                                                                         FILED
                                                             United States Court of Appeals
                                      PUBLISH                        Tenth Circuit

                  UNITED STATES COURT OF APPEALS                 December 31, 2014

                                                                Elisabeth A. Shumaker
                               TENTH CIRCUIT                        Clerk of Court


THE ESTATE OF CARLOS BASSATT,
by CARLOS BASSATT JR., Personal
Representative,

             Plaintiff - Appellant,

v.                                                     No. 13-1244

SCHOOL DISTRICT NO. 1 IN THE
CITY AND COUNTY OF DENVER;
PATRICK SANCHEZ,

             Defendants - Appellees.




        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:11-CV-01761-RPM-BNB)


Richard C. LaFond, Richard LaFond P.C., Boulder, Colorado, Plaintiff-Appellant.

Holly Ortiz, Semple, Farrington & Everall, P.C., Denver, CO (Michael Brent
Case, Semple, Farrington & Everall, P.C., Denver, CO, with her on the briefs) for
Defendants-Appellees.


Before KELLY, BACHARACH, and PHILLIPS, Circuit Judges.


PHILLIPS, Circuit Judge.
   In 2007, Carlos Bassatt was accused by a school district employee of

masturbating in the parking lot of West High School (“West”) in Denver during

school hours. Consequently, he was terminated from his student teaching

placement with School District No. 1 of the City and County of Denver

(“District”) for misconduct. Although the Denver District Attorney’s Office chose

not to prosecute Bassatt, West’s principal terminated him from his student

teaching placement with the District out of concern for student safety. Bassatt

filed a discrimination complaint with the Colorado Civil Rights Commission

(“CCRC”). Bassatt later filed a lawsuit alleging retaliatory discharge in the

United States District Court for the District of Colorado. Bassatt died during

district court proceedings, and his estate (“Estate”) was substituted as the

plaintiff. The district court granted summary judgment for the District, finding

that the Estate failed to show that the principal’s reason for firing Bassatt was

pretextual.

   The Estate appeals the district court’s finding that it failed to show pretext,

which is required in a Title VII retaliation claim. It contends that there are

sufficient facts on the issue of pretext to create a triable issue of material fact,

thus precluding summary judgment. Since this is an appeal from a final decision

of the district court, we exercise jurisdiction under 28 U.S.C. § 1291. We

AFFIRM the district court.

                                        -2-
                                     FACTS

A. General Background

   Carlos Bassatt, a Puerto Rican man, was working toward his Masters of

Education degree at Regis University. Beginning in September 2007, Bassatt

began student teaching and substitute teaching at West. Student teachers are not

employed by the district.

   On September 14, 2007, Bassatt left the school building, got into his Ford

Focus, and reclined his seat. Maria Iams, a District employee, arrived shortly

thereafter in her car and parked in the space next to him. Her bag fell between the

passenger’s seat and the door. As she propped herself up on the center console to

retrieve it, she saw a man masturbating in the Ford Focus. She had never seen the

man before and did not know that he worked at West. She reported the incident to

a colleague, explaining that she had seen a Hispanic man masturbating in a car

parked next to her car. Her colleague reported the incident to Denver Police

Officer Vincente Damian, West’s resource officer. 1 Damian questioned Iams and

reviewed surveillance video of the parking area. He also asked Iams to review it.

She was able to identify the car in the video as the Ford Focus that had been

parked next to her in the lot, but she was unable to identify the man walking to

   1
     School resource officers are law enforcement officers who are responsible for
providing security and crime prevention services in schools.
                                          -3-
and entering the car as the man whom she saw masturbating. However, the Dean

of Students at West, Dan Trujillo, was able to identify the man in the video as

Bassatt after he reviewed it. The video reflects that the man walking to his car,

identified as Bassatt, was wearing a dark polo shirt. Iams provided Damian with a

written statement about the events in question. Damian prepared a written

statement and an incident report.

   Patrick Sanchez, West’s principal, was notified of the incident that same day.

