Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on Vanguard’s Motion for Summary Judgment, filed October 8, 2010 (Doc. 134) (“Motion”). The Court held a hearing on November 8, 2010. The primary issues are: (i) whether Plaintiff Christine Clayton has established a genuine question of material fact whether she was discriminated against on the basis of her gender in violation of Title VII, 42 U.S.C. § 2000e-2 and the New Mexico Human Rights Act, NMSA 1978, § 28-1-7 (“NMHRA”); (ii) whether Clayton has established a genuine question of material fact whether she was discriminated against on the basis of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 to 634 (“ADEA”) and the NMHRA; (iii) whether Clayton can establish a primafacie case under the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”), and, if Clayton can establish a prima-facie case, whether Defendant Vanguard Car Rental U.S.A., Inc. has sufficiently established that the wage disparity was justified such that no rational jury could find to the contrary; (iv) whether there is an issue of fact whether Vanguard’s Associate Handbook or practices created an objectively reasonable expectation that employees would be terminated only after progressive discipline or whether Vanguard’s anti-discrimination policy created an implied contract; and (v) whether there is an issue of fact whether Vanguard failed to follow any agreement regarding progressive discipline, and whether there is an issue of fact whether Clayton has a claim under the implied-covenant-of-good-faith-and-fair-dealing for Vanguard’s failure to follow its antidiscrimination policy. The Court finds that Clayton has established the elements of a prima-facie case of age discrimination under the ADEA and of gender discrimination under Title VII. Vanguard has offered a legitimate nondiscriminatory reason for Clayton’s termination, but there is a genuine issue of material fact whether Vanguard’s proffered reason for Clayton’s termination is pretextual. There is also evidence that Vanguard’s legitimate nondiscriminatory reason for Clayton’s termination is pretext for gender discrimination, because there are genuine issues of material fact whether Jeremy Ham was biased on account of Clayton’s gender and whether Ham’s actions caused, in part, Clayton’s termination. The Court will therefore deny Vanguard’s request that it grant summary judgment on Clayton’s federal discrimination claims. Because the Supreme Court of New Mexico has stated that it looks to federal civil rights adjudication for guidance in interpreting the NMHRA, and because the parties incorporate their arguments and analysis regarding Clayton’s federal discrimination claims into their arguments regarding Clayton’s NMHRA claims, the Court will deny Vanguard’s request that it grant summary judgment on Clayton’s claims under the NMHRA. The Court finds that Clayton has established a prima-facie case that the male who replaced her was paid more for substantially equal work, but it also finds that Vanguard has proved that he was paid more for factors other than sex. The Court finds that Clayton has not established a prima-facie case that she was paid less than male general managers in other markets for substantially equal work, because she has not demonstrated that the other general managers performed substantially equal work. The Court will therefore grant summary judgment on Clayton’s EPA claim. The Court will not grant summary judgment on Clayton’s breach-of-implied-contract claim regarding progressive discipline, because there is a genuine issue of material fact whether the Associate Handbook and Vanguard’s employment practices created an objectively reasonable expectation that Vanguard would use progressive discipline, except in cases of serious offenses such as theft, and there is a genuine issue of material fact whether Clayton’s offense was a serious offense. Although it may be that the Court need not decide Clayton’s breach-of-implied-contract claim regarding Vanguard’s anti-discrimination and investigation policy, the Court finds that there is no genuine issue of fact whether Vanguard’s policies created an implied contract. The Court will not grant summary judgment on Clayton’s implied-eovenant-of-goodfaith-and-fair-dealing claim, because there is a genuine issue of material fact whether Vanguard deprived Clayton of the benefits of its agreement regarding progressive discipline. Although it may be that the Court need not decide whether it should grant summary judgment on Clayton’s implied-covenant-of-good-faith-and-fair-dealing claim related to Vanguard’s anti-discrimination and investigation policies, it finds that there is not a genuine issue of material fact regarding this claim. The implied covenant of good faith and fair dealing that arises out of the implied contract of employment regarding Vanguard’s discipline policies would not cover Clayton’s claim that Vanguard did not follow its anti-discrimination or investigation policies. Under New Mexico law, an implied contract of employment covers only those matters on which there were representations sufficiently specific for a reasonable employee to rely. Any implied contract of employment that Vanguard would follow progressive discipline covers only matters regarding progressive discipline and not discrimination or investigation of discrimination. Although the Court may not need to decide the issues, the Court finds that Vanguard’s anti-discrimination and investigation policies would not create an implied contract, because they are not sufficiently specific; therefore, there is no contract with which to impose on Vanguard a duty to act in good faith. FACTUAL BACKGROUND The Court begins by noting that the parties did not properly present the evidentiary record to the Court. D.N.M.LR-Civ. 56.1(b) states: The memorandum in support of the motion must initially set out a concise statement of all material facts as to which movant contends no genuine issue exists. The facts must be numbered and must refer with particularity to those portions of the record upon which movant relies. A memorandum in opposition to the motion must contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the opposing party relies, and must state the number of the movant’s fact that is disputed. All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted. D.N.M. LR-Civ. 56.1(b). Vanguard set forth twenty pages of allegedly undisputed material facts. In responding to Vanguard’s asserted undisputed material facts, Clayton often disputed a fact by citing to a range of pages in her Response, which contained citations to the record interspersed with legal argument and case law, as evidence that the fact was disputed. Clayton asserted additional facts in her Response, but did not set them forth as additional undisputed material facts. Vanguard did not address any of these additional facts as undisputed material facts; therefore, it was not clear to the Court whether these additional facts were disputed. The Court has done the best it can on the record before it. “It is not the job of this court to search the record ... for evidence.... ” Adams v. Dyer, 223 Fed.Appx. 757, 762 (10th Cir.2007). 