                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               JUL 24 2003
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk
 GEORGE L. ARCHULETA,

          Plaintiff - Appellant,

 v.

 ALEX C. McGUINNESS, JR., COLE
 FINEGAN, GEORGE BRANTLEY,
 CILE CHAVEZ, JAMES FLEMING,
 DONA GOSS, IGNACIO MARTINEZ,                                No. 02-1116
 MARY ZIMMERER and SANDRA                              (D.C. No. 99-WM-1912)
 HOWARD, in their official capacities as                    (D. Colorado)
 members of the Board of Trustees of the
 State Colleges of Colorado; TRUSTEES
 OF THE STATE COLLEGES IN
 COLORADO; METROPOLITAN
 STATE COLLEGE; STEPHEN J.
 LEONARD,

          Defendants - Appellees.


                                   ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ARMIJO,
District Judge.**




      *
         This order and judgment is not binding precedent, except under the doctrines of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.
      **
         Honorable M. Christina Armijo, District Judge, United States District Court for
the District of New Mexico, sitting by designation.
       This is a case of alleged employment discrimination.

       George L. Archuleta, (“the plaintiff”) is a sixty-two year old Hispanic. In August

1992, he was hired by Metropolitan State College (“Metro State”) to be a part-time

instructor in the history department, and he continued in that capacity until December

1998. During that time, he never taught less than two courses per semester. In January

1996, Metro State announced a vacancy for a full-time tenure track Assistant

Professorship in the history department. A search committee composed of eleven faculty

members was formed, and the committee reviewed approximately 133 applications for

that position, which included an application from the plaintiff. The plaintiff was initially

determined to meet the minimum qualifications for that position. However, during the

second phase of the review process, none of the search committee members chose

plaintiff as among the top 20 applicants, and he was eliminated from further

consideration. Upon the conclusion of the selection process, a Dr. Xiansheng Tian, an

Asian, was ultimately offered the position, which he accepted. Plaintiff, thereafter,

continued to teach at Metro State as a part-time instructor. On March 7, 1997, plaintiff

filed a charge of discrimination with the Equal Employment Opportunity Commission,

alleging that he was being discriminated against regarding the terms and conditions of his

employment at Metro State because of his national origin and age, and further, that he

was being retaliated against for engaging in protected activities. In the fall of 1998,

Metro State decided to limit the plaintiff to teaching only one course in the spring of

1999. Plaintiff refused to accept this offer and decided to end his teaching at Metro State

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upon the completion of the fall semester of 1998, which he did.

       On September 30, 1999, the plaintiff filed the present action in the United States

District Court for the District of Colorado, alleging generally that he had been

discriminated against by the defendants regarding the terms and conditions of his

employment at Metro State because of his national origin and age. Named as defendants

were the Board of Trustees of State Colleges in Colorado and the individual members

thereof in their official capacity (“the Trustees”), Metro State, and Stephen J. Leonard,

the chairperson of the Department of History at Metro State, who also served as

chairperson of the search committee. The plaintiff set forth the background facts giving

rise to the present controversy in considerable detail, and then asserted three claims for

relief. In each claim, plaintiff simply alleged that because of the defendants’ actions, he

had been denied his right to equal employment opportunity, without further elaboration.

The first claim was based on 42 U.S.C. §§ 1981 and 1983, the second claim was based on

42 U.S.C. § 2000e, et seq., and the third claim was based on 29 U.S.C. § 621, et seq.

        The defendants filed an answer and still later, after discovery, moved for

summary judgment, filing a voluminous brief with attachments in support thereof. The

plaintiff thereafter filed an equally voluminous brief in opposition to the defendants’

motion for summary judgment. In that brief, the plaintiff conceded “that his age

discrimination claim [his third claim] should be dismissed under the recent Supreme

Court ruling in Kimel v. Board of Regents, ___ U.S. ___ (2000).” In that same brief,

plaintiff also agreed that his Title VII claim for intentional discrimination and retaliation

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(his second claim) was not brought against Leonard, individually, but was only brought

against his employers. Also, still in that same brief, plaintiff conceded that his §§ 1981

and 1983 claims (his first claim) could be brought against only Leonard in his individual

capacity, and not against the other defendants.

        On August 23, 2001, the district court granted the defendants’ motion for summary

judgment, in part, and denied it, in part. Specifically, the district court ruled as follows:

                                         *****
               2. The plaintiff’s First Claim for Relief (pursuant to § 1981
               and § 1983) shall be dismissed with prejudice against the
               defendants with the exception of defendant Leonard in his
               individual capacity. With respect to defendant Leonard, this
               claim remains pending pursuant to § 1983 on the issue of
               whether defendant Leonard (in his individual capacity)
               retaliated against plaintiff for exercising his free speech
               rights.
               3. The plaintiff’s Second Claim for Relief (pursuant to Title
               VII) shall be dismissed with prejudice against all defendants
               except for the plaintiff’s claim of illegal retaliation in
               violation of Title VII against the defendant employer
               (“Trustees of the State Colleges of Colorado”).
               4. The plaintiff’s Third Claim for relief (pursuant to 29
               U.S.C. § 621) shall be dismissed with prejudice in accordance
               with the plaintiff’s concession.

                                          *****

       On September 12, 2001, Leonard filed a renewed motion for summary judgment on

the plaintiffs’ claim that under 42 U.S.C. § 1983, Leonard had retaliated against plaintiff

for exercising his right of free speech. On January 23, 2002, the district court granted that

motion and dismissed with prejudice plaintiff’s “free speech retaliation claim.” In that

same order, the district court stated that “the only remaining claim is plaintiff’s Title VII

                                             -4-
retaliation claim against the Trustees of the Board of State Colleges of Colorado.” On

February 4, 2002, the parties filed a joint stipulation that the “only remaining claim,” the

Title VII retaliation claim against the Trustees, be dismissed without prejudice, each party

to bear their own costs and attorney’s fees. On February 6, 2002, the district court,

pursuant to the stipulation, dismissed without prejudice the “only remaining claim.” On

March 7, 2002, plaintiff, with new counsel, filed a notice of appeal from the order of

February 6, 2002.

       Noting that the district court’s order of February 6, 2002, dismissing plaintiff’s last

remaining claim, was “without prejudice,” we, on appeal, issued a show cause order to the

parties, advising them that because the dismissal order of February 6, 2002, was made

“without prejudice,” such rendered the judgment “non-final” and precluded an appeal of

the other orders of the district court, citing Heimann v. Snead, 133 F.3d 767, 769 (10th Cir.

1998) and Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th Cir. 1992).

Accordingly, we directed counsel to obtain a district court order either granting a Fed. R.

Civ. P. 54(b) certification or “explicitly adjudicating the remaining claim.” On May 30,

2002, the plaintiff, through his newly retained counsel, filed in the district court a motion

to dismiss his “remaining claim” with prejudice. On June 7, 2002, the district court

granted that motion and dismissed “the remaining claim with prejudice.” Under Lewis v.

B. F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988), it appears that plaintiff’s

premature filing on March 7, 2002, of a notice of appeal was “ripen[ed] and sav[ed]” by

the district court’s order of June 7, 2002, and that the appeal now meets the “finality

                                             -5-
requirement” of 28 U.S.C. § 1291.

       Plaintiff’s third claim in his complaint was based on 29 U.S.C. § 621, et seq., age

discrimination. As above stated, plaintiff thereafter conceded that his age discrimination

claim should be dismissed, and the district court did so in its order of August 23, 2001.

Accordingly, age discrimination is not involved in this appeal.

       Further, as already stated, in his brief in opposition to defendants’ motion for

summary judgment, plaintiff agreed that his second claim based on 42 U.S.C. § 2000e, et

seq., i.e., discrimination in not hiring him as a full-time assistant professor and in retaliating

against him because he thereafter filed a complaint with the EEOC based on that fact, was

not brought against Leonard, but only against his employer, i.e., the Trustees and Metro

State. By its order of August 23, 2001, the district court granted summary judgment in

favor of the defendants on plaintiff’s Title VII claim of discrimination and retaliation

against all defendants, except for plaintiff’s claim of retaliation against the “Trustees of the

State Colleges of Colorado,” which was reserved for trial. However, thereafter, in response

to our show cause order, the plaintiff asked the district court to dismiss his Title VII

retaliation claim against the Trustees with prejudice, and the court did so on June 7, 2002.

Hence, it now appears that the plaintiff having elected to have his Title VII retaliation claim

against the Trustees dismissed with prejudice by the district court, that particular claim is

not involved in the present appeal. At the request of the plaintiff, the district court

dismissed that claim with prejudice.

       There remains that part of plaintiff’s Title VII claim based on discrimination and

                                               -6-
retaliation on the part of Metro State. We agree with the district court that there was no

genuine issue of a material fact on that particular aspect of the case. Based on the record,

we agree with the district court that the plaintiff did not make a sufficient showing that out

of 133 applicants, he was best qualified, as he believed he was. Nor could the plaintiff

show that the defendants discriminated against him because of his race when they selected

someone else for the then vacant, full-time professorship, or that the search committee’s

belief there were others better qualified than the plaintiff was only a pretext or that Metro

State, as well, had somehow retaliated.

       Accordingly, all that now remains for consideration is the plaintiff’s first claim,

based on 42 U.S.C. § 1983, wherein the plaintiff claimed that Leonard, individually,

violated his right of “free speech,” which claim was ultimately dismissed by the district

court in its order of January 23, 2002.1

       In its order of January 23, 2002, wherein the district court granted Leonard’s

renewed motion for summary judgment on plaintiff’s First Amendment claim, i.e., that

Leonard had retaliated against plaintiff for exercising his right of free speech, the district

court held that, assuming the other requirements were met, the plaintiff still had not shown

that his protected free speech was a substantial or motivating factor on any subsequent




        1
         Counsel in this court argues that the district court erred in dismissing plaintiff’s
claim of “constructive discharge.” We do not believe that issue was presented to the
district court. The phrase “constructive discharge” does not appear in either the
complaint or pretrial order. However, the words “discrimination” and “retaliation” do
appear.

                                              -7-
“detrimental employment decision.” See Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1976) and Pickering v. Board of Education of Tp. High School

Dist. 205, Will County, Illinois, 391 U.S. 563, 568 (1968). The plaintiff apparently relied

on two “free speech” violations: (1) a discussion between plaintiff and Leonard regarding

the changing of students’ grades, and (2) a dispute occurring in August, 1995, between

plaintiff and Leonard concerning the propriety of a speech made by the plaintiff at a City

Council meeting regarding the naming, or renaming, of a lake in City Park. Both incidents

apparently occurred before March 7, 1997, the date when plaintiff filed his complaint with

the EEOC, referred to above. As indicated, the district court concluded that there was an

insufficient showing that either matter was a “cause” for any reduction in course-load in the

spring of 1997, as claimed by the plaintiff. In this general regard, it would appear that

most, if not all, of the “detrimental employment decisions” relied on by the plaintiff were

not made by Leonard, acting individually, but rather were made by a faculty committee.

Without belaboring the matter, we agree with the district court’s handling of this issue.

       Judgment affirmed.



                                                   ENTERED FOR THE COURT,

                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




                                             -8-
