her supervisor.  Govil granted this request, and
  plaintiff became Manager of Permeation in the Formulations Group. 

       ¶  5.  Despite the promotions and the discretionary transfer Govil
  approved, during 1997 and early 1998 plaintiff complained to several Bertek
  personnel that Govil treated her unfairly because of her gender.  She
  claims that Dr. Scott Burton, Manager of Formulations and plaintiff's
  immediate supervisor, indicated to her that he agreed with her, and that
  Interim President Lou Debone and General Manager Matthew Costigan told her
  that Govil's actions were due to his "cultural differences" with respect to
  the treatment of women.  Also during that period, several scientists in the
  Research and Development department, including Burton, left Bertek. 
  Plaintiff claims that many of those employees - most of whom were male -
  left because they were dissatisfied with Govil's style and management.  

       ¶  6.  The events underlying much of this case relate to Govil's
  actions in response to the departure of Burton and others.  Govil proposed
  to upper management to split the Formulations Group into two groups: drug
  delivery and polymer science.  In response to problems with drugs under
  development, he proposed to upgrade the scientific ability of the staff
  leaders in product development.  As the restructuring was approved in
  February of 1998, the Manager of Formulations position was eliminated, and
  a new position of Director of Research and Development created.  The
  positions of Supervisor of Drug Delivery and Supervisor of Polymers were
  created to report to the new research and development director.
   
       ¶  7.  While the restructuring was going on, Govil announced an
  interim organization.  On January 21, 1998 he made plaintiff interim head
  of formulations while she continued to serve as Manager of Permeations. 
  Govil asserts that this promotion was due to plaintiff's seniority,
  although plaintiff claims that Govil never conveyed that reason to her. 
  Govil drafted job descriptions for two new supervisor positions.  For the
  position of Supervisor of Drug Delivery, the job description required a
  Ph.D. in Pharmaceutics, Material Science, or Chemical Engineering, as well
  as five years of transdermal formulations experience.

  ¶  8.  Consistent with the view that Bertek needed to upgrade the
  scientific skills of key employees in product development, Govil initiated
  a search for qualified persons.  He identified Dr. Kenneth Miller as the
  most likely candidate for Supervisor of Drug Delivery, based on an
  interview in January, 1998 before the position was approved.  Govil posted
  the Supervisor of Drug Delivery position on February 13, 1998, and shortly
  after the application closing date, one week later, hired Dr. Miller.

       ¶  9.  Plaintiff believes that she should have been hired as
  Supervisor of Drug Delivery and she was rejected because she is a woman. 
  She alleges a number of "irregularities" in the hiring of Dr. Miller:

    1.  He was interviewed before the job was even created.  In
    plaintiff's view, this process violated a policy requiring that
    open positions be posted and that internal candidates be
    interviewed before external candidates.
    2.  The job description was created to mirror Dr. Miller's
    qualifications, rather than the reverse.
    3.  The opening was posted on Friday in violation of a policy
    requiring posting on Wednesday and was open for a week for which
    Govil believed plaintiff would be on vacation.
    4.  Bertek had on other occasions waived minimum education
    requirements for applicants who were close to having the needed
    education qualifications.  Govil refused to waive the minimum
    qualifications in plaintiff's case.
    5.  Miller was unqualified because he lacked industrial
    experience, which is generally favored at Bertek; during the
    interview process, Miller stated that "getting drugs to go through
    skin" was not his area of expertise. 

       ¶  10.  Plaintiff submitted an application for the Supervisor of Drug
  Delivery position on February 19, and the next day met with Govil for over
  an hour to discuss the position.  According to defendants, Govil did not
  believe that plaintiff was qualified for the position due to her lack of a
  Ph.D. and the requisite five years of transdermal formulations experience. 
  In contrast, Miller held a B.S. and a Ph.D. in Chemical Engineering, had
  worked for a successful competitor as well as several universities where he
  had performed transdermal drug research work for private corporations, and
  had authored publications and made numerous presentations on transdermal
  drugs. 

         ¶  11.  Plaintiff was subsequently told that she was being promoted
  and that her salary would be increased to $60,000 (approximately $4,000
  more than she was being paid at the time).  The exact position that
  plaintiff was promoted to is disputed.  Plaintiff claims that her new title
  was to be Senior Manager of Projects, and that she was to be in charge of
  all of the corporation's projects.  She contends that this promotion was
  inexplicably delayed, and that her new pay was substantially less than the
  $80,000 that other staff at that level - specifically, new Supervisor of
  Drug Delivery Miller - were receiving.  Defendants respond that, after
  plaintiff had submitted a proposed job description, defendants provided
  plaintiff with a revised position description stating that her title would
  be Project Manager and that her salary would be $60,000.  Defendants also
  claim that plaintiff was told that there would be a transition period as
  she wrapped up work on her other projects. 
   
       ¶  12.  In May 1998, plaintiff filed a formal complaint with Bertek,
  claiming that she was denied the Supervisor of Drug Delivery position, the
  Senior Manager of Projects title, and an $80,000 salary due to her gender. 
  Plaintiff alleges that as a result of her complaint, she was treated
  unfairly by Govil and other Bertek personnel.  The Human Resources
  department subsequently conducted an investigation of the complaint and
  ultimately found that plaintiff had not been subject to unfair or
  discriminatory treatment.  In July 1998, plaintiff filed a charge of gender
  discrimination with the Vermont Attorney General and the Equal Employment
  Opportunity Commission (EEOC). Following an investigation, the EEOC
  concluded that there was no evidence to suggest that plaintiff had been
  discriminated against based on her gender or retaliated against for filing
  a complaint, and dismissed her charge. 

       ¶  13.  Plaintiff continued to work for Bertek as Project Manager,
  even after she filed the current lawsuit in Franklin County Superior Court
  in July 1999.  Finally, in February 2000, plaintiff was terminated for
  breach of her confidentiality agreement with Bertek for alleged
  dissemination, via a resume submitted to a recruiter, of information
  regarding projects she had worked on for the company.  Plaintiff contends
  that none of the information found on the resume was detrimental to the
  company and that other employees had divulged similar types of information
  and had not been punished.  She added to this litigation a count that
  defendants retaliated against her for her complaint to the Vermont Attorney
  General and the filing of this case.
   
