                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                     September 23, 2013
                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STEPHANIE SALAZAR,

             Plaintiff-Appellant,

v.                                                         No. 12-1390
                                              (D.C. No. 1:10-CV-01328-LTB-MJW)
CITY OF COMMERCE CITY; GERALD                               (D. Colo.)
M. FLANNERY, in his individual
capacity; PAUL NATALE, in his
individual capacity; HEATHER OLSON,
in her individual capacity; TOM ACRE,
in his individual capacity,

             Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      Stephanie Salazar appeals from the district court’s grant of summary judgment

in favor of defendants on her claims related to her termination from employment with



*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the City of Commerce City (“City”). Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

                                     I. Background

       Ms. Salazar was the Director of Economic Development (“ED”) for the City

from August 29, 2005, until her termination effective July 16, 2008. She filed a

complaint in district court alleging gender and national origin discrimination and

retaliation in violation of Title VII; national origin discrimination and retaliation in

violation of 42 U.S.C. § 1981; and claims under 42 U.S.C. § 1983 alleging violations

of her Fourteenth Amendment right to equal protection and her First Amendment

rights to freedom of speech and association. In addition to the City, Ms. Salazar

named four individual defendants: Gerald M. Flannery, City Manager; Tom Acre,

Deputy City Manager and Ms. Salazar’s direct supervisor; Heather Olson, n/k/a

Heather Spencer, Human Resources Director; and Paul Natale, Mayor.

       The defendants moved for summary judgment, and the district court granted

their motion as to most of Ms. Salazar’s claims. The court denied summary judgment

on her claims against the City, Mr. Flannery, and Mr. Acre, alleging retaliatory

termination in violation of Title VII and § 1981. Those claims proceeded to trial,

resulting in a jury verdict in favor of the defendants. In its verdict, the jury

concluded that Ms. Salazar’s opposition to discrimination based on gender and/or

race was not the determinative factor that caused the City, Mr. Flannery, or Mr. Acre

to terminate her employment. Ms. Salazar is not appealing the jury’s verdict.


                                           -2-
Rather, she presents the following claims of error in the district court’s summary

judgment order: (1) with respect to her discrimination claims, the court erred by

(a) declining to consider her claim of a hostile work environment and (b) concluding

that she failed to meet her burden to show that the proffered reasons for her

termination were pretextual; (2) with respect to her First Amendment claim, the court

erred in concluding that she spoke as a public employee rather than as a private

citizen; and (3) with respect to her retaliatory termination claims against Mr. Natale

and Ms. Spencer, the court erred in concluding that these defendants were entitled to

the defense of qualified immunity because they were not decision makers with

respect to her termination.

                                    II. Discussion

      “We review the district court’s order granting summary judgment de novo.”

Daniels v. United Parcel Serv., 701 F.3d 620, 627 (10th Cir. 2012). Summary

judgment is appropriate “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). When applying this standard, we view the evidence and draw

reasonable inferences therefrom in the light most favorable to the nonmoving party.

Daniels, 701 F.3d at 627.




                                         -3-
                              A. Discrimination Claims

                            1. Hostile Work Environment

      Ms. Salazar initially contends that the district court erred in not permitting her

to pursue a hostile-work-environment claim based on evidence of pervasive

discrimination. The district court declined to consider this claim because it was not

included in the final pre-trial order. Ms. Salazar acknowledges that the final pre-trial

order did not mention the term “hostile work environment,” but she argues that claim

was sufficiently encompassed by her recitation of allegations detailing numerous

incidents of alleged discrimination throughout her tenure with the City.

      “[T]he pretrial order measures the dimensions of the lawsuit, both in the trial

court and on appeal.” Hullman v. Bd. of Trustees of Pratt Cmty. Coll., 950 F.2d 665,

668 (10th Cir. 1991) (internal quotation mark omitted). And “[t]he district court has

discretion to exclude from trial issues and claims not set forth in the pretrial order.”

Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir. 1995).

      We find no abuse of discretion in the district court’s determination that the

final pretrial order did not set forth a hostile-work-environment claim. The order

contained no assertion that Ms. Salazar was relying on that distinct theory as one of

her claims. Rather, she listed her claims as alleging discrimination, retaliation,

violation of equal protection, and abridgment of her First Amendment rights. The

recitation of these claims did not alert the defendants that Ms. Salazar would be

asserting a hostile-work-environment claim—a wholly different theory of recovery


                                           -4-
with different requirements of proof. See id. (rejecting claim that plaintiff’s assertion

of a “plain vanilla” negligence theory alerted the defendant that she was relying on a

more specific theory of loss); see also EEOC v. PVNF, L.L.C., 487 F.3d 790, 797-98,

800 (10th Cir. 2007) (setting forth the different elements for claims asserting a

hostile work environment and discriminatory disparate treatment). Nor does

Ms. Salazar indicate that she sought to amend the final pretrial order to include a

hostile-work-environment theory. See Rios, 67 F.3d at 1549. We cannot say that the

district court abused its discretion in declining to consider a

hostile-work-environment claim in its summary judgment ruling.

                 2. Gender Discrimination in Violation of Title VII

      In the district court, the City did not contend that Ms. Salazar failed to make

out a prima facie case of gender discrimination. Nor did she argue that the City’s

proffered reasons for terminating her are not supported by the record. The district

court granted summary judgment in favor of the City after concluding that

Ms. Salazar failed to show that the City’s proffered reasons for her termination were

pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). She

claims that the court’s conclusion was in error.

      The City’s grounds for Ms. Salazar’s termination were set forth in a letter

signed by Mr. Acre. The letter asserted that Ms. Salazar was terminated because she

had behaved unprofessionally; she demonstrated an inability to work as part of a

team with other City employees; she failed to communicate effectively with the rest


                                           -5-
of her own department; she did not demonstrate good judgment regarding sharing

information with the City Manager; and she had submitted numerous lengthy,

confrontational memos containing repetitive and meritless complaints, which she

refused to substantiate, and then she refused to participate in the investigations of her

complaints.

      “Under our precedents, a plaintiff can establish pretext by showing the

defendant’s proffered non-discriminatory explanations for its actions are so

incoherent, weak, inconsistent, or contradictory that a rational factfinder could

conclude they are unworthy of belief.” Johnson v. Weld Cnty., 594 F.3d 1202, 1211

(10th Cir. 2010) (internal quotation marks and brackets omitted). Evidence of pretext

“may take a variety of forms,” and “[a] plaintiff may not be forced to pursue any

particular means of demonstrating [it].” Kendrick v. Penske Transp. Servs., Inc.,

220 F.3d 1220, 1230 (10th Cir. 2000) (brackets omitted). While Ms. Salazar cites to

evidence in the record, in some instances she fails to explain why it shows that the

proffered reasons for her termination were not “held in good faith.” Young v. Dillon

Cos., 468 F.3d 1243, 1250 (10th Cir. 2006). We address her contentions to the extent

she develops her arguments regarding pretext.

      One way to establish pretext is with evidence that the stated reasons for an

adverse employment action were false. See id. Ms. Salazar contends that the City’s

proffered reasons, specifically regarding her unprofessionalism and her lack of

cooperation with other staff members, were false. She points to her own written


                                          -6-
responses to her performance evaluations in which she expressed disagreement with

the conclusions reached. For example, she maintains that any communication

problems she experienced resulted from employees in other City departments cutting

her out of relevant meetings and projects, rather than from her own actions.

Ms. Salazar also cites evidence of her achievements during her employment with the

City and other employees’ positive statements about her performance.

      This evidence fails to show pretext because “it is the manager’s perception of

the employee’s performance that is relevant, not plaintiff’s subjective evaluation of

her own relative performance.” Metzler v. Fed. Home Loan Bank of Topeka,

464 F.3d 1164, 1179 (10th Cir. 2006) (holding plaintiff’s subjective beliefs regarding

her attitude, knowledge, and performance did not raise a genuine issue of material

fact regarding employer’s stated bases for her termination) (internal quotation marks

and brackets omitted). Moreover, none of the evidence Ms. Salazar relies on shows

that the specific performance issues cited by the City were “false,” that is, that the

City’s stated reasons for her termination were not held in good faith. See Young,

468 F.3d at 1250.

      A plaintiff may also show pretext with evidence of disparate treatment of

“similarly situated, non-protected employees who violated work rules of comparable

seriousness.” Kendrick, 220 F.3d at 1232. Ms. Salazar claims that during a meeting

she attended in June 2007, a male employee, Christopher Cramer, behaved

belligerently. She presented evidence that, while she was criticized for


                                          -7-
communication problems in her subsequent performance evaluation, Mr. Cramer’s

evaluation made no mention of the incident and otherwise praised his communication

skills. This evidence is insufficient to establish pretext because Ms. Salazar fails to

show that Mr. Cramer was a similarly situated employee. “An employee is similarly

situated to the plaintiff if the employee deals with the same supervisor and is subject

to the same standards governing performance evaluation and discipline.” Id.

