Appellate Case: 25-6061 Document: 32-1 Date Filed: 04/07/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 7, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
JUAN DOMINGUEZ,
Plaintiff - Appellant, No. 25-6061 v.
WEISER SECURITY SERVICES, INC.,
Defendant - Appellee. _________________________________
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:21-CV-00653-SLP) _________________________________
Mark Hammons, Hammons, Hurst & Associates, Oklahoma City, Oklahoma, for Plaintiff-Appellant.
Nathan L. Whatley, McAfee & Taft, A Professional Corporation, Oklahoma City, Oklahoma, for Defendant-Appellee. _________________________________
Before HARTZ, KELLY, and TYMKOVICH, Circuit Judges. _________________________________
TYMKOVICH, Circuit Judge. _________________________________
When Weiser Security Services fired Juan Dominguez in June 2020 it claimed
he had breached company protocols and shirked his duties relating to its COVID
policies. In the days prior to his termination, Dominguez reported his supervisor for
allegedly giving preferential treatment to female employees. Dominguez believes Appellate Case: 25-6061 Document: 32-1 Date Filed: 04/07/2026 Page: 2
Weiser fired him in retaliation for that report and insists its performance criticisms
are pretextual. He sued Weiser for unlawful retaliation under Title VII of the Civil
Rights Act of 1964. The district court granted Weiser’s motion for summary
judgment because Dominguez had not offered sufficient evidence of causation for his
prima facie case.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. To prove
causation on a retaliation claim, a plaintiff must show either that the decisionmaker
on the adverse employment action knew of his protected activity, or that a person
harboring retaliatory animus knew and used the decisionmaker as a cat’s paw.
Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007). Dominguez has
done neither. Instead, he invites the factfinder to fill in the gaps with speculation
about what his supervisor and branch manager knew. The evidentiary bar at this
stage is low, but it is still Dominguez’s to hurdle. He has not, and the district court
correctly granted summary judgment for Weiser.
I. Background
A. Factual Background
Weiser Security Services is a contract security company. In 2018, Halliburton
Company engaged Weiser to provide security services at its location in Duncan,
Oklahoma. Around that time, Weiser hired Juan Dominguez as a guard and
supervisor with responsibility for overseeing day shift security officers at the Duncan
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site. 1 As part of his duties, Dominguez was expected to provide medical and safety-
related training to the officers under his charge. Dominguez reported to Weiser’s site
manager, Joseph Yates, who reported to Mike Strickland, a Weiser branch manager
based in Fort Worth, Texas. At all relevant times, Halliburton’s security manager for
the Duncan facility, Chip Ford, oversaw Weiser’s contract performance.
From late 2019 to early 2020, Yates took medical leave and Dominguez
assumed some of Yates’s normal duties. During Yates’s absence, Dominguez told
Ford and Strickland that he believed Yates gave preferential treatment to female
employees. When Yates returned to work in early 2020, Weiser transferred his
responsibility for employee-relations issues to Dominguez. Around the same time,
Weiser selected Dominguez for its first and only “Officer of the Month” award.
In April 2020, another security guard at the Duncan site, Robert Culberson,
contacted Weiser’s Human Resources Department to complain that Yates had
discriminated against him because of his race. Culberson is black and claimed Yates
had withheld advancement opportunities from him on that basis. Weiser’s Vice
President of Human Relations, Charlene Lee-Sutherlin, notified Strickland and Ford
of Culberson’s complaint and initiated an investigation. Lee-Sutherlin traveled to
Duncan to conduct in-person interviews with Weiser employees on June 10 and 11.
1 Dominguez had worked at the facility as a security officer and shift supervisor for the previous contract-holder since 2010. When Weiser took over the contract, it hired Dominguez into an equivalent role.
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Dominguez met with Lee-Sutherlin on June 10 as part of the investigation.
While the focus of their conversation was Culberson’s race-discrimination complaint,
Dominguez told Lee-Sutherlin that he believed Yates had shown favoritism to female
guards, especially those who flirted with him. Those comments echoed the remarks
Dominguez made to Strickland and Ford while Yates was on medical leave. Lee-
Sutherlin did not tell Yates or Strickland about Dominguez’s comments, and
Dominguez denies discussing the content of the conversation with anyone else.
