UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JUANITA GARCIA, 

 Plaintiff - Appellant, 

v. 

CITY OF FARMINGTON, 

 Defendant - Appellee. 

No. 17-2001 

(D.C. No. 1:15-CV-00005-WJ-SCY) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges. 

_________________________________ 

This appeal grew out of the City of Farmington’s decision to fire 

Ms. Juanita Garcia from her employment at a municipal power plant. 

Ms. Garcia attributes the firing to (1) discrimination based on gender and 

national origin and (2) retaliation for an earlier suit. Farmington justified 

the firing on two alleged mistakes by Ms. Garcia that endangered the plant 

 

*

 The parties do not request oral argument, and it would not materially 

help us to decide this appeal. As a result, we decide the appeal based on 

the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 20, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

and its workers. The district court granted summary judgment to 

Farmington, and we affirm. 

I. The Two Incidents 

Farmington’s power plant operates through a boiler that creates 

steam, which is used to spin turbines and generate electricity. Boiler 

pressure is controlled through operators like Ms. Garcia; if the pressure 

gets too high, the boiler may explode. 

Operators control the pressure through a device that runs on a 

computer system. Using the computer system, operators set the pressure 

level for the device. 

Ordinarily, the device starts at a pressure ranging from 300 to 375 

pounds per square inch. This pressure increases to 405 pounds per square 

inch, which is the standard operating pressure. But on January 21, 2014, 

with Ms. Garcia at the helm, the pressure skyrocketed to 451 pounds per 

square inch. Ms. Garcia insists that she could not enter a set point for the 

pressure because the computer malfunctioned. A coworker supports 

Ms. Garcia’s account. 

Farmington investigated the incident and noted an earlier incident 

that had taken place in 2012. In the 2012 incident, Ms. Garcia had trouble 

controlling the pressure and it rose to 424 pounds per square inch before a 

supervisor told Ms. Garcia how to fix the problem. 
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In light of the 2012 and 2014 mishaps, Farmington officials decided 

to fire Ms. Garcia. She characterizes the firing as discriminatory and 

retaliatory; in contrast, Farmington insists that it fired Ms. Garcia because 

the two incidents could have resulted in injuries or deaths and damage to 

the power plant. 

II. The McDonnell Douglas Framework

The discrimination and retaliation claims required the district court 

to apply the framework set out in McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). Under this framework, Ms. Garcia had an initial burden to 

establish a prima facie case. McDonnell Douglas, 411 U.S. at 802. 

Farmington assumed, for the sake of argument, that Ms. Garcia had 

satisfied this burden. 

With this assumption, Farmington needed to give a legitimate, 

nondiscriminatory reason for the firing. Id. Farmington contends that it 

satisfied this requirement by relying on Ms. Garcia’s two failures to keep 

the boiler pressure within safe limits. 

As discussed below, Farmington articulated a legitimate and 

nondiscriminatory explanation. Thus, Ms. Garcia needed to demonstrate 

that this explanation was pretextual. Id. at 804. 

III. The Admissibility of Lay Testimony

Ms. Garcia’s main challenge involves the admissibility of testimony 

about her observations during the 2014 incident. Ms. Garcia and a 
4 

coworker stated under oath that the computer had shown a malfunction, 

preventing anyone from setting the pressure. Farmington disputed this 

account, denying any malfunction. In support, Farmington hired an expert 

witness who stated under oath that the device had not malfunctioned. 

Farmington used this expert testimony to support a motion for 

summary judgment. To rebut that testimony, Ms. Garcia proffered 

testimony by herself and a coworker about their observations during the 

2014 incident. But the district court excluded the proffered testimony. 

Ms. Garcia argues that this ruling was erroneous, tainting the district 

court’s grant of summary judgment and denial of a motion to alter or 

amend the judgment. We reject Ms. Garcia’s argument. 

The challenge involves rulings on two motions: (1) Farmington’s 

motion for summary judgment and (2) Ms. Garcia’s motion to alter or 

amend the judgment. We would ordinarily employ different standards of 

review when addressing the rulings on these motions: For summaryjudgment rulings, we typically apply de novo review; for rulings on 

motions to alter or amend the judgment, we typically review only for an 

abuse of discretion. See Cillo v. City of Greenwood Vill., 739 F.3d 451, 

461 (10th Cir. 2013) (de novo review of summary-judgment rulings); 

Etherton v. Owners Ins. Co., 829 F.3d 1209, 1228 (10th Cir. 2016) (abuseof-discretion review for rulings on motions to alter or amend judgments).

But here the issue on summary judgment involves the admissibility of 
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testimony, which is reviewed only for an abuse of discretion. James River 

Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011). 

Thus, we apply the abuse-of-discretion standard to review both the grant of 

summary judgment and the denial of the motion to alter or amend the 

judgment. 

In our view, the district court had the discretion to exclude the 

proposed testimony by Ms. Garcia and her coworker. But even if the 

district court had allowed the testimony, it would not have supported 

Ms. Garcia’s theory of liability. 

Ms. Garcia and her coworker would have testified that the computer 

did not allow them to set the pressure level because the computer monitor 

toggled between the manual and automatic settings. The parties agree that 

this testimony involved an opinion and that Ms. Garcia and her coworker 

could not provide opinion testimony as expert witnesses. But Ms. Garcia 

and her coworker insist that they should have been allowed to give opinion 

testimony as lay witnesses. The district court disagreed, and this ruling fell 

within the court’s discretion. 

Lay-opinion testimony is governed by Federal Rule of Evidence 701, 

and “[k]nowledge derived from previous professional experience falls 

squarely within the scope of Rule 702 and thus by definition outside of 

Rule 701.” James River Ins. Co., 658 F.3d at 1215 (internal quotation 

marks omitted). Ms. Garcia and her coworker sought to testify about 
6 

precisely that kind of knowledge. But even if Ms. Garcia and her coworker 

had testified as lay witnesses, the testimony would not have affected 

Farmington’s entitlement to summary judgment because the underlying 

claims involved discrimination and retaliation rather than an incorrect 

assignment of blame. 

Ms. Garcia lacked direct evidence of discriminatory or retaliatory 

intent, so she relied on circumstantial evidence. To evaluate that evidence, 

the district court had to apply the McDonnell Douglas framework. 

Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 

(10th Cir. 2008). That framework involves three steps. McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 802-04 (1973). 

The first step was Ms. Garcia’s establishment of a prima facie case, 

and Farmington assumed that Ms. Garcia had satisfied this step. This 

assumption required Farmington to give a legitimate, nondiscriminatory 

reason for the firing. Id. at 802. Farmington satisfied this requirement by 

attributing the firing to Ms. Garcia’s mistakes in allowing the boiler 

pressure to rise to unsafe levels in two separate incidents. In attributing the 

firing to a neutral, legitimate reason, Farmington had no obligation to 

present supporting evidence. Thus, Farmington’s expert testimony was 

irrelevant at this step. See Etsitty v. Utah Transit Auth., 502 F.3d 1215, 

1224 (10th Cir. 2007) (stating that the second step of McDonnell Douglas
7 

did not require the employer to “prove that the reason relied upon [had 

been] bona fide” (internal quotation marks omitted)). 

To rebut Farmington’s explanation, Ms. Garcia had to show pretext. 

She could make this showing by presenting evidence that Farmington’s 

justification was weak, implausible, inconsistent, or contradictory. Tabor 

v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013). But Ms. Garcia’s 

proposed testimony would not have suggested weaknesses, implausibilities, 

inconsistencies, or contradictions in Farmington’s explanation. 

Before hiring the expert witness, Farmington blamed Ms. Garcia for 

mishandling the 2014 incident when the boiler pressure increased. 

Farmington alleges that Ms. Garcia was wrong in thinking that the device 

had malfunctioned, but so what if she had been right? Regardless of 

whether the device had malfunctioned, Ms. Garcia admitted that the boiler 

pressure had increased too fast and had been too high, that she had failed 

to create a work order for the device after it allegedly malfunctioned, that 

she had not told anyone about the malfunction until a week after the 

incident, and that she had failed to note the malfunction in the operations 

log book. Thus, Ms. Garcia implicitly admitted that she had mishandled the 

incident even if the device had malfunctioned as she claimed. In light of 

this implicit admission, Ms. Garcia’s proposed testimony would not have 

suggested any weaknesses, implausibilities, inconsistencies, or 
8 

contradictions in Farmington’s explanation for the firing. Thus, the district 

court properly granted summary judgment to Farmington. 

IV. Consideration of Ms. Garcia’s Evidence

Ms. Garcia also contends that the district court ignored eight 

categories of evidence. This contention mischaracterizes the ruling. The 

district court explained that it had omitted discussion of immaterial 

incidents and alleged facts not supported by Ms. Garcia’s citations. This 

explanation was appropriate, for the district court had no obligation to 

comb the record when Ms. Garcia’s cited evidence did not support her 

factual allegations. Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1223 (10th 

Cir. 2008). 

V. The District Court’s Reliance on Kendrick v. Penske 

Transportation Services, Inc.

The district court explained that the critical inquiry is how the facts 

appeared to the individual who decided to fire Ms. Garcia, not 

Ms. Garcia’s evaluation of herself. For this explanation, the court cited 

Kendrick v. Penske Transportation Services, Inc., 220 F.3d 1220 (10th Cir. 

2000). Ms. Garcia argues that Kendrick is distinguishable because in that 

case the employee failed to present evidence undermining the employer’s 

honest belief. 

But the district court did not state that the facts in Kendrick were 

identical or even similar. The court cited Kendrick merely for the need to 
9 

view the facts as they appeared to the employer’s decisionmaker, which is 

precisely what Kendrick said. See Kendrick, 220 F.3d at 1231 (“[A] 

challenge of pretext requires us to look at the facts as they appear to the 

person making the decision to terminate plaintiff.”). Thus, the district 

court did not err in its use of Kendrick. 

VI. Farmington’s Allegedly Negative Perception of Ms. Garcia 

Ms. Garcia also asserts that she was viewed by Farmington as 

divisive, frustrating, and controversial. But it is not unlawful to fire 

someone for being divisive, frustrating, or controversial. To prevail, 

Ms. Garcia had to prove that her firing constituted 

 retaliation for her earlier suit or 

 discrimination based on gender or national origin. 

See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1176 (10th Cir. 

1996) (retaliation); Sanchez v. Phillip Morris, Inc., 992 F.2d 244, 246 

(10th Cir. 1993) (discrimination). Thus, Ms. Garcia’s characterization of 

Farmington’s perception of her (divisive, frustrating, and controversial) 

cannot support liability. See Sanchez, 992 F.2d at 248 (stating that even if 

the employer’s stated reason was pretextual, there was insufficient 

evidence of discrimination “as opposed to a mere mistake, favoritism or 

some other reason”). 

* * * 
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For these reasons, the district court did not err in (1) granting 

summary judgment to Farmington or (2) denying Ms. Garcia’s motion to 

alter or amend the judgment. 

Affirmed. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge