* This order and judgment is not binding precedent, except under the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

### AUG 28 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SALVADOR RIVERA, Plaintiff - Appellant, v. HARVEY L. PITT, Chairman of the Securities and Exchange Commission, Defendant - Appellee. No. 01-1114 (D.C. No. 95-N-317) (D. Colorado)

ORDER AND JUDGMENT *

Before LUCERO , HOLLOWAY , and MURPHY , Circuit Judges.

Plaintiff Salvador Rivera appeals the district court’s entry of summary judgment in favor of defendant Harvey L. Pitt, Chai rman of the Securities and Exchange Commission (“SEC”). Our jurisdiction aris es under 28 U.S.C. § 1291, and having heard oral argument in this case, we aff irm. Rivera, a former staff attorney for the SEC Central Regional Office locate d in Denver, Colorado, alleges that the SEC violated Title VII of the Civil Rights Act of 1964 when it terminated-2-

him because of his race, national origin, and color , and in retaliation for filing Equal Employment Opportunity (“EEO”) complaints. H e also contends that the SEC failed to adhere to the statutory criteria, 5 U .S.C. § 4302, for removing federal employees when it terminated him.
I In analyzing Rivera’s Title VII discrimination clai m, the district court required him to show that non-Hispanic employees we re treated differently or were disciplined less severely than Rivera for viol ating work rules. The district court decided this case before Kendrick v. Penske T ransportation Services, Inc. , which clarified that a plaintiff need not show thatsimilarly situated non-minority employees were treated less severely or differently than plaintiff to establish a prima facie case. 220 F.3d 1220, 1228–29 (10th Cir . 2000). Applying Kendrickand viewing the evidence in the light most favorab le to Rivera, see Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999), we conclude that the district court erred and that Rivera established a prima fac ie case. The SEC, however, offered a nondiscriminatory reason for Rivera’s ter mination—poor job performance. The burden thus shifts back to Riverato demonstrate that the SEC’s legitimate nondiscriminatory reason is pretextual. There are three typical ways for a plaintiff to show pretext:1 Rivera was ultimately found to have violated the Hatch Act by the SEC’s

Inspector General’s Office and was punished with a sixty-day suspension. (3 Appellant’s App. at 826.) -3- (1) with evidence that the defendant’s stated reaso n for the adverse employment action was false; (2) with evidence thatthe defendant acted contrary to a written company policy prescrib ing the action to be taken by the defendant under the circumstances; or (3) with evidence that the defendant acted contrary to an un written policy or contrary to company practice when making the advers e employment decision affecting the plaintiff. A plaintiff who wishes to show that the company acted contrary to an unwritten policy o r to company practice often does so by providing evidence that h e was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. Kendrick , 220 F.3d at 1230 (citations omitted). Rivera has not presented evidence that the SEC’s conclusion that he performe d unsatisfactorily was false; his only pretext argument is that the SEC violated policy because similarly situated non-minority employees were disciplined le ss severely or treated differently than Rivera. He specifically alleges t hat (1) he was illegally placed on probation in 1989; (2) his supervisors reported the ir suspicions that he violated the Hatch Act to investigatory authorities; 1 (3) he received a poor performance evaluation in 1994; (4) he was placed on a performa nce improvement plan in 1995; (5) his supervisor had him under surveillance ; and (6) he was terminated. On appeal Rivera argues for the first time that his 1994 performance evaluation and his supervisor’s surveillance of him are eviden ce of disparate treatment. Because these arguments were not presented to the d istrict court we will not2 The SEC filed a motion to strike those portions of Volume IV of Rivera’s corrected appendix that had not been submitted to t he district court, essentially comprising all pages in Volume IV except 854–932, 9 40–48, 1040–50, 1169–89. Federal Rule of Appellate Procedure 10(e) precludes supplementing the record with documents that were not before the district co urt, except to the extent it is necessary to “truly disclose[] what occurred in the district court.” Rivera’s documents do not meet this standard. The SEC’s moti on is therefore granted. -4- consider them for the first time on appeal. See Bennett v. Quark, Inc. , 258 F.3d 1220, 1227–28 (10th Cir. 2001). 2 The only evidence supporting the remaining allegati ons is Rivera’s affidavit stating that other SEC staff attorneys ha d violated SEC rules and had not been seriously disciplined or terminated. To survi ve summary judgment Rivera’s affidavit “must be based upon personal knowledge an d set forth facts that would be admissible in evidence; conclusory and self-serv ing affidavits are not sufficient.” Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995) (quotation omitted). The district court reviewed R ivera’s affidavit and concluded that it did not present any admissible evidence bec ause the statements in the affidavit were “conclusory, self-serving, and so wh olly lacking in foundation that they are inadmissible under the Federal Rules of Ev idence.” (3 Appellant’s App. at 841.) Furthermore, the district court found that Rivera’s claims of disparate treatment premised on his being placed on probation in 1989 and on his being reported for Hatch Act violations were barred by re s judicata because they were identical to the disparate-treatment claims he rais ed or could have raised in his-5-

1995 lawsuit against the SEC—claims for which the d istrict court entered an order granting the SEC summary judgment. (3 id. at 838.) Upon reviewing the record, we conclude that Rivera’ s affidavit does not provide admissible evidence and that he has not pre sented additional evidence to support his allegations that non-Hispanic staff att orneys were treated differently than himself. Consequently there is no genuine iss ue as to any material fact concerning Rivera’s claim that the SEC’s legitimate nondiscriminatory reason for his termination was pretextual; therefore, the SEC is entitled to summary judgment on this claim.
II Rivera also contends the SEC retaliated against him for filing EEO complaints. We agree with the district court that Rivera established a prima facie retaliation claim based on filing an EEO complaint on February 22, 1996, and being terminated two months later. The district co urt correctly found that the SEC provided a legitimate nondiscriminatory reason for terminating Rivera—poor job performance—and that Rivera failed to present s ufficient evidence from which a reasonable juror could conclude that the SE C’s legitimate nondiscriminatory reason for terminating Rivera was a pretext for discrimination. With respect to Rivera’s other retaliatory discharg e claims, we conclude the district court correctly granted the SEC’s motion f or summary judgment for-6-

substantially the reasons expressed by the districtcourt in its January 3, 2000 order and memorandum of decision.

III Rivera argues that the district court erred in gran ting defendant’s motion for summary judgment on his claim that the SEC term inated him without adhering to the statutory requirements for removing a federa l employee, 5 U.S.C. § 4302. Having heard oral argument and upon careful conside ration of the record, the briefs, the district court’s order, and applicable law, we conclude that the district court correctly granted the SEC’s motion for summary judgment for substantially the reasons stated in the district court’s January 3, 2000 order and memorandum of decision.
IV
We AFFIRM

.

ENTERED FOR THE COURT

PER CURIAM