Full opinion text
MEMORANDUM AND ORDER SAFFELS, Senior District Judge. I. INTRODUCTION This matter is before the court on the parties’ motions for summary judgment. In this action, plaintiffs claim the following: (1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) violation of the Employee Retirement Income Security Act of 1974 (“ERISA”); (3) discrimination in violation of Minnesota Statutes Chapter 62A; (4) breach of employment contract; Minnesota Statutes Chapter 62A; (4) breach of employment contract; (5) intentional infliction of emotional distress; and (6) tortious interference with prospective business advantage. Defendants move for summary judgment as to each of the six numbered claims. Plaintiffs move for summary judgment as to only the claims numbered (1) — (4). Plaintiffs also object to defendants’ reply to plaintiffs’ response to defendants’ motion for summary judgment. II. BACKGROUND The parties’ summary judgment motions generated a formidable quantity of factual submissions. The court has attempted to distill the material facts from these voluminous submissions. The parties organized their submissions by cause of action. To the extent possible, the court adheres to this organization. A. The Employment Contract On February 10, 1988, in Topeka, Kansas, Pamela J. Torre (“Mrs. Torre”) signed a writing entitled “Marketing Representative’s Employment Contract”. The “Marketing Representative’s Employment Contract” contained a “Territory Assignment” which provided that “[yjour assigned territory is as follows: Counties of Lyon, Chase, Coffey, Greenwood, Osage (except the cities of Over-brook, Carbondale, and Scranton), Marion (except the town of Goessel), and Woodson: all in the State of Kansas. Also includes Shawnee County.” On April 14, 1988, Federated Mutual Insurance Company (“Federated”) sent Mrs. Torre a “Territory Assignment Correction.” In the “Territory Assignment Correction,” Federated informed her that her original territory assignment incorrectly included all of Shawnee County. The “Territory Assignment Correction” specified that she was to be assigned only Topeka and not all of Shawnee County. Like Mrs. Torre, Jeff Richardson (“Mr. Richardson”) was a Marketing Representative for Federated. Mr. Richardson signed his employment contract with Federated on June 1, 1988. Federated also assigned him the Topeka territory. Mrs. Torre was not allowed to call on accounts in Topeka until Stephen Rohr, her former District Marketing Manager, gave her a list of prospects. Mrs. Torre received a list of prospects in fall of 1988. The list contained no renewal business. It contained names of only new business prospects. Mr. Richardson received the renewal business in Topeka. In April of 1990, Tom Lauritzen (“Mr. Lauritzen”), her District Marketing Manager, Mrs. Torre, and Mr. Richardson had a meeting at which they discussed the division of the Topeka territory. Mr. Lauritzen decided to divide the territory by zip code. Mrs. Torre objected to the division. She notified Mr. Lauritzen of her objections. Mr. Lauritzen did not review the quality of the prospects either before or after the division. He only reviewed the classes of businesses on the zip code list to determine whether there was a good division of business. The division gave Mr. Richardson a larger renewal base in Topeka. Additionally, the division gave Mr. Richardson the majority of the large Topeka based contractors. On June 13,1990, Mrs. Torre wrote to Mr. Lauritzen complaining of the following: (1) being given less than 25 percent of the Topeka territory; (2) having to maintain an office in Topeka; and (3) the April 14, 1988, reduction in her territory. She concluded her letter by requesting that Mr. Lauritzen explain why she had to share an office with Mr. Richardson in Topeka, yet she was given less than one-half of the Topeka territory. In his reply, Mr. Lauritzen explained that the division was made on Mrs. Torre’s suggestion and increased her prospects in Topeka. He also agreed that her contract included Shawnee County. Mrs. Torre also wrote letters to William Haegele (“Mr. Haegele”), the Regional Marketing Manager, regarding the division. In March of 1991, Mr. Haegele and Mrs. Torre met in Kansas City where they discussed the territory division, her income from the Topeka accounts, her overall income, and the possibility of a promotion or transfer. Mrs. Torre was dissatisfied with her income because of her low renewal base and overhead. On June 5,1991, Mr. Haegele wrote to Mr. Lauritzen regarding the division. He suggested a division not based on zip code. Mr. Lauritzen did not implement Mr. Haegele’s suggestion. B. Sex Discrimination Mrs. Torre was a successful Marketing Representative. Her superiors at Federated consistently praised her work and sales production. She received various awards for the quality of her work and the amount of business she produced. Federated does not have a written policy regarding promotions or transfers. It is not company policy to take applications for promotions or transfers. It is Federated’s practice to promote Marketing Representatives within their own respective regions. Federated’s procedure regarding promotions or transfers is for the Marketing Representative to contact her supervisor and request a promotion. The request then proceeds through marketing management channels until it ultimately arrives at the Human Resources Department. Federated does not post job openings or circulate a written notice of opportunities for promotion or transfer. Nor does it have a standard procedure for informing Marketing Representatives about openings or opportunities for promotion or transfer. Federated’s practice is to have District and Regional Marketing Managers and Directors of Field Operations look for promotable Marketing Representatives. Mr. Lauritzen, as a District Marketing Manager, has a financial incentive to hire promotable people. Generally, Federated prefers that a Marketing Representative have two or three years of experience before promotion. However, Federated has promoted Marketing Representatives with less experience. Mrs. Torre first requested promotion or transfer in a May 24, 1989, letter to Jock Kinnett, Director of Field Operations. On January 15, 1990, she sent a letter to Mr. Lauritzen in which she asked to be considered for a position in Federated’s Phoenix office. During her March 1991 meeting with Mi'. Haegele in Kansas City, she further expressed her interest in a Human Resources position in Federated’s Phoenix office. Mrs. Torre specifically requested Phoenix because of its proximity to several treatment facilities for her daughter, Trisha. In 1991, Kirk Nelson, Federated’s President, learned that Mrs. Torre was interested in a promotion or transfer. Albert Anexstad, Senior Vice-President of Marketing, does not know if Mrs. Torre was considered during 1989-92 for any District Marketing Manager or Account Executive openings. In 1992, Federated hired a new Corporate Human Resources Manager. The opening was