Around the same time, Yates and Dominguez clashed over Dominguez’s job
performance. On June 2, Yates told Dominguez they needed to “get aligned” and
“start working together” because failing to do so would cost “either [Dominguez’s]
or [Yates’s] job.” App. 94. Dominguez claims Yates also admitted he treated
women better than men and that he knew he would be investigated because of it.
App. 271. Dominguez and Yates also disagreed about Dominguez’s compliance with
a mask mandate Weiser implemented in response to the COVID-19 pandemic. On
June 5, Yates saw Dominguez in the security control room without a mask and
reminded him to wear one. Dominguez replied that he would do so “going forward.”
App. 74. Later that day, Dominguez left work to get a COVID test after learning he
was potentially exposed to the virus by a family member. He told Yates he needed to
leave for a personal matter and did not report his suspected exposure until after
receiving a negative test result that evening.
In early June, Halliburton decided to implement temperature checks for all
people entering the Duncan facility. Weiser security guards would perform the
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checks and needed training before the rollout on June 15. Yates was responsible for
training the shift supervisors who, in turn, would train the other guards. Yates
reviewed the training with Dominguez and Justin Chasteen, another day shift
supervisor, for about ten-to-fifteen minutes on June 8. On June 10—the same day
Dominguez met with Lee-Sutherlin—Yates emailed the shift supervisors to remind
them that all officers needed to be trained by the next day. Yates then called
Dominguez and yelled at him about the need to get the training done.
The next day, June 11, Lee-Sutherlin interviewed Yates as part of her
investigation into Culberson’s race-discrimination complaint. Lee-Sutherlin
informed Yates “he was part of the investigation and a complaint,” App. 301, and
Yates relayed his belief that he was experiencing issues with Dominguez and that
Dominguez did not like him, App. 311.
On June 12, Yates told Dominguez and Chasteen they needed to retrain all the
officers. Yates also sent Strickland a copy of his June 10 email to the supervisors,
explaining he had sent it after learning Dominguez had not trained three officers. At
that time, Ford told Strickland he was upset that the guards had not been sufficiently
trained, and he was unhappy about Dominguez’s apparent failure to wear a mask in
the security control room and to promptly report his potential COVID exposure on
June 5.
To ensure the officers would be ready for the June 15 rollout, Yates,
Strickland, and Ford went to the Duncan site on Saturday, June 13, to complete the
training. Dominguez was typically off-duty on Saturdays and did not attend. Yates
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told Strickland that he had instructed Dominguez to be there. Dominguez says he
was not told to attend, and Weiser has not offered admissible evidence to the
contrary.
Strickland says he made the decision to fire Dominguez on June 16 based on:
(1) Ford’s request that Dominguez be removed from the contract, (2) his belief that
Dominguez had not adequately trained his officers on temperature check procedures,
(3) his belief that Dominguez ignored COVID protocols, (4) his perception that
Dominguez had recent performance and attitude problems, and (5) his belief that
Dominguez skipped the Saturday training without notice. App. 48–49. Yates
completed and signed Dominguez’s termination form, which indicated Strickland
terminated Dominguez on June 19 for “continued performance issues,” “not properly
training officers for temperature checks,” and “not coming in to assist with training
when told by management.” App. 373.
B. Procedural Background
Dominguez sued Weiser under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3(a), for unlawfully retaliating against him for reporting Yates’s
alleged sex discrimination to Lee-Sutherlin. According to Dominguez, Weiser’s
stated reasons for firing him are pretexts to cover its retaliatory motive.
Weiser moved for summary judgment on the grounds that Dominguez had not
offered evidence of causation to support his prima facie case of retaliation under the
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McDonnell Douglas framework. 2 The district court agreed and granted the motion.
Critically, the court found Dominguez could not prove that Strickland, the
decisionmaker on his firing, knew about his report to Lee-Sutherlin on June 10. App.
485–87. The court also rejected Dominguez’s cat’s paw theory, finding Dominguez
could not prove that Yates, the alleged biased actor, knew about his sex
discrimination report. App. 487–92. According to the district court, without
sufficient evidence that the relevant actors knew about the protected activity,
Dominguez could not prove his firing was motivated by retaliatory animus.
App. 492.
Dominguez now appeals the court’s grant of summary judgment for Weiser.
II. Discussion
Dominguez argues that the district court was wrong about the causation
element of his prima facie case. 3 He contends that a jury could infer that Strickland
and Yates knew about his report to Lee-Sutherlin, and the court overlooked that
possibility because it improperly drew inferences against him, the non-moving party.
