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

                           FOR THE TENTH CIRCUIT                       October 3, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ELIZABETH FREDERICK,

             Plaintiff-Appellant,

v.                                                         No. 12-1505
                                                 (D.C. No. 1:10-CV-03163-RPM)
METROPOLITAN STATE                                          (D. Colo.)
UNIVERSITY OF DENVER BOARD
OF TRUSTEES,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


      Elizabeth Frederick appeals from the district court’s grant of summary

judgment in favor of Metropolitan State University of Denver Board of Trustees

(Metro) on her claim that she was denied a promotion on the basis of her gender in

violation of 42 U.S.C. § 2000e, et seq., commonly known as Title VII of the Civil

Rights Act of 1964. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I.     BACKGROUND

      A. The Promotion Process

      Elizabeth Frederick, Ph.D., is a tenured associate professor at Metro. She

works in the Management Department, which in turn is part of the School of

Business. There are three tenure or tenure-track ranks for professors at Metro:

assistant professor, associate professor, and professor. The promotion process is

governed by the Handbook for Professional Personnel (the Handbook). Associate

professors are eligible for promotion to professor after four years of service. Metro

hired Dr. Frederick in 1987 as a tenure-track assistant professor. She was granted

tenure and promoted to associate professor in 1992.

      Although she was eligible to apply for promotion to professor in 1996,

Dr. Frederick waited for ten years – until 2006 – to first apply. According to

Dr. Frederick she “had other things [she] was busy with,” Aplt. App. at 570, and

“[g]etting promoted wasn’t that important,” id. at 621. She decided to pursue the

promotion in 2006 following a stint as the Department Chair,1 which convinced her

that she did not have a future in administration and inspired her “to become the best

teacher/researcher [she] could be.” Id. at 570. “[T]he other main reason . . . [was]

because it made a difference finally in terms of salary.” Id.


1
      Dr. Frederick was the Chair of the Management Department in 2004 when
John P. Cochran was appointed interim Dean of the School of Business. An alleged
adversarial relationship developed between Dr. Frederick and Dean Cochran and
Dr. Frederick was persuaded to resign.


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      A faculty member who seeks promotion is required to submit a comprehensive

dossier with information sufficient to permit an evaluation of his or her performance.

“The four performance areas for evaluating faculty for . . . promotion . . . are

teaching, advising, professional development, and service.” Id. at 81. Among other

things, the dossier must include: “[a] current academic vita . . . [;] [e]vidence of

contribution to teaching and advising; evidence of professional development

accomplishments and service contributions[;] [and] [a]ll student evaluation and peer

observation results.” Id. at 78-79.

      The dossier moves through seven levels of review: (1) the faculty member’s

Department Committee, which consists of tenured faculty in the given Department,

except the Department Chair and any faculty members who serve on the School

Committee or Faculty Senate; (2) the Department Chair; (3) the School Committee,

which represents the range of disciplines and is comprised one half each of members

elected by the faculty and appointed by the Dean; (4) the School Dean; (5) the

Faculty Senate Committee, which is comprised of tenured faculty and established by

senate bylaws; (6) the Provost/Vice President of Academic Affairs; and (7) the

President. Each level considers the dossier and makes a recommendation for or

against promotion. The Handbook does not explicitly require written comments,

however, it is common practice to provide an explanation for the recommendation.

The ultimate decision regarding promotion rests with the President.




                                          -3-
      John P. Cochran, Ph.D., became the interim Dean of the School of Business in

2004. He was permanently hired in 2006 and served in this capacity until his

retirement in 2011. When Dr. Cochran became Dean, “five of the six [business]

departments had guidelines that [he] thought required accurate rigor and strategic

goals for the School of Business.” Id. at 151-52. But in his “view, the guidelines for

the Management Department were low.” Id. 152. Of particular concern to Dean

Cochran was the fact that the School of Business was actively pursuing accreditation

by the Association to Advance Collegiate Schools of Business (AACSB), and the

“high standards” to obtain accreditation meant that “every department in the School

of Business had to place a high priority in the development of a consistent stream of

intellectual contributions that result in peer-reviewed full paper presentations with

refereed journal articles, book chapters, and/or scholarly books or textbooks most

highly valued.” Id. As one professor in the Management Department explained,

“[w]hen the School of Business voted to seek AACSB accreditation, we knew the

guidelines for each department would be revised to reflect the heightened standards

required for accreditation, particularly in the area of scholarly activity.” Id. at 1320.

The changes, however, were neither “drastic[], nor did they come as a surprise.”

Id. at 1321.

      B. Dr. Frederick’s First Application

      Although Metro’s denial of Dr. Frederick’s 2007 application forms the basis of

her claim, her first application in 2006 sets the stage. In addition to her dossier and


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curriculum vitae, Dr. Frederick submitted the Management Department Guidelines

that were in effect in 2004 and 2005, despite the fact that the Guidelines had changed

by the time that her materials were submitted in 2006.

      The first two levels of review (the Department Committee and Department

Chair) recommended promotion. However, the remaining five levels of review did

not. At level three, the School Committee observed that the lack of professional

development (the gap in publishing from 1984 to 2006) outweighed the positive. At

level four, Dean Cochran wrote: “I must concur with the school committee 6-0 vote

against promotion . . . for the reason stated, the ‘body of work over her career is

lacking a performance level commensurate with the rank of professor.’” Id. at 149.

At level five, the Faculty Senate Committee also did not recommend the promotion.

In particular, the Committee was aware “that the School of Business was seeking

accreditation and the department’s guidelines reflected the requirements for

professional development. Although Dr. Frederick was Department Chair during a

portion of the timeframe under review, her service . . . did not limit or change the

criteria for promotion to Professor.” Id. at 160. Finally, neither the Provost nor the

President recommended promotion.

      C. Dr. Frederick’s Second Application

      Dr. Frederick applied for promotion the next year. This time she included two

sets of Management Department Guidelines: those in effect in 2004-2005 and those

that took effect in 2006. Between her first and second applications and with regard to


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professional development, Dr. Frederick neither published nor submitted for

publication any papers in peer-reviewed journal articles. She did, however, make

two peer-reviewed presentations, started work on some chapters of a book, and

collected some “arbitration cases [that she intended to] rewrite . . . to use in [her]

Labor Relations class.” Id. at 605.

      At level one, and although the vote was not unanimous, the Department

Committee recommended promotion. The Department Chair at level two, however,

did not. He wrote: “[Dr. Frederick’s] performance in teaching and professional

development are inadequate for a positive recommendation for promotion to

professor. . . . I reached this conclusion based on the contents of the dossier and

performance levels of other professors in the department.” Id. at 189. The School

Committee likewise did not recommend promotion. It cited Dr. Frederick’s

“somewhat wide teaching evaluation variation,” and the lack of a “sustained record

of publications.” Id. at 190.

      At level four, Dean Cochran did not recommend promotion. He wrote:

“I must concur with the decision not to recommend from the school committee, the

department chair (and two members of the department committee who did not

recommend promotion).” Id. at 192. He acknowledged significant improvement “in

both teaching effectiveness and professional development,” and commended

Dr. Frederick “for her efforts in 2006 and 2007.” Id. Dean Cochran reminded her,




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however, “that the effort must be sustained and consistent over several years to meet

the standards and expectations for promotion.” Id.

      The Faculty Senate Committee also did not recommend promotion. It wrote:

“Your dossier shows recent improvement in professional development and the

Committee encourages you to continue on this track so that you may meet the level

of sustained performance expected by your department chair, the dean, and the

School of Business.” Id. at 193.

      At level six, Provost, Linda S. Curran, Ph.D., did not recommend promotion.

She explained that her “role in reviewing dossiers was not to re-create what other

levels of review had done, but [to] . . . make sure that the conclusions reached at

each level were supported by the dossier.” Id. at 200. She denied speaking with

Dean Cochran or relying solely or even primarily on his comments or those of any

other individual or group. Instead, she “considered the dossier and the comments of

the various levels of review, as a whole.” Id. at 204.

      There were two things at play. . . . [O]ne, [Dr. Frederick] appeared
      not to be undertaking substantive new intellectual activities, and two,
      there was no substantive follow-through evident for those efforts she
      had initiated, some of them first begun years earlier. I looked for
      evidence that she had submitted some of her previous work for peer
      review, that had not yet been published, but there was no such evidence.
      There appeared to me to be a flurry of recent activity to get above what
      she perceived to be the bar for promotion. It appeared that she had a
      serious misperception of those requirements.

Id. at 200-01. Provost Curran observed that in light of the process for AACSB

accreditation, “the School of Business had to emphasize the professional


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development of its faculty[,] [and] [a]s a result, all of the departments within the

School of Business revised their department guidelines to incorporate this goal and

focus more specifically on the publication of scholarly papers in peer-reviewed

journals.” Id. at 201. To her mind, Dr. Frederick did not meet the guidelines. More

to the point, Provost Curran stated that Dr. Frederick did not meet the criterion for

sustained growth as required by the Handbook, which had not been changed.

      At the final level of review, the President Stephen M. Jordan, Ph.D., decided

against promotion. He addressed several reasons for the decision in an affidavit.

First, he explained that “Dr. Frederick had the obligation to submit materials that met

her department’s current standards. . . . She may not live in the past and have her

contributions ‘grandfathered’ under out-of-date guidelines. . . . What she submitted

did not meet the standard for promotion, i.e., a demonstration of sustained growth.”

Id. at 1399-40. Second, he stated that although “Dr. Frederick’s contributions were

sufficient to maintain her employment[,] . . . [p]romotion requires an effort greater

than merely maintaining [and] Dr. Frederick’s contributions were not sufficient for

promotion to [p]rofessor.” Id. at 1400. Last, President Jordan said that he “agreed

with the levels of review that did not recommend promotion but [he] did not merely

‘rubber stamp’ their decisions.” Id. He “did not rely exclusively on Dean Cochran’s

comments – or anyone else’s.” Id. Instead, he “independently review[ed]

[Dr. Frederick’s] dossier and [] ma[de] [his] own assessment and decision regarding

the merit of [her] application.” Id. at 1401. In the final analysis, “[w]hat caused


                                          -8-
[him] not to promote Dr. Frederick was the evidence in her dossier that she lacked

sustained growth in her professional development and that she was inconsistent in her

teaching evaluations. The facts were as they were.” Id. at 1400-01.

                  II.    THE DISTRICT COURT PROCEEDINGS

      In response to Metro’s motion for summary judgment, Dr. Frederick explained

the main theory of her case as one involving an allegedly gender-biased Dean

Cochran using President Jordan, the decision maker, as his dupe or “cat’s paw” to

deny the promotion:

      As a member of the Management Department with an expertise in
      human resources, organized labor and workforce diversity,
      Dr. Frederick has vocally championed the rights of minorities and
      women at [Metro]. Interim Dean, John Cochran, did not like outspoken
      women, and he bristled at Dr. Frederick’s advocacy. After [Metro]
      promoted Dr. Cochran to the position of Dean of the School of Business
      in January[] 2004, he began to thwart employment opportunities as they
      arose. When Dr. Frederick went up for promotion in the fall of 2006
      and again in the fall of 2007, Dr. Cochran thus devised a distorted
      method of looking at her performance so that others would misevaluate
      her, with the intent that she would not be promoted. As a direct and
      proximate result, Dr. Frederick was not promoted.

Id. at 287-88.

      The district court found that there was not sufficient evidence to support a jury

finding in Dr. Frederick’s favor. In particular, the court rejected Dr. Frederick’s

argument that Dean Cochran’s alleged animus affected the other levels of review:

“Assuming that Dean Cochran’s opposition may have influenced [the lower levels of

review], there is nothing to support an inference that his opposition was a cause of

the rejections by the Faculty Senate Committee, the Provost . . . and the President.”

                                          -9-
Id. at 1447-48. The court also found no evidence of disparate treatment because the

male faculty members Dr. Frederick used as comparators “were in different

departments and their dossiers were significantly different.” Id. at 1448. Finally,

noting the deference accorded to decisions in academia, the court found that “[t]here

is nothing to warrant a finding by a jury that the judgments made by the reviewers of

[Dr. Frederick’s] application for promotion were such a substantial departure from

academic norms that they may be held to be pretextual.” Id.

                       III.   THE STANDARD OF REVIEW

      “The court shall grant summary judgment 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). “A fact is material if, under the governing law,

it could have an effect on the outcome of the lawsuit. A dispute over a material fact

is genuine if a rational jury could find in favor of the nonmoving party on the

evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)

(internal quotation marks omitted).

      “We review de novo the district court’s decision to grant summary judgment.”

Id. (internal quotation marks omitted). In doing so, “[w]e view the facts in the light

most favorable to [Dr. Frederick] . . . and draw all reasonable inferences in [her]

favor.” Id. (internal quotation marks omitted). “But [Dr. Frederick] must still

identify sufficient evidence requiring submission to the jury. She cannot avoid

summary judgment merely by presenting a scintilla of evidence to support her claim;


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she must proffer facts such that a reasonable jury could find in her favor.” Turner v.

Pub. Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (citation and internal

quotation marks omitted).

                                   IV.    ANALYSIS

      A. The Legal Framework

      “A plaintiff proves a violation of Title VII either by direct evidence of

discrimination or by following the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).” Khalik v.

United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). “[The] McDonnell

Douglas . . . three-step analysis requires the plaintiff first prove a prima facie case

of discrimination.” Id. To establish a prima facie case, Dr. Frederick “must establish

that (1) she is a member of a protected class, (2) she suffered an adverse employment

action, (3) she qualified for the position at issue, and (4) she was treated less

favorably than others not in the protected class.” Id. If Dr. Frederick makes out a

prima facie case, “[t]he burden then shifts to [Metro] to produce a legitimate,

non-discriminatory reason for the adverse employment action.” Id. If Metro meets

that burden, “the burden then shifts back to [Dr. Frederick] to show that [her]

protected status was a determinative factor in the employment decision or that the

employer’s explanation is pretext.” Id. We assume without deciding that

Dr. Frederick made out a prima facie case and that Metro produced a legitimate,




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non-discriminatory reason for denying the promotion. As such, we turn to her two

theories to establish pretext.

       B. “Cat’s Paw”

       To survive summary judgment on a subordinate bias theory, commonly known

as a “cat’s paw” case, the plaintiff must establish two things: (1) “a genuine issue of

material fact concerning the bias of the subordinate” and (2) “genuine issues of

material fact as to whether the proffered reason for the employment action is

pretextual, which . . . requires the plaintiff to demonstrate a causal relationship

between the subordinate’s actions and the employment decision.” EEOC v. BCI

Coca-Cola Bottling Co., 450 F.3d 476, 488 (10th Cir. 2006). As the “party opposing

a properly supported motion for summary judgment [Dr. Frederick] may not rest

upon the mere allegations or denials of [her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (alteration and internal quotation marks omitted).

       We agree with the district court that Dr. Frederick presented enough evidence

to survive summary judgment as to bias. As the court noted, there was evidence of

“tensions between Dr. Frederick and Dean Cochran as reflected in a[n] [unsent]

memorandum he drafted on June 9, 2004” in which he wrote that the issues she

“ha[d] chosen to champion . . . have been disruptive and counterproductive to the

smooth operations of the school,” Aplt. App. at 1446. There was also evidence that

Dean Cochran declined to meet with Dr. Frederick in 2004 about the findings from a


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task force study in which she perceived inequities in the pay of women and

minorities. Instead of taking the meeting, Dean Cochran said that anyone who felt

aggrieved should raise the issue with Metro’s Equal Employment Office. As thin as

this evidence might be, we conclude that a reasonable jury could infer discriminatory

intent.