(internal quotation marks omitted). At the time of the incident she describes,

Ms. Salazar reported to Roger Tinklenberg, while Mr. Cramer reported to someone

else. See Aplt. App., Vol. II at 335-36. Ms. Salazar does not contend that

Mr. Cramer’s supervisor played any role in her termination. See Rivera v. City &

Cnty. of Denver, 365 F.3d 912, 922 (10th Cir. 2004) (“Comparison of one

disciplinary action with another ordinarily is relevant only to show the bias of the

person who decided upon the disciplinary action.”).

      Ms. Salazar contends there is evidence showing that Mr. Flannery, who made

the decision to terminate her employment, was biased against women. She asserts

that Mr. Flannery demoted or terminated all female directors in 2007 or 2008. But

while she points to the termination of one female director, as well as claims by two

other female employees that their positions were downgraded from director to

manager, she provides no evidence that three other female directors, including

Ms. Spencer, were also terminated or demoted by Mr. Flannery. Nor does she cite

any precedent supporting her contention that the existence of discrimination charges


                                          -8-
filed by other female employees is sufficient to establish that the proffered reasons

for her termination were pretextual.

       Ms. Salazar also argues that evidence of discriminatory comments about

women by Mr. Natale, the City’s mayor, establishes that the City’s proffered reasons

for her termination were pretextual. She cites evidence of the following remarks:

(1) Mr. Natale’s reference to the female staff of former City Manager Perry

VanDeventer as his “harem,” Aplt. App., Vol. II at 283; (2) his comment in October

2006, upon learning that the City was implementing a new competitive-hiring

process, “Good, no more young and blonde,” id. at 290-91; (3) his statement, made at

some point before he was elected the Mayor in 2007, that he intended to “clean-out

the third floor,” id. at 389; and (4) his reference to senior female staff as “queens,”

id. at 289.

       “Isolated comments, unrelated to the challenged action, are insufficient to

show discriminatory animus in termination decisions.” Cone v. Longmont United

Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994). To establish pretext from such

comments, Ms. Salazar must tie the statements to her termination. See Johnson,

594 F.3d at 1212-13. That is, she must show that the comments were directed at her

or her position, or that there is a connection between the comments and her

termination. See id. Ms. Salazar fails to point to evidence showing the necessary

nexus. First, she does not establish that Mr. Natale’s use of the terms “harem” and

“queens” were directed at her or her position. Mr. Natale testified that he used the


                                          -9-
term “queens” to refer to specific female employees who he believed had been

allowed by Mr. VanDeventer to run the City—a group that he said did not include

Ms. Salazar. See Aplt. App., Vol. II at 289. Ms. Salazar does not point to any

contrary evidence. Rather, and consistent with Mr. Natale’s testimony, there is

evidence that she had voiced complaints about being treated poorly by

Mr. VanDeventer’s inner circle because she was not one of his “cadre of loyalists,”

which was led by his “enforcer,” Chief of Staff Pat Greer, another female City

employee. Id. at 351. Nor does Ms. Salazar contend that the comment about “no

more young and blonde” was directed at her or her position. Finally, Mr. Natale’s

remark about cleaning out the third floor is too ambiguous to establish pretext. See

Cone, 14 F.3d at 531 (stating “ambiguous comments are too abstract to support a

finding of . . . discrimination” (internal quotation marks and ellipsis omitted)).

Although Ms. Salazar attempts to provide context for the statement, noting that

senior female staff members had offices on the third floor, she does not show that

only female employees worked on that floor.

      Moreover, Ms. Salazar has not established a nexus between Mr. Natale’s

comments and her termination such that pretext can be inferred. The evidence

indicates that Mr. Natale was not involved in the decision to terminate her

employment. See id. (stating discriminatory comments by non-decision maker are

not material in showing employer’s action was based on discrimination). He testified

that, although he had expected it to occur, he was not informed in advance that she


                                          - 10 -
would be terminated. And the evidence established that the City’s charter barred the

mayor from being involved in personnel matters not concerning the City Manager or

the City Attorney. Aside from the remarks that we have already addressed,

Ms. Salazar cites no evidence that supports her contention that Mr. Natale

“participated behind the scenes” and “exert[ed] his influence to obtain the results he

had suggested.” Aplt. Opening Br. at 28. Her assertions are thus based solely on

speculation. See Young, 468 F.3d at 1252 (stating “there must be some evidence in

the record suggesting that plaintiff’s termination at issue was infected by such bias”);

cf. Jaramillo v. Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1270-71 (10th Cir. 2012)

(rejecting claim, based on lack of evidence, that non-decision maker’s biased act was

proximate cause of the defendant school district’s employment decision).

      Ms. Salazar points to other evidence that she characterizes as showing

discrimination based on her gender. She claims that she was told she would not be

treated as a director, even though that was the position she was hired to fill. But

according to her, it was Mr. VanDeventer and Ms. Greer who allegedly took away

her director title, while several other women retained that title. Ms. Salazar also

asserts that she and her department staff were excluded from meetings that were

necessary for coordination between the City’s different departments. She presented

the testimony of a former City employee who agreed that Ms. Salazar had not been

invited to meetings that other City directors attended. This witness also supported

her claim that Mr. VanDeventer and other City administrators were not very


                                         - 11 -
supportive of Ms. Salazar or her department. But when asked if he thought that this

lack of support was a result of her gender, the witness said, “I can’t say that that’s

true.” Aplt. App., Vol. II at 318. Also, Ms. Salazar’s evidence shows that another

female City employee was primarily responsible for excluding her from meetings

with the Planning department. And although Mr. Acre admitted failing to make his

staff meetings a standing appointment on Ms. Salazar’s calendar, the department

heads he did invite to these meetings included one other female director.

Ms. Salazar’s evidence fails to establish that these perceived slights against her by

other employees were based on her gender.

      Finally, Ms. Salazar claims that the district court impermissibly weighed her

evidence of a pattern of sex discrimination, rather than drawing all inferences from

the evidence in her favor. “[S]tatistical data showing an employer’s pattern of

conduct toward a protected class can create an inference that an employer

discriminated against individual members of the class.” Cone, 14 F.3d at 532

(internal quotation marks omitted). But the statistics must “demonstrate

discrimination.” Id. Here, Ms. Salazar did not present any statistical evidence

supporting an inference that the City discriminated against women. We agree with

the district court that her evidence, “even when viewed in the light most favorable to

Plaintiff, does not amount to a ‘pattern of sex discrimination’ leading to Plaintiff’s

termination,” such that pretext can be inferred. Aplt. App., Vol. III at 572.




                                          - 12 -
      Ms. Salazar has not come close to casting doubt on any, much less many, of

the reasons for her termination cited by the City. See Tyler v. RE/MAX Mountain

States, Inc., 232 F.3d 808, 814 (10th Cir. 2000) (holding employee must cast

substantial doubt on many of employer’s multiple reasons for adverse employment

action). We therefore affirm the district court’s grant of summary judgment in favor

of the City on her gender discrimination claim under Title VII.

                  3. Gender Discrimination in Violation of § 1983

      The district court also granted the individual defendants summary judgment on

Ms. Salazar’s equal protection claim under § 1983 in which she alleged disparate

treatment based on her gender. The court reasoned that the elements of her gender

discrimination claims were the same under Title VII and § 1983. Ms. Salazar does

not assert any error in that ruling, and we therefore affirm the district court’s grant of

summary judgment on all of Ms. Salazar’s gender discrimination claims.

                          4. National Origin Discrimination

      Ms. Salazar does not challenge the district court’s determination that she is not

a member of a protected class for purposes of her claim of national origin

discrimination. 1 But she contends there are genuine issues of disputed fact as to her

advocacy on behalf of a Navajo City employee and a Hispanic City employee and

whether Mr. Flannery discriminated against these employees. She contends her

advocacy “constitutes protected activity to support her claim for national origin
1
      “Salazar” is the plaintiff’s married name rather than her maiden name.


                                          - 13 -
discrimination.” Aplt. Opening Br. at 24. The district court concluded that “she did

not allege or assert any direct racial discrimination against her based on [her]

relationships [with these minority employees]; rather, her claim is that she was

retaliated against for complaining of such discrimination.” Aplt. App., Vol. III at

574. The court therefore granted summary judgment in favor of defendants on

Ms. Salazar’s claims of national origin discrimination by association under Title VII

and § 1981.