       ¶  14.  As amended after plaintiff was terminated, the complaint in
  this case had three counts: (1) defendants Govil, Bertek and Mylan
  Laboratories committed unlawful employment practices in violation of the
  Vermont Fair Employment Practices Act (FEPA), 21 V.S.A. § 495 et seq., in
  failing to hire plaintiff as Supervisor of Drug Delivery; (2) defendants
  committed unlawful employment practices in violation of FEPA by actions
  against plaintiff taken in retaliation for her complaints of gender
  discrimination directly to defendants and to the Attorney General; and (3)
  defendants committed unfair employment practices in violation of Title VII
  of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., by all the above
  actions.  In response to a motion by defendants, the trial court rendered
  summary judgment for defendants on all counts on July 31, 2001.  Plaintiff
  subsequently brought this appeal contesting the dismissal of the two FEPA
  counts.

                        II. Summary Judgment Standard

       ¶  15.  On review of a grant of summary judgment, this Court will
  apply the same standard as that used by the trial court.  White v. Quechee
  Lakes Landowners' Ass'n, Inc.,170 Vt. 25, 28, 742 A.2d 734, 736 (1999). 
  Summary judgment will be granted if "the pleadings, depositions, answers to
  interrogatories, and admissions on file, together with the affidavits, if
  any, . . . show that there is no genuine issue as to any material fact and
  that any party is entitled to judgment as a matter of law."  V.R.C.P.
  56(c)(3).  In determining whether there is a genuine issue as to any
  material fact, we will accept as true the allegations made in opposition to
  the motion for summary judgment, so long as they are supported by
  affidavits or other evidentiary material.  Quechee Lakes Landowners' Ass'n,
  170 Vt. at 28, 742 A.2d  at 736.  Further, the nonmoving party receives the
  benefit of all reasonable doubts and inferences.  Samplid Enters., Inc. v.
  First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996).  Nevertheless,
  the opponent to a summary judgment motion cannot simply rely on mere
  allegations in the pleadings to rebut credible documentary evidence or
  affidavits, Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375 (1981), but must respond with specific facts that would justify
  submitting her claims to a factfinder.  V.R.C.P. 56(e); State v. G.S.
  Blodgett Co., 163 Vt. 175, 180, 656 A.2d 984, 988 (1995).  If such facts
  are contained in affidavits, these affidavits must be made on personal
  knowledge and set forth facts that would be admissible in evidence. 
  V.R.C.P. 56(e).

                        III. Failure to Promote Claim
   
       ¶  16.  We first address plaintiff's FEPA claim of discrimination for
  failure to promote her.  Under FEPA, it is "an unlawful employment practice
  . . . [f]or any employer, employment agency or labor organization to
  discriminate against any individual because of race, color, religion,
  ancestry, national origin, sex, sexual orientation, place of birth, or age
  or against a qualified individual with a disability."  21 V.S.A. §§ 
  495(a), (a)(l).  The standards and burdens of proof to be applied under
  FEPA are identical to those applied under Title VII of the United States
  Civil Rights Act.  See Hodgdon v. Mt. Mansfield Co., Inc., 160 Vt. 150,
  161, 624 A.2d 1122, 1128 (1993).

                         A. The Applicable Framework

       ¶  17.  Plaintiff's first claim of error is that the trial court
  applied the wrong burden allocation framework.  Plaintiff argues that since
  she presented direct evidence - in particular, alleged comments made to her
  or her husband (FN3) by senior officers at Bertek - that gender played a
  motivating factor in defendants' decision not to promote her, the two-step
  framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 241-44 (1989)
  should apply, rather than the three-step burden shifting analysis of
  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) that the
  trial court applied.  Defendants counter that the evidence presented is
  insufficient to trigger the Price Waterhouse analysis, and that the trial
  court correctly applied the McDonnell Douglas framework.  We agree with
  defendants that the McDonnell Douglas analysis was the correct framework to
  apply in this case.
   
       ¶  18.  This Court has adopted both the Price Waterhouse and the
  McDonnell Douglas frameworks.  Hodgdon, 160 Vt. at 161, 624 A.2d  at 1128. 
  The Price Waterhouse framework "is invoked when the plaintiff initially
  establishes that her sex played a motivating part in an employment
  decision."  Id; see also Graff v. Eaton, 157 Vt. 321, 324-25, 598 A.2d 1383, 1384-85 (1991).  If such direct evidence of discrimination is
  presented, "the burden of persuasion then falls upon, and remains with, the
  employer to prove 'by a preponderance of the evidence that it would have
  made the same decision even if it had not taken the plaintiff's gender into
  account.' "  Graff, 157 Vt. at 324, 598 A.2d  at 1384 (quoting Price
  Waterhouse, 490 U.S. at 258).  If the plaintiff presents only
  circumstantial evidence of discrimination, however, the three-step burden
  shifting analysis of McDonnell Douglas is applied.  Hodgdon, 160 Vt. at
  162, 624 A.2d  at 1129.  Under McDonnell Douglas, in contrast to the
  analysis under Price Waterhouse, "[t]he ultimate burden of persuading the
  trier of fact that the defendant intentionally discriminated against the
  plaintiff remains at all times with the plaintiff."  Tex. Dep't of Cmty.
  Affairs v. Burdine, 450 U.S. 248, 253 (1981).

       ¶  19.  Plaintiff relies particularly on four statements, three to her
  and one to her husband, that she or her husband testified to in their
  respective depositions.  Three of these precede Govil's actions in creating
  and filling the position of Supervisor of Drug Delivery.  Apparently,
  plaintiff was complaining about Govil's treatment of her to her supervisor,
  Scott Burton, to the interim President of Bertek, Lou Debone, and to the
  General Manager of Bertek, Matthew Costigan.  Plaintiff alleges that when
  she asked why Govil unfairly treated her, both Debone and Costigan answered
  it was because of "cultural differences."  She alleges that when she asked
  Burton if Govil unfairly treated her because she is a woman, he answered
  "there's some of that."  The fourth, by Costigan to plaintiff's husband, is
  alleged to have come after Dr. Miller was hired.  Again, Costigan
  attributed Govil's treatment to cultural differences and when asked if that
  meant that it was because plaintiff is a woman, "He didn't answer, but he
  winked and nodded his head to me and pointed like that in an affirmative
  action."
   
