F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 11 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
LARRY N. CHAMBERS, SR.,
Plaintiff-Appellant,
v. No. 97-1468 (D.C. No. 97-N-125) BYRON MCCLENNEY, individually (D. Colo.) and in his official capacity as President of the Community College of Denver; JERRY WARTGOW, individually and in his official capacity as President of the State Board for Colorado Community Colleges and Occupational Education; MARY ELLEN MCELDOWNEY, individually and in her official capacity as Vice-President for Legal Affairs for the State Board of Colorado Community Colleges and Occupational Education; GLENDA BARRY; ROLF ANDERSON; SUSAN AYRES DAVIES; JOHN FREW; JULIANNE HAEFELI; WILLIAM HORNBY; KRISTY SCHLOSS; RALPH TORRES; RAYMOND WILDER, in their official capacities as voting members of the State Board for Community Colleges and Occupational Education; COLORADO STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION,
Defendants-Appellees. ORDER AND JUDGMENT *
Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff appeals from summary judgment entered in favor of defendants in
this employment discrimination action. Following his termination as Human
Resource Director for the Community College of Denver (CCD), plaintiff brought
suit for injunctive relief, back pay, and damages against CCD and its president, as
well as others less directly involved in the operative events. Although plaintiff
initially pled several statutory causes of action, during the proceedings he has
narrowed his claims to age and race discrimination, and related retaliation, under
Title VII of the Civil Rights Act of 1964.
The district court held (1) plaintiff, a black man over the age of forty who
was fired and replaced by a younger Asian woman within a year of complaining
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- about his allegedly discriminatory salary, demonstrated a prima facie case of
discrimination/retaliation; (2) defendants advanced a legitimate reason for his
termination, namely substantial and vocal faculty/staff dissatisfaction with his
performance as human resource director; and (3) plaintiff failed to present
evidence sufficient to create a triable issue that this reason was pretextual.
See Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1215
(10th Cir. 1998) (summarizing applicable burden-shifting analysis). We review
this determination de novo, see id. at 1213, and affirm.
We agree with the district court that significant criticism by the personnel
whom plaintiff was employed to assist and advise constituted a legitimate reason
for termination. We turn, then, to the issue of pretext, which is the focus of this
appeal. The district court explicitly rejected two primary arguments advanced by
plaintiff on this issue. First, regarding an alleged pay disparity between plaintiff
and some other CCD administrators, the court held plaintiff had not shown that
those paid more were situated similarly enough to permit probative comparison.
The court also noted that a pay disparity would not, in any event, undercut the
reason advanced for plaintiff’s termination . 1 Plaintiff insists the evidence was
relevant to his retaliatory discharge claim, because it was his complaining about
1 On appeal, plaintiff does not contend the pay disparity is, in itself, a distinct claim that should have been addressed as such by the district court. He argues it solely as a basis for finding pretext in connection with his termination.
-3- the pay disparity that allegedly prompted defendants to fire him. See Appellant’s
Opening Br. at 18. Plaintiff mixes evidentiary apples and oranges here. His
effort to justify complaints over pay equity do not prove the distinct proposition
that those complaints--warranted or not--led to his termination.
The district court also rejected plaintiff’s attack on the unfavorable staff
survey completed shortly before his termination. Plaintiff contended it was
improperly designed and interpreted, and claimed the complaints elicited about
his performance were unfounded and racially motivated. The court correctly held
that the latter claim reflected only plaintiff’s unsubstantiated suspicions, which
were not rendered admissible or probative simply by inclusion in a rambling
thirty-seven page “affidavit.” See Murray v. City of Sapulpa , 45 F.3d 1417, 1422
(10th Cir. 1995) (“To survive summary judgment, nonmovant’s affidavits must be
based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient.”) (quotation
omitted); Conaway v. Smith , 853 F.2d 789, 794 (10th Cir. 1988) (to defeat
summary judgment, “a party cannot rest . . . on speculation, or on suspicion”).
As for the design/use of the survey, aside from an inadmissible hearsay
comment from an alleged expert about the lack of a written methodology,
plaintiff’s challenge consisted of (1) a generic complaint that it was not
conducted in accordance with his wishes, and (2) his unsubstantiated opinion that
-4- biases of negative respondents skewed the results and gave a false impression of
his general standing with staff. We agree with the district court that for the
purpose of showing pretext, this evidence was incompetent, see authorities cited
immediately above, and/or insufficiently probative, see McKnight v. Kimberly
Clark Corp. , 149 F.3d 1125, 1129 (10th Cir. 1998) (evidence showing only
employer’s reliance on erroneous information insufficient to defeat summary
judgment at pretext stage); see also Reynolds v. School Dist. No. 1 , 69 F.3d 1523,
1535-36 (10th Cir. 1995) (true motivating reason not shown to be pretext merely
because, in hindsight, it involved poor business judgment).