      Ms. Salazar’s four-sentence argument on this issue is perfunctory at best, and

she fails to respond directly to the district court’s conclusion that her evidence

supported only a claim of retaliation for her complaints of discrimination against

minority employees. We affirm the district court’s grant of summary judgment on

Ms. Salazar’s claims alleging national origin discrimination.

                             B. First Amendment Claim

      The district court granted summary judgment on Ms. Salazar’s § 1983 claim

alleging that defendants retaliated against her for exercising her First Amendment

right to freedom of speech, specifically by speaking out regarding discrimination

against herself and others. The court concluded that Ms. Salazar’s statements were

made in her role as a City employee, rather than as a citizen, and therefore were not

protected by the First Amendment. See Brammer-Hoelter v. Twin Peaks Charter

Acad., 492 F.3d 1192, 1202 (10th Cir. 2007) (“If the employee speaks pursuant to his

official duties, then there is no constitutional protection because the restriction on


                                          - 14 -
speech simply reflects the exercise of employer control over what the employer itself

has commissioned or created.” (internal quotation marks omitted)). The court

reasoned that the documents in which Ms. Salazar asserted her discrimination

allegations were clearly related to her position as the City’s Director of ED or

regarded her own job performance, so were generally consistent with the type of

activities Ms. Salazar was paid to do. The court also rejected her contention that the

City’s handbook only required her to report “harassment” rather than discrimination

or retaliation. Finally, the court held there was no factual dispute regarding whether

Ms. Salazar was expected to report discrimination based upon other supervisors’

failure to report the incidents that she complained of.

      Ms. Salazar first contends that the district court erred because her complaints

regarding discrimination addressed matters of public concern. She asserts that the

facts supporting her claim are analogous to those in Patrick v. Miller, 953 F.2d 1240,

1247 (10th Cir. 1992), where we held that “[t]he disclosure and attempted

remediation of racially discriminatory employment practices is better characterized

as a matter of social concern to the community.” But Ms. Salazar’s argument misses

the mark because the district court did not find that her speech was not on a matter of

public concern. Rather, it held that her speech was unprotected because it was made

pursuant to her official duties. We did not address that question in Patrick, which

was decided before the Supreme Court held in Garcetti v. Ceballos, that “when

public employees make statements pursuant to their official duties, the employees are


                                         - 15 -
not speaking as citizens for First Amendment purposes.” 547 U.S. 410, 421 (2006);

see also Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1325, 1328

(10th Cir. 2007) (recognizing that in Garcetti the Supreme Court “profoundly

alter[ed] how courts review First Amendment retaliation claims” and that the initial

question in reviewing such a claim had been “significantly modified”).

      Ms. Salazar also claims that the district court erred in concluding that she was

motivated to address her personal grievances when she reported gender based

remarks and attempted to protect other employees from discrimination. This

contention likewise appears to address whether her speech was on a matter of public

concern. But to the extent she is attempting to challenge the district court’s actual

holding, we have held that the context in which speech is made is relevant to the

question whether an employee spoke as a public employee or citizen. In Hesse v.

Town of Jackson, 541 F.3d 1240, 1250 (10th Cir. 2008), we held that a town

attorney’s conversation with the town administrator regarding the attorney’s

treatment of employees arose in the context of the attorney’s performance of his

official duties. This was so because the purpose of the conversation was to address

administrative issues and it was directed to the appropriate town official. Id.

      Similarly, the district court examined the documents in which Ms. Salazar

made her discrimination complaints and concluded that they were related to her

position or to her own job performance. In the argument section of her opening brief,

Ms. Salazar does not identify the specific statements she claims were protected


                                         - 16 -
speech or the documents in which they were contained. The earliest discrimination

complaint she identifies in her statement of facts was included in her 59-page memo

to Mr. Flannery dated December 21, 2007, in which she provided comments in

response to her recent performance evaluation as the Director of ED. She addressed

in detail the portions of the evaluation with which she disagreed and indicated that

her comments were to be incorporated into her evaluation. In this memo, Ms. Salazar

ultimately sought a revised performance evaluation rating her “exceptional” in all

categories, as well as a bonus and salary increase. She also cites her subsequent

Report to Council on the Status of the Department of ED, dated January 7, 2008, in

which she detailed her claims of discrimination and harassment by Mr. Flannery and

Mr. Acre and commented further on her performance evaluation. Finally,

Ms. Salazar points to a 31-page grievance she filed in response to a written

reprimand from Mr. Flannery, asserting that the reprimand was issued in retaliation

for her complaints regarding discrimination.