       ¶  20.  We do not believe these statements meet the strict
  requirement of direct evidence set out in Price Waterhouse.  Neither "stray
  remarks in the workplace . . . [n]or . . . statements by nondecisionmakers,
  [nor] statements by decisionmakers unrelated to the decisional process
  itself" will be considered as direct evidence of an employer's
  discriminatory intent.  Price Waterhouse, 490 U.S.  at 277 (O'Connor, J.,
  concurring); EEOC v. Liberal R-II Sch. Dist., 314 F.3d 923, 923 (8th Cir.
  2002); Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.2 (3d Cir. 2002);
  Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 581 (lst Cir. 1999);
  see also 1 L. Larson, Employment Discrimination § 8.07[3], at 8-87 (2d ed.
  2003) ("A statement will not be considered direct evidence of an employer's
  discriminatory intent if it is made by an individual who was not a
  participant in the decision-making process.").
   
       ¶  21.  Plaintiff does not dispute that neither Costigan, Debone nor
  Burton - despite their high positions within Bertek - was part of the
  decision not to promote her.  The alleged comments to plaintiff did not
  describe these administrators' own decision-making process, but were
  instead mere speculation as to Govil's state of mind during his decision
  making.  At least three of the statements were about other actions of
  Govil, not the decision to hire Ken Miller as Supervisor of Drug Delivery. 
  The statements are insufficient as direct evidence of discrimination. 
  Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 397 (7th Cir. 1997)
  (statements made by non-decision maker amount to mere speculation as to
  thoughts of decision maker, and do not provide "smoking gun" evidence
  required for direct inference of discriminatory intent); Edwards v.
  Schlumberger-Well Serv., 984 F. Supp. 264, 275 (D.N.J. 1997) (statements by
  non-decision maker that plaintiff was terminated because she was female
  were not "discriminatory statements made in the decisionmaking process, but
  rather were statements about discriminatory views that were held by
  decisionmakers" and therefore were insufficient to satisfy burden in a
  mixed-motive analysis); see also Taylor v. Va. Union Univ., 193 F.3d 219,
  232 (4th Cir. 1999) (statement that police chief would never send a female
  to the academy did not "bear directly on the contested employment decision"
  so as to trigger a mixed motive standard of liability) (internal quotations
  omitted); Kneibert v. Thomson Newspapers, Mich. Inc., 129 F.3d 444, 452-53
  (8th Cir. 1997) (statement by person with no decision making authority that
  plaintiff "was not terminated because of his ability or his quality of work
  but because of a [sic] litigation that he is involved in" did not
  constitute direct evidence) (internal quotations omitted);  Mooney v.
  Aramco Serv. Co., 54 F.3d 1207, 1218 (5th Cir. 1995) (statements by
  non-decision maker that plaintiff had a "good case of age discrimination"
  and that it "must have been your age" did not provide direct evidence of
  age-related animus) (internal quotations omitted); Ahrens v. Perot Sys.
  Corp., 39 F. Supp. 2d 773, 781 (N.D. Tex. 1999) (statements by supervisor
  and fellow employees might be sufficient to infer a discriminatory motive,
  but were insufficient to constitute direct evidence of discrimination under
  mixed-motive analysis).


       ¶  22.  Plaintiff urges that we look at the remaining evidence, much
  of it set forth in the statement of facts above and discussed later in this
  opinion, as direct evidence that gender discrimination motivated Govil's
  action.  To the extent the evidence involves the hiring decision, it does
  not show directly that plaintiff's gender was a motivating factor in that
  decision.  To the extent the evidence goes to what plaintiff characterizes
  as an abusive working environment for women in the company, it is not
  related sufficiently to the hiring decision to invoke the Price Waterhouse
  standard.

                      B. The McDonnell Douglas Analysis
   
       ¶  23.  Plaintiff next claims that the trial court erred in finding
  that she failed to make out a prima facie case as required by McDonnell
  Douglas.  Defendants argue that the court was correct in finding that
  plaintiff had not made out her prima facie case, and, even so, plaintiff
  failed to demonstrate that Bertek's justification for its actions was a
  mere pretext for unlawful discrimination.  We find that plaintiff produced
  sufficient evidence to make out a prima facie case, but that she has not
  carried her burden to show that defendants' actions were pretextual,
  sufficient to withstand summary judgment.

                     1. The McDonnell Douglas Framework

       ¶  24.  McDonnell Douglas "established an allocation of the burden of
  production and an order for the presentation of proof in Title VII
  discriminatory-treatment cases," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), in order to "progressively sharpen the inquiry into the
  elusive factual question of intentional discrimination."  Burdine, 450 U.S.  at 255 n.8.  At the outset, the plaintiff has the burden of establishing a
  prima facie case of employment discrimination.  Boulton v. CLD Consulting
  Eng'rs, Inc., 2003 VT 72,  15, 834 A.2d 37; Hodgdon, 160 Vt. at 159, 624 A.2d  at 1127.  This step serves a screening function: it eliminates the
  most patently meritless claims - i.e., where the plaintiff was rejected for
  "common nondiscriminatory reasons."  Burdine, 450 U.S.  at 254.  The
  evidentiary burden required of the plaintiff at this stage is a relatively
  light one.  See id. (burden at prima facie stage is "not onerous"); 
  Beckmann v. Edson Hill Manor, Inc., 171 Vt. 607, 608, 764 A.2d 1220, 1222
  (2000) (mem.).
   
       ¶  25.  The specific elements of a prima facie case may vary
  depending on the claim and the particular facts of the case.  See Burdine,
  450 U.S.  at 253 n.6 (prima facie standard is "not inflexible" and may
  differ given differing factual situations).  In general to establish a
  prima facie case of employment discrimination, the plaintiff must
  demonstrate that: (1) she was a member of a protected group; (2) she was
  qualified for the position; (3) she suffered an adverse employment action;
  and (4) the circumstances surrounding this adverse employment action permit
  an inference of discrimination.  See McDonnell Douglas Corp., 411 U.S.  at
  802; Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 246 (S.D.N.Y.
  2001); see also State v. Whitingham Sch. Bd., 138 Vt.15, 19, 410 A.2d 996,
  998-99 (1979); Carpenter v. Cent. Vt. Med. Ctr., 170 Vt. 565, 566, 743 A.2d 592, 594-95 (1999) (mem.) (elements for age discrimination).

       ¶  26.  Once the plaintiff has established a prima facie case, a
  presumption of discrimination arises, Hicks, 509 U.S.  at 506, and the
  burden shifts to the employer "'to articulate some legitimate,
  nondiscriminatory reason for the employee's rejection.'"  Hodgdon, 160 Vt.
  at 159, 624 A.2d  at 1127 (quoting McDonnell Douglas Corp., 411 U.S. at
  802).  This second step serves to respond to the plaintiff's prima facie
  case as well as "to frame the factual issue with sufficient clarity so that
  the plaintiff will have a full and fair opportunity to demonstrate
  pretext."  Burdine, 450 U.S.  at 255-56. The employer's burden at this
  second stage is solely one of production, not persuasion.  Id.

       ¶  27.  If the employer meets his burden at this stage, the
  presumption of discrimination disappears, Hicks, 509 U.S.  at 510-11, and
  the burden then shifts back to the plaintiff to prove that the employer's
  justification is a mere pretext for discrimination.  Hodgdon, 160 Vt. at
  159, 624 A.2d  at 1127.  This third step is in keeping with the fact that
  "[t]he ultimate burden of persuading the trier of fact that the defendant
  intentionally discriminated against the plaintiff remains at all times with
  the plaintiff."  Burdine, 450 U.S.  at 253. 

                           2. The Prima Facie Case
   
       ¶  28.  Returning to the case at hand, the first issue concerns
  plaintiff's attempt to establish a prima facie case of discrimination. The
  trial court found that plaintiff did not establish a prima facie case for
  two reasons: (1) plaintiff failed to satisfy the second element because she
  did not demonstrate that she was qualified for the Supervisor of Drug
  Delivery position, and (2) plaintiff failed to satisfy the fourth element
  because she did not demonstrate that Miller had similar or lesser
  qualifications for the position than she, and thus there could be no
  inference of gender discrimination.  Plaintiff contends that in making such
  a finding, the trial court ignored relevant evidence suggesting that
  plaintiff was qualified for the open position but that Govil manipulated
  the job opening in order to prevent her from obtaining that position
  because of her gender.  We find that plaintiff's proffer of evidence was
  sufficient to meet her burden at the prima facie case stage.

       ¶  29.  Under McDonnell Douglas, if plaintiff is not objectively
  qualified for the position, then she cannot make out a prima facie case. 
  Defendants persuaded the trial court to conclude that defendant was not
  qualified because the job description required a Ph.D. in Pharmaceutics,
  Material Science, or Chemical Engineering, and plaintiff did not have a
  Ph.D. at that time.  We do not find the educational qualification
  conclusive.  Plaintiff was close to obtaining her Ph.D., and her evidence
  suggests that Bertek had often let other employees assume positions when
  they did not meet all of the educational requirements but were close to
  completing them.  Moreover, plaintiff was performing the nearest comparable
  job, Manager of Formulations, on an interim basis.  She claimed that the
  responsibilities did not substantially change, but that Govil changed the
  title and added qualifications to give the job to his hand-picked male
  candidate.  See Arrington v. Cobb County, 139 F.3d 865, 875 (11th Cir.
  1998) (prima facie case established where plaintiff presented evidence that
  responsibilities of new position given to male employee were the same as
  those that plaintiff had performed before restructuring); Gates v. BEA
  Assocs., Inc., No. 88 Civ. 6522 (SJM), 1990 WL 180137, at *1-*2, (S.D.N.Y.
  Nov. 13, 1990) (summary judgment at prima facie stage not warranted where
  there were disputed issues as to whether degree requirement was bona fide
  job qualification and whether it was added solely to exclude plaintiff from
  consideration); Larson, supra, § 8.02[3], at 8-24 ("A court may be inclined
  not to take the employer's stated qualifications seriously when in fact the
  employer does not consistently adhere to those stated qualifications when
  making employment decisions.").  Again, we stress that plaintiff's burden
  is relatively light at the prima facie case stage.
   
       ¶  30.  We have a similar view of the trial court's holding that
  plaintiff failed to demonstrate the fourth element of her prima facie case
  because she could not show that Miller had similar or lesser qualifications
  for the position than she.  See Walker v. Mortham, 158 F.3d 1177, 1185
  (11th Cir. 1999) (issue of comparative qualifications more appropriate for
  rebuttal stage, as employer is in better position to provide information
  pertaining to this issue ); Thomas v. Denny's, Inc., 111 F.3d 1506, 1510
  (10th Cir. 1997) (requiring plaintiff to establish comparative
  qualifications at prima facie case stage effectively removed his
  opportunity to establish pretext); Larson, supra, § 8.02[6], at 8-30
  ("[C]ourts have generally repudiated th[e] view [that failure of the
  plaintiff to present evidence of comparative qualifications is fatal to the
  prima facie case], holding that there is no such requirement and that a
  plaintiff need only demonstrate minimum qualifications.").  Plaintiff must
  come forward with evidence to show that the circumstances surrounding her
  failure to receive the Supervisor of Drug Delivery job permit an inference
  of unlawful discrimination.  See Carpenter, 170 Vt. at 567, 743 A.2d  at
  595.  Again, we find that the evidence that the job description and job
  qualifications were manipulated, combined with the fact that a man was
  chosen for the position over plaintiff, is sufficient to permit such an
  inference, see, e.g., Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d
  Cir. 1996) (plaintiff made out prima facie case "by showing that she is a
  member of a protected class, a black female; that she applied for the
  positions; and that she was qualified for the positions; that the positions
  were filled by a white male and a white female"), and discharge plaintiff's
  very light burden at this stage.  See Boulton, 2003 VT 72, at  16; see also
  Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir. 1995) ("[P]laintiff's
  burden of proof in a . . . discrimination action is de minimis at the prima
  facie stage.").  We therefore hold that plaintiff has demonstrated a prima
  facie case of discrimination.
   
                        3. Evidence of Pretext (FN4)

       ¶  31.  Pursuant to the second stage of the McDonnell Douglas
  analysis, defendants have offered evidence in support of a legitimate
  business reason for their actions: the elimination of the Manager of
  Formulations position, and the inclusion of certain qualifications in the
  job description for the new Supervisor of Drug Delivery position were the
  result of restructuring done in response to large employee turnover and a
  perceived lack of scientific ability and expertise in certain specialty
  areas in the Research and Development department.  The important element of
  this justification, for purposes of this case, is that Govil, and senior
  management who approved the restructuring, made an early, pre-recruitment
  decision that the necessary qualifications and skill for the senior drug
  development jobs did not exist among the employees who were left after the
  extensive turnover.  Thus, in creating the restructuring plan and job
  descriptions, Govil made the decision that neither plaintiff or any other
  existing employee would be hired to fill the new jobs.  At this second
  stage of the McDonnell Douglas analysis, defendants have only a burden of
  production, rather than one of persuasion, see Boulton, 2003 VT 72, at  15,
  and plaintiff does not dispute that the reasons defendants proffered for
  their hiring decision, if believed, were legitimate and non-discriminatory. 
  We conclude that defendants have met their burden under McDonnell Douglas. 
  Thus the only question that remains is whether the total evidence offered
  by plaintiff is sufficient to carry her ultimate burden of demonstrating
  that Bertek's justification is a mere pretext for discrimination.  We
  conclude that plaintiff has not carried her burden here.
   
       ¶  32.  As we indicated above, we have generally followed the burden
  allocation rules applicable to Title VII of the Civil Rights Act of 1964. 
  The United States Supreme Court has addressed the burden of demonstrating
  pretext in a number of cases, and its latest discussion of the nature of
  the burden  in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133
  (2000), is the most pertinent.  Although Reeves is an Age Discrimination in
  Employment Act (ADEA) case, it was decided on the basis that the burdens
  for the ADEA and for Title VII are the same.  See 530 U.S at 142.  The
  Supreme Court took the case "to resolve a conflict among the Courts of
  Appeals as to whether a plaintiff's prima facie case of discrimination,
  combined with sufficient evidence for a reasonable factfinder to reject the
  employer's nondiscriminatory explanation for its decision, is adequate to
  sustain a finding of liability for intentional discrimination."  Id. at 140
  (internal citations omitted).  The Court answered the question in the
  affirmative, holding that a plaintiff's prima facie case, combined with
  sufficient evidence of pretext, "may permit the trier of fact to conclude
  that the employer unlawfully discriminated."  Id. at 148.  The Court also
  recognized, however, that this will not always be case:

    Certainly there will be instances where, although the plaintiff
    has established a prima facie case and set forth sufficient
    evidence to reject the defendant's explanation, no rational
    factfinder could conclude that the action was discriminatory.  For
    instance, an employer would be entitled to judgment as a matter of
    law if the record conclusively revealed some other,
    nondiscriminatory reason for the employer's decision, or if the
    plaintiff created only a weak issue of fact as to whether the
    employer's reason was untrue and there was abundant and
    uncontroverted independent evidence that no discrimination had
    occurred.

  Id.  Although the Court was describing the standard for determining whether
  the employer was entitled to a judgment as a matter of law under Rule 50 of
  the Federal Rules of Civil Procedure, commentators and courts after Reeves
  have concluded that the decision also describes the standard for
  determining whether the employer is entitled to summary judgment.  See
  Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000) (applying Reeves
  to a summary judgment motion); C. Thompson, Juries Will Decide More
  Discrimination Cases: An Examination of Reeves v. Sanderson Plumbing
  Products, Inc., 26 Vt. L. Rev. 1, 2 (2001); L. Ware, Inferring Intent from
  Proof of Pretext: Resolving the Summary Judgment Confusion in Employment
  Discrimination Cases Alleging Disparate Treatment, 4 Employee Rts. & Emp.
  Pol'y J. 37, 63 (2000); Note, Reeves v. Sanderson Plumbing Products:
  Stemming the Tide of Motions for Summary Judgment and Motions for Judgment
  as a Matter of Law, 52 Mercer L. Rev. 1549, 1565 (2001).  In part, they
  have reached this conclusion because the Reeves Court commented that "the
  standard for granting summary judgment mirrors the standard for judgment as
  a matter of law, such that the inquiry under each is the same."  Reeves,
  530 U.S.  at 150 (internal quotations omitted).

       ¶  33.  Reeves explained the application of its ruling in terms
  consistent with our law on summary judgment, as set out above.  Whether
  summary judgment is appropriate under Reeves depends on a number of
  factors, including "the strength of the plaintiff's prima facie case, the
  probative value of the proof that the employer's explanation is false, and
  any other evidence that supports the employer's case and that properly may
  be considered" on a summary judgment motion.  Reeves, 530 U.S.  at 148-49. 
  The Reeves Court further clarified this standard:

    Credibility determinations, the weighing of the evidence, and the
    drawing of legitimate inferences from the facts are jury
    functions, not those of a judge.  Thus, although the court should
    review the record as a whole, it must disregard all evidence
    favorable to the moving party that the jury is not required to
    believe.  That is, the court should give credence to the evidence
    favoring the nonmovant as well as that evidence supporting the
    moving party that is uncontradicted and unimpeached, at least to
    the extent that evidence comes from disinterested witnesses.

  Id. at 150-51 (internal citations and quotations omitted). 
   
       ¶  34.  Plaintiff has relied in part on the Reeves holding.  Having
  adopted the burden shifting analysis of McDonnell Douglas, we see no reason
  not to adopt the standard of Reeves as a reasonable approach to analyzing
  evidence in an employment discrimination claim brought under FEPA.  Thus,
  we would normally allow plaintiff to avoid summary judgment at this third
  step of the McDonnell Douglas analysis by demonstrating that there is an
  issue of material fact underlying the question of whether the employer's
  reason for its action was pretextual.  We conclude that plaintiff has
  failed to meet this burden.

       ¶  35.  The difficulty with plaintiff's position is that the hiring
  decision was not a simple choice among applicants for a preexisting job. 
  Defendants' assertion that they restructured and redefined the research and
  development management is largely unchallenged by plaintiff.  This Court
  "may not second-guess an employer's non-discriminatory business decisions,
  regardless of their wisdom."  Williams v. New York City Dep't of
  Sanitation, No. 00 Civ. 7371 (AJP), 2001 WL 1154627, at *18 (S.D.N.Y. Sept.
  28, 2001) (citing cases); see also Byrnie v. Bd. of Educ., 243 F.3d 93, 103
  (2d Cir. 2001) (courts should not act as "super-personnel departments" that
  second?guess employer's business judgments); Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000) ("Title VII . . . [does] not grant courts
  authority to second?guess the wisdom of corporate business decisions . . .
  .").  Moreover, much of the evidence plaintiff has relied upon is entirely
  consistent with defendants' reason for their action and does not raise an
  inference of pretext.  
   
