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

                             FOR THE TENTH CIRCUIT                               June 28, 2012
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
JUDY JARAMILLO,

              Plaintiff - Appellant,

v.                                                            No. 11-1160
                                                 (D.C. No. 1:09-CV-02243-RPM-MEH)
ADAMS COUNTY SCHOOL DISTRICT
14,

              Defendant - Appellee.
                        _________________________________

                                      ORDER
                         _________________________________

Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and O’BRIEN, Circuit
Judge.
                     _________________________________

        This matter is before the court on appellant’s petition for panel rehearing. Upon

consideration, the petition is denied. We will, however, amend our original opinion sua

sponte. The changes, which include minor modifications to two sentences, can be found

on pages 2 and 3 of the decision. A copy of our amended opinion is attached to this

order. The clerk is directed to file the amended version nunc pro tunc to the original filing

date.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk
                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 12, 2012
                                    PUBLISH                    Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 JUDY JARAMILLO,

       Plaintiff - Appellant,
                                                        No. 11-1160
 v.

 ADAMS COUNTY SCHOOL
 DISTRICT 14,

       Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:09-CV-02243-RPM-MEH)


Blain D. Myhre of Blain Myhre, LLC, Englewood, Colorado (and Ralph G. Torres
of Law Offices of Ralph G. Torres, Denver, Colorado, on the briefs), for Plaintiff
- Appellant.

Lawrence L. Lee (and Heather K. Kelly of Gordon & Rees, LLP, on the brief),
Denver, Colorado, for Defendant - Appellee.


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.


KELLY, Circuit Judge.


      Plaintiff-Appellant, Judy Jaramillo, appeals from the district court’s grant

of summary judgment in favor of Defendant-Appellee, Adams County School
District 14, on her 42 U.S.C. § 1981 claim for race discrimination. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.



                                    Background

      Ms. Jaramillo, a Hispanic female, was employed as principal of Hanson

PreK-8 school. See Jaramillo v. Adams Cnty. Sch. Dist. 14, No. 09-cv-02243,

2011 WL 1043332, at *1 (D. Colo. Mar. 17, 2011) (hereinafter “Order”). More

than 70% of the students attending Hanson are Hispanic, and Ms. Jaramillo was

the only Hispanic principal in the District. Id. In the fall of 2008, the District

administration contemplated policy changes, including implementing an English

Language Learners policy (“ELL policy”), which stresses English immersion

(rather than teaching subjects in Spanish as well as English), and operating

Hanson on the same academic year as other schools in the District. Id. These

proposals were controversial in the Hispanic community and apparently with

some of the teachers at Hanson. Id. The ELL policy was the topic of a Board of

Education public study session. Dr. Sue Chandler, interim superintendent of the

District, received a copy of an e-mail about a planned teachers’ meeting which

contained false and inaccurate information. Aplee. Br. 8. This misinformation

suggested that the ELL policy was going to eradicate any Spanish instruction in

the district. Id. On the morning of February 6, 2009, Dr. Chandler met with Ms.

Jaramillo to ask for the name of the person who had misinformed her as to the

                                        -2-
specifics of the policy. Id. Ms. Jaramillo refused to give the name. They met

again later in the afternoon and Dr. Chandler questioned Ms. Jaramillo about her

lack of support for the administration’s policy, and requested that Ms. Jaramillo

provide Dr. Chandler with the name of the person who informed Ms. Jaramillo

about the Board’s study session. Aplt. App. 0476. Dr. Chandler informed Ms.

Jaramillo that failing to provide the name would result in disciplinary action. Id.

at 0477. Ms. Jaramillo refused to provide the name. Id.

      Dr. Chandler placed Ms. Jaramillo on paid administrative leave when Ms.

Jaramillo did not comply. Ms. Jaramillo was notified by letter, dated February

11, 2009. Id. Thereafter, by letter dated February 17, 2009, Dr. Chandler

recommended Ms. Jaramillo’s termination. Id. Ms. Jaramillo sought review,

pursuant to the Administrator’s Meet and Confer Handbook, by a three-member

panel, one of which was chosen by Ms. Jaramillo. Id. Ms. Jaramillo did not

attend the session but submitted her position through her attorney. The panel

unanimously agreed, on March 25, 2009, to recommend that the Superintendent

recommend termination to the Board. The Board accepted the Superintendent’s

recommendation on April 14, 2009 on a four to one vote. Id. The dissenting

member, Larry Quintana, was the only Hispanic member of the Board. Id.