      The district court did not err in holding that these communications were made

pursuant to Ms. Salazar’s official duties. Notably, Ms. Salazar does not contend that

advising her superiors regarding issues related to her performance as the Director of

ED was not within the scope of her job duties. See Hesse, 541 F.3d at 1250; see also

Brammer-Hoelter, 492 F.3d at 1203 (“[I]f an employee engages in speech during the

course of performing an official duty and the speech reasonably contributes to or

facilitates the employee’s performance of the official duty, the speech is made


                                        - 17 -
pursuant to the employee’s official duties.”). Moreover, the fact that she included

claims of discrimination in these communications does not convert them into the

protected speech of a citizen.

      Post Garcetti, this court has generally identified two factors that suggest
      an employee was speaking as a private citizen rather than pursuant to
      her job responsibilities: (1) the employee’s job responsibilities did not
      relate to reporting wrongdoing and (2) the employee went outside the
      chain of command when reporting the wrongdoing.

Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 595 F.3d 1126, 1135-36 (10th Cir.

2010). Ms. Salazar does not contest on appeal the district court’s finding that City

policy required her, as a supervisor, to report discrimination. And she limited her

reports to individuals within her chain of command. Compare Rohrbough v. Univ. of

Colo. Hosp. Auth., 596 F.3d 741, 748-49 (10th Cir. 2010) (holding plaintiff’s

complaints communicated only to fellow employees and supervisors through reports

required by her employer’s policies were within the scope of her official duties), with

Thomas v. City of Blanchard, 548 F.3d 1317, 1325 (10th Cir. 2008) (holding speech

is protected by First Amendment when public employee reports to someone outside

of chain of command on matter not committed to her care). We affirm the district

court’s grant of summary judgment in favor of defendants on Ms. Salazar’s First

Amendment claim pursuant to § 1983.

        C. Qualified Immunity on § 1981 Retaliatory Termination Claims

      The district court held that Mr. Natale and Ms. Spencer were entitled to

qualified immunity on Ms. Salazar’s retaliation claims under § 1981. “When a


                                        - 18 -
defendant asserts a qualified immunity defense, the plaintiff must meet a strict

two-part test. The plaintiff must establish (1) that the defendant violated a

constitutional or statutory right, and (2) that this right was clearly established at the

time of the defendant’s conduct . . . .” McBeth v. Himes, 598 F.3d 708, 716

(10th Cir. 2010) (citation and internal quotation marks omitted). Applying this test,

the district court held that Ms. Salazar could not establish that Mr. Natale or

Ms. Spencer acted to violate her constitutional rights because there was no basis to

establish that either of them was a decision maker regarding her termination. Cf.

Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 852 & n.1 (10th Cir. 2000)

(affirming summary judgment on § 1981 discrimination claim against an individual

defendant where plaintiff failed to allege or establish the defendant was personally

involved in the adverse employment action).

       Ms. Salazar contends that the district court erred in granting Mr. Natale and

Ms. Spencer qualified immunity on this claim. As we have previously noted,

Ms. Salazar asserts that Mr. Natale participated behind the scenes and exerted his

influence to bring about her termination. She points to the same evidence involving

his gender-based statements that she relied on in attempting to show that the City’s

reasons for terminating her were a pretext for gender discrimination. She also argues

that Ms. Spencer’s involvement in drafting her termination letter and failure to

investigate her discrimination complaints shows that Ms. Spencer was sufficiently

involved in the termination to be liable under § 1981.


                                          - 19 -
      We have held that an individual who was not the decision maker with respect

to an adverse employment action may nonetheless “be liable if he possessed a

retaliatory motive which set in motion the events that ultimately led to [that action].”

Maestas v. Segura, 416 F.3d 1182, 1191 (10th Cir. 2005) (considering First

Amendment retaliation claim under § 1983). “[W]hether a plaintiff sufficiently

alleges causation is a legal question.” McBeth, 598 F.3d at 717. And a defendant

may be entitled to qualified immunity based on a lack of causation between the

defendant’s conduct and the plaintiff’s injury. Id.

