United States Court of Appeals

For the Eighth Circuit

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No. 15-1930

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Farrell Cherry

lllllllllllllllllllll Plaintiff - Appellant

v.

Siemens Healthcare Diagnostics, Inc.

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the District of South Dakota - Rapid City

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 Submitted: May 16, 2016

Filed: July 21, 2016 

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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Plaintiff Farrell Cherry filed suit against his former employer, Siemens

Healthcare Diagnostics, Inc., alleging unlawful discrimination on the basis of race in
violation of Title VII of the Civil Rights Act. Cherry now appeals the district court’s1

grant of summary judgment in favor of Siemens. We affirm. 

Cherry, who is African American, worked for Siemens from 1981 until 2011,

when he was terminated as part of a reduction in force. Cherry worked in the Rapid

City, South Dakota, area, and for many years was the sole field service technician

serving this area. In 2008, Regional Service Manager Blaine Raymer became

Cherry’s supervisor. Also in 2008, Dave Eide began working as a second field service

technician for Siemens in the Rapid City area. Shortly after he started working for

Siemens, Eide began criticizing Cherry’s work performance to Raymer. On multiple

occasions over the next few years, Raymer and Eide2

 made various derogatory

comments to or about Cherry, acted disrespectfully toward Cherry, and told stories

and jokes that created a racially hostile environment for Cherry. On one particular

occasion at a company dinner in 2011, Raymer demonstrated both animosity toward

Cherry and favoritism toward Eide by commenting that he wished Cherry was more

like Eide. When Cherry asked for an explanation of this comment, Raymer paused

for a long moment before saying “ride a motorcycle.” Cherry said that this comment

created an uncomfortable atmosphere for everyone at the table, and that he left the

dinner shortly afterward. When asked at his deposition what he meant by this

comment, Raymer was unable to provide a clear explanation.

Siemens initiated a reduction in force in October 2011. Service Director David

Siebert, Raymer’s direct supervisor, was responsible for implementing the reduction

in force in the region including Rapid City. Siebert was required to identify a total of

five employees to be included in the reduction in force: two were employees who

chose to retire, and the remaining three—one of whom was Cherry—were the lowest1

The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for

the District of South Dakota.

2

Raymer and Eide are both Caucasian.

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performing employees in the region. Siebert’s assessment of performance was based

on the performance reviews done by the employees’ immediate supervisors—Raymer,

in Cherry’s case—from the last three years.

Raymer was not aware of the reduction in force until November 2, 2011, after

the employees to be laid off had been selected. Before then, at most Raymer was

aware that a reduction in force was likely. Raymer had, however, prepared Cherry’s

performance reviews, which Siebert relied on when selecting Cherry for layoff. In

2009, Raymer gave Cherry a rating of 3.21 (“achieved”) and provided generally

positive feedback on Cherry’s work performance. In 2010, Raymer gave Cherry a

rating of 2 (“partially achieved”) and was more critical of Cherry’s job performance. 

In June 2010, Cherry was given a performance improvement plan. In 2011, Raymer

again gave Cherry a rating of 2, and provided positive feedback on some aspects of

Cherry’s work while criticizing others. In 2011, Raymer also frequently complained

to Siebert of Cherry’s poor work performance, particularly as related to his completion

of administrative tasks. In September 2011, when Siebert asked Raymer for a list of

employees with current performance improvement plans, Raymer gave Siebert

Cherry’s name, even though Cherry’s performance improvement plan had expired in

August 2010. Throughout this period, there was additional mixed information about

Cherry’s and Eide’s relative job performance—for instance, though Eide complained

about Cherry’s job performance, an internal report in June 2011 ranked Eide as the

lowest-rated field engineer in the area. A later draft of the same report ranked Eide

second-lowest and Cherry lowest. Despite this, when Raymer suggested to a major

client that Cherry be replaced by Eide as their primary service technician, the client

flatly refused.

On November 4, 2011, Raymer informed Cherry that his employment with

Siemens was being terminated as part of the reduction in force. Cherry subsequently

filed suit against Siemens, alleging that his termination was based on race. In March

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2015, the district court granted summary judgment in favor of Siemens. Cherry now

appeals.