      Ms. Jaramillo filed her complaint with the district court on September 18,

2009, later amending it on February 19, 2010. Aplt. App. 0014-0039. The

District’s motion for summary judgment was then granted on March 17, 2011.

                                        -3-
This appeal followed.



                                      Discussion

      We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. See Morris v. City of Colo.

Springs, 666 F.3d 654, 660 (10th Cir. 2012). Although we construe the evidence

in the light most favorable to the non-movant, to avoid summary judgment, a non-

movant must provide significantly probative evidence that would support a

verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986).

      On appeal, Ms. Jaramillo argues that she satisfied her burden under the

Supreme Court’s McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

framework, and that a reasonable jury could find that the District’s motives for

termination were pretextual. Aplt. Br. 20.

      The district court assumed, without deciding, that Ms. Jaramillo made a

prima facie case based on her positive performance for nearly nine years, her

membership in a protected class, and her termination and replacement by a non-

Hispanic person. See Order at *2. The District also proffered a legitimate non-

discriminatory reason for the adverse action—insubordination. While considering

pretext, the district court stated that “[t]he charge of insubordination for failure to

give Dr. Chandler the name of the informant on February 6, 2009, appears to be

                                          -4-
unfair and unreasonable, given the plaintiff's years of performance as the

principal of Hanson.” Id. Continuing, the court explained, however, that “[a]

violation of that statute [§ 1981] depends upon a showing that the termination was

made because of the plaintiff's race” and not whether the decision was

“reasonable.” Id. The court held that there was no evidence of racial bias or

pretext in this case. Id. at *3-*4.

      A party may show pretext “by demonstrating such weaknesses,

implausibilities, inconsistencies, incoherences, or contradictions in the employer's

proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence and hence infer that the employer did

not act for the asserted nondiscriminatory reasons.” See Crowe v. ADT Sec.

Servs., Inc., 649 F.3d 1189, 1196 (10th Cir. 2011). Pretext may also be shown by

providing direct evidence discrediting the proffered rationale, or by showing that

the plaintiff was treated differently from others similarly situated. Id.

      Ms. Jaramillo argues that she showed pretext based upon: (1) the testimony

of Board member Larry Quintana, (2) the unreasonable nature of Dr. Chandler’s

request, and (3) testimony of a member of the administrative review panel who

understood that the insubordination was something different than what the Board

acted upon. Aplt. Br. 17-20.

      The testimony of Mr. Quintana, the dissenting Board member who voted

against her termination, adds little because it is based on conjecture. When

                                         -5-
questioned about the matter, Mr. Quintana stated:

      Mrs. Jaramillo questioned Dr. Chandler’s decision on the year-round
      school. That was bad enough. But the fact that Mrs. Jaramillo was
      Hispanic and questioned her was even a worse offense in this whole
      process.

Aplt. Appx. 0444. Furthermore, when asked whether he thought racism was

involved in the termination decision, he answered “yes” and explained that he felt

the termination was a product of institutional racism in the District that he—as a

Hispanic individual—had also experienced, see id., although he specifically

testified that he did not believe that two of the Board members who voted for

termination were motivated by racism, and he could not say with certainty about a

third Board member’s rationale, id. at 0546-47.

      Ms. Jaramillo also relies on the testimony of the District’s human resource

director that insubordination occurs when an employee “blatantly disregards [a]

reasonable request” from a supervisor. Aplt. App. 0456. She argues that Dr.

Chandler’s request for the name of the person who told Ms. Jaramillo about a

public Board meeting is simply not a reasonable request. Finally, she notes that

one of the members of the review panel, Ms. Wanda Clark, questioned whether

Ms. Jaramillo’s returning to the school building to return some evaluations after

she had been placed on administrative leave constituted insubordination or a

miscommunication. Id. at 0460.