1. Individuals Involved. Clayton was born in 1958. See, e.g., Motion ¶ 1, at 5 (setting forth this fact); Plaintiffs Response in Opposition to Defendant’s Motion for Summary Judgment at 35, filed October 25, 2010 (Doc. 142) (“Response”) (admitting this fact). Vanguard’s predecessor, National Car Rental, hired Clayton in 1978 as a counter representative at the Albuquerque, New Mexico airport. See, e.g., Deposition of Christine Clayton at 6:9-14, 7:4-18 (taken August 25, 2009), filed October 8, 2010 (Doc. 135-1); Motion ¶ 1, at 5 (setting forth this fact); Response at 35 (admitting this fact). Clayton lists no college on her resume. See, e.g., Resume of Christine Clayton at 1, filed October 27, 2010 (Doe. 143-1); Motion ¶ 1, at 5 (setting forth this fact); Response at 35 (admitting this fact). National Car Rental promoted Clayton to lead counter agent and later airport manager. See, e.g., Clayton Depo. at 8:2-9:19; Motion ¶ 1, at 5 (setting forth this fact); Response at 35 (admitting this fact). National Car Rental then promoted Clayton to city manager in Brownsville, Texas in 1989. See, e.g., Clayton Depo. at 10:3-12, 12:2-22; Motion ¶ 1, at 5 (setting forth this fact); Response at 35 (admitting this fact). Clayton returned to Albuquerque in 1993 as a station manager. See, e.g., Clayton Depo. at 15:2-16:1; Motion ¶ 2, at 5 (setting forth this fact); Response at 35 (admitting this fact). Clayton maintained her rate of pay despite the demotion to station manager; soon afterward National Car Rental promoted her to city manager in Albuquerque. See, e.g., Clayton Depo. at 19:1-21; Motion ¶ 2, at 5 (setting forth this fact); Response at 35 (admitting this fact). In either 2001 or 2002, National Car Rental promoted Clayton to general manager of all New Mexico operations; she remained general manager until her termination in February, 2008. See, e.g., Clayton Depo. at 22:10-14; Motion ¶ 2, at 5-6 (setting forth this fact); Response at 35 (admitting this fact). In 2003, Vanguard became Clayton’s employer. See, e.g., Clayton Depo. at 23:24-24:4; Motion ¶ 2, at 6 (setting forth this fact); Response at 35 (admitting this fact). Regional Vice President David Davenport promoted Clayton to her position in Brownsville. See, e.g., Clayton Depo. at 12:2-22; Motion ¶ 3, at 6 (setting forth this fact); Response at 35 (admitting this fact). Davenport was later Clayton’s boss in Albuquerque; overall, Clayton worked under him for over fifteen years. See, e.g., Motion ¶ 3, at 6 (setting forth this fact); Response at 35 (admitting this fact). Davenport supported Clayton throughout her career and promoted her several times. See, e.g., Deposition of David Davenport at 252:2-20 (taken February 9, 2010), filed October 8, 2010 (Doc. 135-2); Motion ¶ 3, at 6 (setting forth this fact); Response at 35 (admitting this fact). Clayton “highly regarded” Davenport. Clayton Depo. at 123:25. See Motion ¶ 3, at 6 (setting forth this fact); Response at 35 (admitting this fact). Clayton testified she did not believe Davenport made decisions on the basis of gender, but that his decisions to terminate Stacy Jered, Rebecca Rivers, and Linda Black were “in part because of their gender.” Clayton Depo. at 183:l-8. When Davenport left Vanguard in December, 2007, Clayton congratulated him. See, e.g., Clayton Depo. at 165:24-166:4; Motion ¶ 3, at 6 (setting forth this fact); Response at 35 (admitting this fact). Mike Filomena replaced Davenport as Clayton’s Regional Vice President in late December 2007. See, e.g., Clayton Depo. at 124:17-24, 167:12-17; Motion ¶ 4, at 6 (setting forth this fact); Response at 36 (admitting this fact). Clayton did not know Filomena before that change. See, e.g., Clayton Depo. at 167:12-163:12; Motion ¶ 4, at 6 (setting forth this fact); Response at 36 (admitting this fact). Filomena reported to John Murphy, Vice President of Operations. See, e.g., Deposition of Mike Filomena at 83:10-23 (taken February 10, 2010), filed October 8, 2010 (Doc. 135-3); Motion ¶ 4, at 6 (setting forth this fact); Response at 36 (admitting this fact). Bill Baker was Manager of Human Resources (“HR”) in Clayton’s region. See, e.g., Deposition of Bill Baker at 6:15-18 (taken February 10, 2010), filed October 8, 2010 (Doc. 135-4); Motion ¶ 4, at 6 (setting forth this fact); Response at 36 (admitting this fact). Michelle Choquette was Vice President of HR for all of Vanguard. See, e.g., Baker Depo. at 86:10-14; Motion ¶4, at 6 (setting forth this fact); Response at 36 (admitting this fact). Filomena, Murphy, Baker, and Choquette participated in site visits, conference calls, and meetings regarding Clayton in late 2007 and early 2008, which led to the decision to terminate Clayton’s employment. See, e.g., Baker Depo. at 87:7-24, 142:24-144:5; Filomena Depo. at 24:24-26:11, 41:20-42:19; Deposition of John Murphy at 14:11-15:1 (taken August 12, 2010), filed October 8, 2010 (Doc. 135-5). 2. Clayton’s Performance as General Manager. Clayton’s 2006 Performance Evaluation states that her “relationship with [Revenue Management System (“RMS”)] must improve.” 2006 Performance Evaluation/Development Plan at 3, filed October 27, 2010 (Doc. 143-2). It also states that Clayton needed to “improve ... her teamwork outside of the Albuquerque market,” “not alienate people,” and that she was sometimes “perceived as abrasive or short with people.” 2006 Performance Evaluation at 3. See Motion ¶ 7, at 7 (setting forth this fact); Response at 36 (not controverting this fact). The 2007 Performance Evaluation states that Clayton “still needs to work on her relationship with RMS[;] [t]he relation did not improve in 2007.” 