                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          AUG 28 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 SALVADOR RIVERA,

          Plaintiff - Appellant,
 v.                                                     No. 01-1114
                                                    (D.C. No. 95-N-317)
 HARVEY L. PITT, Chairman of the                       (D. Colorado)
 Securities and Exchange Commission,

          Defendant - Appellee.


                          ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY, and MURPHY, Circuit Judges.



      Plaintiff Salvador Rivera appeals the district court’s entry of summary

judgment in favor of defendant Harvey L. Pitt, Chairman of the Securities and

Exchange Commission (“SEC”). Our jurisdiction arises under 28 U.S.C. § 1291,

and having heard oral argument in this case, we affirm. Rivera, a former staff

attorney for the SEC Central Regional Office located in Denver, Colorado, alleges

that the SEC violated Title VII of the Civil Rights Act of 1964 when it terminated



      *
        This order and judgment is not binding precedent, except under the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.
him because of his race, national origin, and color, and in retaliation for filing

Equal Employment Opportunity (“EEO”) complaints. He also contends that the

SEC failed to adhere to the statutory criteria, 5 U.S.C. § 4302, for removing

federal employees when it terminated him.

                                           I

      In analyzing Rivera’s Title VII discrimination claim, the district court

required him to show that non-Hispanic employees were treated differently or

were disciplined less severely than Rivera for violating work rules. The district

court decided this case before Kendrick v. Penske Transportation Services, Inc.,

which clarified that a plaintiff need not show that similarly situated non-minority

employees were treated less severely or differently than plaintiff to establish a

prima facie case. 220 F.3d 1220, 1228–29 (10th Cir. 2000).

      Applying Kendrick and viewing the evidence in the light most favorable to

Rivera, see Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance

Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), we conclude that the district

court erred and that Rivera established a prima facie case. The SEC, however,

offered a nondiscriminatory reason for Rivera’s termination—poor job

performance. The burden thus shifts back to Rivera to demonstrate that the

SEC’s legitimate nondiscriminatory reason is pretextual. There are three typical

ways for a plaintiff to show pretext:


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      (1) with evidence that the defendant’s stated reason for the adverse
      employment action was false; (2) with evidence that the defendant
      acted contrary to a written company policy prescribing the action to
      be taken by the defendant under the circumstances; or (3) with
      evidence that the defendant acted contrary to an unwritten policy or
      contrary to company practice when making the adverse employment
      decision affecting the plaintiff. A plaintiff who wishes to show that
      the company acted contrary to an unwritten policy or to company
      practice often does so by providing evidence that he was treated
      differently from other similarly-situated employees who violated
      work rules of comparable seriousness.

Kendrick, 220 F.3d at 1230 (citations omitted). Rivera has not presented

evidence that the SEC’s conclusion that he performed unsatisfactorily was false;

his only pretext argument is that the SEC violated policy because similarly

situated non-minority employees were disciplined less severely or treated

differently than Rivera. He specifically alleges that (1) he was illegally placed on

probation in 1989; (2) his supervisors reported their suspicions that he violated

the Hatch Act to investigatory authorities; 1 (3) he received a poor performance

evaluation in 1994; (4) he was placed on a performance improvement plan in

1995; (5) his supervisor had him under surveillance; and (6) he was terminated.

On appeal Rivera argues for the first time that his 1994 performance evaluation

and his supervisor’s surveillance of him are evidence of disparate treatment.

Because these arguments were not presented to the district court we will not


      1
        Rivera was ultimately found to have violated the Hatch Act by the SEC’s
Inspector General’s Office and was punished with a sixty-day suspension. (3
Appellant’s App. at 826.)

                                         -3-
consider them for the first time on appeal. See Bennett v. Quark, Inc., 258 F.3d

1220, 1227–28 (10th Cir. 2001). 2

      The only evidence supporting the remaining allegations is Rivera’s

affidavit stating that other SEC staff attorneys had violated SEC rules and had not

been seriously disciplined or terminated. To survive summary judgment Rivera’s

affidavit “must be based upon personal knowledge and set forth facts that would

be admissible in evidence; conclusory and self-serving affidavits are not

sufficient.” Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)

(quotation omitted). The district court reviewed Rivera’s affidavit and concluded

that it did not present any admissible evidence because the statements in the

affidavit were “conclusory, self-serving, and so wholly lacking in foundation that

they are inadmissible under the Federal Rules of Evidence.” (3 Appellant’s App.

at 841.) Furthermore, the district court found that Rivera’s claims of disparate

treatment premised on his being placed on probation in 1989 and on his being

reported for Hatch Act violations were barred by res judicata because they were

identical to the disparate-treatment claims he raised or could have raised in his


      2
        The SEC filed a motion to strike those portions of Volume IV of Rivera’s
corrected appendix that had not been submitted to the district court, essentially
comprising all pages in Volume IV except 854–932, 940–48, 1040–50, 1169–89.
Federal Rule of Appellate Procedure 10(e) precludes supplementing the record
with documents that were not before the district court, except to the extent it is
necessary to “truly disclose[] what occurred in the district court.” Rivera’s
documents do not meet this standard. The SEC’s motion is therefore granted.

                                         -4-
1995 lawsuit against the SEC—claims for which the district court entered an

order granting the SEC summary judgment. (3 id. at 838.)

      Upon reviewing the record, we conclude that Rivera’s affidavit does not

provide admissible evidence and that he has not presented additional evidence to

support his allegations that non-Hispanic staff attorneys were treated differently

than himself. Consequently there is no genuine issue as to any material fact

concerning Rivera’s claim that the SEC’s legitimate nondiscriminatory reason for

his termination was pretextual; therefore, the SEC is entitled to summary

judgment on this claim.

                                         II

      Rivera also contends the SEC retaliated against him for filing EEO

complaints. We agree with the district court that Rivera established a prima facie

retaliation claim based on filing an EEO complaint on February 22, 1996, and

being terminated two months later. The district court correctly found that the

SEC provided a legitimate nondiscriminatory reason for terminating Rivera—poor

job performance—and that Rivera failed to present sufficient evidence from

which a reasonable juror could conclude that the SEC’s legitimate

nondiscriminatory reason for terminating Rivera was a pretext for discrimination.

With respect to Rivera’s other retaliatory discharge claims, we conclude the

district court correctly granted the SEC’s motion for summary judgment for


                                         -5-
substantially the reasons expressed by the district court in its January 3, 2000

order and memorandum of decision.



                                         III

      Rivera argues that the district court erred in granting defendant’s motion

for summary judgment on his claim that the SEC terminated him without adhering

to the statutory requirements for removing a federal employee, 5 U.S.C. § 4302.

Having heard oral argument and upon careful consideration of the record, the

briefs, the district court’s order, and applicable law, we conclude that the district

court correctly granted the SEC’s motion for summary judgment for substantially

the reasons stated in the district court’s January 3, 2000 order and memorandum

of decision.

                                         IV

      We AFFIRM.



                                                ENTERED FOR THE COURT



                                                PER CURIAM




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