We review the district court’s grant of summary judgment de novo. Qamhiyah

v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 741 (8th Cir. 2009). A grant of

summary judgment is proper “if 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.” Fed.

R. Civ. P. 56(a). In applying this standard, we view the evidence in the light most

favorable to the non-moving party. Qamhiyah, 566 F.3d at 741. “To survive a motion

for summary judgment on [a] race discrimination claim,” a plaintiff must “either

‘present admissible evidence directly indicating unlawful discrimination,’” or “create

‘an inference of unlawful discrimination under the burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).’” Young v.

Builders Steel Co., 754 F.3d 573, 577 (8th Cir. 2014) (quoting Humphries v. Pulaski

Cty. Special Sch. Dist., 580 F.3d 688, 692 (8th Cir. 2009)).

Cherry argues that the district court erroneously failed to apply the “cat’s paw”

analysis, and therefore wrongly concluded that there was no direct evidence of racial

discrimination. Under a properly-applied cat’s paw theory of liability, Cherry argues,

he is entitled to the more favorable mixed motives analysis set out in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Stacks v. Sw. Bell Yellow Pages,

Inc., 996 F.2d 200, 201–02 (8th Cir. 1993). The cat’s paw analysis applies in

situations where “a biased subordinate, who lacks decisionmaking power, uses the

formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory

employment action.” Qamhiyah, 566 F.3d at 742 (quoting EEOC v. BCI Coca-Cola

Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)). The purpose of this rule

is to ensure that “an employer cannot shield itself from liability for unlawful

termination by using a purportedly independent person or committee as the

decisionmaker where the decisionmaker merely serves as the conduit, vehicle, or

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rubber stamp by which another achieves his or her unlawful design.” Id. (quoting

Richardson v. Sugg, 448 F.3d 1046, 1060 (8th Cir. 2006)). 

The difficulty with applying the cat’s paw theory in this case—setting aside the

fact that Cherry did not explicitly raise it before the district court—is that Raymer did

not actually know of the planned reduction in force at the time he took the allegedly

discriminatory actions against Cherry. Raymer’s negative performance reviews, in

combination with his and Eide’s inappropriate comments, may very well have been

discriminatory in nature. But it would simply not be possible for Raymer to “use

[Siebert] as a dupe in a deliberate scheme to trigger a discriminatory employment

action” when Raymer did not know in advance about the impending reduction in

force. Had Raymer known and then taken the actions he did with the intention of

ensuring that Cherry, rather than Eide, was laid off, perhaps the cat’s paw analysis

would be applicable. But that is not what happened here. See id. at 744 (comparing

Lacks v. Ferguson Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998) and

Kramer v. Logan County School District No. R-1, 157 F.3d 620 (8th Cir. 1998), and

noting that the cat’s paw rule applied where the subordinate’s discrimination had some

causal relationship to the adverse employment action). Because the evidence, viewed

in the light most favorable to Cherry, does not show a genuine issue of material fact

as to Siemens’ liability under a cat’s paw theory, the district court did not err by

proceeding to the McDonnell Douglas analysis.

Cherry alternatively argues that the district court erroneously found that the

evidence did not support a finding of pretext in the context of the McDonnell Douglas

analysis. Under McDonnell Douglas, once a plaintiff establishes a prima facie case

of discrimination, the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its actions. Richardson, 448 F.3d at 1060. If the

employer does so, the burden shifts back to the plaintiff to prove that the proffered

justification is a pretext for discrimination. Id. Here, the district court assumed that

Cherry had established a prima facie case, and Siemens’ proffered nondiscriminatory

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justification was the planned, company-wide reduction in force. Pretext may be

shown in a variety of ways. Here, Cherry argues that Siemens’ proffered explanation

is not credible, and that it is more likely that his termination was motivated by

discrimination. Though this may be true as to Raymer’s actions, there is no evidence

in the record to support a finding of pretext as to Siebert, who was the actual

decisionmaker. See Loeb v. Best Buy Co., 537 F.3d 867, 873 (8th Cir. 2008) (finding

no pretext where the individuals who demonstrated a discriminatory motive were not

those responsible for termination).

For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of Siemens.

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