## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 6 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GILBERT SALGUERO, Plaintiff-Appellant, v. THE CITY OF CLOVIS, Defendant-Appellee. . No. 03-2120

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-02-0319 WJ/LCS)

Eric D. Dixon of Portales, New Mexico, for the Plai ntiff-Appellant. Jerry A. Walz, (Anthony (T.J.) J. Trujillo with him on the brief), Walz and Associates, Cedar Crest, New Mexico for the Defendant-Appellee.

Before LUCERO , BALDOCKand TYMKOVICH , Circuit Judges.

LUCERO , Circuit Judge.

Gilbert Salguero, a former City of Clovis police of ficer, was terminated from his employment after an investigation uncovere d his involvement in obtaining illegal access to satellite television. He filed suit in federal district court alleging that the City of Clovis (the “City”) : (1) breached his employment- 2 -

contract by terminating him without just cause; (2) dismissed him without due process of law in violation of 42 U.S.C. § 1983; an d (3) intentionally discriminated against him on the basis of race in v iolation of 42 U.S.C. § 1981. The district court granted the City’s motion to dis miss as to several of Salguero’s claims and granted summary judgment to the City as to the remainder. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM

. I In April 2001, the City of Clovis Police Department(“CPD”) received information that police officers were involved in o btaining cards to access satellite television illegally. CPD initiated a cr iminal investigation and interviewed all officers with satellite televisions . Based on the investigation, CPD concluded that although several officers were i nvolved in illegally obtaining satellite television, Salguero’s involvement was th e most severe. In an interview on August 18, 2001, after being read his Miranda ri ghts, Salguero admitted that: (1) he obtained illegal satellite access cards from Canada; (2) he gave cards to a relative, two friends, and Officers Keith Farkas an d Roger Dial; and (3) it was common knowledge in CPD that he could assist others in obtaining cards. The CPD police captain recommended that Salguero be ter minated due to the severity of his involvement in the satellite scheme. Althou gh Salguero appealed the police captain’s recommendation to the deputy chief and th e chief of police, he was- 3 -

terminated in September 2001. Salguero brought pos t-termination appeals before the city personnel director and the assistant city manager, both of whom upheld the termination. Having been denied relief on both his pre- and post -termination appeals, Salguero requested a hearing before the city grieva nce board, which he received on January 18, 2002, before a five-member board. At the hearing, he was represented by counsel and was informed of his right to call and question witnesses and to present other evidence. Salguero argued before the board that his termination was disproportionate compared to th e discipline received by other officers, and that it was a result of discriminatio n. Specifically, he claimed that he was the only Hispanic officer involved in the il legal satellite access scheme and the only officer to be terminated despite the i nvolvement of seven other officers. Testimony heard by the board included statements th at only Salguero and one other officer, Keith Farkas, had distributed ca rds or received any money for the cards, and that only Salguero had sent money or ders out of state to obtain cards and searched at pawnshops for cards to reprog ram. Salguero himself admitted that he did not know of anyone in CPD with greater involvement in the illegal activity than his, and that he did not know of any other officers who supplied cards to other officers. In addition, he testified that he provided illegal- 4 -

cards to four officers, conducted one transaction w hile on duty, had an agreement with another individual who would reprogram cards f or Salguero, and informed others how to obtain cards. On January 25, 2002, the board issued a decision up holding Salguero’s termination. Its findings included the following: (1) Salguero knew his actions violated both state and federal law; (2) no other C PD employee was involved in reprogramming or obtaining illegally reprogrammed c ards; (3) only one other employee distributed illegal cards as a conduit forSalguero on one occasion; (4) all other employees involved in the use of illegal satellite access cards were endusers or conduits for Salguero; and (5) Salguero wa s the organizer and solicitor of illegal reprogramming activities. On March 21, 2001, Salguero filed a complaint in fe deral court against the City alleging: (1) a state law claim that CPD brea ched his employment contract by wrongfully terminating him without just cause; ( 2) a claim under 42 U.S.C. § 1983 that CPD dismissed Salguero, inter alia, wit hout due process of law; and (3) a claim under 42 U.S.C. § 1981 that CPD intenti onally discriminated against him on the basis of race. The City filed a motion to dismiss, or in the alternative, a motion for summary judgment on all of Salguero’s claims. In a Memorandum Opinion and Order, the district cou rt denied all of Salguero’s claims. With respect to the breach of c ontract claim, the district court- 5 -

determined that under the doctrine of collateral es toppel, a New Mexico court would give preclusive effect to findings by the gri evance board that Salguero was terminated for just cause; accordingly, it granted summary judgment to the City. As to Salguero’s § 1983 claims, the district court dismissed under Fed. R. Civ. P. 12(b)(6) every theory but Salguero’s alleged proced ural due process violations. On that claim, it granted summary judgment to the C ity because Salguero failed to establish a violation of his rights to notice and a n opportunity to be heard. Finally, the district court granted summary judgmen t to the City on Salguero’s § 1981 intentional discrimination claim. It also granted summary judgment to the City on Salguero’s § 1983 equal pro tection claim to the extent that it stated a claim. The district court reasone d that under the McDonnell Douglas burden-shifting framework, Salguero’s “conclusory statements in his own affidavit that [] other employees engaged in conduc t of comparable seriousness” failed to demonstrate that the City’s legitimate re asons for his termination were pretextual. Salguero v. City of Clovis , No. 02-319 WJ/LCS, slip. op at 33 (D.N.M. April 22, 2003). Salguero appeals on two grounds: (1) the grievance board was not an adjudicative body that presented him with a full an d fair opportunity to litigate the issue of just cause; and (2) he presented genui ne questions of fact establishing that the City’s reasons for his termination were pr etextual.- 6 - II We review a summary judgment grant de novo and appl y the same legal standard used by the district court. McCowan v. Al l Star Maint., Inc. , 273 F.3d 917, 921 (10th Cir. 2001). Drawing all reasonable inferences in the light most favorable to the nonmoving party, see Simms v. Oklahoma ex rel. , 165 F.3d 1321, 1326 (10th Cir. 1999), summary judgment is appropri ate “if the pleadings . . . show that there is no genuine issue as to any mater ial fact and that the moving party is entitled to a judgment as a matter of law. ” Fed. R. Civ. P. 56(c). We also review de novo the district court's application of the doctrine of collateral estoppel. Dodge v. Cotter Corp. , 203 F.3d 1190, 1197 (10th Cir. 2000); see also Gonzales v. Hernandez , 175 F.3d 1202, 1204 (10th Cir. 1999) (similarly reviewing de novo a grant of summary judgment on th e ground that the claims were barred under the doctrine of collateral estopp el).
A With respect to his contract claim, Salguero argues that the doctrine of collateral estoppel should not bar him from litigat ing his claim in federal district court. Salguero raises two primary challenges on appeal: (1) that the decision of the grievance board should not be granted preclusiv e effect because the board was not acting in a judicial capacity; and (2) that the board did not afford him a full- 7 -

and fair opportunity to litigate his breach of cont ract claim. Applying the principles of collateral estoppel, or issue preclusion, to decisions of state administrative bodies serves to promote federalism, conserve judicial resources, and encourage parties to minimi ze the expense and burden of repetitive litigation. See Univ. of Tenn. v. Elliot , 478 U.S. 788, 798 (1986). Thus when a state agency (1) acts in “a judicial capacity”; (2) resolves “disputed issues of fact properly before it”; and (3) the parties have had “an adequate opportunity to litigate” the issue, we will grant t he state agency’s decision preclusive effect to the extent that it would have received preclusive effect in state court. Id. at 799 (quotation omitted). Therefore, if a New Mexico state administrative hea ring satisfies Elliot ’s three requirements, we look to New Mexico law to de termine whether issue preclusion is proper. New Mexico courts apply coll ateral estoppel to administrative hearings provided: “(1) the party a gainst whom collateral estoppel is asserted [was] a party in or in privity with a p arty to the original action; and (2) the two cases [] concerned the same ultimate issue of fact, which was (a) actually litigated, and (b) necessarily determined in the fi rst suit.” DeLisle v. Avallone , 874 P.2d 1266, 1269 (N.M. Ct. App. 1994). If the party invoking the doctrine provides sufficient evidence to meet all elements o f this test, it establishes a prima facie case. See Shoveline v. Central New Mexico Electric Cooperati ve,- 8 -