2007 Performance Evaluation/Development Plan at 4, filed October 7, 2010 (Doc. 143-3). After Filomena became Clayton’s new Vice President, he visited Albuquerque in January 2008. See, e.g., Filomena Depo. at 16:12-14, 17:2-9; Motion ¶ 5, at 7 (setting forth this fact); Response at 36 (not controverting this fact). Filomena’s impression was that Clayton’s market was underperforming, and that there were problems in employee retention and counter sales, but in January 2008 the Albuquerque market was ranked eighth out of sixty markets. See Albuquerque Performanee Ranking at 1, 2008 Fiscal Year, filed October 25, 2010 (Doc. 142-6); Filomena Depo. at 25:1—19. Filomena’s impression was that Clayton seemed to take little responsibility for the problems, finger-pointing and blaming others, and that there seemed to be a lack of teamwork and leadership from Clayton. See Filomena Depo. at 26:12-30:20. Filomena had conversations with other managers at the regional level about Clayton. See, e.g., Filomena Depo. at 33:3-13; Motion ¶ 6, at 7 (setting forth this fact); Response at 36 (not controverting this fact). Filomena spoke with Davenport during his transition into the Regional Vice President position about Clayton’s strengths, and about her challenges communicating with the HR department and cooperating with Revenue Management System (“RMS”) personnel, particularly Ham, who supervised that group. See Filomena Depo. at 18:1—19:18. Filomena also spoke to Baker about the internal perception that Clayton had challenges working with RMS and HR, and had trouble working in a team environment. See, e.g., Filomena Depo. at 34:5-13; Motion ¶ 8, at 8 (setting forth this fact); Response at 36 (not controverting this fact). Filomena spoke with regional controller Jim Ducker and fleet manager Shane Habib, both of whom gave him unfavorable comments about Clayton. See Filomena Depo. at 35:8-13, 37:2-7. At one point, Choquette heatedly complained to Davenport about Clayton’s lack of cooperation and support. See, e.g., Davenport Depo. at 176:25-177:16, 183:8-18. Filomena also heard from Choquette that Clayton had been very difficult to work with on some recruiting strategies, and had become competitive with employees in HR. See Filomena Depo. at 38:1-14. 3. Clayton’s Relationship with RMS. RMS had the responsibility to maximize revenue according to corporate directives by using the fleet and setting car rental rates in reference to competitors. See Clayton Depo. at 130:1-131:22. RMS had computer tools and information for setting rates that managers in the field did not have. See, e.g., Clayton Depo. at 133:5-13; Motion ¶ 10, at 8 (setting forth this fact); Response at 36 (not controverting this fact). RMS had the “final say” on rates for the individual locations. Davenport Depo. at 62:23-25. See Motion ¶ 10, at 8 (setting forth this fact); Response at 36 (not controverting this fact). Clayton challenged RMS on rental rates more than all the other eleven markets in the region combined. See, e.g., Davenport Depo. at 69:24-70:4; Motion ¶ 11, at 8 (setting forth this fact); Response at 36 (admitting this fact). Such arguments from other markets were “seldom,” while Clayton’s were “numerous.” Davenport Depo. at 65:2-10. See Motion ¶ 11, at 8 (setting forth this fact); Response at 36 (admitting this fact). The other markets had a “great relationship” with RMS, but Clayton’s was “horrible,” “disjointed,” and “harmful to the region.” Davenport Depo. at 75:19-76:1; Motion ¶ 11, at 8-9 (setting forth this fact); Response at 36 (admitting this fact). Davenport testified that Clayton’s electronic mail transmissions to RMS could be “demanding and close-minded.” Davenport Depo. at 73:14-74:21. Clayton told Davenport in an electronic mail transmission that she was concerned about RMS trying to manage her operation from its base in Tulsa, Oklahoma, to which Davenport replied that she was overreacting. See, e.g., Electronic Mail Transmission Between David Davenport and Chris Clayton at 1 (dated February 21, 2007), filed October 27, 2010 (Doc. 143-4); Motion ¶ 11, at 9 (setting forth this fact); Response at 36 (not controverting this fact). Clayton’s conduct frustrated and irritated RMS personnel, including RMS manager, Jeremy Ham. See, e.g., Deposition of Jeremy Ham at 11:23-12:5 (taken February 26, 2010), filed October 8, 2010 (Doc. 135-8). Ham sent an electronic-mail transmission to Clayton on September 12, 2006, detailing Clayton’s allegedly severe problems communicating. See Electronic-Mail Transmission from Jeremy Ham to Chris Clayton at 1 (dated September 12, 2006), filed October 27, 2010 (Doc. 143 — 5). Clayton had previously worked well with Ham. See, e.g., Clayton Depo. at 265:3-15; Motion ¶ 13, at 9 (setting forth this fact); Response at 36 (not controverting this fact). Clayton thought that Ham was a good employee and respected him. See, e.g., Clayton Depo. at 265:10-15; Motion ¶ 13, at 9 (setting forth this fact); Response at 36 (not controverting this fact). Clayton has no reason to doubt either Ham’s or Davenport’s credibility. See, e.g., Clayton Depo. at 125:11-19; Motion ¶ 13, at 9 (setting forth this fact); Response at 36 (not controverting this fact). As RMS Manager, Ham was never Clayton’s supervisor and was outside her chain of command. See, e.g., Affidavit of Bill Baker ¶ 4, at 2, filed October 8, 2010 (Doc. 135-9); Motion ¶ 13, at 9 (setting forth this fact); Response at 36 (not controverting this fact). Davenport mediated several conversations with Clayton and Ham, and told both to calm down and try to work out their differences. See Davenport Depo. at 38:25-39:17. After these meditations, the communications between Ham and Clayton would improve for a short time, then revert back to continued argument. See, e.g., Motion ¶ 14, at 10 (setting forth this fact); Response at 37 (not controverting this fact). Clayton’s problems with RMS and others pre-dated Ham’s management of RMS; Ham’s predecessor Gerard Nobrega observed a similar poor relationship between Clayton and RMS employees. See Affidavit of Gerard Nobrega ¶¶ 3-4, at 1-2 (dated October 8, 2010), filed October 8, 2010 (Doc. 135-10). Clayton’s prior RMS controller, Babyson Mathai, found Clayton “demanding, disrespectful, and unprofessional” to the point where he felt she created an “uncomfortable work environment” and asked for a transfer. Affidavit of Babyson Mathai ¶¶ 5-7, at 2 (dated October 8, 2010), filed October 8, 2010 (Doc. 135-11). Clayton’s assistant manager, Colby Phillips, found her “argumentative, critical, and demeaning.” Affidavit of Colby Phillips ¶¶ 2-4, at 1-2 (dated October 7, 2010), filed October 8, 2010 (Doc. 135-12). See Motion ¶ 15, at 10 (setting forth this fact); Response at 37 (not controverting this fact). On the other hand, Clayton did not knowingly disregard the HR group’s policies and she did not make demands on the HR group. See Clayton Aff. ¶ 11, at 5. Davenport counseled Clayton numerous times over the years about the need to remedy her communication deficiencies, and the need to fix her dysfunctional relationships with RMS, HR, and other employees. See Affidavit of David Davenport ¶4, at 2 (dated October 7, 2010), filed