                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 24 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ISAAC SUAZO,

                Plaintiff-Appellant,

    v.                                                   No. 97-2211
                                                  (D.C. No. CIV-95-1142-BB)
    REGENTS OF UNIVERSITY OF                              (D. N.M.)
    CALIFORNIA, doing business as
    Los Alamos National Laboratory,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff appeals the district court’s grant of summary judgment in favor of

defendant on plaintiff’s claims of discrimination, filed pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Plaintiff, who is

Hispanic, claims that his employer discriminated against him based on his race

because he was not promoted to the position of section leader. Defendant chose,

instead, to promote Steven Hanson, who is not Hispanic.

       We review the district court’s grant of summary judgment de novo and will

affirm if there is no dispute regarding material facts and the moving party is

entitled to judgment as a matter of law.    See Reynolds v. School Dist. No. 1 ,

69 F.3d 1523, 1531 (10th Cir. 1995). We construe the record in the light most

favorable to plaintiff, but, once defendant shows it is entitled to judgment,

plaintiff must show specific facts demonstrating a genuine issue for trial as to

material matters for which he carries the burden of proof.    See id. Guided by

these standards, we affirm.

       Plaintiff focuses much of his attention in his brief on appeal on arguing that

his affidavit and his deposition testimony are not inconsistent and that the district

court was required to consider his affidavit at face value. Plaintiff’s arguments in

this regard are unnecessary. Even though it noted the apparent inconsistency

between the affidavit and deposition, the district court did, in fact, properly




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consider and accept plaintiff’s affidavit.      See Appellant’s App. at 156 n.6.

Accordingly, we will also consider plaintiff’s affidavit.

       Plaintiff stated in his affidavit that his supervisor told him that he was not

promoted because he spent “too much time on Naval Reserves.”            Id. at 106.

Plaintiff also argues that defendant’s Affirmative Action/Equal Employment

Opportunity statement, which creates a preference for Vietnam veterans, presents

a question of fact as to its meaning and effect on defendant’s decision not to

promote plaintiff. On appeal, plaintiff argues that his affidavit precludes

summary judgment because it creates a genuine issue of material fact as to why he

was not chosen for the promotion.      1



       The district court held, and we agree, that plaintiff established a prima facie

case of discrimination.    See McDonnell Douglas Corp. v. Green         , 411 U.S. 792,

802 (1973). In response, defendant articulated a legitimate non-discriminatory

reason for not promoting plaintiff to section leader, namely, that Steven Hanson

was more qualified for the position.         See id. We also agree with the district court

that the evidence supports this finding. The burden then shifted to plaintiff to

show that defendant’s proffered reason was merely pretextual.          See id. at 804.



1
      On appeal, plaintiff does not pursue his First Amendment claim or his
claim of discrimination for failure to promote him to the position of group leader.
We, therefore, consider these issues waived.  See State Farm Fire & Cas. Co. v.
Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

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It is for this purpose that plaintiff points to his affidavit statement that the

decision not to promote plaintiff was not because Steven Hanson was more

qualified, but was based on plaintiff’s participation in the Naval Reserves.       2



       Plaintiff’s burden to establish pretext is not satisfied by allegations alone.

Plaintiff can meet his burden of presenting enough evidence to support an

inference that defendant’s reason was merely pretext by showing either that

“a discriminatory reason more likely motivated [defendant] or . . . that

[defendant’s] proffered explanation is unworthy of credence.”         Texas Dep’t of

Community Affairs v. Burdine      , 450 U.S. 248, 256 (1981). “In a summary



2
       We note that plaintiff’s complaint alleges discrimination based only on his
race, except for the following paragraph:

             Employer, Los Alamos National Laboratory had, at all times
       material to these claims, Affirmative Action/Equal Employment
       Opportunity policy statements in place to undertake the advancement
       and promotion of minorities and Vietnam era veterans.

Appellant’s App. at 3. This is the only allegation regarding veteran status;
nowhere in his complaint does plaintiff even allege that defendant discriminated
against him based on his veteran status. Further, even if plaintiff had made such
an allegation, and even if plaintiff could establish that defendant illegally
discriminated against him based on his participation in the Naval Reserves,
we fail to see how participation in the Naval Reserves implicates veteran status in
any way. Plaintiff’s affidavit statement regarding the time he spent in the Naval
Reserves is simply unconnected to his original allegations of discrimination based
on race or, reading his complaint liberally, his status as a Vietnam veteran. We
will, nonetheless, address plaintiff’s arguments on appeal as they relate to these
two areas of discrimination.


                                            -4-
judgment setting, the plaintiff must raise a genuine factual question as to whether

defendant[’]s reasons are pretextual.”      Drake v. City of Fort Collins , 927 F.2d

1156, 1160 (1991).

       Plaintiff has presented no evidence that a discriminatory reason motivated

defendant to promote Steven Hanson over plaintiff, and neither has plaintiff

presented competent evidence that defendant’s articulated reason for not

promoting plaintiff is unworthy of belief. Nowhere in the record does plaintiff

even deny that he spent too much time on the Naval Reserves, let alone present

any evidence as to how much time he did spend. Summary judgment on

plaintiff’s Title VII claim was appropriate.

       In response to plaintiff’s argument regarding defendant’s noncompliance

with its Affirmative Action/Equal Employment Opportunity statement, we join the

other courts that have addressed the issue and hold that plaintiff has no private

right of action under either the Vietnam Era Veterans’ Readjustment Assistance

Act (VEVRA), 38 U.S.C. §§ 4211-4214, or Executive Order No. 11,246,

reprinted in 42 U.S.C. § 2000e note.      See Antol v. Perry , 82 F.3d 1291, 1296-98

(3d Cir. 1996) (VEVRA);     Wikberg v. Reich , 21 F.3d 188, 189 (7th Cir. 1994)

(VEVRA); Harris v. Adams , 873 F.2d 929, 931-32 (6th Cir. 1989) (VEVRA);

Barron v. Nightingale Roofing, Inc.      , 842 F.2d 20, 21-22 (1st Cir. 1988)

(VEVRA); Utley v. Varian Assocs., Inc. , 811 F.2d 1279, 1284-86 (9th Cir. 1987)


                                             -5-
(EO 11,246); Cohen v. Illinois Inst. of Tech.    , 524 F.2d 818, 822 n.4 (7th Cir.

1975) (EO 11,246); see also, e.g. , Lohf v. Runyon , No. 96-4088-RDR, 1998 WL

156894, at *7 (D. Kan. Mar. 6, 1998);    Philippeaux v. North Cent. Bronx Hosp.      ,

871 F. Supp. 640, 648 (S.D.N.Y. 1994) (holding that VEVRA does not provide

direct private right of action, nor does 42 U.S.C. § 1983 provide indirect private

right of action), aff’d 104 F.3d 353 (2d Cir. 1996) (table);   Brace v. Ohio State

Univ. , 866 F. Supp. 1069, 1073, 1074 (S.D. Ohio 1994) (same);       Wilson v. Amtrak

Nat’l R.R. , 824 F. Supp. 55, 58 (D. Md. 1992) (VEVRA and EO 11,246);          but see

Blizzard v. Dalton , 905 F. Supp. 331, 332-33 (E.D. Va. 1995) (correlating

disabled veterans portions of VEVRA with the Rehabilitation Act of 1973 and

holding that plaintiff had not established discrimination as result of lack of

affirmative action program without discussion of whether private right of

action exists).

      We AFFIRM the district court’s grant of summary judgment in favor of

defendant.

                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




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