                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           June 28, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


    YOLANDA TAYLOR,

                 Plaintiff - Appellant,

     v.                                                   No. 04-3147
                                                   (D.C. No. 02-CV-4083-JAR)
    ANTHONY J. PRINCIPI, Secretary of                       (D. Kan.)
    Veteran Affairs; UNITED STATES
    DEPARTMENT OF VETERANS
    AFFAIRS,

                 Defendants - Appellees.


                              ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and BALDOCK , 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(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      This order and judgment is not binding precedent, except under the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.
         Yolanda Taylor appeals from summary judgment granted in favor of

defendant on her claims brought under Title VII of the Civil Rights Act,

42 U.S.C. §§ 2000e-2000e17, for racial discrimination and/or retaliation relating

to defendant’s failure to promote her   1
                                            . Our jurisdiction arises under 28 U.S.C.

§ 1291. For the reasons discussed below, we affirm the district court’s

determination that Ms. Taylor failed to establish a triable issue of discrimination

or retaliation on the basis of race.

                                              I.

         “We review grants of summary judgment         de novo to determine whether any

genuine issue of material fact exists, viewing all evidence and any reasonable

inferences that might be drawn therefrom in the light most favorable to the

non-moving party.” Croy v. Cobe Labs., Inc. , 345 F.3d 1199, 1201 (10 th Cir.

2003).     In applying this standard,

         [w]e view the evidence and draw any inferences in a light most
         favorable to the nonmoving party, but the party opposing summary
         judgment must identify sufficient evidence that would require
         submission of the case to a jury. It is not enough that the
         nonmovant’s evidence be merely colorable or anything short of
         significantly probative.




1
      Although Ms. Taylor also made other claims in her complaint that were
dismissed on summary judgment or after a two-day trial, her appellate brief only
focuses on the summary judgment rulings related to failure to promote.

                                              -2-
Jensen v. Redevelopment Agency, 998 F.2d 1550, 1555 (10th Cir. 1993) (citations

and quotation marks omitted). “In considering whether a fact is material, we must

look to the applicable substantive law. To determine whether a dispute is

genuine, we must consider whether a reasonable jury could return a verdict for the

nonmoving party.”     Revell v. Hoffman , 309 F.3d 1228, 1232 (10th Cir. 2002)

(citation and quotation marks omitted). To avoid summary judgment on her claim

for retaliation, Ms. Taylor had to present evidence demonstrating (1) she

“engaged in protected opposition to discrimination;” (2) she suffered “an adverse

employment action;” and (3) “there exists a causal connection between the

protected activity and the adverse action.”         Stover v. Martinez , 382 F.3d 1064,

1071 (10th Cir. 2004). To avoid summary judgment on her claim of employment

discrimination under Title VII, she was required to show that: (1) she is a member

of a protected class; (2) she applied for and was qualified for the particular

position; (3) she was not promoted despite her qualifications; and (4) the position

was filled or remained open after she was rejected.         See Jones v. Barnhart,

349 F.3d 1260, 1266 (10th Cir. 2003).

       Upon establishing a prima facie case, the burden shifts to the employer to

present a legitimate, nondiscriminatory reason for its actions.        Jones, 349 F.3d at

1266. If the employer makes such a showing, the burden then shifts back to the

employee to demonstrate that the employer’s proffered explanation was merely


                                              -3-
pretext for discrimination or retaliation.   Id. In this case, the district court

determined that Ms. Taylor had failed to establish a prima facie case on some

claims and failed to show that there were genuine issues of material fact

concerning defendant’s valid reasons for not promoting her. On appeal,

Ms. Taylor asserts that the court erred in making several evidentiary rulings that

underlie its grant of summary judgment.

                                             II.

       We need not repeat the extensive factual background set forth in the district

court’s twenty-eight page memorandum order and will discuss facts only as

necessary to our analysis of Ms. Taylor’s claims of error. “Like other evidentiary

rulings, we review a district court’s decision to exclude evidence at the summary

judgment stage for abuse of discretion.”      Sports Racing Servs., Inc. v. Sports Car

Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997). Applying this standard,

“[w]e will not disturb the trial court’s [evidentiary] determination absent a

distinct showing it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.”        Summers v.

Missouri Pacific R.R. System     , 132 F.3d 599, 603 (10th Cir. 1997) (citation and

quotation marks omitted).




                                             -4-
                                            A.

       Citing Tavery v. United States , 32 F.3d 1423, 1426 n.4 (10th Cir. 1994),

Ms. Taylor first asserts that the district court erred by refusing to strike affidavits

submitted by defendant because they did not expressly state that the affiant had

personal knowledge of the allegations made in the affidavit. But the cited

footnote in Tavery stands only for the proposition that “a mere statement of belief

. . . is insufficient to support summary judgment.”    Id. As we noted, statements

must be “made on personal knowledge.”         Id. (quoting Fed. R. Civ. P. 56(e)). But

an affidavit will not be stricken simply because it does not contain those specific

words as long as it is clear that the affiant is basing his or her statements on

personal knowledge.     See Barthelemy v. Air Lines Pilots Ass’n   , 897 F.2d 999,

1018 (9th Cir. 1990) (“That Rule 56(e)’s requirements of personal knowledge and

competence to testify have been met may be inferred from the affidavits

themselves.”); Lodge Hall Music, Inc. v. Waco Wrangler Club, Inc.       , 831 F.2d 77,

80 (5th Cir. 1987) (holding that, even though “defendants’ response does not

affirmatively state in the document itself that [they] are competent to testify as to

the facts to which they swore does not necessarily doom their testimony . . . so

long as the record, taken as a whole, demonstrates that [their] testimony meets the

requirements of rule 56”). Here, the affidavits in question met that test.




                                            -5-
                                         B.

      Defendant presented evidence that Ms. Taylor was not promoted to budget

analyst and teller positions for two reasons. First, the applicant pool for budget

analyst and teller jobs in the Business Functional Line (“BFL”) was limited to

current employees in that department as part of a valid merit promotion plan

designed to avoid laying off other employees in the BFL. In addition, defendant

presented uncontroverted evidence that Ms. Taylor had chronically low attendance

at work that she claimed was job-stress related, and that she had requested 240

hours of advance sick leave. The hiring officer for a non-BFL position for which

Ms. Taylor was also rejected testified that she did not select Ms. Taylor because

Ms. Taylor had no experience in that position and because of her attendance

problems.

      In her attempt to demonstrate pretext, Ms. Taylor argues that the district

court erred in disregarding statements she made in her responsive affidavit

regarding her qualifications relative to another budget analyst candidate’s

qualifications and the authority of management to limit the applicant pool to those

employees already in the BFL department. We find no abuse of discretion in the

court’s decision. First, the only qualification that precluded Ms. Taylor from

being considered for the BFL jobs was that she be a current BFL employee.

Because she could not meet that qualification, whether she was or was not more


                                         -6-
qualified in other areas than the BFL employee chosen for the job was not

relevant to the issue of pretext and therefore did not raise a genuine issue of

material fact.   See Anderson v. Liberty Lobby, Inc.      , 477 U.S. 242, 248 (1986)

(“Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.”).

        Second, it is clear that Ms. Taylor had no personal knowledge about who

had authority to limit the applicant pool, and the court therefore properly

disregarded her testimony about that issue under Rule 56(e).

                                            C.

       Ms. Taylor next asserts that the district court erred in disregarding certain

exhibits that were attached to her affidavit and which apparently consisted of

defendant’s business records produced during the course of discovery. The court

disregarded the exhibits on the basis that Ms. Taylor had “failed to comply with

Rule 56(e)’s requirement that documents must be authenticated by . . . the

affidavit.” Aplt. App. at 5. Rule 56(e) requires that documents referred to in an

affidavit be “sworn or certified copies of all papers or parts thereof,” thus

Ms. Taylor was required to identify, under oath, the source of the documents and

that they had not been altered. In his motion for summary judgment, defendant

timely objected to Ms. Taylor’s failure to properly authenticate the documents in

her affidavit.   See Noblett v. Gen. Elec. Credit Corp.     , 400 F.2d 442, 445 (10th


                                            -7-
Cir. 1968) (holding that “[a]n affidavit that does not measure up to the standards

of Rule 56(e) is subject to a motion to strike; and formal defects are waived in the

absence of a motion or other objection”). But Ms. Taylor did not simply correct

the deficiency by way of a supplemental affidavit; instead, on appeal she argues

that the documents were admissible under the business-records exception to the

hearsay rule. While this may be true, it would not excuse her duty to identify the

source of the documents and their absence of alteration to the district court when

submitted in response to a motion for summary judgment. Under these

circumstances, we can not say that the district court abused its discretion in

refusing to consider the documents.

                                         D.

      Finally, Ms. Taylor asserts that the deposition testimony of William Dunlop

creates a material factual dispute on the issue of her eligibility to apply for BFL

line positions even though she was not a current employee of the BFL. We

disagree. Contrary to her assertion that Mr. Dunlop testified that, “as part of the

resolution of [an EEOC] complaint [resolved in 1993] the Veterans

Administration was to consider Taylor for all future job openings in the [BFL],”

Aplt. Br. at 15, Mr. Dunlop testified as follows:

      Q: So you’re telling the Hearing Officer that apparently out of some
      meeting in prior years any vacancies that came up, Yolanda Taylor
      was supposed to be considered for, is that correct?
      A: Correct.

                                         -8-
       Q: And that if Yolanda Taylor applied for this position, she should have
       been considered for this position?
       A: If she was qualified and met the requirements for the position.
       Q: Well, when you indicate “met the requirements for the position,” if
       you’re saying – are you saying that the requirements would include the fact
       that she would have to be of the business function line if that was one of
       the areas of consideration?
       A: If – correct, if that’s the way the job was announced through merit
       promotion.

Aplt. App. at 122. Mr. Dunlop’s testimony, therefore, was consistent with

defendant’s position that Ms. Taylor was not promoted because she was not

qualified for the prospective job under a valid, nondiscriminatory merit promotion

program. Ms. Taylor points to nothing that would cause a reasonable finder of

fact to determine that the reasons are unworthy of belief,    see Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1180 (10th Cir. 1999), and nothing showing an

intent to discriminate on the basis of race.

       The judgment of the district court is     AFFIRMED .



                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




                                               -9-