          But as to the second element, Dr. Frederick could not survive summary

judgment because there was no evidence of a causal relationship between Dean

Cochran’s recommendation and President Jordan’s decision. Most recently in Staub

v. Proctor Hospital, ___ U.S. ___, 131 S. Ct. 1186, 1189 (2011), the Supreme Court

addressed “the circumstances under which an employer may be held liable for

employment discrimination based on the discriminatory animus of an employee who

influenced, but did not make, the ultimate employment decision.” The court held

“that if a supervisor performs an act motivated by [discriminatory] animus that is

intended by the supervisor to cause an adverse employment action, and if that act is a

proximate cause of the ultimate employment action, then the employer is liable under

[antidiscrimination statutes].” Id. at 1194 (footnote omitted). See Jaramillo v.

Adams Cnty. Sch. Dist. 14, 680 F.3d 1267, 1271 (10th Cir. 2012) (applying Staub to

employment discrimination claim under 42 U.S.C. § 1981); Crowe v. ADT Sec.

Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (applying Staub to Title VII

claim).




                                          - 13 -
      While there was some evidence that Dean Cochran may have been in a

position to influence the lower levels of review, Dr. Frederick did not produce any

evidence that he was in a position to, or did influence the upper levels of review.

For example, in response to Metro’s motion for summary judgment, Dr. Frederick

argued that “the [Faculty] Senate Committee was influenced by Dr. Cochran’s false

and derogatory [promotion recommendation],” Aplt. App. at 299, citing

opportunities for the Dean to have communicated with the Committee, but no

evidence that he did so. Further, she came forward with no facts to rebut President

Jordan’s affidavit, which stated that he “did not rely exclusively on Dean Cochran’s

comments – or anyone else’s,” id. at 1400, and “independently review[ed]

[Dr. Frederick’s] dossier and [] ma[de] [his] own assessment and decision regarding

the merit of [her] application,” id. at 1401. In response, Dr. Frederick mustered

arguments and theories – not facts. For example, she called President Jordan’s

affidavit “suspect,” and accused him of undertaking “only a cursory review, if any,”

of her dossier, and “ma[king] his determination, in whole or in part, based upon

[Dean] Cochran’s negative comments,” id. at 301, but failed to submit evidence to

support her arguments.

      C. Differential Treatment

      A plaintiff may also show pretext “by providing evidence that [she] was

treated differently from other similarly situated, nonprotected employees . . .

provided the similarly situated employee shares the same supervisor, is subject to the


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same performance standards, and otherwise faces comparable relevant employment

circumstances.” BCI Coca-Cola, 450 F.3d at 489 (internal quotation marks omitted).

In this regard, Dr. Frederick attempted to establish pretext by a comparison to two

male associate professors who were promoted to professor. According to

Dr. Frederick, one faculty member had teaching evaluations that were similar to hers

and the other had a similar record of professional development. Assuming for

argument that Dr. Frederick and the two male faculty members were similarly

situated, her argument fails.

      “We will draw an inference of pretext where the facts assure us that the

plaintiff is better qualified than the other candidates for the position.” Santana v.

City and Cnty. of Denver, 488 F.3d 860, 865 (10th Cir. 2007) (internal quotation

marks omitted). Dr. Frederick’s opinion aside, there is no evidence to assure us that

she was as qualified, let alone better qualified than the others. We are also mindful

that “it is not our role to act as a super personnel department that second guesses

employers’ business judgments.” Id. (internal quotation marks omitted).

      Just as important, we “assess[] pretext by examining the facts as they appear to

the person making the decision.” Id. (internal quotation marks omitted). Although

Provost Curran was not the final decision maker, the record reveals that she echoed

the recommendations made by previous reviewers: “I know that Dr. Frederick

compares herself to [the male faculty members]. I did not compare their dossiers to

each other, nor to hers, in my review.” Aplt. App. at 203. She described both men as


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“unusual in their contributions, verging on outstanding. Taking them out of the

picture, Dr. Frederick still did not meet the standard for promotion to Professor. It

really was not even a close call in my mind.” Id.

      The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Bobby R. Baldock
                                                  Circuit Judge




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