not listed or posted. During Mrs. Torre’s employment with Federated, the company promoted Marketing Representatives with the same or less tenure and the same or lower sales production as Mrs. Torre. James Sheard, former Federated President and current Director of Human Resources, set up Federated’s career assessment program. Federated uses the career assessment in its evaluation of candidates for promotion. Most of the Marketing Representatives who received a promotion first received a career assessment. Career assessments are done by referral from a Marketing Representative’s District or Regional Marketing Manager or Director of Field Operations. In the fall of 1989, Mrs. Torre explained to Mr. Rohr that she was unaware of what positions were available and mentioned that she wanted to explore her options. Mr. Rohr indicated that arrangements would be made for her to have a career assessment in the coming spring. She did not receive the assessment in the spring of 1990. James Leighty became Director of Field Operations on January 1, 1991. While Director, Mr. Leighty and Mr. Haegele discussed Mrs. Torre’s situation. Mr. Leighty was aware Mrs. Torre had filed a discrimination suit against the company. As a result, he sent her management appraisal form to Federated’s in-house counsel. At a later date, Mr. Leighty decided not to pursue Mrs. Torre further as a candidate for promotion or transfer because it was his understanding that she was no longer willing to accept a change. As previously noted, Mrs. Torre maintained an office in Topeka with Mr. Richardson. She and Mr. Richardson shared the office expenses equally and Federated reimbursed them equally for a portion of the office expenses. The office was 45 minutes from her home. No other Marketing Representative in her District maintained an office as far away from home. The Leadership Council Award is given once a year on the recommendation of a Marketing Representative’s District Marketing Manager and the approval of the Regional Marketing Manager. An award winner receives recognition in the company flyer, which is distributed to clients, the company newsletter, and the local newspaper. Mrs. Torre won in 1989 and 1990 but not 1991. In 1991, Mr. Richardson won even though he had less production. In 1989 and 1990, Mrs. Torre won the Big Hitter Award for excellence in production. In 1989, she and the other winners from her region received public recognition at the annual “kick-off meeting.” In 1990, she was the only winner from her region and she received no public recognition. Mr. Haegele did not give her the award at the meeting because he was embarrassed that only one of his Marketing Representatives qualified. Federated’s District Marketing Manual directs managers interviewing prospective Marketing Representatives to make a home visit to “[s]ee how the housekeeping is, the behavior of the children, and the attitude of the wife.” Federated gave blazers to Marketing Representatives who made the President’s Council. It ordered the blazers from a men’s clothier. The blazers were cut in a way that allowed males, but not females, to select from ready-made blazers. Instead, Federated gave females $150 to purchase matching blazers elsewhere. C. ERISA: Benefits Claim The Federated welfare benefit plan at issue, Plan # 501, has lifetime maximum coverage limits of $1,000,000 for medical conditions and $50,000 for mental/nervous conditions. Federated issued the policy that is Plan # 501. Federated also is the ERISA Administrator. Plan #501 defines mental illness'as follows: “Mental Illness means a mental disorder or a functional nervous disorder and includes psychiatric or psychological treatment of any physical condition.” Trisha Torre (“Trisha”) was born in 1978. She was three months premature and weighed two pounds thirteen ounces. She had underdeveloped lungs and heart valve problems and was in intensive care for many weeks following her birth. She had heart surgery at the age of one and one-half years. She later became hyperactive and would not sleep. At age three, a neurologist diagnosed her as having a neurological condition. In November of 1989, Trisha was admitted to the Menninger Clinic (“Menninger”) in Topeka, Kansas. In December of 1989, she was diagnosed with organic personality syndrome with symptoms manifested in behavioral and emotional problems. In late 1989, Menninger’s staff recommended that Trisha be placed in a long-term residential treatment facility. Menninger sent bills to Federated bearing diagnosis codes from the mental disorders section of the International Classification of Diseases, 9th Edition. Federated initially allocated the expenses to Plan # 501’s mental/nervous limits. However, on January 23, 1990, after reviewing the expenses with Men-ninger personnel and Dr. Jerry Tomasovic, Trisha’s treating physician at the Laurel Ridge Hospital in San Antonio, Texas, Federated reallocated the expenses to Plan # 501’s medical limits. On January 3, 1990, Trisha was admitted to the acute care unit of Laurel Ridge Hospital in San Antonio, Texas. Federated conducted an ongoing evaluation with respect to payable benefits. On January 8, 1990, as part of its ongoing evaluation, Federated sent medical reports from Menninger to the Texas Medical Foundation (“TMF”), a peer review group, and requested that a. psychiatrist review Trisha’s claim. In its correspondence to TMF, Federated inquired as to Trisha’s diagnosis and the nature of her treatment. Federated provided TMF with Plan # 501’s definition of “méntal illness.” After receiving TMF’s response, Federated allocated all the expenses Trisha incurred at Laurel Ridge through January 29,1990, to Plan # 501’s medical limits. As previously noted, Dr. Tomasovic was Trisha’s treating physician at Laurel Ridge. He is a pediatric neurologist. He diagnosed Trisha with aphasia and brain frontal lobe and craniofacial abnormalities. In his opinion, Trisha’s condition is medical, not mental, and is akin to a stroke. In consultation with his team at Laurel .Ridge, Dr. Tomasovic put together an initial treatment plan for Trisha in early January of 1990. There were many modifications to this plan. Dr. Wiley Jordan (“Dr-. Jordan”) is a psychiatrist and advisor with TMF. He reviewed Trisha’s case for Federated. However, he never saw Trisha’s medical records. Dr. Jordan assumed Dr. Tomasovic was a psychiatrist working in a psychiatric ward at Laurel Ridge. He never reviewed Dr. Toma-sovic’s written treatment plan. Based in part on conversations with Dr. Tomasovic, Dr. Jordan informed Federated that Laurel Ridge was providing Trisha with psychological treatment. After considering Dr. Jordan’s review and the codes on Trisha’s bills, Federated allocated Trisha’s expenses from Laurel Ridge to Plan # 501’s mental/nervous limits. Dr. Jordan reviewed the medical necessity of Trisha’s continued stay at Laurel Ridge. He periodically discussed the issue with Dr. Tomasovic. Dr. Jordan approved the medical necessity of Trisha’s continued stay at Laurel Ridge subject to his receipt of additional information regarding her condition and progress. He granted several extensions based on Dr. Tomasovic’s opinion that she was making progress under the treatment. Mrs. Torre objected to Federated’s allocation of Trisha’s Laurel Ridge expenses to Plan #501’s mental/nervous limits. On numerous occasions, Mrs. Torre and Laurel Ridge expressed to Federated their belief that since Trisha’s condition was organic brain syndrome, which is physical and not mental in nature, her expenses should be allocated to Plan # 501’s medical limits. Federated explained that the basis for its allocation was that “mental illness” includes “psychiatric and psychological treatment of any physical condition.” Laurel Ridge also expressed concern about Federated’s reliance on a psychiatrist instead of a pediatric neurologist to review Trisha’s case. Mrs. Torre filed complaints with the Minnesota and Kansas Insurance Commissioners. The Kansas Insurance Commissioner investigated and suggested Federated have a pediatric neurologist review Trisha’s case. On March 7, 1990, a second TMF psychiatrist, Dr. Tracy Gordy (“Dr. Gordy”), reviewed Trisha’s case. Dr. Gordy concurred with Dr. Jordan’s earlier opinion. On April 22, 1990, Trisha was discharged from Laurel Ridge. Dr. Tomasovic believed she was in no serious danger at this time. He also believed it was appropriate for her to move to a residential treatment program. In July of 1990, TMF had a pediatric neurologist review Trisha’s case. The pediatric neurologist concluded that the length of stay and nature of treatment at Laurel Ridge were due to neurological disease and were justified. The pediatric neurologist also concluded that Dr. Tomasovic had provided appropriate care “by medical means, drugs, and treatments (speech therapy, behavioral modification techniques).” In August of 1990, Federated reallocated the Laurel Ridge expenses to Plan #501’s medical limits. Laurel Ridge referred Trisha to the Davi-son School in Atlanta, Georgia. Sometime following Trisha’s discharge from Laurel Ridge, Mrs. Torre enrolled her in the Davi-son School. Mrs. Torre did not pre-certify Trisha’s admission with Federated. Federated paid the expenses Trisha incurred at the Davison School which it determined were medical but not those it determined were merely educational. Mrs. Torre removed Trisha From the Dav-ison School on July 19, 1992. D. ERISA: Discrimination Claim In support of her ERISA discrimination claim, Mrs. Torre realleges the acts which form the basis of her Title VII claim. III. SUMMARY JUDGMENT STANDARD A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1985). The substantive law identifies which issues are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. Only genuine disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment. Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the [nonmovant’s] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim. Id. at 323, 106 S.Ct. at 2552-53. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1985). The nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is some genuine issue for trial. Fed. R.Civ.P. 56(e). See also Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (interpreting 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on which that party will bear the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Such a complete failure of proof on an essential element of the nonmovant’s case renders all other facts immaterial. Id. at 323, 106 S.Ct. at 2552-53. When examining a motion for summary judgment, the court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that “[t]he court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues”). Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. That is, the court decides' whether there are any genuine factual issues that can be resolved only by a trier of fact because they reasonably may be resolved in favor of either party. Id. IV. DISCUSSION The “Discussion” is divided into eight sections: A-H. In the first seven sections, sections A-G, the court examines the parties’ summary judgment motions by cause of action. In the eighth section, section H, the court addresses plaintiffs’ objection. As previously noted, plaintiff claims the following: (1) sex discrimination; (2) violation of ERISA (3) discrimination in violation of Minnesota Statutes Chapter 62A; (4) breach of employment contract; (5) intentional infliction of emotional distress; and (6) tortious interference with prospective business advantage. Defendants move for summary judgment as to each of the six numbered claims. Plaintiffs move for summary judgment as to only the claims numbered (l)-(4). Additionally, plaintiffs object to defendants’ reply to plaintiffs’ response to defendants’ motion for summary judgment. A. Sex Discrimination Title VII proscribes discriminatory employment practices and decisions as set forth at 42 U.S.C. § 2000e-2(a) which states as follows: (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. An employer may violate Title VII by either overt acts of discrimination or employment policies and practices that are neutral on their face and in intent, but that nonetheless discriminate in effect against a particular group. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 1861-62, 52 L.Ed.2d 396 (1977). Accordingly, a Title VII violation can be shown under two distinct theories: (1) disparate treatment; or (2) disparate impact. Disparate treatment occurs when an employer treats a particular employee less favorably than others because of that employee’s protected status. Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir.1991); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). A disparate impact claim exists when an employer’s practices, although basically neutral on their face, fall more harshly on one group than another. Id. Mrs. Torre pursues her Title VII claim under both the disparate treatment and disparate impact theories. She also claims retaliation in violation of 42 U.S.C. § 2000e-3(a). The court addresses each theory separately. 1. Disparate Treatment Under a disparate treatment theory, Mrs. Torre must show that, compared with other similarly situated employees, she was treated differently because of her sex. See Drake, 927 F.2d at 1160 (writing that “[u]nder the disparate treatment theory, the thrust of plaintiffs ease is that, compared with other like-qualified applicants, plaintiff was treated differently because of his race”). This theory does not attack an employment practice itself, but only the allegedly discriminatory application of that practice. See Id. Mrs. Torre has the ultimate burden of proving intentional discrimination. She may carry this burden by presenting either direct or indirect evidence of defendants’ discriminatory intent. See, e.g., E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1317 (10th Cir.1992); Thompson v. La Petite Academy, Inc., 838 F.Supp. 1474, 1478 (D.Kan.1993). She has presented no direct evidence. Thus, she must prove her case with indirect evidence. In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Supreme Court provided a framework which enables a plaintiff to establish intentional discrimination despite having no direct evidence. Mrs. Torre must first establish, by a preponderance of the evidence, a prima facie case of sex discrimination. See St. Mary’s Honor Center v. Hicks, - U.S. -, -, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). Once she establishes her prima facie case, Mrs. Torre creates a presumption of unlawful discrimination. See Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. Defendants must then rebut this presumption by producing evidence that the adverse employment actions were taken “for a legitimate, nondis-eriminatory reason.” See Id. To carry their burden of production, defendants “ ‘must clearly set forth, through the introduction of admissible evidence,’ [a] reason[] for [their] actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” See St. Mary’s Honor Center, - U.S. at -, 113 S.Ct. at 2747 (quoting Burdine 450 U.S. at 254-55, 101 S.Ct. at 1094-95). Although by establishing her pri-ma facie case Mrs. Torre shifts the burden of production to defendants, she retains at all times the ultimate burden of persuading the trier of fact that defendants intentionally discriminated against her because of her sex. See Id. Once defendants meet their burden of production, and thereby rebut Mrs. Torre’s prima facie case, the initial presumption of intentional discrimination “simply drops out of the picture.” See Id. (quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95). At this point, Mrs. Torre has the opportunity to show that defendants’ proffered reason was not the true reason but was merely a pretext for discrimination. See Id. It is important to note that the ultimate question is whether defendants intentionally discriminated against her. The fact finder’s rejection of defendants’ proffered reason, taken together with her prima facie case, may permit a finding of intentional discrimination. However, the finder’s rejection of defendants’ proffered reason, without more, does not compel a finding in favor of Mrs. Torre. That is, defendants’ proffered reason “cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” See Id. at -, 113 S.Ct. at 2752 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1093). Cf. Flasher, 986 F.2d at 1321 (writing that “Title VII only reaches pretextual eases where the advanced reason is shown to be a pretext for a discriminatory animus based upon a person’s protected status”). Thus, it is not enough to disbelieve defendants; the finder must believe Mrs. Torre’s explanation of intentional sex discrimination. See St. Mary’s Honor Center, - U.S. at -, 113 S.Ct. at 2754. Having reviewed the McDonnell Douglas/Burdine framework, the court now turns to an application of that framework. At the first step, Mrs. Torre must establish her prima facie case. Mrs. Torre alleges a variety of acts which she contends constitute unlawful sex discrimination. The court examines these acts in the following two parts: (1) failure to promote or transfer; and (2) discrimination in the terms and conditions of employment. To establish her prima facie case of discriminatory failure to promote or transfer, Mrs. Torre must prove that she (1) is a member of a protected group, (2) was qualified for an available position, and (3) was rejected under circumstances that give rise to an inference of unlawful discrimination in that her failure to be promoted or transferred is more likely than not based on the consideration of impermissible factors. Coe v. Yellow Freight System, 646 F.2d 444, 448-49 (10th Cir.1981); Payne v. General Motors Corp., 731 F.Supp. 1465, 1470 (D.Kan.1990). Defendants concede that Mrs. Torre satisfies the first prong. They argue that Mrs. Torre cannot establish the second or third prongs. Federated has no formal application procedure for promotion or transfer. Indeed, it has no formal procedure for the dissemination of information to its employees regarding job openings. Managers are expected to review the ranks for promotable people who then are placed in line for management appraisals and career assessments. An employee also is able to initiate this process on her own by expressing interest to her superiors. Mrs. Torre appears to have worked within Federated’s amorphous system. The record clearly reflects that she made several inquiries about possible job openings. She expressed her desire to be considered for promotion or transfer to at least four of her superiors: (1) Mr. Kinnett; (2) Mr. Rohr; (3) Mr. Lauritzen; and (4) Mr. Haegele. The record also indicates that her superiors thought her to be an able Marketing Representative and promotable. However, Mrs. Torre was neither transferred nor promoted. In fact, her progress through Federated’s pipeline for promotion or transfer was incomplete. The court does not penalize Mrs. Torre for Federated’s organizational structure. The court is persuaded that, within the system established and maintained by Federated, Mrs. Torre’s repeated inquiries and her clear expression of her desire to be considered for promotion and transfer are sufficient to constitute an “application” for promotion or transfer. By finding that Mrs. Torre’s actions are the equivalent of an application, the court faces a more difficult question: What is the scope of her application? Mrs. Torre clearly expressed a general interest in being promoted. She seems to argue that Federated’s subsequent failure to respond to her general requests by promoting or transferring her to any managerial or supervisory position, at any geographic location, is sufficient to establish a prima facie case. The court disagrees. Mi’s. Torre’s argument is simply too broad. She cites no authority to support her contention that general requests are tantamount to an application for any available position regardless of geographic location or job description. The prima facie case performs an important function: it eliminates the most common nondiscriminatory reasons for an employer’s disparate treatment of a protected employee. See Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94 (writing that the function of the prima facie case is to “eliminate[] the most common nondiscriminatory reasons for the plaintiffs rejection”). As a result, once shown, the prima facie case creates a presumption of unlawful discrimination. However, to create a presumption of unlawful discrimination, the prima facie case, at the very least, must be based on circumstances which give rise to a reasonable inference of discrimination. Mrs. Torre makes her argument at such a high level of generality that the circumstances she alleges fail to support a reasonable inference of intentional discrimination based on her sex. The court recognizes that the lack of a formal application procedure makes it more difficult for Mrs. Torre to prove a prima facie case. However, at the very least, Mrs. Torre must prove a basis from which the court may draw a reasonable inference of intentional discrimination. Mrs. Torre’s allegations are simply too general. In short, it is neither reasonable nor practical to interpret her general expression of interest in promotion or transfer as an application for every available managerial or supervisory job whatever the nature and wherever the location. It is more reasonable to limit her expression of interest to those areas and for those jobs in which she expressed a particular interest. Additionally, insofar as it was Federated’s company practice to promote from within a region, and given that she expressed her desire directly to Mr. Haegele, her Regional Marketing Manager, Mrs. Torre’s general request reasonably can be viewed as a request for promotion or transfer to available positions within her region. In a disparate treatment action, an employee claims that she was disfavored because of her Title VII protected status. Flasher, 986 F.2d at 1319. An essential part of the disparate treatment inquiry involves the comparison of an employer’s treatment of plaintiff with that of similarly situated non-protected employees. See, e.g,, Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir.1992) (discussing, in a Title VII disparate treatment case, the general requirement that a plaintiff compare her treatment to that of similarly situated non-protected employees); Magruder v. Runyon, 844 F.Supp. 696, 702 (D.Kan.1994) (citing to and quoting from Mitchell); Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531, 1546-47 (S.D.N.Y.1986), aff'd, 814 F.2d 653 (2d Cir.1987) (writing that “for evidence relating to other employees to be relevant, those employees must be situated similarly to plaintiff’). At the prima facie stage, a plaintiff proves facts relevant to the comparison. In the instant ease, Mrs. Torre produces no such evidence. Instead, she argues that “suitable” jobs opened and were filled with other employees, during the relevant time period. She gives little indication of what the jobs were, where they were located, what their requirements were, or what the qualifications of the people were who filled them. Her sole piece of comparative evidence is a “chart” listing thirteen males who were promoted with less tenure than she had. There is no indication, and no reasonable basis for inferring, that she was rejected for promotion or transfer in favor of any of the thirteen listed males or that they were promoted to jobs, and locations, in which she was interested. Cf. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 532 (10th Cir.1994) (noting, in an ADEA case, that plaintiffs statistics were inappropriate because they were not based upon a comparative analysis of similarly situated individuals). In E.E.O.C. v. Flasher Co., Inc., a Title VII disparate treatment case, the Tenth Circuit explained as follows: [Title VII] prohibits only intentional discrimination based upon an employee’s protected class characteristics. Human relationships are inherently complex. Large employers must deal with a multitude of employment decisions, involving different employees, different supervisors, different time periods, and an incredible array of facts that will inevitably differ even among seemingly similar situations. The law does not require, nor could it ever realistically require, employers to treat all of them employees all of the time in all matters with absolute, antiseptic, hindsight equality. What the law does require is that an employer not discriminate against an employee on the basis of the employee’s protected class characteristics. Discrimination based on ... sex ... is not only wrong, it is illegal. Proof of illegal discrimination begins in step one of the McDonnell Douglas analysis with proof that a protected person has been treated less favorably than other employees in comparable situations. Flasher, 986 F.2d at 1319. Mrs. Torre presents no proof that she has been treated less favorably than other employees in comparable situations. Instead, she argues that jobs were available somewhere in the company and these jobs were filled by other employees. Her proof of illegal discrimination is insufficient to create a reasonable inference of intentional discrimination based upon her sex. However, even assuming that Federated’s internal procedures excuse the general nature of her claim, and assuming Mrs. Torre produced evidence sufficient to raise an inference of discrimination, the court is persuaded that, as a matter of law, she is unable to carry her ultimate burden. That is, the court is persuaded that defendants can rebut the presumption created by Mrs. Torre’s pri-ma facie case and, interpreting the record in the light most favorable to Mrs. Torre, she cannot persuade a reasonable finder of fact that Federated intentionally discriminated against her because of her sex. Proceeding with the assumption that Mrs. Torre can establish her prima facie case, defendants now have the intermediate burden to show their failure to promote was based on legitimate, nondiscriminatory reasons. Defendants produce evidence sufficient to meet their intermediate burden. For example, defendants can show that Federated’s practice allows employees to seek promotion or transfer by expressing interest to their supervisors and managers; Mrs. Torre made a general request for promotion or transfer; Federated’s practice is to promote from within a region; and the only District Manager position which opened in Mr. Haegele’s region was filled by a female. Defendants can also show that, apart from her general requests, Mrs. Torre expressed specific interest in several locations (Phoenix and Atlanta); defendants followed up on these requests by checking into possible openings at these locations; and that there were no supervisory positions available. Additionally, Mrs. Torre’s summary judgment motion mentions a specific position which Federated gave to a male applicant: the Corporate Human Resources Services Manager position. She seems to argue that this position was both the type of position in which she expressed interest and for which she was particularly well-qualified. In response, defendants have produced evidence showing that the individual who filled the position, although male, was qualified. Since defendants can rebut the presumption created by a prima facie showing, the presumption “simply drops out of the picture.” At this point, Mrs. Torre may satisfy her ultimate burden by demonstrating that defendants’ proffered reason is a pretext for unlawful sex discrimination. After reviewing the record in the light most favorable to Mrs. Torre, the court is convinced no reasonable, finder of fact could conclude that defendants’ failure to promote or transfer her was motivated by her sex. At most, the record shows that there were supervisory or management positions open in some regions that Federated filled with other employees. Mrs. Torre points the court to no openings in the Central Region or the geographic locations in which she expressed specific interest (Phoenix