                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 17, 2006
                            FOR THE TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

    EDMOND A. ESPINOZA,

                Plaintiff-Appellant,

    v.                                                  No. 05-1025
                                                 (D.C. No. 03-N-1623-BNB)
    COCA-COLA ENTERPRISES, INC.,                         (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



         Plaintiff appeals from the grant of summary judgment to defendant on his

claims of employment discrimination and retaliation. He alleged that defendant

denied him a promotion because he is Hispanic and later terminated him for that

reason and in retaliation for general complaints he had voiced about disparate



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
treatment of Hispanics. The district court held that plaintiff failed to establish a

prima facie case for these claims and entered judgment for defendant accordingly.

We affirm, though we frame the dispositive analysis somewhat differently.

      Plaintiff was a district sales manager at defendant’s Pueblo, Colorado,

facility when he applied for the top position of sales manager. He had recently

received a write-up for a verbal altercation with a customer and been given a

sub-target performance evaluation, however, and was not interviewed. Instead,

another district sales manager, Donald Podzemny, was promoted to the position.

      In the meantime, plaintiff voiced complaints about disparate treatment of

Hispanics and African-Americans. His complaint about racism was tied to a

specific claim by another employee that had led, indirectly, to the discharge of the

sales manager whose position plaintiff sought (who admitted, and was fired for,

lying in an investigation of the employee’s EEOC complaint). His complaint

about national origin discrimination was much more general, based on his

observation that management included very few Hispanics.

      Months later, plaintiff submitted many facially irregular Market Execution

Evaluations (MEEs), which are supervisory reports used in determining incentive

bonuses for the account managers working under a district sales manager. The

matter was investigated by human resource manager Ron Paxton and ultimately

resulted in plaintiff’s termination for falsification of company records. Paxton’s


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affidavit discusses in detail the alterations and evident neglect of supervisory

duties the alterations would serve to conceal, all backed up by physical evidence

and interviews with the affected subordinates. See Aplt. App. vol.2, ex. A-4.

Paxton concluded:

       It was apparent from my investigation that Plaintiff had not
       conducted the Market Execution Evaluations and had forged the
       MEEs to cover for his failure to complete his job duties.

       Plaintiff was terminated on May 6, 2002 for intentionally and
       knowingly altering Company documents by (1) changing the dates
       that the MEEs were performed, (2) cutting off the bottom of the
       sheets that contained the computer generated date that the documents
       were printed, and (3) falsifying both the signatures and dates of
       members of his sales team on the MEEs.

Id., ex. A-4, at 5-6.

       The district court began its analysis of plaintiff’s discrimination claims by

identifying the pertinent prima facie case under the traditional burden-shifting

analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a

failure-to-promote claim, plaintiff had to show that (1) he was a member of a

protected class; (2) he applied for and was qualified for the position; (3) despite

being qualified, he was rejected; and (4) after he was rejected, the position was

filled. Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003). The elements

for a discriminatory-discharge claim are essentially the same, though of course the

plaintiff must show that, despite being qualified, he was discharged from a job he

held and that the job was not simply eliminated. See Rivera v. City & County of

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Denver, 365 F.3d 912, 920 (10th Cir. 2004). The district court concluded that in

light of the facts recited above, which were admitted and/or not effectively

controverted, plaintiff could not satisfy the qualification element common to both

of the controlling prima facie cases.

      As a threshold challenge to that decision, plaintiff contends that the court

construed the qualification element too broadly, thereby improperly incorporating

into the prima facie case the analytically subsequent inquiry regarding the

employer’s justification for the adverse action and the plaintiff’s opposing

demonstration of pretext. But, even if that objection were valid, we do not think

the result here is undermined: “whether th[e] analysis [of plaintiff’s qualification

for the job] is conducted in reference to the prima facie case or the business

justification versus pretext inquiry, . . . if the court correctly concludes that the

evidence of discrimination/pretext fails as a matter of law, summary judgment for

the defendant is the proper result.” Sorbo v. United Parcel Serv., 432 F.3d 1169,

1173-74 & n.5 (10th Cir. 2005).

