F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS November 28, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
JOH N V IGIL,
Plaintiff-Appellant,
v. No. 05-2301 (D . N.M .) CITY O F ALBU QU ERQ UE; (D.Ct. No. CIV-04-726 LFG/RH S) SANDRA DOYLE, individually and in her official capacity,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before M U RPH Y, Circuit Judge, BROR BY, Senior Circuit Judge, and T YM K O VIC H, Circuit Judge.
Appellant John Vigil appeals the district court’s grant of summary
judgment in favor of Appellee, the City of Albuquerque (“the City”) on
discrimination claims arising under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e to 2000h-6, as well as claims filed pursuant to the
City’s M erit System O rdinance and Personnel Rules and Regulations for breach of
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. contract and good faith and fair dealing and the New M exico Human Rights Act.
The crux of M r. Vigil’s civil rights discrimination suit centers on his claim of
disparate treatment on the basis of gender and race or national origin when the
City passed him over for a position in favor of a non-minority female employee. 1
W e exercise discretion under 28 U.S.C. § 1291 and affirm summary judgment in
favor of the D efendants-Appellees.
I. Factual Background
The district court based its summary judgment determination on M r. Vigil’s
affidavit, deposition and attachments; Sandra Doyle’s affidavit, supplemental
affidavit and attachments; and Judy M ontoya’s affidavit and attachments,
construing them in the light most favorable to M r. Vigil as the party opposing
summary judgment. 2 M any of the relevant facts are mainly undisputed, with the
1 In his complaint, Mr. Vigil also alleged discrimination concerning the same Purchasing Officer position which in 2002 was awarded to another male candidate promoted over Mr. Vigil; eventually, the position opened up again, leading to the instant discrimination dispute in which Mr. Vigil again unsuccessfully applied for the same position a year later in 2003. Because he does not appeal the 2002 claim, we address only his claim concerning the 2003 award of the same position to a non-Hispanic, female candidate. 2 Mr. Vigil did not furnish a copy of his deposition, the affidavit of Ms. Montoya, the complaint, or any excerpts therefrom as part of the record on appeal. We remind counsel that it is the appellant’s responsibility to provide us with a proper record on appeal, and if the appellant’s appendix is insufficient to permit assessment of claims of error, we must affirm. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (citing Fed. R. App. P. 10(b)(2)). However, in this case, because the district court's opinion and other pleadings sufficiently
-2- exception of certain facts w hich the district court either found immaterial to its
summary judgment determination or which M r. Vigil generally alleged, but are
not supported in the record, as addressed hereafter.
To begin, M r. Vigil is a Hispanic male who, at the time in question, worked
for the City as an Internal Services Supervisor. 3 The Internal Services Section is
a part of the Purchasing Division and provides materials management in addition
to procurement and purchasing functions. M r. Vigil’s job included management
of the Internal Services Section, including the w arehouse; acquisition of bids,
goods and services for supply distribution; and overseeing the budget. In his
position as Internal Services Supervisor, M r. Vigil was responsible for a $1
million budget; $1.5 million in warehouse inventory; and $5 million in
procurement contracts, including printing and copying contracts and all rolling
stock such as forklifts, vehicles, equipment, fixtures, and facilities.
W hile another component of M r. Vigil’s job included management of the
Office Services Section located at City Hall, he spent the majority of his time at
characterize or reference the contents of those documents, we can proceed to assess the merits of Mr. Vigil’s appeal. 3 Prior to working as an Internal Services Supervisor, Mr. Vigil was a senior buyer for the City for six years and did purchasing for the City warehouse; before that, he was a warehouseman for two years where he drove, loaded trucks, filled orders, and was a member of certain committees.
-3- the City warehouse – a site far removed from City Hall. M anagement of the
Office Services Section accounted for approximately twenty percent of his
assigned duties, which included a weekly meeting and time conducting staff
training and implementing new processes. On occasion, in the absence of the
Purchasing Officer, M r. Vigil also served as Acting Purchasing Officer, which
gave him “Delegation of Signature Authority,” granting him full operational
control of the Purchasing Division.
In M arch 2003, M r. Vigil applied for the position of City Purchasing
Officer. Another in-house candidate, Deena N oonan, a non-minority female, also
applied for the job and was ultimately chosen. The job announcement for the
position of Purchasing Officer gave the following “General Statement of Duties”:
To plan, direct, manage and oversee the activities and operations of the central purchasing office of the Department of Finance and Administrative Services including purchasing, warehousing and office services activities; to coordinate assigned activities with other divisions, departments and outside agencies; and to provide highly responsible and complex administrative support to the Finance Director.
R., App. at 32, 144. Requirements also included a bachelor’s degree with major
course work in business administration, public administration or a related field,
plus “eight (8) years of central purchasing and materials management experience
to include five (5) years in a direct supervisory and/or administrative capacity.”
Id. (emphasis added). The City intended or interpreted this statement to mean
-4- that the position required “a total of eight years of experience in central
purchasing and/or materials management” and such an interpretation was “applied
to all applicants equally.” R., App. at 33, 49-50 (¶ 22) (emphasis added).
A comparison of M r. Vigil’s and M s. Noonan’s applications reveal they
possessed the same level of education – a bachelor’s degree from the University
of N ew M exico, and both served as Internal Services Supervisors. W hile M s.
Noonan worked in that position for almost two years, M r. Vigil held his position
for close to eight years. However, M s. Noonan previously performed central
purchasing functions in other positions for over twelve years.
According to Sandra Doyle, the Director of Finance and Administrative
Services for the City, the H uman Resources Department first found both M s.
Noonan and M r. Vigil qualified for the position. Next, a panel of six
interviewers, consisting of two Hispanic males, one female and three Caucasian
males, ranked M s. Noonan at the top and recommended her for the position.
Thereafter, M s. Doyle accepted the panel’s recommendation and promoted M s.
Noonan. M s. Doyle, who previously served in the position of Purchasing Officer,
believed M r. Vigil was “minimally, but not the best, qualified for the position
because he had no central purchasing experience.” R., App. at 25, 150 (¶ 7).
Instead, M s. Doyle indicated M s. Noonan was the best qualified for the position,
-5- pointing out M s. Noonan performed central purchasing functions for
approximately twelve and one-half years and participated in purchasing
operations in the amount of $250 million while assigned to the Public W orks
Department, the City’s largest department, where she handled large accounts,
including one in w hich she developed and managed a new contracting process.
In addition, although M s. Noonan and M r. Vigil both served as Acting
Purchasing Officer for several days at a time, M s. Doyle pointed out M s. Noonan
performed all of the assigned duties, while M r. Vigil remained at the w arehouse
and delegated many of the required Purchasing Officer duties to M s. Noonan.
M s. Doyle also noted M r. Vigil’s experience, while extensive, consisted primarily
of inventory purchasing, which is “substantially different” from the central
purchasing functions M s. Noonan carried out. R., App. at 25, 152 (¶ 13). She
stated M r. Vigil’s experience centered on procuring warehouse supplies and that,
in contrast to M s. Noonan, he did not demonstrate an ability to engage in the
decision making processes necessary for the central purchasing function.
Specifically, M s. Doyle stated:
Central purchasing involves the decision making process of how to purchase in response to a purchase request. Decisions must be made as to whether a request for proposals, bid or sole source proceeding is the best method for acquiring what is being requested. The Purchasing Officer interacts with the city attorney to ensure that legal decisions are being made. The warehouse inventory function is one small piece of the purchasing process. W arehouse purchasing
-6- requires primarily ordering supplies, includes making procurement decisions on a very limited basis, and involves no or only minimal interaction with the legal process.
R., App. at 25-26, 152 (¶ 14).
In addition, M s. Doyle explained the Purchasing Officer is involved in the
political process at City Hall, so the position requires political skills. In that
regard, she noted M s. Noonan attended City Council meetings routinely, was w ell
known to City Councilors and others at City Hall, and made herself available to
assist M s. Doyle w hen needed because of her proximity and willingness to
provide assistance. In contrast, she stated M r. Vigil remained mostly at the
warehouse where he was not immediately available for assistance when needed,
did not offer assistance during periods when the Purchasing Officer position was
vacant, and had no involvement in the political process.