Sanchez is Latino and is an advocate for Latino educators. He founded the

Mentoring Institute for Latino Educators (“MILES”). On September 17, 2007,

Sanchez and Damian met with Bassatt and informed him that he had been accused

of masturbating in his car in the West parking lot. Bassatt denied the allegations.

Sanchez informed Bassatt that he was being placed on administrative leave

pending further investigation. After speaking with Iams and Bassatt, Damian

believed that Iams was telling the truth.

   At their initial meeting, Damian gave Bassatt a summons to appear at the

Denver Police Department the next day. Although Bassatt went to the Police

Department immediately after the meeting, the police were not yet prepared to

talk to him. Bassatt called a lawyer later that day, who advised him not to speak

with the police until the lawyer could be present with him. The following day,

Bassatt appeared at the Denver Police Department to tell the detective that he

                                        -4-
would not interview until his lawyer could be present. He then left. Although the

Denver District Attorney’s Office considered charging Bassatt, it ultimately

declined to prosecute the case.

   Upon learning that no charges were being filed against Bassatt, Sanchez sent

Bassatt an email on September 19, 2007, stating, “We have the all clear for you to

return to West in good standing[;] the investigation did not determine that the

allegations were founded.” J.A. vol. IV at 1463. After sending the email, Sanchez

spoke with Bart Muller, the District’s Director of Labor Relations, who told

Sanchez that the District Attorney’s decision not to prosecute did not prevent the

District from taking action against Bassett for his alleged misconduct. Muller also

stressed to Sanchez the importance of student safety. Muller reported that Iams,

the accuser, was an exemplary employee.

   Sanchez and Muller decided to meet with Bassatt again. On September 26,

2007, they met with Bassatt and his wife, who was a teacher at West. Bassatt

admitted that he had been reclining in his car in the parking space next to Iams,

but he denied that he had been masturbating. Bassatt then declared that the

accusation was racially motivated and that the District’s decision to end Bassatt’s

placement at West was discriminatory. On September 27, 2007, the District

advised Bassatt that he was terminated from his student teaching placement.

B. The Legal Proceedings

                                       -5-
   Following this sequence of events, Bassatt filed charges against the District

claiming race discrimination and retaliation with the CCRC under Colorado

Revised Statute § 24-34-402(1)(a), (1)(e) (2012). A two-day hearing was held

before a state Administrative Law Judge (“ALJ”) of the CCRC. On October 15,

2009, the ALJ issued her initial decision in Case No. 2009-007 (“Initial

Decision”), concluding that Bassatt had established neither discrimination nor

retaliation because he had failed to: (1) establish the existence of circumstances

giving rise to an inference of unlawful discrimination, and (2) establish a prima

facie case of retaliation.

   Bassatt appealed the ALJ’s finding regarding his retaliation claim to the

CCRC under Colorado Revised Statute § 24-4-105(15)(a) (2014). 2 On August 23,

2010, the CCRC issued a final order (“Final Order I”), reversing the ALJ’s

conclusion on the retaliation claim. Final Order I found that Bassatt had in fact

established a prima facie case of retaliation and, further, that the District’s reason

for terminating Bassatt was pretextual.

   The District appealed Final Order I to the Colorado Court of Appeals. On

October 11, 2011, the court issued an opinion affirming the CCRC’s finding that

Bassatt had established a prima facie case of retaliation. Bassatt v. School Dist.

   2
     When parties wish to appeal an ALJ’s initial decision in a discrimination
case, they file a designation of the record and transcript with the CCRC. They
may then appeal that decision directly to the Colorado Court of Appeals. Colo.
Rev. Stat. § 24-4-106(11); id. § 24-34-307(2).
                                       -6-
No. 1 in the City and Cnty. of Denver, No. 10CA2066, 2011 WL 4983684 (Colo.

Ct. App. Oct. 20, 2011). However, the court did not consider the question of

pretext or the ultimate issue of retaliation. After reversing “in part the [CCRC’s]

rulings on the ALJ’s findings of fact,” it remanded the case back to the CCRC “to

reconsider the ultimate issue of whether the [District’s] termination of Bassatt

constituted discriminatory retaliation . . . .” J.A. vol. IV at 1527.

   In July 2011, before the CCRC had reconsidered the case on remand after the

Colorado Court of Appeals’ decision, Bassatt filed suit against the District in the

United States District Court for the District of Colorado. Bassatt raised a number

of claims in his complaint, including unlawful retaliation by the District in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq,

and retaliation by the District in breach of his student teacher agreement in

violation of 42 U.S.C. §§ 1981 and 1983. That lawsuit forms the basis of this

appeal. Then on September 28, 2012, the CCRC issued its second order (“Final

Order II”). The CCRC concluded in Final Order II that Bassatt had established

that the District had terminated him in retaliation for his accusations of

discrimination. It concluded specifically that the District did not provide a

legitimate, non-discriminatory reason for its action. Final Order II was never

reviewed on appeal.




                                         -7-
   In August 2012, Bassatt passed away. The Estate of Carlos Bassatt, by Carlos

Bassatt, Jr., personal representative, was substituted as plaintiff (“Estate”).

   On May 17, 2013, the district court granted the District’s motion for summary

judgment. It concluded that the Estate had failed to make a sufficient showing of

pretext to defeat summary judgment on its Title VII retaliation claim. It also

dismissed the Estate’s §§ 1981 and 1983 claims because Bassatt did not have a

contract with the District to student teach, which would provide for continued

employment and establish a property right protected by due process. Bassatt

appealed the court’s grant of summary judgment.


                                   DISCUSSION

   Before addressing the substance of Bassatt’s arguments, we review the

preclusive effects of state court and state administrative decisions, as that will

dictate our own review of the following issues. The findings of a state

administrative agency generally do not bind federal courts. Univ. of Tenn. v.

Elliott, 478 U.S. 788, 796 (1986) (“Congress did not intend unreviewed state

administrative proceedings to have preclusive effect on Title VII claims.”);

Bolling v. City & Cnty. of Denver, Colo, 790 F.2d 67, 68 (10th Cir. 1986).

However, federal courts must give preclusive effect to factual and legal

determinations made by state courts when reviewing state administrative agency

actions. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982) (holding that a
                                         -8-
state court decision affirming a state agency determination on a claim of

employment discrimination is entitled to preclusive effect); Bolling, 790 F.2d at

68 (holding that federal courts are required by the Full Faith and Credit provision

of 28 U.S.C. § 1738 to “give to a state-court judgment the same preclusive effect

as would be given that judgment under the law of the state in which the judgment

was rendered” (quoting Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75,

81 (1984))).

   Thus, we are bound by the Colorado Court of Appeals decision reviewing

Final Order I because the state agency’s determination was reviewed on appeal by

a state court. See Bolling, 790 F.2d at 68; Stone v. Dep’t of Aviation, 290 F.

App’x 117, 123 (10th Cir. 2008) (unpublished) (applying collateral estoppel to

state court case reviewing state agency decision). The Colorado Court of Appeals

held that the Estate had established a prima facie case of retaliation, but it did not

make any conclusions on the ultimate issue of retaliation. The Estate argues that

we are also bound by Final Order II, which ultimately did find pretext and

retaliation. Final Order II, however, was never reviewed by any state court. Thus,

we are not bound by this Order. See Bolling, 790 F.2d at 68.

A. Retaliation Claim

   “To prevail on a Title VII retaliation claim, a plaintiff must establish that

retaliation played a part in the employment decision . . . .” Fye v. Okla. Corp.

                                         -9-
Comm’n, 516 F.3d 1217, 1224 (10th Cir. 2008). She may do so in one of two

ways. She may directly show that “retaliatory animus” played a motivating role in

the employment decision. Id. at 1225; Price Waterhouse v. Hopkins, 490 U.S.