October 8, 2010 (Doc. 135-6). Davenport sent several electronic-mail transmissions to Clayton, one of which was disciplinary, telling her that she needed to change her relationship with RMS; he also had several phone calls with her and Ham. See Davenport Depo. at 36:6-25, 141:5-9, 181:15-24; Electronic-Mail Transmission from David Davenport to Chris Clayton at 2 (dated July 12, 2006), filed October 27, 2010 (Doc. 143-6). In October 2006, Davenport informed Clayton that, if she could not repair her disjointed relationship with RMS, her job would be in jeopardy. See Clayton Depo. at 153:17-154:10. Baker also counseled Clayton on her performance and behavior during a telephone call that Clayton initiated. See Baker Depo. at 158:2-12. Vanguard’s employee handbook states under the bold heading “Pro-People Philosophy” that it has “chosen to be union-free.” Associate Handbook at 14, filed October 8, 2010 (Doc. 135-13). See Motion ¶ 21, at 11 (setting forth this fact); Response at 37 (admitting this fact). Vanguard took this issue seriously, and as general manager, Clayton was responsible for enforcing the anti-union policy. See, e.g., Clayton Depo. at 275:20-276:7, 278:18-20; Motion ¶ 21, at 11 (setting forth this fact); Response at 37 (admitting this fact). As general manager, Clayton attended anti-union training. See, e.g., Clayton Depo. at 276:8-15; Motion ¶ 21, at 11 (setting forth this fact); Response at 37 (admitting this fact). After Filomena became her supervisor, Clayton received a letter addressed to him from four hourly employees, asking for a salary increase. See Salary Increase Justification Letter at 1 (dated February 6, 2008), filed October 27, 2010 (Doc. 143-8). During Filomena’s site visit, Clayton complained that her employees’ pay was too low. See, e.g., Filomena Depo. at 22:2-17; Motion ¶ 20, at 11 (setting forth this fact); Response at 37 (admitting this fact). Clayton signed her name to the letter alongside that of the employees and sent it by facsimile transmission to Baker without explanation or a cover sheet. See Clayton Depo. at 283:11-284:6. Clayton testified that Baker and Filomena “told her they were unhappy that [she] signed [the letter].” Clayton Depo. at 294:19-21. See Motion ¶ 22, at 12 (setting forth this fact); Response at 37 (admitting this fact). Baker and Filomena never told Clayton that they believed that the letter potentially compromised Vanguard’s anti-union policy. See Clayton Depo. at 294:19-25. Clayton states that she signed the letter merely to show receipt before sending it by facsimile transmission to the HR Department. See, e.g., Clayton Depo. at 283:11-284:2, 293:13-24; Motion ¶ 23, at 12 (setting forth this fact); Response at 37 (admitting this fact). Clayton did not write “received by Christine Clayton,” or make any other distinction between her signature or the employees’ signatures. See, e.g., Clayton Depo. at 283:11-284:2, 294:3-6; Motion ¶ 23, at 12 (setting forth this fact); Response at 37 (admitting this fact). The union-activity implications of Clayton’s signature on the letter disturbed Baker and Filomena; they believed it called for severe disciplinary action and escalated the letter to their boss, Murphy. See, e.g., Filomena Depo. at 41:20-42:19, 54:22-55:12; Baker Depo. at 82:22-83:24; Motion ¶ 24, at 12 (setting forth this fact); Response at 38 (not controverting this fact). Filomena was especially concerned, because his primary car-rental competitor, Hertz, had union employees in Albuquerque. See Filomena Depo. at 55:15-56:1. Murphy was displeased after reading the letter, because of its apparent endorsement of union-like organizing activity, which Vanguard actively opposed. See, e.g., Murphy Depo. at 26:10-21; Filomena Depo. at 60:3-9. In a conference call, Baker, Filomena, Murphy, and Choquette discussed Clayton’s signature on the letter, Clayton’s pri- or performance, and her communication problems with RMS and HR. See Filomena Depo. at 59:17-61:21; Baker Depo. at 86:10-88:1. In his deposition, Filomena testified that there had been a pattern from all the folks that I had talked to with Chris. Her performance in — in the station, especially in the last two years, had started to deteriorate in certain areas. Some areas she was doing well in. All the challenges that she had had with RMS and HR. There was the visit that I had with Chris and her team in Albuquerque. So all of those things I believe contributed to the — the piece where we terminated her, but the final point was the letter itself. Filomena Depo. at 71:5-16. Baker also believed that the people who participated in the conference call perceived Clayton’s signature to be the last straw. See Baker Depo. at 143:23-144:5. Murphy felt Clayton’s signature on the letter was a terminable offense and recommended termination to Filomena. See Murphy Depo. at 18:1-6, 32:9-18. Filomena understood this opinion and recommendation to be a directive to terminate Clayton’s employment. See Filomena Depo. at 64:9-15. Filomena undertook to implement the termination along with Baker. See Filomena Depo. at 65:12-16. Filomena testified that, following the conference call, Murphy called him and asked him to terminate Clayton. See Filomena Depo. at 64:9-15. Murphy testified that, during the conference call with Filomena and Baker, he suggested Baker and Filomena speak to the legal and HR team, that Filomena and Baker made the decision to terminate Clayton’s employment, and that he did not recall any other conversations with Filomena and Baker. See Murphy Depo. at 31:9-33:1, 36:3-6. Baker and Filomena went to Albuquerque on February 12, 2008 to inform Clayton of her termination. See Filomena Depo. at 68:18—70:1. Filomena told Clayton that they were going to make a change in leadership and that she was not at the top of her game. See Clayton Depo. at 171:9-22. Filomena told Clayton that the letter was the final point that contributed to her termination. See Filomena Depo. at 72:6-16. 