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Suazo v. Regents of Univ., 10th Cir. (1998)
Suazo v. Regents of Univ., 10th Cir. (1998)
JUN 24 1998
PATRICK FISHER
Clerk
ISAAC SUAZO,
Plaintiff-Appellant,
v.
REGENTS OF UNIVERSITY OF
CALIFORNIA, doing business as
Los Alamos National Laboratory,
No. 97-2211
(D.C. No. CIV-95-1142-BB)
(D. N.M.)
Defendant-Appellee.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
69 F.3d 1523, 1531 (10th Cir. 1995). We construe the record in the light most
favorable to plaintiff, but, once defendant shows it 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.
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Id. at 106.
The district court held, and we agree, that plaintiff established a prima facie
case of discrimination.
that the evidence supports this finding. The burden then shifted to plaintiff to
show that defendants proffered reason was merely pretextual.
On appeal, plaintiff does not pursue his First Amendment 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).
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It is for this purpose that plaintiff points to his affidavit statement that the
decision not to promote plaintiff was not because Steven Hanson was more
qualified, but was based on plaintiffs participation in the Naval Reserves.
Texas Dept of
judgment setting, the plaintiff must raise a genuine factual question as to whether
defendant[]s reasons are pretextual.
(VEVRA); Harris v. Adams , 873 F.2d 929, 931-32 (6th Cir. 1989) (VEVRA);
Barron v. Nightingale Roofing, Inc.
(VEVRA); Utley v. Varian Assocs., Inc. , 811 F.2d 1279, 1284-86 (9th Cir. 1987)
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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);
871 F. Supp. 640, 648 (S.D.N.Y. 1994) (holding that VEVRA does not provide
direct private right of action, nor does 42 U.S.C. 1983 provide indirect private
right of action), affd 104 F.3d 353 (2d Cir. 1996) (table);
Univ. , 866 F. Supp. 1069, 1073, 1074 (S.D. Ohio 1994) (same);
Wilson v. Amtrak
Natl 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 Rehabilitation Act of 1973 and
holding that plaintiff had not established discrimination as result of lack of
affirmative action program without discussion of whether private right of
action exists).
We AFFIRM the district courts grant of summary judgment in favor of
defendant.
Entered for the Court
David M. Ebel
Circuit Judge
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