* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 24 1998 

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

ISAAC SUAZO,

Plaintiff-Appellant,

v. REGENTS OF UNIVERSITY OF CALIFORNIA, doing business as Los Alamos National Laboratory,

Defendant-Appellee. No. 97-2211 (D.C. No. CIV-95-1142-BB)

(D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff appeals the district court’s grant of sum mary judgment in favor of defendant on plaintiff’s claims of discrimination, filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 000e-17. Plaintiff, who is Hispanic, claims that his employer discriminated ag ainst him based on his race because he was not promoted to the position of sect ion leader. Defendant chose, instead, to promote Steven Hanson, who is not Hispanic. We review the district court’s grant of summary jud gment de novo and will affirm if there is no dispute regarding material fa cts and the moving party is entitled to judgment as a matter of law. See Reynolds v. School Dist. No. 1 , 69 F.3d 1523, 1531 (10th Cir. 1995). We construe the record in the light most favorable to plaintiff, but, once defendant shows i t is entitled to judgment, plaintiff must show specific facts demonstrating a genuine issue for trial as to material matters for which he carries the burden of proof. See id. Guided by these standards, we affirm. Plaintiff focuses much of his attention in his brie f on appeal on arguing that his affidavit and his deposition testimony are not inconsistent and that the district court was required to consider his affidavit at fac e value. Plaintiff’s arguments in this regard are unnecessary. Even though it noted the apparent inconsistency between the affidavit and deposition, the district court did, in fact, properly1 On appeal, plaintiff does not pursue his First Amen dment claim or his

claim of discrimination for failure to promote him to the position of group leader. We, therefore, consider these issues waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -3- consider and accept plaintiff’s affidavit. See Appellant’s App. at 156 n.6. Accordingly, we will also consider plaintiff’s affi davit. Plaintiff stated in his affidavit that his supervis or told him that he was not promoted because he spent “too much time on Naval Reserves.” Id. at 106. Plaintiff also argues that defendant’s Affirmative Action/Equal Employment Opportunity statement, which creates a preference f or Vietnam veterans, presents a question of fact as to its meaning and effect on defendant’s decision not to promote plaintiff. On appeal, plaintiff argues that his affidavit precludes summary judgment because it creates a genuine issue of material fact as to why he was not chosen for the promotion. 1 The district court held, and we agree, that plainti ff established a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). In response, defendant articulated a l egitimate non-discriminatory reason for not promoting plaintiff to section leade r, namely, that Steven Hanson was more qualified for the position. See id. We also agree with the district court that the evidence supports this finding. The burde n then shifted to plaintiff to show that defendant’s proffered reason was merely pretextual. See id. at 804.2 We note that plaintiff’s complaint alleges discrimi nation based only on his

race, except for the following paragraph:

Employer, Los Alamos National Laboratory had, at al l times material to these claims, Affirmative Action/Equal Employment Opportunity policy statements in place to undertake the advancement and promotion of minorities and Vietnam era veteran s. Appellant’s App. at 3. This is the only allegationregarding veteran status; nowhere in his complaint does plaintiff even allege that defendant discriminated against him based on his veteran status. Further, even if plaintiff had made such an allegation, and even if plaintiff could establis h that defendant illegally discriminated against him based on his participatio n in the Naval Reserves, we fail to see how participation in the Naval Reserves implicates veteran status in any way. Plaintiff’s affidavit statement regarding the time he spent in the Naval Reserves is simply unconnected to his original alle gations of discrimination based on race or, reading his complaint liberally, his st atus as a Vietnam veteran. We will, nonetheless, address plaintiff’s arguments onappeal as they relate to these two areas of discrimination.

-4- It is for this purpose that plaintiff points to his affidavit statement that the decision not to promote plaintiff was not because S teven Hanson was more qualified, but was based on plaintiff’s participation in the Naval Reserves. 2 Plaintiff’s burden to establish pretext is not sati sfied by allegations alone. Plaintiff can meet his burden of presenting enough evidence to support an inference that defendant’s reason was merely pretext by showing either that “a discriminatory reason more likely motivated [def endant] or . . . that [defendant’s] proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248, 256 (1981). “In a summary-5-

judgment setting, the plaintiff must raise a genuin e factual question as to whether defendant[’]s reasons are pretextual.” Drake v. City of Fort Collins , 927 F.2d 1156, 1160 (1991). Plaintiff has presented no evidence that a discrimi natory reason motivated defendant to promote Steven Hanson over plaintiff, and neither has plaintiff presented competent evidence that defendant’s artic ulated reason for not promoting plaintiff is unworthy of belief. Nowhere in the record does plaintiff even deny that he spent too much time on the Naval Reserves, let alone present any evidence as to how much time he did spend. Sum mary judgment on plaintiff’s Title VII claim was appropriate. In response to plaintiff’s argument regarding defen dant’s noncompliance with its Affirmative Action/Equal Employment Opportunity statement, we join the other courts that have addressed the issue and holdthat plaintiff has no private right of action under either the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRA), 38 U.S.C. §§ 4211-4214, or Executive O rder No. 11,246, reprinted in 42 U.S.C. § 2000e note. See Antol v. Perry , 82 F.3d 1291, 1296-98 (3d Cir. 1996) (VEVRA); Wikberg v. Reich , 21 F.3d 188, 189 (7th Cir. 1994) (VEVRA); Harris v. Adams , 873 F.2d 929, 931-32 (6th Cir. 1989) (VEVRA); Barron v. Nightingale Roofing, Inc. , 842 F.2d 20, 21-22 (1st Cir. 1988) (VEVRA); Utley v. Varian Assocs., Inc. , 811 F.2d 1279, 1284-86 (9th Cir. 1987)-6-

(EO 11,246); Cohen v. Illinois Inst. of Tech. , 524 F.2d 818, 822 n.4 (7th Cir. 1975) (EO 11,246); see also, e.g. , Lohf v. Runyon , No. 96-4088-RDR, 1998 WL 156894, at *7 (D. Kan. Mar. 6, 1998); Philippeaux v. North Cent. Bronx Hosp. , 871 F. Supp. 640, 648 (S.D.N.Y. 1994) (holding thatVEVRA does not provide direct private right of action, nor does 42 U.S.C. § 1983 provide indirect private right of action), aff’d 104 F.3d 353 (2d Cir. 1996) (table); Brace v. Ohio State Univ. , 866 F. Supp. 1069, 1073, 1074 (S.D. Ohio 1994) (same); Wilson v. Amtrak Nat’l R.R. , 824 F. Supp. 55, 58 (D. Md. 1992) (VEVRA and EO 11,246); but see Blizzard v. Dalton , 905 F. Supp. 331, 332-33 (E.D. Va. 1995) (correlating disabled veterans portions of VEVRA with the Rehabi litation Act of 1973 and holding that plaintiff had not established discrimi nation as result of lack of affirmative action program without discussion of wh ether private right of action exists). We AFFIRM the district court’s grant of summary jud gment in favor of defendant. Entered for the Court

David M. Ebel Circuit Judge