or Atlanta) that Federated filled with males who were equally or less qualified than she. Indeed, she simply can point to no specific job to which she was denied promotion or transfer because of her sex. The essence of a disparate treatment claim is that the employer intentionally discriminated against the employee based upon protected characteristics. See, e.g., E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10th Cir.1992). Her general argument lacks any reference to the comparative element that forces a plaintiff to distill from her general grievances specific instances of intentional discrimination. See Id. With respect to the Corporate Human Resources Services Manager position, Mrs. Torre seems to argue that the court may infer discrimination from the lack of formal posting of the opening, the lack of an articulated, formal application procedure, and the fact that Federated ultimately selected a male. Mrs. Torre does not argue, and the record does not reflect, that the male chosen was unqualified or that his selection was without a sound basis. This argument, without more, is insufficient to satisfy her burden. Cf. Kachel v. City of Pueblo, 743 F.Supp. 749, 755 (D.Colo.1990), aff'd, 945 F.2d 411 (10th Cir.1991) (noting that “[standing alone, the selection of a male over a female where both are qualified will simply not sustain an inference of discrimination”). Mrs. Torre also attempts to establish unlawful discrimination by pointing to (1) statistical evidence and (2) what she characterizes as Federated’s pervasive atmosphere of discrimination against females. Neither argument is sufficient to avoid summary judgment. First, she attempts to establish her claim by producing statistical evidence that defendants apply them policy in a discriminatory manner. Statistical evidence is to be closely related to the specific issue presented. Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir.1991); Kachel, 743 F.Supp. at 755 (citing Rich v. Martin Marietta Corp., 522 F.2d 333, 346 (10th Cir.1975); Taylor v. Safeway Stores, Inc., 524 F.2d 263, 272 (10th Cir.1975)). In Cone v. Longmont United Hospital Ass’n, the Tenth Circuit explained that such evidence “must focus on eliminating nondiscriminatory explanations for the disparate treatment by showing disparate treatment between comparable individuals.” Cone, 14 F.3d at 532 (internal quotation marks omitted) (quoting Fallis, 944 F.2d at 746). Mrs. Torre’s statistical evidence does not illuminate the issue here. The court finds that, due in part to the loosely defined nature of Mrs. Torre’s failure to promote claim, the statistical evidence presented is insufficient to create a reasonable inference of sex discrimination. Second, she attempts to establish her claim by alleging pervasive sexual bias. Specifically, she points to various acts during her training session, several comments during the same training session, and Federated’s failure to provide female employees with ready-made blazers. Even viewing the record in the light most favorable to Mrs. Torre, the acts at the training session and her complaints regarding the blazers are isolated incidents which bear only a questionable relationship to criteria her employers may have used when making decisions on promotions and transfers. Similarly, even assuming the comments are admissible, she does not tie them to a supervisor or anyone involved with the decisional process. Cf. Hong v. Children’s Memorial Hospital, 993 F.2d 1257, 1266 (7th Cir.1993) (noting that slurs directed at a plaintiffs Title VII protected status are generally not enough to support a claim and explaining that “such remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria”). Mrs. Torre’s tenuous argument based on defendants’ alleged sexual bias is insufficient to avoid summary judgment. In summary, the court finds that Mrs. Torre has failed to establish that she was rejected under circumstances which give rise to an inference of unlawful discrimination. The court further finds that even if Mrs. Torre’s global claim is sufficient to satisfy the relatively lax showing required to make a prima facie case, she nevertheless is unable to satisfy her ultimate burden. That is, Mrs. Torre, as a matter of law, is unable to show that defendants’ failure to promote or transfer her was motivated by her sex. Her mere conjecture that defendants engaged in intentional discrimination is an insufficient basis for denial of summary judgment. Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988); Montgomery v. Card, 794 F.Supp. 1066, 1068 (D.Kan.1992). Therefore, the court grants defendants’ motion for summary judgment on her failure to promote or transfer claim. Mrs. Torre also alleges that defendants unlawfully discriminated against her by (1) forcing her to maintain a Topeka office, (2) providing her with unreasonable price quotes, (3) withholding the Leadership Council award, and (4) failing to acknowledge publicly her receipt of the “Big Hitter” Award. The court analyzes these allegations under the standard used for discrimination in the terms and conditions of employment. To establish her prima facie case, she must prove that (1) she was a member of a protected group, (2) she was entitled to the desired terms and conditions of employment, (3) her employer denied her the desired terms and conditions of employment, and (4) nonprotected employees were granted the desired terms and conditions of employment. Boyd v. Telecable of Overland Park, Inc., 752 F.Supp. 388, 392 (D.Kan.1990); Moore v. Norfolk and Western Ry. Co., 731 F.Supp. 1015, 1019 (D.Kan.1990). Again, defendants restrict their arguments to the second, third, and fourth prongs of the test. With regard to her “Topeka office” contention, Mrs. Torre fails the fourth prong and, therefore, is unable to establish her prima facie ease. Essentially, the fourth prong requires Mrs. Torre to make her initial showing that males were treated differently with respect to the “term or condition” at issue. Thus, the fourth prong requires her to frame her claim by providing a relevant comparison. In the instant case, Mrs. Torre cannot show disparate treatment based on her sex because her male counterpart in Topeka also was subjected to the same treatment she claims to have been discriminatory. The Topeka office was occupied by the two Marketing Representatives who were jointly responsible for the Topeka territory: Mrs. Torre and Mr. Richardson. As the other Marketing Representative assigned to the Topeka territory, Mr. Richardson is a similarly situated male. The two shared office expenses evenly, and to the extent Federated reimbursed them for their expenses, they were reimbursed equally. Mrs. Torre has failed to make an initial showing sufficient to give rise to an inference of intentional discrimination. Mrs. Torre next argues that defendants supplied her with unreasonable price quotes in an attempt to cause her to lose business. She contends that she received “inflated” and “unreasonable” quotes but she bases her contentions on nothing more than her subjective belief. Her evidence establishes that she lost business to lower priced competitors. Her evidence also establishes that she complained to Federated about the quotes she was receiving. However, she provides no comparative evidence. That is, she provides no evidence that the quotes she received were different than those supplied to similarly situated male Marketing Representatives. Her simple belief that she was discriminated against does not support a reasonable inference of intentional discrimination. Mere conjecture that an employer engaged in intentional discrimination is an insufficient basis for the denial of summary judgment. Branson, 853 F.2d at 772; Montgomery, 794 F.Supp. at 1068. In short, Mrs. Torre supplies no evidence sufficient to support a reasonable inference of intentional discrimination. Her claim rests solely on her unsupported assertion that she received “unreasonable” and “inflated” quotes. The court finds that she fails to establish the third and fourth prongs of her prima facie case. Mrs. Torre also challenges defendants’ failure to give her the Leadership Council Award in 1991 and publicly recognize her receipt of the “Big Hitter” Award. After examining the parties’ memoranda, and the record submitted, the court concludes that there remain genuine issues of fact as to both claims. Mrs. Torre argues that defendants failed to give her the Leadership Council Award in 1991 because of her sex. It is clear that Mr. Richardson received the Award in April of 1991. However, the basis for the Award is unclear. Mrs. Torre argues that her sales production entitled her to be chosen instead of Mr. Richardson, who had a lower production. Her argument presumes that relative sales production is the critical factor. The court concludes that there remains a genuine issue of material fact as to the second prong of her prima facie case. Mrs. Torre also argues that defendants failed to recognize her as a “Big Hitter” at the 1991 company-wide “kick-off’ meeting. It is undisputed that she was designated a “Big Hitter,” Federated recognizes recipients of the “Big Hitter” Award at its annual company-wide “kick-off’ meeting, and Mrs. Torre received the Award, but was not publicly recognized at the meeting. Defendants nowhere dispute that she was treated differently than similarly situated males. The court finds that she can prove her prima facie case. Defendants explanation for the disparate treatment is that Mr. Haegele, Mrs. Torre’s Regional Marketing Manager, chose not to present the award publicly so as not to draw attention to the fact that only one of the Marketing Representatives under his supervision qualified for the Award. Mrs. Torre argues that defendants’ explanation is unworthy of credence and, therefore, they fail to meet their step two burden. Defendants can meet their intermediate burden, and thereby rebut the prima facie ease, by merely explaining their actions in terms that are not prohibited by Title VII. See Flasher, 986 F.2d at 1317. It is only unexplained actions, not unexplained disparities, that will justify summary judgment for Mrs. Torre at step two. See Id. at 1318. Defendants produce evidence sufficient to meet their intermediate burden. Cf. Id. at 1316 n. 4 (noting that the employer need only produce evidence of a “facially nondiscriminatory” reason). Since defendants have rebutted Mi's. Torre’s prima facie case, she now is left with her ultimate burden of proving intentional sex discrimination. Mrs. Torre attacks Mr. Haegele’s explanation as incredible. That is, she argues that defendants’ proffered reason is merely a pretext for unlawful discrimination. Whether Mr. Haegele’s explanation is pretextual requires some examination of his credibility. The court declines to grant summary judgment based upon a determination of Mr. Haegele’s credibility. Accordingly, the court finds that there remains a genuine issue of material fact as to whether defendants engaged in intentional sex discrimination. 2. Disparate Impact Unlike a disparate treatment claim, a disparate impact claim does not require a finding of intentional discrimination. Ortega, 943 F.2d at 1242. Instead, the focus is on whether an identified employment practice “has a substantial adverse impact on a group protected by Title VII.” Drake, 927 F.2d at 1161 (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1004 (9th Cir.1985), modified, 784 F.2d 1407 (9th Cir.1986)) (internal quotes omitted). The disparate impact theory recognizes that “some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. at 2777, 2785, 101 L.Ed.2d 827 (1988). Like the disparate treatment analysis, the disparate impact analysis involves a three-part inquiry. Ortega, 943 F.2d at 1242-44. Plaintiff first must establish a pri-ma facie ease of disparate impact based on sex. Id. at 1242-43. Once the prima facie case is shown, defendants must demonstrate a business justification for the challenged employment practice. Id. at 1243. If defendants satisfy their step two obligation, plaintiff still may prevail by showing defendants failed to adopt a readily available, nondiscriminatory alternative to the challenged practice. Id. at 1244. To establish her prima facie case, Mrs. Torre “must show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” See Id. at 1242 (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989)). Defendants argue that Mrs. Torre fails to produce evidence sufficient to establish her prima facie case. The court agrees. Although it is unclear, Mrs. Torre seems to argue that defendants’ mechanisms for promotion or transfer are subjective and have a disparate impact on female Marketing Representatives. Disparate impact analysis is applicable to subjective- or discretionary employment practices. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991, 108 S.Ct. 2777, 2787, 101 L.Ed.2d 827 (1988). Under the disparate impact theory, Mrs. Torre can establish a prima facie case by showing that a particular practice operates to select persons for promotion in a gender pattern significantly different from that of the pool of applicants. See Kachel, 743 F.Supp. at 756. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) (noting that plaintiff must show that “the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants”). Mrs. Torre’s burden in establishing her prima facie case requires more than a mere showing that there are statistical disparities in Federated’s workforce. See Wards Cove, 490 U.S. at 656, 109 S.Ct. at 2124; Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89 (plurality opinion). As the plaintiff, she is responsible for, and must begin by, isolating and identifying the specific employment practice that she alleges is responsible for any statistical disparities. Id. Mrs. Torre appears to challenge Federated’s practice regarding promotion or transfer in toto. She alleges a menu of acts ranging from general sexual bias to career assessments, all of which she challenges. After examining the record, and her memoranda, the court understands Mrs. Torre’s disparate impact claim to be a general challenge to the way Federated promotes and transfers Marketing Representatives. The court is uncertain that such a shotgun challenge satisfies Watson’s requirement that a plaintiff isolate and identify a specific employment practice. However, for the purposes of this motion, the court assumes that her general challenge satisfies the specificity requirement of Watson. To complete her prima facie showing, Mrs. Torre must demonstrate (1) a disparate impact and (2) causation. A plaintiff may rely on statistics to show that a challenged practice has a disparate impact. Wards Cove, 490 U.S. at 650, 109 S.Ct. at 2121; Ortega, 943 F.2d at 1243. Mrs. Torre has presented various forms of “statistical” evidence. However, her evidence is characterized by a lack of completeness and is of questionable reliability. Her claim regards discrimination in promotions but she makes no attempt to define the relevant applicant pool. Furthermore, the information she does provide contains no indication whether the individuals mentioned possess the minimal qualifications for promotion. A plaintiff must present statistics which are relevant to her specific claim. It is not sufficient for Mrs. Torre to point to just any statistical disparity. Statistics are useful because they enable the parties to make comparisons. The proper comparison is between the gender composition of the “at-issue” jobs and the gender composition of the qualified persons in the applicant pool. See Wards Cove, 490 U.S. at 650-651, 109 S.Ct. at 2121; Ortega, 943 F.2d at 1244. Mrs. Torre’s statistics do not enable a fact-finder to make the proper comparison. She does not present a complete picture of the gender composition of the “at-issue” jobs, jobs to which Marketing Representatives are promoted, and she presents nothing related to the gender composition of the qualified persons in the applicant pool. Even if the court assumes that Mrs. Torre presents statistics capable of showing disparate impact, she fails to show causation. To prove causation, she “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for ... promotions because of their membership in a protected group.” Watson, 487 U.S. at 994, 108 S.Ct. at 2789 (plurality opinion). See also Wards Cove, 490 U.S. at 656-57, 109 S.Ct. at 2124-25. Although incomplete, Mrs. Torre presents some evidence of the gender composition of the “at-issue” jobs. What she presents demonstrates a gender disparity. However, this disparity alone does not prove the causation element of her prima facie case. See Wards Cove, 490 U.S. at 657, 109 S.Ct. at 2125 (stating that a showing that nonwhites are underrepresented in the “at-issue” jobs, without more, is insufficient to make out a prima facie case of disparate impact). Mrs. Torre has to demonstrate that the disparity she complains of is the result of one or more of the employment practices she is attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for males and females. See Id. She does not demonstrate that specific elements of Federated’s promotion process have a significantly disparate impact on females. In conclusion, the court finds that Mrs. Torre has not made a prima facie case because she has not identified a specific promotional practice, shown disparate impact through a proper statistical comparison, or demonstrated causation between the general practice she challenges and the “bottom-line” disparate impact she alleges. Therefore, the court grants defendants motion as to Mrs. Torre’s disparate impact claim. 3. Retaliation Mrs. Torre also claims defendants retaliated against her for complaining about sex discrimination and filing complaints with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights Commission (“KHRC”). In plaintiffs’ memorandum in support of their motion for summary judgment, Mrs. Torre argues that the court should grant her summary judgment on her retaliation claim. Defendants’ motion for summary judgment omits any mention of her retaliation claim. Accordingly, the court views this claim as being the subject of only Mrs. Torre’s motion for summary judgment. The court examines her retaliation claim with respect to the following five challenged acts: (1) failing to promote or transfer her; (2) forcing her to open a Topeka office; (3) providing her with unreasonable price quotes; (4) failing to give her the Leadership Council Award in 1991; and (5) failing to publicly recognize her receipt of the “Big Hitter” Award at the 1991 “kick-off’ meeting. It is unlawful for an employer to retaliate against an employee who has engaged in Title VII protected activity. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, Mrs. Torre must prove the following: (1) she engaged in protected opposition to discrimination or participated in a proceeding arising out of discrimination; (2) adverse action by her employer subsequent to the protected activity; and (3) a causal connection between such activity and the employer’s action. See Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483, 486 (10th Cir.1991); Allen v. Denver Public School Board, 928 F.2d 978, 985 (10th Cir.1991); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988). If she establishes her prima facie case, the burden of production shifts to defendants who must articulate a legitimate, nondiscriminatory reason for the adverse action. Anderson, 861 F.2d at 634. If defendants establish a legitimate reason, she still may prevail if she demonstrates the articulated reason was a mere pretext for discrimination. Id. Mrs. Torre first must show that she engaged in protected opposition to discrimination. Her memoranda fails to discuss this element. The court has reviewed the voluminous factual submissions in search of instances of protected opposition. The submissions reveal instances where she expressed various concerns to her superiors (e.g., to superiors at a training session about occurrences at the session; to Mr. Haegele at the March 1991 in Kansas City; to Mr. Haegele after failing to receive recognition as a “Big Hitter” at the “kick-off” meeting). It is unclear whether the instances mentioned in her submissions constitute the requisite opposition because the court is uncertain as to the substance of the communications. Mrs. Torre also claims to have filed complaints with the EEOC and KHRC on May 23, 1991. However, she does not provide the complaints. In fact, her only reference to these complaints is at Fact # 137 in the form of an unsupported aside. Plaintiffs Memorandum in Support, filed July 7, 1993 (Doc. 191), at p. 15. The court can find no evidence definitively establishing a date on which she engaged in protected opposition to discrimination. She challenges five acts as retaliatory but does not produce evidence about prior protected activity. An act cannot be retaliatory unless preceded by protected opposition to discrimination. She fails to prove the first, second, and third prongs of her prima facie case. Her motion is denied as to retali