Opening Br. 22–23. Ultimately, Dominguez’s case hinges on whether he can prove
2 The district court assumed, without deciding, that Dominguez’s report was protected activity satisfying the first element of a prima facie case. App. 483 n.17. And it determined a termination was clearly an adverse employment action that satisfies the second element. App. 482 n.16. 3 Neither party contests the district court’s assumption that Dominguez’s report was protected activity or its holding that his termination was an adverse employment action.
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either Strickland or Yates knew about his protected activity. We analyze his
retaliation theories in turn.
A. Standard of Review
“We review a district court’s grant of summary judgment de novo, using the
same standard applied by the district court pursuant to Fed. R. Civ. P. 56(a).” Cillo
v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013). When applying this
standard, “[w]e must ‘view facts in the light most favorable to’ the non-moving
parties, . . . resolving all factual disputes and reasonable inferences in their favor.”
Id. (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)). “Summary
judgment must be granted if ‘there is no genuine dispute as to any material fact’ and
the moving party is ‘entitled to judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(a)).
“For dispositive issues on which the [nonmovant] will bear the burden of proof
at trial, he must ‘go beyond the pleadings and designate specific facts so as to make a
showing sufficient to establish the existence of an element essential to [his] case in
order to survive summary judgment.’” Cardoso v. Calbone, 490 F.3d 1194, 1197
(10th Cir. 2007) (alteration in original) (quoting Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)). The nonmovant must “do more than simply show that there
is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac
Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The relevant inquiry is
whether the evidence presents a sufficient disagreement to require submission to a
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jury or whether it is so one-sided that one party must prevail as a matter of law.”
Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1179 (10th Cir. 2007) (citation
modified).
B. Title VII Retaliation Prima Facie Case
Title VII makes it unlawful for an employer “to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Additionally, an
employer may not retaliate against an employee “because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” Id. § 2000e-3(a).
“Title VII forbids retaliation against employees who voice opposition to, or
participate in an investigation or proceeding alleging, an unlawful employment
practice by his or her employer.” Montes, 497 F.3d at 1176 (citing 42 U.S.C.
§ 2000e-3(a)). In the absence of direct evidence, a Title VII retaliation claim is
evaluated under the McDonnell Douglas framework. Id. “In order to state a prima
facie case for retaliation under McDonnell Douglas’s first step, [Dominguez] must
demonstrate that (1) [he] engaged in protected opposition to discrimination; (2) [he]
suffered an adverse action that a reasonable employee would have found material;
and (3) a causal nexus exists between [his] opposition and the employer’s adverse
action.” Id.
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C. Dominguez’s Direct Retaliation Theory
One pathway to prove causation is through the person (or people) who made
the final decision to take the adverse employment action. Under this direct
retaliation framework, proving causation requires Dominguez to “show that the
decisionmaker[] took action against him out of a desire to retaliate for his formal
discrimination complaints.” Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019)
(citing Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)).
“As a prerequisite to this showing, [Dominguez] must first come forward with
evidence from which a reasonable factfinder could conclude that those who decided
to [take adverse action against him] had knowledge of his protected activity.” Id.
(second alteration in original) (quoting Hinds, 523 F.3d at 1203). “[Dominguez]
must therefore point to evidence that those who acted against him knew of his formal
complaints.” Id.
There is no legitimate dispute that Strickland was the ultimate decisionmaker
on Dominguez’s termination. Dominguez suggests a jury could infer that Yates was
the true decisionmaker but bases that assertion on his belief that Yates manipulated
Strickland into making the termination. 4 App. 183–86. But the claim that a biased
4 Dominguez also implies in his opening brief that a jury could decide Yates was the final decisionmaker because Yates signed the termination form. Opening Br. 4. That theory is both late and underdeveloped, and we need not consider it. See Utah Animal Rts. Coal. v. Salt Lake Cnty., 566 F.3d 1236, 1244 (10th Cir. 2009). Even so, the termination form says, “Mike Strickland came in to do terminations for continued performance issues,” indicating Yates was merely documenting an action
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actor manipulated the decisionmaker is a cat’s paw theory; not evidence that the actor
was the real decisionmaker. Dominguez presents no evidence that Yates—or anyone
other than Strickland—had authority to fire him. In fact, his opposition to summary
judgment concedes the point when it alleges, “[b]ased on the false complaints of
Yates, Strickland made a decision to fire Dominguez on June 16.” App. 185
(emphasis added).
