                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1643
                                    ___________

Lanita Cherry,                           *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
Ritenour School District,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 17, 2003

                                   Filed: March 17, 2004
                                    ___________

Before LOKEN, Chief Judge, McMILLIAN, BEAM, Circuit Judges.
                             ___________

BEAM, Circuit Judge.

       Lanita Cherry appeals from the district court's1 grant of summary judgment in
favor of Ritenour School District on Cherry's claims of race discrimination and
retaliation under Title VII. The district court held that Cherry failed to establish a
prima facie case of discrimination and, furthermore, that Cherry did not prove that the
proffered reason for her contract nonrenewal was a pretext for intentional race
discrimination. We affirm the decision of the district court.

      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
I.    BACKGROUND

      We recite the facts in the light most favorable to Cherry and draw all justifiable
inferences in her favor. Putman v. Unity Health Sys., 348 F.3d 732, 733 (8th Cir.
2003).

       The School District employed Cherry, an African American, as a counselor
during the 1999-2000 school year and most of the 2000-2001 school year. During the
2000-2001 school year, Assistant Principal McKinley and Principal Wildhaber
counseled Cherry on several occasions concerning various aspects of her job
performance. These counseling sessions began in October 2000 when Assistant
Principal McKinley counseled Cherry about completing students' special education
referrals. Following that meeting, Principal Wildhaber shared concerns with Cherry
including Cherry's practice of keeping her door closed, her unwillingness to assist
during after-school hours, Cherry's failure to use her computer for counselor
functions, her sub-par performance in relation to what Principal Wildhaber had
previously experienced with other counselors, and complaints from other staff
members about Cherry's performance.

      On December 4, 2000, Cherry received a Formative Data Form, which cited
Cherry's lack of organization regarding the special education program and concerns
about her lack of availability. Then on December 5, 2000, Cherry received a
Professional Improvement Plan, which directed her to better organize and coordinate
special education services. Principal Wildhaber personally met with Cherry to
discuss the concerns raised in these documents.

       Principal Wildhaber counseled Cherry again on March 8, 2001, providing
Cherry another Formative Data Form and Professional Improvement Plan. This
Formative Data Form cited Cherry's lack of coordination and failure to schedule
certain meetings, failure to utilize existing computer programs, and failure to work

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with administration as a team player. The March Professional Improvement Plan was
identified as "job threatening," focusing on Cherry's failure to maintain positive
interpersonal relationships with school personnel. On March 13, 2001, Principal
Wildhaber gave Cherry her performance evaluation, which marked Cherry as "needs
improvement" in the area of "organizes and coordinates Special Education services,"
and as "does not meet expectations" in the area of "demonstrates positive
interpersonal relationships with district personnel to accomplish the district's vision,
mission, and goals." This evaluation recommended that Cherry's employment not be
renewed for the next school year. On March 26, 2001, the School District notified
Cherry that the Board of Education voted not to re-employ her for the 2001-2002
school year.

      Cherry responded to many of the suggestions and concerns raised throughout
the school year by creating flow charts as requested, and by attempting to set up a
parent support group. During the 2000-2001 school year, Cherry also contacted
Gilbert Balderama, the union representative, about the various counseling sessions
and feedback Cherry had received from Assistant Principal McKinley and Principal
Wildhaber. Balderama met with Principal Wildhaber and Cherry to review
Wildhaber's expectations and concerns. Balderama testified that it seemed as if the
administration's expectations of Cherry changed each time Cherry did what the
administration asked. Balderama also provided Cherry with the appropriate
paperwork to file a claim with the Equal Employment Opportunity Commission after
Cherry indicated that the administration was discriminating against her.

       As evidence of Wildhaber's animosity towards her, Cherry provided a letter
from a parent. That letter described an incident when Principal Wildhaber rudely
interrupted a meeting between the parent and Cherry, demanded that Cherry monitor
recess, and later interrupted a second time, and harshly commented about Cherry's
inability to assist. In substance, the parent wrote that she was disappointed with the
level of professionalism Principal Wildhaber demonstrated that day. Additionally,

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Cherry stated in her affidavit that because she is black and both McKinley and
Wildhaber are white, she was criticized more harshly and treated differently. As
further proof of her demonstrated abilities, Cherry pointed to a March 15, 2001, letter
written by a school psychologist, which stated that Cherry was a dedicated counselor
who worked very hard to complete her responsibilities.

II.   DISCUSSION

      We review the district court's grant of summary judgment de novo. Trammel
v. Simmons First Bank of Searcy, 345 F.3d 611, 613 (8th Cir. 2003). "We will
uphold the judgment if the evidence, 'viewed in the light most favorable to the
nonmoving party, demonstrates no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law.'" Id. (quoting Philip v. Ford
Motor Co., 328 F.3d 1020, 1023 (8th Cir. 2003)).

      As the district court did in this case, we will apply the McDonnell Douglas
burden-shifting approach to Cherry's claim. The McDonnell Douglas approach was
developed to assess claims that are based on collateral evidence and brought under
section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
2(a)(1). Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42 (2000).

       Under the McDonnell Douglas approach, the plaintiff must establish a factual
presumption of intentional discrimination. Id. at 142. In Cherry's case, that required
evidence (either direct or circumstantial) that: (1) she was a member of a protected
group, (2) she was meeting the legitimate expectations of her employer, (3) she
suffered an adverse employment action, and (4) there are facts that permit an
inference of discrimination. Taylor v. Southwestern Bell Tel. Co., 251 F.3d 735, 740
(8th Cir. 2001). If Cherry satisfies this burden, the School District must articulate a
legitimate, nondiscriminatory reason for its employment action. Reeves, 530 U.S. at
142. The burden on the School District is one of production, not persuasion. Id. If

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the School District articulates such a reason, the "presumption of intentional
discrimination disappears, but [Cherry] can still prove disparate treatment by, for
instance, offering [direct or circumstantial] evidence demonstrating that [the School
District's] explanation is pretextual." Raytheon Co. v. Hernandez, 124 S. Ct. 513, 518
n.3 (2003). "The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

       Both parties proceed under the McDonnell Douglas burden-shifting
framework. In evaluating Cherry's claim under the McDonnell Douglas approach, the
district court held that Cherry (1) was a member of a protected group, (2) suffered an
adverse employment action, and (3) sufficiently raised an inference of discrimination
to satisfy the fourth element of her discrimination claim. But, the district court
determinated that Cherry failed to demonstrate that she was meeting the School
District's legitimate expectations during the 2000-2001 school year, thus failing to
meet her burden of establishing a "prima facie case." Although the district court did
not assume in the alternative that Cherry had made a sufficient showing under the
McDonnell Douglas structure, it did discuss the School District's articulation of a
nondiscriminatory reason for Cherry's nonrenewal. After reviewing the record in the
light most favorable to Cherry and drawing all reasonable inferences in her favor, we
agree with this latter approach. Thus, we assume for purposes of this appeal that
Cherry carried her burden under the requirements of McDonnell Douglas.

       After presuming that Cherry established a McDonnell Douglas case, the district
court properly recognized that the School District offered a legitimate,
nondiscriminatory reason for Cherry's nonrenewal–she did not improve in the specific
areas in which she was counseled. As previously outlined, Principal Wildhaber
discussed several specific areas of improvement with Cherry beginning in October
2000, including, among other things, Cherry's practice of keeping her door closed, her
unwillingness to assist after school, and her failure to use her computer for counselor

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functions. This performance counseling continued through March 2001 with written
evaluations citing specific areas of needed improvement, many of which were
repeated each session.

         Having articulated a legitimate, nondiscriminatory reason for Cherry's
nonrenewal, the inquiry now before us is whether there was sufficient evidence, either
direct or circumstantial, from which a jury could conclude that the School District
made its employment decision based on Cherry's race despite the School District's
proffered explanation. "[I]t is possible for strong evidence of a prima facie case to
. . . present a factual issue on pretext." Kiel v. Select Artificials, Inc., 169 F.3d 1131,
1135 (8th Cir. 1999) (en banc). "In many cases the employer's proffered reason is
that the employee was not performing the job satisfactorily, which is simply the
negative of one of the elements of the prima facie case." Erickson v. Farmland
Indus., Inc., 271 F.3d 718, 726 (8th Cir. 2001). If the employee has produced
evidence that she is performing satisfactorily, there may be sufficient evidentiary
conflict to create a triable issue of fact. Such a showing, however, does not
necessarily create a genuine issue of material fact because the presumptive case
requires only a minimal showing, while a showing of pretext requires more
substantial evidence. Id. at 726-27. At any rate, Cherry's evidence supporting her
prima facie case is not so strong as to allow a reasonable factfinder to conclude the
School District's articulated reason was a pretext for intentional discrimination.

       As here, "'[p]robably the most commonly employed method of demonstrating
that an employer's explanation is pretextual is to show that similarly situated persons
of a different race or sex received more favorable treatment.'" Id. (quoting 1 Lex K.
Larson, Employment Discrimination § 8.04 (2d ed. 2001)). "The test to determine
whether employees are 'similarly situated' to warrant a comparison to a plaintiff is a
'rigorous' one." EEOC v. Kohler Co., 335 F.3d 766, 775 (8th Cir. 2003) (quoting
Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)). "Specifically, the
individuals used for comparison must have dealt with the same supervisor, have been

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subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances." Id. at 776.

       Cherry has failed to identify any specific staff members who were similarly
situated yet were treated more favorably. While she generally asserts that other
individuals had particular similarities in certain instances, she does not meet the
rigorous standard of proving how these individuals were sufficiently analogous to her
situation. For example, Cherry identifies a certain Caucasian teacher by name, and
claims that other Caucasian teachers kept their doors closed without rebuke and were
not given two Professional Development Plans with additional expectations. But, she
does not establish how these individuals were otherwise comparable . Cherry had the
burden of demonstrating by a preponderance of the evidence that there were
individuals similarly situated in all relevant aspects. Id. And, unsubstantiated
allegations are insufficient.

       Cherry offers no evidence that she did, in fact, assist during after school hours,
utilize the computer program available to her, and make herself more accessible. In
an affidavit, Cherry alleges that she created flow charts as suggested and attempted,
without any help from Principal Wildhaber, to set up a parent support group as
requested. However, standing alone these assertions are insufficient to prove pretext.

       Finally, Cherry's asseverations that African American parents, students, and
two former secretaries had declared that Principal Wildhaber discriminated against
them or their children are not on point and are otherwise wholly insufficient. In
addition, these statements are inadmissible hearsay and cannot be used to avoid
summary judgment. Fed. R. Evid. 801(c); Fed. R. Civ. P. 56(e).

     In sum, there are no facts in this record that support the conclusion that the
School District's stated reason for not renewing Cherry's contract was a pretext for



                                          -7-
intentional race discrimination. Accordingly, the School District is entitled to
summary judgment under the McDonnell Douglas paradigm.

III.   CONCLUSION

     For the reasons stated above, we affirm the district court's grant of summary
judgment in favor of the School District.
                       ______________________________




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