                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       November 28, 2006
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court

 JOH N V IGIL,

          Plaintiff-Appellant,

 v.                                                        No. 05-2301
                                                            (D . N.M .)
 CITY O F ALBU QU ERQ UE;                       (D.Ct. No. CIV-04-726 LFG/RH S)
 SANDRA DOYLE, individually and in
 her official capacity,

          Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before M U RPH Y, Circuit Judge, BROR BY, Senior Circuit Judge, and
T YM K O VIC H, Circuit Judge.




      Appellant John Vigil appeals the district court’s grant of summary

judgment in favor of Appellee, the City of Albuquerque (“the City”) on

discrimination claims arising under Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§ 2000e to 2000h-6, as well as claims filed pursuant to the

City’s M erit System O rdinance and Personnel Rules and Regulations for breach of



      *
          This order and judgment is not binding precedent except under the doctrines of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.
contract and good faith and fair dealing and the New M exico Human Rights Act.

The crux of M r. Vigil’s civil rights discrimination suit centers on his claim of

disparate treatment on the basis of gender and race or national origin when the

City passed him over for a position in favor of a non-minority female employee. 1

W e exercise discretion under 28 U.S.C. § 1291 and affirm summary judgment in

favor of the D efendants-Appellees.



                                 I. Factual Background

       The district court based its summary judgment determination on M r. Vigil’s

affidavit, deposition and attachments; Sandra Doyle’s affidavit, supplemental

affidavit and attachments; and Judy M ontoya’s affidavit and attachments,

construing them in the light most favorable to M r. Vigil as the party opposing

summary judgment. 2 M any of the relevant facts are mainly undisputed, with the


       1
         In his complaint, Mr. Vigil also alleged discrimination concerning the same
Purchasing Officer position which in 2002 was awarded to another male candidate
promoted over Mr. Vigil; eventually, the position opened up again, leading to the instant
discrimination dispute in which Mr. Vigil again unsuccessfully applied for the same
position a year later in 2003. Because he does not appeal the 2002 claim, we address only
his claim concerning the 2003 award of the same position to a non-Hispanic, female
candidate.
       2
          Mr. Vigil did not furnish a copy of his deposition, the affidavit of Ms. Montoya,
the complaint, or any excerpts therefrom as part of the record on appeal. We remind
counsel that it is the appellant’s responsibility to provide us with a proper record on
appeal, and if the appellant’s appendix is insufficient to permit assessment of claims of
error, we must affirm. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000); Rios v.
Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (citing Fed. R. App. P. 10(b)(2)). However,
in this case, because the district court's opinion and other pleadings sufficiently

                                            -2-
exception of certain facts w hich the district court either found immaterial to its

summary judgment determination or which M r. Vigil generally alleged, but are

not supported in the record, as addressed hereafter.



       To begin, M r. Vigil is a Hispanic male who, at the time in question, worked

for the City as an Internal Services Supervisor. 3 The Internal Services Section is

a part of the Purchasing Division and provides materials management in addition

to procurement and purchasing functions. M r. Vigil’s job included management

of the Internal Services Section, including the w arehouse; acquisition of bids,

goods and services for supply distribution; and overseeing the budget. In his

position as Internal Services Supervisor, M r. Vigil was responsible for a $1

million budget; $1.5 million in warehouse inventory; and $5 million in

procurement contracts, including printing and copying contracts and all rolling

stock such as forklifts, vehicles, equipment, fixtures, and facilities.



       W hile another component of M r. Vigil’s job included management of the

Office Services Section located at City Hall, he spent the majority of his time at


characterize or reference the contents of those documents, we can proceed to assess the
merits of Mr. Vigil’s appeal.
       3
         Prior to working as an Internal Services Supervisor, Mr. Vigil was a senior buyer
for the City for six years and did purchasing for the City warehouse; before that, he was a
warehouseman for two years where he drove, loaded trucks, filled orders, and was a
member of certain committees.

                                            -3-
the City warehouse – a site far removed from City Hall. M anagement of the

Office Services Section accounted for approximately twenty percent of his

assigned duties, which included a weekly meeting and time conducting staff

training and implementing new processes. On occasion, in the absence of the

Purchasing Officer, M r. Vigil also served as Acting Purchasing Officer, which

gave him “Delegation of Signature Authority,” granting him full operational

control of the Purchasing Division.



      In M arch 2003, M r. Vigil applied for the position of City Purchasing

Officer. Another in-house candidate, Deena N oonan, a non-minority female, also

applied for the job and was ultimately chosen. The job announcement for the

position of Purchasing Officer gave the following “General Statement of Duties”:

      To plan, direct, manage and oversee the activities and operations of
      the central purchasing office of the Department of Finance and
      Administrative Services including purchasing, warehousing and
      office services activities; to coordinate assigned activities with other
      divisions, departments and outside agencies; and to provide highly
      responsible and complex administrative support to the Finance
      Director.

R., App. at 32, 144. Requirements also included a bachelor’s degree with major

course work in business administration, public administration or a related field,

plus “eight (8) years of central purchasing and materials management experience

to include five (5) years in a direct supervisory and/or administrative capacity.”

Id. (emphasis added). The City intended or interpreted this statement to mean

                                         -4-
that the position required “a total of eight years of experience in central

purchasing and/or materials management” and such an interpretation was “applied

to all applicants equally.” R., App. at 33, 49-50 (¶ 22) (emphasis added).



      A comparison of M r. Vigil’s and M s. Noonan’s applications reveal they

possessed the same level of education – a bachelor’s degree from the University

of N ew M exico, and both served as Internal Services Supervisors. W hile M s.

Noonan worked in that position for almost two years, M r. Vigil held his position

for close to eight years. However, M s. Noonan previously performed central

purchasing functions in other positions for over twelve years.



      According to Sandra Doyle, the Director of Finance and Administrative

Services for the City, the H uman Resources Department first found both M s.

Noonan and M r. Vigil qualified for the position. Next, a panel of six

interviewers, consisting of two Hispanic males, one female and three Caucasian

males, ranked M s. Noonan at the top and recommended her for the position.

Thereafter, M s. Doyle accepted the panel’s recommendation and promoted M s.

Noonan. M s. Doyle, who previously served in the position of Purchasing Officer,

believed M r. Vigil was “minimally, but not the best, qualified for the position

because he had no central purchasing experience.” R., App. at 25, 150 (¶ 7).

Instead, M s. Doyle indicated M s. Noonan was the best qualified for the position,

                                          -5-
pointing out M s. Noonan performed central purchasing functions for

approximately twelve and one-half years and participated in purchasing

operations in the amount of $250 million while assigned to the Public W orks

Department, the City’s largest department, where she handled large accounts,

including one in w hich she developed and managed a new contracting process.



      In addition, although M s. Noonan and M r. Vigil both served as Acting

Purchasing Officer for several days at a time, M s. Doyle pointed out M s. Noonan

performed all of the assigned duties, while M r. Vigil remained at the w arehouse

and delegated many of the required Purchasing Officer duties to M s. Noonan.

M s. Doyle also noted M r. Vigil’s experience, while extensive, consisted primarily

of inventory purchasing, which is “substantially different” from the central

purchasing functions M s. Noonan carried out. R., App. at 25, 152 (¶ 13). She

stated M r. Vigil’s experience centered on procuring warehouse supplies and that,

in contrast to M s. Noonan, he did not demonstrate an ability to engage in the

decision making processes necessary for the central purchasing function.

Specifically, M s. Doyle stated:

      Central purchasing involves the decision making process of how to
      purchase in response to a purchase request. Decisions must be made
      as to whether a request for proposals, bid or sole source proceeding
      is the best method for acquiring what is being requested. The
      Purchasing Officer interacts with the city attorney to ensure that
      legal decisions are being made. The warehouse inventory function is
      one small piece of the purchasing process. W arehouse purchasing

                                         -6-
      requires primarily ordering supplies, includes making procurement
      decisions on a very limited basis, and involves no or only minimal
      interaction with the legal process.

R., App. at 25-26, 152 (¶ 14).


      In addition, M s. Doyle explained the Purchasing Officer is involved in the

political process at City Hall, so the position requires political skills. In that

regard, she noted M s. Noonan attended City Council meetings routinely, was w ell

known to City Councilors and others at City Hall, and made herself available to

assist M s. Doyle w hen needed because of her proximity and willingness to

provide assistance. In contrast, she stated M r. Vigil remained mostly at the

warehouse where he was not immediately available for assistance when needed,

did not offer assistance during periods when the Purchasing Officer position was

vacant, and had no involvement in the political process.



      As further support for M s. Noonan’s selection for the position, M s. Doyle

explained she considered and compared M r. Vigil’s job description duties in his

application with those described in M s. Noonan’s application. At that time, M s.

Noonan was responsible for all aspects of $95 million in budgeting for the Public

W orks D epartment, which has a substantially larger budget than M r. Vigil’s

warehouse budget of $1 million. M s. Noonan was also responsible for oversight

and review of purchasing functions for compliance with City purchasing



                                           -7-
regulations, and performed each of the tasks and responsibilities performed by the

Central Purchasing Program as specified in the City’s approved budget. In

addition, she performed materials management while at the W ater Department

where she was responsible for purchasing materials such as water meters. Based

on all of these considerations, M s. Doyle determined M s. Noonan was best

qualified for the Purchasing Officer position, regardless of her national origin and

gender.



                             II. Procedural Background

      Following M s. Noonan’s selection for the position, M r. Vigil filed suit in

federal court under Title VII of the Civil Rights Act on grounds he received

disparate treatment on the basis of age, and race or origin. Following briefing on

the C ity’s motion for summary judgment, the district court granted summary

judgment in favor of the City and against M r. Vigil for the reasons articulated

hereafter. This appeal followed, in which M r. Vigil raises many of the same

contentions comprehensively addressed by the district court in its summary

judgment decision. In addition, M r. Vigil contends the district court

misunderstood one of his arguments on why M s. Noonan was not qualified for

promotion to the position of Purchasing Officer. Specifically, he asserts the

district court incorrectly perceived his argument to be that the posted

announcement, requiring applicants to have “eight (8) years of central purchasing

                                         -8-
and materials management experience,” meant the position required both eight

years of central purchasing experience plus eight years of materials management

experience. R., App. at 32; Apt. Br. at 5 (emphasis added). Instead, M r. Vigil

says his argument was that the eight years of experience required both materials

management and purchasing experience, and M s. Noonan was unqualified because

she lacked sufficient materials management experience.



                                  III. Discussion

                  A. Standard of Review and Discrimination Law

      In articulating the standard of review and applicable discrimination law, w e

rely largely on our decision in Jaramillo v. Colo. Jud. Dep’t, 427 F.3d 1303 (10th

Cir. 2005) (en banc) (per curiam). W e review de novo the district court’s

summary judgment decision, and “consider the evidence in the light most

favorable to the nonmoving party, drawing all reasonable inferences from the

available underlying facts.” Id. at 1307. Summary judgment is appropriate if the

record shows “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.” Fed. R. Civ. P. 56(c).

In reviewing summary judgment motions, movants for summary judgment bear

the initial burden of demonstrating the absence of a genuine issue of material fact

and entitlement to judgment as a matter of law. See Adler v. Wal-M art Stores,

Inc., 144 F.3d 664, 670-71 (10th Cir. 1998).

                                         -9-
      If this initial burden is carried, the nonmovant may not rest solely on his

pleadings, but must set out specific facts in support of his claims, by reference to

affidavits, deposition transcripts, or other exhibits incorporated therein. Id. at

671. W hile w e view the evidence and draw inferences in the light most favorable

to the non-moving party, that party must identify sufficient evidence which would

require submission of the case to a jury. See id. at 671-72 and n.1. W e have

repeatedly held that even when an affidavit is based on personal knowledge and

sworn, it may be insufficient to create a triable issue of fact if it is nonspecific or

otherw ise nonresponsive, vague, conclusory, or self-serving. See Salguero v. City

of Clovis, 366 F.3d 1168, 1177 n.4 (10th Cir. 2004); Garrett v. Hewlett-Packard

Co., 305 F.3d 1210, 1213 (10th Cir. 2002); Adler, 144 F.3d at 671-72 and n.1;

M urray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995).



      To prevail on a disparate treatment claim under Title VII of the Civil

Rights Act, the employee must show the employer intentionally discriminated

against him for a reason prohibited by the Act. Jaramillo, 427 F.3d at 1306. If,

as here, the employee relies on circumstantial evidence, “we apply the burden-

shifting framew ork outlined in M cDonnell Douglas Corp. v. Green, 411 U.S. 792

... (1973).” Id. “[T]he three-part M cDonnell Douglas burden-shifting analysis is

limited to the summary judgment context.” Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1226 (10th Cir. 2000). Under M cDonnell, the employee

                                          -10-
must establish a prima facie case of discrimination by show ing: “(1) he is a

member of a protected class; (2) he applied for and was qualified for the

particular position; (3) he was not promoted despite his qualifications; and (4) the

position was filled or remained open after he was rejected.” Jaramillo, 427 F.3d

at 1306-07 (quotation marks and citation omitted). This three-part burden-

shifting analysis is modified w hen, as here, a male alleges gender or reverse

discrimination. See Notari v. Denver Water Dep’t, 971 F.2d 585, 588-89 (10th

Cir. 1992). W e have held that in such cases, in lieu of showing that one belongs

to a protected group, he or she must “establish background circumstances that

support an inference that the defendant is one of those unusual employers who

discriminates against the majority.” Id.



      If the employee establishes a prima facie case, then “a presumption of

discrimination arises” resulting in the burden shifting to the employer “to

articulate a legitimate, non-discriminatory reason for the adverse employment

action.” Jaramillo, 427 F.3d at 1307. If the employer “carries its burden of

production, the presumption of discrimination drops out of the case,” and “[t]he

burden then shifts back to the [employee], who must prove by a preponderance of

the evidence that the employer’s reasons are a pretext for unlawful

discrimination.” Id.




                                           -11-
      An employee like M r. Vigil can demonstrate pretext “by producing

evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unw orthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Id. at 1308 (quotation marks and citation omitted). W e have said “[e]vidence of

pretext may include prior treatment of [the employee]; the employer’s policy and

practice regarding minority employment (including statistical data); disturbing

procedural irregularities (e.g., falsifying or manipulating ... criteria); and the use

of subjective criteria.” Id. (quotation marks and citation omitted). In so doing,

we have proceeded with caution in considering the relative merits of individual

employees, given this court “may not act as a super personnel department that

second guesses employers’ business judgments.” Id. (quotation marks and

citation omitted). W e have explained “minor differences between [an

employee’s] qualifications and those of a successful applicant are not sufficient to

show pretext,” and instead “the disparity in qualifications must be

‘overwhelming.’” Id. at 1308-09 (citations omitted). Generally, “an employee

must proffer evidence that shows each of the employer’s justifications are

pretextual.” 4 Id. at 1309-10 (quotation marks and citations omitted). In making a

      4
       As an exception, we have said that sometimes “a successful attack on part of the
employer’s legitimate, non-discriminatory explanation is enough to survive summary
judgment even if one or more of the proffered reasons has not been discredited.”

                                          -12-
pretext determination, a court looks at the facts as they appeared to the person

making the employment decision, see Kendrick., 220 F.3d at 1231, because it is

the employer’s “‘perception that is relevant, not the [employee’s] subjective

evaluation of his own relative performance.’” Kelley v. Goodyear Tire & Rubber

Co., 220 F.3d 1174, 1177-78 (10th Cir. 2000) (quoting Furr v. Seagate Tech, Inc.,

82 F.3d 980, 988 (10th Cir. 1996)).



                                B. Discrimination Claim

       Having considered the applicable standards of review and legal principles,

we turn to the district court’s decision, which is extremely thorough, well-

articulated, and well-reasoned. For judicial economy, we find it unnecessary to

recount it in its entirety and provide instead a summary sufficient to explain our

affirmance.


Jaramillo, 427 F.3d at 1310. Instances sufficient to create a genuine issue of fact occur
when:

       (1) the reasons are so intertwined that a showing of pretext as to one raises a
       genuine question whether the remaining reason is valid; (2) the pretextual
       character of one explanation is so fishy and suspicious that a jury could find
       that the employer (or its decisionmaker) lacks all credibility; (3) the
       employer offers a plethora of reasons, and the [employee] raises substantial
       doubt about a number of them; (4) the [employee] discredits each of the
       employer’s objective explanations, leaving only subjective reasons to
       justify its decision; or (5) the employer has changed its explanation under
       circumstances that suggest dishonesty or bad faith.

Id. (quotation marks and citations omitted). None of these circumstances have been
demonstrated in this case.

                                            -13-
      In ruling in favor of the City, the district court first determined M r. Vigil

failed to meet his burden of proof on his claim of gender bias in a reverse

discrimination claim. W e agree. As the district court explained, the fact the

hiring officer was female and hired a female applicant over a male is insufficient

to meet M r. Vigil’s burden. However, because M r. Vigil also brought a claim of

national origin discrimination, the district court proceeded to a full M cDonnell

Douglas analysis and determined that even if M r. Vigil stated a prima facie case

of discrimination, the City provided legitimate, non-discriminatory reasons for its

selection of M s. Noonan over M r. V igil for the position of Purchasing Officer.

W e agree. First, even if the district court misinterpreted M r. Vigil’s argument

that the position required eight years of central purchasing experience plus eight

years of materials management experience, it essentially concluded neither M r.

Vigil nor M s. Noonan would have been qualified under that interpretation, and

that the City’s actual interpretation of the requirement – that the applicant possess

a total of eight years of central purchasing and materials management experience

– was applied equally to both candidates.



      Next, with respect to M r. Vigil’s claim M s. Noonan lacked materials

management experience, M s. Doyle clearly explained M s. Noonan performed

materials management while at the W ater Department, and, as the district court

explained, she was responsible for all aspects of budgeting for the Public W orks

                                         -14-
Department, so M r. Vigil’s otherw ise unsupported statements she lacked certain

materials or fiscal management and budget experience did not raise an issue of

fact.



        W ith respect to the issue of central purchasing experience, the district court

also explained in great detail that M s. Noonan had much more experience in

performing central purchasing functions than M r. Vigil, whose experience was

primarily in materials management, with only approximately twenty percent of his

time spent in Office Services functions. Our review of the vacancy announcement

and record suggests that while both central purchasing and materials management

experience were required, the position of Purchasing Officer primarily involved

central purchasing duties, thereby reinforcing the district court’s decision the City

provided legitimate, non-discriminatory reasons for its selection of M s. Noonan

over M r. Vigil for the position of Purchasing Officer.



        On appeal, M r. Vigil also contends M s. Noonan actually only served as an

“Assistant Acting Purchasing Officer” and not the “Acting Purchasing Officer,”

and that nothing in the record shows he and M s. Noonan acted in the position of

Purchasing Officer for the same amount of time for comparison purposes.

However, as the district court pointed out, the terminology referencing whether

M s. Noonan was the Acting Purchasing Officer or the Assistant Acting

                                           -15-
Purchasing Officer is not material to the issue of comparative qualifications,

given both candidates performed the duties of Purchasing Officer, regardless of

what their temporary position was titled, and M r. Vigil does not dispute the fact

he often delegated his “acting” duties to M s. Noonan. In addition, the district

court explained that the record established both individuals served in the capacity

of Acting Purchasing Officer for several days at various times, so in fact, they

served in that capacity for the same or similar approximate periods of time for

comparison purposes. (Id.) W e find M r. Vigil’s unsupported contention to the

contrary insufficient to show otherwise. For these reasons, together with the

other reasons articulated by the district court which are not recounted here, we

agree the City amply carried its burden of articulating legitimate, facially

nondiscriminatory reasons for not promoting M r. Vigil to the position of

Purchasing Officer.



      Having determined the City met its burden, we turn to M r. Vigil’s argument

of pretextual discrimination in which he claims the district court overlooked his

evidence of pretext. In support, he suggests the City eliminated certain exam and

interview questions which w ere used when the position was open the year before

and would have highlighted M s. Noonan’s absence of materials management

experience. He argues that while the City is not prohibited from changing the

interview process, it purposely changed its usual process in a manner that gave

                                         -16-
“an unfair advantage to an unqualified candidate.” Apt. Br. at 11. He suggests

this evidence of pretextual discrimination is sufficient to overcome the City’s

argument it changed the questions to remove an unfair advantage to those who

had previously applied for the position the year before. He also contends M s.

Doyle’s affidavit demonstrates she gave highly visible, favorable assignments to

M s. Noonan, and then improperly based her promotion on the experience M s.

Noonan gained through those same assignments. Accordingly, he argues this is

evidence of pretextual discrimination.



      In addressing M r. Vigil’s assertions, the district court pointed out the City

was obligated to offer a fair and level playing field to the candidates, which it did

in providing the same questions to all the candidates, and that because the

qualifications for the Purchasing Officer position changed between 2002 and

2003, it was reasonable to ask the 2003 candidates different questions than those

asked of the 2002 candidates. W e agree. M oreover, because M s. Noonan

obtained materials management experience while at the W ater Department, we

disagree with M r. Vigil’s unsupported premise that certain eliminated questions

would have highlighted M s. Noonan’s absence of materials management

experience.



      As to M r. Vigil’s argument M s. Doyle gave highly visible and favorable

                                         -17-
assignments to M s. Noonan which benefitted her for the purpose of promotion,

the district court determined M s. Doyle’s favorable consideration of M s.

Noonan’s availability and willingness to help was not improper and did not,

standing alone, constitute discrimination. In addition, the district court pointed

out it was undisputed M r. Vigil spent eighty percent of his time at the City

warehouse, was less available than M s. Noonan, and did not step in to assist as

readily as M s. Noonan. W e further note M s. Doyle’s favorable consideration of

M s. Noonan based on her availability and willingness to help was only one of

many considerations which placed M s. Noonan ahead of M r. Vigil, thus

weakening M r. Vigil’s argument that such favorable consideration alone showed

pretext sufficient for a successful disparity claim.



      In sum, under the circumstances presented, M r. Vigil has not demonstrated

pretext “by producing evidence of such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could rationally find

them unw orthy of credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Jaramillo, 427 F.3d at 1308. In addition,

no “disparity in qualifications” exists that is sufficiently “‘overwhelming’” for the

purpose of showing pretext. Id. at 1309 (citation omitted). For these reasons and

the additional reasons provided by the district court in its summary judgment

                                         -18-
decision, we conclude M r. Vigil clearly did not carry his burden of showing

pretext w ith regard to the applied-for position.



                                C. State Law Claims

      On appeal, M r. Vigil also asserts the district court erred in dismissing his

breach of contract claim, covenant of good faith and fair dealing claim, and New

M exico H uman Rights Act claim. First, M r. Vigil suggests the district court

incorrectly found no material issues of fact exist with respect to his contract claim

because “[M s.] N oonan failed to meet [the] minimum qualifications” required.

Apt. Br. at 13. As a result, he contends “her promotion constituted a breach of

contractual obligations” arising under the M erit Systems Ordinance. Id. In

support of his claim, M r. Vigil simply refers this court to personnel rules which

generally require the City to select the best qualified candidates to fill vacant

positions and that such selection be made “on the basis of education, experience,

training, skills and other abilities.” Apt. Br. at 14-15, 19-20.



      Next, M r. Vigil suggests the district court erred, first in failing to

specifically address his implied covenant of good faith and fair dealing claim, and

then summarily dismissing it. Last, in claiming the district court erred in

dismissing his New M exico H uman Rights Act claim, he argues the City’s

proffered non-discriminatory reasons for promoting M s. Noonan violated New

                                          -19-
M exico public policy, but he fails to explain exactly how such policy was

violated.



       In addressing M r. Vigil’s state claims, the district court found as a matter

of law that M r. Vigil was passed over for promotion on the basis of legitimate,

nondiscriminatory reasons, and that he failed to raise a genuine issue of fact

showing the City’s reasons for promoting M s. Noonan over him were pretextual.

As a consequence, the district court concluded the City did not breach any

contractual commitment 5 nor violate the New M exico Human Rights Act. 6 W e

agree, and, like the district court, find no reason to discuss these issues further.



                                     IV. Conclusion

       For the reasons cited herein, as well as the reasons provided in the district

court’s August 25, 2005 M emorandum Opinion and Order Granting Defendants’

M otion for Summary Judgment and September 26, 2005 Judgment, we AFFIR M




       5
        Because the district court concluded Mr. Vigil’s contract claim was subject to a
summary judgment determination on these grounds, it did not address whether Ms. Doyle
was a proper defendant, the alleged contract was express or implied, or Mr. Vigil
exhausted his administrative remedies.
       6
         Because the district court determined that, as a matter of law, neither Ms. Doyle
nor the City violated the Act, it did not specifically address the issue of whether an
individual such as Ms. Doyle was a proper defendant in a suit brought under the Act.

                                           -20-
summary judgment in favor of the Defendants-Appellees. Each party shall bear

the costs of litigation arising from this appeal.



                                        Entered by the C ourt:

                                        W ADE BRO RBY
                                        United States Circuit Judge




                                          -21-
