* After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### JUN 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

MICHAEL R. CUENCA,

Plaintiff-Appellant,

v. UNIVERSITY OF KANSAS; MYRON A. KAUTSCH and JAMES K. GENTRY, as individuals,

Defendants-Appellees. No. 03-3145 (D.C. No. 98-CV-4180-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

Even though the appellant appears pro se, this case presents a representative example of a problem increasingly en countered by the federal courts: the submission of voluminous and poorly org anized materials in1 Throughout its summary judgment order, the districtcourt refers to the

“defendant”; however, all defendants moved for summ ary judgment and it is apparent that the district court granted summary ju dgment for all of them. -2- connection with summary judgment matters. Michael R. Cuenca brought this action pursuant to 42 U.S.C. § 1983 and Title VII o f the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, alleging that the d efendants had discriminated against him on the basis of race, violated his cons titutional rights, and illegally retaliated against him when he complained. In resp onse to the defendants’ motion for summary judgment, Cuenca submitted a ninety-pag e autobiographical affidavit, containing 248 paragraphs, replete with conclusory statements, statements of opinion, and matters patently beyond his personal knowledge. He supported this affidavit with nearly 1000 pages of supplementary materials, much of it of dubious admissibility and relevance. The district court winnowed Cuenca’s claims and materials, and entered a twenty -five page, published decision granting summary judgment for the defendants. 1 Cuenca v. Univ. of Kan. , 265 F. Supp. 2d 1191 (D. Kan. 2003). Cuenca’s opening brief in this court does not help to narrow or refine the issues. It contains an introductory factual statem ent that presents a lengthy account of his employment with the University of Ka nsas and the University of Kansas’s alleged discriminatory policies. He does not tie this amalgamation of background information and potentially relevant complaint to the later legal-3-

argument sections of the brief, however, some of wh ich are devoid, or nearly devoid, of particularized factual or evidentiary re ferences. In effect, Cuenca has presented a mass of miscellaneous material and leftit to this court to collect, organize, and articulate the cumulative legal signi ficance of pertinent items therein with respect to each of his various claims. The argument section of Cuenca’s brief gives only t he most cursory focus to most of the incidents and facts presented to the district court. He relies, for example, on “the ‘voluminous’ record of disciplinary actions, poor performance reviews, lower salary increases, exclusion, hypersc rutiny, misrepresentation of facts, violations of procedures and denials of due process” he claims can be found in the record. Aplt. Opening Br. at 17. He refers vaguely to “myriad, changing reasons, reasons unworthy of belief, deliberate mis conduct, and several instances of lying under oath or in written documents, which provide ample, sufficient evidence of pretext and mendacity,” citing only one specific example of the same. Id. at 18–19. He asserts that the district court fail ed to draw all necessary inferences in the light most favorable to him. He fails, however, to describe what specific inferences, based on specific evidence, th at it should have drawn in his favor. Id. at 21–22. Notwithstanding the limited number of s pecific, fact-based arguments he presents, Cuenca apparently wishes us either to perform his task of applying the law to the facts, or–worse yet–to comb the entire record and to refine-4-

his arguments concerning the incidents he describedin his voluminous submissions to the district court. This we will no t do. We will not become advocates for Cuenca, combing th e record to make his case for him. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 672 (10th Cir. 1998); see also Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995). Appellate arguments must contain “appellant’s conte ntions and the reasons for them, with citations to the authorities and parts o f the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We uphold the district court’s treatment of Cuenca’ s affidavit and supporting materials. On appeal, we limit our revi ew to the issues raised and properly supported.
I The district court’s order recites the facts in det ail, and we do not repeat them here. The Journalism School at the Universityof Kansas hired Cuenca in 1994 as a tenure-track Assistant Professor of Visua l Communications. Cuenca’s birth certificate specifies his father’s race as Fi lipino, and Cuenca identifies himself as Hispanic based on his Mexican ancestry. Cuenca asserts that the University of Kansas and the other named defendants discriminated against him on the basis of race and retaliated against him in various ways from the time he was hired until he was denied tenure and his appoin tment ended in 2001.-5- II
A Before turning to the merits of the summary judgmen t determination, we begin by analyzing Cuenca’s procedural issues. He contends that the district court erred: (1) by granting defendants’ motion to substitute a revised summary judgment memorandum and without permitting him to r espond to the memorandum; and (2) by striking portions of his sum mary judgment affidavit without specifying which portions it struck.
1 The defendants moved to substitute a corrected memo randum of law in support of their motion for summary judgment, becau se their original motion exceeded the district court’s page limitation and c ontained a factual error. Contrary to Cuenca’s argument, this was not a “comp letely new motion for summary dismissal.” Aplt. Opening Br. at 11. The changes were minor and, except for the correction of the fact error, were n ot substantive. Cuenca fails to show that he was prejudiced in any way by the subst itution. The district court did not abuse its discretion by permitting substitution