228, 250 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. 102-

166, 105 Stat. 1075, as recognized in Burrage v. United States, 134 S. Ct. 881,

889 n.4 (2014). Or, where a plaintiff cannot do so, she may instead rely on the

three-part McDonnell Douglas burden-shifting approach to show that the

employer’s proffered reason for termination was merely a pretext. Fye, 516 F.3d

at 1225. The plaintiff must persuade the court that the “employer’s reason is

unworthy of belief.” Id. at 1225.

   Under the McDonnell Douglas approach, a plaintiff must first make out a

prima facie case of retaliation by showing “(1) that he engaged in protected

opposition to discrimination, (2) that a reasonable employee would have found

the challenged action materially adverse, and (3) that a causal connection existed

between the protected activity and the materially adverse action.” Somoza v.

Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008) (internal quotation marks

and citations omitted). Once the plaintiff establishes a prima facie case, the

burden shifts to the employer to provide a legitimate and facially non-

discriminatory reason for its decision. Id. at 1211. If the employer satisfies this

burden, then the plaintiff must establish by a preponderance of the evidence that

                                       - 10 -
the employer’s reasons were merely a pretext for discrimination. Jaramillo v.

Colo. Jud. Dep’t, 427 F.3d 1303, 1307 (10th Cir. 2005).

   We are bound by the Colorado Court of Appeals’ conclusion that the Estate

made out a prima facie case of retaliation. Therefore, we need only determine

whether (1) the District proffered a legitimate, non-discriminatory reason for its

decision and (2) the Estate has demonstrated that this reason was a mere pretext

for discrimination.

   It is clear to us that the District provided a non-discriminatory reason for

terminating Bassatt—his alleged misconduct in the parking lot. As such, we need

only concern ourselves with the final step in the Title VII action: pretext. On this

issue, the district court found that:

      Sanchez made a credibility determination as to Iams’ statements and
      concluded that any doubt should be resolved against Bassatt after
      being advised by Muller of the need to assure the safety of the
      students. That is a legitimate business decision. The plaintiff has
      failed to show that it is pretextual.

Estate of Bassatt v. Sch. Dist. No. 1 in the City & Cnty. of Denver, No. 1:11-CV-

01761-RPM, 2013 WL 2153105, at *4 (D. Colo. May 17, 2013) (unpublished).

Given that this determination was made at the summary judgment stage, our

review is de novo. Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1131 (10th Cir.

2014). We will affirm only if the record, considered in the light most favorable to

the non-moving party, establishes no genuine issue of material fact. Jones v.

                                        - 11 -
Denver Pub. Sch., 427 F.3d 1315, 1318 (10th Cir. 2005). After undertaking this

review, we agree with the district court that the District is entitled to summary

judgment because the Estate does not provide sufficient evidence to raise a triable

issue on pretext.

   As to pretext, the Estate argues that the district court erred both by believing

Sanchez’s reason for taking action against Bassatt and by failing to recognize the

persuasive value of Final Order II. We disagree with both arguments.

   A plaintiff demonstrates pretext by producing evidence of “such weaknesses

. . . in the employer's proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence.” Morgan v. Hilti,

Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting Olson v. Gen. Elec.

Astrospace, 101 F.3d 947, 951–52 (3d Cir. 1996)). The Estate puts forth three

reasons in support of its pretext argument: (1) the district court’s error in

assigning the burden of proof to the plaintiff; (2) the insufficient evidence for

Sanchez to make a credibility determination; and (3) the persuasive value of Final

Order II. We consider and dismiss each in turn.

   1. Burden of Proof

   The Estate argues that the district court erred by assigning the burden of proof

on the pretext question to the non-moving party—the Estate. Although it is

generally true that the moving party has the burden to show that there is no

                                       - 12 -
genuine issue of material fact on a motion for summary judgment, the same is not

true in the context of an adverse employment decision. When an employment

decision is made based on alleged misconduct, the plaintiff must present evidence

that rebuts the defendant’s claim that the misconduct was the motivating factor

for the employment decision. See Santana v. City and Cnty. of Denver, 488 F.3d

860, 866 (10th Cir. 2007) (holding that plaintiff did not “raise a genuine doubt

about Defendant’s motivation” on pretext claim and thus summary judgment for

defendant was proper) (quoting EEOC v. Horizon/CMS Healthcare Corp., 220

F.3d 1184, 1200 (10th Cir. 2000)). Thus, the district court properly required the

Estate to show evidence of Sanchez’s pretext.

