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

                               FOR THE TENTH CIRCUIT                       January 6, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
CLAIRE BRAINERD,

              Plaintiff - Appellant,

v.                                                             No. 14-1153
                                                  (D.C. No. 1:12-CV-01255-WYD-KMT)
SCHLUMBERGER TECHNOLOGY                                         (D. Colo.)
CORPORATION,

              Defendant - Appellee.


                                ORDER AND JUDGMENT*


Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.



     Claire Brainerd is a trailblazer: in May 2011, Schlumberger Technology Corporation

(Schlumberger) hired her to work as a mechanic in its push-pull department, making her

the first woman to work in that shop. But Schlumberger ultimately considered Brainerd a

sub-par employee, one who had a poor attitude and committed serious safety violations.

After four months, the company had enough. Brainerd’s supervisors decided that she

could not improve her below average performance, so Schlumberger fired her. Brainerd

thought her dismissal was because she was a woman—the only woman in that shop.

     *
     This order is not binding precedent, except under the doctrines of law of the case, res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.
Brainerd then sued Schlumberger under Title VII. The district court granted summary

judgment for Schlumberger, concluding that Brainerd did not establish her prima facie

case because she failed to show that she was performing her work satisfactorily.

    We agree with the district court’s decision to grant summary judgment for

Schlumberger, but we disagree with its rationale. The district court erred in concluding

that Brainerd failed to show that her work was satisfactory; in doing so, the court “put the

cart before the horse” by skipping over the first prong of the applicable burden-shifting

test and denying Brainerd the opportunity to argue that Schlumberger’s proffered reason

was pretextual. See Orr v. City of Albuquerque, 417 F.3d 1144, 1151–52 (10th Cir. 2005).

Nevertheless, even if the district court had given Brainerd that opportunity to argue

pretext, we conclude that she would have been unable to raise a genuine dispute of

material fact that Schlumberger’s reason for firing her—her poor performance—was

pretextual. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


                                    BACKGROUND

   Schlumberger, a large oil field service company, operates a drilling and measurements

facility in Commerce City, Colorado. Paul Dickson was the manager in charge of that

facility when Schlumberger hired Brainerd, and Dickson served there until Schlumberger

promoted him. Kevin Ramsay replaced Dickson, and Ramsay was the manager at

Brainerd’s termination. There are a number of departments at the Colorado facility,

including the push-pull department. Andrew Emerson was the supervisor of the push-pull

department. Schlumberger divided the push-pull department into three cells, including the
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power-drive cell. Bryan Peterson was the “cell-lead” of the power-drive cell (where

Brainerd was assigned after starting). Chris Reno worked as a technician and served as

Brainerd’s mentor. There were three areas in the power-drive cell: disassembly (further

divided into tear-down and disassembly), subassembly (further divided into clamp plate

assembly and bearing house assembly), and build-up.

   In May 2011, Schlumberger hired Brainerd as a Mechanic Technician Trainee.

Brainerd was the first female mechanic technician that Schlumberger had ever hired. As

part of its training program, Schlumberger rotated Brainerd and other trainees through the

three areas. The company expected Brainerd to complete each area in four weeks.

Brainerd’s first rotation was in the disassembly area. She thought that all was going well;

her mentor, Chris Reno, reviewed her progress and thought that Brainerd “had the

ability” to progress in the push/pull department. J.A. vol. II at 243. Supervisors tracked a

trainee’s performance through completion of on-the-job log sheets (OTJ). J.A. vol. II at

233, 242. Brainerd saw nothing in her OTJs suggesting that she performed below

standards or failed to meet expectations.

   It did not take long for Schlumberger to adopt a contrary view about Brainerd’s

performance. Emerson reviewed Brainerd’s work and progress and decided that, “in order

to facilitate better learning” for Brainerd, she should remain in disassembly for an

additional rotation instead of moving on to another area. J.A. vol. I at 13. Brainerd

believed she remained in disassembly to help Schlumberger satisfy production needs.




