                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 24, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    D A RIU SZ JO ZEF SU LIC H,

                Plaintiff-Appellant,

    v.                                                    No. 06-4247
                                                   (D.C. No. 2:04-CV -428-TS)
    SY SCO IN TER MO U N TA IN FOOD                        (D. Utah)
    SERVIC ES, IN C.,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.


         Plaintiff Dariusz Jozef Sulich appeals from the district court’s order

granting summary judgment to his former employer. In addition to claiming that

the award of summary judgment was improper, he asserts that it should be set

aside in order to avoid manifest injustice due to fraud on the court. W e exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    Background

      M r. Sulich is of Polish descent and was born in Poland. He worked for

Sysco Intermountain Food Services, Inc. (Sysco) from June 1989 until M ay 2003.

During that time, he held various positions. From M arch 2002 until M ay 2003, he

worked on the night shift in the driver check-in department. In August of 2002 he

received an adverse employment rating due to an incident involving the improper

storage of a load of frozen fish. He claims he was not at fault but he signed the

reprimand document anyway because his supervisor would not listen. On M ay 1,

2003, M r. Sulich received a job review called a Performance Improvement Plan,

listing and documenting several instances of performance deficiencies between

February and April of 2003. As a result, he was discharged from the driver

check-in position because of poor performance. Due to a slow -dow n in business,

the only other open position available for M r. Sulich was as a custodian on the

day shift for less pay. Sysco offered him the custodial job, but he declined it

because he took care of his children during the day.

      M r. Sulich filed suit, claiming that his termination and proffered demotion

were due to national-origin discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. 1 He asserted that his

problems started when Ron W ood was put in charge of his department in July of

1
       M r. Sulich does not challenge the district court’s characterization of his
claims as national-origin discrimination only. Any claims of harassment, failure
to rehire, or discrimination based on age or race have been abandoned on appeal.

                                         -2-
2002. M r. W ood was his second-tier supervisor. According to M r. Sulich,

M r. W ood regularly called him a “dumb Pollack,” and told “Pollack” jokes in his

presence. It was M r. W ood who made the decision in early M ay of 2003 to

terminate M r. Sulich from the driver check-in position.

      Sysco moved for summary judgment and supported its motion with

affidavits from two of M r. Sulich’s direct supervisors stating he did not perform

his job properly, an affidavit from a coworker also stating he did not perform his

job properly, and an affidavit from Sysco’s human resources director stating that

he never filed a complaint alleging harassment or discrimination, despite posted

company policies prohibiting harassment and discrimination. In addition, Sysco

filed an affidavit from M r. W ood stating that (1) he decided to terminate

M r. Sulich from the driver check-in position because of poor job performance, as

documented in a M ay 1, 2003, Performance Improvement Plan; (2) due to a work

slow-down, the only other position available at that time was the day-shift

custodial job; (3) M r. Sulich refused the proffered day-shift position because of

child-care issues; and (4) after M r. Sulich was terminated from the driver

check-in department, the position was not filled and the work was divided among

existing employees. Aplt. A pp. at 26-27.

      In response, M r. Sulich submitted a transcript of a meeting between himself

and M r. W ood that occurred on or about M ay 3, 2003, shortly after he was

presented with the Performance Improvement Plan. He contends that this

                                         -3-
conversation demonstrates that M r. W ood lied about the reasons for terminating

him from the driver check-in job because the statements M r. W ood made at the

meeting contradict those made in his affidavit. In addition, M r. Sulich filed an

affidavit with his post-judgment motion in M arch of 2006 asserting that after he

was terminated, his position was filled by a younger white male w ho was born in

Utah. Id. at 216.

      The district court held that M r. Sulich had failed to establish a prima facie

case of national-origin discrimination because he did not show that he was

qualified for his driver check-in job. The court further ruled that M r. Sulich

failed to show that Sysco’s proffered nondiscriminatory reason for terminating

him was pretextual. Accordingly, the court granted Sysco’s motion for summary

judgment. M r. Sulich then filed a motion to alter the judgment, which the district

court denied. M r. Sulich appeals.

                                  Legal Framework

      Title VII makes it unlawful to discharge or discriminate against an

individual based on national origin. 42 U.S.C. § 2000e-2(a). A Title VII claim of

national-origin discrimination is evaluated according to the familiar

M cDonnell-Douglas 2 burden-shifting paradigm. To establish a prima facie case

of discriminatory discharge based on national origin, “the plaintiff must show that

(1) he belongs to a protected class; (2) he was qualified for his job; (3) despite his

2
      M cDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 807 (1973).

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qualifications, he was discharged; and (4) the job was not eliminated after his

discharge.” Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir.

2004) (quotation omitted). If the plaintiff meets his burden of proving a prima

facie case, the burden shifts to the defendant to provide a legitimate,

nondiscriminatory reason for the employment action. Id. If the defendant does

so, the burden shifts back to the plaintiff to show “that the legitimate reasons

offered by the defendant were not its true reasons, but were a pretext for

discrimination.” Id. (quotation omitted).

      W e review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

Lanman v. Johnson County, 393 F.3d 1151, 1154-55 (10th Cir. 2004). Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law . Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U .S. 317, 322-23 (1986). The moving party must

demonstrate that there exists no genuine issue of material fact. Ortiz v. Norton,

254 F.3d 889, 893 (10th Cir. 2001). “W hen, as in this case, the moving party

does not bear the ultimate burden of persuasion at trial, it may satisfy this burden

by identifying a lack of evidence for the nonmovant on an essential element of the

nonmovant’s claim.” Id. (quotation omitted).




                                          -5-
                                      Discussion

                               A. Summary Judgment

      The district court granted summary judgment to Sysco for two reasons:

M r. Sulich failed to establish a prima facie case and, even if he had, he failed to

show that Sysco’s facially nondiscriminatory reason for terminating him–poor job

performance–was pretextual. W e need not discuss whether M r. Sulich established

a prima facie case because we affirm on the basis that he failed to show that

Sysco’s stated reason for removing him from the driver check-in job was a pretext

for national-origin discrimination. See Bryant v. Farmers Ins. Exch., 432 F.3d

1114, 1125 (10th Cir. 2005) (stating after defendant provides nondiscriminatory

reason for employment action, plaintiff bears “full burden of persuasion” to show

that employer discriminated on illegal basis).

      A plaintiff may show that the employer’s proffered reason for terminating

him is pretextual by demonstrating “such w eaknesses, implausibilities,

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

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

them unworthy of credence” and therefore infer that the employer’s actions were

not for the reasons given. Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005)

(quotation omitted). Typically, a plaintiff shows pretext by direct “evidence that

the [employer’s] stated reason for the adverse employment action was false,” or

by demonstrating that the employer “treated [him] differently from other

                                          -6-
similarly-situated employees who violated work rules of comparable seriousness.”

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).

“Even though all doubts concerning pretext must be resolved in plaintiff’s favor,

a plaintiff’s allegations alone w ill not defeat summary judgment. M ere conjecture

that the employer’s explanation is pretext is insufficient basis to defeat summary

judgment.” Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1267 (10th Cir.

2007) (citation and quotations omitted).

      M r. Sulich argues that he established pretext by demonstrating that Sysco’s

stated reason for terminating him was false. He relies on the following evidence:

(1) the transcript of the M ay 3 meeting which impeached M r. Wood’s affidavit

because it showed that his statements were inconsistent; (2) his deposition

testimony asserting that he was wrongly accused in the frozen-fish incident

occurring in August 2002, (3) his allegation that his direct supervisor did not

teach him how to use the computer, but instead made the entries for him, (4) his

deposition testimony that M r. W ood looked at him as though he were dumb, told

him “Pollack” jokes, and teased him about his accent; and (5) his deposition

testimony describing his direct supervisor’s statement in 1999 or 2000 that he

would not be promoted unless he improved his English-language skills. In the

alternative, M r. Sulich argues that this evidence is sufficient to show contested

issues of material fact sufficient to resist summary judgment.




                                           -7-
      W e first consider the argument that M r. W ood’s affidavit stating the

nondiscriminatory reasons for terminating M r. Sulich was impeached by his

statements made during the M ay 3 meeting. According to M r. Sulich, the

discrepancies between the affidavit and the meeting transcript demonstrate that

M r. W ood lied in his affidavit and therefore he has demonstrated pretext.

Contrary to M r. Sulich’s claims, however, during the meeting, M r. W ood said

nothing to indicate that M r. Sulich was terminated for reasons other than poor

performance or that there were jobs available other than the custodial position he

was offered. M r. Sulich’s argument that M r. W ood lied when he promised to call

him back ignores both M r. Sulich’s repeated statement that he would initiate the

next call, Aplt. App. at 171, 173, and M r. W ood’s statement that he did in fact

call M r. Sulich back, id. at 27. Not only is this point trivial, it is not supported by

the record.

      M r. Sulich also contends that his M arch 3, 2006, affidavit asserting that he

was replaced by a younger, white male impeached M r. W ood’s statement that

after M r. Sulich was terminated no one was hired to replace him. This claim,

which was not made in the complaint, fails to contradict M r. W ood’s affidavit

because it indicates only that Sysco eventually hired someone for the driver

check-in position.

      M r. Sulich’s remaining evidence of pretext is insufficient to demonstrate a

genuine issue of material fact about Sysco’s stated nondiscriminatory reason for

                                           -8-
terminating him. Even if he was disciplined in error for the August 2002

frozen-fish incident, Sysco did not rely on it in making its decision. M oreover,

nothing suggests that this decision, or the alleged failure to teach him to use the

computer, were motivated by any national-origin animus. The statement about his

English being insufficient to qualify him for a promotion was allegedly made in

1999 or 2000, id. at 141, and was too remote in time to show pretext for the M ay

2003 termination. See Heno v. Sprint/United M gmt. Co., 208 F.3d 847, 856

(10th Cir. 2000) (“Discriminatory incidents which occurred . . . several years

before the contested action . . . are not sufficiently connected to the employment

action in question to demonstrate pretext.”) (quotation omitted). Finally,

M r. Sysco’s vague, generalized claims that his supervisors and coworkers told

“Pollack” jokes and looked at him as if he were dumb are insufficient to raise a

genuine issue of material fact as to pretext. Not only was M r. Sulich unable to

identify any specific remarks made by a supervisor, see Aplt. App. at 140,

141-42, 163, but these allegations do not challenge Sysco’s nondiscriminatory

reason for terminating him. See Bryant, 432 F.3d at 1125 (“Poor performance is a

quintessentially legitimate and nondiscriminatory reason for termination.”).

                              B. Postjudgment M otion

      On appeal, M r. Sulich contends that the district court erred in denying his

postjudgment motion to alter or amend the judgment. He maintains that Sysco

comm itted a fraud on the court so the judgment must be set aside to prevent

                                          -9-
manifest injustice. These claims w ere not presented to the district court,

however. Although we may consider an issue for the first time on appeal if

necessary to prevent manifest injustice, see Creative Gifts, Inc. v. UFO , 235 F.3d

540, 545 (10th Cir. 2000), we determine that M r. Sulich has not met the high

standard for showing a fraud on the court. Such a showing generally requires

evidence of “the most egregious conduct, such as bribery of a judge or members

of a jury, or the fabrication of evidence by a party in which an attorney is

implicated.” Zurich N. Am. v. M atrix Serv., Inc., 426 F.3d 1281, 1291 (10th Cir.

2005) (quotation omitted). M r. Sulich’s assertion that Sysco committed a fraud

on the court, as show n by the transcript of the M ay 3 meeting, is merely a rehash

of his pretext argument. M oreover, no fraud on the court was committed because

the very evidence M r. Sulich contends was fraudulent was considered and

rejected by the district court.

                                     Conclusion

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     M ichael R. M urphy
                                                     Circuit Judge




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