      Plaintiff also contends that he presented sufficient evidence of pretext to

warrant a trial. We disagree. As for the failure to promote, plaintiff does not

deny that shortly before applying he received a write-up and an unsatisfactory

performance evaluation by a supervisor unconnected to the promotion, but he

believes these were exaggerated/unwarranted products of personal enmity and


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retribution. This line of argument has two basic flaws. First, by attributing the

write-up and evaluation to the supervisor’s personal grudge against him (and,

more specifically, to retribution for negative ratings the supervisor had received a

year earlier based on subordinates’ comments), see Aplt. App. vol. 3, ex. 1 at 14-

17, ex. 9 at 19; Aplt. Opening Br. at 33, plaintiff imputes “a motive not prohibited

under the civil rights laws,” which obviously undermines his case for actionable

discrimination. Marx v. Schnuck Markets, Inc., 76 F.3d 324, 328 (10th Cir.

1996). Second, in any event, it is the employer’s understanding of the facts, not

plaintiff’s personal belief or interpretation, that is material, Stover v. Martinez,

382 F.3d 1064, 1073 (10th Cir. 2004), and the relevant inquiry is whether the

information given the decision-maker justified the action taken, not whether there

might have been some error in the information relied on, Sorbo, 432 F.3d at 1178;

Salguero v. City of Clovis, 366 F.3d 1168, 1176 (10th Cir. 2004).

      Plaintiff also complains that the district sales manager (Podzemny) who

received the promotion was a pre-selected favorite who did not meet some of the

application criteria. We see two flaws in this objection as well. Plaintiff never

explicitly asserts, much less substantiates by record citation, that Podzemny was

pre-selected because he was not Hispanic or that Podzemny was preferred

because plaintiff was Hispanic (indeed, plaintiff contends the first step in this

pre-selection plot involved termination of prior supervisor Jack Waller, whom he


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has never suggested had any Hispanic ties). See Aplt. Opening Br. at 26-27. This

pre-selection argument thus amounts to a complaint that the application process

was a meaningless formality, which “might be inconsiderate or unfair, but it does

not [imply] . . . discrimination.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d

1303, 1314 (10th Cir. 2005) (following Mackey v. Shalala, 360 F.3d 463, 468 (4th

Cir.), cert. denied, 543 U.S. 876 (2004), which held “preselection is not sufficient

evidence for jurors reasonably to [find] . . . pretext”). As for the point that

Podzemny fell short of the minimum-time-in-current-position requirement and

lacked a supervisor’s nomination for promotion to the sales manager position

(though he had served as the interim replacement after Waller was fired, in part

because plaintiff was off work due to illness), neither of these formal application

deficiencies is remotely comparable to the performance and discipline issues that

undercut plaintiff’s effort to seek the promotion.

      Much less need be said about plaintiff’s claim of discriminatory discharge.

The conduct underlying that action – alteration of performance records relating to

compensation of subordinates – clearly supplied a facially legitimate business

justification. And insofar as plaintiff attempts to advance a more innocent

interpretation of his conduct, that is a matter for the judgment of his employer,

not the courts. See Stover, 382 F.3d at 1076 (explaining that “in evaluating

pretext . . . our role is not to second guess an employer’s business judgment”).


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      Finally, plaintiff objects to the district court’s rejection of his retaliation

claim for lack of supporting citations to the record. Ironically, his appellate

objection suffers from the same deficiency. Plaintiff neither shows that he did in

fact provide sufficient supporting record citations in his opposition to summary

judgment (the document is not even in his appendix), nor does he include any

record citations here. He merely states that his 25-page affidavit provides

sufficient evidence to defeat the motion for summary judgment on this claim,

without citing a single specific portion, page, or paragraph to substantiate that

conclusion. Aplt. Opening Br. at 16. We review the grant of summary judgment

from the perspective of the district court at the time it made its ruling, and where

the nonmovant failed to support his case with adequate specificity, we will not

fault the court for not searching the record on its own to make his case for him

(nor will we take on that role of advocacy). See Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 671-73 (10th Cir. 1998); see also Gross v. Burggraf Constr. Co.,

53 F.3d 1531, 1546 (10th Cir. 1995).

      We note that plaintiff asserts in summary fashion several additional

arguments in his reply brief. To the extent these relate to the issues we have

addressed above, they do not alter our analysis and do not require particularized

discussion. To the extent they raise new points, we deem them untimely.




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See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (“This court does not

ordinarily review issues raised for the first time in a reply brief.”).

      The judgment of the district court is AFFIRMED.


                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




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