As further support for M s. Noonan’s selection for the position, M s. Doyle
explained she considered and compared M r. Vigil’s job description duties in his
application with those described in M s. Noonan’s application. At that time, M s.
Noonan was responsible for all aspects of $95 million in budgeting for the Public
W orks D epartment, which has a substantially larger budget than M r. Vigil’s
warehouse budget of $1 million. M s. Noonan was also responsible for oversight
and review of purchasing functions for compliance with City purchasing
-7- regulations, and performed each of the tasks and responsibilities performed by the
Central Purchasing Program as specified in the City’s approved budget. In
addition, she performed materials management while at the W ater Department
where she was responsible for purchasing materials such as water meters. Based
on all of these considerations, M s. Doyle determined M s. Noonan was best
qualified for the Purchasing Officer position, regardless of her national origin and
gender.
II. Procedural Background
Following M s. Noonan’s selection for the position, M r. Vigil filed suit in
federal court under Title VII of the Civil Rights Act on grounds he received
disparate treatment on the basis of age, and race or origin. Following briefing on
the C ity’s motion for summary judgment, the district court granted summary
judgment in favor of the City and against M r. Vigil for the reasons articulated
hereafter. This appeal followed, in which M r. Vigil raises many of the same
contentions comprehensively addressed by the district court in its summary
judgment decision. In addition, M r. Vigil contends the district court
misunderstood one of his arguments on why M s. Noonan was not qualified for
promotion to the position of Purchasing Officer. Specifically, he asserts the
district court incorrectly perceived his argument to be that the posted
announcement, requiring applicants to have “eight (8) years of central purchasing
-8- and materials management experience,” meant the position required both eight
years of central purchasing experience plus eight years of materials management
experience. R., App. at 32; Apt. Br. at 5 (emphasis added). Instead, M r. Vigil
says his argument was that the eight years of experience required both materials
management and purchasing experience, and M s. Noonan was unqualified because
she lacked sufficient materials management experience.
III. Discussion
A. Standard of Review and Discrimination Law
In articulating the standard of review and applicable discrimination law, w e
rely largely on our decision in Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303 (10th
Cir. 2005) (en banc) (per curiam). W e review de novo the district court’s
summary judgment decision, and “consider the evidence in the light most
favorable to the nonmoving party, drawing all reasonable inferences from the
available underlying facts.” Id. at 1307. Summary judgment is appropriate if the
record shows “there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
In reviewing summary judgment motions, movants for summary judgment bear
the initial burden of demonstrating the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. See Adler v. Wal-M art Stores,
Inc., 144 F.3d 664, 670-71 (10th Cir. 1998).
-9- If this initial burden is carried, the nonmovant may not rest solely on his
pleadings, but must set out specific facts in support of his claims, by reference to
affidavits, deposition transcripts, or other exhibits incorporated therein. Id. at
671. W hile w e view the evidence and draw inferences in the light most favorable
to the non-moving party, that party must identify sufficient evidence which would
require submission of the case to a jury. See id. at 671-72 and n.1. W e have
repeatedly held that even when an affidavit is based on personal knowledge and
sworn, it may be insufficient to create a triable issue of fact if it is nonspecific or
otherw ise nonresponsive, vague, conclusory, or self-serving. See Salguero v. City
of Clovis, 366 F.3d 1168, 1177 n.4 (10th Cir. 2004); Garrett v. Hewlett-Packard
Co., 305 F.3d 1210, 1213 (10th Cir. 2002); Adler, 144 F.3d at 671-72 and n.1;
M urray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995).