Consequently, Dominguez must prove Strickland was aware of his sex
discrimination report to Lee-Sutherlin to succeed on his direct retaliation theory.
Montes, 497 F.3d at 1176. He has not. Strickland says he was unaware of what
Dominguez told Lee-Sutherlin when he made the termination decision. App. 49.
Both Lee-Sutherlin and Dominguez deny ever telling Strickland the contents of their
conversation. App. 117; App. 469. So the only people who knew Dominguez made
a sex discrimination complaint on June 10 did not relay that information to
Strickland. Further, Strickland knew the subject of Lee-Sutherlin’s investigation was
alleged racial discrimination by Yates because Weiser’s HR had given Strickland a
copy of Culberson’s complaint. App. 293. Asking a jury to infer that Strickland
knew Dominguez made a sex discrimination complaint merely because Dominguez
was interviewed as part of an unrelated race discrimination investigation invites
speculation. And “bare speculation” about knowledge is not enough to overcome
taken by Strickland. App. 373. Given the form’s own description of events, it cannot support a finding that Yates was the real decisionmaker.
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summary judgment. Lindsay v. Denver Pub. Schs., 88 F.4th 1323, 1328–29 (10th
Cir. 2023).
Figure 1: Causal break in Dominguez’s direct retaliation theory
Dominguez tries to work around these evidentiary failures by claiming Yates
knew about the report and told Strickland. Opening Br. 33. As we discuss in the
cat’s paw inquiry below, we determine there is insufficient evidence to support a
finding that Yates knew Dominguez reported him for sex discrimination. But even
assuming Yates knew about Dominguez’s comment to Lee-Sutherlin, we still find in
Weiser’s favor. Dominguez concedes that he has no direct evidence Yates told
Strickland about the June 10 report. Reply Br. 15. Strickland testified that no one
(including Yates) told him about the sex discrimination allegation. App. 49. And
Dominguez did not develop any evidence from Yates (by deposition or otherwise)
about a relevant conversation between Yates and Strickland. Instead, he argues a
jury could infer Yates “shared his belief” that Dominguez reported him for sex
discrimination because Strickland and Yates were “in regular communication . . .
about [him]” between June 10 and June 19. Opening Br. 33. But evidence that a
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supervisor with knowledge of protected activity had the opportunity to tell a
decisionmaker is “not a substitute for evidence that [he] did so.” Lindsay, 88 F.4th at
1328 (quoting Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d 1048, 1054 (11th Cir.
2020)). Dominguez has the burden of proving Strickland knew he reported Yates for
sex discrimination; and evidence of Strickland’s discussions with Yates about
Dominguez’s performance “is support for only speculation, not a finding, that
[Strickland] had knowledge.” Id. at 1328–29.
Finally, Dominguez argues we should infer causation because the reason
Strickland fired him—his failure to attend the weekend training session—was
fabricated and therefore pretextual. The district court declined to consider
Dominguez’s pretext evidence, reasoning that the failure to prove Strickland knew
about the protected activity made any alleged pretext irrelevant. We agree with that
approach. Pretext evidence “may be considered under appropriate circumstances in
assessing the prima facie case.” Adamson v. Multi Cmty. Diversified Servs., Inc.,
514 F.3d 1136, 1144 (10th Cir. 2008) (citing Mickelson v. N.Y. Life Ins. Co.,
460 F.3d 1304, 1317 (10th Cir. 2006)). But a plaintiff has “the burden of
establishing an inference of actionable discriminatory animus in the first instance.”
Id. Otherwise, “evidence of ‘pretext’ merely establishes that an employer’s stated
reason for its actions may not be its real or only reason.” Id. “It does not establish
that the real or ‘but-for’ reason was unlawful [retaliation].” Id. If Strickland did not
know about Dominguez’s sex discrimination report, there is no way retaliation for the
report could have been “the real or ‘but-for’ reason” for the termination decision.
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See id.; see also Montes, 497 F.3d at 1176. So even assuming Strickland’s reasons
for firing Dominguez were pretextual, Dominguez has not established causation.
In sum, Dominguez has not put forward adequate evidence for a jury to find
that Strickland knew about his sex discrimination report to Lee-Sutherlin. Since
Strickland did not know about the relevant protected activity, his decision to
terminate Dominguez could not have been retaliation for that activity.
