                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 15 2004
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                Clerk

    MICHAEL R. CUENCA,

                Plaintiff-Appellant,

    v.                                                   No. 03-3145
                                                  (D.C. No. 98-CV-4180-SAC)
    UNIVERSITY OF KANSAS;                                  (D. Kan.)
    MYRON A. KAUTSCH and
    JAMES K. GENTRY, as individuals,

                Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before EBEL , BALDOCK , and LUCERO , Circuit Judges.



         Even though the appellant appears pro se, this case presents a

representative example of a problem increasingly encountered by the federal

courts: the submission of voluminous and poorly organized materials in



*
        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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
connection with summary judgment matters. Michael R. Cuenca brought this

action pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act,

42 U.S.C. §§ 2000e to 2000e-17, alleging that the defendants had discriminated

against him on the basis of race, violated his constitutional rights, and illegally

retaliated against him when he complained. In response to the defendants’ motion

for summary judgment, Cuenca submitted a ninety-page autobiographical

affidavit, containing 248 paragraphs, replete with conclusory statements,

statements of opinion, and matters patently beyond his personal knowledge. He

supported this affidavit with nearly 1000 pages of supplementary materials, much

of it of dubious admissibility and relevance. The district court winnowed

Cuenca’s claims and materials, and entered a twenty-five page, published decision

granting summary judgment for the defendants.    1
                                                     Cuenca v. Univ. of Kan. ,

265 F. Supp. 2d 1191 (D. Kan. 2003).

      Cuenca’s opening brief in this court does not help to narrow or refine the

issues. It contains an introductory factual statement that presents a lengthy

account of his employment with the University of Kansas and the University of

Kansas’s alleged discriminatory policies. He does not tie this amalgamation of

background information and potentially relevant complaint to the later legal


1
      Throughout its summary judgment order, the district court refers to the
“defendant”; however, all defendants moved for summary judgment and it is
apparent that the district court granted summary judgment for all of them.

                                          -2-
argument sections of the brief, however, some of which are devoid, or nearly

devoid, of particularized factual or evidentiary references. In effect, Cuenca has

presented a mass of miscellaneous material and left it to this court to collect,

organize, and articulate the cumulative legal significance of pertinent items

therein with respect to each of his various claims.

      The argument section of Cuenca’s brief gives only the most cursory focus

to most of the incidents and facts presented to the district court. He relies, for

example, on “the ‘voluminous’ record of disciplinary actions, poor performance

reviews, lower salary increases, exclusion, hyperscrutiny, misrepresentation of

facts, violations of procedures and denials of due process” he claims can be found

in the record. Aplt. Opening Br. at 17. He refers vaguely to “myriad, changing

reasons, reasons unworthy of belief, deliberate misconduct, and several instances

of lying under oath or in written documents, which provide ample, sufficient

evidence of pretext and mendacity,” citing only one specific example of the same.

Id. at 18–19. He asserts that the district court failed to draw all necessary

inferences in the light most favorable to him. He fails, however, to describe what

specific inferences, based on specific evidence, that it should have drawn in his

favor. Id. at 21–22. Notwithstanding the limited number of specific, fact-based

arguments he presents, Cuenca apparently wishes us either to perform his task of

applying the law to the facts, or–worse yet–to comb the entire record and to refine


                                          -3-
his arguments concerning the incidents he described in his voluminous

submissions to the district court. This we will not do.

      We will not become advocates for Cuenca, combing the record to make his

case for him. Adler v. Wal-Mart Stores, Inc.    , 144 F.3d 664, 672 (10th Cir. 1998);

see also Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995).

Appellate arguments must contain “appellant’s contentions and the reasons for

them, with citations to the authorities and parts of the record on which the

appellant relies.” Fed. R. App. P. 28(a)(9)(A).

      We uphold the district court’s treatment of Cuenca’s affidavit and

supporting materials. On appeal, we limit our review to the issues raised and

properly supported.

                                          I

      The district court’s order recites the facts in detail, and we do not repeat

them here. The Journalism School at the University of Kansas hired Cuenca in

1994 as a tenure-track Assistant Professor of Visual Communications. Cuenca’s

birth certificate specifies his father’s race as Filipino, and Cuenca identifies

himself as Hispanic based on his Mexican ancestry. Cuenca asserts that the

University of Kansas and the other named defendants discriminated against him

on the basis of race and retaliated against him in various ways from the time he

was hired until he was denied tenure and his appointment ended in 2001.


                                          -4-
                                         II

                                         A

      Before turning to the merits of the summary judgment determination, we

begin by analyzing Cuenca’s procedural issues. He contends that the district

court erred: (1) by granting defendants’ motion to substitute a revised summary

judgment memorandum and without permitting him to respond to the

memorandum; and (2) by striking portions of his summary judgment affidavit

without specifying which portions it struck.

                                          1

      The defendants moved to substitute a corrected memorandum of law in

support of their motion for summary judgment, because their original motion

exceeded the district court’s page limitation and contained a factual error.

Contrary to Cuenca’s argument, this was not a “completely new motion for

summary dismissal.” Aplt. Opening Br. at 11. The changes were minor and,

except for the correction of the fact error, were not substantive. Cuenca fails to

show that he was prejudiced in any way by the substitution. The district court did

not abuse its discretion by permitting substitution.

                                          2

      The defendants moved to strike Cuenca’s affidavit. The district court did

not disregard Cuenca’s affidavit in toto as insufficient under Fed. R. Civ. P.


                                         -5-
56(e), as defendants requested. Instead, it stated it would simply disregard any

inadmissible portions of the affidavit.     Cuenca , 265 F. Supp. 2d at 1200.

       Cuenca contends that the district court’s approach has deprived him of an

opportunity to obtain review of its specific evidentiary determinations. We

review the district court’s decision on evidentiary issues pertaining to summary

judgment for an abuse of discretion and we have previously approved the district

court practice of ignoring inadmissible portions of an affidavit, as an alternative

to disregarding the entire affidavit.     Jones v. Barnhart , 349 F.3d 1260, 1270

(10th Cir. 2003). Cuenca’s complaint about the lack of evidentiary rulings is

significant only to the extent that the improper exclusion of evidence resulted in a

substantive error in the summary judgment determination.       2
                                                                   In examining the

record for substantive error, however, we consider only the specific challenges

that Cuenca raises and properly supports in his briefs on appeal. As to those

errors, we conclude that even if the district court had considered all (and excluded

none) of the evidentiary material in Cuenca’s affidavit, summary judgment would

still be appropriate.



2
        Our review of Cuenca’s affidavit convinces us that some of the materials
should have been excluded as a matter of law, because they are conclusory,
represent opinion rather than fact, or show on their face that they were not made
from personal knowledge. See BancOklahoma Mortgage Corp. v. Capital Title
Co. , 194 F.3d 1089, 1101 (10th Cir. 1999); Rice v. United States , 166 F.3d 1088,
1092 (10th Cir. 1999); Fed. R. Civ. P. 56(e).

                                              -6-
                                         B

      We next review the merits of the district court’s summary judgment

determination.

      Summary judgment is appropriate if the pleadings, depositions, answers to
      interrogatories, and admissions on file, together with the affidavits, if any,
      show that there is no genuine issue as to any material fact and that the
      moving party is entitled to a judgment as a matter of law. We review a
      grant of summary judgment de novo , applying the same standard as the
      district court. We examine the record to determine whether any genuine
      issue of material fact was in dispute; if not, we determine whether the
      substantive law was applied correctly, and in so doing we examine the
      factual record and reasonable inferences therefrom in the light most
      favorable to the party opposing the motion. However, where the non
      moving party will bear the burden of proof at trial on a dispositive issue,
      that party must go beyond the pleadings and designate specific facts so as
      to make a showing sufficient to establish the existence of an element
      essential to that party’s case in order to survive summary judgment.

Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation omitted).

      On appeal, Cuenca argues that the district court: (1) failed to apply properly

the mixed-motive analysis contained in Section 107 of the 1991 Civil Rights Act,

42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B); (2) disregarded his direct

evidence of discrimination and retaliation; (3) failed to draw all necessary

inferences in the light most favorable to him; and (4) improperly disregarded his

statistical evidence.




                                         -7-
                                              1

       We consider Cuenca’s first two summary judgment issues together. Cuenca

argued to the district court that his case should be governed by the mixed-motive

analysis set forth in § 107 of the 1991 Civil Rights. The district court did not

directly address this argument. It may have rejected Cuenca’s mixed-motive

analysis, however, based on its conclusion that he had presented no direct

evidence of discrimination and retaliation.         Cuenca , 265 F. Supp. 2d at 1205. At

the time of the district court’s decision, cases in this circuit held that a plaintiff

seeking to employ a mixed-motive analysis was required to show direct evidence

of discrimination.   See, e.g. , Shorter v. ICG Holdings, Inc.    , 188 F.3d 1204, 1208

n.4 (10th Cir. 1999).

       After the district court reached its decision in this case, however, the

Supreme Court determined that a plaintiff may prove the mixed-motive analysis

under § 107 of the 1991 Act by circumstantial evidence as well as direct evidence.

Desert Palace, Inc. v. Costa   , 539 U.S. 90, 98–102 (2003). Cuenca now argues

both that he has provided direct evidence of discrimination and that, in any event,

the circumstantial evidence he offered meets the standards of § 107.

       Cuenca did not provide direct evidence of discrimination or retaliation that

would permit his claims to go to a jury on a mixed-motive theory. Direct

evidence requires “proof of an existing policy which itself constitutes


                                              -8-
discrimination,” Tomsic v. State Farm Mut. Auto. Ins. Co.       , 85 F.3d 1472, 1477

(10th Cir. 1996) (quotation omitted), or “oral or written statements on the part of

a defendant showing a discriminatory motivation,”       Kendrick v. Penske Transp.

Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). Statements which on their

face merely state a personal opinion are not direct evidence.     Tomsic , 85 F.3d at

1477. The district court correctly found that Cuenca failed to point to any direct

evidence of discrimination. We specifically analyze each of the statements on

which Cuenca relies for his direct evidence argument in the following paragraphs

of this order and judgment, concluding that they also do not provide

circumstantial evidence of discrimination.

       The specific incidents Cuenca details in his brief also do not provide

circumstantial evidence demonstrating that unlawful discriminatory animus

motivated the University of Kansas’s adverse employment decisions.          See Mereish

v. Walker , 359 F.3d 330, 339 (4th Cir. 2004) (interpreting summary judgment

burden under Civil Rights Act of 1991 in light of      Desert Palace ). Cuenca relies

primarily on the statements of Frank Hoy, an outside tenure reviewer chosen by

Cuenca who criticized Cuenca for “bring[ing] up a minority issue” in his

statement of teaching philosophy, and warned that “the information contained in

Cuenca’s own voluntary statements can be taken as a forewarning of future

attitude, perhaps even problems” if Cuenca were granted tenure.        Cuenca , 265 F.


                                            -9-
Supp. 2d. at 1212 (record citations omitted). The district court found that Cuenca

had failed to provide any evidence that the University of Kansas adopted or relied

on these statements in reaching the decision to deny him tenure.

       In general, statements by a non-decisionmaker, such as Hoy, cannot be used

to establish that a decision was tainted by discriminatory animus.     See McKnight

v. Kimberly Clark Corp. , 149 F.3d 1125, 1129 (10th Cir. 1998) (age

discrimination case). An exception arises when the record contains evidence from

which a reasonable inference may be drawn that a decisionmaker adopted or

relied upon the allegedly discriminatory statement in reaching its decision.

See, e.g., Betkerur v. Aultman Hosp. Ass’n     , 78 F.3d 1079, 1097 (6th Cir. 1996).

Relying on this exception, Cuenca argues that the University of Kansas’s failure

to disavow Hoy’s statements should result in an inference that its decisionmakers

took Hoy’s comments into account when making their decision. The inferential

burden runs the other way, however; Cuenca had the burden to link the outside

reviewer’s statements to the decision to deny tenure.      See id. Because he failed to

create a genuine issue of material fact on this point summary judgment was

proper. 3


3
      Cuenca’s reliance on language in   Price Waterhouse v. Hopkins , 490 U.S.
228 (1989), is unavailing. In that case, the evidence showed that the
decisionmaker for a partnership “solicited evaluations from all the firm’s
partners” and “generally relied very heavily on such evaluations in making its
                                                                       (continued...)

                                           -10-
      Cuenca also relies on a comment by Ted Fredrickson, a fellow faculty-

member, who he alleges “once warned me that playing the race card in this

workplace would cost me.” (V R. ex. 22, at 1.) This isolated observation,

unrelated to any employment action, is neither direct nor circumstantial evidence

of discrimination or retaliation. Nor does Fredrickson’s statement to a student

newspaper defending the current and former dean against Cuenca’s allegations of

racism and dismissing Cuenca’s assertion of discriminatory motivation as “an

unvarnished falsehood and an unwarranted attack” that would have an adverse

impact on the Journalism School, demonstrate discriminatory or retaliatory

animus by defendants. (VI   R. ex. 122.)

      Cuenca also challenges a statement by defendant former Journalism School

Dean Kautsch in a 1995 letter to his superiors, stating that he was attempting to

terminate Cuenca because Cuenca was “making demands and stating

expectations.” (VI R. ex. 159; see Aplt. Opening Br. at 16.) Cuenca argues that

non-minority personnel also made demands and stated expectations at times,



3
 (...continued)
decision.” Id. at 256. Given these facts, the defendant’s Policy Board’s failure to
disclaim reliance on stereotyped comments made by some of the partners raised
an inference that the decision to place the plaintiff’s candidacy on hold was the
product of discrimination. Id. Here, however, Hoy was not affiliated with the
University of Kansas and Cuenca failed to show that the University of Kansas’s
decisionmakers relied on the statements about race in Hoy’s evaluation in
reaching their decision.

                                           -11-
without being subject to termination. Kautsch’s actual statement, however, was

that Cuenca was “making demands and stating expectations that can not be met

because they exceed the School’s budgetary capacity and are inconsistent with the

duties he was hired to perform.”   (VI R. ex. 159.) Cuenca fails to show that

Kautsch’s analysis of Cuenca’s demands was unworthy of belief or a pretext for

discrimination. Moreover, as the district court noted, Cuenca failed to present

evidence to show that the University of Kansas terminated his employment as the

result of the demands and expectations complained of in Kautsch’s letter.

      Cuenca further charges that the University of Kansas’s Equal Employment

Opportunity (EEO) coordinator improperly suspended investigation of Cuenca’s

internal discrimination complaint after the University of Kansas’s counsel blamed

Cuenca for a failed mediation. The coordinator testified that Cuenca was

responsible for ending the mediation process, and that he did so because the

process could not give him the immediate tenure he sought.    Noting the

coordinator’s further testimony that he learned that Cuenca was seeking

immediate tenure from the University of Kansas’s attorney, Cuenca argues that

the attorney’s statement, coupled with the decision to terminate mediation, is

evidence of discrimination or retaliation. He points us to no evidence in the

record, however, that he did not in fact seek tenure through the mediation.

Moreover, he fails to establish that the statements by the University of Kansas’s


                                         -12-
counsel, or the decision to terminate internal mediation in favor of the outside

EEOC process constituted an “adverse employment action” that had an effect

on his employment status.   Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 533

(10th Cir. 1998).

      Finally, Cuenca contends there is evidence of retaliation in a brief

defendants filed in this case. He argues that in Defendants’ Reply to Plaintiff’s

Memorandum in Opposition to Defendants’ Motion for Summary Judgment the

defendants presented a justification for actions taken against him based on his

opposition to discrimination in the workplace. Defendants argued in that pleading

that “[a]t worst, Plaintiff has shown Kautsch and Gentry as supervisors who were

often frustrated by Plaintiff’s lack of collegiality, unprofessional behavior, and

unwarranted personal attacks on students, colleagues, the Journalism School, the

University of Kansas or others. The evidence also showed that Plaintiff often

wrote inflammatory correspondence to others.” (I R. doc. 205 at 16–17.)

      Cuenca argues that this statement shows that defendants not only developed

illegal animus against him, but believed that their illegal animus was justified.

In our view, however, this statement says nothing of the kind, nor can illegal

motives be imputed to defendants based on this statement. The record reveals

that Cuenca’s letters and e-mails to his supervisors contained a large amount of

vituperation, impertinence, and criticism of both the University of Kansas


                                         -13-
administration and colleagues.    4
                                      The discrimination statutes do not confer a

license to present grievances in an arrogant and uncivil manner.      See Robbins v.

Jefferson County Sch. Dist. R-1       , 186 F.3d 1253, 1259–60 (10th Cir. 1999),

abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan         , 536 U.S.

101 (2002). Cuenca fails to show that the defendants’ stated aversion for the

inappropriate tone and presentation of his grievances was a pretext for an intent to

retaliate based on his protected activities.

                                              2

      Cuenca claims that the district court drew no reasonable inferences in his

favor, as required by the summary judgment standard. He provides only one

example, however, of an inference that should have been drawn but was not. He

claims the district court “dismissed defendant Gentry’s withholding of materials

from external reviewers as some sort of harmless error, ignoring Gentry’s

subsequent lies, his perjury, and his deliberate, willful misconduct . . . .” Aplt.

Opening Br. at 22.

      Our review of the record convinces us that the district court did not simply

“dismiss” the issue of the book chapters omitted from tenure materials “as some



4
      Cuenca contends that other, non-minority faculty clashed with Kautsch but
were not subjected to the threat of non-renewal of their appointment. He fails to
show, however, that these faculty used the kind of language or tone with Kautsch
that Cuenca did.

                                             -14-
sort of harmless error.”   Id. Rather, the district court gave several reasons why

Cuenca could not use this incident as evidence of either discrimination or

retaliation. First, when the omission was brought to Gentry’s attention, he “sent

the book chapters, one of which had just been published, to the external

reviewers, with a follow-up letter.”    Cuenca , 265 F. Supp. 2d at 1213. Second,

Gentry asked all of the reviewers for a letter indicating that the book chapters

would not have affected their evaluation, and all replied negatively.   Id. Third,

Cuenca failed to show that Gentry’s failure to submit the book chapters was

intentional, was related to Cuenca’s race or protected conduct, or had any effect

on the reviewers’ assessment of him (and, hence, on the ultimate decisionmakers

concerning tenure).    Id. We agree with the district court’s reasoning on these

points; Cuenca fails to provide evidence that Gentry’s explanation that the error

was unintentional was unworthy of belief.

       Cuenca also contends, however, that Gentry lied under oath when asked if

he had sent all the materials to the outside reviewers. Cuenca provides no

citations to the record for this claim. We presume he is referring to Page 151 of

Gentry’s deposition in which he was asked:

       Q. Did you send his books–

       A. Yes.

       Q. –to each evaluator?


                                            -15-
       A. Yes.

       Q. So there were two [books], right?

       A. (Nods head up and down).

(V R. doc. 186, ex. 87, at 13.)

       Gentry’s deposition was taken on February 7, 2000, long after he had

supplied the outside reviewers with copies of chapters from two of Cuenca’s

books in response to the notice to him that they had been omitted from the initial

submission. Since the questions make no reference to time frame, Cuenca fails to

show that Gentry’s reference to “books” sent to reviewers did not refer to this

later submission. In any event, the challenged statement fails to create a genuine

issue of material fact concerning whether the reasons given in the ultimate

decision to deny tenure were pretextual.

       In his reply brief, Cuenca further argues that Gentry lied when he stated

that Cuenca had not fulfilled the Journalism School’s requirements for tenure and

had not achieved national or regional distinction.   This, however, was also the

conclusion of a number of the outside reviewers. Cuenca’s disagreement with

Gentry’s assessment of his qualifications does not create a genuine issue of

material fact that would preclude summary judgment. This court does not “act as

a ‘super personnel department’ that second guesses employers’ business




                                           -16-
judgments.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs. , 165 F.3d 1321, 1333 (10th Cir. 1999).

       Cuenca claims that Gentry admitted at his deposition that he had lied about

Cuenca’s qualifications for tenure. He asserts that at the deposition, Gentry

changed course from his previous statements that Cuenca had no work that had

achieved distinction through review by his peers. Our reading of the deposition

transcript does not support this interpretation. At the deposition, Gentry was

asked about Cuenca’s Lowell Thomas Travel Journalism Award. Gentry

classified the award as “a very minor, modest award” that was “a good start” but

not an award of national significance. (V R. ex. 102, at 3 (depo. at 171–72).)

Contrary to Cuenca’s claim in his affidavit,       Gentry did not admit at his deposition

that the Lowell Thomas Travel Journalism award was a peer-reviewed award;

instead, he only said “it could be peer reviewed in a sense.” (     V R. doc. 186,

ex. 102, at 4 (depo. at 175).)

       Cuenca also claims that Gentry lied in denying that he had peer-reviewed

work because Cuenca had earned a peer-reviewed award from the Association for

Education in Journalism and Mass Communication (AEJMC). The AEJMC

award, however, was only an “honorable mention.” (V R. doc. 186, ex. 102, at 4

(depo. at 176).) Whether or not Cuenca believed, as Gentry put it, that his two

awards “demonstrate . . . work [that] has been judged by peers as being


                                            -17-
significant, demonstrating rigor, or demonstrating originality,”   V R. doc. 186,

ex. 70, at 2, Gentry did not. The fact that Cuenca can point to some works that he

believes met the University of Kansas’s criteria does not show that Gentry lied or

that his recommendation concerning Cuenca’s tenure was pretextual.

                                             3

       Cuenca contends that the district court disregarded his “direct evidence of

previous illegal acts, statistical direct evidence of pattern and practice

discrimination, and direct evidence of past violations of federal civil rights law.”

Aplt. Opening Br. at 24. The district court rejected the statistical evidence as

failing to provide any effective data concerning the tenure issues presented in his

case. Cuenca , 265 F. Supp. 2d at 1205–06. It further rejected evidence of the

University of Kansas’s non-compliance with the Office of Federal Contract

Compliance Programs, because the evidence failed to demonstrate substantive

violations indicating discrimination.     Id. at 1206.

       Cuenca faults the University of Kansas for not providing accurate and

complete data through the discovery process. He contends “defendants refused to

produce accurate and complete applicant flow data and the District Court affirmed

the magistrate judge’s determination that defendants would not be compelled to

produce it.” Aplt. Opening Br. at 25. Cuenca fails to make any substantive

argument to show how the district court abused its discretion in denying his


                                            -18-
motion to compel. This being the case, we cannot review his claim that he should

have been granted additional discovery. Instead, we will examine the data that he

actually presented to the district court. Having examined this data, we agree with

the district court that Cuenca has failed to present relevant statistical data or other

direct evidence sufficient to carry his summary judgment burden.

                                           C

      Finally, Cuenca argues that the district court judge, who he claims is a

University of Kansas graduate, should have recused himself from hearing this

case. He fails to cite us to any motion to recuse, however, or to any facts in the

record that would confirm the judge’s alumni status or his reasons for failing to

recuse himself. Given this failure of proof, we are left with nothing to review

pertaining to Cuenca’s recusal arguments under 28 U.S.C. § 455(a), and therefore

decline to order recusal.

      We AFFIRM the order of the district court granting summary judgment for

the defendants and denying Cuenca’s motion for summary judgment.



                                                      Entered for the Court



                                                      Carlos F. Lucero
                                                      Circuit Judge



                                          -19-