To prevail on a disparate treatment claim under Title VII of the Civil
Rights Act, the employee must show the employer intentionally discriminated
against him for a reason prohibited by the Act. Jaramillo, 427 F.3d at 1306. If,
as here, the employee relies on circumstantial evidence, “we apply the burden-
shifting framew ork outlined in M cDonnell Douglas Corp. v. Green, 411 U.S. 792
... (1973).” Id. “[T]he three-part M cDonnell Douglas burden-shifting analysis is
limited to the summary judgment context.” Kendrick v. Penske Transp. Servs.,
Inc., 220 F.3d 1220, 1226 (10th Cir. 2000). Under M cDonnell, the employee
-10- must establish a prima facie case of discrimination by show ing: “(1) he is a
member of a protected class; (2) he applied for and was qualified for the
particular position; (3) he was not promoted despite his qualifications; and (4) the
position was filled or remained open after he was rejected.” Jaramillo, 427 F.3d
at 1306-07 (quotation marks and citation omitted). This three-part burden-
shifting analysis is modified w hen, as here, a male alleges gender or reverse
discrimination. See Notari v. Denver Water Dep’t, 971 F.2d 585, 588-89 (10th
Cir. 1992). W e have held that in such cases, in lieu of showing that one belongs
to a protected group, he or she must “establish background circumstances that
support an inference that the defendant is one of those unusual employers who
discriminates against the majority.” Id.
If the employee establishes a prima facie case, then “a presumption of
discrimination arises” resulting in the burden shifting to the employer “to
articulate a legitimate, non-discriminatory reason for the adverse employment
action.” Jaramillo, 427 F.3d at 1307. If the employer “carries its burden of
production, the presumption of discrimination drops out of the case,” and “[t]he
burden then shifts back to the [employee], who must prove by a preponderance of
the evidence that the employer’s reasons are a pretext for unlawful
discrimination.” Id.
-11- An employee like M r. Vigil can demonstrate pretext “by producing
evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unw orthy of credence and hence
infer that the employer did not act for the asserted non-discriminatory reasons.”
Id. at 1308 (quotation marks and citation omitted). W e have said “[e]vidence of
pretext may include prior treatment of [the employee]; the employer’s policy and
practice regarding minority employment (including statistical data); disturbing
procedural irregularities (e.g., falsifying or manipulating ... criteria); and the use
of subjective criteria.” Id. (quotation marks and citation omitted). In so doing,
we have proceeded with caution in considering the relative merits of individual
employees, given this court “may not act as a super personnel department that
second guesses employers’ business judgments.” Id. (quotation marks and
citation omitted). W e have explained “minor differences between [an
employee’s] qualifications and those of a successful applicant are not sufficient to
show pretext,” and instead “the disparity in qualifications must be
‘overwhelming.’” Id. at 1308-09 (citations omitted). Generally, “an employee
must proffer evidence that shows each of the employer’s justifications are
pretextual.” 4 Id. at 1309-10 (quotation marks and citations omitted). In making a
4 As an exception, we have said that sometimes “a successful attack on part of the employer’s legitimate, non-discriminatory explanation is enough to survive summary judgment even if one or more of the proffered reasons has not been discredited.”
-12- pretext determination, a court looks at the facts as they appeared to the person
making the employment decision, see Kendrick., 220 F.3d at 1231, because it is
the employer’s “‘perception that is relevant, not the [employee’s] subjective
evaluation of his own relative performance.’” Kelley v. Goodyear Tire & Rubber
Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000) (quoting Furr v. Seagate Tech, Inc.,
82 F.3d 980, 988 (10th Cir. 1996)).
B. Discrimination Claim
Having considered the applicable standards of review and legal principles,
we turn to the district court’s decision, which is extremely thorough, well-
articulated, and well-reasoned. For judicial economy, we find it unnecessary to
recount it in its entirety and provide instead a summary sufficient to explain our
affirmance.
Jaramillo, 427 F.3d at 1310. Instances sufficient to create a genuine issue of fact occur when:
(1) the reasons are so intertwined that a showing of pretext as to one raises a genuine question whether the remaining reason is valid; (2) the pretextual character of one explanation is so fishy and suspicious that a jury could find that the employer (or its decisionmaker) lacks all credibility; (3) the employer offers a plethora of reasons, and the [employee] raises substantial doubt about a number of them; (4) the [employee] discredits each of the employer’s objective explanations, leaving only subjective reasons to justify its decision; or (5) the employer has changed its explanation under circumstances that suggest dishonesty or bad faith.
Id. (quotation marks and citations omitted). None of these circumstances have been demonstrated in this case.