4. Clayton’s Complaints Regarding her Employment. While she was working with National Car Rental, Clayton was aware of its zero-tolerance discrimination policy and the procedures for making a complaint. See, e.g., Clayton Depo. at 10:21-11:21; Motion ¶ 29, at 14 (setting forth this fact); Response at 38 (admitting this fact). Wdien her employer changed to Vanguard, Clayton had responsibility to implement the same policies, including a new “alert line” that employees could call with complaints. Clayton Depo. at 26:14-28:6. See Motion ¶ 29, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton conducted anti-discrimination training in Albuquerque for her employees, including distributing a new handbook for Vanguard when it took over in 2003. See, e.g., Clayton Depo. at 28:24-29:23, 36:11-24; Motion ¶ 29, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton received training on diversity, inclusiveness, and sensitivity from Vanguard. See, e.g., Clayton Depo. at 39:1-40:3; Motion ¶ 29, at 14 (setting forth this fact); Response at 38 (admitting this fact). Vanguard took these policies seriously. See, e.g., Clayton Depo. at 40:24-41:8; Motion ¶29, at 14 (setting forth this fact); Response at 38 (admitting this fact). Vanguard’s written Equal Employment Opportunity (“EEO”) Policy in its employee handbook states that complaints of discrimination should be brought to management or to an HR representative, after which an investigation and any necessary remedial action may occur. See, e.g., Associate Handbook at 12-13; Motion ¶ 30, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton was aware of this protocol and saw it used successfully in the past. See, e.g., Clayton Depo. at 43:20-47:25; Motion ¶ 30, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton did not know of any complaints of discrimination or harassment ever brought by a general manager against Vanguard or its predecessors. See, e.g., Clayton Depo. at 49:11-50:9; Motion ¶ 31, at 15 (setting forth this fact); Response at 38 (admitting this fact). Ham initiated the October 2006 conference call with Davenport and Baker following the September 12, 2006 electronic-mail transmission. See, e.g., Clayton Depo. at 150:1-151:20; Motion ¶ 34, at 14 (setting forth this fact); Response at 38 (admitting this fact). During that call, Clayton complained that Ham was creating a “hostile work environment,” and that Ham had personally attacked her and her work performance. See, e.g., Clayton Depo. at 151:21-152:4; Motion ¶ 34, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton testified: A. [Ham] had written me an e-mail based on some questions that I had asked of Noah Millsap in early September — so roughly a month prior to this phone call — that was unprofessional. Q. Ms. Clayton ... you said “Jeremy Ham had personally attacked me” and you had begun to discuss an email that was at issue, do you recall that? A. Yes. Q. Okay. Are there any other e-mails when you would characterize Jeremy Ham as having personally attacked you, your work performance, or your experience? A. Not to that degree, no. Clayton Depo. at 152:21-153:14; Motion ¶ 34, at 15-16 (setting forth this fact); Response at 38 (admitting this fact). During the call, Clayton informed Baker and Davenport that she perceived Ham’s remarks in his September 12, 2006 electronic mail transmission to be sexist, and that she believe Davenport was using a double standard regarding Ham’s versus her remarks. See Clayton Depo. at 262:5-263:17; Plaintiffs Answers to Defendant’s Second Set of Interrogatories No. 13, at 3-7. On its face, the electronic-mail transmission from Ham did not contain any sexist or gender references to Clayton. See, e.g., Electronic-Mail Transmission from Jeremy Ham to Chris Clayton at 1 (dated September 12, 2006); Motion ¶ 35, at 16 (setting forth this fact); Response at 38 (not controverting this fact). Baker testified that, in the conference call, neither Clayton nor anyone else suggested the hostile work environment to which Clayton referred was age related. See, e.g., Baker Depo. at 181:3-21; Motion ¶ 36, at 16 (setting forth this fact); Response at 38 (not controverting this fact). Clayton never complained of age discrimination to Davenport or Baker. See Baker Depo. at 181:12-15; Davenport Depo. at 250:11-13. Clayton cannot recall making an age discrimination complaint at any time to anyone. See, e.g., Clayton Depo. at 260:21-261:9; Motion ¶ 33, at 14 (setting forth this fact); Response at 38 (admitting this fact). Clayton knew all the relevant policies and complaint procedures, but never called the alert line to make any gender discrimination complaint. See, e.g., Clayton Depo. at 258:1-261:9; Motion ¶ 33, at 14 (setting forth this fact); Response at 38 (admitting this fact). While Clayton complained generally of pay issues to Davenport, she did not relate them to her gender. See, e.g., Clayton Depo. at 260:7-20; Motion ¶ 33, at 14 (setting forth this fact); Response at 38 (admitting this fact). Other than her alleged statements in the October 2006 conference call, Clayton never made any complaint to anyone at Vanguard about gender discrimination. See, e.g., Clayton Depo. at 262:9-13; Motion ¶ 38, at 17 (setting forth this fact); Response at 38 (admitting this fact). No person at Vanguard — other than Ham — ever made any statement to her that she considered discriminatory based on gender. See, e.g., Clayton Depo. at 264:5-10; Motion ¶ 38, at 17 (setting forth this fact); Response at 38 (admitting this fact). Neither Ham nor anyone else at Vanguard ever made a disparaging remark about her age. See, e.g., Clayton Depo. at 115:8-12, 271:1-5; Motion ¶ 38, at 17 (setting forth this fact); Response at 38 (admitting this fact). In discovery, three electronic-mail transmissions were produced in which Ham referred to Clayton as “insane Jane” and “crazy Betty.” Electronic-Mail Transmissions, filed October 27, 2010 (Doc. 143-4); Ham Depo. at 11:5-14, 37:8-12. Ham admitted these electronic-mail transmissions were unprofessional and reflected his long-term frustration with Clayton’s arguments with RMS. See Ham Depo. at 11:23-12:5, 37:10-23. Clayton was unaware of these electronic-mail transmissions while she was employed, and Ham never made these remarks directly to her. See Clayton Depo. at 270:1-19. Clayton does not point to any other comments that Ham made about her aside from these electronic-mail transmissions. See Clayton Depo. at 271:25-273:3. No manager or decision maker in Clayton’s chain of command was aware of the electronic-mail transmissions that Ham sent. See, e.g., Davenport Depo. at 76:5-11; Baker Depo. at 163:4-21; Filomena Depo. at 96:22-97:12; Murphy Depo. at 60:21-61:11. In her Charge of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”), Clayton referred only to generic hostility from Ham, and did not allege age or gender based harassment; and in her affidavit supporting the Charge, Clayton did not reference hostility or Ham. The Intake Notes for the EEOC Charge state that Clayton called Ham “disagreeable and argumentative,” that she complained to Davenport about Ham’s hostility, but that she did not refer to age or gender when she complained to her employer. Intake Notes, filed October 8, 2010 (Doc. 135-16). 5. Vanguard’s Associate Handbook and Progressive Discipline Policies. Vanguard became Clayton’s employer in 2003; at that time, Clayton signed an agreement accepting and creating a new employment relationship with Vanguard. See, e.g., Clayton Depo. at 23:24-24:10; Motion ¶ 42, at 18 (setting forth this fact); Response at 39 (admitting this fact). Clayton received an Associate Handbook from Vanguard and relies on it for her claims. See, e.g., Clayton Depo. at 228:20-230:13; Motion ¶ 43, at 18 (setting forth this fact); Response at 39 (admitting this fact). The Associate Handbook contains various at-will provisions, including the Preface, and a separate “Employment At-Will” heading, which states that “employment may be terminated with or without cause, as well as, with or without notice at any time at the option of either the associate or Vanguard.” Associate Handbook at 6,12. See Motion ¶ 43, at 18 (setting forth this fact); Response at 39 (admitting this fact). Clayton signed an acknowledgment form upon receipt of the Associate Handbook. See, e.g., Clayton Depo. at 230:1-13, 231:1-11; Motion ¶ 44, at 19 (setting forth this fact); Response at 39 (admitting this fact). The Acknowledgment states: “I further acknowledge that this handbook or any other communication by management representatives is not intended to create, in any way, an expressed or implied contract and that my employment is at will unless [sic].” Associate Handbook at 51. See Motion ¶44, at 19 (setting forth this fact); Response at 39 (admitting this fact). Clayton understood that the at-will language of the acknowledgment was the policy of Vanguard. See Clayton Depo. at 254:11-256:1; Motion ¶ 44, at 19 (setting forth this fact); Response at 39 (admitting this fact). The provisions of the Associate Handbook referring to progressive discipline and termination state: The specific nature of the offense will ultimately guide the level and course of corrective action. Suspension or termination is sometimes appropriate for certain types of offenses. There may be situations where these steps may be bypassed due to the serious nature of the offense. Corrective Action may involve four sequential steps: • Step I Coaching Discussion • Step II Documented Discussion • Step III Written Warning • Step IV Final Disposition Involuntary Termination — Depending upon the severity of a situation or policy violation, disciplinary action up to and including immediate termination may be taken at the Company’s sole discretion. Involuntary terminations may occur as a result of reorganizations, job elimination, reduction of workforce, violation of Company policy or unsatisfactory work performance. Associate Handbook at 18-19. The Associate Handbook states that Clayton was an at-will employee, that termination may occur without progressive discipline, and that termination may occur at the company’s sole discretion. See Clayton Depo. at 233:3-236:23. Murphy felt Clayton’s signature on the letter was a severe and terminable offense for which progressive discipline would not apply, especially considering her training on union avoidance, and recommended termination to Filomena. See Murphy Depo. at 18:1-6, 32:9-18, 48:20-49:20. Four termination notices for employees which Clayton signed do not reflect any progressive discipline in the areas on the form set aside for noting such discipline. See Counseling Reviews, filed October 27, 2010 (Doc. 143-10). Clayton cannot recall whether any progressive discipline was provided to any of these employees before their termination. See Clayton Depo. at 237:1-250:25. At her deposition, counsel asked Clayton whether she was “required under the policy to follow all four steps of the progressive discipline before you fired Ms. Schoder,” to which Clayton answered “No.” Clayton Depo. at 249:7-10. Phillips, Clayton’s Assistant Manager, confirms that Clayton was aware of and concurred in all these terminations in her operation, and that these employees did not receive any particular progressive discipline before being let go. See Affidavit of Colby Phillips ¶¶ 5-7, at 2 (dated October 7, 2010), filed October 8, 2010 (Doc. 135-12). A former general manager, Villegas, would not use progressive discipline when the individual was stealing or for insubordination, but other than those violations, he would “[p]retty much” follow progressive discipline. Villegas Depo. at 32:5-33:16. Another former general manager, Jared, understood that there were several instances where she could terminate someone instantly — such as theft, employee violence, or any violation of Vanguard’s work rules. See Jared Depo. at 68:3-12. 6. Facts Regarding Clayton’s EPA Claim. Clayton, and all general managers, had the opportunity for merit bonuses based on profit. See Clayton Depo. at 58:3-61:5. Clayton admits the bonus plan itself was not discriminatory. See Clayton Depo. at 69:7-16, 72:14-20. Clayton testified that the bonus plan was not applied fairly, but stated that she had no evidence that her complaints were unique to Albuquerque or to markets where females were general managers. See Clayton Depo. at 58:20-59:10, 62:8-16, 64:6-9, 69:7-16. On two occasions, Phillips was paid more bonus than what the bonus plan suggested. See Clayton Depo. at 78:10-79:10. Clayton does not believe that these bonus payouts occurred because of Phillips’ gender. See Clayton Depo. at 81:1-83:7. This situation with Phillips did not affect her pay. See Clayton Depo. at 80:11-14. Clayton does not have the belief or any information that the calculation of the total amount of bonus pay or that the application of percentages was ever based on gender or age. See Clayton Depo. at 84:1-85:6. Clayton never complained that these various pay issues were because of her gender. See Clayton Depo. at 260:7-20. Clayton’s position as general manager was posted internally at Vanguard after her discharge. See Filomena Depo. at 78:15-79:3. Two applicants applied for the position — Robert Kennedy and Phillips; Kennedy was selected. See Filomena Depo. at 79:6-8, 85:12-18. Kennedy was younger than Clayton. See Answer to First Amended Complaint for Civil Rights Violations, Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing ¶ 13, at 2, filed March 26, 2010 (Doc. 106). Kennedy was well-qualified for the position. See Affidavit of Mike Filomena ¶ 4, at 2 (dated October 8, 2010), filed October 8, 2010 (Doc. 135-17). Clayton’s base salary was $66,000.00 at the time she was discharged. See Clayton Depo. at 25:20-24. Kennedy was offered less than $68,000 to replace Clayton, which he declined. See Deposition of Robert Kennedy at 43:3-44:11 (taken August 14, 2009), filed October 8, 2010 (Doc. 135-15). Baker then offered Kennedy $68,000, which he also declined. See id. at 44:11-16. Vanguard then offered Kennedy a