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
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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.
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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
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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
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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
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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:
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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”
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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.
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