Suazo v. Regents of Univ.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 24 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ISAAC SUAZO,
Plaintiff-Appellant,
v. No. 97-2211
(D.C. No. CIV-95-1142-BB)
REGENTS OF UNIVERSITY OF (D. N.M.)
CALIFORNIA, doing business as
Los Alamos National Laboratory,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff appeals the district court’s grant of summary judgment in favor of
defendant on plaintiff’s claims of discrimination, filed pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Plaintiff, who is
Hispanic, claims that his employer discriminated against him based on his race
because he was not promoted to the position of section leader. Defendant chose,
instead, to promote Steven Hanson, who is not Hispanic.
We review the district court’s grant of summary judgment de novo and will
affirm if there is no dispute regarding material facts and the moving party is
entitled to judgment as a matter of law. See Reynolds v. School Dist. No. 1 ,
69 F.3d 1523, 1531 (10th Cir. 1995). We construe the record in the light most
favorable to plaintiff, but, once defendant shows it is entitled to judgment,
plaintiff must show specific facts demonstrating a genuine issue for trial as to
material matters for which he carries the burden of proof. See id. Guided by
these standards, we affirm.
Plaintiff focuses much of his attention in his brief on appeal on arguing that
his affidavit and his deposition testimony are not inconsistent and that the district
court was required to consider his affidavit at face value. Plaintiff’s arguments in
this regard are unnecessary. Even though it noted the apparent inconsistency
between the affidavit and deposition, the district court did, in fact, properly
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consider and accept plaintiff’s affidavit. See Appellant’s App. at 156 n.6.
Accordingly, we will also consider plaintiff’s affidavit.
Plaintiff stated in his affidavit that his supervisor told him that he was not
promoted because he spent “too much time on Naval Reserves.” Id. at 106.
Plaintiff also argues that defendant’s Affirmative Action/Equal Employment
Opportunity statement, which creates a preference for Vietnam veterans, presents
a question of fact as to its meaning and effect on defendant’s decision not to
promote plaintiff. On appeal, plaintiff argues that his affidavit precludes
summary judgment because it creates a genuine issue of material fact as to why he
was not chosen for the promotion. 1
The district court held, and we agree, that plaintiff established a prima facie
case of discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792,
802 (1973). In response, defendant articulated a legitimate non-discriminatory
reason for not promoting plaintiff to section leader, namely, that Steven Hanson
was more qualified for the position. See id. We also agree with the district court
that the evidence supports this finding. The burden then shifted to plaintiff to
show that defendant’s proffered reason was merely pretextual. See id. at 804.
1
On appeal, plaintiff does not pursue his First Amendment claim or his
claim of discrimination for failure to promote him to the position of group leader.
We, therefore, consider these issues waived. See State Farm Fire & Cas. Co. v.
Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
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It is for this purpose that plaintiff points to his affidavit statement that the
decision not to promote plaintiff was not because Steven Hanson was more
qualified, but was based on plaintiff’s participation in the Naval Reserves. 2
Plaintiff’s burden to establish pretext is not satisfied by allegations alone.
Plaintiff can meet his burden of presenting enough evidence to support an
inference that defendant’s reason was merely pretext by showing either that
“a discriminatory reason more likely motivated [defendant] or . . . that
[defendant’s] proffered explanation is unworthy of credence.” Texas Dep’t of
Community Affairs v. Burdine , 450 U.S. 248, 256 (1981). “In a summary
2
We note that plaintiff’s complaint alleges discrimination based only on his
race, except for the following paragraph:
Employer, Los Alamos National Laboratory had, at all times
material to these claims, Affirmative Action/Equal Employment
Opportunity policy statements in place to undertake the advancement
and promotion of minorities and Vietnam era veterans.
Appellant’s App. at 3. This is the only allegation regarding veteran status;
nowhere in his complaint does plaintiff even allege that defendant discriminated
against him based on his veteran status. Further, even if plaintiff had made such
an allegation, and even if plaintiff could establish that defendant illegally
discriminated against him based on his participation in the Naval Reserves,
we fail to see how participation in the Naval Reserves implicates veteran status in
any way. Plaintiff’s affidavit statement regarding the time he spent in the Naval
Reserves is simply unconnected to his original allegations of discrimination based
on race or, reading his complaint liberally, his status as a Vietnam veteran. We
will, nonetheless, address plaintiff’s arguments on appeal as they relate to these
two areas of discrimination.
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judgment setting, the plaintiff must raise a genuine factual question as to whether
defendant[’]s reasons are pretextual.” Drake v. City of Fort Collins , 927 F.2d
1156, 1160 (1991).
Plaintiff has presented no evidence that a discriminatory reason motivated
defendant to promote Steven Hanson over plaintiff, and neither has plaintiff
presented competent evidence that defendant’s articulated reason for not
promoting plaintiff is unworthy of belief. Nowhere in the record does plaintiff
even deny that he spent too much time on the Naval Reserves, let alone present
any evidence as to how much time he did spend. Summary judgment on
plaintiff’s Title VII claim was appropriate.
In response to plaintiff’s argument regarding defendant’s noncompliance
with its Affirmative Action/Equal Employment Opportunity statement, we join the
other courts that have addressed the issue and hold that plaintiff has no private
right of action under either the Vietnam Era Veterans’ Readjustment Assistance
Act (VEVRA), 38 U.S.C. §§ 4211-4214, or Executive Order No. 11,246,
reprinted in 42 U.S.C. § 2000e note. See Antol v. Perry , 82 F.3d 1291, 1296-98
(3d Cir. 1996) (VEVRA); Wikberg v. Reich , 21 F.3d 188, 189 (7th Cir. 1994)
(VEVRA); Harris v. Adams , 873 F.2d 929, 931-32 (6th Cir. 1989) (VEVRA);
Barron v. Nightingale Roofing, Inc. , 842 F.2d 20, 21-22 (1st Cir. 1988)
(VEVRA); Utley v. Varian Assocs., Inc. , 811 F.2d 1279, 1284-86 (9th Cir. 1987)
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(EO 11,246); Cohen v. Illinois Inst. of Tech. , 524 F.2d 818, 822 n.4 (7th Cir.
1975) (EO 11,246); see also, e.g. , Lohf v. Runyon , No. 96-4088-RDR, 1998 WL
156894, at *7 (D. Kan. Mar. 6, 1998); Philippeaux v. North Cent. Bronx Hosp. ,
871 F. Supp. 640, 648 (S.D.N.Y. 1994) (holding that VEVRA does not provide
direct private right of action, nor does 42 U.S.C. § 1983 provide indirect private
right of action), aff’d 104 F.3d 353 (2d Cir. 1996) (table); Brace v. Ohio State
Univ. , 866 F. Supp. 1069, 1073, 1074 (S.D. Ohio 1994) (same); Wilson v. Amtrak
Nat’l R.R. , 824 F. Supp. 55, 58 (D. Md. 1992) (VEVRA and EO 11,246); but see
Blizzard v. Dalton , 905 F. Supp. 331, 332-33 (E.D. Va. 1995) (correlating
disabled veterans portions of VEVRA with the Rehabilitation Act of 1973 and
holding that plaintiff had not established discrimination as result of lack of
affirmative action program without discussion of whether private right of
action exists).
We AFFIRM the district court’s grant of summary judgment in favor of
defendant.
Entered for the Court
David M. Ebel
Circuit Judge
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