                                            -3-
   According to Schlumberger, Brainerd had other issues as well. Sometime during

Brainerd’s first two weeks on the job, Brainerd decided to lie down on the floor to pop

her back. Brainerd says she did this at 11:30 p.m. when no one else was nearby. However,

she admits that Emerson spoke to her about the incident and told her not to do it again.

J.A. vol. II at 208–09. Emerson and Dickson addressed other performance issues and

concerns with Brainerd at a July 2011 meeting, including: (1) her negative and

“general[ly] immature” attitude and lack of professionalism; (2) her unwillingness to take

direction and perform certain job assignments; (3) her frequent times sitting down on the

job; and (4) the back-popping incident which, in Schlumberger’s view, was a serious

safety concern because Brainerd did this in a busy warehouse area where forklifts

routinely operated and carried heavy tools. J.A. vol. I at 14–15, 125–27. Schlumberger

considered this meeting a “formal disciplinary discussion.” J.A. vol. I at 14. On the other

hand, Brainerd thought the July meeting went well, particularly because Dickson told her

she was progressing as expected.

   Brainerd eventually moved out of disassembly into subassembly. Brainerd thought

that Peterson had decided that she was qualified to move to subassembly. Schlumberger

attributes the move to Emerson’s desire to see if Brainerd could further her development.

After Brainerd completed a four week rotation in subassembly, she returned to

disassembly for, as Schlumberger put it, further remedial training. Brainerd believed the

move was again related to production needs; she had no inkling of any deficiencies in her

performance. Schlumberger made the move because Brainerd lacked “core competencies


                                           -4-
. . . that should have been concretely established in her first rotation in disassembly.” J.A.

vol. I at 15.

   Schlumberger says that, upon Brainerd’s return to disassembly, her performance

issues continued. Ramsay and Emerson, the managers, learned of two problems: (1)

Brainerd’s failure to clock-out and leave work when instructed, and (2) an argument she

had with a co-worker about Brainerd’s failure to clean her work area. J.A. vol. I at 18.

Ramsay and Emerson also personally witnessed two instances where Brainerd violated

company rules. First, Brainerd incorrectly and unsafely removed parts from a bias unit

when she allowed a clamp plate (that weighed more than twenty-five pounds) to drop

uncontrolled onto an unsecured cart.1 J.A. vol. I at 16. The managers considered this

dangerous and contrary to Schlumberger’s protocol and training because the plate could

bounce off the cart and either break and/or injure someone nearby. Second, Brainerd

failed to strap a bias unit to the work bench, which Ramsay and Emerson considered

another serious safety risk. Brainerd does not dispute that the two instances happened;

rather, she contends that she completed the two tasks as Schlumberger had trained her.

   Ramsay and Emerson had had enough; they decided to fire Brainerd. After a meeting

between Emerson and Ramsay, Emerson documented Brainerd’s training and

performance issues in an e-mail he sent to Ramsay. In September 2011, less than four

months after Brainerd started at Schlumberger, Ramsay fired her. He told her that she was
   1
     A bias unit is attached to a rotary drill and applies force to the drill bit in a
controlled direction while the entire drill rotates. A clamp plate is a plate that is used
to mount various fixtures.


                                            -5-
terminated because her performance, safety record, and attitude dropped to an

unacceptable level. Brainerd was surprised, later deciding that Ramsay had no good

reason to terminate her. She asserted that an HR representative had told her that she was

terminated for failing to sign time sheets, which she says was untrue. Brainerd says that

Ramsay only told her that her firing could be due to her attitude.

   Brainerd paints a different picture of her employment at Schlumberger than her

supervisors do. She was the first and only female (of 70–80 males) in that particular

department, and Schlumberger has not hired another female for that department since her

termination. Peterson, her cell lead, could not recall Schlumberger terminating another

trainee after only four months.