Inc. , 850 P.2d 996, 1000 (N.M. 1993). At that point, t he “burden shifts to the party opposing collateral estoppel to show that he or she was not afforded a full and fair opportunity to litigate the issue in the p rior proceeding.” Padilla v. Intel Corp. , 964 P.2d 862, 865 (N.M. Ct. App. 1998). Salguero’s first challenge on appeal concerns the p redicate under Elliotthat state administrative bodies must act in a “judicial capacity.” 478 U.S. at 798. He contends that the grievance board is authorized only to uphold, overrule, or modify the termination and thus lacks the authority to determine a breach of contract claim. However, New Mexico law authorizes municipalities to create personnel boards to administer municipal ordinances , N.M. Stat. Ann § 3-13- 4(A), which control the “contract of employment between the municipality and an employee,” § 3-13-4(C). Applying this statute in Z amora v. Village of Ruidoso
Downs , 907 P.2d 182, 184–85 (N.M. 1995), the New Mexico Supreme Court held that a personnel board was authorized to hear breac h of implied employment contract claims. See N.M. Stat. Ann § 3-13-4(A). It also explained th at a state administrative body acts in quasi-judicial capacity when it is “required to investigate facts, or ascertain the existence of fa cts, hold hearings, and draw conclusions from them, as a basis for their officia l action . . . .” Zamora , 907 P.2d at 185 (quotation omitted). Because the griev ance board held a hearing and made findings pursuant to state statutory authorityto consider Salguero’s- 9 -

employment contract claim, we conclude that it acte d in a judicial capacity. Salguero’s second challenge concerns whether he hada fair and full opportunity to litigate his breach of contract clai m under New Mexico law. New Mexico law requires the City first to state a primafacie case that collateral estoppel should apply. It is undisputed that Salgu ero is a party in both actions and that both cases concern the same ultimate issue of fact as to whether Salguero was terminated for just cause. Moreover, the distr ict court held, and we agree, that the issue of just cause was actually litigated and necessarily decided by the board “in its determination that Plaintiff’s termin ation was justified and appropriate based on Plaintiff’s violations of Citypolicy, department policy, state law, federal law, and his oath of office.” Salgue ro , slip. op at 14. Because the City established its prima facie case, the burden shifts to Salguero to proffer controverting facts showing that he did not have a full and fair opportunity to litigate his breach of contractclaim. To this end, Salguero argues on appeal that his hearing was procedurally deficient because: (1) he was not afforded an opportunity to conduct discovery pr ior to the hearing; (2) he was unable to subpoena certain witnesses, question full y some witnesses who refused to answer all his questions, and seek appellate rev iew of the decision; (3) hearsay evidence was admitted; and (4) members of the griev ance board had no legal training.- 10 -

We have held that an “inquiry into whether a party had a full and fair opportunity to litigate an issue often . . . will f ocus on whether there were significant procedural limitations in the prior pro ceeding, whether the party had the incentive to litigate fully the issue, or wheth er effective litigation was limited by the nature or relationship of the parties.” Mur dock v. UTE Indian Tribe of Uintah & Ouray Reservation , 975 F.2d 683, 689 (10th Cir. 1992) (quotation omitted); see also Padilla , 964 P.2d at 865 (similarly examining a party’s incentive to litigate in the administrative forum, procedural differences between the prior and current forums, and policy considerat ions). In the instant case, Salguero was represented by counsel before the boar d and had a strong incentive to litigate his breach of contract claim. He was a lso able to call witnesses, crossexamine witnesses, and present other evidence. See , e.g. , Atiya v. Salt Lake County , 988 F.2d 1013, 1019 (10th Cir. 1993) (finding pla intiff had an adequate opportunity to litigate during a hearing where she was represented by counsel, made opening and closing statements, called and cro ss-examined witnesses, and introduced exhibits). Salguero fails, moreover, to explain how the proced ural deficiencies of which he complains impeded his ability to litigate his breach of contract claim fully and fairly before the grievance board. For e xample, he did not develop a record that showed what facts discovered in federal litigation, witness testimony,- 11 -