. 2 The defendants moved to strike Cuenca’s affidavit. The district court did not disregard Cuenca’s affidavit in toto as insuffi cient under Fed. R. Civ. P.2 Our review of Cuenca’s affidavit convinces us that some of the materials

should have been excluded as a matter of law, becau se they are conclusory, represent opinion rather than fact, or show on thei r face that they were not made from personal knowledge. See BancOklahoma Mortgage Corp. v. Capital Title Co. , 194 F.3d 1089, 1101 (10th Cir. 1999); Rice v. United States , 166 F.3d 1088, 1092 (10th Cir. 1999); Fed. R. Civ. P. 56(e). -6- 56(e), as defendants requested. Instead, it stated it would simply disregard any inadmissible portions of the affidavit. Cuenca , 265 F. Supp. 2d at 1200. Cuenca contends that the district court’s approach has deprived him of an opportunity to obtain review of its specific eviden tiary determinations. We review the district court’s decision on evidentiaryissues pertaining to summary judgment for an abuse of discretion and we have pre viously approved the district court practice of ignoring inadmissible portions of an affidavit, as an alternative to disregarding the entire affidavit. Jones v. Barnhart , 349 F.3d 1260, 1270 (10th Cir. 2003). Cuenca’s complaint about the lac k of evidentiary rulings is significant only to the extent that the improper ex clusion of evidence resulted in a substantive error in the summary judgment determination. 2 In examining the record for substantive error, however, we consider only the specific challenges that Cuenca raises and properly supports in his bri efs on appeal. As to those errors, we conclude that even if the district courthad considered all (and excluded none) of the evidentiary material in Cuenca’s affid avit, summary judgment would still be appropriate.-7- B We next review the merits of the district court’s s ummary judgment determination. Summary judgment is appropriate if the pleadings, d epositions, answers to interrogatories, and admissions on file, together w ith the affidavits, if any, 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. We review a grant of summary judgment de novo , applying the same standard as the district court. We examine the record to determine whether any genuine issue of material fact was in dispute; if not, we d etermine whether the substantive law was applied correctly, and in so do ing we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion. Howeve r, where the non moving party will bear the burden of proof at trial on a dispositive issue, that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the exist ence of an element essential to that party’s case in order to survive summary judgment. Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation o mitted). On appeal, Cuenca argues that the district court: ( 1) failed to apply properly the mixed-motive analysis contained in Section 107 of the 1991 Civil Rights Act, 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B); (2) d isregarded his direct evidence of discrimination and retaliation; (3) fai led to draw all necessary inferences in the light most favorable to him; and (4) improperly disregarded his statistical evidence.-8- 1 We consider Cuenca’s first two summary judgment iss ues together. Cuenca argued to the district court that his case should b e governed by the mixed-motive analysis set forth in § 107 of the 1991 Civil Right s. The district court did not directly address this argument. It may have reject ed Cuenca’s mixed-motive analysis, however, based on its conclusion that he had presented no direct evidence of discrimination and retaliation. Cuenca , 265 F. Supp. 2d at 1205. At the time of the district court’s decision, cases in this circuit held that a plaintiff seeking to employ a mixed-motive analysis was requi red to show direct evidence of discrimination. See, e.g. , Shorter v. ICG Holdings, Inc. , 188 F.3d 1204, 1208 n.4 (10th Cir. 1999). After the district court reached its decision in th is case, however, the Supreme Court determined that a plaintiff may prove the mixed-motive analysis under § 107 of the 1991 Act by circumstantial evide nce as well as direct evidence. Desert Palace, Inc. v. Costa , 539 U.S. 90, 98–102 (2003). Cuenca now argues both that he has provided direct evidence of discri mination and that, in any event, the circumstantial evidence he offered meets the st andards of § 107. Cuenca did not provide direct evidence of discrimin ation or retaliation that would permit his claims to go to a jury on a mixed- motive theory. Direct evidence requires “proof of an existing policy whic h itself constitutes-9-

discrimination,” Tomsic v. State Farm Mut. Auto. Ins. Co. , 85 F.3d 1472, 1477 (10th Cir. 1996) (quotation omitted), or “oral or w ritten statements on the part of a defendant showing a discriminatory motivation,” Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000). Statements which on their face merely state a personal opinion are not direct evidence. Tomsic , 85 F.3d at 1477. The district court correctly found that Cuen ca failed to point to any direct evidence of discrimination. We specifically analyz e each of the statements on which Cuenca relies for his direct evidence argumen t in the following paragraphs of this order and judgment, concluding that they al so do not provide circumstantial evidence of discrimination. The specific incidents Cuenca details in his brief also do not provide circumstantial evidence demonstrating that unlawful discriminatory animus motivated the University of Kansas’s adverse employment decisions. See Mereish v. Walker , 359 F.3d 330, 339 (4th Cir. 2004) (interpreting s ummary judgment burden under Civil Rights Act of 1991 in light of Desert Palace ). Cuenca relies primarily on the statements of Frank Hoy, an outsid e tenure reviewer chosen by Cuenca who criticized Cuenca for “bring[ing] up a m inority issue” in his statement of teaching philosophy, and warned that “ the information contained in Cuenca’s own voluntary statements can be taken as aforewarning of future attitude, perhaps even problems” if Cuenca were granted tenure. Cuenca , 265 F.3 Cuenca’s reliance on language in Price Waterhouse v. Hopkins , 490 U.S.

228 (1989), is unavailing. In that case, the evide nce showed that the decisionmaker for a partnership “solicited evaluati ons from all the firm’s partners” and “generally relied very heavily on suc h evaluations in making its (continued...) -10- Supp. 2d. at 1212 (record citations omitted). The district court found that Cuenca had failed to provide any evidence that the Univers ity of Kansas adopted or relied on these statements in reaching the decision to deny him tenure. In general, statements by a non-decisionmaker, such as Hoy, cannot be used to establish that a decision was tainted by discriminatory animus. See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1129 (10th Cir. 1998) (age discrimination case). An exception arises when the record contains evidence from which a reasonable inference may be drawn that a de cisionmaker adopted or relied upon the allegedly discriminatory statement in reaching its decision. See, e.g., Betkerur v. Aultman Hosp. Ass’n , 78 F.3d 1079, 1097 (6th Cir. 1996). Relying on this exception, Cuenca argues that the U niversity of Kansas’s failure to disavow Hoy’s statements should result in an inf erence that its decisionmakers took Hoy’s comments into account when making their decision. The inferential burden runs the other way, however; Cuenca had the burden to link the outside reviewer’s statements to the decision to deny tenure. See id. Because he failed to create a genuine issue of material fact on this poi nt summary judgment was
proper. 33 (...continued)

decision.” Id

. at 256. Given these facts, the defendant’s Policy Board’s failure to disclaim reliance on stereotyped comments made by s ome of the partners raised an inference that the decision to place the plainti ff’s candidacy on hold was the product of discrimination. Id

. Here, however, Hoy was not affiliated with the University of Kansas and Cuenca failed to show thatthe University of Kansas’s decisionmakers relied on the statements about race in Hoy’s evaluation in reaching their decision. -11- Cuenca also relies on a comment by Ted Fredrickson, a fellow facultymember, who he alleges “once warned me that playing the race card in this workplace would cost me.” (V R. ex. 22, at 1.) Th is isolated observation, unrelated to any employment action, is neither dire ct nor circumstantial evidence of discrimination or retaliation. Nor does Fredric kson’s statement to a student newspaper defending the current and former dean aga inst Cuenca’s allegations of racism and dismissing Cuenca’s assertion of discrim inatory motivation as “an unvarnished falsehood and an unwarranted attack” th at would have an adverse impact on the Journalism School, demonstrate discri minatory or retaliatory animus by defendants. (VI R. ex. 122.) Cuenca also challenges a statement by defendant for mer Journalism School Dean Kautsch in a 1995 letter to his superiors, stating that he was attempting to terminate Cuenca because Cuenca was “making demands and stating expectations.” (VI R. ex. 159; see Aplt. Opening Br. at 16.) Cuenca argues that non-minority personnel also made demands and statedexpectations at times,-12-

without being subject to termination. Kautsch’s ac tual statement, however, was that Cuenca was “making demands and stating expectations that can not be met because they exceed the School’s budgetary capacity and are inconsistent with the duties he was hired to perform.” (VI R. ex. 159.) Cuenca fails to show that Kautsch’s analysis of Cuenca’s demands was unworthyof belief or a pretext for discrimination. Moreover, as the district court no ted, Cuenca failed to present evidence to show that the University of Kansas term inated his employment as the result of the demands and expectations complained o f in Kautsch’s letter. Cuenca further charges that the University of Kansa s’s Equal Employment Opportunity (EEO) coordinator improperly suspended investigation of Cuenca’s internal discrimination complaint after the Univers ity of Kansas’s counsel blamed Cuenca for a failed mediation. The coordinator tes tified that Cuenca was responsible for ending the mediation process, and t hat he did so because the process could not give him the immediate tenure he sought. Noting the coordinator’s further testimony that he learned that Cuenca was seeking immediate tenure from the University of Kansas’s attorney, Cuenca argues that the attorney’s statement, coupled with the decision to terminate mediation, is evidence of discrimination or retaliation. He poin ts us to no evidence in the record, however, that he did not in fact seek tenur e through the mediation. Moreover, he fails to establish that the statements by the University of Kansas’s-13-

counsel, or the decision to terminate internal medi ation in favor of the outside EEOC process constituted an “adverse employment act ion” that had an effect on his employment status. Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 533 (10th Cir. 1998). Finally, Cuenca contends there is evidence of retal iation in a brief defendants filed in this case. He argues that in D efendants’ Reply to Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment the defendants presented a justification for actions ta ken against him based on his opposition to discrimination in the workplace. Def endants argued in that pleading that “[a]t worst, Plaintiff has shown Kautsch and G entry as supervisors who were often frustrated by Plaintiff’s lack of collegiality, unprofessional behavior, and unwarranted personal attacks on students, colleague s, the Journalism School, the University of Kansas or others. The evidence also showed that Plaintiff often wrote inflammatory correspondence to others.” (I R . doc. 205 at 16–17.) Cuenca argues that this statement shows that defend ants not only developed illegal animus against him, but believed that theirillegal animus was justified. In our view, however, this statement says nothing o f the kind, nor can illegal motives be imputed to defendants based on this stat ement. The record reveals that Cuenca’s letters and e-mails to his supervisor s contained a large amount of vituperation, impertinence, and criticism of both t he University of Kansas4 Cuenca contends that other, non-minority faculty cl ashed with Kautsch but

were not subjected to the threat of non-renewal of their appointment. He fails to show, however, that these faculty used the kind of language or tone with Kautsch that Cuenca did. -14- administration and colleagues. 4 The discrimination statutes do not confer a license to present grievances in an arrogant and uncivil manner. See Robbins v. Jefferson County Sch. Dist. R-1 , 186 F.3d 1253, 1259–60 (10th Cir. 1999), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002). Cuenca fails to show that the defendan ts’ stated aversion for the inappropriate tone and presentation of his grievanc es was a pretext for an intent to retaliate based on his protected activities.
2 Cuenca claims that the district court drew no reaso nable inferences in his favor, as required by the summary judgment standard . He provides only one example, however, of an inference that should have been drawn but was not. He claims the district court “dismissed defendant Gent ry’s withholding of materials from external reviewers as some sort of harmless error, ignoring Gentry’s subsequent lies, his perjury, and his deliberate, w illful misconduct . . . .” Aplt. Opening Br. at 22. Our review of the record convinces us that the dist rict court did not simply “dismiss” the issue of the book chapters omitted fr om tenure materials “as some-15-

sort of harmless error.” Id. Rather, the district court gave several reasons w hy Cuenca could not use this incident as evidence of e ither discrimination or retaliation. First, when the omission was brought to Gentry’s attention, he “sent the book chapters, one of which had just been publi shed, to the external reviewers, with a follow-up letter.” Cuenca , 265 F. Supp. 2d at 1213. Second, Gentry asked all of the reviewers for a letter indi cating that the book chapters would not have affected their evaluation, and all replied negatively. Id. Third, Cuenca failed to show that Gentry’s failure to subm it the book chapters was intentional, was related to Cuenca’s race or protec ted conduct, or had any effect on the reviewers’ assessment of him (and, hence, onthe ultimate decisionmakers concerning tenure). Id. We agree with the district court’s reasoning on t hese points; Cuenca fails to provide evidence that Gentry’s explanation that the error was unintentional was unworthy of belief. Cuenca also contends, however, that Gentry lied und er oath when asked if he had sent all the materials to the outside review ers. Cuenca provides no citations to the record for this claim. We presume he is referring to Page 151 of Gentry’s deposition in which he was asked: Q. Did you send his books–
A. Yes. Q. –to each evaluator?-16-

