Dunaway v. International Brotherhood of Teamsters

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2002 Decided November 15, 2002

No. 01-7122

Lynda Dunaway,

Appellant

v.

International Brotherhood of Teamsters,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 98cv01317)

Steven G. Polin argued the cause and filed the brief for

appellant.

James A. McCall argued the cause for appellee. On the

brief was Nicole R. Pollard.

Before: Sentelle, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Lynda Dunaway appeals the grant

of summary judgment on her claim of unlawful termination

from employment on the grounds that the district court erred

in ruling that she failed to establish a prima facie case of

discrimination based on gender, national origin, or age, and

that she failed to show that she was a permanent employee,

rather than an at-will employee, by virtue of an implied

contract with the International Brotherhood of Teamsters

("Teamsters"). Because the record indicates that there are

genuine issues of material fact regarding whether Dunaway

was discharged because of gender or national origin, we

reverse and remand for trial on those claims; otherwise we

affirm.

I.

Dunaway, an Asian-American woman, worked for the

Teamsters for twenty-five years. Between 1971 and 1987,

she performed sufficiently well to merit a salary increase and

a promotion, over James Bosley, to the position of Payroll

Supervisor. Dunaway had a perfect employment record in

that position through 1992. In 1992, union elections were

held, and Thomas Sever became the new General Secretary-

Treasurer of the Teamsters. He appointed Bosley director of

the newly merged Accounting and Payroll Departments,

which made Bosley Dunaway's immediate supervisor as of

February 1992. In 1993, Bosley gave Dunaway her first

negative work evaluation in twenty-two years of working for

the Teamsters.

By memorandum of August 19, 1993, Bosley informed

Dunaway that she needed to improve her performance with

respect to timely payment of both employee health and

welfare insurance premiums and domestic and Canadian pay-

roll taxes. From time to time through October 1994, Duna-

way received other memoranda from Bosley stating that he

considered her work performance unacceptable, again citing

her tardiness in making health and welfare insurance pay-

ments as well as her delayed reply to his previous queries

about tax levies and failure to meet with a designated com-

puter specialist about implementing a new human resources

software program. By Bosley's own admission, these prob-

lems were all rectified or explained to his satisfaction. Duna-

way did not receive any negative performance evaluations

after October 1994.

Then, in January 1997, without prior notice, Bosley asked

Dunaway to submit her resignation because the Teamsters

planned to take the Payroll Department in a new direction

and wanted to make personnel changes. When she declined

to resign, Bosley told her she was terminated from employ-

ment, effective immediately. Dunaway filed a complaint in

June 1997 with the Equal Employment Opportunity Commis-

sion.

In June 1998, Dunaway sued the Teamsters for gender and

national origin discrimination in employment under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. s 2000e et seq.; age

discrimination in employment under both the Age Discrimina-

tion in Employment Act of 1967, 29 U.S.C. s 621 et seq., and

the Human Rights Act of the District of Columbia, D.C. Code

s 2-1402.01 et seq.; and breach of implied contract. The

Teamsters filed an answer and discovery followed. Thereaf-

ter, the Teamsters filed a motion for summary judgment,

which Dunaway opposed.

The district court granted summary judgment for the

Teamsters. The court found that Dunaway had not estab-

lished a prima facie case of discrimination because she had

failed to show that she was qualified for the position of

Payroll Supervisor in light of "uncontroverted evidence that

shows that ... [she] was not meeting her employer's expecta-

tions." The court also found that because Dunaway failed to

show a connection between "alleged stray remarks relating to

[her] protected characteristic[s]" and the decision to termi-

nate her employment, the evidence was "not probative of the

fact that Dunaway had been discharged because of her na-

tional origin." Upon reviewing the Teamsters' Retirement

and Family Protection Plan ("Retirement Plan"), Local 2

Collective Bargaining Agreement ("Local 2's Agreement"),

Teamsters' Confidentiality Agreement, and an Accounting

Department personnel manual, the court further found that

Dunaway failed to present sufficient evidence to establish an

implied contract for employment of any duration.

II.