or documentary evidence relevant to his breach of c ontract claim were not previously presented and considered by the board. In the absence of such evidence, and in light of the procedure he was affo rded, we conclude that Salguero was able to fully and fairly litigate his claims. Salguero also contends his opportunity to litigate was inadequate because the City’s policy manual indicated that the board s hould consist of eleven (rather than five) members and, moreover, four of the five members present were subordinates of the city manager who prosecuted the case for the City. Neither of these arguments persuade us that the grievance boar d was improperly constituted or deprived Salguero of a full and fair opportunity to litigate his contract claim. The personnel code requires only a five-member grie vance board. New Mexico State law authorizes municipalities to adopt codes by ordinances, see N.M. Stat. Ann. 1978 § 3-17-6(A), and to establish by ordinanc e personnel boards—including the method of appointment, the num ber of members, and terms of office—to administer employment decisions, see § 3-14-4 (B). Because the personnel code, unlike the policy manual, was enact ed pursuant to city ordinance, it reasonably controls the number of members of the grievance board. As to Salguero’s claim of bias, we have reasoned that the mere presence of internal employees on personnel boards, without evidence that they have a personal or financial stake in the decision, does not establish bias. See, e.g. , Tonkovich v.1 The district court dismissed Salguero’s equal pro tection argument for

failure to state a claim under Fed. R. Civ. P. 12(b )(6), and, in the alternative, granted summary judgment to the City on the equal p rotection claim. The City argues that because Salguero appeals only the distr ict court’s grant of summary judgment and failed to challenge the district court ’s Rule 12(b)(6) dismissal, he has waived his right to challenge both the 12(b)(6) dismissal and the court’s alternative grant of summary judgment on the equal protection claim—thus barring our consideration of the merits of the clai m. However, we need not and do not address this question, “because the case maybe more easily and succinctly affirmed on the merits.” Miller v. Mullin , 354 F.3d 1288, 1297 (10th Cir. 2004) (quotation omitted).

- 12 - Kansas Bd. of Regents , 159 F.3d 504, 519-20 (10th Cir. 1998). Salguero presented no evidence of actual bias or the appeara nce of bias. Thus, we agree with the district court that Salguero had a full an d fair opportunity to litigate his claim that his employment contract was breached wit hout just cause, and we affirm the grant of summary judgment to the City on this issue.
B As to Salguero’s § 1981 employment discrimination c laim and § 1983 civil rights claims, which Salguero alleges to have inclu ded an equal protection claim, 1 he argues on appeal that a genuine question of factexists as to whether CPD’s reasons for his termination were a pretext for race discrimination. We evaluate the merits of both the §§ 1981 and 1983 claims purs uant to the stepwise allocation of burdens of proof set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Randle v. City of Aurora , 69 F.3d 441, 450 (10th Cir. 1995) (explaining that where city officials are authorize d to make final employment- 13 -

decisions such as hiring and termination, the City can be held liable for discriminatory decisions under §§ 1981 and 1983 pur suant to the McDonnell Douglas test); see also , Drake v. City of Fort Collins , 927 F.2d 1156, 1162 (10th Cir. 1991) (“[T]he elements of a plaintiff’s case a re the same, based on the disparate treatment elements outlined in McDonnell Douglas , whether that case is brought under §§ 1981 or 1983 or Title VII.”). To prevail on a claim alleging termination on the basis of race, Salguero must first establish a prima facie case, demonstrat ing that: (1) he was a member of a protected class; (2) he was qualified and sat isfactorily performing his job; and (3) he was terminated under circumstances givin g rise to an inference of discrimination. See Martin v. Nannie & the Newborns, Inc. , 3 F.3d 1410, 1416–17 (10th Cir. 1993) (applying the McDonnell Do uglas test to a wrongful termination claim). If Salguero meets his burden o f establishing a prima facie case, the burden shifts to the City to articulate alegitimate, nondiscriminatory reason for the termination that is “not facially pr ohibited by Title VII.” EEOC v. Flasher Co., Inc. , 986 F.2d 1312, 1317 (10th Cir. 1992). If the City satisfies this standard, the burden shifts back to Salguero to pro vide evidence showing that the City’s proffered reasons are a pretext for racial d iscrimination. Id. at 1319. It is undisputed that Salguero made a prima facie s howing of discrimination. In response, the City proffers the following legitimate,- 14 -

