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

                             FOR THE TENTH CIRCUIT                           April 13, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANGELIA MCGOWAN,

      Plaintiff - Appellant,

v.                                                          No. 15-1272
                                               (D.C. No. 1:13-CV-01716-WJM-NYW)
BOARD OF TRUSTEES OF                                         (D. Colo.)
METROPOLITAN STATE UNIVERSITY
OF DENVER,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

      Angelia McGowan sued the Board of Trustees of Metropolitan State

University of Denver (Metro State) claiming, among other things, racial

discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
district court granted summary judgment in favor of Metro State. McGowan

appeals,1 and we affirm.

                                   I. Background

       McGowan, an African American, was Assistant Director of Communications

at Metro State from 2007 to 2011. Her first supervisor, Catherine Lucas, recruited

McGowan for the job and used the school’s affirmative action program to expedite

the hiring process. McGowan was initially responsible for external communications,

which involved significant interaction with the media. According to Lucas,

McGowan struggled to “proactively pitch” stories to the media, R. at 197-98, and

sometimes demonstrated poor “critical thinking skills,” id. at 201-02. This led Lucas

to believe McGowan would be better suited for a job requiring less media interaction,

so she assigned McGowan to an internal communications position without changing

her title or salary.

       One of McGowan’s primary responsibilities in her internal communications

position was serving as the editor of @Metro, an online publication for Metro State

faculty and staff. But according to McGowan’s new supervisor, Donna Fowler,

McGowan had an “ongoing problem” handling her editorial responsibilities. Id. at

247-48. Specifically, McGowan had trouble meeting deadlines, wrote articles with

inaccurate information, and missed submissions.




       1
        McGowan appeals only the district court’s summary judgment on her Title
VII discrimination and retaliation claims.
                                          2
       In April 2010, McGowan was given a poor performance evaluation. Because

McGowan’s move to internal communications occurred during the review period,

both Lucas and Fowler were involved in her evaluation. McGowan earned an overall

rating of “Achieves Performance Standards,” but her numerical performance score

was relatively low (1 on a 0-3 scale). Id. at 343, 350. As part of the evaluation,

McGowan was asked to submit a report documenting media placements in the first

part of the review period, while she was still working in external communications.

Lucas discovered several errors in the report and accused McGowan of “fudg[ing] or

fib[bing].” Id. at 273-74. In her written comments, Fowler said the errors created a

“serious trust issue” with McGowan. Id. at 346. McGowan acknowledged the report

was inaccurate, but submitted a written rebuttal claiming the errors were inadvertent

and that Lucas and Fowler had created “a hostile work environment” for various

reasons unrelated to race, id. at 360. McGowan later appealed the performance

evaluation to little avail.

       Shortly after her evaluation, McGowan complained about Lucas and Fowler to

the director of Metro State’s Equal Employment Opportunity (EEO) office, but she

did not file a formal grievance and, at McGowan’s request, the director did not

discuss the meeting with either supervisor.

       Over the next year, Fowler occasionally sent McGowan memos expressing

concerns with her performance and asking McGowan to submit plans for

improvement. When McGowan’s performance did not improve, Fowler hired a

consultant who worked with McGowan for a month and helped train her how to

                                           3
publish a weekly newsletter like @Metro. In McGowan’s next performance

evaluation, in April 2011, Fowler gave McGowan a slightly higher performance score

(1.36 on the 0-3 scale) and noted her proficiency in some areas, but concluded the

quality of McGowan’s work and her skill in managing @Metro remained poor.

       The poor performance reviews and performance-related memos eventually led

McGowan to believe she would be fired, so she resigned from Metro State in August

2011 and later brought this suit.

                                 II. Standard of Review

       We review the grant of summary judgment de novo and apply the same

standard as the district court. Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877,

882 (10th Cir.), cert. denied, 136 S. Ct. 690 (2015).

       Summary judgment is appropriate if, viewing the facts in the light most

favorable to the nonmoving party, “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.” Id.

(internal quotation marks omitted); Fed. R. Civ. P. 56(a). A dispute is “genuine” if

there is sufficient evidence for a rational trier of fact to resolve the issue either way.

Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A fact is

“material” if it is essential to the proper disposition of the claim. Id.

                                      III. Analysis

       McGowan claims Lucas and Fowler discriminated against her by giving her

poor performance reviews and criticizing her work, which led to her constructive



                                             4
discharge.2 Similarly, she claims some of the poor reviews and critiques were in

retaliation for McGowan accusing Lucas and Fowler of creating a hostile work

environment and complaining about them to the EEO director. But McGowan failed

to produce sufficient evidence of either claim to survive summary judgment.

      Because McGowan’s claims are based on circumstantial evidence, the three-

step McDonnell Douglas3 burden-shifting framework applies. See Crowe v. ADT

Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). This requires McGowan to

first establish a prima facie case of discrimination or retaliation.4 Id. at 1195. If she

clears this hurdle, Metro State must articulate a “legitimate, non-discriminatory or

non-retaliatory rationale” for any adverse employment actions. Id. The burden then

shifts back to McGowan, “who must prove by a preponderance of the evidence that




      2
         McGowan claims she was constructively discharged because the criticism of
her performance made working conditions so intolerable that she felt forced to
resign. Proof of constructive discharge can satisfy the “adverse employment action”
requirement of McGowan’s claims, see Fischer v. Forestwood Co., 525 F.3d 972,
979 (10th Cir. 2008), but the district court found it unnecessary to determine whether
McGowan presented sufficient evidence of constructive discharge because the court
resolved her claims on other grounds. We do the same.
       3
         McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       4
         To establish a prima facie case of discrimination, an employee must present
evidence that (1) she belongs to a protected class, (2) she suffered an adverse
employment action, and (3) the “action took place under circumstances giving rise to
an inference of discrimination.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800
(10th Cir. 2007). A prima facie case of retaliation requires an employee to show that
(1) she engaged in protected opposition to discrimination, (2) a reasonable employee
would have found the challenged action materially adverse (meaning the action might
dissuade a reasonable worker from making or supporting a charge of discrimination),
and (3) there is a causal connection between the protected activity and the adverse
action. Id. at 803.
                                            5
[Metro State’s] reasons are a pretext for unlawful discrimination” or retaliation.

Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir. 2010).

      The district court held that McGowan failed to establish a prima facie case of

discrimination or retaliation, but even if she had, Metro State offered a legitimate

reason for any adverse actions—McGowan’s poor performance—which McGowan

failed to show was pretextual.5 We agree that McGowan failed to show pretext, so

we affirm the district court’s decision on this ground without addressing whether

McGowan made a prima facie case of discrimination or retaliation.

      “[A] plaintiff can establish pretext by showing the defendant’s proffered non-

discriminatory [or non-retaliatory] explanations for its actions are so incoherent,

weak, inconsistent, or contradictory that a rational factfinder could conclude they are

unworthy of belief.” Id. (internal quotation marks and brackets omitted). “To

support an inference of pretext, . . . [a plaintiff] must come forward with evidence

that the employer didn’t really believe its proffered reasons for action and thus may

have been pursuing a hidden discriminatory [or retaliatory] agenda.” Id.

      McGowan claims “the sequence of events leading up to her constructive

discharge constituted . . . circumstances indicative of pretext.” Aplt. Opening Br.

at 10. According to McGowan, this sequence began during the hiring process, when

she “was advised . . . that Metro hired her only as a grudging concession to its prior

      5
        The district court discussed McGowan’s failure to show pretext only in the
context of her retaliation claim, but its analysis applies equally to her discrimination
claim because McGowan relies on essentially the same adverse acts for both claims
(poor reviews, criticism of her performance, and constructive discharge) for which
Metro State offers the same justification (McGowan’s poor performance).
                                            6
underrepresentation of African-Americans.” Id. The only evidence supporting this

claim is McGowan’s deposition testimony that Lucas once told her Metro State

wanted to increase its number of Hispanic students. McGowan did not recall Lucas’

exact words, but her comment left McGowan with the impression Lucas would have

preferred to hire a Latino. Assuming Lucas made such a comment, McGowan

acknowledged that Lucas actively recruited her for the position at Metro State,

suggesting she was no “grudging concession.” And regardless, to establish pretext, a

comment must be somehow tied to the employment actions in dispute. Johnson,

594 F.3d at 1212-13. McGowan presented no evidence that Lucas made similar

comments during her employment at Metro State, and nothing in the record connects

Lucas’ comment to criticisms of McGowan’s performance more than two years later.

      McGowan claims her April 2010 performance evaluation also reveals evidence

of pretext. Specifically, she argues the accusations of dishonesty that followed her

inaccurate media report were “false, inconsistent, contradictory and implausible”

because the report related to her duties in her external communications position,

which she no longer held, and because some of the purported errors were later found

to be correct. Aplt. Opening Br. at 12. But McGowan admits the report contained

numerous errors, and she makes little effort to explain why she should not have been

asked to complete the report, which related to duties she held during the review

period, or why her supervisors should have overlooked the report’s inaccuracies. Nor

does McGowan offer evidence of any procedural irregularity in the evaluation



                                          7
process. In short, nothing about the April 2010 evaluation gives rise to an inference

of pretext.

       Finally, the evidence suggests Lucas and Fowler had honest concerns about

McGowan’s performance and tried to help her succeed. Lucas testified that when she

saw McGowan having trouble pitching stories, Lucas “began to give her coaching

and feedback.” R. at 197-98. And Fowler went so far as to hire a consultant who

worked with McGowan for a month. McGowan admits Lucas and Fowler were

concerned about her performance,6 and aside from McGowan’s arguments regarding

the April 2010 evaluation, she does not deny the particulars of their complaints. In

short, the record reveals no evidence that Metro State did not actually believe its

proffered reasons for any adverse employment actions. See Johnson, 594 F.3d at

1211 (requiring evidence that an employer did not actually believe its proffered

reasons for an action to support an inference of pretext). There is therefore nothing a

rational factfinder could rely upon to find Metro State’s justification for giving

McGowan poor reviews and criticizing her performance unworthy of belief. See id.

       For these reasons, we conclude McGowan failed to show that Metro State’s

proffered reason for any adverse employment actions—McGowan’s poor

performance—was a pretext for discrimination or retaliation.




       6
       This admission does not appear in McGowan’s appellate briefs, but in her
response to Metro State’s motion for summary judgment.
                                           8
         We therefore affirm the district court’s summary judgment in favor of Metro

State.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




                                           9
