                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 6, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 GEORGE R. MARTINEZ,

          Plaintiff-Appellant,

 v.                                                     No. 04-2321
                                                         (D. N.M.)
 UNITED STATES DEPARTMENT                    (D.Ct. No. CIV-03-662 WPJ/ACT)
 OF ENERGY, Samuel W. Bodman,
 Secretary,

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.



      Appellant George R. Martinez appeals the district court’s grant of summary

judgment in favor of Appellee, the Secretary of the United States Department of

Energy, 1 on claims arising under Title VII of the Civil Rights Act of 1964, as

      *
        This order and judgment is not binding precedent except under the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.
      1
        Mr. Martinez brought this suit against then Energy Secretary Spencer
Abraham in his official capacity. On February 1, 2005, following the district
court’s November 12, 2004 decision in the case, Samuel W. Bodman officially
                                                                    (continued...)
amended, 42 U.S.C. §§ 2000e to 2000e-17, and the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621-631, 633-34. The crux of Mr.

Martinez’s suit is his claim of disparate treatment on the basis of age and race or

national origin, alleging the Department of Energy passed him over for positions

in favor of younger, non-Hispanic employees. 2 We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.



                              I. Factual Background

      The relevant facts are mainly undisputed, with the exception of certain facts

which the district court found immaterial to its summary judgment determination

and which we address hereafter. To begin, Mr. Martinez is a Hispanic male, who

at the time in question was over forty years old, and for twenty-four years worked

for the Department of Energy in the Albuquerque, New Mexico, Operations

Office of the National Nuclear Security Administration, rising to the position of

senior courier. In February 2000, he applied for a position as lead courier when


      1
       (...continued)
replaced Mr. Abraham as Secretary of the Department of Energy, and therefore,
the caption in this case has been amended to reflect the substitution of Mr.
Bodman.
      2
         In his complaint, Mr. Martinez also alleged his employer retaliated
against him because of his participation in filing Equal Employment Opportunity
complaints. He later conceded to dismissal of the retaliation claims on the basis
of nonexhaustion; therefore, those claims are not before us on appeal.

                                         -2-
two openings were advertised. A total of seven individuals applied for the two

positions, with four of those applicants being over the age of forty and three of

Hispanic ethnicity. Three panel members in the position of unit commander in

the Albuquerque courier section evaluated the applicants. Another individual,

Philip Griego, a human resources specialist, sat in on the interviews to ensure

panel members conducted them in accordance with all applicable personnel

regulations and asked each applicant the same questions. The panel based its

evaluation and ranking of the applicants on their (1) application packages,

including their answers to the application questions and responses to the

knowledge, skills and abilities (KSA) criteria; 3 (2) on-the-job performance; (3)

leadership ability; and (4) interviews, which involved the same questions posed to

each applicant.



      An examination of Mr. Martinez’s application establishes he misdated his

application over one year prior to the vacancy announcement. Under the heading

“Work Experience,” he merely stated, “I have been employed by DOE as a courier



      3
         The four KSA criteria contained in the vacancy announcement for the
lead courier position included: (1) knowledge of shipment security to include
demonstrated ability in tactical theories and practical application; (2) ability to
deal effectively with team members and a variety of people, interacting to
accomplish defined tasks; (3) ability to perform as a work leader; and (4) ability
to interpret and apply policies and regulations relative to shipment security.

                                         -3-
for my entire career! 24 years,” and provided no other description. Under the

heading “Education,” he wrote, “info is in my personnel file,” without furnishing

any other information, other than listing his 1972-1974 diploma in electronics

technology. In regard to other training or courses taken, he stated only, “I have

on the job experience and training for the past 24 yrs!” and did not list any

specific course or training. While he responded to the KSA criteria, he listed his

responses out of order. 4 A comparison of his responses with those of the

successful applicants clearly shows his responses were not as thorough as the

others, who listed in detail their prior work experience and specific education,

training, and courses.



      With respect to the interview, the panel members and Mr. Griego agreed

Mr. Martinez did not present himself as well as the other applicants, who were

asked the same questions. According to them, Mr. Martinez appeared nervous,

slumped in his chair, and, at one point in the interview, put his arms behind his

head and his feet on the table. They discussed his performance and agreed he did

not present himself in a professional manner, gave very brief responses, and did



      4
         Mr. Martinez’s response to KSA criterion 4 is identified as number 2 on
his application; similarly, his response to KSA criterion 2 is identified as number
3 on his application; and his response to KSA criterion 3 is identified as number 4
on his application.

                                         -4-
not exhibit the leadership skills other applicants demonstrated. Although the

panel thought Mr. Martinez would score higher because of his experience, he did

not score as high as expected or in comparison with the other applicants.

According to Mr. Griego, who observed the panel members’ interviews and

ratings of those interviews, no discussion occurred as to the age, race, or national

origin of any applicant.



      The panel submitted their evaluations and rankings to Ben Best, a facility

manager, who selected Anthony Mecca, an Anglo-American male under the age of

forty; and Anthony Chavez, a Hispanic male over the age of forty, for the two

lead courier positions. Approximately two weeks later, when another lead courier

position became open, Mr. Best selected one of the other applicants, David Smith,

an Anglo-American male under the age of forty. The three selected individuals

scored the highest in the applicable evaluations and rankings, while Mr. Martinez

scored the second lowest of the seven applicants. In August 2000, Mr. Martinez

filed an Equal Employment Opportunity complaint, alleging discrimination on the

basis of his age and race or national origin.



      In 2001, three vacancies opened for traffic management specialists. A total

of fourteen individuals, including Mr. Martinez, were certified as eligible and


                                          -5-
applied. Instead of conducting interviews, Everett Goodman, Chief of the

Transportation Management Division, reviewed each applicant’s supervisory

appraisals and applications, and assigned a score to each application based on the

completeness and accuracy of each response to the six KSA criteria. 5 In scoring

the applications, Mr. Goodman used a system giving one point for any KSA

response which did not comprehensively address the applicable KSA criterion,

two points for a response which somewhat comprehensively addressed the KSA

criterion, and three points for a response which comprehensively addressed the

KSA criterion, including four or more examples of experience. Under the scoring

system, Mr. Martinez received the third lowest score out of the fourteen

applicants and responded to only five of the six KSA criteria. Mr. Goodman

selected two males of Anglo-American descent and a Hispanic male — all under

the age of forty. With respect to the successful Hispanic applicant, Mr. Goodman

selected him over an Anglo-American applicant, even though they scored the


      5
         The KSA criteria for the traffic management specialist positions
included: (1) knowledge of DOE, DOD, and DOT safety and security regulations
pertaining to the handling, storage, compatibility and transportation of nuclear
explosives, radioactive material, high explosives and dangerous goods; (2)
knowledge of the TSS classified computer based systems; (3) knowledge of OTS
operations and the ability to analyze OTS programmatic/operational problems and
develop solutions; (4) ability to interact effectively with all levels of AL
management and with mid-level managers for DOE Headquarters, DOD, and all
other federal agencies; (5) ability to perform oral presentations and communicate
technical matters; and (6) ability to prepare written technical documents and
presentation materials.

                                        -6-
same, because he was Hispanic. A comparison of the applicants’ responses to the

KSA criteria shows Mr. Martinez’s responses were not as thorough as the other

successful applicants. 6 In July 2001, Mr. Martinez filed another Equal

Employment Opportunity complaint alleging discrimination on the basis of his

age and race.



      Unsuccessful in resolving his Equal Employment Opportunity complaints

within the Department of Energy 7, Mr. Martinez filed suit in federal court under

both Title VII of the Civil Rights Act and the Age Discrimination in Employment

      6
         Mr. Goodman explained one individual received the highest score
because his application was “particularly thorough and well done”; he
“demonstrated specific knowledge of relevant aspects of the position”; he had
experience as a training instructor in areas related to the position; he had
experience in oral presentation directly related to one KSA criterion; and he
thoroughly addressed each of the six KSA criteria, “giving specific examples of
his previous experience and his knowledge of regulations as they relate to the ...
position.” Another individual scored second highest because his application was
thorough; he cited to specific regulations and orders directly related to KSA
criterion 1, and his responses to KSA criteria 2-6 “demonstrated extensive
knowledge of the required KSAs.”