On appeal from the grant of summary judgment, our

review is de novo, and we apply the same standards as the

district court. Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.

1994). Federal Rule of Civil Procedure 56(c) provides that a

district court shall grant summary judgment "if the plead-

ings, 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 the moving

party is entitled to a judgment as a matter of law." There is

a genuine issue as to a material fact "if the evidence is such

that a reasonable jury could return a verdict for the nonmov-

ing party." Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986). If factual issues can "reasonably be resolved in favor

of either party," there is a need for a trial. Id. at 250. The

court, therefore, "should review all of the evidence in the

record," Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000); cf. Waterhouse v. Dist. of Columbia, 298 F.3d

989, 992 (D.C. Cir. 2002), viewing the evidence in the light

most favorable to the non-moving party and according that

party the benefit of all reasonable inferences. Anderson, 477

U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,

158-59 (1970)); cf. Fed. R. Civ. P. 50. See also Reeves, 530

U.S. at 150; Waterhouse, 298 F.3d at 991; Forman v. Small,

271 F.3d 285, 291 (D.C. Cir. 2001). At this stage of the

proceedings, the court is not to make credibility determina-

tions or weigh the evidence. Reeves, 530 U.S. at 150. Only

if, after examining the evidence, the court finds that a party

has failed "to make a showing sufficient to establish the

existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial," is

summary judgment appropriate. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Jackson v. Finnegan, 101 F.3d 145, 150

(D.C. Cir. 1996).

A.

When reviewing discrimination claims in which the plaintiff

alleges that a discriminatory motive was the only basis for the

employer's action, the court employs the McDonnell Douglas

burden-shifting scheme, McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), as refined in St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502 (1993), Texas Dep't. of Cmty. Affairs v.

Burdine, 450 U.S. 248 (1981), and Reeves, 530 U.S. 133. See

Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998)

(en banc); cf. Price Waterhouse v. Hopkins, 490 U.S. 228

(1989), superseded in part by 42 U.S.C. s 2000e-2(m). The

McDonnell Douglas framework establishes an order for the

presentation of proof in discriminatory-treatment cases.

First, the plaintiff must establish a prima facie case of

discrimination. Reeves, 530 U.S. at 142; Aka, 156 F.3d at

1288. Once the plaintiff has done so, the burden of produc-

tion shifts to the defendant to articulate legitimate, non-

discriminatory reasons for the challenged employment deci-

sion. Id. If the employer presents such reasons, then the

burden shifts back to the plaintiff, who is "afforded the

'opportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.' "

Reeves, 530 U.S. at 143 (citing Burdine, 450 U.S. at 253); see

also Aka, 156 F.3d at 1288-89. Although the "presumption of

discrimination 'drops out of the picture' once the defendant

meets its burden of production, the trier of fact may still

consider the evidence establishing the plaintiff's prima facie

case, 'and inferences properly drawn therefrom ... on the

issue of whether the defendant's explanation is pretextual.' "

Reeves, 530 U.S. at 143 (citing Hicks, 509 U.S. at 511, and

Burdine, 450 U.S. at 255 n.10).

Following instruction of the Supreme Court in U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983), our

analysis begins with the assumption that Dunaway presented

a prima facie case of discrimination based on gender, national

origin, and age. See also Waterhouse, 298 F.3d at 993;

Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554

(D.C. Cir. 1997). In Aikens, the Court, in reviewing a

judgment following a full trial on a Title VII claim of racial

discrimination in the failure to promote, expressed surprise

that the parties were still addressing whether the plaintiff

had made out a prima facie case. Id. at 714. By framing the

issue in those terms, the Court was of the view that the

parties "unnecessarily evaded the ultimate question of dis-

crimination vel non." Id. Rejecting the view that the prima

facie case method established in McDonnell Douglas was

intended to be "rigid, mechanized, or ritualistic," the Court

observed that once the defendant "has done everything that

would be required of him if the plaintiff had properly made

out a prima facie case, whether the plaintiff really did so is

no longer relevant" because "[t]he district court has before it

all the evidence it needs to decide whether 'the defendant

intentionally discriminated against the plaintiff.' " Id. at 715

(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577

(1978), and Burdine, 450 U.S. at 253). Accordingly, because

the defendant in Aikens offered evidence to explain why the

plaintiff was not promoted, the Court instructed that at the

close of all the evidence, the district court should have

directly addressed whether the employer had discriminated

against Aikens because of his race. Id. Notably, in Aikens it

was undisputed that the plaintiff was a member of a protected

class (racial minority) and had applied for promotions for

which he was at least minimally qualified and for which the

defendant-employer had selected a non-minority applicant.

Id. at 713.

Similarly, here, the Teamsters presented its full defense to

Dunaway's claims when it moved for summary judgment and

attached a Statement of Material Facts Not in Dispute, with

affidavits and other exhibits intended to demonstrate a non-

discriminatory reason for termination of her employment.

See Fed. R. Civ. P. 56; D.D.C. Local Civ. Rule 7.1(h).

Dunaway, in turn, responded with an opposition to the mo-

tion, filing a Statement of Material Facts in Genuine Dispute

as well as her deposition testimony and that of others. It is

undisputed that Dunaway is a member of a protected class

for purposes of her discrimination claims: she is female, of

Asian descent, and was more than forty years of age when

the Teamsters terminated her employment. She was not

required to prove that she was replaced by a person outside

of the protected class. See Stella v. Mineta, 284 F.3d 135,

146 (D.C. Cir. 2002); Lewis v. NVT Tech., Inc., 118 F. Supp.

2d 51, 53 (D.C. Cir. 2000); cf. O'Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 312 (1996). As in Aikens, the

proper question now is whether the employer unlawfully

discriminated against the plaintiff. 460 U.S. at 715.

In a discrimination case, the question is "whether a reason-

able jury could have found such intentional discrimination."

McGill v. Munoz, 203 F.3d 843, 846 (D.C. Cir. 2000). The

plaintiff may meet her burden of proof by either direct or

circumstantial evidence. In Aikens, the Supreme Court re-

versed affirmance of the district court's judgment after trial

in part because the district court had "erroneously thought

that [the plaintiff] was required to submit direct evidence of

discriminatory intent," 460 U.S. at 717. The Court reiterated

that in Title VII cases, "[a]s in any lawsuit, the plaintiff may

prove h[er] case by direct or circumstantial evidence." Id.

714 n.3; see also Int'l Bhd. of Teamsters v. United States, 431

U.S. 324, 358 n.44 (1977). Thus, Dunaway may meet her

burden "either directly by persuading the court that a dis-

criminatory reason more likely motivated the employer or

indirectly by showing that the employer's proffered explana-

tion is unworthy of credence." Aikens, 460 U.S. at 716

(quoting Burdine, 450 U.S. at 256). Ultimately, the question

is "whether the jury could infer discrimination from the

combination of (1) the plaintiff's prima facie case; (2) any

evidence the plaintiff presents to attack the employer's prof-

fered explanations for its actions; and (3) any further evi-

dence of discrimination that may be available to the plaintiff

(such as independent evidence of discriminatory statements

or attitudes on the part of the employer)." Waterhouse, 298

F.3d at 993 (citing Aka, 156 F.3d at 1289).

B.

In opposing summary judgment, Dunaway proffered, as

part of her Statement of Material Facts in Genuine Dispute,

evidence that responded to each of the Teamsters' five pur-

ported reasons for terminating her:

Failure to follow office protocol. The Teamsters state in

its Statement of Material Facts Not in Dispute that Dunaway

failed to follow office protocol. Both parties agree that in

1993, Bosley instituted a new chain of command that required

Dunaway to show him all letters sent by her section, not

contact any employees without his knowledge, and notify him

every time someone outside her section contacted her. Duna-

way states in her deposition that she did follow this chain of

command, and Bosley admits in his deposition that after he

made her aware of the policy, she followed it.

