                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 28, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 MAGDELENE LUCERO,

              Plaintiff-Appellant,
 v.                                                     No. 11-2028
                                            (D.C. No. 1:09-CV-00908-JCH-WDS)
 SANDIA CORPORATION, doing                                (D.N.M.)
 business as Sandia National
 Laboratories,

              Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before HOLMES, EBEL, and MATHESON, Circuit Judges.


      Plaintiff-Appellant Magdelene Lucero appeals from the district court’s

order granting summary judgment to Defendant-Appellee Sandia Corporation,

d/b/a Sandia National Laboratories (“Sandia”), on Ms. Lucero’s age

discrimination and national-origin discrimination claims. For the following

reasons, we affirm the judgment of the district court.




      *
             This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
                                         I

                                         A

      Ms. Lucero was born in 1950 and her national origin is Hispanic. After

graduating from highschool, Ms. Lucero began work at Sandia as a secretarial

trainee in 1968. She rose through the ranks and, in April 2000, she became a

member of the technical staff in Sandia’s Safeguards and Security center. Ms.

Lucero is now retired from Sandia.

      Ms. Lucero sued Sandia, alleging, inter alia, that, during certain years

between September 2003 and June 2008, her performance ratings (which were one

factor affecting her annual raises) were lower than the performance ratings of

other similarly situated employees. She alleges that this was the result of

discrimination based on her age and national origin by her immediate manager at

the time, Joe Sandoval. Mr. Sandoval is half Hispanic and half German.

      To determine individual raises, Sandia uses a computer program that takes

into account many factors, including each employee’s performance rating, each

employee’s pre-raise salary compared to the salaries of her peers, and the total

pool of money that Sandia will allot to employee raises for a particular year. At

Sandia, the performance rating is called the Value of Contribution (“VOC”)

rating. There are only five possible VOC ratings. The current ratings are

“Outstanding Contributor,” “Full Contributor–High,” “Full Contributor–Meets

Expectations,” “Full Contributor–Low,” and “Not Fully Contributing.” J.A., Vol.

                                        -2-
I, at 273 (Dist. Ct. Mem. Op. & Order, filed Jan. 3, 2011) (capitalization altered).

Before 2006, the categories were “Outstanding Contribution,” “Full

Contribution,” and “Not Fully Contributing.” Id. at 273 n.1 (capitalization

altered).

      Managers determine employee VOC ratings. In doing so, they are

constrained by the need to adhere to a curve. For each rating, a manager must

follow certain guidelines that define the acceptable percentage of his or her

employees that may receive that rating. For example, a manager may award no

more than twenty-five percent of her employees a rating of “Outstanding

Contributor,” and that ratio must be rounded down (in other words, “whether a

manager oversees four or seven employees, he may award only one ‘outstanding

contributor’ rating in a given year”). Id. at 273.

      The VOC is the only input into the computer program that an employee’s

direct supervisor controls, and it is the only input that Ms. Lucero claims is the

product of discrimination, i.e., Ms. Lucero does not allege that any other factor

influencing her raise was the product of discrimination, or that Sandia’s computer

program, used to convert all of the inputs into a raise amount, is itself

discriminatory. “At no point did [Mr.] Sandoval or any other individual manager

decide the amount of [Ms.] Lucero’s raise.” Id. at 274.

      As Ms. Lucero’s immediate manager from September 2003 through June

2008; however, Mr. Sandoval assigned Ms. Lucero VOC ratings for 2004, 2005,

                                         -3-
2006 and 2007. In 2004, he gave her an “Outstanding Contributor” rating and for

the remaining three years gave her some form of “Full Contributor” rating.

Nonetheless, Ms. Lucero alleges that Mr. Sandoval discriminated against her in

making these VOC assignments and that it had an adverse effect on her

employment. Because of the allegedly discriminatory assignments, Ms. Lucero

contends that she received smaller raises. And because she received smaller

raises, according to Ms. Lucero, she was barred from being promoted for three

years, from 2006 through 2008, due to Sandia’s polices, which tied promotion

eligibility to a comparative wage assessment—that is, to a determination of how

an employee’s salary measured up (by certain percentages) to the average wage of

other Sandia employees in her peer group.

                                          B

      On October 9, 2008, Ms. Lucero filed a charge with the Equal Employment

Opportunity Commission (“EEOC”), alleging discrimination on the basis of her

age and national origin. 1 The EEOC mailed a Notice of Right to Sue to Ms.


      1
              Significantly, in initiating her lawsuit, Ms. Lucero described in her
filings the substance of the EEOC charge. Ms. Lucero filed, but did not
immediately serve, her original complaint. Rather, “she exercised her right to
amend her complaint without leave of court by filing her First Amended
Complaint.” Dist. Ct. Doc. No. 77, at 2 (Mem. Op. & Order, filed Aug. 5, 2010);
see Fed. R. Civ. P. 15(a)(1) (discussing amendment “as a matter of course”). As
relevant here, in her First Amended Complaint, Ms. Lucero indicated that in her
Title VII discrimination charge before the EEOC, she alleged discrimination “on
the basis of race/national origin.” J.A., Vol. I, at 11 (First Amend. Compl. for
                                                                        (continued...)

                                         -4-
      1
             (...continued)
Damages Due to Discrimination in Employment Based on Race/National Origin &
Age Discrimination, filed Sept. 24, 2009). And the First Amended Complaint
purportedly sought relief under Title VII for those (non-age) forms of
discrimination. See id. (noting that “[t]his action is brought [under Title VII] to
remedy discrimination on the basis of race/national origin”).

       Under Title VII, however, race and national origin are distinct bases upon
which to rest a discrimination charge. 42 U.S.C. § 2000e-2(a)(1) (making it
unlawful “to discriminate against any individual . . . because of such individual’s
race . . . or national origin” (emphasis added)); see Deravin v. Kerik, 335 F.3d
195, 201 (2d Cir. 2003) (noting that claims of race discrimination and national-
origin discrimination are “conceptually distinct” (quoting Dixit v. City of N.Y.
Dep’t of Gen. Servs., 972 F. Supp. 730, 734 (S.D.N.Y. 1997)) (internal quotation
marks omitted)); see also Jefferies v. Harris Cnty. Cmty. Action Ass’n, 615 F.2d
1025, 1032 (5th Cir. 1980) (“The use of the word ‘or’ [in 42 U.S.C. § 2000e-2(a)]
evidences Congress’ intent to prohibit employment discrimination based on any
or all of the listed characteristics.” (emphasis added)).

       That said, we do recognize that, at least in certain factual contexts, the
demarcation line separating the two forms of discrimination may be quite faint or
virtually indiscernible. See Deravin, 335 F.3d at 201 (“However, courts have also
recognized that race and national origin discrimination claims may substantially
overlap or even be indistinguishable depending on the specific facts of a case.”);
cf. Daemi v. Church’s Fried Chicken, 931 F.2d 1379, 1387 n.7 (10th Cir. 1991)
(“We are cognizant, however, that often the line between national origin
discrimination claims under Title VII and racial discrimination claims under
§ 1981 is ‘not a bright one.’” (quoting Saint Francis Coll. v. Al-Khazraji, 481
U.S. 604, 614 (1987) (Brennan, J., concurring))). Indeed, in her First Amended
Complaint, Ms. Lucero seems to have viewed the two distinct forms of
discrimination as essentially conterminous relative to Sandia’s alleged treatment
of her. However, Ms. Lucero was granted leave to file a second amended
complaint, see Dist. Ct. Doc. No. 77, at 9, and in that document, Ms. Lucero
clarified that her EEOC charge only related to discrimination “on the basis of
national origin and age.” J.A., Vol. I, at 123 (Second Amend. Compl. for
Damages Due to Discrimination in Employment Based on National Origin & Age
Discrimination, filed Aug. 11, 2010) (emphasis added). She further indicated that
her lawsuit under Title VII related to only national-origin discrimination. Id. at
                                                                        (continued...)

                                         -5-
Lucero on June 23, 2009. On September 18, 2009, Ms. Lucero filed her original

complaint in the district court asserting those same discrimination claims, plus

several others. After the district court granted in part Sandia’s motion to dismiss

and after Ms. Lucero declined to pursue some of her claims, all that remained on

summary judgment were Ms. Lucero’s claims that the size of her raises and



      1
             (...continued)
122 (noting that “[t]his action is brought [under Title VII] to remedy
discrimination on the basis of national origin”).

       We address this matter here because Ms. Lucero’s initial conflation in her
First Amended Complaint of the two forms of discrimination (i.e., discrimination
on the grounds of race and national origin) appears to have contributed to a
limited but noteworthy instance of imprecision in the district court’s summary-
judgment analysis of her Title VII claim. Because it may engender some
confusion, we point it out. Specifically, the district court’s analysis treats the
terms “race” and “national origin” as essentially synonymous and uses them
alternatively throughout its order, in some places referring to the Title VII claim
as relating to national-origin discrimination and, in other places, referring to it as
pertaining to race discrimination. Compare J.A., Vol. I, at 272 (noting that “the
issues that remain before the Court are whether the raises in Plaintiff’s pay, as
well as the restructuring of her job in 2008, were the result of discrimination
based on Plaintiff’s age and national origin” (emphasis added)), with id. at 275
(noting that “all that remain are [Ms. Lucero’s] claims that her raises and the
reorganization of her job were the product of discrimination based on race and
age” (emphasis added)). Perhaps reflecting her view that the two forms of
discrimination are in practical terms—if not strictly legal ones—essentially
conterminous under the circumstances of her case, Ms. Lucero has not objected to
the district court’s summary-judgment analysis on this ground. However,
consistent with her Second Amended Complaint, Ms. Lucero has confirmed in her
appellate brief that her Title VII claim relates only to national-origin
discrimination. See Aplt. Corrected Opening Br. at 3 (“This [a]ppeal contends
that the Court engaged in error when it dismissed via summary judgment
Appellant’s claims of age discrimination under the [Age Discrimination in
Employment Act], and of national origin discrimination under Title VII.”).

                                         -6-
certain changes in her job responsibilities were the product of discrimination

based on age and on national origin. 2

      Recognizing that Ms. Lucero’s case rested on circumstantial evidence, the

district court evaluated her claims under McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). The disputed issues were whether Ms. Lucero had suffered an

adverse employment action and whether she was treated less favorably than

similarly situated employees who were not in her protected classes.

      Regarding the allegedly discriminatory raises, the district court determined

that Ms. Lucero failed to meet her prima facie burden under McDonnell Douglas.

The court explained that

             in order to meet her prima facie burden, [Ms.] Lucero must
             demonstrate that there were in fact other similarly situated . . .
             employees outside her protected class who received higher raises.
             This includes more than merely identifying such allegedly
             similarly situated individuals, but also providing “evidence of


      2
              Although Ms. Lucero has made other claims against Sandia during
the course of this lawsuit, including on appeal, the sole issue that remains after
oral argument relates to the size of the raises she received (which were based in
part on her performance ratings). See Oral Arg. at 12:21–12:32. Notably, at oral
argument, Ms. Lucero abandoned her appeal of the district court’s summary-
judgment ruling on her claim that she was discriminated against when the
Safeguards and Security center was reorganized and her job responsibilities were
changed. See Oral Arg. at 11:57–12:32. Consequently, as the case is currently
postured, we need not review the district court’s decision to exclude from
consideration “a sham issue of fact” allegedly presented in Ms. Lucero’s affidavit.
J.A., Vol. I, at 282; see Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).
The alleged “sham issue” was “whether the reorganization of the [Safeguards and
Security center] resulted in an adverse employment action,” J.A., Vol. I, at 280,
and that issue currently is not before us on appeal, see Oral Arg. at 11:41–12:32.

                                         -7-
             their performance, training, education or skills.”

J.A., Vol. I, at 278 (citation omitted) (quoting Amro v. Boeing Co., 232 F.3d 790

(10th Cir. 2000)). The district court determined that because Ms. Lucero had

provided no evidence “comparing [Ms.] Lucero’s performance, education, skills,

and accomplishments . . . to those of other [members of the technical staff]

outside the protected class who received higher ratings and higher raises than she

received,” Ms. Lucero “[could not] demonstrate that she was indeed ‘similarly

situated’ to the other employees.” Id. at 279.

      The court also held that Ms. Lucero “failed to meet her prima facie burden

to show that her raises amounted to an adverse employment action,” because,

according to the court, “the evidence shows that in each year from 2003 to 2008,

she received a raise that was within the range of raises given to her peers.” Id.

The court reasoned, “This hardly supports an inference that any of [Ms.] Lucero’s

raises constituted an adverse employment action, especially absent any evidence

comparing her performance, education, and skills to those outside the protected

class who received higher raises.” Id. at 280.

      Having determined that Ms. Lucero had not met her burden on the

“similarly situated” and “adverse employment action” elements of her prima facie

case, the court nevertheless proceeded to address the two remaining steps of the

McDonnell Douglas analysis. It found that Sandia had articulated a legitimate,

non-discriminatory reason for Ms. Lucero’s lesser raises, and that the “evidence

                                         -8-
of a legitimate, nondiscriminatory reason is undisputed.” Id. at 284. Finally, the

court determined that Ms. Lucero “failed to come forward with evidence that

Sandia’s explanation of her raises was mere pretext” for unlawful discrimination.

Id. at 285. The district court granted Sandia’s summary-judgment motion in its

entirety.

      Ms. Lucero timely filed this appeal, and the only issue before us is whether

the district court properly entered summary judgment against Ms. Lucero on her

age and national-origin claims related to her allegedly discriminatory raises.

                                         II

                                         A

      We review the district court’s order granting summary judgment de novo,

and we draw all reasonable inferences in favor of the nonmoving party—in this

case, Ms. Lucero. See Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th

Cir. 2007). “[S]ummary judgment is appropriate ‘if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” Morris v. City of Colo. Springs, 666 F.3d 654, 660

(10th Cir. 2012) (quoting Fed. R. Civ. P. 56(a)).

       Ms. Lucero’s only remaining claims of discrimination are that she received

lower raises than the younger, non-Hispanic coworkers, because of her age and

national origin. Under the Age Discrimination in Employment Act (“ADEA”), it

is unlawful for an employer to “discriminate against any individual with respect

                                        -9-
to [her] compensation . . . because of such individual’s age,” 29 U.S.C. §

623(a)(1), if that individual is forty or older, id. § 631(a) (“The prohibitions in

this chapter shall be limited to individuals who are at least 40 years of age.”); see

8 Lex K. Larson, Employment Discrimination § 120.01, at 120-2 (2d ed. 2011)

(noting that the ADEA “forbids age discrimination in employment of persons at

least forty years of age” and generally there is “no longer an upper age for

protection”). Likewise, under Title VII, it is an unlawful employment practice for

an employer “to discriminate against any individual with respect to [her]

compensation . . . because of such individual’s . . . national origin.” 42 U.S.C.

§ 2000e–2(a)(1); see, e.g., Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th

Cir. 2012); Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1164 (10th Cir. 2007)

(en banc).

      Here, there is an absence of direct evidence of discrimination. Rather, Ms.

Lucero has attempted to prove discrimination through circumstantial evidence

under the McDonnell Douglas framework, which is properly employed in

analyzing such evidence under both Title VII and the ADEA. See McDonnell

Douglas, 411 U.S. at 802 (Title VII); Simmons v. Sykes Enters., Inc., 647 F.3d

943, 947 (10th Cir. 2011) (ADEA).

      Ms. Lucero carries the initial burden of establishing a prima facie case of

age or national-origin discrimination. See McDonnell Douglas, 411 U.S. at 802.



                                         -10-
Only if Ms. Lucero can make out her prima facie case does the burden shift to

Sandia to articulate some legitimate, nondiscriminatory reason for its actions. See

id. In order to prove her case through circumstantial evidence, Ms. Lucero must

show that she was “given a lesser raise[] than other similarly situated non-

protected class employees.” Amro, 232 F.3d at 798.

      “[W]hether employees are similarly situated—i.e., whether they are ‘similar

in all material respects,’—is a fact-intensive inquiry, and what facts are material

will vary depending on the case.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151,

1157 (9th Cir. 2010) (citation omitted) (quoting Nicholson v. Hyannis Air Serv.,

Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)); accord Good v. Univ. of Chi. Med.

Ctr., 673 F.3d 670, 675 (7th Cir. 2012) (“To determine whether a plaintiff’s

co-worker was similarly situated for purposes of this analysis, a court must make

a ‘flexible, common-sense’ evaluation of the relevant factors.” (quoting Henry v.

Jones, 507 F.3d 558, 564 (7th Cir. 2007))). Compare Moran v. Selig, 447 F.3d

748, 755–56 (9th Cir. 2006) (holding that the plaintiffs—white baseball

players—had failed to establish a prima facie case of disparate treatment under

Title VII because the African-American baseball players they used as comparators

were not similarly situated; the African-American baseball players had been

excluded from playing in the Major Leagues on account of their race, and it was

primarily this material difference that prompted Major League Baseball to

provide a benefit to African-American players that was not available to white

                                        -11-
players), with McGuinness v. Lincoln Hall, 263 F.3d 49, 54–55 (2d Cir. 2001)

(holding that the plaintiff had established a prima facie case of discrimination

under Title VII where both she and a male comparator had been fired, and she

alleged discrimination in the amount of severance that she received, because she

had “established that she and [the male comparator] held positions of roughly

equivalent rank . . . , that [they] were fired at roughly the same time, that the

decisions with respect to the severance were both made at the highest levels of the

company, and that [the comparator] received considerably more money in

severance”).

      Here, Ms. Lucero has failed to establish her prima facie case, and summary

judgment was warranted on that ground. Our decision in Amro is particularly

instructive. We explained the plaintiff’s failing in Amro as follows:

               [Mr. Amro] asserts that his pay raise was less than the raises
               received by 92% of the engineers in his classification. However,
               he fails to demonstrate that there were in fact other similarly
               situated engineers outside his protected class who received higher
               raises. After carefully reviewing the record, we agree with the
               district court that “although [Mr. Amro] has identified others who
               allegedly are similarly situated engineers, he has not provided
               any evidence of their performance, training, education or skills.
               [Mr. Amro’s] own opinion that his performance is excellent does
               not raise a fact question as to how his performance compares to
               others.” Amro [v. Boeing Co., 65 F. Supp. 2d 1170, 1186 (D.
               Kan. 1999)]; see also Jones v. Denver Post Corp., 203 F.3d 748,
               754 (10th Cir. 2000) (“‘It is the manager’s perception of the
               employee’s performance that is relevant, not plaintiff’s
               subjective evaluation of his own relative performance.’”)
               (quoting Furr v. Seagate Tech., Inc., 82 F.3d 980, 988 (10th Cir.


                                             -12-
            1996)). In essence, Mr. Amro alleges “[t]he simple fact that [he]
            did not receive as high a raise as [he] feels he is worth.” Murphy
            v. Yellow Freight Sys., Inc., 832 F. Supp. 1543, 1550 (N.D. Ga.
            1993). That is insufficient.


232 F.3d at 798 (first and fourth alterations added). 3 As in Amro, Ms. Lucero has

failed to provide any evidence that the comparators that she has put forth are

similarly situated, much less evidence that she and those comparators were

similar in all material respects. More specifically, Ms. Lucero has provided no

evidence regarding the training, education, or skills of the Sandia employees who

received higher raises. Mr. Sandoval’s testimony underscores the significance of

this failing of proof. Mr. Sandoval explained in his deposition that Ms. Lucero’s

co-workers included employees who “were all doing unique kinds of activities,”

and that Ms. Lucero was, in some years, “competing [for VOC ratings] against

some very highly technical people doing very highly technical work.” J.A., Vol.

I, at 164 (Dep. of Joseph Sandoval, taken Mar. 31, 2010). In 2005, for example,



      3
              A panel of our court reached a similar conclusion in a non-
precedential decision. See Welder v. Univ. of Okla. Bd. of Regents, 242 F.3d 392,
No. 99-6430, 2000 WL 1854132, at *1 (10th Cir. Dec. 19, 2000) (unpublished
table case) (affirming the district court’s order granting summary judgment on the
plaintiff’s claim that “the University discriminated against her by paying her a
lower salary than male professors in her College,” because “the evidence d[id] not
show that plaintiff was similarly-situated to any male who received higher pay”);
see also Taher v. Wichita State Univ., 526 F. Supp. 2d 1203, 1219 (D. Kan. 2007)
(granting summary judgment on the plaintiff’s discriminatory pay claim because
he had not established that any other employees to whom the defendant had given
higher pay raises were similarly situated).


                                       -13-
her co-workers included a staff member who had a doctorate degree in “physics,

mathematics and engineering.” Id. at 163. And others had master’s degrees in

business administration and one had a master’s degree in national security. Ms.

Lucero (who only possessed a highschool diploma) failed to offer proof that she

was similarly situated to those or other Sandia employees.

      At bottom, Ms. Lucero’s assertion of a viable prima facie case (regarding

the similarly situated component) rests solely on an alleged concession made by

Sandia that the other members of the technical staff of Ms. Lucero’s workgroup

were similarly situated. Sandia attached as an exhibit to its motion for summary

judgement information regarding all of the members of the technical staff of the

Safeguards and Security center, including their performance ratings, ages, races,

salaries, and raises from 2003 through 2008. In its filings, Sandia referred to the

other members of the technical staff as Ms. Lucero’s “peers.” For example,

Sandia averred that Ms. Lucero’s “salary increases and [VOC ratings] were

commensurate with those of her peers.” J.A., Vol. I, at 37–38 (Def.’s Mot. for

Summ. J., filed July 12, 2010) (referring to the compensation data for all of the

members of the technical staff in the Safeguards and Security center); see also id.

at 44 (“[Ms. Lucero’s] raises were not out of step with her peers[’].”

(capitalization altered)); id. at 44–45 (“The lowest raise for [Ms. Lucero’s] peer

group [in September 2007] was 1.3%.”); id. at 45 (“Only three of twelve peers



                                        -14-
received larger raises than [Ms. Lucero] did [in September 2008] . . . .”). 4

      In response to Sandia’s motion for summary judgment, Ms. Lucero pointed

to the data provided by Sandia to show that she received lower raises than her

younger, non-Hispanic counterparts. Regarding the purported concession, she

wrote in a footnote: “Sandia cannot argue that [Ms. Lucero’s] comparisons are not

with ‘similarly situated employees’ because Sandia identified Plaintiff’s ‘peers’

as the [members of the technical staff], and [Ms. Lucero’s] comparison tables are

exclusively based on [the salary information in Sandia’s exhibit].” Id. at 149 n.7

(Pl.’s Resp. to Sandia’s Mot. for Summ. J., filed Aug. 23, 2010) (emphasis

altered).

      Ms. Lucero now claims that because Sandia relied on the data regarding the

other members of the technical staff in an effort to show that Ms. Lucero was not

treated less favorably than younger, non-Hispanic employees, Sandia has

conceded that the other members of the technical staff were—in the eyes of the

law—similarly situated. Sandia vigorously contests the notion that it made such a

concession.




      4
             Furthermore, in discussing Ms. Lucero’s now-withdrawn First
Amendment claim, Sandia wrote: “[T]he relevant context is [Ms. Lucero’s] raises
when viewed against those of her similarly-situated peers who did not engage in
the same sort of speech as [Ms. Lucero]. Some of [Ms. Lucero’s] raises—as well
as her overall salary—were as great as or greater than her peers who did not raise
safety concerns.” J.A., Vol. I, at 52.

                                         -15-
      Sandia essentially argues that it used the term “peers” in referring to the

other members of the technical staff because they constituted the conceivable

possible universe of employees from which Ms. Lucero might endeavor to

identify similarly situated employees to establish her prima facie case. And, by

“showing that [Ms.] Lucero was not disadvantaged in comparison with her co-

workers [i.e., her peers],” Aplee. Br. at 13, who were not members of an age or

national-origin protected group, Sandia sought to demonstrate a proof deficiency

of Ms. Lucero’s prima facie case and to shift the burden to her on summary

judgment (as the non-movant) to come forward with sufficient evidence—in

particular, evidence that she was treated less favorably than similarly situated

non-protected employees. This line of argument, insists Sandia, “was not a

concession that [Ms.] Lucero’s peers [i.e., the other members of the technical

staff] were similarly situated to her.” Id. at 11. In other words, reasons Sandia,

it was not conceding that Ms. Lucero actually could successfully identify

similarly situated comparators—as that concept is understood in our

precedent—(among the other members of the technical staff or otherwise), but

instead it was just “shift[ing] the burden onto [Ms.] Lucero to show that she

possessed [all] necessary evidence.” Id. at 12.

      In our view, Sandia has the more cogent position in this dispute, and we

reject Ms. Lucero’s concession claim. In doing so, we acknowledge that Sandia’s

summary-judgment briefing was not a model of clarity. For example, Sandia did

                                        -16-
not expressly explain its rationale in using the term “peers” (even though it could

be gleaned with some attention from the substance and context of its argument),

and it cited our decision in Johnson v. Weld County, 594 F.3d 1202 (10th Cir.

2010), which at best is only remotely related to the similarly situated prima facie

matter. Indeed, in Johnson, we “assume[d] without deciding” that plaintiff had

established her prima facie case. 594 F.3d at 1211. However, at least one thing

was pellucid from Sandia’s summary-judgment briefing: Sandia was not relieving

Ms. Lucero of her burden to establish that she was treated less favorably than

similarly situated comparators. In this regard, Sandia threw down the gauntlet in

patent terms, stating that “[Ms. Lucero] could not establish that she was treated

less favorably than younger or non-Hispanic Sandians who were similarly situated

to herself.” Aplee. Br. at 11. 5 At that juncture, it was incumbent upon Ms.


      5
              Even if we were willing to accept (which we are not) that Ms. Lucero
could have reasonably believed that Sandia conceded in its summary-judgment
filing that the other members of the technical team were similarly situated to her
under the law—and thus relieved her of the proof burden on that element of her
prima facie case—Sandia’s reply brief would have bluntly disabused her of that
notion. In its summary-judgment reply brief, Sandia stated that “it is [Ms.
Lucero’s] burden at this stage to demonstrate that similarly situated employees
were treated more favorably. This is not simply a matter of pointing out non-
Hispanics or younger people who received larger raises. It involves establishing
that these individuals are similar to [Ms. Lucero] in ways that influence raises.”
J.A., Vol. I, at 198 (Def.’s Reply in Supp. of Mot. for Summ. J., filed Sept. 14,
2010). Reviewing the overall substance of its argument, Sandia clearly and
unequivocally controverted its alleged “concession”—by pointing out that the
similarly situated burden of proof fell on Ms. Lucero; by citing Amro; and by
concluding that Ms. Lucero “has not established a prima facie case of dissimilar
                                                                       (continued...)

                                        -17-
Lucero to ascertain the legal requirements for similarly situated comparators and

identify fellow employees (presumably other members of the technical staff) that

qualified under those legal requirements. This she did not do.

      In sum, because Ms. Lucero has failed to provide any evidence that she was

treated differently from any similarly situated employees, who were not in

protected classes based on age or national origin, she has failed to make out a

prima facie case of discrimination. Accordingly, her claim fails on the first step

of the McDonnell Douglas burden-shifting analysis. On this ground, we affirm

the district court’s summary-judgment ruling in favor of Sandia.

                                         B

      There currently is before us one pending motion to seal: specifically, a joint

motion of the parties to seal Volume II of the Corrected Joint Appendix. 6 The

      5
             (...continued)
treatment.” Id. Even if at no other time, when she received Sandia’s reply brief,
Ms. Lucero was on clear notice that Sandia did not concede—and had not
conceded—that Ms. Lucero’s fellow members of the technical staff were similarly
situated. At that point, if Ms. Lucero truly felt she had been misled, she was
obliged to take whatever protective steps were necessary to place before the court
evidence to support the similarly situated component of her prima facie case (e.g.,
seeking leave to file a surreply).
      6
              Ms. Lucero also filed with us an unopposed motion to seal what she
called her “Brief-in-Chief.” Pl.’s Unopposed Mot. to Place Her Brief-in-Chief
Under Seal at 1 (filed Apr. 8, 2011). The subject of her motion—i.e., the Brief-
in-Chief—had been filed on April 4, 2011. Ms. Lucero represented to this Court
that the brief contained “certain evidence . . . which had been placed under seal at
the District Court and which should not be made available for public disclosure.”
                                                                       (continued...)

                                        -18-
clerk’s office of our court provisionally granted the motion, pending our final

determination. Although we sound a cautionary note, we ultimately grant the

motion to seal.

      “A party seeking to file court records under seal must overcome a

presumption, long supported by courts, that the public has a common-law right of

access to judicial records.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J.,

663 F.3d 1124, 1135 (10th Cir. 2011). Accordingly, “the parties must articulate a

real and substantial interest that justifies depriving the public of access to the

records that inform our decision-making process.” Helm v. Kansas, 656 F.3d

1277, 1292 (10th Cir. 2011); see Gambale v. Deutsche Bank AG, 377 F.3d 133,

142 (2d Cir. 2004) (“[T]hese documents, which related to the court’s ruling on a


      6
              (...continued)
Id. She pledged to “take the necessary steps to correct the matter in her Corrected
Brief-in-Chief when it is filed.” Id. at 2. Our clerk’s office provisionally granted
this motion to seal, pending our final determination of the matter. Ms. Lucero did
file a corrected opening brief, which the clerk’s office substituted for her initial
Brief-in-Chief. The clerk’s office purged the latter document from its files.
Accordingly, the original Brief-in-Chief is no longer available in any form to the
public in the files of this court. Therefore, we DENY the motion to seal as moot.
To avoid any confusion, we further note that on the cover of Ms. Lucero’s
corrected brief, she mistakenly stated that it should be filed under seal subject to
the provisional sealing order of our clerk’s office, which in fact only related to
the initial Brief-in-Chief. The clerk’s office followed Ms. Lucero’s lead and
mistakenly filed the corrected brief under seal. At the close of oral argument, the
parties suggested that the corrected opening brief should be treated as a public
document. See Oral Arg. 32:40–59, 34:42–46. The clerk’s office subsequently
confirmed that this brief was sealed in error and clarified in its records that the
corrected opening brief is publicly accessible.


                                          -19-
motion for summary judgment, were presumptively subject to public access.”);

8A Charles Alan Wright, et al., Federal Practice & Procedure § 2042, at 234 (3d

ed. 2010) (“The strongest arguments for access apply to materials used as the

basis for a judicial decision of the merits of the case, as by summary judgment.”);

see also Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th

Cir. 1983) (“Throughout our history, the open courtroom has been a fundamental

feature of the American judicial system. Basic principles have emerged to guide

judicial discretion respecting public access to judicial proceedings. These

principles apply as well to the determination of whether to permit access to

information contained in court documents because court records often provide

important, sometimes the only, bases or explanations for a court’s decision.”).

      In their joint motion, by way of justification, the parties simply stated,

“The documents in Volume II of the Corrected Joint Appendix consist of

documents that were filed under seal in the district court pursuant to a court

order.” Joint Mot. to File Vol. II of Corrected J.A. Under Seal at 2 (filed Apr. 18,

2011). The parties included with the motion a copy of the district court’s one-

page sealing order, in which the court summarily noted that it was sealing

evidence with Ms. Lucero’s date of birth and evidence with confidential

information.

      At the outset, in light of the well-settled presumption against denying



                                        -20-
public access to judicial documents, we feel obliged to underscore that parties

should not routinely or reflexively seek to seal materials upon which they

predicate their arguments for relief, particularly dispositive relief such as

summary judgment. Furthermore, a district court’s decision to seal certain

pleadings or evidence certainly is not controlling with respect to our independent

determination to maintain the same items under seal on appeal. Accordingly,

parties would be well advised to affirmatively offer justifications for the

continued sealing of materials. This did not happen here: the parties sole

proffered justification for sealing Volume II of the Corrected Joint Appendix was

that the district court had elected to seal the items that were in that volume.

      Nonetheless, to better assess the merits of the pending motion to seal

Volume II, we have taken the initiative of reviewing certain filings in the district

court related to the sealing question. They reveal that the documents sought to be

sealed contain confidential information relating to Sandia’s personnel and

business practices—in particular its method of determining compensation and the

actual compensation of certain nonparty employees. As the district court noted in

describing one such sealed document in its summary-judgment ruling, it contains

             detailed information regarding the name, age, ethnicity, salary,
             VOC rating, base pay, and non-base pay of each of the other
             [members of the technical staff] in [Ms.] Lucero’s organization
             from 2003 to 2008, as well as information regarding how well
             each of them was compensated as compared with the private
             market for individuals with similar skills, and the rate at which


                                         -21-
                 each was compensated compared to Sandia peers.


J.A., Vol. I, at 278 n.4. Further, in Volume II, there is an excerpt from the

transcript of Ms. Lucero’s deposition, in which she gives the exact date of her

birth. 7

           In light of our investigation of the merits of the pending motion to seal, we

conclude that the parties’ confidentiality concerns are sufficiently weighty that

Volume II of the Corrected Joint Appendix should remain under seal. See

Sorenson Commc’ns, Inc. v. FCC, 659 F.3d 1035, 1041 n.4 (10th Cir. 2011)

(making orders to seal the parties’ briefs and a portion of the joint appendix

permanent “to protect confidential information relating to [the defendant’s]

finances and business practices”). Therefore, we maintain the seal imposed

provisionally by our clerk’s office with respect to Volume II of the Corrected

Joint Appendix. 8

           7
            The federal rules provide protections against the public disclosure of
more than the year of birth. See, e.g., Fed. R. Civ. P. 5.2(a)(2); Fed. R. App. P.
25(a)(5).
           8
              In contrast to the documents themselves contained in Volume II, we
note that we would not have shied away from disclosures of the information
contained in the documents, if it had proved necessary for our disposition of this
appeal. Compare Qwest Corp. v. FCC, --- F.3d ----, 2012 WL 3156451, at *2 n.1
(10th Cir. Aug. 6, 2012) (referencing sealed documents in the record, but only
referring to confidential numerical data in general terms and electing “not [to]
supply precise figures, as they are redacted in the publicly accessible documents”
partly because we saw “no need to do otherwise” (emphasis added)), with United
States v. Strache, 202 F.3d 980, 987 (7th Cir. 2000) (observing that where a
                                                                       (continued...)

                                            -22-
                                        III

      Because Ms. Lucero has failed to make out a prima facie case of

discrimination, we AFFIRM the judgment of the district court. In addition, we

GRANT the parties’ joint motion to seal Volume II of the Corrected Joint

Appendix.




                                      ENTERED FOR THE COURT



                                      Jerome A. Holmes
                                      Circuit Judge




      8
              (...continued)
district court has adopted the findings of a sealed pre-sentence report, it is
appropriate (i.e., necessary) to address those findings, in order to resolve
challenges to the district court’s sentencing decisions). The public’s interest in
access to the grounds for judicial decision-making would have warranted at least
that much. Indeed, the district court followed such a course in its summary-
judgment ruling—disclosing limited information in sealed documents that was
necessary to its ruling, including general information regarding Sandia’s
personnel data. See J.A., Vol. I, at 278 n.4 (“Due to the private nature of such
information [in sealed documents], the Court will discuss the data generally but
will not refer to any of those individuals by name.”). The parties have not
objected to the district court’s approach, and they would be hard-pressed to do so.
Benefitting from the district court’s very limited general disclosures of
information in the sealed documents, in resolving the issues in this appeal, we
have felt no need to make further disclosures of information found in the sealed
documents, and we have endeavored scrupulously not to do so.


                                       -23-
