                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 24 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                                Clerk

 CARLOS GALINDRE,

          Plaintiff-Appellant,

               v.                                     No. 98-2229
                                               (D.C. No. CIV-96-1742-LH)
 CITY OF ALBUQUERQUE;                                  (D. N.M.)
 RAYMOND GONZALES, Operations
 Superintendent; and CITY
 PERSONNEL BOARD,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, McKAY, and BRISCOE, Circuit Judges.



      Plaintiff Carlos Galindre appeals the district court’s grant of summary

judgment to defendants on his civil rights claims. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.




      *
        This order and judgment is not binding precedent, except under the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.
                                          I.

      Plaintiff commenced employment with the City of Albuquerque in 1972. In

March 1994, entering his fourth year as a supervisor in the public works

department, he was named one of the defendants in a federal civil rights action

brought by Fred Thompson, a black male who had worked directly under plaintiff

since 1991. Plaintiff, represented by Assistant City Attorney Judy Kelly, testified

at his deposition that he had heard the words “spook” and “mayate” used on a

single occasion in the summer of 1991 by two unidentified individuals in a

department lunchroom conversation. Plaintiff had no recollection who had

uttered these words, both of which he described as terms used to denote black

persons, but he did remember the terms were used only in a “general” way and not

in reference to any particular person.

      On February 27, 1995, Raymond Gonzales, operations superintendent,

informed plaintiff by letter that he was being charged with “failure to carry out

supervisory responsibilities” and faced disciplinary action, “up to and including

possible termination.” App. at 79. In particular, the notice stated:

      It has recently been brought to my attention that on at least one
      occasion in the past you overheard some members of your labor crew
      making racial slurs against another member of your crew, but you
      failed to take any action or to report this incident to your supervisor.
      Making ethnic slurs or comments towards fellow employees is a
      violation of the City’s Employee Code of Conduct, and your failure
      as a supervisor to take any action in this matter is also a violation of
      the Code of Conduct.

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Id. Plaintiff was advised he could respond to the allegations at a hearing to be

held two days later. At the hearing, plaintiff stated:

      I don’t rightly remember what ethnic slurs were made and who made
      them, and who they were directed to. I may or may not have heard
      some ethnic slurs made, but I do not know who made them or who
      they were directed to, and I don’t remember even what the ethnic
      slurs were. That’s all I have to say. If at any time I would have
      known exactly who made the statement, what the statements were,
      and who they were directly directed to, I would have reported as such
      to my immediate supervisor and done something about it, or asked
      for his advice as to what should have been done, what should I do
      about it and I would have carried it out.

Id. at 80-81. After assuring plaintiff the charges against him revolved exclusively

around the incident he had mentioned in his deposition, Alex Garland, plant

manager, stated, “we simply cannot allow that at this facility,” and adjourned the

hearing. Id. at 81.

      Plaintiff was demoted to a non-supervisory position at another facility on

March 24, 1995. The official letter notification to plaintiff stated:

      Information presented at the hearing, as well as your past work
      record [have] been reviewed and taken into account. Discrimination
      in any form will not be tolerated, and your failure as a supervisor to
      take action of any kind is [inexcusable] and totally unacceptable.
      Your past work record indicates to me that you have had other
      problems in exercising your supervisory duties and responsibilities.
      Although this latest incident is an extremely serious matter, and
      could result in termination, I have decided not to pursue that action
      at this time. I am, however, demoting you from your current
      position, per the terms of the attached Stipulation of Agreement.

Id. at 82. The proposed stipulation included a provision in which plaintiff agreed


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to release the City and its agents from liability for any actions preceding the

demotion. Plaintiff refused to sign the stipulation and he was discharged

effective March 29, 1995. Plaintiff appealed his termination to the personnel

board. Following a grievance hearing, at which plaintiff was represented by

counsel, the hearing officer recommended upholding the discharge. However, the

board voted to modify the recommendation and, after imposing a ninety-day

suspension, ordered that plaintiff be reinstated to his department in a non-

supervisory capacity. Plaintiff appealed the board’s decision to the state district

court, which affirmed the ruling in August 1997.

      On February 28, 1996, while his appeal in state court was still pending,

plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC), alleging unlawful retaliation in violation of Title VII. On

December 12, 1996, plaintiff, represented by counsel, filed a complaint in federal

district court against the City and numerous city officials, alleging violations of

state and federal law. 1 The two federal claims, brought under 42 U.S.C. § 1983,

charged the City and its officials with denial of due process under the Fourteenth

Amendment and unlawful retaliation in violation of the First Amendment.

Plaintiff also asserted a separate wrongful retaliation claim for which he


      1
         The complaint stated plaintiff was invoking the court’s jurisdiction
pursuant to “42 U.S.C. 1983, 1985, and 1988; as well as the laws and
constitutions of New Mexico and the United States.” App. at 2.

                                          4
articulated no jurisdictional basis, but stated the claim was “the subject of [his]

Title VII complaint with the EEOC.” App. at 10. He noted the Title VII

retaliation claim was “pending before the EEOC and [would] be joined with this

action at the appropriate time.” Id. The EEOC issued a right-to-sue letter on

December 17, 1996.

       On August 22, 1997, the district court granted defendants’ motion to

dismiss plaintiff’s state law claims. On July 30, 1998, the court granted

defendants’ motion for summary judgment on plaintiff’s due process and First

Amendment retaliation claims. The court also denied plaintiff’s cross-motion for

summary judgment on his Title VII retaliation claim, stating plaintiff had not

claimed retaliation in violation of Title VII in his complaint. Plaintiff appeals

only the court’s dismissal of his federal claims; he has abandoned his state law

claims.

                                            II.

       Federal Rule of Appellate Procedure 30(a)(1) places the burden on the

appellant to prepare an appendix containing the trial court’s docket sheet, all

relevant pleadings, all relevant court orders/judgments, and any other parts of the

record to which the appellant wishes to direct the court’s attention. For us to

consider an issue on appeal, an appellant must show where he raised the matter in

district court.   Lopez v. Behles (In re Am. Ready Mix, Inc.)   , 14 F.3d 1497, 1502


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(10th Cir. 1994). If the evidentiary record is insufficient to assess the appellant’s

claims of error, we must affirm.   Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-

80 (10th Cir. 1992).

      Although plaintiff’s appendix includes   defendants’ memorandums in

support of their summary judgment motions, it does not include plaintiff’s

responses. Because the appendix also omits the district court docket sheet, we

have no way of knowing if plaintiff filed responses to the motions. Plaintiff’s

counsel did include the cover motion of his cross-motion for summary judgment

on plaintiff’s First Amendment claim,   but he did not include the memorandum in

support of the motion. Inasmuch as neither the cover motion nor the district

court’s order offers any insight into the arguments plaintiff may have raised, we

are unable to discern whether the issues on appeal were raised in district court.

As to the purported Title VII claim, plaintiff’s counsel included only the first five

pages of the memorandum in support of his summary judgment motion on this

cause of action, which consists exclusively of the facts underlying the claim.

Plaintiff’s counsel chose not to include the “argument” section, once again

precluding us from knowing what issues plaintiff raised in district court. Further,

while the order granting summary judgment suggests a hearing may have been

held, see App. at 109 (“All parties were represented by counsel. The Court

considered the pleadings, briefs, case law, and the arguments of counsel.”), no


                                          6
transcript of the hearing was included in the record on appeal.

      The judgment of the district court is AFFIRMED.

                                             Entered for the Court

                                             Mary Beck Briscoe
                                             Circuit Judge




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