UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JUANITA GARCIA, Pl aintiff - Appellant,

v. CITY OF FARMINGTON, De fendant - 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 employme nt at a municipal power plant. Ms. Garcia attributes the firing to (1) discrimination ba sed on gender and national origin and (2) retaliation for an earlier suit. Farmington justified the firing on two alleged mi stakes by Ms. Garcia th at endangered the plant

* The parties do not request oral argu ment, 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 judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted 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 Court2 and its workers. The di strict court granted summary judgment to Farmington, and we affirm. I. The Two Incidents Farmington’s power plant operates through a boile r that creates steam, which is used to spin turbin es and generate electricity. Boiler pressure is controlled th rough operators like Ms. Garcia; if the pressure gets too high, the boiler may explode. Operators control the pr essure through a devi ce that runs on a computer system. Using the computer system, operators set the pressure level for the device. Ordinarily, the device st arts at a pressure ra nging from 300 to 375 pounds per square inch. Th is pressure increases to 405 pounds per square inch, which is the standard operating pressure . But on Janu ary 21, 2014, with Ms. Garcia at the helm, the pressure skyr ocketed to 451 pounds per square inch. Ms. Garcia insists that she could not enter a set point for the pressure because the co mputer malfunctioned. A coworker supports Ms. Garcia’s account. Farmington investigated the incide nt and noted an earlier incident that had taken plac e in 2012. In the 2012 incident, Ms. Garcia had trouble controlling the pres sure and it rose to 424 pounds per squa re inch before a supervisor told Ms. Garcia how to fix the problem.3 In light of the 2012 a nd 2014 mishaps, Farmingt on officials decided to fire Ms. Garcia. She characterizes the firing as di scriminatory and retaliatory; in contrast, Fa rmington insists that it fired Ms. Garcia because the two incidents co uld have resulted in injuries or deaths and damage to the power plant. II. The McDonnell Douglas Framework The discrimination and retaliation cl aims required the district court to apply the frame work set out in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Un der this framework, Ms. Garcia had an initia l 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 reas on for the firing. Id . Farmington contends that it satisfied this requirement by relying on Ms. Garcia’s two failures to keep the boiler pressure wi thin 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 involv es the admissibility of testimony about her observations during the 2014 incident. Ms. Garcia and a4 coworker stated under oa th that the computer ha d shown a malfunction, preventing anyone from setting the pr essure. Farmington disputed this account, denying any malfun ction. In support, Farmin gton hired an expert witness who stated under oath that the device had not malfunctioned. Farmington used this expert te stimony to support a motion for summary judgment. To rebut that testimony, Ms. Garcia proffered testimony by herself and a coworker a bout their observat ions during the 2014 incident. But the district cour t excluded the pr offered testimony. Ms. Garcia argues that this ruling was erroneous, tainting the district court’s grant of summary judgment an d denial of a motion to alter or amend the judgment. We rej ect Ms. Garcia’s argument. The challenge invol ves rulings on two motions: (1) Farmington’s motion for summary judgme nt and (2) Ms. Garcia’s motion to alter or amend the judgment. We would ordinari ly employ differe nt standards of review when addressing the ruling s on these motion s: For summaryjudgment rulings, we typically apply de novo re view; for ru lings 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) (d e novo review of summa ry-judgment rulings); Etherton v. Owners Ins. Co. , 829 F.3d 1209, 1228 (10t h Cir. 2016) (abuseof-discretion review for rulings on mo tions to alter or amend judgments). But here the issue on summary judgment involve s the admissibility of5 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 st andard to review both the grant of summary judgment and the denial of the motion to a lter or amend the judgment. In our view, the district court had the discretion to exclude the proposed testimony by Ms. Garcia an d her coworker. Bu t even if the district court had allowed the tes timony, it would no t have supported Ms. Garcia’s theo ry of liability. Ms. Garcia and her coworker would have testified that the computer did not allow them to se t the pressure level beca use the computer monitor toggled between the manual and automatic settings. The parties agree that this testimony involved an opinion an d that Ms. Garcia and her coworker could not provide opinion testimony as expert witn esses. But Ms. Garcia and her coworker insi st that they should have b een allowed to give opinion testimony as lay witnesses. The district court disagree d, and this ruling fell within the court’s discretion. Lay-opinion testim ony 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 defi nition outside of Rule 701.” James River Ins. Co. , 658 F.3d at 1215 (internal quotation marks omitted). Ms. Garcia and her coworker s ought to testify about6 precisely that kind of know ledge. 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 di scrimination and retaliation rather than an incorrect assignment of blame. Ms. Garcia lacked direct evidence of discriminatory or retaliatory intent, so she relied on ci rcumstantial 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 framewo rk involves three steps. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). The first step was Ms. Garcia’s es tablishment of a prima facie case, and Farmington assumed that Ms. Garc ia had satisfied this step. This assumption required Farm ington to give a leg itimate, nondiscriminatory reason for the firing. Id . at 802. Farmington sati sfied this requirement by attributing the firing to Ms. Garcia ’s mistakes in al lowing the boiler pressure to rise to unsafe levels in tw o separate incidents. In attributing the firing to a neutral, le gitimate reason, Farmington had no obligation to present supporting eviden ce. Thus, Farmington’s expert testimony was irrelevant at this step. See Etsitty v. Ut ah Transit Auth. , 502 F.3d 1215, 1224 (10th Cir. 2007) (stating that the second step of McDonnell Douglas7 did not require the employer to “prove that the reason reli ed upon [had been] bona fide” (internal quotation marks omitted)). To rebut Farmington’s explanation, Ms. Garcia had to show pretext. She could make this show ing 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 weakne sses, 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 pres sure 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 ha d been too high, that she had failed to create a work order fo r the device after it allege dly malfunctioned, that she had not told anyone about the malfunction un til a week after the incident, and that sh e had failed to note the ma lfunction in the operations log book. Thus, Ms. Garcia implicitly admitt ed that she had mishandled the incident even if the device had malfunc tioned as she claime d. In light of this implicit admission, Ms. Garcia ’s proposed testim ony would not have suggested any weaknesses, implau sibilities, inconsistencies, or8 contradictions in Farmington’s explanat ion 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 cour t ignored eight categories of evidence. This contenti on mischaracterizes the ruling. The district court explained that it ha d omitted discussion of immaterial incidents and alleged fact s not supported by Ms. Garcia’s c itations. This explanation was appropriate, for the di strict 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 th e critical inquiry is how the facts appeared to the individual who decided to fire Ms. Garcia, not Ms. Garcia’s evaluation of herself. Fo r this explanation, the court cited Kendrick v. Penske Tran sportation 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 under mining the employer’s honest belief. But the district court did no t state that the facts in Kendrick were identical or even sim ilar. The court cited Kendrick merely for the need to9 view the facts as th ey 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 fact s as they ap pear to the person making the decision to terminate plaintiff. ”). Thus, the district court did not err in its use of Kendrick

. VI. Farmington’s Allege dly Negative Percepti on of Ms. Garcia Ms. Garcia also asserts that sh e was viewed by Farmington as divisive, frustrating, and controversia l. But it is not un lawful to fire someone for being divisive, frustrating , or controversia l. To prevail, Ms. Garcia had to prove th at 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) (discrimin ation). 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 (sta ting that even if the employer’s stated reason was pr etextual, there was insufficient evidence of discrimination “as opposed to a mere mistake, favoritism or some other reason”). * * *10 For these reasons, the district c ourt did not err in (1) granting summary judgment to Farm ington or (2) denying Ms . Garcia’s motion to alter or amend the judgment. Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge