                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                               November 22, 2011
                            FOR THE TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    CHERIE J. LOPEZ-FISHER,

                Plaintiff-Appellant,
                                                        No. 10-4185
    v.                                        (D.C. No. 2:09-CV-00633-PMW)
                                                          (D. Utah)
    ABBOTT LABORATORIES,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MATHESON, Circuit Judges.



         Cherie Lopez-Fisher claims Abbott Labs fired her because of her gender,

race, color, and national origin. After receiving extensive briefing and hearing

oral argument in this Title VII case, a magistrate judge entered an order granting

summary judgment to Abbott. See Lopez-Fisher v. Abbott Labs., No. 2:09-cv-

633-PMW, 2010 WL 3792031 (D. Utah Sept. 23, 2010).



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Focusing on the fourth prong of the prima facie case required by

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the magistrate judge

held that Ms. Lopez-Fisher had failed to present evidence suggesting she was

fired under circumstances giving rise to an inference of discrimination. See

Lopez-Fisher, 2010 WL 3792031, at *5-8. Alternatively and additionally, the

magistrate judge held that Ms. Lopez-Fisher’s claims failed because she hadn’t

presented evidence showing that the reason proffered by Abbott for her

termination — poor performance — was a pretext for discrimination. Id. at *8-9.

In reaching this latter holding, the magistrate observed that where, as here, an

employee is hired and fired by the same person within a relatively short time

span, this circuit recognizes a strong presumption that the firing decision isn’t

motivated by unlawful discriminatory animus. Id. at *9.

      We adopt the reasoning of the magistrate judge and affirm the grant of

summary judgment in favor of Abbott for the reasons he articulated. We add a

comment on one point. In her appellate brief, Ms. Lopez-Fisher insists that,

because she “successfully passed” the Performance Improvement Plan (PIP)

imposed on her, her termination a week after the PIP expired raises an inference

of discrimination. The difficulty with this line of argument is that, as the

magistrate judge explained, there isn’t “any evidence that she ‘successfully

passed’ the PIP.” Id. at *8. In suggesting otherwise, Ms. Lopez-Fisher directs us

to two passages in her deposition. In the first she testified that Kristen Beckman,

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her second-line supervisor, told her that she “no longer had to do certain

requirements in the [PIP.]” Aplt. Br. at 28. In the second, Ms. Lopez-Fisher

explained that, “at the end of the 60-day [PIP] period,” Krista Wall, her first-line

supervisor, “informed [her] that she was off the [PIP].” Id. Neither statement

indicates that Ms. Lopez-Fisher successfully passed the PIP. To the contrary, the

undisputed facts reflect that Ms. Lopez-Fisher failed to accomplish specific tasks

set forth in the PIP and that Ms. Beckman and Ms. Wall recommended her

termination for “non-performance” at the PIP’s conclusion. See also

Lopez-Fisher, 2010 WL 3792031, at *7 (“[i]t is undisputed that Plaintiff was the

only employee on her team to receive a [partially achieved] rating for 2007, that

her sales performance for [the first trimester of] 2008 was the lowest on her team,

and that she received a coaching and counseling letter and a PIP prior to her

termination”).

      The judgment of the district court is affirmed.


                                               Entered for the Court



                                               Neil M. Gorsuch
                                               Circuit Judge




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