nondiscriminatory reasons for Salguero’s terminatio n: (1) Salguero knowingly engaged in illegal activity; (2) he assisted others in engaging in illegal activity; (3) he solicited the assistance of others in the il legal activity; and (4) he engaged in more severe conduct than other CPD employees who engaged in the illegal activity. Because these reasons are not “facially prohibited by Title VII,” Flasher , 986 F.2d at 1317, we agree with the district court that the City has articulated a legitimate, nondiscriminatory reason for terminatin g Salguero. Thus, we proceed to the third step of the McDonnell -Douglas framework, in which we must determine whether Salguero counter ed the City’s articulated non-discriminatory reasons for firing him by provid ing specific facts showing that CPD’s reasons for its decision are pretextual or ra cially motivated. See McDonnell Douglas , 411 U.S. at 804 ; Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1317 (10th Cir. 1999). Summary judgmentin favor of the City is warranted only if Salguero has “failed to produce a ny evidence from which a reasonable inference could be drawn” that the City’ s proffered reasons were pretextual. Foster v. AlliedSignal, Inc. , 293 F.3d 1187, 1196 (10th Cir. 2002) (quotation omitted). Typically, a plaintiff may show pretext in one of t hree ways: “(1) with evidence that defendant’s stated reason for the adv erse employment action was false; (2) with evidence that the defendant acted c ontrary to a written company- 15 -

policy prescribing the action taken by the defendan t under the circumstances; or (3) with evidence that . . . . he was treated diffe rently from other similarlysituated employees who violated work rules of comparable seriousness.” Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1230 (10th Cir. 2000). Salguero attempts to show pretext on a theory of di sparate treatment by providing evidence that he was treated differently from othersimilarly-situated nonHispanic employees whose involvement in the illegal satellite access scheme was of comparable seriousness. Specifically, he argues that other officers distributed satellite cards, and that one officer possessed a m achine for reprogramming satellite cards. Although Salguero makes numerous assertions about the conduct of other officers in his own affidavit, in determining wheth er the City’s proffered reasons for its decision were pretextual, we must examine “ the facts as they appear to the person making the decision to terminate [Salguero]. ” Kendrick , 220 F.3d at 1231; see also , Flasher , 986 F.2d at 1322 n.12 (“[A] mistaken belief can b e a legitimate reason for an employment decision and is not necess arily pretextual.”) (citation omitted); Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1209 (10th Cir. 1999) (noting that the manager’s perception of employee’s performance, rather than the employee’s own evaluation of his or her performance , is relevant in determining pretext). In Kendrick , for example, a supervisor stated that an African American2 Salguero’s attempts to distinguish Kendrick—that unlike in the instant

case, the entire infraction occurred on the job and in close temporal proximity to the adverse employment action—are irrelevant to pre text analysis.

3 We reject Salguero’s contention on appeal that th is conclusion required consideration of the decision maker’s intent, impro per on summary judgment. - 16 - employee had physically assaulted and cursed at him . However, because that employee did not attempt to dispute the charges at the time of his termination, we concluded that the employee’s subsequent arguments before the district court—that other employees had cursed at their supe rvisors without termination, and that the plaintiff employee had not, in fact, h ad any physical contact with his supervisor—were insufficient to show pretext. 220 F.3d at 1231–32. In so holding, we reasoned that the employee was fired be cause the facts known to the decision maker at the time the employee was terminated indicated that the employee had both cursed at and physical assaulted his supervisor. Id. Applying Kendrick 2 to the facts at hand the district court held: [t]he facts known to the Board Members at the time Plaintiff was terminated indicated that Plaintiff’s conduct was m ore severe than that of other CPD employees. 3 This was in large part based on Plaintiff’s own testimony at the hearing that no ot her CPD employees had more involvement than Plaintiff in the illegal activity, and no other employees supplied satellite access cards to others within CPD. The fact that Plaintiff now asserts that the facts are different than- 17 -