       ¶  36.  To the extent that plaintiff has attempted to show that
  defendants' rationale for the hiring decision was a pretext, she has relied
  upon three theories.  The first is that Govil manipulated the hiring
  process in violation of company policies to allow him to hire Miller.  As
  we held above, this evidence helped plaintiff to demonstrate a prima facie
  case, the first stage of the McDonnell Douglas framework, but it is
  unhelpful in demonstrating pretext.  Once Govil decided that the existing
  Bertek employees did not have the necessary skills to lead the research and
  development of drugs, he had to conduct a search for persons with the
  needed qualifications.  It is obvious that he could not find highly skilled
  persons with advanced educational degrees in the narrow field involved by
  simply announcing that positions were open and hoping that the right
  persons saw the announcement and applied.  Consistent with his goals, Govil
  actively recruited Dr. Miller even before the restructuring was approved. 
  Although Govil put less emphasis on the application process for internal
  candidates, we cannot conclude that he violated any company policies in the
  process, (FN5) and plaintiff did apply and was interviewed.   In summary, at
  best plaintiff may have showed that Govil violated the spirit of company
  hiring procedures, but the arguable violations reinforced Govil's rationale
  for hiring Miller, rather than showing the rationale was a pretext for
  discrimination.

       ¶  37.  Her second theory of pretext - that she was more qualified
  than Miller - also does not meet her burden.   It is undisputed that
  plaintiff did not meet the posted minimum qualifications for the job of
  Supervisor of Drug Delivery.  There is no evidence to support plaintiff's
  argument that Govil adopted the minimum qualifications solely to give the
  job to Miller.  Indeed, the minimum qualifications were entirely consistent
  with the business rationale of upgrading skill levels.
   
       ¶  38.  We cannot agree with her arguments against these central
  facts.  Plaintiff's personal opinion of her relative qualifications cannot
  be determinative.  See Lee v. GTE Florida, Inc., 226 F.3d 1249, 1255 (11th
  Cir. 2000) (plaintiff's opinion that she was more qualified than the person
  who was hired for the job she sought "is insufficient to raise a genuine
  issue of fact" as to whether the reasons given for the hiring decision were
  pretextual).  Nor can we conclude that plaintiff has met her burden by
  showing that some of the responsibilities of the new job of Supervisor of
  Drug Delivery overlapped with those of the job she was performing on an
  interim basis.  See Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 473 (7th
  Cir. 2002).

       ¶  39.  We do not believe that plaintiff's related allegation that the
  company had waived minimum qualifications in the past helps plaintiff's
  position in this context.  Since the whole point of the restructuring was
  to upgrade skill and competency of research and development managers, any
  waiver of qualifications to hire an existing employee would defeat this
  point.  Nor are we persuaded that plaintiff showed pretext by her husband's
  testimony that the General Manager of Bertek, Matthew Costigan, once told
  him that Miller should not be interviewed because he was an academician and
  did not have the "industrial experience" necessary for the job. 
  Irrespective of the views of Costigan, who was not responsible for the
  hiring, it is undisputed that Miller met the minimum qualifications for the
  job, including five years of transdermal formulations experience, and that
  plaintiff did not. 

       ¶  40.  We do not belittle plaintiff's evidence in support of her
  third theory - that women were subject to widespread discrimination at
  Bertek.  Her evidence suggested that Bertek's work culture was frequently
  hostile to women, (FN6) that men held the upper research and development
  positions, (FN7) that Govil was a poor manager and supervisor especially
  with respect to women employees, or that "cultural differences" adversely
  affected his attitude toward women employees.  This evidence may be
  relevant under Reeves, 530 U.S.  at 151-52, to support sufficient evidence
  that the stated reason for the hiring decision was pretextual, but it does
  not replace such evidence.  It does not respond to defendants' business
  rationale for their hiring decision and show that it is a pretext.

       ¶  41.  In general, plaintiff has failed to present sufficient
  evidence to rebut defendants' rationale beyond her own conclusory
  allegations, see Quechee Lakes Landowners' Ass'n, 170 Vt. at 28, 742 A.2d 
  at 736 (conclusory allegations without facts to support them are
  insufficient to survive summary judgment), to contradict this evidence. 
  See Smith v. Am. Express Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (summary
  judgment for defendant appropriate when plaintiff failed to show pretext in
  selection of better qualified candidate for promotion).  We conclude that
  plaintiff failed to meet her burden and that the trial court properly
  granted summary judgment against her on her claim that defendants illegally
  failed to promote her. (FN8) 
   
                          IV. Claim of Retaliation
   
       ¶  42.  Plaintiff's final claim is that Bertek retaliated against her
  for bringing a gender discrimination claim against it.  To establish a
  prima facie case of retaliatory discrimination under FEPA, the plaintiff
  must show that (1) she engaged in a protected activity; (2) her employer
  was aware of that activity; (3) she suffered adverse employment decisions;
  and (4) there was a causal connection between the protected activity and
  the adverse employment action. Gallipo v. City of Rutland, 163 Vt. 83, 92,
  656 A.2d 635, 642 (1994); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d
  Cir. 1995).  If the plaintiff establishes a prima facie case, the burden
  shifts to the defendant-employer to articulate some legitimate
  nondiscriminatory reason for the alleged retaliation.  Tomka, 66 F.3d  at
  1308.  If the defendant carries this burden of production, the plaintiff
  must then demonstrate that the defendant's reasons are pretext for
  discriminatory retaliation.  Id.  The trial court found that plaintiff had
  not established a prima facie case of retaliatory discrimination under FEPA
  and thus granted summary judgment in defendants' favor on these claims.  We
  agree that the grant of summary judgment was appropriate.

       ¶  43.  Plaintiff claims that, as a result of filing a complaint with
  the company and later with the Vermont Attorney General's office, (1) she
  received a negative performance appraisal criticizing her knowledge of
  project management and her interpersonal communication skills; (2) Govil
  excluded her from interviews of job applicants, excluded her from project
  meetings, and ignored and failed to support her; (3) she was "demoted" to
  the position of Project Manager; and (4) Bertek terminated her employment.
  It is not disputed that plaintiff's filing of a gender discrimination
  complaint with the company and later with the Vermont Attorney General's
  office is a protected activity and that Bertek was aware of this activity. 
  We thus turn to whether the individual actions that plaintiff complains of
  are "adverse employment actions" and, if so, whether these actions were the
  result of her filing of a complaint.
   
       ¶  44.  Neither the negative performance appraisal or Govil's alleged
  unfair treatment of plaintiff constitutes an "adverse employment action" so
  as to satisfy plaintiff's prima facie case.  See Ledergerber v. Stangler,
  122 F.3d 1142, 1144 (8th Cir. 1997) (reassignment of staff was not adverse
  employment action); Johnson-Carter v. B.D.O. Seidman, LLP, 169 F. Supp. 2d 924, 938-39 (N.D. Ill. 2001) (employer's denial of one training class in
  which African?American employee already had expertise, non?invitation to
  three staff meetings, requirement that employee work outside her area of
  expertise, and denial of an isolated request for compensatory time off did
  not constitute material "adverse employment actions"); Bennett, 136 F. Supp.  at 247; (exclusion from performance evaluation process and
  compensation communication meetings were not adverse employment actions as
  would support prima facie case of race discrimination); Martin v. Kroger
  Co., 65 F. Supp. 2d 516, 539 (S.D. Tex. 1999) (plaintiff's "allegations
  about undermining her authority as supervisor, increasing her work load,
  and giving credit for work to undeserving non-minorities,"did not rise to
  level of adverse employment actions).  Furthermore, the incidents of unfair
  treatment that plaintiff contends were retaliation for her filing of a
  gender discrimination claim are of the exact same character as the
  incidents of alleged unfair treatment that apparently led to the filing of
  the claim in the first place.  Thus, plaintiff has not satisfied either the
  third or fourth element of the prima facie case of retaliation based on
  these actions by Govil.

       ¶  45.  In regards to the negative performance appraisal, "[n]egative
  evaluations alone, without any accompanying adverse result, . . . are not
  cognizable."  Valentine v. Standard & Poor's, 50 F. Supp. 2d 262, 283-84
  (S.D.N.Y. 1999) (collecting cases).  Here, plaintiff does not claim that
  the negative performance appraisal caused any change in the conditions of
  her employment, nor does she claim that her eventual discharge was the
  result of this appraisal.  As such, this action similarly does not satisfy
  the third element of the prima facie case.
   
       ¶  46.  As for the "demotion," the record indicates that the events
  that plaintiff complains about - the alleged promotion to Senior Project
  Manager followed a week later by a "demotion" to Project Manager - occurred
  before plaintiff filed her claim with Bertek.  Indeed, it seems that it was
  precisely this "demotion" - which occurred in late April - that led to the
  filing of her complaint in early May.  Thus, the causation element of the
  prima facie case is not satisfied for this claim of retaliation.  See McLee
  v. Chrysler Corp., 109 F.3d 130, 136 (2d Cir. 1997) (no inference of
  discriminatory motivation where plaintiff contacted civil rights offices
  after, and because of, alleged adverse employment action); Zorn v. Helene
  Curtis, Inc., 903 F. Supp. 1226, 1250 (N.D. Ill. 1995) (no causal
  relationship established where evidence giving rise to alleged constructive
  discharge began before employee complained of discrimination).

       ¶  47.  Plaintiff's termination is clearly an adverse employment
  action.  Yet we find it difficult to see, absent other evidence, how this
  action was the result of a protected activity: plaintiff's termination came
  nearly seven months after she filed the current lawsuit, and over one and a
  half years after she filed the original claims of discrimination with
  Bertek, the Vermont Attorney General, and the EEOC.  See Nguyen v. City of
  Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (if plaintiff relies solely
  on temporal proximity between the protected activity and the adverse action
  to show retaliation, a proximity of time of less than six months generally
  is required to establish a prima facie case); Hollander v. Am. Cyanamid
  Co., 895 F.2d 80, 85 (2d Cir. 1990) (proximity in time of three months
  between the protected activity and the adverse action is alone insufficient
  to make out a prima facie case).  Plaintiff has not pointed to other
  evidence of retaliation.
   
       ¶  48.  Even were we to accept that plaintiff has made out a prima
  facie case of retaliation in regards to her termination, we find that she
  has not demonstrated that defendants' reasons for the discharge were a
  pretext for retaliation.  Defendants claim that plaintiff was discharged
  due to the disclosure of confidential company information to a recruiter
  and one of Bertek's competitors.  Plaintiff does not argue against the
  claim that the information she disclosed via her résumé was confidential
  and that, in distributing the résumé, she violated the confidentiality
  agreement that she had signed.  She contended in an affidavit that the
  trial court struck that there was no injury to the company for any
  information revealed and that other individuals had revealed similar
  information without consequences.  Even if the information were properly
  before us, her statements constitute only general, conclusory and
  self-serving allegations with no supporting detail that allows a trier of
  fact to determine their credibility and weight.  As we emphasized earlier,
  conclusory allegations without facts to support them are insufficient to
  survive summary judgment.  Quechee Lakes Landowners' Ass'n, 170 Vt. at 28,
  742 A.2d  at 736.  Thus, plaintiff has not met her burden at this stage, and
  the grant of summary judgment in favor of defendants was appropriate.

                                  V. Other

       ¶  49.  The parties have briefed two other issues that we do not reach
  in light of our disposition.  Plaintiff argues that the trial court erred
  in finding that an individual supervisor is not liable under FEPA and in
  dismissing Sharad Govil as a defendant.  Because we uphold the decision to
  grant summary judgment to defendants on all claims, we need not reach this
  issue.

       ¶  50.  Defendants argue that the dismissal of the retaliation claim
  should be upheld as a discovery sanction because of plaintiff's refusal to
  identify her current employer despite the trial court's order to do so.  We
  have upheld the grant of summary judgment for defendants on this claim and
  do not have to reach this argument. Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Justice Morse sat for oral argument but did not participate in this
  decision.