   2. Credibility Decision

   The Estate also argues that the district court erred in finding that Sanchez

made a permissible and sincere credibility determination in believing Iams; it

contends that there was insufficient evidence supporting Iams’s credibility. 3 The

Estate targets the District’s allegedly inadequate investigation and the


   3
     The Estate confuses Sanchez’s own credibility determination with the district court’s
finding that this determination was not a pretext for his actions. In its opening brief, the
Estate declares that “[t]he court made a credibility determination that it believed Sanchez
and accepts his proffered reason for firing Bassatt.” Appellant’s Br. at 48. But it is
mistaken. In the next sentence, it states: “The court wrote that ‘Principal Sanchez made a
credibility determination as to Iams’ statements and concluded that any doubt should be
resolved against Bassatt.’” Id. This latter sentence shows that the district court did not
make a credibility determination. Based on the evidence, it rightly concluded that the
Estate did not raise a genuine issue of material fact as to pretext.
                                            - 13 -
discrepancies in Iams’ report to demonstrate that Sanchez did not have enough

information in front of him to credibly determine that Iams had seen Bassatt

masturbating in the parking lot.

   First, the Estate asserts that Sanchez inadequately investigated the incident. It

offers four reasons why the investigation was inadequate: (1) after Bassatt had

returned to his student teaching responsibilities, Muller told Sanchez that

additional investigation was needed, but nothing else occurred except the

additional meeting with Bassatt and his wife; (2) the District did not produce

documentation of an independent investigation, which is against normal practice;

(3) Sanchez’s investigation was so suspect that he could not have credibly

believed Iams’s allegation; and (4) neither Sanchez nor Muller considered

Bassett’s record or background before terminating his student teacher placement.

   The failure to conduct a fair investigation can raise an inference of pretext.

Smothers v. Solvay Chems., Inc., 740 F.3d 530, 542 (10th Cir. 2014). While the

Estate relies on Smothers for this proposition, there the employer never heard the

plaintiff’s side of the story before firing him. Id. That is not the case here.

Sanchez heard both Iams’s and Bassatt’s accounts of what happened and had to

make a decision. As the principal, he had to weigh numerous competing interests,

including the safety of his students. Sanchez’s decision to believe Iams over

Bassatt, when there was no direct evidence either way, is not evidence of pretext.

                                       - 14 -
   The Estate also relies on Trujillo v. PacifiCorp, 524 F.3d 1149 (10th Cir.

2008), for the same proposition, but this case too provides little support. In

Trujillo, the court stated that “[a]lthough the couple together [had] served

PacifiCorp for 28 years, they were never given the benefit of the doubt during the

investigation. Rather, the company seemingly relied only on evidence to the

detriment of the [plaintiffs] and failed to interview key witnesses.” Id. at 1160.

Conversely, Bassatt had not worked at West for even a month before the incident

occurred. And, while the District’s investigation conceivably could have been

more thorough, Sanchez and Muller did interview the key witnesses—Iams,

Damian, and Bassatt himself. Again, nothing about the District’s investigation

suggests deficiencies from which we could infer pretext.

   The Estate further argues that the discrepancies in Iams’s report created a

genuine issue of material fact on pretext. It points out that Iams could not identify

Bassatt as the man in the Ford Focus and that her description of the man’s

clothing did not match what Bassatt was wearing in the surveillance video. 4

While discrepancies exist, Bassatt admitted that he was the person reclined in the

driver’s seat of the Ford Focus.



   4
     We note, however, that Dean Trujillo identified the man walking to the Ford Focus
as Bassatt in the surveillance video, and that the man was wearing a dark polo shirt in that
video.

                                           - 15 -
   Regardless, the Estate focuses on the wrong question. The proper inquiry is

not whether the inadequacy of the investigation foreclosed Sanchez from the

possibility of believing Bassatt. Rather, the relevant inquiry is whether Sanchez

subjectively, but honestly, believed that Bassatt had engaged in the misconduct.

See Rivera v. City and Cnty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004).

Here, we infer from Bassatt’s testimony before the ALJ that Bassatt believed that

Sanchez honestly believed that Bassatt had engaged in the misconduct. 5

   Finally, the Estate argues on appeal that Sanchez’s first email to Bassatt,

inviting him back to work, is evidence that Sanchez did not truly believe Bassatt

had engaged in the misconduct. But this argument fails in light of the Colorado

Court of Appeals’ decision, which specifically reviewed and rejected this

position. That decision affirmed the ALJ’s finding that the e-mail “does not

provide evidence of discriminatory intent or an ulterior motive.” J.A. vol. III at

1281. Additionally, we believe that Sanchez only sent the email because he

believed that the District Attorney’s decision not to pursue charges bound him

from acting against Bassett based on Iams’s allegations. Once he determined he

was not bound by the District Attorney’s decision, he reconsidered his options.




   5
     See infra note 6 and accompanying text. In addition, Sanchez knew that Muller also
believed that Bassatt had engaged in the wrongdoing. Damian also believed that Bassatt
had committed the misconduct.
                                         - 16 -
   We agree with the district court that the Estate fell short of establishing

pretext. It provided no evidence to the district court that Sanchez was motivated

to take action based on anything other than Bassatt’s alleged misconduct. In fact,

as we read the record, Bassatt acknowledged that Sanchez genuinely believed

Iams’s allegations. 6 Further, Sanchez is Latino, and we conclude that this

undermines any suggestion of pretext. See Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1471 (11th Cir. 1991) (holding that plaintiff failed to show pretext in

part because decision makers were in the same protected class as plaintiff).

Sanchez is even a founding member of a group that advocates for Latinos in

education. Thus, we cannot agree with the Estate that Sanchez had insufficient

information in front of him to make a credibility determination regarding

Bassatt’s behavior.


   6
       During his hearing before the ALJ, Bassatt said:

         And Mr. Muller kept asking me, well, why would she be making those
         allegations if it’s not true? And that’s when I told Mr. Muller, You know
         what, you’re very discriminating against me because you already have your
         mind made up that I did it based on your conversation and what you’re
         saying, all right. That just because I’m a Hispanic male, you already believe
         that I did it? That’s discrimination against me.
                 So Mr. Sanchez turned around and told me, Carlos, that is not
         helping, so don’t do that. That’s when I said, Sir, but it’s the truth, okay. He
         presented himself the whole time as I was – you know, as I did it.

J.A. vol. II at 617. Bassatt’s lawyer told the court that during the meeting between Bassatt
and Sanchez, Bassatt said to Sanchez, “Look, you’re taking the word of this woman over
mine without doing an investigation.” J.A. vol. IV at 1760.
                                             - 17 -
   3. CCRC’s Final Order II

   Finally, the Estate argues that CCRC’s Final Order II provides evidence of

pretext sufficient to satisfy the Estate’s burden on summary judgment. Final

Order II was decided on remand from the Colorado Court of Appeals, and it

found that Bassatt had established pretext. That order was never reviewed by the

Colorado Court of Appeals, but the Estate argues that we should still give it

persuasive weight. In support, the Estate cites Long v. Laramie Cnty. Cmty. Coll.

Dist., 840 F.2d 743 (10th Cir. 1988), for the proposition that a state

administrative agency’s judgment is persuasive evidence for us. To the contrary

however, Long merely allows a district court to consider an unreviewed

administrative decision. Id. at 749. Here, the district court did consider Final

Order II and found it was “neither binding nor persuasive.” J.A. vol. IV at 1749.

This decision is not an error of law.

B. Sections 1981 and 1983 Claims

   The Estate also brought retaliation claims under 42 U.S.C. §§ 1981 and 1983.