      As this court has noted, “mere conjecture that an employer’s explanation is


                                        -6-
a pretext for intentional discrimination is an insufficient basis for denial of

summary judgment.” See Santana v. City and Cnty. of Denver, 488 F.3d 860,

864-65 (10th Cir. 2007). Nothing in Mr. Quintana’s testimony, other than vague

references to institutional racism and “past experience,” suggests that he could

point to specific evidence of discriminatory intent by any of the decisionmakers

in this case. Aplt. App. 0208, 0444, 0546. Courts are understandably reluctant to

allow theories of institutional racism to displace the requirement of personal

knowledge of facts concerning adverse employment actions. See Zokari v. Gates,

561 F.3d 1076, 1089 (10th Cir. 2009) (citing Fed. R. Evid. 602). In fact, Mr.

Quintana testified that out of the four Board members that voted in favor of

termination, he could not point to any specific racial animus on the part of three

of the members. Aplt. Appx. 0546-47. While claiming that Ms. Lewis voted to

terminate based on race, the only support for that conclusion was his “past

experience in things that relate to executive session that I can’t talk about, the

pattern [of discrimination] was there.” Id. at 0546. Though we must construe Mr.

Quintana’s testimony in the light most favorable to a triable issue, it cannot

substitute for proof.

      The testimony of the human resource director concerning what constitutes

insubordination does not create a triable issue on pretext for several reasons.

First, Ms. Jaramillo was provided ample notice by Dr. Chandler of what

constituted insubordination. As the letter to her stated:

                                         -7-
      As your Supervisor, when I request information from you or direct that
      you take certain action, you are required to comply. Refusing to
      provide information requested and willfully not complying with my
      specific instructions to you, constitute insubordination.

Aplt. App. 0286; see also id. at 0476-77. It is uncontroverted that Ms. Jaramillo

did not provide the requested information, despite being given three chances to do

so. Second, the human resource director was not a decisionmaker on this

personnel action. Finally, though the information Ms. Jaramillo withheld may

appear trivial and the sanction harsh, our task is not to second-guess an

employer’s honestly held (even if erroneous) business judgment about what

information is needed from an employee and the consequences of a failure to

disclose it. Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006).

      Nor does the fact that Ms. Clark had questions about whether other conduct

of Ms. Jaramillo constituted insubordination suggest pretext. See Aplt. App.

0460. The fact that Ms. Clark ultimately deferred to Dr. Chandler or believed

that the other two members would side with the District administration does not

suggest that the District’s reason for termination was unworthy of belief. See id.

at 0461-62. Absent evidence to the contrary, we presume that proceedings are

fair, regular, and on the merits. Even had Ms. Clark dissented, the fact that

administrative or Board decisions are not unanimous does not undercut their

authority.

      Ms. Jaramillo’s argument that the District is liable under a “cat’s paw”


                                        -8-
theory for Dr. Chandler’s actions necessarily fails as well. Aplt. Reply Br. 2, 18-

22. The Supreme Court has held that “where an employee performs an act

motivated by discriminatory animus intending to cause an adverse employment

decision, the employer will be liable if that act is a proximate cause of the

eventual adverse employment decision.” See Crowe, 649 F.3d at 1194; see also

Staub v. Proctor Hosp., — U.S. —, 131 S. Ct. 1186, 1194 (2011). Though the

Supreme Court noted in Staub that a superseding decisionmaker does not negate

the supervisor’s bias as a possible proximate cause of the employment decision,

131 S. Ct. at 1192, there is insufficient evidence to indicate that Dr. Chandler

discriminated in the first place. Ms. Jaramillo cannot show proximate cause

between Dr. Chandler’s alleged racial/ethnic bias (for which there is no evidence)

and her discharge. There is no proof of bias on the part of the review panel, let

alone the final decisionmaker, the Board. Ms. Jaramillo admitted in her

deposition that Ms. Chandler never used racially offensive language towards her,

Aplt. App. 0179, 0183, and that she did not report any instances of prior

discrimination, id. at 0186. What the record does reveal in this case is

disagreement about administrative policy choices—hardly infrequent in the

education setting. But that does not constitute pretext. As noted, Mr. Quintana’s

testimony is too vague to be helpful here. Therefore, the District is not liable

based on a theory of “cat’s paw” liability.

      AFFIRMED.

                                         -9-