Plaintiff argues that several additional items of evidence, not addressed by
the district court, bolster his showing of pretext. We have reviewed these and
conclude they do not undermine the validity of the summary judgment entered for
defendants. For example, he notes the last routine evaluation by his immediate
supervisor found him “highly successful,” and he argues that subsequent use of a
survey to assess the staff’s views was an improper deviation from standard
practice. The performance evaluation, unsigned by the CCD president (defendant
Byron McClenney) who fired plaintiff, and relating in any event to a time period
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 11 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
LARRY N. CHAMBERS, SR.,
Plaintiff-Appellant,
v. No. 97-1468 (D.C. No. 97-N-125) BYRON MCCLENNEY, individually (D. Colo.) and in his official capacity as President of the Community College of Denver; JERRY WARTGOW, individually and in his official capacity as President of the State Board for Colorado Community Colleges and Occupational Education; MARY ELLEN MCELDOWNEY, individually and in her official capacity as Vice-President for Legal Affairs for the State Board of Colorado Community Colleges and Occupational Education; GLENDA BARRY; ROLF ANDERSON; SUSAN AYRES DAVIES; JOHN FREW; JULIANNE HAEFELI; WILLIAM HORNBY; KRISTY SCHLOSS; RALPH TORRES; RAYMOND WILDER, in their official capacities as voting members of the State Board for Community Colleges and Occupational Education; COLORADO STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION,
Defendants-Appellees. ORDER AND JUDGMENT *
Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff appeals from summary judgment entered in favor of defendants in
this employment discrimination action. Following his termination as Human
Resource Director for the Community College of Denver (CCD), plaintiff brought
suit for injunctive relief, back pay, and damages against CCD and its president, as
well as others less directly involved in the operative events. Although plaintiff
initially pled several statutory causes of action, during the proceedings he has
narrowed his claims to age and race discrimination, and related retaliation, under
Title VII of the Civil Rights Act of 1964.
The district court held (1) plaintiff, a black man over the age of forty who
was fired and replaced by a younger Asian woman within a year of complaining
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2- about his allegedly discriminatory salary, demonstrated a prima facie case of
discrimination/retaliation; (2) defendants advanced a legitimate reason for his
termination, namely substantial and vocal faculty/staff dissatisfaction with his
performance as human resource director; and (3) plaintiff failed to present
evidence sufficient to create a triable issue that this reason was pretextual.
See Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1215
(10th Cir. 1998) (summarizing applicable burden-shifting analysis). We review
this determination de novo, see id. at 1213, and affirm.
We agree with the district court that significant criticism by the personnel
whom plaintiff was employed to assist and advise constituted a legitimate reason
for termination. We turn, then, to the issue of pretext, which is the focus of this
appeal. The district court explicitly rejected two primary arguments advanced by
plaintiff on this issue. First, regarding an alleged pay disparity between plaintiff
and some other CCD administrators, the court held plaintiff had not shown that
those paid more were situated similarly enough to permit probative comparison.
The court also noted that a pay disparity would not, in any event, undercut the
reason advanced for plaintiff’s termination . 1 Plaintiff insists the evidence was
relevant to his retaliatory discharge claim, because it was his complaining about
1 On appeal, plaintiff does not contend the pay disparity is, in itself, a distinct claim that should have been addressed as such by the district court. He argues it solely as a basis for finding pretext in connection with his termination.
-3- the pay disparity that allegedly prompted defendants to fire him. See Appellant’s
Opening Br. at 18. Plaintiff mixes evidentiary apples and oranges here. His
effort to justify complaints over pay equity do not prove the distinct proposition
that those complaints--warranted or not--led to his termination.
The district court also rejected plaintiff’s attack on the unfavorable staff
survey completed shortly before his termination. Plaintiff contended it was
improperly designed and interpreted, and claimed the complaints elicited about
his performance were unfounded and racially motivated. The court correctly held
that the latter claim reflected only plaintiff’s unsubstantiated suspicions, which
were not rendered admissible or probative simply by inclusion in a rambling
thirty-seven page “affidavit.” See Murray v. City of Sapulpa , 45 F.3d 1417, 1422
(10th Cir. 1995) (“To survive summary judgment, nonmovant’s affidavits must be
based upon personal knowledge and set forth facts that would be admissible in
evidence; conclusory and self-serving affidavits are not sufficient.”) (quotation
omitted); Conaway v. Smith , 853 F.2d 789, 794 (10th Cir. 1988) (to defeat
summary judgment, “a party cannot rest . . . on speculation, or on suspicion”).
As for the design/use of the survey, aside from an inadmissible hearsay
comment from an alleged expert about the lack of a written methodology,
plaintiff’s challenge consisted of (1) a generic complaint that it was not
conducted in accordance with his wishes, and (2) his unsubstantiated opinion that
-4- biases of negative respondents skewed the results and gave a false impression of
his general standing with staff. We agree with the district court that for the
purpose of showing pretext, this evidence was incompetent, see authorities cited
immediately above, and/or insufficiently probative, see McKnight v. Kimberly
Clark Corp. , 149 F.3d 1125, 1129 (10th Cir. 1998) (evidence showing only
employer’s reliance on erroneous information insufficient to defeat summary
judgment at pretext stage); see also Reynolds v. School Dist. No. 1 , 69 F.3d 1523,
1535-36 (10th Cir. 1995) (true motivating reason not shown to be pretext merely
because, in hindsight, it involved poor business judgment).
Plaintiff argues that several additional items of evidence, not addressed by
the district court, bolster his showing of pretext. We have reviewed these and
conclude they do not undermine the validity of the summary judgment entered for
defendants. For example, he notes the last routine evaluation by his immediate
supervisor found him “highly successful,” and he argues that subsequent use of a
survey to assess the staff’s views was an improper deviation from standard
practice. The performance evaluation, unsigned by the CCD president (defendant
Byron McClenney) who fired plaintiff, and relating in any event to a time period
prior to the crisis in staff confidence prompting (and reflected by) the survey,
does not imply any motive other than an attempt to deal with that crisis. And
-5- there is no indication that the survey, a practical response to an evident problem,
violated any specified personnel rule or policy.
Plaintiff claims a nonparty supervisor told him that his non-minority
predecessor had also been the target of complaints, but these were ignored by
McClenney. In addition to the obvious hearsay problem, this statement, which
does not specify the source, subject, severity, or frequency of the ignored
complaints, hardly constitutes competent probative evidence of disparate
treatment. See Murray , 45 F.3d at 1422. Similar admissiblity/specificity
problems attend his claim that the same supervisor told McClenney that he felt
plaintiff’s department was doing a good job.
Plaintiff states that on one occasion McClenney refused to give him
requested feedback about staff complaints, which McClenney would not even
acknowledge. This isolated anecdote, portraying McClenney as unforthcoming
about matters which on many other occasions he pursued with persistence and
vigor, is uncharacteristic, but considered with all of McClenney’s pertinent
conduct, it does not undercut the cited basis for plaintiff’s termination. At most it
reflects a lapse in supervisory communication, which in itself is not a cognizable
basis for a Title VII claim. See generally Archuleta v. Colorado Dep’t of
Institutions , 936 F.2d 483, 487 (10th Cir. 1991) (Title VII prohibits specified
discrimination, but does not broadly ensure fair treatment in other respects).
-6- Plaintiff also claims McClenney expressly recognized his department’s role as a
lightning rod for staff dissatisfaction, and suggests this “concession” precluded
McClenney from holding plaintiff personally responsible for criticism of the
department. But, certainly, McClenney was entitled to distinguish such routine,
low-level grousing from the crisis in confidence cited as the basis for terminating
plaintiff.
Finally, plaintiff advances some additional objections concerning the
survey. He complains that it was designed in accordance with McClenney’s
direction--as if the implementation of the concerns and objectives of the most
important user of this assessment tool somehow implicated improper motives not
otherwise evident from its content. Plaintiff’s criticism that McClenney did not
discuss the survey results with him is, again, a generic workplace grievance over
supervisory communication outside the scope of Title VII.
-7- In sum, plaintiff has failed to demonstrate the existence of legal or factual
issues barring summary judgment. The judgment is AFFIRMED.
Entered for the Court
Mary Beck Briscoe Circuit Judge
-8-