Because we conclude that the district court properly dismissed the Title VII

retaliation claim for lack of a pretext showing, the Estate’s §§ 1981 and 1983

claims are defeated because they too are subject to the McDonnell Douglas

burden-shifting analysis. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987,

998 (10th Cir. 2011).

                                        - 18 -
       But even if the Estate were able to show pretext, it still could not prevail

on its §§ 1981 and 1983 claims because Bassatt did not have an employment

contract with the District. As pleaded, the §§ 1981 and 1983 claims concern only

the student-teacher agreement. The Estate argues that this agreement qualifies as

an employment contract. After reviewing the relevant documents, the district

court concluded that they did not amount to an employment contract with the

District. We agree.

   To establish a claim under § 1981, a plaintiff must show, in addition to the

McDonnell Douglas requirements, that he had an employment contract with the

employer. 7 Flores v. City and Cnty. of Denver, 30 F. App’x 816, 819 (10th Cir.

2002) (unpublished). The Estate suggests that the following documents, taken

together, constituted an employment contract: “Request for student teacher

placement”; the “Confirmation Form” approving the student teacher placement;

the “Student Teacher Agreement”; the “Learning Contract for Student Teaching”;

and the “Student Teacher Checklist.” Appellant’s Br. at 41. None of these create

a contract with the District. 8


   7
    Although the Estate discussed § 1983 in its argument heading and legal standard, it
never actually briefed the issue so we do not discuss the merits.
   8
     We also reject the Estate’s contention that Bassatt’s student teaching placement
constituted an at-will position for the purposes of bringing a cause of action under
§ 1981. While this court recognizes that an at-will employee without an employment
contract is not precluded from bringing a cause of action under § 1981, we conclude that
                                          - 19 -
   The legal status of teachers in Colorado is governed by the Cooperative

Teacher Education Act. See Colo. Rev. Stat. § 22-62-101 (2014). That Act

authorizes school boards to enter into “written, contractual agreements or

arrangements with any college or university for the purpose of providing field

experiences in teacher education.” Id. § 22-62-103(1). The statute provides that

“[t]he duties and responsibilities of the student teacher shall be determined by

mutual agreement between the school district and the authorized representative of

the college.” Id. § 22-62-105(1).

   In this case, none of the documents referenced by the Estate are signed by

anyone with the authority to bind the District to an employment contract. The

Confirmation Form is signed by Bassatt, Sanchez, and two cooperating teachers.

The Student Teacher Agreement is signed only by Bassatt. The Learning Contract

is signed by Bassatt, a cooperating teacher, and a Regis supervisor. And the

Student Teacher checklist is signed only by Bassatt. No one from the school

board signed a single document. None of these documents, either individually or

taken together, constitute an employment contract between West and Bassatt.



Bassatt’s student teaching placement would not qualify as an at-will position. In Perry v.
Woodward, 199 F.3d 1126, 1133 (10th Cir. 1999), we held that a contractual relationship
existed when the plaintiff rendered her services in exchange for her employer’s payment
of wages. Here, in comparison, Bassatt is not simply providing his teaching services in
exchange for payment by the District; his primary purpose for teaching is to gain teaching
experience and satisfy the practical hours requirement for his master’s program.
Therefore, we see no contractual relationship for the purpose of § 1981.
                                          - 20 -
   We need not address the Estate’s argument that Sanchez was the final

policymaker for the District because we resolve the §§ 1981 and 1983 claims in

favor of the District on two other grounds: (1) the Estate failed to show that

Sanchez’s reason for terminating Bassatt was pretext; and (2) Bassatt did not

have an employment contract with the District. Thus, the argument over who is

the final policymaker is irrelevant for our purposes. 9


                                     CONCLUSION

   We hold that the district court properly granted summary judgment in favor of

the District because the Estate did not provide evidence sufficient to raise a

triable issue on pretext as a matter of law. As such, we AFFIRM the district

court.




   9
     Because we hold that the Estate fails to show pretext in its Title VII retaliation claim
and its §§ 1981 and 1983 claims, we need not reach its final argument that non-economic
damages survive Bassatt’s death.
                                           - 21 -
