                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     July 22, 2014
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 GUSTAVO JUAREZ-GALVAN,

              Plaintiff - Appellant,

 v.                                                      No. 13-3118
                                                (D.C. No. 5:10-CV-4145-RDR)
 UNITED PARCEL SERVICE, INC.,                              (D. Kan.)

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and BACHARACH, Circuit Judges.



      Gustavo Juarez-Galvan sued his employer, United Parcel Service, Inc.

(“UPS”), claiming he was denied a promotion to the position of full-time driver

because he is an immigrant from Mexico. 1 See Title VII of the Civil Rights Act

      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
        Although Juarez-Galvan’s summary judgment filings were not clear, the
district court concluded the pretrial order set out a single claim of
discrimination—failure to promote. Cf. Wilson v. Muckala, 303 F.3d 1207, 1215
(10th Cir. 2002) (“[C]laims, issues, defenses, or theories of damages not included
in the pretrial order are waived even if they appeared in the complaint . . . .”).
Juarez-Galvan’s appellate briefing is similarly unclear. Nevertheless, he has not
challenged the district court’s interpretation of the pretrial order. See Trujillo v.
                                                                        (continued...)
of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (making illegal, inter alia, the refusal to

promote an individual because of that individual’s “national origin”). Concluding

Juarez-Galvan failed to come forward with direct evidence of discrimination or

evidence creating an issue of material fact as to pretext, the district court granted

summary judgment in favor of UPS. Juarez-Galvan appeals. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

      Because the parties are familiar with the relevant facts, there is no need to

set them out in this opinion. 2 This court reviews the grant of summary judgment

in a Title VII case de novo. Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170

(10th Cir. 2014). An employer is entitled to summary judgment only if “there is

      1
        (...continued)
Uniroyal Corp., 608 F.2d 815, 818 (10th Cir. 1979) (holding a district court’s
interpretation of the pretrial order “may be reversed only if there is an abuse of
discretion”). Thus, the only issue on appeal is whether the district court erred in
concluding UPS was entitled to summary judgment on Juarez-Galvan’s failure-to-
promote claim. For that reason, this court expresses no opinion on whether the
record in this case establishes a viable jury question as to retaliation or hostile
work environment.
      2
        It is, however, necessary to note that the universe of relevant facts is not
nearly as broad as asserted by Juarez-Galvan. The district court specifically
excluded some evidence proffered by Juarez-Galvan as either (1) an attempt to
create a sham issue of material fact; or (2) speculative, conjectural, or lacking in
foundation. Juarez-Galvan does not address the district court’s relevant
evidentiary rulings, let alone assert those rulings amount to an abuse of
discretion. See Hansen v. PT Bank Negara Indon. (Persero), 706 F.3d 1244, 1247
(10th Cir. 2013) (“We review the district court’s evidentiary rulings at summary
judgment for abuse of discretion.”). Thus, any challenge to those rulings is
forfeited, Wilson, 303 F.3d at 1215, and this court reviews Juarez-Galvan’s
arguments on appeal only by reference to evidence properly admitted in the
district court.

                                          -2-
no genuine dispute as to any material fact and [it] is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Juarez-Galvan “may prove [a] violation of

Title VII . . . either by direct evidence of discrimination, or by adhering to the

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).” Davis, 750 F.3d at 1170 (quotation omitted).

      Juarez-Galvan argues the district court erred in concluding he failed to

present direct evidence of discrimination on the part of UPS. Juarez-Galvan notes

the EEOC recognizes linguistic discrimination as a form of national origin

discrimination. See 29 C.F.R. § 1606.1. He asserts he has presented abundant

evidence of employees and managers making fun of his accent and refusing to

train him because of his Mexican origin. There are several related problems with

this argument. First, Juarez-Galvan’s claim of discrimination is limited to a claim

he was not promoted to full-time driver because of his national origin. See

supra n.1. A scrupulous review of the record demonstrates all of the acts

identified by Juarez-Galvan as relating to his accent and origin were undertaken

by actors not connected in any way to the decision to terminate his qualifying

period. 3 Nor is there any evidence the relevant decision-makers were aware of


      3
        Although it does not appear he so argued before the district court, Juarez-
Galvan asserts on appeal that one of these bad actors, Bill Butschle, did
participate in the decision to terminate his qualifying period. Butschle was
Juarez-Galvan’s direct supervisor. The problem for Juarez-Galvan, however, is
that the passage he quotes from the decision-maker’s deposition disproves this
                                                                       (continued...)