      In Maestas, the plaintiffs were employees of a city who sued two supervisors

under § 1983, alleging retaliatory job transfers in violation of their First Amendment

rights. 416 F.3d at 1184. The defendants were a department director, id. at 1185,

and his subordinate division superintendent, id. at 1184. After the plaintiffs spoke

out on waste and inefficiency within their division, the superintendent recommended

to the director that the plaintiffs’ positions be eliminated. The director accepted that

recommendation and proposed it to the city council, but the city council declined to

adopt it. Id. at 1186. The director then decided to transfer the plaintiffs to other jobs

within his department. Id. at 1187.

      We initially affirmed summary judgment in favor of the director because the

plaintiffs failed to present sufficient evidence that his transfer decision was in

retaliation for their speech. Id. at 1189-90. We next considered whether the

plaintiffs could establish that the superintendent was liable for their transfers. We


                                          - 20 -
noted that, “[w]hile the [director] made the final decision to transfer Plaintiffs, [the

superintendent], though a subordinate, might be liable if he possessed a retaliatory

motive which set in motion the events that ultimately led to Plaintiffs’ transfers.” Id.

at 1191. We said the plaintiffs needed to show a causal link between their protected

speech, the superintendent’s recommendation to eliminate their positions, and the

director’s ultimate decision to transfer them. Id. at 1190-91. We illustrated the

causation evidence necessary to hold a non-decision maker liable by citing cases in

which the subordinate employee defendant either investigated the plaintiff’s conduct

or instigated charges against him, and recommended that the plaintiff be discharged

or demoted. See id. at 1191. In Maestas we held that the plaintiffs failed to establish

this causation. Id. at 1191-92.

       Here there is no dispute that Mr. Flannery made the ultimate decision to

terminate Ms. Salazar’s employment. And a jury found that her opposition to

discrimination was not the determinative factor that caused Mr. Flannery to terminate

her. Ms. Salazar does not challenge that finding, and she fails to come forward with

evidence that Mr. Natale or Ms. Spencer possessed a retaliatory motive that set in

motion her termination by Mr. Flannery.

       We have already concluded, in reviewing her gender discrimination claim

against the City, that Ms. Salazar’s contention regarding Mr. Natale’s role in bringing

about her termination is based on speculation. Moreover, the evidence she cites all

relates to his alleged gender animus, whereas a retaliation claim under § 1981 must


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be based on racial animus. See O’Neal v. Ferguson Constr. Co., 237 F.3d 1248,

1257-58 (10th Cir. 2001).

      Nor has Ms. Salazar shown that Ms. Spencer was either a decision maker with

respect to her termination or that she had a retaliatory motive that set in motion the

events leading up to it. While Ms. Spencer did review the draft termination letter

prepared by Mr. Acre, there is no evidence regarding what input, if any, she

provided. Nor is there any evidence that Ms. Spencer recommended Ms. Salazar’s

termination to Mr. Flannery. See Maestas, 416 F.3d at 1191. Ms. Salazar

nonetheless contends that Ms. Spencer’s failure to investigate her complaints of

racial or national origin discrimination shows that Ms. Spencer had a retaliatory

motive to bring about her termination. But the evidence does not support this claim.

Ms. Spencer investigated the discrimination claims in Ms. Salazar’s December 21,

2007, memo that she felt were substantiated, but she did not construe the memo as

alleging race or national origin discrimination. And Ms. Salazar declined the

opportunity to clarify the nature of her claims by refusing to meet with Ms. Spencer

in connection with her investigation. Ms. Spencer did not investigate Ms. Salazar’s

later claim of discrimination against a Navajo employee in her department or her

grievance regarding Mr. Flannery’s written reprimand because the City hired outside

consultants to investigate those complaints. Ms. Salazar fails to show the necessary

causal link between a retaliatory motive on the part of Ms. Spencer and

Mr. Flannery’s non-retaliatory decision to terminate her employment. See id. at


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1190-91. We affirm the district court’s grant of qualified immunity to Mr. Natale

and Ms. Spencer on Ms. Salazar’s retaliatory termination claims under § 1981.

                                  III. Conclusion

      The judgment of the district court is AFFIRMED. The court’s orders dated

April 26, 2013, and May 14, 2013, provisionally directing that portions of the

appendix would remain under seal, are hereby made permanent as to Volumes IV,

VII, and VIII, which will continue to remain under seal.


                                                 Entered for the Court


                                                 Wade Brorby
                                                 Senior Circuit Judge




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