                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    July 13, 2012
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 ANGEL H. ALVARADO, JR.,

          Plaintiff-Appellant,
 v.                                                     No. 11-2036
                                             (D.C. No. 1:06-CV-00807-JB-ACT)
 MICHAEL B. DONLEY, Secretary,                            (D. N.M.)
 Department of the Air Force,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, GORSUCH, and MATHESON, Circuit Judges.



      The Air Force fired Angel Alvarado, saying he refused to follow his

supervisors’ orders while working as an inspector in the motor pool at Kirkland

Air Force Base. Mr. Alvarado says he was really fired because of his race. After

hearing evidence from both sides, the Merit Systems Protection Board eventually

sided with the Air Force. Later, the district court did the same. After careful

consideration, we do as well.




      *
         This order and judgment is not binding precedent except under the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.
      The tensions giving rise to this case date back to the 1990s. By that time,

Mr. Alvarado was already a long-time civilian Air Force employee. He worked as

a maintenance inspector — responsible for ensuring that vehicles brought into

the motor pool shop were properly repaired, serviced, and safe to drive. By all

reports, he was good at the job. Then, in 1997 or 1998 (the record doesn’t say

exactly when), an opportunity for promotion came along. The unit needed a new

Vehicle Maintenance Officer, someone in charge of overall vehicle maintenance.

Mr. Alvarado applied for the job, but didn’t get it. Instead, the promotion went to

Michael Rariden, another employee and a white man. Believing he didn’t get the

job because he’s Mexican-American, Mr. Alvarado filed an EEO complaint. And

though this original complaint soon settled, two more shortly followed, one

against Mr. Alvarado’s direct supervisor and one against Mr. Rariden, both

alleging reprisals for filing the previous complaint.

      The record isn’t clear exactly what became of all this, but it is clear that

Mr. Alvarado remained dissatisfied with Mr. Rariden’s leadership — particularly

with changes Mr. Rariden made to the shop’s quality control system. Before Mr.

Rariden took over, mechanics were allowed 6 mistakes (“rejects”) per year in

repairing vehicles. Inspectors, like Mr. Alvarado, weren’t themselves inspected.

But in 2000 Mr. Rariden changed the system, increasing the number of allowable

rejects to 12 and charging inspectors with rejects they failed to catch. Mr.

Alvarado thought this was unfair because the change was made without union

                                        -2-
approval and because he felt that personnel cutbacks made it impossible for him

to inspect all the out-going vehicles. For his part, Mr. Rariden expressed

frustration with Mr. Alvarado — particularly the time he spent dealing with union

issues. But whatever their professional disagreements, the first couple years of

the new appraisal system went more or less without trouble.

      Things changed in 2002. During the first two and a half months of the

2002-2003 rating period, Mr. Alvarado incurred 12 rejects — enough to fire him

if he incurred any more. Under the terms of his union’s collective bargaining

agreement, though, he was given an “opportunity period” — a month during

which he would receive additional training and demonstrate the ability to

perform. If he passed the opportunity period without more than 4 rejects, no

further disciplinary action would be taken.

      At first, all looked good. Mr. Alvarado worked with Randy Rettinger, his

first line supervisor, as well as with Mr. Rariden to ensure he understood their

standards; he successfully inspected many vehicles; and he incurred no rejects.

But then, on a day when Mr. Rettinger wasn’t in the office and Mr. Alvarado had

reason to think his work wouldn’t be reviewed, a problem erupted. Mr. Rariden

decided to review Mr. Alvarado’s work himself. And when he did, he found 6

rejects on a single vehicle, rejects so obvious, according to Mr. Rariden, that it

was clear Mr. Alvarado hadn’t bothered to do his job at all when he thought Mr.

Rettinger wouldn’t be looking: “the things that I saw were so obvious that if

                                         -3-
anybody would have went out and looked, they would have [seen them].” Aplt.

Appx. Vol. V at 2014. And it didn’t stop there. After being told he had failed the

opportunity period, Mr. Alvarado continued to incur rejects, eventually incurring

24 rejects between April and September of 2002. To Mr. Rettinger and Mr.

Rariden, that number of rejects was evidence Mr. Alvarado had just decided to

quit complying with the inspection system and would not do his job unless

actively supervised. “As a matter of fact,” Mr. Rariden testified, Mr. Alvarado

“told me several times that he didn’t feel that his work should be subjected to

inspections because he is the inspector.” Id. at 2015. And that, Mr. Rettinger and

Mr. Rariden decided, constituted “insubordinate defiance of authority” and a

firing offense.

      Mr. Alvarado has a different perspective on what happened. Many of the

alleged “rejects,” he says, weren’t true failures at all — just made-up defects.

And any actual failures, he adds, were caused by a heavy workload and

insufficient personnel. He argues that what was really going on was that Mr.

Rariden wanted him out because he was Mexican-American and had filed EEO

complaints.

      Mr. Alvarado initially appealed his firing to the Merit Systems Protection

Board. After lengthy proceedings before two different administrative law judges,

the Board concluded that the Air Force had met its burden of proving

“insubordinate defiance of authority.” Dissatisfied with the result, Mr. Alvarado

                                         -4-
appealed the Board decision to the district court and filed a new Title VII action

claiming racial discrimination and retaliation. The court, however, found that the

record supported the Board’s ruling on the “insubordinate defiance of authority”

charge. And on the Title VII claims the court concluded at summary judgment

that Mr. Alvarado failed to identify any material dispute of fact that might sustain

them. It is these rulings now on appeal before us.

      Taking first things first, we consider the Board’s decision. In doing so

though, we do not start afresh. Our review of the Board’s decision is authorized

by 5 U.S.C. § 7703(c), which requires us to uphold the Board’s decision unless it

is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.”

See also Romero v. Dep’t of the Army, 708 F.2d 1561, 1563 (10th Cir. 1983).

Under these standards, our review is “very narrow.” Id. The “arbitrary and

capricious” standard makes clear we may not substitute our judgment for the

Board’s. See Wilder v. Prokop, 846 F.2d 613, 619 (10th Cir. 1988). And the

“substantial evidence” standard requires us to affirm whenever there is evidence

“a reasonable mind might accept as adequate to support [the Board’s

conclusion],” whether or not we agree with it. Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938); Brewer v. U.S. Postal Service, 647 F.2d 1093, 1096

(Ct. Cl. 1981).

                                         -5-
      Though the original charge against Mr. Alvarado contained some confusing

language, see Aplt. Appx. at 2336, Mr. Alvarado does not now dispute that he

was properly charged with “insubordinate defiance of authority.” Neither does he

dispute that under this charge the Air Force was required to show that he

“willfully and intentionally” refused to obey an employer’s order and that he

exhibited “defiant or insolent behavior” in doing so. And he declines to challenge

now the Board’s finding that he did, in fact, willfully and intentionally refuse to

perform the work ordered. So it is that the only question before us is whether

substantial evidence exists to support the Board’s finding that he “acted with

insolence or defiance.” Aplt. Br. at 17.

      We are persuaded substantial evidence exists to support that conclusion.

The evidence before the Board suggested that Mr. Alvarado was capable of

performing his job. It suggested Mr. Alvarado resented being subject to

supervision under the new inspection system. It suggested some of the mistakes

he made were so obvious that he would have seen them had he performed any

inspection. And it suggested Mr. Alvarado refused to participate in his

employer’s mandated inspection regime, especially when no one was looking. All

this supports an inference he not only willfully refused to perform assigned work

but that he acted in defiance of his employer’s authority.

      To be sure, we recognize contrary evidence exists in the record, including

Mr. Alvarado’s attribution of his performance issues to a high workload and lack

                                           -6-
of resources. And we recognize that not every fact finder would necessarily

conclude Mr. Alvarado’s conduct evinced defiance or insolence. But the question

before us isn’t who we believe most persuasive but only whether there is

substantial evidence — evidence which a reasonable mind could accept as

adequate — to support the Board’s findings. Because there is, we must reject the

appeal.

      Turning to Mr. Alvarado’s Title VII discrimination claim, we move quickly

to the question of pretext. The Air Force concedes Mr. Alvarado can make out a

prima facie case of discrimination. And, as our earlier discussion shows, the Air

Force offers a legitimate, non-discriminatory reason for firing him. Because, as

well Mr. Alvarado advances no direct proof of racial discrimination, to survive

summary judgment he must present circumstantial evidence sufficient to create a

genuine issue of material fact on the question whether the Air Force’s stated

justification is really just pretext for discrimination. See Johnson v. Weld County,

594 F.3d 1202, 1210-11 (10th Cir. 2010). We agree with the district court that the

facts in evidence fail to supply that necessary inference.

      Mr. Alvarado relies largely on his own testimony relating statements by

others who, in turn, purported to relate to him allegedly racist remarks by Mr.

Rariden. The problem is, the district court ruled all this evidence inadmissible

hearsay and Mr. Alvarado does not even attempt to suggest any error in that




                                         -7-
ruling. See id. at 1209 (“[W]e can consider only admissible evidence in

reviewing an order granting summary judgment.”) (quotation marks omitted).

      The only potentially racist remark Mr. Alvarado heard himself and which

was admissible in evidence was a joke using the word “Mexican” Mr. Rariden

told a group at a bar. But Mr. Alvarado acknowledges he did not actually hear

the whole joke, and even granting that it was in fact a racist joke, Mr. Alvarado

acknowledges that “[e]vidence of racial comments is not probative of

discrimination unless it is linked to relevant personnel actions.” Aplt. Br. at 26

(citing Figures v. Bd. of Pub. Utils., 967 F.2d 357, 360-61 (10th Cir. 1992)). Yet

that is a link he fails to forge. He supplies no way in which the comment in

question was linked to the challenged personnel actions, at least not without

relying on the hearsay statements the district court ruled inadmissible.

      Even so, Mr. Alvarado argues he can establish pretext by showing that

other, non-Hispanic, employees weren’t disciplined despite incurring a similar

number of “rejects.” And to be sure, disparate treatment of similarly-situated

employees is often enough to create an inference of discrimination. See Kendrick

v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000) (“A plaintiff

may also show pretext on a theory of disparate treatment by providing evidence

that he was treated differently from other similarly-situated, nonprotected

employees who violated work rules of comparable seriousness.”).




                                         -8-
      The difficulty is that the two employees Mr. Alvarado points to were not

“similarly situated” to him. The first, Mr. Whitlock, is a white employee whose

rejects were below the allowable number per year — not above the limit, as was

the case with Mr. Alvarado. The second, Mr. Jiron, is a Native American

employee who did incur an impermissible 18 rejects between April and July 2002.

But Mr. Jiron was a shop supervisor (not an inspector responsible for ferreting out

mistakes) and he worked for a different supervisor. Of course, we must be wary

of defining “similarly situated” so narrowly that employees are prevented from

making even meritorious disparate treatment claims. But when it comes to Mr.

Alvarado and Mr. Jiron, the distinguishing traits between them make it difficult

under our precedents to infer that they were treated differently because of their

race rather than because of these other factors. See, e.g., Aramburu v. Boeing

Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (“Similarly situated employees are

those who deal with the same supervisor and are subject to the same standards

governing performance evaluation and discipline.”) (quotation omitted); see also

Kendrick, 220 F.3d at 1232 (fact that employees are subject to different

disciplinary regimes indicates they are not “similarly situated”). And even

beyond that difficulty, we note that Mr. Jiron did receive similar discipline for his

deficiencies: as a non-union employee with no entitlement to the “opportunity

period” afforded to union employees, he received an immediate written reprimand

— surely a precursor to more severe discipline if his performance did not

                                         -9-
improve. So both were disciplined and the only difference in the nature of the

discipline appears to have been due to a bargained-for union entitlement Mr.

Alvarado received and Mr. Jiron didn’t.

      Mr. Alvarado’s remaining evidence of discrimination runs into similar

problems. He points to testimony from one witness stating that Mr. Rariden

scrutinized the performance of “Rael, Luero, and Jiron” more closely than the

performance of other employees. This, Mr. Alvarado says, shows that Mr.

Rariden was biased against Hispanics. But Mr. Jiron is not Hispanic, and he is

the same employee Mr. Alvarado tries to suggest was treated less harshly when he

incurred an impermissible number of rejects because he isn’t Hispanic. Mr.

Alvarado also neglects to mention that the same witness he relies on also testified

that Mr. Rariden was concerned about nothing other than employees’ work

performance — regardless of race. Separately, Mr. Alvarado says two

supervisors told him that Mr. Rariden disliked him and was “out to get him.” But

again, he offers no admissible evidence, direct or otherwise, that whatever dislike

Mr. Rariden had for Mr. Alvarado was a consequence of (or even tangentially

related to) Mr. Alvarado’s race rather than his union activities, which the record

clearly indicates caused much friction between the pair. Given all this, we agree

with the district court that the testimony fails to give rise to a credible inference

of pretext for racial discrimination.




                                         - 10 -
      Turning finally to Mr. Alvarado’s Title VII retaliation claim, similar

problems emerge. Title VII prevents an employer from discriminating against an

employee “because he has opposed any practice made an unlawful employment

practice by [Title VII].” 42 U.S.C. § 2000e-3(a) (emphasis added). And, because

Title VII prohibits discrimination in employment, we have previously noted that

the scope of the statute’s anti-retaliation provision is limited to protection against

retaliation for “protected” activity, that is, activity “in opposition to

discrimination.” See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d

1193, 1202 (10th Cir. 2006). (“To establish a prima facie case of retaliation, a

plaintiff must demonstrate . . . that he engaged in protected opposition to

discrimination.”).

      The EEO complaints filed by Mr. Alvarado in the 1990s surely qualify as

protected activity. See Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).

But Mr. Alvarado has not plausibly suggested a causal connection between those

protected EEO complaints and the decision to fire him. See Argo, 452 F.3d at

1202-03. To support his claim, he points only to the testimony of one witness

indicating that Mr. Rariden was frustrated by Mr. Alvarado’s union activity. But

that witness also testified that Mr. Rariden was not frustrated by the EEO

complaints, only by the time and effort required to deal with the issues Mr.

Alvarado raised in his role as a union steward seeking to enforce the terms of its

collective bargaining agreement as he interpreted it.

                                          - 11 -
      Further, as to these union activities there’s no indication in the record that

they were themselves “in opposition to discrimination.” Instead, what evidence

we have suggests those activities concerned unspecified employee grievances and

union opposition to the new reject system imposed on inspectors as well as

mechanics — an opposition based not on concerns relating to race but on

concerns that the new reject system violated the union’s collective bargaining

agreement and created additional work for already taxed employees. So once

again, while the evidence may suggest that Mr. Rariden disliked Mr. Alvarado’s

union activities, that fact is not by itself enough to support Mr. Alvarado’s Title

VII claim. See Smith v. Potter, 252 F. App’x 224, 229 (10th Cir. 2007) (“The

union-grievance hearing was not protected opposition to discrimination and

therefore not protected by Title VII.”).

      Time poses an additional problem for Mr. Alvarado’s retaliation claim. He

filed his EEO complaints almost three years before he was fired. His other, non-

protected union activity — activity which upset his employer but which is not

protected under Title VII — was much more recent. This fact, too, tends to

negate rather than suggest a causal connection between Mr. Alvarado’s firing and

his Title VII-protected activity. See, e.g., Stover v. Martinez, 382 F.3d 1064,

1074 (10th Cir. 2004) (holding two year lapse between protected activity and an

alleged adverse action too attenuated to support an inference of causation).




                                           - 12 -
      Given all of this, we are compelled to agree with the Board and the district

court. Whatever interpersonal or collective bargaining disputes may have

contributed to the decision to fire him, Mr. Alvarado has failed to meet his burden

of showing that the Air Force’s stated reasons for firing him were unsupported by

substantial evidence or infected by racial bias or unlawful retaliatory intent under

Title VII. The judgment of the district court is affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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