                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 11 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TRINA NATAY,

                Plaintiff-Appellant,

    v.                                                   No. 04-4084
                                                 (D.C. No. 2:02-CV-943-PGC)
    MURRAY SCHOOL DISTRICT,                                (D. Utah)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.



         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.

         Plaintiff Trina Natay, a Native American woman, was employed as a

provisional teacher by defendant Murray School District. When her contract was



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
not renewed, she filed this Title VII action alleging that the school district had

discriminated against her based on her race. The district court granted summary

judgment in favor of defendant. We exercise jurisdiction over Plaintiff’s appeal

and affirm.

I.    Background    1



      Murray School District hired Plaintiff as a provisional teacher for the 1998-

1999 school year and assigned her to Longview Elementary School, under the

supervision of the principal, Dr. Janet Evans. Plaintiff was the only Native

American in the group of 47 recently-hired provisional teachers and on the

Longview faculty.

      Plaintiff describes her treatment at Longview as discriminatory from the

start. Dr. Evans snubbed her at the first staff meeting; came late to her scheduled

evaluations; and disciplined her, but not the other teacher, when they both

returned late from a lunch break. Aplt’s Br. at 5-6. At one point, Dr. Evans told

Plaintiff that she was “geographically, racially, culturally, and socially out of

place” at Longview.     Id. at 6. Dr. Evans gave Plaintiff unfavorable evaluations

and eventually recommended that her contract not be renewed.


1
      We recount the facts in the light most favorable to plaintiff, “as we must
when reviewing a grant of summary judgment.”      Garrett v. Hewlett Packard Co .,
305 F.3d 1210, 1213 (10th Cir. 2002). Thus, like the district court, “we proceed[]
on the basis that racially derogatory statements were made.” Aplt’s App. at 225.


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      Dr. Evans was concerned that her recommendation would result in a

discrimination action against the school district. She asked the school district

superintendent, Dr. Richard Tranter, to conduct an independent evaluation of

Plaintiff’s performance. Dr. Tranter made three visits to Longview to observe

Plaintiff’s classroom, but Plaintiff was “either reading while an outside volunteer

taught the class, or she was otherwise not actively teaching the class.” Aplt. App.

at 163. He reviewed critical letters from parents of students and Plaintiff’s

colleagues. He also met with Plaintiff to discuss her effectiveness as a teacher

and her claims of discrimination. Ms. Natay asked for a meeting with Dr. Tranter

and used the opportunity to assert a discrimination complaint.    Id. at 148. She

also asked that her evaluation be disregarded because Dr. Evans’ tardiness meant

that Dr. Evans did not see the portion of the teaching day that Plaintiff had

prepared for evaluation.   Id. at 148.

      Dr. Tranter decided that Plaintiff was “not an excellent teacher and not

someone [he] would want Murray School District to hire on a long-term basis.”

Aplt.’s App. at 149. He informed Plaintiff of his decision not to renew her

contract. Shortly afterwards, Plaintiff asked for and received an informal

conference with Dr. Tranter.    Id.   Plaintiff’s arguments during the conference

did not change his decision.   Id. Of the district’s provisional teachers hired for




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that school year, only Plaintiff’s contract was not renewed. On Plaintiff’s last day

of work, Dr. Evans made another racially derogatory comment to her.

      Plaintiff brought her discriminatory discharge claim in federal district

court. The court entered summary judgment in favor of defendant. Plaintiff

expresses the issue on appeal as “[w]hether an employer can escape Title VII

liability simply because the titular decisionmaker was not personally motivated by

discrimination despite the absence of meaningful investigation by the employer

when the supervisor who allegedly discriminated had leverage and influence in

the decision to reject the employee.” Aplt’s Br. at 3.

II.   Discussion

      This court reviews

      the district court’s grant of summary judgment de novo, using the
      same standards applied by the district court. The evidence and
      reasonable inferences drawn from the evidence are viewed in the
      light most favorable to the nonmoving party. Summary judgment is
      appropriate only where the pleadings, depositions, answers to
      interrogatories, and admissions on file, together with the affidavits, if
      any, show that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of law.

Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004) (citations and internal

quotation marks omitted).

      Title VII prohibits an employer from discriminating against “any individual

. . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). In some

circumstances, a “statement[] on the part of a defendant showing a discriminatory

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motivation” may be considered direct evidence of racial discrimination.         Kendrick

v. Penske Transp. Servs., Inc,   . 220 F.3d 1220, 1225 (10th Cir. 2000). Here,

Plaintiff asserts that she has come forward with direct evidence of

discrimination–the comments of Dr. Evans. However, Dr. Tranter was the

ultimate decision maker, not Dr. Evans. And Plaintiff concedes that she lacks

evidence showing that “Superintendent Tranter had a discriminatory reason not to

renew her contract.” Aplt’s Br. at 21.

       Lacking direct evidence of discrimination, Plaintiff may utilize the

burden-shifting framework of     McDonnell Douglas Corp. v. Green     , 411 U.S. 792,

802-04 (1973).   See EEOC v. Horizon/CMS Healthcare Corp         ., 220 F.3d 1184,

1191-92 (10th Cir. 2000). Under this approach, a plaintiff must first establish a

prima facie case of unlawful discrimination, so that the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the adverse

employment action.     Id. If the employer produces such a reason, the burden

returns to the plaintiff, who can avoid summary judgment by showing that the

employer’s proffered reason was merely a pretext for unlawful discrimination.        Id.

       Here, the prima facie case for Plaintiff’s claim requires a showing that: (1)

she belongs to a protected class; (2) she was qualified to perform her job; (3) she

suffered an adverse employment action; and (4) she was treated less favorably

than others. Exum v. U.S. Olympic Comm.,         389 F.3d 1130, 1134 (10th Cir. 2004).


                                           -5-
Plaintiff’s evidence satisfies these requirements and thus establishes a prima facie

case. As a consequence, she succeeded in shifting the burden to the school

district to produce a nondiscriminatory reason for its employment decision.         Id. at

1134-35.

       The school district’s justification for the nonrenewal of Plaintiff’s contract

is lack of performance. Plaintiff asserts that this reason is pretextual and

unworthy of belief, again pointing to the remarks and behavior of her principal,

Dr. Evans. “Language . . . showing some racial animus, may be significant

evidence of pretext once a plaintiff has set out the prima facie case.”       Jones v.

Bessemer Carraway Med. Ctr. , 151 F.3d 1321, 1323 n.11 (11th Cir. 1998).

       In this instance, however, Plaintiff must rely upon the “cat’s paw” doctrine

to connect the principal’s racial bias to the superintendent’s decision. The

doctrine provides that “under certain circumstances, a defendant may be held

liable if the manager who discharged the plaintiff merely acted as a rubber stamp,

or the ‘cat’s paw,’ for a subordinate employee’s prejudice, even if the manager

lacked discriminatory intent.”    Kendrick , 220 F.3d at 1231; see English v. Colo.

Dept. of Corr., 248 F.3d 1002, 1011 (10th Cir. 2001).

       In the Tenth Circuit, a plaintiff may not recover under this theory without

showing “‘that the decision maker followed the biased recommendation [of a

subordinate] without independently investigating the complaint against the


                                             -6-
employee.’” English , 248 F.3d at 1011 (quoting   Stimpson v. City of Tuscaloosa   ,

186 F.3d 1328, 1332 (11th Cir. 1999). An important factor is whether, during the

course of the investigation, the decision maker allows the claimant to give his

version of events.   Id.

       Plaintiff challenges the independence of Dr. Tranter’s evaluation. She

states that his investigation was inadequate, primarily because he “never set foot

in her classroom to evaluate or observe her.” Aplt.’s Br. at 18. Her contention is

not inconsistent with Dr. Tranter’s assertion that he observed her from outside the

classroom on three occasions. Additionally, Dr. Tranter’s affidavit details other

steps in his investigation of Plaintiff’s performance and states that, based on the

investigation, he decided that Plaintiff’s contract should not be renewed due to

her ineffectiveness as a teacher. And it is uncontested that Dr. Tranter met with

Plaintiff two times to discuss her performance.

       A cat’s paw claim cannot be maintained when the ultimate decision maker

conducted an independent investigation and also allowed the plaintiff a chance to

respond directly to the reasons for the decision. The evidence of record

establishes a sufficiently independent investigation by Dr. Tranter to insulate his

decision from any bias of a subordinate. Accordingly, Plaintiff’s showing does

not reasonably give rise to an inference that the reasons Dr. Tranter gave for the




                                         -7-
nonrenewal were pretextual. Summary judgment was the appropriate disposition

of Plaintiff’s claim.

      The judgment of the district court is AFFIRMED.



                                                Entered for the Court



                                                David M. Ebel
                                                Circuit Judge




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