   Brainerd believed a number of the men were complaining about her presence. One

supervisor told her that Schlumberger did not know where to place a woman in her

position. Another employee told Brainerd that some of Brainerd’s co-workers did not like

having her in the shop, and they were out to get her “because she was a girl.” J.A. vol. II

at 232. Brainerd considered the department’s atmosphere to be masculine. One tradition

Brainerd points us to is “man-love Thursday,” where the “guys working around

[Brainerd] would touch each other in a homosexual manner as part of a jest.” J.A. vol. II

at 231. Brainerd alleged that there was “butt-slapping, shoulder rubs, lewd gestures, off-

color and sexual language, crude music, and jokes about hitting women and animals.”

J.A. vol. II at 231. She also suggests she was discriminated against because she was a




                                           -6-
female—for example, the male co-workers would not invite her to lunch and would not

let her carry heavy things.

   In May 2012, Brainerd sued Schlumberger in federal district court, alleging that

Schlumberger had discriminated against her because she is female, in violation of 42

U.S.C. § 2000e-2. Schlumberger moved for summary judgment. It argued that Brainerd

failed to satisfy her burden under McDonnell Douglas Corp. v. Green to establish a prima

facie case of sex discrimination because she could not establish the second prong of the

prima facie case—that she was completing her job satisfactorily. See 411 U.S. 792, 802

(1973); see also Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012).

Brainerd responded that she indeed satisfactorily performed her job, but that her co-

workers had complained about her to Ramsay because they did not like that she was

female, and those complaints had infected Ramsay’s termination decision with a

discriminatory animus. She also argued that Schlumberger’s proffered reasons for

terminating her were mere pretext.

   The district court granted Schlumberger’s motion for summary judgment. It reviewed

the evidence Brainerd put forth to prove her prima facie case before it devoted

considerable time to Schlumberger’s evidence. The district court analyzed Brainerd’s

claim under the McDonnell Douglas burden-shifting framework, noting that Brainerd had

the burden to prove, among other things, that she was performing her job satisfactorily.

Although the district court considered Brainerd’s assertions that her supervisors had all

told her she was performing satisfactorily, the court found scant—if any—evidence to


                                          -7-
support her assertions. Because the district court concluded that Brainerd could not

establish a prima facie case of discrimination, it ended its analysis without considering

the other two prongs of McDonnell Douglas—whether Schlumberger produced a

legitimate, nondiscriminatory reason for termination and whether Brainerd could show

that those reasons were pretextual. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1220

(10th Cir. 2007). Brainerd timely appealed.


                                        DISCUSSION

   A. Standard of Review and Applicable Law

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

standard the district court used. Dalpiaz v. Carbon Cnty., Utah, 760 F.3d 1126, 1131

(10th Cir. 2014). We must view the factual record and make reasonable inferences from it

in the light most favorable to the party opposing summary judgment. Bohn v. Park City

Grp., Inc., 94 F.3d 1457, 1460 (10th Cir. 1996). We will uphold the district court’s grant

of summary judgment only if “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 dispute or

issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact

could resolve the issue either way. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.

2013) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An

issue of fact is “material” if, under the substantive law, it is essential to the proper

disposition of the claim. Id.



                                             -8-
   An employer may not discharge any individual because of that person’s sex. 42

U.S.C. § 2000e-2(a)(1). A plaintiff can show that her employer discriminated against her

by providing either direct or circumstantial evidence of discrimination. Danville v. Reg’l

Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). As the district court correctly noted,

Brainerd presents circumstantial evidence to support her claim.

   We evaluate claims based on circumstantial evidence under McDonnell Douglas’s

burden-shifting framework. McDonnell Douglas Corp., 411 U.S. at 802–05. First,

Brainerd must prove a prima facie case of discrimination. Id. at 802. If Brainerd makes

this showing, the burden shifts to Schlumberger “to articulate some legitimate,

nondiscriminatory reason” for its employment decision. Id. If Schlumberger articulates

such a reason, then the burden shifts back to Brainerd to show that the employer’s

proffered reason for terminating her was mere pretext. Id. at 804–05.

   B. Prima Facie Case

   We start with whether Brainerd established a prima facie case. To do so, she had to

establish that: (1) she is a member of a protected class; (2) she was qualified and

satisfactorily performing her job; and (3) she was terminated under circumstances giving

rise to an inference of discrimination. See Barlow, 703 F.3d at 505 (citing Salguero v. City

of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004)). Brainerd satisfies the first prong

because, as a female, Brainerd is a member of a protected class. See E.E.O.C. v. PVNF,

LLC, 487 F.3d 790, 800 n.6 (10th Cir. 2007).




                                           -9-
   As for satisfactory performance, Brainerd argues that the district court erred in its

application of McDonnell Douglas by impermissibly increasing her burden to prove a

prima facie case. She contends that she did not have to disprove Schlumberger’s proffer

that the company terminated her for performance reasons. Rather, Brainerd asserts that

she only needed to provide “credible evidence” to the district court that she was

performing her job satisfactorily. Appellant’s Br. at 21–22.

   We agree with Brainerd. To be sure, Schlumberger presented compelling evidence of

Brainerd’s subpar performance. But at the summary judgment stage, the district court

must look at the facts in the light most favorable to Brainerd, the non-moving party. See

Bohn, 94 F.3d at 1460. The district court did not do that. Instead of examining Brainerd’s

evidence, it mistakenly focused on Schlumberger’s evidence supporting its reason for

terminating Brainerd. This was an incorrect application of the first prong of McDonnell

Douglas’s burden-shifting framework. Schlumberger’s reasoning for terminating

Brainerd is “irrelevant at this point of the McDonnell Douglas inquiry.” Orr, 417 F.3d at

1152.

   We also note that Brainerd’s burden to establish a prima facie case under McDonnell

Douglas is not a heavy one. Indeed, we have said that a plaintiff can demonstrate her

satisfactory performance simply by insisting that she was performing satisfactorily.

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1166 n.3 (10th Cir. 1998). This much

Brainerd does. She asserts that her work was satisfactory and that no one at Schlumberger

told her otherwise until the company fired her. Ultimately, the district court’s analysis of


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the prima facie case “put the cart before the horse” by making “the playing field unlevel

for [Brainerd] when [her] burden was supposed to be ‘not onerous.’” Orr, 417 F.3d at

1151–52 (citing Ortiz v. Norton, 254 F.3d 889, 894 (10th Cir. 2001)).

   Schlumberger urges us to affirm on the same basis that the district court did. The

company argues that we can do so because Brainerd did not adequately cite to admissible

evidence to support her prima facie case. We disagree. To be sure, a plaintiff in an

employment discrimination case needs to reference specific facts in her motion materials.

Adler, 144 F.3d at 672. But Brainerd did that in her summary judgment motion. She

alleged various facts and cited to her attestation or to deposition testimony in support. We

are more concerned about those instances when we have to search through the record and

make a party’s case for it. See Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022,

1025 (10th Cir. 1992). This is not such a case.

   Schlumberger also suggests that we affirm on the same basis because Brainerd failed

to provide evidence that she was performing her job adequately. The company points us

to an unpublished opinion in which we affirmed summary judgment for the employer

when that employer provided evidence of poor work performance and the employee

“failed to provide evidence that he was adequately performing his job.” Zoutomou v.

Copper, 550 F. App’x 647, 650 (10th Cir. 2013) (unpublished). Again, we note that

Schlumberger presented evidence of Brainerd’s poor performance. But Brainerd did not

fail to provide evidence of satisfactory performance. She asserted that she never received

any indication of unsatisfactory performance. Brainerd also points us to her mentor’s


                                           - 11 -
belief that Brainerd “had the ability to” progress in the department. J.A. vol. II at 243.

Brainerd’s assertions here are sufficient for the prima facie stage. Given the light burden

Brainerd has to meet for her prima facie case, we decline Schlumberger’s invitation to

affirm on this basis.

   As for the final part of the prima facie case, Brainerd must show that she was

terminated under circumstances giving rise to an inference of discrimination. See Barlow,

703 F.3d at 505. An inference requires circumstances that “must be such that it can be

inferred that more likely than not the actions were based on . . . discriminatory criteria.”

Bauer v. Bailar, 647 F.2d 1037, 1044 (10th Cir. 1981) (citation and internal quotations

omitted). A variety of circumstances can give rise to an inference of discrimination,

including the decisionmakers’ actions or remarks that could be viewed as reflecting a

discriminatory animus, the timing or sequence of events leading to a plaintiff’s

termination, or a plaintiff who is the lone member of a protected class in her workplace.

See, e.g., Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005). Here, just as in Plotke,

Brainerd was the only female hired to work in the shop. Cf. id. at 1107 (stating that the

plaintiff’s being the first and only woman employed at the business was relevant). In

addition, Schlumberger has not hired another woman since Brainerd’s departure. To be

sure, this supports an inference of discrimination. But in any case, we need not resolve

this question. Even if we assume that Brainerd made out her prima facie case, we

conclude that Schlumberger is entitled to summary judgment because Brainerd cannot

demonstrate pretext. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323–24 (10th Cir. 1997)


                                           - 12 -
(concluding that plaintiff could not raise a genuine dispute of material fact as to whether

the employer’s proffered reason for the challenged action is pretextual).

   C. Pretext

   Before we discuss pretext, we pause to note that we may affirm on any basis that the

record supports, even if it requires us to rule on arguments the district court did not reach.

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011). Both parties briefed

and argued the question of pretext, and we affirm on that basis.

   Because Brainerd has established a prima facie case of discrimination, the burden

shifts to Schlumberger “to articulate some legitimate, nondiscriminatory reason” for

terminating Brainerd. McDonnell Douglas Corp., 411 U.S. at 802. Schlumberger says it

fired Brainerd because her performance and development fell below an acceptable

standard. Poor performance is “the quintessential legitimate, nondiscriminatory reason

for termination.” Bertsch v. Overstock.com, 684 F.3d 1023, 1029 (10th Cir. 2012).

   With that, we move to the final step in the McDonnell Douglas burden-shifting

framework. Brainerd has the ultimate burden to show that Schlumberger’s proffered

reason for terminating her was mere pretext for discrimination. See Jaramillo v. Colo.

Judicial Dep’t, 427 F.3d 1303, 1307 (10th Cir. 2005). A plaintiff demonstrates pretext by

producing evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies,

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 non-discriminatory reasons.” Id. (quoting


                                            - 13 -
Morgan, 108 F.3d at 1323). Evidence of pretext may include: (1) prior treatment of the

plaintiff; (2) the employer’s policy and practice regarding employment of protected

classes; (3) disturbing procedural irregularities; and (4) the use of subjective criteria.

Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1217 (10th Cir. 2002).

   Simply put, even if we consider the evidence in Brainerd’s favor, Brainerd has not

produced evidence of “such weaknesses” or “inconsistencies” in Schlumberger’s

proffered reason. Jaramillo, 427 F.3d at 1308; see also Metzler v. Fed. Home Loan Bank

of Topeka, 464 F.3d 1164, 1179–80 (10th Cir. 2006) (concluding that the plaintiff did not

produce sufficient evidence to create a genuine issue of material fact when the employer

terminated her for her poor performance). Brainerd does not dispute that she lay down on

the floor to pop her back. While Brainerd considered it a “non-issue,” J.A. vol. II at 209,

Schlumberger did not—the company considered it a serious safety concern. Moreover,

Brainerd’s failing to deem it a serious concern supports Schlumberger’s decision to

terminate her for her failure to “[take] the job seriously.” J.A. vol. I at 54. Brainerd also

agrees that the clamp plate dropped into an unsecured cart. The parties dispute how far

the clamp plate fell: Brainerd says two inches; Schlumberger says two feet. But the

distance is immaterial; Schlumberger considered the failure to secure the cart to be the

safety violation, not the distance that it fell. Finally, Brainerd does not dispute that she

failed to use a strap to hold down a bias unit to the bench. Brainerd argues that she did as

she was trained. But she acknowledges that Emerson explained to her the proper safety

protocol, after which Brainerd still made a critical mistake—failing to use a strap—no


                                           - 14 -
more than five minutes later. At this stage, Brainerd must raise a genuine dispute of

material fact as to whether Schlumberger’s reason for termination is pretextual. See

Morgan, 108 F.3d at 1323. This Brainerd fails to do.

   Alternatively, Brainerd tries to elude summary judgment by arguing that she

successfully raised a “cat’s paw” claim. E.E.O.C. v. BCI Coca-Cola Bottling Co. of L.A.,

450 F.3d 476, 484 (10th Cir. 2006). She contends that the co-workers who complained

about her “played Mr. Ramsay [the decisionmaker] like a pawn” to get her fired.

Appellant’s Br. at 30. She says she proffered sufficient facts to show that her co-workers’

discriminatory motives caused her termination. See generally Crowe v. ADT Sec. Servs.,

Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (stating that an employer will be liable if a

subordinate’s actions are motivated by discriminatory animus and the subordinate’s act is

a proximate cause of the eventual adverse employment action). Brainerd points us to

Staub v. Proctor Hospital, 562 U.S. 411, 131 S. Ct. 1186, 1189–94 (2011), where the

ultimate decisionmaker relied blindly on a subordinate supervisor’s reprimand—a

reprimand that the supervisor created for discriminatory reasons. But such facts do not

exist in Brainerd’s case. Brainerd also contends that a jury must determine whether

Schlumberger’s reason for terminating her was valid or pretextual because she raised a

genuine issue of material fact. She argues that she produced evidence that the

decisionmaker had a clear bias against women, just as the plaintiff did in Tabor v. Hilti,

Inc., 703 F.3d 1206, 1218 (10th Cir. 2013). Simply put, Brainerd contends that Emerson

wanted her gone solely because she was a woman.


                                          - 15 -
   Contrary to Brainerd’s assertions, her termination is not similar to those in Staub or

Tabor. Brainerd has produced no evidence linking her co-workers’ statements to

Emerson, Dickson, or Ramsay—the ultimate decisionmakers. Brainerd also has no

evidence, except that she was the only woman working in the department, that the

decisionmakers had any sort of discriminatory bias or animus that motivated their

decision to fire her. Rather, the three supervisors—including Ramsay—saw Brainerd

commit two serious safety violations. Ramsay did not rely blindly on what his

subordinates told him—he witnessed the proof himself. Ultimately, Brainerd has not

raised a genuine dispute of material fact about whether Schlumberger’s reason for

terminating her was pretextual. See Morgan, 108 F.3d at 1323. Accordingly, she cannot

survive summary judgment.


                                    CONCLUSION

      The district court erred when it concluded that Brainerd failed to establish a

prima facie case of discrimination. In doing so, the court failed to view the evidence

in the light most favorable to Brainerd and considered Schlumberger’s evidence for

terminating her, an inquiry that should not take place in the first prong of McDonnell

Douglas. Nevertheless, because Brainerd failed to raise a genuine dispute of material




                                         - 16 -
fact as to whether Schlumberger’s articulated reason was pretextual, we affirm the

district court’s grant of summary judgment for Schlumberger.


                                                ENTERED FOR THE COURT



                                                Gregory A. Phillips
                                                Circuit Judge




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