base of $68,000 plus a cost of living adjustment of $1,000 per month, which he accepted. See id. at 44:20-45:6. Both Kennedy and Clayton were eligible for bonus compensation based on merit and profits on a yearly basis. See Baker Aff. ¶ 6, at 2. To the extent that their bonus compensation differed, it would have been a direct result of non-gender related criteria inherent in company wide merit bonus plans. See Baker Aff. ¶¶ 6-9, at 2. In addition, the bonus plan criteria effective in 2009, the first full year after Kennedy took over Albuquerque operations, was significantly different in design than the one in effect during Clayton’s last years in the position. See Baker Aff. ¶ 9, at 2. In addition, the job that Clayton previously held was absorbed into a new position in November 2008 — that of Airport Market Manager — which Kennedy now holds. See Kennedy Depo. at 71:16-73:22, Baker Aff. ¶ 8, at 2. The job now includes new locations in Durango and El Paso, and includes responsibility for the Enterprise brand in addition to National and Alamo. See Kennedy Depo. at 72:1-74:5. Kennedy must visit these locations, work with a different fleet management group, and deal with franchisees in some of the new locations. See id. at 72:12-15, 77:5-15. Kennedy now has a different supervisor, Kevin Hill. See id. at 85:6-10. His bonus plan was impacted in that he can make more money as a result of the additional car rental activity which is now under his supervision. See Kennedy Depo. at 83:18-84:16. Significant differences exist between the job responsibilities of general manager now and at the time of Clayton’s employment, and between the market at the Albuquerque location and other Vanguard markets. See Baker Aff. ¶ 10, at 3. For example, Albuquerque is a small to medium sized location and has only one airport. See Baker Aff. ¶ 10, at 3. General managers in larger locations with more airports, such as Houston, are paid more because their job responsibilities and demands are greater. See Baker Aff. ¶ 10, at 3. This fact is true today and was at the time Clayton was at Vanguard. See id. ¶ 10, at 3. Enterprise acquired Vanguard in August 2007. See Filomena Depo. at 10:13-18. Clayton, Davenport, Filomena, Baker, Murphy, and Choquette were all employees of Vanguard through the time of Clayton’s termination in February 2008. See Baker Aff. ¶ 3, at 1. PROCEDURAL BACKGROUND On January 28, 2009 Clayton filed her Complaint in the Second Judicial District of New Mexico. See Complaint for Civil Rights Violations, filed February 25, 2009 (Doc. 1-1). Vanguard removed the matter on February 25, 2010. See Notice of Removal, filed February 25, 2009 (Doc. 1). The Notice of Removal asserted that the Court had jurisdiction over Clayton’s federal law claims under 28 U.S.C. § 1331 and supplemental jurisdiction over Clayton’s state law claims. See Notice of Removal at 2. On March 11, 2010, Clayton filed an Amended Complaint. See First Amended Complaint for Civil Rights Violations, Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing, filed March 11, 2010 (Doc. 105). The Amended Complaint contains nine counts. See Amended Complaint at 3-11. Count I is a claim for sex discrimination under Title VII. See Amended Complaint at 3. Count II alleges sex discrimination under the NMHRA. See Amended Complaint at 4. Count III is a claim for age discrimination under the ADEA. See Amended Complaint at 5. Count TV is a claim for age discrimination under the NMHRA. See Amended Complaint at 5. Count V is a claim under Title VII for retaliation. See Amended Complaint at 6. Count VI is a claim under the NMHRA for retaliation. See Amended Complaint at 7. Count VII is a claim for violations of the EPA. See Amended Complaint at 8. Count VIII is a claim for breach of contract, and Count IX is a claim for breach of the covenant of good faith and fair dealing. See Amended Complaint at 9, 11. Vanguard moves the Court for summary judgment. Vanguard alleges that Clayton’s claims for discrimination under Title VII and the NMHRA fail. See Motion at 24. Vanguard contends Clayton has no direct evidence of age or gender bias. See id. at 25. Vanguard argues that Clayton’s federal and state discrimination claims fail under the McDonnell Douglas v. Green burden-shifting framework, because she cannot establish a prima-facie case of age or sex discrimination, and, even assuming she can establish a prima-facie case, she cannot demonstrate Vanguard’s reasons for termination are a pretext for discrimination. See Motion at 27-29. Vanguard alleges that Clayton’s retaliation claims fail, because she never engaged in protected activity, and even assuming protected opposition, the termination was sixteen months after any alleged protected activity — defying any reasonable inference of retaliation. See id. at 33-34. Vanguard alleges that Clayton’s EPA claims fail, because there is no valid basis for her claim, as her job is not legally comparable to other establishments, because any difference in the bonus compensation was based on merit, and any disparity in base pay was a result of factors other than sex. See Motion at 35-38. Vanguard alleges that Clayton’s breach-of-contract claim fails, because she was an at-will employee, and because it did not breach any harassment and offensive conduct policy. See Motion at 39, 41. Finally, Vanguard alleges that Clayton’s good-faith-and-fair-dealing claim fails, because she was an at-will employee, and even assuming a duty of good faith and fair dealing applies, it did not commit a breach. See Motion at 44-45. Clayton responded to Vanguard’s Motion on October 25, 2010. In her Response, Clayton argues that she has presented sufficient evidence to satisfy a prima-facie case of gender and sex discrimination. See Response at 5. She argues that she presents sufficient evidence of pretext, because Vanguard gives contradictory, inconsistent, and implausible explanations of the justification and rationale for the termination. See Response at 7-8. She contends that her breach-of-contract claim should survive, because she presents sufficient facts for a reasonable jury to determine that the written progressive discipline policy, and customary practice of following progressive discipline, create a reasonable expectation that Vanguard would follow the progressive steps before terminating her employment. See Response at 30. She contends her EPA claim is based on disparities between base salary rates, and that she has presented evidence which demonstrates a pattern of paying female general managers in comparable markets less than male general managers in the same-sized markets. See Response at 33-34. She contends that her EPA claim does not rely on bonus plans. See Response at 34. Clayton agreed to voluntarily dismiss her retaliation claims in Counts V and VI of her Amended Complaint. See Response at 39. Although she asserts that the Court should not grant summary judgment on her claim for breach of the covenant of good faith and fair dealing, Clayton does not address this claim in her Response. Vanguard replied on November 1, 2010. Vanguard contends that Clayton cannot prove pretext, because her conclusory evidence of pretext does not show that the relevant decision makers acted with discriminatory intent or motive. See Reply at 3. Vanguard also contends: Despite long complaints in her deposition about the bonus plan, [Clayton] never testified her base pay was an issue. Further, she admits she never complained to Davenport of gender-based pay discrimination. Yet now that discovery is closed she shifts to a base pay theory of discrimination regarding GM’s in other markets. This ad hoc reversal is of no avail. Reply at 13. At the hearing, Brian M. Mumaugh, Vanguard’s counsel, first stated that Clayton’s signature on the letter was the triggering event for her termination. See Transcript of Hearing at 61:17-22 (taken November 8, 201 0) (Mumaugh, Court) (“Tr.”). The Court asked Mr. Mumaugh whether there were multiple reasons for Clayton’s termination. See id. at 57:3-6, 61:19-21 (Court). Mr. Mumaugh stated that there was only one reason, and the reason was that Clayton signed the letter. See Tr. at 61:17-62:6 (Mumaugh, Court). Mr. Mumaugh also stated that the comparators Clayton sets forth for her EPA claim have differences — such as being in cities with more airports or fueling operations. See Tr. at 16:6-17:21 (Mumaugh). He argued that there are sufficient distinguishing characteristics to explain the differences in base pay. See id. at 16:21-24 (Mumaugh). The Court asked Mr. Mumaugh whether there were issues of material fact regarding Clayton’s prima-facie case of discrimination, and Mr. Mumaugh said that there were issues of material fact regarding whether Clayton was qualified for her position. See id. at 52:17-53:8 (Court, Mumaugh). J. Edward Hollington, Clayton’s counsel, conceded that Vanguard had stated a nondiscriminatory reason for terminating her. See id. at 31:1-5 (Court, Hollington). Mr. Hollington also agreed that there was not any direct evidence of gender or age discrimination, and that the Court should use the McDonnell Douglas analysis. See Tr. at 41:24-42:2 (Court, Hollington). Mr. Mumaugh stated that, in his discussions with Mr. Hollington, it was apparent that Clayton was going to dismiss all her state contract claims, with the exception of claims relating to progressive discipline. See Tr. at 6:3-7 (Mumaugh). When the Court asked Mr. Hollington whether he agreed with Mr. Mumaugh’s characterization of what Clayton had agreed to dismiss, Mr. Hollington stated that Clayton has submitted a stipulation of dismissal on the two retaliation claims, and is stipulating that the breach-of-contract claim is for failure to follow progressive discipline. See Tr. at 45:14-19 (Hollington). Mr. Hollington did not object to any portion of Mr. Mumaugh’s statement, or correct his statement, but he has not moved to dismiss Clayton’s state contract claims. In any case, Mr. Hollington did not explain why Clayton’s Response failed to address Vanguard’s arguments regarding Clayton’s good-faith-and-fair-dealing claim. LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record], together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”) (internal quotation marks omitted). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”) (internal quotes omitted). The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — -set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)). Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505. RELEVANT LAW REGARDING EMPLOYMENT DISCRIMINATION UNDER THE ADEA AND TITLE VII “Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (citing 42 U.S.C. §§ 2000e-2, 2000e-3). “Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007) (Browning, J.) (quoting 42 U.S.C. § 2000e-2(a)(1)) (internal quotes and alterations omitted). Under the ADEA, it is “unlawful for an employer” to “discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). Thus, a plaintiff suing under the ADEA must prove that his or her age motivated the challenged employment action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). For both Title VII and ADEA claims, at the summary-judgment stage, the nonmoving party must come forth with some proof of discrimination, either by demonstrating direct evidence of the employer’s discriminatory intent or, “[u]nder McDonnell Douglas, ... by providing circumstantial rather than direct evidence of [intentional] discrimination.” Jones v. Oklahoma City Public Schools, 617 F.3d 1273 (10th Cir.2010). See Hare v. Denver Merch. Mart, Inc., 255 Fed.Appx. 298, 301 (10th Cir.2007) (citing McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. 1817). 1. Direct Evidence. “Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th Cir.2007). Moreover, “[direct evidence demonstrates on its face that the employment decision was reached for discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir.2002). “When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, [the Tenth Circuit] has held that the plaintiff must demonstrate a nexus exists between the alleged discriminatory statements and the ... decision to terminate [the employee].” Negrete v. Maloof Distrib. L.L.C., No. CIV 06-0338 JB/LFG, 762 F.Supp.2d 1254, 1280, 2007 WL 7323030, Memorandum Opinion and Order at 39, filed November 28, 2007 (D.N.M.) (Browning, J.) (internal quotations omitted). “Direct evidence is that which demonstrates a specific link between the alleged discriminatory animus and the challenged [employment] decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated [the employer’s] decision to take the adverse employment action.” Deneen v. Nw. Airlines, 132 F.3d 431, 436 (8th Cir.1998). 2. Indirect Evidence Under the McDonnell Douglas Framework. A plaintiff may use indirect evidence to establish a case under Title VII or the ADEA. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802-803, 93 S.Ct. 1817. “[C]laims of age, race, national origin, gender discrimination, and retaliation are all subject to the burden shifting framework that the Supreme Court established in McDonnell Douglas Corp. v. Green.” Gamez v. Country Cottage Care and Rehab., 377 F.Supp.2d 1103, 1119 (D.N.M.2005) (Browning, J.) (citing McDonnell Douglas Corp. v. Green, 411 U.S. at 802-804, 93 S.Ct. 1817). Similarly, the United States Cour