                                          -3-
those comments. That being the case, the alleged statements, though despicable,

are irrelevant to the only claim of discrimination validly raised by Juarez-Galvan.

See id. (noting pretrial order limited Juarez-Galvan’s claim of discrimination to a

claim of failure-to-promote); see also Trujillo v. Uniroyal Corp., 608 F.2d 815,

817-18 (10th Cir. 1979) (noting this court reviews for abuse of discretion a

district court’s determination that “certain facts or issues must be excluded”

because they do not relate to claims set out in the pretrial order). The district

court correctly concluded Juarez-Galvan failed to adduce any direct evidence the

decision-maker terminated his qualifying period because of national origin

discrimination.




      3
        (...continued)
assertion. Anthony Streit testified he did contact Butschle before informing
Juarez-Galvan he was terminating Juarez-Galvan’s training period. Streit made
absolutely clear, however, that he had already made the decision and merely
asked Butschle if he had any objection. Thus, there is simply no support in the
record for Juarez-Galvan’s assertion Butschle participated in the decision to
terminate his qualifying period.

       Alternatively, Juarez-Galvan asserts Butschle impeded his training during
the qualification period. As noted by the district court, however, the only
evidentiary support for this proposition comes in the form of an affidavit
submitted by Juarez-Galvan after his deposition. The district court specifically
excluded that affidavit on the ground it was utterly inconsistent with Juarez-
Galvan’s deposition testimony and, thus, constituted an attempt to create a sham
issue of fact. As noted above, Juarez-Galvan does not address the district court’s
decision to exclude the affidavit. See supra n.2. In any event, there is nothing in
the record to indicate the district court’s decision to exclude the affidavit amounts
to an abuse of discretion.

                                          -4-
      Juarez-Galvan also asserts the district court erred in concluding he failed to

create a genuine issue of material fact as to whether UPS’s proffered legitimate

reason for its employment decision (i.e., poor performance by Juarez-Galvan

during the qualifying period) was a pretext for discrimination. 4 According to

Juarez-Galvan, UPS’s reasons for terminating his qualifying period were

pretextual because his driving times were improving and his service errors were

not egregious. There are several problems with this assertion. This court must

generally defer to an employer’s decisions on the quality of an employee’s work,

not the subjective beliefs of the affected employee. Furr v. Seagate Tech., Inc.,

82 F.3d 980, 988 (10th Cir. 1996). Furthermore, UPS need not show its stated

reasons were wise, fair, or correct. Young v. Dillon Cos., 468 F.3d 1243, 1250-51

(10th Cir. 2006). The test is whether the employer had a good faith belief in its

stated nondiscriminatory reason. Hardy v. S.F. Phosphates Ltd., 185 F.3d 1076,



      4
        Under the three-part, burden-shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must first establish a
prima facie case of discrimination. Barlow v. C.R. England, Inc., 703 F.3d 497,
505 (10th Cir. 2012). If the plaintiff establishes a prima facie case, the burden
shifts to the employer to articulate a nondiscriminatory reason for the adverse
employment action. Id. If the employer articulates legitimate reasons for the
adverse action, the plaintiff incurs the burden to demonstrate pretext. Fye v.
Okla. Corp. Comm’n, 516 F.3d 1217, 1227 (10th Cir. 2008). Because UPS does
not contest on appeal the district court’s ruling that Juarez-Galvan established a
prima facie case, and because UPS’s reason for terminating Juarez-Galvan’s
qualifying period is legitimate and non-discriminatory, the only remaining
question is whether Juarez-Galvan has satisfied his burden of creating a material
issue of fact as to pretext.

                                        -5-
1080 (10th Cir. 1999). That being the case, it is undisputed that not once during

his qualification period did Juarez-Galvan complete his route within the time

allotted, even when he violated company rules by working through his lunch.