D. Dominguez’s Cat’s Paw Theory
Dominguez argues Weiser is liable for retaliation even if Strickland was
unaware of his protected activity because Yates knew about it and caused his
termination. Opening Br. 43. In making that argument Dominguez invokes the cat’s
paw theory of causation, 5 by which “the biased motive of a subordinate can be
imputed to the unbiased, final decisionmaker.” Byrnes v. St. Catherine Hosp.,
158 F.4th 1107, 1114 (10th Cir. 2025) (citing EEOC v. BCI Coca-Cola Bottling Co.
of L.A., 450 F.3d 476, 484–86 (10th Cir. 2006)).
5 The term “cat’s paw” comes from a story in Aesop’s Fables that first entered employment discrimination law in 1990. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). As described by Justice Scalia,
In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward. Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011).
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An employer is liable for retaliation under the cat’s paw theory when an
employee who harbors discriminatory animus knows about protected activity and
uses a decisionmaker to accomplish his “own biased designs.” Montes, 497 F.3d
at 1176. To survive summary judgment, Dominguez must show a reasonable jury
could find “(1) [Yates] took action motivated by retaliatory animus, (2) [he] intended
the action to cause a materially adverse action, and (3) [his] action was a but-for
cause of the intended adverse action.” Byrnes, 158 F.4th at 1121.
The district court assumed that Dominguez’s evidence that Yates lied to
Strickland about telling Dominguez to attend the Saturday training could satisfy the
second and third elements of the cat’s paw inquiry. App. 488–89. Still, the court
held Dominguez’s argument failed because he could not show Yates knew about the
report to Lee-Sutherlin. And if Yates did not know, then his actions to get
Dominguez fired could not have been motivated by a desire to retaliate for the
relevant protected activity. Thus, Yates’s actions were not motivated by retaliatory
animus and Dominguez could not prove the first element of his cat’s paw theory. We
agree.
Cat’s paw causation depends on a showing that the alleged biased actor knew
about the protected activity. Montes, 497 F.3d at 1176. Otherwise, there is no
retaliatory link between that protected activity and the adverse employment action.
See id. Dominguez argues a jury could conclude Yates knew about his June 10 report
based on three pieces of evidence. First, Dominguez’s deposition retells a
conversation that he says took place between Yates and himself before he was
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terminated. According to Dominguez, sometime in “the weeks prior” to June 10,
Yates told Dominguez that they needed to get aligned and start working together or
one of them would lose his job. App. 94. Dominguez also claims Yates, “in the
context of that conversation,” said he knew “complaints about gender treatment had
been made against him,” admitted he “treated women better than . . . men,” and said
he knew he would be investigated. 6 App. 270–71. Dominguez says a jury could
reasonably view these remarks “as a threat against cooperating in the investigation.”
Opening Br. 43.
The problem with Dominguez’s argument is that he has not alleged Weiser
retaliated against him for cooperating in the investigation into Culberson’s complaint.
Rather, his complaint claims the retaliation was “for reporting and opposing sexual
harassment and gender discrimination . . . [o]n or around June 10, 2020.” App. 6–7.
So the relevance of whether a jury could find Yates’s remarks constituted a threat
6 In his motion opposing summary judgment, Dominguez claimed Yates told him: “I know you complained about me to Robert and Mike, and we better get aligned . . . or it was going to be my job on the line or his [Yates’] job on the line.” App. 183 (alterations in original). The district court explained that this claim “cobbles together part of [Dominguez’s] own deposition testimony with a question from counsel posed 35 pages later to make it appear as if Mr. Yates’s comments about getting aligned were tied to [Dominguez’s] earlier complaints to Mr. Strickland and Mr. Bullock.” App. 490 n.24. In truth, Dominguez’s testimony “does not create the link that his counsel suggests.” App. 490 n.24. The court presumed this was an oversight rather than an attempt to mislead.
Unfortunately, Dominguez’s counsel has committed the same error on appeal. See Opening Br. 15 (“Yates also said: ‘I know you complained about me to Robert and Mike, and we better get aligned . . .or it was going to be my job on the line or his [Yates’] job on the line.’”). 16 Appellate Case: 25-6061 Document: 32-1 Date Filed: 04/07/2026 Page: 17
against cooperating in the investigation is unclear. What matters is whether Yates
knew Dominguez reported sex discrimination as part of the investigation on June 10.