they appeared at the time of the hearing does not s how pretext and Plaintiff has failed to meet his burden of presenti ng evidence from which a reasonable jury could conclude that Defenda nt’s proffered nondiscriminatory reason for Plaintiff’s terminatio n is unworthy of belief. Salguero , slip. op at 33. On appeal, Salguero’s most compelling argument in s upport of a theory of disparate discipline is that CPD’s own investigativ e report, testimony before the board, and interviews with Salguero indicate that: (1) Officer Al Lewis boasted he could connect people with illegal cards; (2) Off icer Keith Farkas possessed a machine for making satellite cards, which he dispos ed prior to the investigation; (3) Officer Max Stansell received a card from Farka s; and (4) Farkas acted as a conduit between Salguero and other officers, specif ically by assisting Officer Chris Kinley in obtaining an illegal card with Salg uero’s assistance. Even reading all facts and inferences in a light mo st favorable to Salguero, however, the evidence leading up to the hearing bef ore the board demonstrates that Salguero’s conduct was the most severe and cul pable. Although Farkas’ conduct is certainly serious, the facts remain thatno other CPD employee was involved in reprogramming, obtaining illegally repr ogrammed cards, or ordering cards from Canada. We afford substantial latitude to employers in making4 Salugero also outlines in his affidavit five inst ances where named white

officers were not terminated for violating laws, in cluding domestic battery, spraypainting graffiti, killing an endangered species, and shooting and killing a dog while intoxicated. However, these assertions are n ot supported in the record nor does Salguero’s affidavit demonstrate any personal knowledge or corroborating evidence, and, as such, are insufficient to create a genuine question of material fact as to pretext. See, e.g. , Murry v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995) (requiring that to survive summary judgm ent a nonmovant’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”) (quotation omitted).

- 18 - discipline related decisions, and are reluctant to “act as a super personnel department that second guesses employers’ business judgments.” Simms , 165 F.3d at 1330 (quotation omitted). Because the fac ts indicate significant differences in conduct among the officers under inv estigation, Salguero’s allegations of disparate discipline do not suffice to show pretext. 4 Salguero’s remaining attempts to show pretext are e qually unpersuasive. He argues generally that his work environment was d iscriminatory. To that end, he presents the affidavit of a former employee alle ging that the deputy chief of police (who upheld the termination recommendation) made a racial comment on an unspecified date between September 2000 and Dece mber 2002; however, Salguero fails to demonstrate a persuasive nexus be tween the statement and his firing. See Shorter , 188 F.3d at 1210. Salguero also proffers his ownaffidavit alleging disparate salary between himself and a comparable white employee, that unlike white officers, he received second-hand equi pment, and that Hispanic- 19 -

officers were made to do “translation work” withoutany extra compensation. (R. at 175–76.) He alleges further that although the i nvestigating officer knew of the satellite television scheme for several years, the officer initiated an investigation in retaliation for Salguero’s refusal to pick his s on for Salguero’s Little League team. Such conclusory allegations—lacking evidenti ary support in the record—do not suffice to create a genuine question as to whet her the City’s work-related reasons for Salguero’s termination were a pretext f or discrimination. Moreover, like Title VII, §§ 1981 and 1983 do not “make unexp lained differences in treatment per se illegal nor does it make inconsist ent or irrational employment practices illegal. It prohibits only intentional d iscrimination based uponan employee’s protected class characteristics.” Flash er , 986 F.2d at 1319. Finally, Salguero seeks to establish pretext by sho wing that CPD acted contrary to its own written policies by: (1) initi ally interviewing him without reading him his Miranda rights, in the absence of c ounsel, and without recording the interview; (2) releasing information about the investigation to a third party; and (3) disciplining him for off-duty activities. However, as the City argues, CPD’s investigative reports do not reveal that any officers under investigation were afforded such procedures; moreover, several of ficers were disciplined for off-duty conduct, and there is no evidence that the release of information pertained specifically to Salguero. Thus, such arg uments are not probative of- 20 -

pretext. See Kendrick , 220 F.3d at 1230 n.9 (stating when the defendant’ s failure to follow its own procedures disadvantages all empl oyees rather than just members of a protected class, such failure does notestablish pretext or motivation of illegal discrimination). Because we agree with the district court that Salguero has failed to demonstrate that the City’s reasons f or his termination were a pretext for race determination, we affirm the grant of summ ary judgment to the City on this issue.
III For the foregoing reasons, the judgment of the dist rict court is
AFFIRMED

.