                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1930
                         ___________________________

                                    Farrell Cherry

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                       Siemens Healthcare Diagnostics, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                              Submitted: May 16, 2016
                                Filed: July 21, 2016
                                   ____________

Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

      Plaintiff Farrell Cherry filed suit against his former employer, Siemens
Healthcare Diagnostics, Inc., alleging unlawful discrimination on the basis of race in
violation of Title VII of the Civil Rights Act. Cherry now appeals the district court’s1
grant of summary judgment in favor of Siemens. We affirm.

        Cherry, who is African American, worked for Siemens from 1981 until 2011,
when he was terminated as part of a reduction in force. Cherry worked in the Rapid
City, South Dakota, area, and for many years was the sole field service technician
serving this area. In 2008, Regional Service Manager Blaine Raymer became
Cherry’s supervisor. Also in 2008, Dave Eide began working as a second field service
technician for Siemens in the Rapid City area. Shortly after he started working for
Siemens, Eide began criticizing Cherry’s work performance to Raymer. On multiple
occasions over the next few years, Raymer and Eide2 made various derogatory
comments to or about Cherry, acted disrespectfully toward Cherry, and told stories
and jokes that created a racially hostile environment for Cherry. On one particular
occasion at a company dinner in 2011, Raymer demonstrated both animosity toward
Cherry and favoritism toward Eide by commenting that he wished Cherry was more
like Eide. When Cherry asked for an explanation of this comment, Raymer paused
for a long moment before saying “ride a motorcycle.” Cherry said that this comment
created an uncomfortable atmosphere for everyone at the table, and that he left the
dinner shortly afterward. When asked at his deposition what he meant by this
comment, Raymer was unable to provide a clear explanation.

       Siemens initiated a reduction in force in October 2011. Service Director David
Siebert, Raymer’s direct supervisor, was responsible for implementing the reduction
in force in the region including Rapid City. Siebert was required to identify a total of
five employees to be included in the reduction in force: two were employees who
chose to retire, and the remaining three—one of whom was Cherry—were the lowest-


      1
       The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
      2
       Raymer and Eide are both Caucasian.

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performing employees in the region. Siebert’s assessment of performance was based
on the performance reviews done by the employees’ immediate supervisors—Raymer,
in Cherry’s case—from the last three years.

        Raymer was not aware of the reduction in force until November 2, 2011, after
the employees to be laid off had been selected. Before then, at most Raymer was
aware that a reduction in force was likely. Raymer had, however, prepared Cherry’s
performance reviews, which Siebert relied on when selecting Cherry for layoff. In
2009, Raymer gave Cherry a rating of 3.21 (“achieved”) and provided generally
positive feedback on Cherry’s work performance. In 2010, Raymer gave Cherry a
rating of 2 (“partially achieved”) and was more critical of Cherry’s job performance.
In June 2010, Cherry was given a performance improvement plan. In 2011, Raymer
again gave Cherry a rating of 2, and provided positive feedback on some aspects of
Cherry’s work while criticizing others. In 2011, Raymer also frequently complained
to Siebert of Cherry’s poor work performance, particularly as related to his completion
of administrative tasks. In September 2011, when Siebert asked Raymer for a list of
employees with current performance improvement plans, Raymer gave Siebert
Cherry’s name, even though Cherry’s performance improvement plan had expired in
August 2010. Throughout this period, there was additional mixed information about
Cherry’s and Eide’s relative job performance—for instance, though Eide complained
about Cherry’s job performance, an internal report in June 2011 ranked Eide as the
lowest-rated field engineer in the area. A later draft of the same report ranked Eide
second-lowest and Cherry lowest. Despite this, when Raymer suggested to a major
client that Cherry be replaced by Eide as their primary service technician, the client
flatly refused.

       On November 4, 2011, Raymer informed Cherry that his employment with
Siemens was being terminated as part of the reduction in force. Cherry subsequently
filed suit against Siemens, alleging that his termination was based on race. In March



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2015, the district court granted summary judgment in favor of Siemens. Cherry now
appeals.

       We review the district court’s grant of summary judgment de novo. Qamhiyah
v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 741 (8th Cir. 2009). A grant of
summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In applying this standard, we view the evidence in the light most
favorable to the non-moving party. Qamhiyah, 566 F.3d at 741. “To survive a motion
for summary judgment on [a] race discrimination claim,” a plaintiff must “either
‘present admissible evidence directly indicating unlawful discrimination,’” or “create
‘an inference of unlawful discrimination under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).’” Young v.
Builders Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (quoting Humphries v. Pulaski
Cty. Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)).

       Cherry argues that the district court erroneously failed to apply the “cat’s paw”
analysis, and therefore wrongly concluded that there was no direct evidence of racial
discrimination. Under a properly-applied cat’s paw theory of liability, Cherry argues,
he is entitled to the more favorable mixed motives analysis set out in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Stacks v. Sw. Bell Yellow Pages,
Inc., 996 F.2d 200, 201–02 (8th Cir. 1993). The cat’s paw analysis applies in
situations where “a biased subordinate, who lacks decisionmaking power, uses the
formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory
employment action.” Qamhiyah, 566 F.3d at 742 (quoting EEOC v. BCI Coca-Cola
Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)). The purpose of this rule
is to ensure that “an employer cannot shield itself from liability for unlawful
termination by using a purportedly independent person or committee as the
decisionmaker where the decisionmaker merely serves as the conduit, vehicle, or



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rubber stamp by which another achieves his or her unlawful design.” Id. (quoting
Richardson v. Sugg, 448 F.3d 1046, 1060 (8th Cir. 2006)).

       The difficulty with applying the cat’s paw theory in this case—setting aside the
fact that Cherry did not explicitly raise it before the district court—is that Raymer did
not actually know of the planned reduction in force at the time he took the allegedly
discriminatory actions against Cherry. Raymer’s negative performance reviews, in
combination with his and Eide’s inappropriate comments, may very well have been
discriminatory in nature. But it would simply not be possible for Raymer to “use
[Siebert] as a dupe in a deliberate scheme to trigger a discriminatory employment
action” when Raymer did not know in advance about the impending reduction in
force. Had Raymer known and then taken the actions he did with the intention of
ensuring that Cherry, rather than Eide, was laid off, perhaps the cat’s paw analysis
would be applicable. But that is not what happened here. See id. at 744 (comparing
Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998) and
Kramer v. Logan County School District No. R-1, 157 F.3d 620 (8th Cir. 1998), and
noting that the cat’s paw rule applied where the subordinate’s discrimination had some
causal relationship to the adverse employment action). Because the evidence, viewed
in the light most favorable to Cherry, does not show a genuine issue of material fact
as to Siemens’ liability under a cat’s paw theory, the district court did not err by
proceeding to the McDonnell Douglas analysis.

        Cherry alternatively argues that the district court erroneously found that the
evidence did not support a finding of pretext in the context of the McDonnell Douglas
analysis. Under McDonnell Douglas, once a plaintiff establishes a prima facie case
of discrimination, the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions. Richardson, 448 F.3d at 1060. If the
employer does so, the burden shifts back to the plaintiff to prove that the proffered
justification is a pretext for discrimination. Id. Here, the district court assumed that
Cherry had established a prima facie case, and Siemens’ proffered nondiscriminatory

                                          -5-
justification was the planned, company-wide reduction in force. Pretext may be
shown in a variety of ways. Here, Cherry argues that Siemens’ proffered explanation
is not credible, and that it is more likely that his termination was motivated by
discrimination. Though this may be true as to Raymer’s actions, there is no evidence
in the record to support a finding of pretext as to Siebert, who was the actual
decisionmaker. See Loeb v. Best Buy Co., 537 F.3d 867, 873 (8th Cir. 2008) (finding
no pretext where the individuals who demonstrated a discriminatory motive were not
those responsible for termination).

     For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of Siemens.
                       ______________________________




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