Late tax payments. The Teamsters also state that it

repeatedly incurred penalties and levies as the result of

Dunaway's failure to pay withholding taxes, both U.S. and

Canadian, in a timely fashion. Dunaway counters that the

late payments were caused by a number of factors over which

she had no control. First, she states in her deposition that

delays in Accounts Payable created delays outside of her

department. She further states that, in an attempt to resolve

the problem, she met with the manager of Accounts Payable,

Louie Blyden, and then-Manager of the Accounting Depart-

ment, Joseph Selsavage. Second, Dunaway states that the

late U.S. payments and subsequent tax levies referenced by

the Teamsters are for the years 1993-1994, the same period

in which the payroll department implemented a new computer

system, Oracle. She states that she tried to get training for

the new system, but that the person in charge of her training

was never available. Third, citing Bosley's deposition, Duna-

way states that even after management initiated a pre-audit

to eliminate the tax problem, and after Dunaway was termi-

nated, the problem of late taxes continued. Fourth, Dunaway

states, in her deposition and also citing Bosley's deposition,

that although she wanted to use overnight mail to avoid late

Canadian tax payments, Bosley and Selsavage wanted to

avoid the extra cost. It was not until May 1996 that Selsa-

vage approved overnight mailing. Fifth, Robert Wilson, who

served as Sever's Executive Assistant from February 1992 to

October 1995, stated in his deposition that many of the tax

penalties were abated by the Internal Revenue Service upon

presentation by Dunaway of appropriate documentation or

legitimate reasons for the late payments.

Failure to pay premiums for health and welfare cover-

age. The Teamsters further state that Dunaway failed to

make timely payments of health and welfare premiums, en-

dangering the coverage of the company's 500 employees.

Dunaway, citing her deposition and that of Wilson, responds

that the premiums could not be paid until the Department of

Human Resources provided the necessary information to her

department, and that because the chain of command then

required her to turn the information over to Bosley, she had

to wait for his often-tardy response in forwarding the infor-

mation back to her. Dunaway, citing Bosley's deposition, also

states that there were no late payments of health and welfare

premiums after September 1993.

Failure to pay election dues in timely fashion. The

Teamsters state that in 1996 Dunaway failed to remit in a

timely manner the election dues for then-President Ron

Carey. She made a double payment the next month to

correct her error, but this raised the suspicion of the officers

supervising the election, and resulted in an investigation.

Dunaway, citing Bosley's deposition, responds that Carey was

able to run in the election, and that at the time, no one,

including Carey, thought that she should face adverse conse-

quences as a result of her mistake.

Inability to work with other departments and people.

The Teamsters also state that Bosley and Selsavage received

complaints from other departments and employees concern-

ing delays associated with requests made to Dunaway, as well

as her rudeness and uncooperativeness. The Teamsters prof-

fered declarations by five employees, not including Bosley

and Salsavage, who say they experienced delays and rudeness

with Dunaway. Dunaway counters in her deposition that she

was never made aware of these complaints against her. She

also notes that one of the employees acknowledges in his

affidavit that he cannot recall any specific instances of prob-

lems with Dunaway, and points to Wilson's deposition testi-

mony that another employee was biased against Dunaway's

gender and national origin.

Dunaway also proffered evidence on animus and pretext

with regard to comments about her national origin and gen-

der, and comments directly related to the termination of her

employment. In addition to her own testimony, Dunaway

proffered Wilson's deposition as corroborating evidence that

she was not fired for being a poor employee but because

Bosley harbored an intense dislike for her because she was an

Asian and a woman, and for those reasons often exaggerated

the nature of incidents involving her. Wilson's deposition and

declaration would support findings of fact that:

National origin-related comments. Bosley would refer to

Dunaway as his "China doll," called Dunaway and an auditor

from Vietnam, "Little Gook," and questioned Dunaway about

whether she was born in the United States. Bosley would

talk to Dunaway "like something out of a Charlie Chan

movie" and use expressions like "chop chop." Bosley also

treated Dunaway differently than the Caucasian women who

worked in her office. Sever did not think non-Americans

should work for a union or that Dunaway should have the job

because she was Asian.