Thus, the threat is relevant only if it supports an inference that Yates’s expectations
converted into knowledge of Dominguez’s protected activity.
We find such an inference is untenable, even accepting Dominguez’s account
of the conversation. The conversation took place before Dominguez’s protected
activity and there is no evidence that Yates knew he was part of an actual, ongoing
investigation until his conversation with Lee-Sutherlin on June 11. See App. 491.
As the district court noted, Yates’s beliefs in the weeks before the on-site
investigation shed little light, if any, on what Yates believed—let alone knew—about
the investigation once Lee-Sutherlin started interviewing employees. Consequently,
a jury would have to speculate that Yates’s expectations would lead him to
knowledge that Dominguez reported him for sex discrimination, despite the
investigation being unrelated to that claim. To credit Dominguez’s contention, we
need some evidence that Yates’s pre-investigation suspicions led him to conclude
that Dominguez actually reported sex discrimination on June 10.
Dominguez tries to make this showing through two other pieces of cat’s paw
evidence, but neither gets him across the line. The first is a phone call from Yates to
Dominguez on the evening of June 10 in which Yates yelled at Dominguez about his
failure to train his officers. Dominguez argues the call “could reasonably be viewed
as anger over the fact that Dominguez had consented to be interviewed.” Opening
Br. 43. But neither Dominguez nor Yates mentioned the investigation or that
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Lee-Sutherlin had interviewed Dominguez earlier in the day. The phone call came on
the heels of Yates’s email to shift supervisors complaining about the training
deficiencies, and training was the only topic discussed. Training was undisputably a
live issue at the time, with Halliburton’s deadline looming and Strickland and Ford
pressuring Weiser’s Duncan employees to be ready by June 15. On the other hand,
Dominguez identifies no evidence linking the phone call to his interview with
Lee-Sutherlin or his remarks therein. Without such evidence, and in the face of the
plausible explanation that the call was motivated by the training issues, Dominguez
asks a jury to speculate that Yates was mad about the interview.
More fundamentally, Dominguez’s line of argument cannot support the
inference he asks the jury to make. Dominguez’s complaint is limited to his report of
sex discrimination on June 10. Even if the angry phone call were proof that Yates
was upset by Dominguez’s participation in the race-discrimination investigation, it
would not prove a link to the relevant protected activity. That requires some
evidence that Yates was upset not just about Dominguez’s cooperation, but
specifically about Dominguez’s report of sex discrimination. Dominguez points to
no such evidence and, once again, invites mere speculation.
Dominguez’s third, and final, line of evidence is Yates’s apparent fabrication
of an accusation that Dominguez failed to attend the Saturday training session.
According to Dominguez, that fabrication is proof of retaliatory animus that satisfies
the first cat’s paw element. Opening Br. 43. Dominguez is right that “retaliatory
animus may be shown by evidence of pretext.” Byrnes, 158 F.4th at 1121. But the
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evidence’s relevance depends on Dominguez making the predicate showing that
Yates knew about his protected activity. See Montes, 497 F.3d at 1176. Yates’s false
accusation is certainly evidence of pretext for some bad motive. But, as the district
court recognized, it could prove “something more benign” than retaliation for
protected activity, “like mere dislike.” App. 492. Given the circumstances, it could
also be an attempt by Yates to shift blame for training shortfalls, or any number of
other hidden purposes. Contrary to Dominguez’s contention that the district court
drew an inference against him, recognition of these alternatives merely reflects that,
without more evidence, Yates’s true motive is a matter of speculation. And without
evidence that Yates was aware of Dominguez’s remarks, the fabrication alone cannot
prove Yates acted in retaliation for those remarks. See Adamson, 514 F.3d at 1144
(warning against “conflating evidence tending to cast doubt on an employer’s stated
reasons for an employment decision with the burden of establishing an inference of
actionable discriminatory animus in the first instance”).
19 Appellate Case: 25-6061 Document: 32-1 Date Filed: 04/07/2026 Page: 20
The following chart shows the break in causation under the cat’s paw theory:
Figure 2: Causal break in Dominguez’s Cat’s Paw theory
Dominguez has not produced sufficient evidence to support a reasonable
inference that Yates knew about his remarks to Lee-Sutherlin on June 10. And Yates
could not have used Strickland to retaliate for protected activity that Yates did not
know about. See Montes, 497 F.3d at 1176. As a result, Dominguez’s cat’s paw
theory for Weiser’s liability fails.
III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment.