* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 18 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRENDA GREEN, Ed.D, Plaintiff - Appellant, No. 97-1263

v. (D.C. No. 95-S-1781) DR. ALBERT YATES, in his official capacity as President of Colorado State University; ELNORA GILFOYLE, in her official capacity as Academic Provost at Colorado State University; COLORADO STATE UNIVERSITY, a state institution through its Board; and COLORADO STATE BOARD OF AGRICULTURE, a body corporate, (D. Colo.)

Defendants - Appellees.

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and MURPHY , Circuit Judges.

This is an appeal from the grant of summary judgment in favor of all the defendants in a case involving allegations of race and gender discrimination in employment. In the trial court, Plaintiff Brenda G reen relied on both Title VII of1 Although Plaintiff asserts that “[t]here was a suff icient evidentiary basis for a reasonable fact finder to find that race and or gender was a substantial motivating factor,” Appellant’s Opening Br. at 9, s he does not support this statement with any relevant evidence or argumentati on. -2- the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42 U.S.C. § 1983 as the legal bases for her claims. On appeal, Plaintiff appears only to argue that she was entitled to a jury trial on her claim of racial discrimination and her Title VII retaliation claim. She has not argued in support of either her gender claims or her claims based on section 1983. 1 In any event, those issues were adequately addressed by the trial court, and we fin d no fault with its reasoning or conclusions on those matters. Plaintiff, an African-American female, was hired byColorado State University in 1993 as Associate Provost of Independ ent Studies and as an Associate Professor. Her position as Associate Pro vost was not renewed when it expired on December 31, 1994. Plaintiff was later informed that her teaching position also would not be renewed when it expired on May 15, 1995. The University claims that Plaintiff was discharged bec ause her performance in both jobs was inadequate. To support its stated nondisc riminatory reason, the University relies on many affidavits and deposition s which deal primarily with job evaluations. Both positive and negative evaluation s are included in the record. For example, the report of the Special Evaluation C ommittee appointed to review2 Plaintiff argues that the appointment of the Committee itself supports her

claim of discrimination. However, the record indicates that the University appointed special performance evaluation committees on three prior occasions during Defendant Elnora Gilfoyle’s tenure as Academ ic Provost. These committees conducted tenure revocation investigatio ns and performance evaluations of white male professors. See Appellee’s App. at 77-79. In light of this evidence, we do not think this evidence supports Plaintiff’s discrimination claim.

3 The district court also noted that Plaintiff “appea r[ed] to admit that she was not adequately qualified to perform her job without ‘mentoring.’” See Appellant’s App. at 278. However, beyond this obse rvation, the district court does not make a determinative finding as to whetherPlaintiff satisfied the prong of the prima facie case requiring her to show that she was qualified for and satisfactorily performing her jobs. -3- Plaintiff’s qualifications contains a negative evaluation of Plaintiff. 2 The record also includes an opinion letter by Dr. Darrell M. M illner, Professor of Black Studies at Portland State University in Portland, O regon, in which he discusses institutional racism and concludes that race was a cause of the decision not to renew Plaintiff’s employment contracts with the University. See Appellant’s App. at 157-62. The trial court did not specifical ly mention Dr. Millner’s letter in its order granting summary judgment. In its decision granting summary judgment to Defend ants, the trial court concluded that Plaintiff did not establish a prima facie case of racial discrimination. In particular, the trial court fou nd that Plaintiff did not raise genuine issues of material fact as to whether simil arly situated employees outside of the protected class were treated differently than Plaintiff. 3 In the alternative,-4-

the court concluded that Plaintiff failed to demons trate that Defendants’ nondiscriminatory reason for their decision not to renew Plaintiff’s employment contracts was pretextual. The court also found that Plaintiff did not establish a prima facie case of retaliation because she did notshow that “but for” filing a discrimination claim against Defendants she would n ot have been subjected to the alleged adverse employment action. See id. at 284. In this appeal, Plaintiff argues that the district court erred in granting summary judgment to Defendants on her Title VII cla ims of racial discrimination and retaliation for filing a civil rights complaint . With respect to her discrimination claim, Plaintiff contends that she e stablished a prima facie case of discrimination and that she presented sufficient ev idence of pretext to discredit Defendant’s proffered reason for failing to renew P laintiff’s employment contracts. Specifically, Plaintiff claims that the positive evaluations of her performance included in the record cast doubt on th e credibility of Defendants’ assertion that they decided not to renew her employ ment contracts due to her unsatisfactory performance. Plaintiff also argues that the trial court failed to evaluate the evidence on both her discrimination an d retaliation claims in a light most favorable to her. On her retaliation claim, f or example, Plaintiff asserts that shortly after she filed a discrimination complaint, Provost Gilfoyle recommended not renewing Plaintiff’s employment contracts. Although Plaintiff does not-5-

specifically so state, the implication of this asse rtion is that the temporal proximity of her complaint to the recommendation no t to renew her employment raises an inference of retaliation. Cases involving adverse action against a person of a protected class are always difficult, particularly at the summary judgm ent stage. Such cases require specific review of all relevant facts to determine whether there is a demonstrable nexus between the adverse employment action and, inthis case, race. Because the nexus can be proved by circumstantial as well as direct evidence, see United States Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711, 714 n.3 (1983), we must review the evidence de novo, drawing all infer ences in favor of the plaintiff, to determine whether the trial court was correct informing its conclusions and judgment. See Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1213 (10th Cir. 1998). After careful review, we are persuaded that, as a m atter of law, no reasonable inference can be drawn that Defendants’ actions were motivated by race or in retaliation for Plaintiff’s filing a dis crimination complaint. We believe that the trial court’s Order filed June 6, 1997, ac curately states and applies the law to the facts in the record. We endorse its opi nion in all respects except one. In determining that Plaintiff failed to show that D efendants’ reason for failing to renew her employment contracts was pretextual, the court relied in part on a4 In her brief, Plaintiff correctly states that the t rial court did not specifically

cite to Dr. Millner’s opinion letter. Nevertheless , the court did discuss, in general terms, testimony involving institutional racism. O n this subject, the court stated: -6- doctrine under which a presumption of non-racial an imus arises when the same person who hires the plaintiff also discharges the plaintiff within a short period of time. See Bradley v. Harcourt, Brace & Co. , 104 F.3d 267, 270-71 (9th Cir. 1996); Brown v. CSC Logic, Inc. , 82 F.3d 651, 658 (5th Cir. 1996); Buhrmaster v. Overnite Transp. Co. , 61 F.3d 461, 464 (6th Cir. 1995), cert. denied , 516 U.S. 1078 (1996); Rand v. CF Indus., Inc. , 42 F.3d 1139, 1147 (7th Cir. 1994); LeBlanc v. Great Am. Ins. Co. , 6 F.3d 836, 847 (1st Cir. 1993), cert. denied , 511 U.S. 1018 (1994); Lowe v. J.B. Hunt Transp., Inc. , 963 F.2d 173, 174-75 (8th Cir. 1992); Proud v. Stone , 945 F.2d 796, 797-98 (4th Cir. 1991). We have no occasion to reach that issue and, therefore, we nei ther address nor adopt it. We leave the doctrine to another day when it is square ly presented so that this court can give it the benefit of plenary consideration. To the trial court’s reasoning we add only that the existence of positive as well as negative employment evaluations is not, by itself, sufficient evidence from which to infer racial animus. Something more is re quired. That something more is missing from this case. Moreover, Dr. Millner’s opinion regarding the cause of Defendants’ decision not to renew Plaintiff’s emplo yment lacks a sufficient basis in the facts of this particular case to alter our judgment. 4“The issue to be determined is not whether institut ional racism exists in general,

but whether these Defendants in the particular deci sions challenged here intentionally discriminated against Plaintiff becau se of her protected class characteristics.” Appellant’s App. at 282. -7- For the foregoing reasons, the judgment of the tri al court is AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge