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

### JAN 11 1999 

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

LARRY N. CHAMBERS, SR.,

Plaintiff-Appellant,

v. BYRON MCCLENNEY, individually and in his official capacity as President of the Community College of Denver; JERRY WARTGOW, individually and in his official capacity as President of the State Board for Colorado Community Colleges and Occupational Education; MARY ELLEN MCELDOWNEY, individually and in her official capacity as Vice-President for Legal Affairs for the State Board of Colorado Community Colleges and Occupational Education; GLENDA BARRY; ROLF ANDERSON; SUSAN AYRES DAVIES; JOHN FREW; JULIANNE HAEFELI; WILLIAM HORNBY; KRISTY SCHLOSS; RALPH TORRES; RAYMOND WILDER, in their official capacities as voting members of the State Board for Community Colleges and Occupational Education; COLORADO STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION,

Defendants-Appellees. No. 97-1468 (D.C. No. 97-N-125) (D. Colo.)* This order and judgment is not binding precedent, e xcept under the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. -2- ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist 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. Plaintiff appeals from summary judgment entered in favor of defendants in this employment discrimination action. Following h is termination as Human Resource Director for the Community College of Denv er (CCD), plaintiff brought suit for injunctive relief, back pay, and damages a gainst CCD and its president, as well as others less directly involved in the operat ive events. Although plaintiff initially pled several statutory causes of action, during the proceedings he has narrowed his claims to age and race discrimination, and related retaliation, under Title VII of the Civil Rights Act of 1964. The district court held (1) plaintiff, a black man over the age of forty who was fired and replaced by a younger Asian woman within a year of complaining1 On appeal, plaintiff does not contend the pay disparity is, in itself, a

distinct claim that should have been addressed as s uch by the district court. He argues it solely as a basis for finding pretext in connection with his termination. -3- about his allegedly discriminatory salary, demonstr ated a prima facie case of discrimination/retaliation; (2) defendants advanceda legitimate reason for his termination, namely substantial and vocal faculty/s taff dissatisfaction with his performance as human resource director; and (3) pla intiff failed to present evidence sufficient to create a triable issue that this reason was pretextual.
See Trujillo v. University of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1215 (10th Cir. 1998) (summarizing applicable burden-shi fting analysis). We review this determination de novo, see id. at 1213, and affirm. We agree with the district court that significant c riticism by the personnel whom plaintiff was employed to assist and advise co nstituted a legitimate reason for termination. We turn, then, to the issue of pr etext, which is the focus of this appeal. The district court explicitly rejected two primary arguments advanced by plaintiff on this issue. First, regarding an alleg ed pay disparity between plaintiff and some other CCD administrators, the court held p laintiff had not shown that those paid more were situated similarly enough to p ermit probative comparison. The court also noted that a pay disparity would not , in any event, undercut the reason advanced for plaintiff’s termination

. 1 Plaintiff insists the evidence was relevant to his retaliatory discharge claim, becaus e it was his complaining about-4-

the pay disparity that allegedly prompted defendants to fire him. See Appellant’s Opening Br. at 18. Plaintiff mixes evidentiary app les and oranges here. His effort to justify complaints over pay equity do notprove the distinct proposition that those complaints--warranted or not--led to his termination. The district court also rejected plaintiff’s attackon the unfavorable staff survey completed shortly before his termination. P laintiff contended it was improperly designed and interpreted, and claimed th e complaints elicited about his performance were unfounded and racially motivat ed. The court correctly held that the latter claim reflected only plaintiff’s un substantiated suspicions, which were not rendered admissible or probative simply byinclusion in a rambling thirty-seven page “affidavit.” See Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995) (“To survive summary judgment, non movant’s affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits ar e not sufficient.”) (quotation omitted); Conaway v. Smith , 853 F.2d 789, 794 (10th Cir. 1988) (to defeat summary judgment, “a party cannot rest . . . on spe culation, or on suspicion”). As for the design/use of the survey, aside from an inadmissible hearsay comment from an alleged expert about the lack of a written methodology, plaintiff’s challenge consisted of (1) a generic co mplaint that it was not conducted in accordance with his wishes, and (2) hi s unsubstantiated opinion that-5-

biases of negative respondents skewed the results and gave a false impression of his general standing with staff. We agree with the district court that for the purpose of showing pretext, this evidence was incompetent, see authorities cited immediately above, and/or insufficiently probative, see McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1129 (10th Cir. 1998) (evidence sh owing only employer’s reliance on erroneous information insuff icient to defeat summary judgment at pretext stage); see also Reynolds v. School Dist. No. 1 , 69 F.3d 1523, 1535-36 (10th Cir. 1995) (true motivating reason no t shown to be pretext merely because, in hindsight, it involved poor business ju dgment). Plaintiff argues that several additional items of e vidence, not addressed by the district court, bolster his showing of pretext. We have reviewed these and conclude they do not undermine the validity of the summary judgment entered for defendants. For example, he notes the last routine evaluation by his immediate supervisor found him “highly successful,” and he ar gues that subsequent use of a survey to assess the staff’s views was an improper deviation from standard practice. The performance evaluation, unsigned by the CCD president (defendant Byron McClenney) who fired plaintiff, and relating in any event to a time period prior to the crisis in staff confidence prompting ( and reflected by) the survey, does not imply any motive other than an attempt to deal with that crisis. And-6-

there is no indication that the survey, a practical response to an evident problem, violated any specified personnel rule or policy. Plaintiff claims a nonparty supervisor told him that his non-minority predecessor had also been the target of complaints, but these were ignored by McClenney. In addition to the obvious hearsay prob lem, this statement, which does not specify the source, subject, severity, or frequency of the ignored complaints, hardly constitutes competent probative evidence of disparate
treatment. See Murray , 45 F.3d at 1422. Similar admissiblity/specificity problems attend his claim that the same supervisor told McClenney that he felt plaintiff’s department was doing a good job. Plaintiff states that on one occasion McClenney ref used to give him requested feedback about staff complaints, which Mc Clenney would not even acknowledge. This isolated anecdote, portraying Mc Clenney as unforthcoming about matters which on many other occasions he purs ued with persistence and vigor, is uncharacteristic, but considered with all of McClenney’s pertinent conduct, it does not undercut the cited basis for p laintiff’s termination. At most it reflects a lapse in supervisory communication, whic h in itself is not a cognizable basis for a Title VII claim. See generally Archuleta v. Colorado Dep’t of Institutions , 936 F.2d 483, 487 (10th Cir. 1991) (Title VII pro hibits specified discrimination, but does not broadly ensure fair tr eatment in other respects).-7-

Plaintiff also claims McClenney expressly recognize d his department’s role as a lightning rod for staff dissatisfaction, and sugges ts this “concession” precluded McClenney from holding plaintiff personally respons ible for criticism of the department. But, certainly, McClenney was entitledto distinguish such routine, low-level grousing from the crisis in confidence ci ted as the basis for terminating plaintiff. Finally, plaintiff advances some additional objecti ons concerning the survey. He complains that it was designed in accor dance with McClenney’s direction--as if the implementation of the concerns and objectives of the most important user of this assessment tool somehow impl icated improper motives not otherwise evident from its content. Plaintiff’s cr iticism that McClenney did not discuss the survey results with him is, again, a ge neric workplace grievance over supervisory communication outside the scope of Titl e VII.-8-

In sum, plaintiff has failed to demonstrate the exi stence of legal or factual issues barring summary judgment. The judgment is A FFIRMED. Entered for the Court
Mary Beck Briscoe Circuit Judge