FN2.  We note at the outset that there is a confusion over the admissibility
  of the contents of certain affidavits submitted by plaintiff, in particular
  two affidavits of plaintiff and one affidavit of Michael Fulton, a prior
  Bertek employee.  The trial court apparently struck these three affidavits
  in their entirety after focusing solely on a few assertions contained in
  them that it found to be inadmissible.  Plaintiff failed to challenge this
  ruling in her brief, but in response to defendants' reliance on the rulings
  in their brief, asserted in her reply brief that the court's ruling was
  error.  We need not consider an argument raised for the first time in a
  reply brief.  See In re Wal-Mart Stores, Inc., 167 Vt. 75, 86, 702 A.2d 397, 404 (1997).  In any event, given that virtually all of plaintiff's
  factual allegations appear in depositions, particularly hers, and
  documentary evidence, striking the affidavits is of limited significance. 
  Moreover, to the extent that this decision relies on the absence of
  evidence that might have been supplied by the affidavits, it also relies on
  other grounds. 

FN3.  Plaintiff's husband is Maurice Miller, who was Director of
  Manufacturing at Bertek during the relevant time period.

FN4.   We recognize that in prior cases, this Court, after finding that the
  trial court erred in finding that the FEPA plaintiff had failed to prove a
  prima facie case, reversed and remanded a summary judgment finding against
  the plaintiff without addressing the issue of pretext.  See, e.g.,
  Carpenter v. Cent. Vt. Med. Ctr., 170 Vt. 565, 569, 743 A.2d 592, 597
  (1999) (mem.).  Here, however, the pretext issue was specifically addressed
  by the trial court as an independent ground for its decision and has been
  fully briefed by both parties.

FN5.  For example, plaintiff argued that Bertek's policy required that
  internal candidates be interviewed before external candidates are
  interviewed.  In fact, the policy requires only that internal candidates be
  interviewed before the position is filled.  While it suggests that internal
  candidates be interviewed first, it does not require this procedure.

       Plaintiff also argued that the position opening was posted on Friday,
  in violation of a company policy that required posting on Wednesday.  In
  fact, the posting policy had been eliminated in 1997, well before the
  posting here.

FN6.  Plaintiff relies on our decision in In re Butler, 166 Vt. 423, 697 A.2d 659 (1997), for the proposition that evidence of a hostile work
  environment can show disparate treatment and pretext.  Butler was an appeal
  from a decision of the Vermont Labor Relations Board concluding that the
  decision to terminate a female state police officer because she failed to
  successfully complete her probationary period was based on gender
  discrimination.  We affirmed holding that a hostile work environment was
  relevant to show "whether she was judged differently and more harshly than
  her male colleagues."  166 Vt. at 428, 697 A.2d  at 663.  There was no claim
  of pretext in Butler, and the decision did not address pretext.  Although
  there may be cases where the presence of a hostile work environment is
  relevant to show pretext, this is not such a case.  Plaintiff was denied
  the job she sought because she lacked education and experience
  qualifications, and not because her performance was inadequate although
  adversely affected by a hostile work environment.  Moreover, plaintiff does
  not claim sexual harassment by Govil or other supervisors and employees. 
  Nor does she claim that Govil, the only person involved in the alleged
  discriminatory action, was influenced by a general discriminatory
  atmosphere at Bertek; instead, plaintiff argues that her unfair treatment
  was the result of Govil's "cultural differences" with respect to his
  attitude towards women.

FN7.  Although this is a disparate treatment case, plaintiff has detailed
  the careers of other women in the company to argue that a "glass ceiling"
  exists, especially as to research and development jobs.  We have inadequate
  information to determine whether the career moves are typical of those of
  women in the company generally, are different from those of men or show
  evidence of discrimination.  In any event, statistical evidence of
  treatment of other women is rarely sufficient to show that an adverse
  employment decision with respect to plaintiff was pretextual.  See LeBlanc
  v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993).

FN8.  Although not clearly delineated in either her complaint or her brief
  on appeal, two other counts of gender discrimination under FEPA appear to
  have been raised by plaintiff.  Perhaps in an excess of caution, we address
  them as if they had been separately raised.

       First, plaintiff claims that she was discriminated against by being
  paid less than her male counterparts at Bertek.  Second, plaintiff claims
  that she was discriminated against by Govil who she alleges treated her
  poorly compared to men at the company.  The trial court addressed both of
  these issues and granted summary judgment in favor of defendants on both. 
  We find that the trial court was correct in its reasoning and conclusions.

       As to the claim of discrimination based on unequal pay, plaintiff has
  failed to make out a prima facie case.  FEPA prohibits "paying wages to
  employees of one sex at a rate less than the rate paid to employees of the
  other sex for equal work that requires equal skill, effort, and
  responsibility, and is performed under similar working conditions."  21
  V.S.A. § 495(a)(8).  As part of her prima facie case of discrimination
  based on unequal pay, plaintiff must demonstrate that she was paid less
  than similarly situated males.  See Buettner v. Arch Coal Sales Co., 216 F.3d 707, 719 (8th Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 139-40
  (2d Cir. 1999); see also  25, supra (laying out basic elements of prima
  facie case of gender-based employment discrimination under FEPA). 
  Plaintiff's sole piece of evidence in support of her unequal pay claim,
  however, is that Suresh Borsadia, a Principal Scientist, was paid $65,000
  in 1996 at the same time that plaintiff, a Project Manager, was being paid
  $52,000.  Because these two positions involved substantially different job
  duties, plaintiff and Borsadia were not similarly situated such as to
  provide evidence for the prima facie case.  See Boulton, 2003 VT 72, at  
  19-20.  Furthermore, plaintiff has not disputed defendants' claim that she
  was paid more than Joe Duda, a male Project Manager.  Therefore, plaintiff
  has failed to establish her prima facie case, and thus the trial court was
  correct in granting summary judgment to defendants on this issue.

       The trial court was also correct in granting summary judgment for
  defendants on the issue of Govil's alleged poor treatment of plaintiff.  As
  part of her prima facie case, plaintiff must show that she suffered an
  "adverse employment decision" that affects the terms or conditions of her
  employment.  See Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.
  1997); Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y.
  2001); see also Gallipo v. City of Rutland, 163 Vt. 83, 92, 656 A.2d 635,
  642 (1994) (prima facie case for retaliatory discrimination requires
  showing of adverse employment action).  Plaintiff alleges that Govil left
  her out of meetings, did not provide her with information, transferred her
  staff from her group without consulting her, and reassigned her duties to
  men without consulting her.  None of these instances of alleged unfair
  treatment, however, constitute an "adverse employment action."  See  43,
  infra.

       In view of our resolution of these claims, we do not reach defendants'
  argument that they are barred in whole or in part by the applicable statute
  of limitations.