-13- In ruling in favor of the City, the district court first determined M r. Vigil
failed to meet his burden of proof on his claim of gender bias in a reverse
discrimination claim. W e agree. As the district court explained, the fact the
hiring officer was female and hired a female applicant over a male is insufficient
to meet M r. Vigil’s burden. However, because M r. Vigil also brought a claim of
national origin discrimination, the district court proceeded to a full M cDonnell
Douglas analysis and determined that even if M r. Vigil stated a prima facie case
of discrimination, the City provided legitimate, non-discriminatory reasons for its
selection of M s. Noonan over M r. V igil for the position of Purchasing Officer.
W e agree. First, even if the district court misinterpreted M r. Vigil’s argument
that the position required eight years of central purchasing experience plus eight
years of materials management experience, it essentially concluded neither M r.
Vigil nor M s. Noonan would have been qualified under that interpretation, and
that the City’s actual interpretation of the requirement – that the applicant possess
a total of eight years of central purchasing and materials management experience
– was applied equally to both candidates.
Next, with respect to M r. Vigil’s claim M s. Noonan lacked materials
management experience, M s. Doyle clearly explained M s. Noonan performed
materials management while at the W ater Department, and, as the district court
explained, she was responsible for all aspects of budgeting for the Public W orks
-14- Department, so M r. Vigil’s otherw ise unsupported statements she lacked certain
materials or fiscal management and budget experience did not raise an issue of
fact.
W ith respect to the issue of central purchasing experience, the district court
also explained in great detail that M s. Noonan had much more experience in
performing central purchasing functions than M r. Vigil, whose experience was
primarily in materials management, with only approximately twenty percent of his
time spent in Office Services functions. Our review of the vacancy announcement
and record suggests that while both central purchasing and materials management
experience were required, the position of Purchasing Officer primarily involved
central purchasing duties, thereby reinforcing the district court’s decision the City
provided legitimate, non-discriminatory reasons for its selection of M s. Noonan
over M r. Vigil for the position of Purchasing Officer.
On appeal, M r. Vigil also contends M s. Noonan actually only served as an
“Assistant Acting Purchasing Officer” and not the “Acting Purchasing Officer,”
and that nothing in the record shows he and M s. Noonan acted in the position of
Purchasing Officer for the same amount of time for comparison purposes.
However, as the district court pointed out, the terminology referencing whether
M s. Noonan was the Acting Purchasing Officer or the Assistant Acting
-15- Purchasing Officer is not material to the issue of comparative qualifications,
given both candidates performed the duties of Purchasing Officer, regardless of
what their temporary position was titled, and M r. Vigil does not dispute the fact
he often delegated his “acting” duties to M s. Noonan. In addition, the district
court explained that the record established both individuals served in the capacity
of Acting Purchasing Officer for several days at various times, so in fact, they
served in that capacity for the same or similar approximate periods of time for
comparison purposes. (Id.) W e find M r. Vigil’s unsupported contention to the
contrary insufficient to show otherwise. For these reasons, together with the
other reasons articulated by the district court which are not recounted here, we
agree the City amply carried its burden of articulating legitimate, facially
nondiscriminatory reasons for not promoting M r. Vigil to the position of
Purchasing Officer.
Having determined the City met its burden, we turn to M r. Vigil’s argument
of pretextual discrimination in which he claims the district court overlooked his
evidence of pretext. In support, he suggests the City eliminated certain exam and
interview questions which w ere used when the position was open the year before
and would have highlighted M s. Noonan’s absence of materials management
experience. He argues that while the City is not prohibited from changing the
interview process, it purposely changed its usual process in a manner that gave
-16- “an unfair advantage to an unqualified candidate.” Apt. Br. at 11. He suggests
this evidence of pretextual discrimination is sufficient to overcome the City’s
argument it changed the questions to remove an unfair advantage to those who
had previously applied for the position the year before. He also contends M s.
Doyle’s affidavit demonstrates she gave highly visible, favorable assignments to
M s. Noonan, and then improperly based her promotion on the experience M s.
Noonan gained through those same assignments. Accordingly, he argues this is
evidence of pretextual discrimination.
In addressing M r. Vigil’s assertions, the district court pointed out the City
was obligated to offer a fair and level playing field to the candidates, which it did
in providing the same questions to all the candidates, and that because the
qualifications for the Purchasing Officer position changed between 2002 and
2003, it was reasonable to ask the 2003 candidates different questions than those
asked of the 2002 candidates. W e agree. M oreover, because M s. Noonan
obtained materials management experience while at the W ater Department, we
disagree with M r. Vigil’s unsupported premise that certain eliminated questions
would have highlighted M s. Noonan’s absence of materials management
experience.
As to M r. Vigil’s argument M s. Doyle gave highly visible and favorable
-17- assignments to M s. Noonan which benefitted her for the purpose of promotion,
the district court determined M s. Doyle’s favorable consideration of M s.
Noonan’s availability and willingness to help was not improper and did not,
standing alone, constitute discrimination. In addition, the district court pointed
out it was undisputed M r. Vigil spent eighty percent of his time at the City
warehouse, was less available than M s. Noonan, and did not step in to assist as
readily as M s. Noonan. W e further note M s. Doyle’s favorable consideration of
M s. Noonan based on her availability and willingness to help was only one of
many considerations which placed M s. Noonan ahead of M r. Vigil, thus
weakening M r. Vigil’s argument that such favorable consideration alone showed
pretext sufficient for a successful disparity claim.
In sum, under the circumstances presented, M r. Vigil has not demonstrated
pretext “by producing evidence of such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unw orthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Jaramillo, 427 F.3d at 1308. In addition,
no “disparity in qualifications” exists that is sufficiently “‘overwhelming’” for the
purpose of showing pretext. Id. at 1309 (citation omitted). For these reasons and
the additional reasons provided by the district court in its summary judgment
-18- decision, we conclude M r. Vigil clearly did not carry his burden of showing
pretext w ith regard to the applied-for position.
C. State Law Claims
On appeal, M r. Vigil also asserts the district court erred in dismissing his
breach of contract claim, covenant of good faith and fair dealing claim, and New
M exico H uman Rights Act claim. First, M r. Vigil suggests the district court
incorrectly found no material issues of fact exist with respect to his contract claim
because “[M s.] N oonan failed to meet [the] minimum qualifications” required.
Apt. Br. at 13. As a result, he contends “her promotion constituted a breach of
contractual obligations” arising under the M erit Systems Ordinance. Id. In
support of his claim, M r. Vigil simply refers this court to personnel rules which
generally require the City to select the best qualified candidates to fill vacant
positions and that such selection be made “on the basis of education, experience,
training, skills and other abilities.” Apt. Br. at 14-15, 19-20.
Next, M r. Vigil suggests the district court erred, first in failing to
specifically address his implied covenant of good faith and fair dealing claim, and
then summarily dismissing it. Last, in claiming the district court erred in
dismissing his New M exico H uman Rights Act claim, he argues the City’s
proffered non-discriminatory reasons for promoting M s. Noonan violated New
-19- M exico public policy, but he fails to explain exactly how such policy was
violated.
In addressing M r. Vigil’s state claims, the district court found as a matter
of law that M r. Vigil was passed over for promotion on the basis of legitimate,
nondiscriminatory reasons, and that he failed to raise a genuine issue of fact
showing the City’s reasons for promoting M s. Noonan over him were pretextual.
As a consequence, the district court concluded the City did not breach any
contractual commitment 5 nor violate the New M exico Human Rights Act. 6 W e
agree, and, like the district court, find no reason to discuss these issues further.
IV. Conclusion
For the reasons cited herein, as well as the reasons provided in the district
court’s August 25, 2005 M emorandum Opinion and Order Granting Defendants’
M otion for Summary Judgment and September 26, 2005 Judgment, we AFFIR M
5 Because the district court concluded Mr. Vigil’s contract claim was subject to a summary judgment determination on these grounds, it did not address whether Ms. Doyle was a proper defendant, the alleged contract was express or implied, or Mr. Vigil exhausted his administrative remedies. 6 Because the district court determined that, as a matter of law, neither Ms. Doyle nor the City violated the Act, it did not specifically address the issue of whether an individual such as Ms. Doyle was a proper defendant in a suit brought under the Act.
-20- summary judgment in favor of the Defendants-Appellees. Each party shall bear
the costs of litigation arising from this appeal.
Entered by the C ourt:
W ADE BRO RBY United States Circuit Judge
-21-