      With respect to Mr. Martinez’s application, Mr. Goodman pointed out his
response to KSA criterion 1 was strong, based on his previous experience
examples, but that his other responses were substandard because (1) his response
to KSA criterion 2 did not relate to the criterion; (2) his responses to KSA criteria
3-5 were not comprehensive and listed no specific examples; and (3) he did not
respond to KSA criterion 6.
      7
         Because Mr. Martinez did not receive an agency decision within 180 days
of filing his Equal Employment Opportunity complaints, he filed a complaint in
federal district court.

                                         -7-
Act on grounds he received disparate treatment on the basis of age and race or

national origin when the Department of Energy selected younger, non-Hispanic

employees for the open positions. Following briefing on the government’s motion

for summary judgment, the district court granted summary judgment in favor of

the government and against Mr. Martinez for the reasons articulated hereafter.

This appeal followed, in which Mr. Martinez raises the same contentions

comprehensively addressed by the district court in its summary judgment decision.

Namely, as contended in his affidavit opposing summary judgment, he claims a

material dispute of fact exists with respect to the panel and Mr. Griego’s

characterization of his interview and his own perception of his interview

performance. With respect to the position of traffic management specialist, he

claims the government impermissibly used unapproved, subjective scoring in

ranking the applications and that the district court improperly excluded, as

unauthenticated, scoring sheets attached to his affidavit.



                                   II. Discussion

      In articulating the standard of review and applicable discrimination law, we

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

Cir. 2005) (per curiam). We review de novo the district court’s summary

judgment decision and “consider the evidence in the light most favorable to the


                                         -8-
non-moving party, drawing all reasonable inferences from the available

underlying facts.” Id. at 1307 (citation omitted). 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).



      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 statute. Jaramillo, 427 F.3d at 1306.

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

shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).” Id. (citation omitted). Similarly, we analyze age discrimination cases

brought pursuant to the Age Discrimination in Employment Act under the

identical analytical framework established in McDonnell Douglas. See Garrett v.

Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). Under McDonnell

Douglas, the employee must first establish a prima facie case of discrimination by

showing “(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




                                         -9-
rejected.” 8 Jaramillo, 427 F.3d at 1306-07 (quotation marks and citations

omitted). If, as the government concedes in this case, 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.” Id. 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.



      An employee like Mr. Martinez 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 unworthy of credence and hence

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


      8
         Because the government concedes, for the purpose of summary judgment,
that Mr. Martinez met his prima facie case on both his age and race or national
origin claims, we need not address any inconsistencies in this Circuit’s treatment
of the fourth prong, as referenced in Jaramillo, 427 F.3d at 1307 n.1, other than
to note that the Supreme Court has explicitly held age-discrimination plaintiffs
need not show disparate treatment as compared to co-workers outside the
protected class (i.e., those under forty years of age) in establishing the fourth
prong. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13
(1996).

                                        -10-
Id. at 1308 (quotation marks and citation omitted). We 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). We 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.” 9 Id. at 1310 (quotation marks and citations omitted). In making a


      9
         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.” 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
                                                                      (continued...)

                                          -11-
pretext determination, a court looks at the facts as they appeared to the person

making the employment decision, see Kendrick v. Penske Transp. Servs., Inc., 220

F.3d 1220, 1231 (10th Cir. 2000), 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, 1178 (10th

Cir. 2000) (quoting Furr v. Seagate Tech, Inc., 82 F.3d 980, 988 (10th Cir.

1996)). In addition, we have repeatedly held a nonmovant’s conclusory and self-

serving affidavit, without other supporting evidence, is insufficient for the

purpose of surviving summary judgment. See Salguero v. City of Clovis, 366 F.3d

1168, 1177 n.4 (10th Cir. 2004); Garrett, 305 F.3d at 1213; Murray v. City of

Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995).



      Having considered the applicable standard of review and discrimination

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



      9
       (...continued)
      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 has
been demonstrated in this case.

                                         -12-
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. In ruling in favor of the government, the district court determined it

provided a legitimate, non-discriminatory reason for selection of others over Mr.

Martinez for the lead courier positions when it pointed to his incomplete answers

on his application and his less-than-thorough responses to the KSA criteria,

including numbering his responses out of order. Our own comparison of Mr.

Martinez's application and KSA responses with those of the individuals selected

shows Mr. Martinez’s application was woefully deficient.



      The district court also considered the panel and Mr. Griego’s contention

Mr. Martinez did not present himself very well at the interview; i.e., appearing

nervous, slumping in his chair, putting his arms behind his head and his feet on

the table, giving brief responses, and showing a lack of leadership skills. Based

in part on these reasons, the district court noted Mr. Martinez received the second

lowest evaluation out of the seven applicants and determined the government

carried its burden of articulating legitimate, non-discriminatory reasons for its

selection of the other applicants. We agree.



      Having determined the government carried its burden of articulating


                                         -13-
legitimate, facially non-discriminatory reasons for not promoting Mr. Martinez to

the position of lead courier, we arrive at Mr. Martinez’s argument of pretextual

discrimination based on his claim of disputed material facts which prohibited

summary judgment regarding the lead courier positions. Specifically, Mr.

Martinez asserts, as he did in his affidavit, that he performed well in the interview

and denies he slumped in his chair, put his hands behind his head, put his feet on

the table, appeared nervous, provided brief answers, or demonstrated a lack of

leadership skills. First, we find Mr. Martinez’s self-serving affidavit, without

other supporting evidence, unpersuasive. See Salguero, 366 F.3d at 1177 n.4;

Garrett, 305 F.3d at 1213; Murray, 45 F.3d at 1422. Next, as the district court

explained, the panel’s perceptions of Mr. Martinez during his interview did not

create the requisite material dispute of fact because a pretext challenge requires

the court to look at the facts as they appeared to the persons making the

employment decision, not the employee’s subjective evaluation of his own

performance. See Kelley 220 F.3d at 1178; Kendrick , 220 F.3d at 1231; Furr, 82

F.3d at 988. Alternatively, as the district court determined, even if Mr.

Martinez’s contentions did create a dispute of fact, they are immaterial, given the

other shortcomings in his application, including his cursory application answers

and KSA criteria responses. In other words, even without considering the facts

disputed by Mr. Martinez, or viewing them in the light most favorable to him,


                                         -14-
sufficient other legitimate, non-discriminatory reasons existed to select the others

over Mr. Martinez.



      With regard to the issue of subjectivity in the interview process, we have

said pretext is typically inferred when “the criteria on which the employers

ultimately rely are entirely subjective in nature.” Green v. New Mexico, 420 F.3d

1189, 1195 (10th Cir. 2005) (quoting Jones v. Barnhart, 349 F.3d 1260, 1267-68

(10th Cir. 2003)). In this case, we agree with the district court that no inference

of pretext exists, because the government did not rely solely on subjective

considerations but based its employment decisions on objective factors such as

Mr. Martinez’s non-responsive and incomplete answers to the application

questions and the KSA criteria, which were lacking in comparison with those of

the successful applicants. Moreover, as the district court pointed out, subjective

factors must play some role in considering individuals for upper level positions

and do not, per se, constitute discrimination. 10 (Relying on Pitre v. W. Elec. Co.,


      10
          In addition, the district court considered and rejected Mr. Martinez’s
claim certain comments showed the government inferred a discriminatory bent
against employees over forty. Specifically, Mr. Martinez asserted a manager of
the Office of Secure Transportation referred to him and other “senior couriers” as
the “old guys” at a June 2001 meeting, and another person made reference to
“older guys who put in for other positions,” although he could not recall who
made that statement or others who might have heard it. The district court
correctly determined that these comments were not sufficient to carry Mr.
                                                                       (continued...)

                                         -15-
843 F.2d 1262, 1271-72 (10th Cir. 1988).) For these reasons, we conclude Mr.

Martinez did not carry his burden of showing a pretext of discrimination with

regard to the lead courier positions.



      As to the traffic management specialist positions, the district court

determined the government provided a legitimate, non-discriminatory reason for

its selection of others over Mr. Martinez when it pointed out he scored third

lowest out of fourteen applicants based on the KSA response scoring system

applied to each application. The district court noted Mr. Goodman, the person

applying the scoring system, sufficiently explained the shortcomings in Mr.

Martinez’s responses to the KSA criteria as compared with those of the three

individuals selected. After reviewing the KSA responses, we agree with the

district court that “even a cursory comparison between [Mr. Martinez’s] responses

to the KSA’s for the Traffic Management Specialist position, and the other

applicants would convince any reasonable fact-finder that [the government’s]


      10
         (...continued)
Martinez’s burden of showing pretextual discrimination because he failed to show
a connection between them and his non-selection, especially since the identified
2001 comment occurred after the government had already selected others over Mr.
Martinez for the lead courier and traffic management specialist positions and the
statement occurred in front of around 100 people. Mr. Martinez does not contest
the district court’s resolution of this point on appeal; therefore, we need not
address it further, other than to note he has clearly not shown a connection
between these comments and his non-selection.

                                        -16-
reasons for not selecting [him] were legitimate and non-discriminatory.” As a

result, the government carried its burden of articulating legitimate, facially non-

discriminatory reasons for not promoting Mr. Martinez to the position of traffic

management specialist, thereby shifting the burden back to Mr. Martinez to prove

by a preponderance of the evidence that the government’s reasons are a pretext

for unlawful discrimination. See Jaramillo, 427 F.3d at 1307.



      While Mr. Martinez suggests the Energy Department used unauthorized,

impermissible, subjective scoring in assessing the applications of the traffic

management specialist positions, he provides no evidence to overcome his

patently substandard responses to the KSA criteria, including his failure to

address one of the six criteria considered important to the selection decision. In

addition, as the district court pointed out, the KSA criteria reasonably required

each applicant to demonstrate proficiency in responding to those criteria, their

written responses provided a reasonable method to determine their proficiency

and the best qualified applicant for the position, and the use of the three-step

grading option to score each response separately was reasonable, even if it

involved a certain degree of subjectivity. As to Mr. Martinez’s contentions the

human resources department did not preapprove the scoring criteria relied on by

Mr. Goodman, the district court noted the person who would have approved it


                                         -17-
provided an affidavit stating it was consistent with the rating guides or schedules

applied to all applicants.



      Finally, as to the documents attached to Mr. Martinez’s affidavit which he

claims the district court improperly failed to consider, we agree he did not properly

authenticate them; therefore, it is unclear whether they are, as he purports, scoring

sheets reflecting Mr. Goodman’s ratings on the KSA criteria responses. However,

as the district court pointed out, even if the scoring sheets are admissible, a review

shows they do not support Mr. Martinez’s position Mr. Goodman based his selection

solely on impermissible, subjective factors.         After considering all of the

circumstances presented, it is clear Mr. Martinez has not produced evidence “of such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” by

his employer for us to rationally conclude the proffered reasons for its selection of

others over Mr. Martinez are unworthy of credence and that it did not act for the non-

discriminatory reasons asserted. Jaramillo, 427 F.3d at 1308. Consequently, Mr.

Martinez has failed to carry his burden of showing pretextual discrimination

sufficient to overcome summary judgment with respect to the traffic management

specialist positions.



                                  III. Conclusion


                                         -18-
      For the reasons cited in the district court’s November 12, 2004 decision and

those articulated herein, we AFFIRM summary judgment in favor of the Secretary

of the Department of Energy.



                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




                                       -19-