Gender-related comments. Sever stated that women do

not belong in the workplace, and that "they should either be

on their backs or on their knees scrubbing floors." Sever

said women do not have the mental capacities to handle

professional situations like men. Bosley referred to all wom-

en as "Sylvia," but did not call all men by one name. When

Dunaway was dressed in a tight shirt or short skirt, Bosley

would create an excuse for her to go to Sever's office so that

they could ogle her. Bosley once stood up after she left,

grabbed his crotch, and said "This is what she needs."

Bosley would take off his belt and snap it, while making

comments like "no checkie, no wash." Sever was also upset

that Judy Scott was an executive assistant because she was a

woman, and "should be home having children, watching her

kids." Sever further said that he thought Bosley should have

been promoted to Payroll Supervisor over Dunaway because

she was a woman.

Comments directly related to terminating Dunaway's

employment. Bosley said, "This goddamn Oriental bitch got

the job over me. I want to get rid of her." Bosley told Sever

he wanted to "get rid" of Dunaway because she was a woman.

Bosley expressed desire to terminate Dunaway because she

was Asian. Bosley said to Wilson: "I think I got something

on the China doll, something legitimate on the China doll."

In granting summary judgment for the Teamsters, the

district court ruled that Dunaway's pre-1993 job performance

was irrelevant in view of "uncontroverted evidence" that she

was unqualified for her position and that complaints about her

job performance continued. This ruling is inconsistent with

viewing the evidence most favorably to Dunaway, as it ig-

nores, for example, her proffered evidence of systemic expla-

nations to explain payment delays. The court also found that

the derogatory national origin and gender comments made by

Bosley and Sever were "stray remarks," which the court

defined as remarks "made outside the context of the chal-

lenged decision," and thus were not probative evidence that

Dunaway was fired for discriminatory reasons. This finding

ignores the four derogatory remarks about her national origin

and sex that were directly connected to the Teamsters' desire

to terminate Dunaway's employment. The credibility of her

witnesses and the weight of her evidence are not matters to

be considered at this stage of the proceedings. Reeves, 530

U.S. at 150.

We hold that Dunaway produced sufficient evidence to

entitle her to present her claims to a jury. Viewing the

evidence in the light most favorable to the non-moving party,

Dunaway presented sufficient evidence from which a reason-

able jury could find under the standards set out in Burdine,

450 U.S. at 253 n.6, and Neuren v. Adduci, Mastriani, Meeks

& Schill, 43 F.3d 1507, 1512 (D.C. Cir. 1995), that she was

performing at or near her employer's reasonable expecta-

tions. During twenty-five years of service, her only formal

unsatisfactory performance evaluation occurred in 1993, after

Bosley became her supervisor. Dunaway proffered evidence

that Bosley's negative evaluations of her work were less the

result of her job performance than of Bosley's intense dislike

for her because of her gender and national origin. In addi-

tion, Dunaway presented evidence, including derogatory

statements about her gender and national origin that were

made in connection with termination of her employment, from

which a reasonable jury could find that the purported expla-

nations for her termination were pretextual. Her evidence

would permit a reasonable jury to find that the Teamsters

terminated her employment because of either her national

origin or gender, and that the Teamsters' explanation is

unworthy of credence. See Aikens, 460 U.S. at 716.

C.

By contrast, the district court could appropriately grant

summary judgment on Dunaway's breach of contract and age

discrimination claims. As evidence of an implied contract,

Dunaway points to oral assurances made by Teamsters' offi-

cials at the time she was hired and several Teamsters' policies

and manuals. According to Dunaway, when she was hired,

after she passed a probationary period of employment, she

expected that she would remain employed at the Teamsters

until retirement, because as then-General Secretary-Treasur-

er Thomas Flynn told her, the Teamsters was a good place to

work and took care of its employees. Dunaway further states

that Judy Scott, then-Executive Assistant to the General

President, told Dunaway that she was covered under the

Teamsters' Retirement Plan and Local 2's Agreement. In

addition, Dunaway points to the manuals setting forth the

Retirement Plan, Local 2's Agreement, and the personnel

policies for the Accounting Department, as well as a confiden-

tiality agreement she signed and an anti-discrimination policy.

In the District of Columbia, employment contracts for no

definite period of time are terminable at the will of either

party absent clear evidence of the parties' intent to contract

otherwise. Willoughby v. Potomac Elec. Power Co., 100 F.3d

999, 1001 (D.C. Cir. 1996); Minihan v. Am. Pharm. Ass'n,

812 F.2d 726, 727 (D.C. Cir. 1987); Hodge v. Evans Fin.

Corp., 707 F.2d 1566, 1569 (D.C. Cir. 1983); Sullivan v.

Heritage Found., 399 A.2d 856, 860 (D.C. 1979). Although

the oral assurances relied on by Dunaway are insufficiently

precise to raise a genuine issue regarding the Teamsters'

intent upon employing her, see Willoughby, 100 F.3d at 1001;

Minihan, 812 F.2d at 727-28, it is well established that

material issues of fact exist as to whether an employment

manual and related materials between a former employee and

a former employer create a contract. See Yesudian v. How-

ard Univ., 153 F.3d 731 (D.C. Cir. 1998); Nickens v. Labor

Agency of Metro. Washington, 600 A.2d 813 (D.C. 1991);

Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613

(D.C. 1985).

Dunaway, however, cannot rest her implied contract claim

on the Retirement Plan, which expressly states that it shall

not be construed as giving any member in the Retirement

Plan "the right to be retained in the employ of the [Team-

sters], and all employees shall remain subject to discharge

... to the same extent as if the [Retirement] Plan had never

been executed." The other manuals and policies to which she

points also provide no evidence from which a reasonable jury

could find an implied contract of permanent employment.

Dunaway did not proffer evidence that she was told that she

could rely on Local 2's Agreement with regard to termination

from employment. To the contrary, she admitted in her

deposition that as Payroll Supervisor she was not covered by

Local 2's Agreement and that sometime after 1992 she was

told by Scott that non-bargaining employees would be cov-

ered by a separate benefits document. Nor did she offer

evidence to show that the personnel manual drew a distinc-

tion between probationary and permanent employees or set

preconditions to termination, and thus was the type of manual

that could rebut the at-will presumption. See Nickens, 600

A.2d at 817-18; Wheeler, 496 A.2d at 615-16. Likewise, she

failed to offer any evidence that the confidentiality agreement

or the anti-discrimination policy included language clearly

showing that the Teamsters intended it to confer contractual

rights regarding employment. Taken together, the oral rep-

resentations and various manuals and policies fail to consti-

tute evidence that she had an implied contract of permanent

employment as would entitle her to certain rights prior to

being terminated.

Dunaway's age-discrimination claim fares no better, for she

failed to proffer evidence from which a reasonable jury could

find that she was discriminated against on the basis of age, in

violation of the ADEA and the D.C. Human Rights Act, when

she was replaced by a woman who was seven years her

junior. The Teamsters' decision to replace her with a youn-

ger woman is insufficient for a jury to conclude that she "lost

out because of [her] age," O'Connor, 517 U.S. at 312; Adkins

v. Safeway Inc., 985 F.2d 1101, 1104 (D.C. Cir. 1993); Cuddy

v. Carmen, 694 F.2d 853, 857-58 (D.C. Cir. 1982). Dunaway

proffered no other evidence that she was terminated because

of her age and, to the contrary, her Statement of Material

Facts insisted that the only reason she was fired was that she

was an Asian woman. Moreover, to the extent that she links

her age discrimination claim to the fact that she was only five

years away from retirement and claims that the Teamsters

were trying to avoid paying her retirement benefits, Hazen

Paper Co. v. Biggens, 507 U.S. 604 (1993), is dispositive. The

Court in Hazen observed that "an employee's age is analyt-

ically distinct from his years of service," and held that "an

employer does not violate the ADEA just by interfering with

an older employee's pension benefits that would have vested

by virtue of the employee's years of service," id. at 1707-08.

Accordingly, because a reasonable jury could find by a

preponderance of the evidence in Dunaway's favor on her

gender and national origin claims, we reverse the grant of

summary judgment and remand the case for trial on those

claims. In all other respects, we affirm the grant of sum-

mary judgment to the Teamsters because Dunaway's contract

and age discrimination claims fail either as a matter of law or

on evidentiary grounds.