                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 15, 2008
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT




    SERGIO E. VALLES,

                Plaintiff-Appellant,
                                                          No. 08-2004
    v.                                        (D.C. No. 1:04-CV-00468-WJ-WPL)
                                                       (D. New Mexico)
    MICHAEL B. DONLEY, Acting
    Secretary, Department of the Air
    Force, *

                Defendant-Appellee.


                            ORDER AND JUDGMENT **


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



         Sergio E. Valles was an operations research analyst for the United States

Air Force when he was terminated in 2003. Mr. Valles contested his termination

*
       On June 21, 2008, Michael B. Donley became the Acting Secretary of the
Department of the Air Force. In accordance with Rule 43(c)(2) of the Federal
Rules of Appellate Procedure, Mr. Donley is substituted for Michael W. Wynne
as the defendant-appellee in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
through an appeal with the Merit Systems Protection Board (MSPB). After the

MSPB upheld his termination, he filed a complaint in federal district court

asserting that he was discriminated against in violation of Title VII of the Civil

Rights Act and the Age Discrimination in Employment Act (ADEA). He also

sought review of the MSPB’s decision upholding his termination. Mr. Valles now

appeals from the district court’s orders granting summary judgment in favor of

the Air Force on his discrimination claims and affirming the MSPB’s termination

decision. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      Mr. Valles began working as an analyst for the United States Government

in 1984. In October 1999 he started a new position as an operations research

analyst for the Air Force Operational Test and Evaluation Center (AFOTEC). In

his first performance appraisal at AFOTEC in April 2000, he received a

“superior” rating from his supervisor, Timothy Poole. Around September 2000 a

reorganization took place and Major Darrell Wright replaced Major Poole as

Mr. Valles’s supervisor. For Mr. Valles’s annual performance rating for 2000-

2001, Major Wright gave him an overall performance rating of “fully successful,”

two categories below a “superior” rating. On August 15, 2001, Mr. Valles filed

an Equal Employment Opportunity (“EEO”) complaint related to this evaluation,

alleging discrimination on the basis of age, race, and national origin.




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      In June 2001 Major Jeffrey McDonald replaced Major Wright as

Mr. Valles’s supervisor. Major McDonald prepared an out-of-cycle performance

appraisal in March 2002 and gave Mr. Valles an “unacceptable” rating. The next

day Major McDonald issued a memorandum to Mr. Valles informing him that he

was failing to meet critical elements of his performance plan and that he was

being placed on a Performance Improvement Plan (PIP). The PIP explained that

there were three major areas of concern with Mr. Valles’s performance: “an

observed inability to work independently, lack of technical competence, and

ineffectiveness in communicating both orally and in writing.” Aplee App. at 24.

To allow Mr. Valles to demonstrate acceptable performance, the PIP assigned him

two tasks to complete. First, he was required to formulate recommendations for

the division’s strategy concerning urban targets and then present the results in an

annotated briefing for the division. Second, he was required to formulate strategy

for development of the division’s directed-energy weapons testing and then

present the results in a talking-paper format.

      Initially, Mr. Valles was given 90 days to improve his performance, but the

duration of the PIP was later extended to 142 days. During the PIP period,

Major McDonald conducted seven feedback sessions with Mr. Valles and

prepared a memorandum reflecting what had occurred during each session. After

the final session Major McDonald prepared a detailed memorandum addressed to




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Mr. Valles that provided him with extensive comments and suggestions for

improving his talking paper.

      Two days later, on June 6, 2002, Mr. Valles filed a second EEO complaint,

which he understood to be an amendment to his August 2001 complaint. On

August 19 Major McDonald prepared two separate memoranda evaluating

Mr. Valles’s talking paper and his annotated briefing. Major McDonald rated

Mr. Valles’s performance under the PIP on these two projects as less than “fully

successful.”

      On October 4 Mr. Valles filed a complaint in federal district court, alleging

age and national-origin discrimination, as well as retaliation, based on the Air

Force’s treatment of him before his termination. 1 On October 7 the Air Force

issued Mr. Valles a “Notice of Proposed Removal” for unsatisfactory

performance, explaining the reasons for Mr. Valles’s proposed removal.

Mr. Valles was given the opportunity to respond to the notice and he did so. On

January 6, 2003, the Air Force issued Mr. Valles a “Notice of Decision to

Remove,” which became effective on January 11.

      After his termination Mr. Valles filed an appeal with the MSPB. The

MSPB upheld the Air Force’s decision to remove him for unsatisfactory

performance and found that he had failed to demonstrate that his removal resulted


1
       This case (Civil No. 02-1253) was later dismissed by stipulation of the
parties.

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from discrimination. Mr. Valles then filed a complaint in federal district court

alleging discrimination under Title VII and the ADEA (the discrimination claims)

and appealing the MSPB’s decision that his termination was proper

(the nondiscrimination claims). The Air Force moved for summary judgment on

the discrimination claims, which the district court granted. The district court then

ordered separate briefing on the nondiscrimination claims and ultimately affirmed

the MSPB’s decision. Mr. Valles appeals from the district court’s orders granting

summary judgment in favor of the Air Force on the discrimination claims and

upholding the MSPB’s decision on the nondiscrimination claims.

II.    DISCUSSION

       A.    The Discrimination Claims

       We review de novo the district court’s summary-judgment ruling. Simms v.

Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). Summary judgment is proper if there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.

Id.

      Mr. Valles argues in very general terms that the district court erred in

granting summary judgment in favor of the Air Force because there were material

issues of fact in dispute. Based on our review of the briefs, the record, and the

applicable legal authority, however, we conclude that the district court correctly

determined that Mr. Valles had failed to create an issue of fact as to whether the

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reasons for his termination were pretextual. Accordingly, we affirm the district

court’s decision on the discrimination claims for substantially the same reasons set

forth in its thorough and well-reasoned Memorandum Opinion and Order entered

October 11, 2005.

      B.     The Nondiscrimination Claims

      We review the MSPB’s decision on the nondiscrimination claims on the

administrative record. See Williams v. Rice, 983 F.2d 177, 179-80

(10th Cir. 1993). The MSPB’s decision must be upheld 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.’” Id. at 180 (quoting

5 U.S.C. § 7703(c)).

      Mr. Valles argues that “a careful review of the evidence reveals that the

MSPB judge’s decision was arbitrary, capricious, represents an abuse of

discretion, and was supported neither by law nor by substantial [evidence].”

Aplt. Br. at 52 (emphasis added). But Mr. Valles failed to submit the

administrative record to this court. Because Mr. Valles is arguing on appeal that

the evidence does not support the MSPB’s decision, see id. at 52, 54, he “must

include in the record a transcript of all evidence relevant to that finding or

conclusion.” Fed. R. App. P. 10(b)(2). We are not required to “remedy any

failure by counsel to designate an adequate record. When the party asserting an

                                          -6-
issue fails to provide a record sufficient for considering that issue, [we] may

decline to consider it.” 10th Cir. R. 10.3(B). Because of Mr. Valles’s failure to

supply the administrative record, we cannot review his contention that the

evidence shows that the MSPB’s decision was arbitrary and capricious, an abuse

of discretion, and not supported by substantial evidence. Accordingly, we affirm

the MSPB’s decision on Mr. Valles’s nondiscrimination claims. See, e.g., Deines

v. Vermeer Mfg. Co., 969 F.2d 977, 979-80 (10th Cir. 1992) (affirming the district

court’s decision because the court could not review the issues raised on appeal in

the absence of an adequate record).

III.   CONCLUSION

       We AFFIRM the judgment of the district court granting summary judgment

in favor of the Air Force on the discrimination claims and we AFFIRM the

judgment of the district court affirming the decision of the MSPB on the

nondiscrimination claims.

                                                Entered for the Court



                                                Harris L Hartz
                                                Circuit Judge




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