Furthermore, the record makes clear that viewed from UPS’s perspective, Juarez-

Galvan’s service errors were serious. 5

      Juarez-Galvan asserts he can demonstrate pretext by comparing himself to

K.F., 6 another potential full-time driver who did not complete the qualification

period. He contends his performance during his qualification period was better

than K.F.’s performance. Twenty-eight days into K.F.’s qualification period, her

supervisor decided not to promote her to a full-time driver position. Juarez-

Galvan’s supervisor disqualified him after twelve days of unsatisfactory

performance. This evidence does not support a claim of pretext because both

employees were ultimately treated in the same manner, i.e., their respective

managers decided their inadequate job performances warranted terminating the

qualification period before the end of thirty days. Confronted with this

evidentiary problem, Juarez-Galvan attempts to manufacture an issue of fact

about the circumstances of K.F.’s disqualification. Juarez-Galvan states K.F.

disqualified herself. The district court concluded Juarez-Galvan’s affidavit to this

      5
        To the extent Juarez-Galvan argues his service errors flow from the poor
training he received from Butschle, the argument suffers from the same flaw
identified above. See supra nn.2-3.
      6
          K.F. is a Caucasian female.

                                          -6-
effect was based on inadmissible hearsay and speculation, not personal

knowledge. Thus, the district court excluded the evidence. Because Juarez-

Galvan did not challenge the district court’s evidentiary ruling on appeal, the

issue is forfeited and there is no record support for the assertion K.F. disqualified

herself.

      Juarez-Galvan asserts UPS acted contrary to company policy when it ended

his qualification period after twelve days of inadequate performance. He asserts

that pursuant to the collective bargaining agreement (“CBA”) he was entitled to

use the full thirty days to qualify. He further asserts he could qualify if he

performed without error during any five consecutive days of the qualifying

period. For those reasons set out in the district court’s thorough memorandum

decision, Juarez-Galvan’s arguments lack merit. That is, the CBA cannot

reasonably be interpreted to provide every potential full-time driver a full thirty

days to attempt to qualify, no matter his performance during the early part of the

qualifying period. Nor has Juarez-Galvan provided any foundation for his

assertion it was UPS policy to promote any driver who could perform without

error for five straight days. Instead, the record makes clear that candidates for

promotion must successfully complete the entire qualification period. This

certainly does not mean a candidate must be error free for all thirty days. It does,

however, mean that, viewed holistically, the candidate performed successfully

during the period. With that reasonable understanding of the governing policies,

                                          -7-
it cannot be said UPS was obligated to allow Juarez-Galvan to continue with his

qualification attempt when the early part of the attempt was a complete failure.

      Finally, Juarez-Galvan argues UPS violated the CBA because it permitted a

driver with less seniority the opportunity to qualify as a full-time driver in

January of 2009, before he was given the opportunity. This argument is not

relevant to the issue set out in the pretrial order because it does not in any way

bear on the decision to terminate the qualifying period when Juarez-Galvan

eventually attempted to qualify. In any event, this argument ignores UPS’s

business records and the testimony of Juarez-Galvan’s supervisor at the relevant

time, both of which establish Juarez-Galvan did not drive in January of 2009

because he was on paid vacation and FMLA leave from January through

mid-March of 2009. In addition, because of his job with another employer,

Juarez-Galvan chose not to drive during the winter leading up to January of 2009.

Juarez-Galvan’s affidavit does not controvert these facts, but merely speculates

UPS had other reasons. Juarez-Galvan cannot prove pretext or discrimination

through his own unsupported, self-serving speculation about UPS’s motives.

Given UPS’s knowledge that Juarez-Galvan was on extended leave, partially

unpaid, to deal with a family health issue, it is impossible to conclude its act of

offering the qualification opportunity to the next most senior applicant was a part




                                          -8-
of a scheme to force Juarez-Galvan to qualify on the most difficult route

possible. 7

       The order of the United States District Court for the District of Kansas

granting summary judgment to UPS is hereby AFFIRMED.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




       7
        That, of course, assumes the route was, in fact, more difficult than most
UPS routes or, more specifically, the route that was available in January. The
district court specifically refused to accept that assertion, concluding Juarez-
Galvan’s conclusory assertions in this regard were utterly lacking in foundation.
As is true of all of the other evidentiary rulings of the district court, Juarez-
Galvan does not even allude to this ruling, let alone argue it amounts to an abuse
of discretion.

                                         -9-