A. Yes. Q. So there were two [books], right? A. (Nods head up and down). (V R. doc. 186, ex. 87, at 13.) Gentry’s deposition was taken on February 7, 2000, long after he had supplied the outside reviewers with copies of chapt ers from two of Cuenca’s books in response to the notice to him that they ha d been omitted from the initial submission. Since the questions make no reference to time frame, Cuenca fails to show that Gentry’s reference to “books” sent to rev iewers did not refer to this later submission. In any event, the challenged statement fails to create a genuine issue of material fact concerning whether the reaso ns given in the ultimate decision to deny tenure were pretextual. In his reply brief, Cuenca further argues that Gent ry lied when he stated that Cuenca had not fulfilled the Journalism School ’s requirements for tenure and had not achieved national or regional distinction. This, however, was also the conclusion of a number of the outside reviewers. C uenca’s disagreement with Gentry’s assessment of his qualifications does not create a genuine issue of material fact that would preclude summary judgment. This court does not “act as a ‘super personnel department’ that second guesses employers’ business-17-

judgments.” Simms v. Okla. ex rel. Dep’t of Mental Health & Su bstance Abuse
Servs. , 165 F.3d 1321, 1333 (10th Cir. 1999). Cuenca claims that Gentry admitted at his depositio n that he had lied about Cuenca’s qualifications for tenure. He asserts that at the deposition, Gentry changed course from his previous statements that Cu enca had no work that had achieved distinction through review by his peers. Our reading of the deposition transcript does not support this interpretation. At the deposition, Gentry was asked about Cuenca’s Lowell Thomas Travel Journalis m Award. Gentry classified the award as “a very minor, modest award ” that was “a good start” but not an award of national significance. (V R. ex. 1 02, at 3 (depo. at 171–72).) Contrary to Cuenca’s claim in his affidavit, Gentry did not admit at his deposition that the Lowell Thomas Travel Journalism award was a peer-reviewed award; instead, he only said “it could be peer reviewed in a sense.” ( V R. doc. 186, ex. 102, at 4 (depo. at 175).) Cuenca also claims that Gentry lied in denying thathe had peer-reviewed work because Cuenca had earned a peer-reviewed awar d from the Association for Education in Journalism and Mass Communication (AEJ MC). The AEJMC award, however, was only an “honorable mention.” ( V R. doc. 186, ex. 102, at 4 (depo. at 176).) Whether or not Cuenca believed, a s Gentry put it, that his two awards “demonstrate . . . work [that] has been judg ed by peers as being-18-

significant, demonstrating rigor, or demonstrating originality,” V R. doc. 186, ex. 70, at 2, Gentry did not. The fact that Cuencacan point to some works that he believes met the University of Kansas’s criteria do es not show that Gentry lied or that his recommendation concerning Cuenca’s tenure was pretextual.
3 Cuenca contends that the district court disregarded his “direct evidence of previous illegal acts, statistical direct evidence of pattern and practice discrimination, and direct evidence of past violati ons of federal civil rights law.” Aplt. Opening Br. at 24. The district court reject ed the statistical evidence as failing to provide any effective data concerning th e tenure issues presented in his
case. Cuenca , 265 F. Supp. 2d at 1205–06. It further rejected evidence of the University of Kansas’s non-compliance with the Offi ce of Federal Contract Compliance Programs, because the evidence failed to demonstrate substantive violations indicating discrimination. Id. at 1206. Cuenca faults the University of Kansas for not prov iding accurate and complete data through the discovery process. He co ntends “defendants refused to produce accurate and complete applicant flow data a nd the District Court affirmed the magistrate judge’s determination that defendant s would not be compelled to produce it.” Aplt. Opening Br. at 25. Cuenca fail s to make any substantive argument to show how the district court abused its discretion in denying his-19-

motion to compel. This being the case, we cannot r eview his claim that he should have been granted additional discovery. Instead, w e will examine the data that he actually presented to the district court. Having e xamined this data, we agree with the district court that Cuenca has failed to presen t relevant statistical data or other direct evidence sufficient to carry his summary jud gment burden.
C Finally, Cuenca argues that the district court judg e, who he claims is a University of Kansas graduate, should have recused himself from hearing this case. He fails to cite us to any motion to recuse, however, or to any facts in the record that would confirm the judge’s alumni status or his reasons for failing to recuse himself. Given this failure of proof, we ar e left with nothing to review pertaining to Cuenca’s recusal arguments under 28 U .S.C. § 455(a), and therefore decline to order recusal.
We AFFIRM the order of the district court granting summary j udgment for the defendants and denying Cuenca’s motion for summary judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge