                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                       October 20, 2017
                     _________________________________
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
JUANITA GARCIA,

       Plaintiff - Appellant,
                                                   No. 17-2001
v.                                      (D.C. No. 1:15-CV-00005-WJ-SCY)
                                                     (D. N.M.)
CITY OF FARMINGTON,

       Defendant - Appellee.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.
                 _________________________________

      This appeal grew out of the City of Farmington’s decision to fire

Ms. Juanita Garcia from her employment at a municipal power plant.

Ms. Garcia attributes the firing to (1) discrimination based on gender and

national origin and (2) retaliation for an earlier suit. Farmington justified

the firing on two alleged mistakes by Ms. Garcia that endangered the plant



*
      The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
and its workers. The district court granted summary judgment to

Farmington, and we affirm.

I.    The Two Incidents

      Farmington’s power plant operates through a boiler that creates

steam, which is used to spin turbines and generate electricity. Boiler

pressure is controlled through operators like Ms. Garcia; if the pressure

gets too high, the boiler may explode.

      Operators control the pressure through a device that runs on a

computer system. Using the computer system, operators set the pressure

level for the device.

      Ordinarily, the device starts at a pressure ranging from 300 to 375

pounds per square inch. This pressure increases to 405 pounds per square

inch, which is the standard operating pressure. But on January 21, 2014,

with Ms. Garcia at the helm, the pressure skyrocketed to 451 pounds per

square inch. Ms. Garcia insists that she could not enter a set point for the

pressure because the computer malfunctioned. A coworker supports

Ms. Garcia’s account.

      Farmington investigated the incident and noted an earlier incident

that had taken place in 2012. In the 2012 incident, Ms. Garcia had trouble

controlling the pressure and it rose to 424 pounds per square inch before a

supervisor told Ms. Garcia how to fix the problem.



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       In light of the 2012 and 2014 mishaps, Farmington officials decided

to fire Ms. Garcia. She characterizes the firing as discriminatory and

retaliatory; in contrast, Farmington insists that it fired Ms. Garcia because

the two incidents could have resulted in injuries or deaths and damage to

the power plant.

II.    The McDonnell Douglas Framework

       The discrimination and retaliation claims required the district court

to apply the framework set out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under this framework, Ms. Garcia had an initial burden to

establish a prima facie case. McDonnell Douglas, 411 U.S. at 802.

Farmington assumed, for the sake of argument, that Ms. Garcia had

satisfied this burden.

       With this assumption, Farmington needed to give a legitimate,

nondiscriminatory reason for the firing. Id. Farmington contends that it

satisfied this requirement by relying on Ms. Garcia’s two failures to keep

the boiler pressure within safe limits.

       As discussed below, Farmington articulated a legitimate and

nondiscriminatory explanation. Thus, Ms. Garcia needed to demonstrate

that this explanation was pretextual. Id. at 804.

III.   The Admissibility of Lay Testimony

       Ms. Garcia’s main challenge involves the admissibility of testimony

about her observations during the 2014 incident. Ms. Garcia and a

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coworker stated under oath that the computer had shown a malfunction,

preventing anyone from setting the pressure. Farmington disputed this

account, denying any malfunction. In support, Farmington hired an expert

witness who stated under oath that the device had not malfunctioned.

     Farmington used this expert testimony to support a motion for

summary judgment. To rebut that testimony, Ms. Garcia proffered

testimony by herself and a coworker about their observations during the

2014 incident. But the district court excluded the proffered testimony.

Ms. Garcia argues that this ruling was erroneous, tainting the district

court’s grant of summary judgment and denial of a motion to alter or

amend the judgment. We reject Ms. Garcia’s argument.

     The challenge involves rulings on two motions: (1) Farmington’s

motion for summary judgment and (2) Ms. Garcia’s motion to alter or

amend the judgment. We would ordinarily employ different standards of

review when addressing the rulings on these motions: For summary-

judgment rulings, we typically apply de novo review; for rulings on

motions to alter or amend the judgment, we typically review only for an

abuse of discretion. See Cillo v. City of Greenwood Vill., 739 F.3d 451,

461 (10th Cir. 2013) (de novo review of summary-judgment rulings);

Etherton v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016) (abuse-

of-discretion review for rulings on motions to alter or amend judgments).

But here the issue on summary judgment involves the admissibility of

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testimony, which is reviewed only for an abuse of discretion. James River

Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011).

Thus, we apply the abuse-of-discretion standard to review both the grant of

summary judgment and the denial of the motion to alter or amend the

judgment.

      In our view, the district court had the discretion to exclude the

proposed testimony by Ms. Garcia and her coworker. But even if the

district court had allowed the testimony, it would not have supported

Ms. Garcia’s theory of liability.

      Ms. Garcia and her coworker would have testified that the computer

did not allow them to set the pressure level because the computer monitor

toggled between the manual and automatic settings. The parties agree that

this testimony involved an opinion and that Ms. Garcia and her coworker

could not provide opinion testimony as expert witnesses. But Ms. Garcia

and her coworker insist that they should have been allowed to give opinion

testimony as lay witnesses. The district court disagreed, and this ruling fell

within the court’s discretion.

      Lay-opinion testimony is governed by Federal Rule of Evidence 701,

and “[k]nowledge derived from previous professional experience falls

squarely within the scope of Rule 702 and thus by definition outside of

Rule 701.” James River Ins. Co., 658 F.3d at 1215 (internal quotation

marks omitted). Ms. Garcia and her coworker sought to testify about

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precisely that kind of knowledge. But even if Ms. Garcia and her coworker

had testified as lay witnesses, the testimony would not have affected

Farmington’s entitlement to summary judgment because the underlying

claims involved discrimination and retaliation rather than an incorrect

assignment of blame.

      Ms. Garcia lacked direct evidence of discriminatory or retaliatory

intent, so she relied on circumstantial evidence. To evaluate that evidence,

the district court had to apply the McDonnell Douglas framework.

Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145

(10th Cir. 2008). That framework involves three steps. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-04 (1973).

      The first step was Ms. Garcia’s establishment of a prima facie case,

and Farmington assumed that Ms. Garcia had satisfied this step. This

assumption required Farmington to give a legitimate, nondiscriminatory

reason for the firing. Id. at 802. Farmington satisfied this requirement by

attributing the firing to Ms. Garcia’s mistakes in allowing the boiler

pressure to rise to unsafe levels in two separate incidents. In attributing the

firing to a neutral, legitimate reason, Farmington had no obligation to

present supporting evidence. Thus, Farmington’s expert testimony was

irrelevant at this step. See Etsitty v. Utah Transit Auth., 502 F.3d 1215,

1224 (10th Cir. 2007) (stating that the second step of McDonnell Douglas



                                       6
did not require the employer to “prove that the reason relied upon [had

been] bona fide” (internal quotation marks omitted)).

     To rebut Farmington’s explanation, Ms. Garcia had to show pretext.

She could make this showing by presenting evidence that Farmington’s

justification was weak, implausible, inconsistent, or contradictory. Tabor

v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013). But Ms. Garcia’s

proposed testimony would not have suggested weaknesses, implausibilities,

inconsistencies, or contradictions in Farmington’s explanation.

     Before hiring the expert witness, Farmington blamed Ms. Garcia for

mishandling the 2014 incident when the boiler pressure increased.

Farmington alleges that Ms. Garcia was wrong in thinking that the device

had malfunctioned, but so what if she had been right? Regardless of

whether the device had malfunctioned, Ms. Garcia admitted that the boiler

pressure had increased too fast and had been too high, that she had failed

to create a work order for the device after it allegedly malfunctioned, that

she had not told anyone about the malfunction until a week after the

incident, and that she had failed to note the malfunction in the operations

log book. Thus, Ms. Garcia implicitly admitted that she had mishandled the

incident even if the device had malfunctioned as she claimed. In light of

this implicit admission, Ms. Garcia’s proposed testimony would not have

suggested any weaknesses, implausibilities, inconsistencies, or



                                      7
contradictions in Farmington’s explanation for the firing. Thus, the district

court properly granted summary judgment to Farmington.

IV.   Consideration of Ms. Garcia’s Evidence

      Ms. Garcia also contends that the district court ignored eight

categories of evidence. This contention mischaracterizes the ruling. The

district court explained that it had omitted discussion of immaterial

incidents and alleged facts not supported by Ms. Garcia’s citations. This

explanation was appropriate, for the district court had no obligation to

comb the record when Ms. Garcia’s cited evidence did not support her

factual allegations. Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th

Cir. 2008).

V.    The District Court’s Reliance on Kendrick v. Penske
      Transportation Services, Inc.

      The district court explained that the critical inquiry is how the facts

appeared to the individual who decided to fire Ms. Garcia, not

Ms. Garcia’s evaluation of herself. For this explanation, the court cited

Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir.

2000). Ms. Garcia argues that Kendrick is distinguishable because in that

case the employee failed to present evidence undermining the employer’s

honest belief.

      But the district court did not state that the facts in Kendrick were

identical or even similar. The court cited Kendrick merely for the need to


                                      8
view the facts as they appeared to the employer’s decisionmaker, which is

precisely what Kendrick said. See Kendrick, 220 F.3d at 1231 (“[A]

challenge of pretext requires us to look at the facts as they appear to the

person making the decision to terminate plaintiff.”). Thus, the district

court did not err in its use of Kendrick.

VI.   Farmington’s Allegedly Negative Perception of Ms. Garcia

      Ms. Garcia also asserts that she was viewed by Farmington as

divisive, frustrating, and controversial. But it is not unlawful to fire

someone for being divisive, frustrating, or controversial. To prevail,

Ms. Garcia had to prove that her firing constituted

           retaliation for her earlier suit or

           discrimination based on gender or national origin.

See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1176 (10th Cir.

1996) (retaliation); Sanchez v. Phillip Morris, Inc., 992 F.2d 244, 246

(10th Cir. 1993) (discrimination). Thus, Ms. Garcia’s characterization of

Farmington’s perception of her (divisive, frustrating, and controversial)

cannot support liability. See Sanchez, 992 F.2d at 248 (stating that even if

the employer’s stated reason was pretextual, there was insufficient

evidence of discrimination “as opposed to a mere mistake, favoritism or

some other reason”).

                                     * * *



                                        9
     For these reasons, the district court did not err in (1) granting

summary judgment to Farmington or (2) denying Ms. Garcia’s motion to

alter or amend the judgment.

     Affirmed.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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