                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit
                                   TENTH CIRCUIT
                                                                          October 22, 2018
                                                                        Elisabeth A. Shumaker
JOEL HERRERA,                                                               Clerk of Court

      Plaintiff - Appellant,

v.                                                           No. 17-1453
                                                (D.C. No. 1:16-CV-01951-DME-KMT)
UNITED AIRLINES, INC.,                                        (D. Colo.)

      Defendant - Appellee.


                               ORDER AND JUDGMENT *


Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.



       In this employment discrimination case brought under Title VII of the Civil Rights

Act of 1964 (Title VII), Plaintiff-Appellant Joel Herrera argues his former employer,

Defendant-Appellee United Airlines, Inc. (United), unlawfully terminated his

employment because of his Hispanic national origin. Herrera appeals the district court’s

grant of summary judgment in favor of United. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm. 1


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
        Herrera’s appendix is deficient. See Fed. R. App. P. 30.1(B)(3). The appendix
omits numerous documents relevant to our decision, including many documents that
Herrera relies on in his arguments, such as: (1) United’s Working Together Guidelines;
                                                                         (Continued . . .)
                                              I

                           A) Herrera’s Employment at United

       Herrera is of Hispanic national origin. App. at 17. He began his employment with

United in July 1989. D. Ct. Dkt. 27, at 2; D. Ct. Dkt. 30, at 3. From 1989 to 1998,

Herrera worked at the Oakland International Airport. Id. In 1998, Herrera transferred to

Denver International Airport (DIA), where he continued working as a Mechanic until his

termination in 2015. Id.

                  B) Herrera is Convicted of DWAI and Sentenced to Jail

       In late September 2014, Herrera was arrested for driving under the influence. D.

Ct. Dkt. 27, at 3; D. Ct. Dkt. 30, at 3. Herrera reported his arrest to United’s local

Operating Manager, Mark Moore. App. at 17. While Herrera’s state court proceedings

were ongoing, Moore and Herrera had multiple conversations about the possibility that

Herrera could be sentenced to jail and permitted by the court to participate in work

release. Id. at 34.


        (cont’d)
(2) documents regarding Herrera’s conviction and sentence; (3) Herrera’s termination
letter from United; (4) summaries following interviews with Marty Mock, Jim Schneider,
and Mark Leber; (5) a document regarding Byron Coffey’s successful termination of 180
days’ in-home detention; (6) a letter from United regarding Mock’s days off work; and
(7) a document regarding William Bragg’s agreement between United and the Sheriff’s
Office as to work furlough.
        Based on this deficiency, we could simply decline to consider the merits of
Herrera’s appeal. See 10th Cir. R. 10.3(b) (“The court need not remedy any failure by
counsel to designate an adequate record. When the party asserting an issue fails to
provide a record sufficient for considering that issue, the court may decline to consider
it.”). However, in order to decide Herrera’s appeal on the merits, we obtained the
necessary documents from the district court’s docket, to which we cite.

                                              2
       In June 2015, Herrera was convicted in the Arapahoe County Court of Driving

While Ability Impaired (DWAI) with two or more prior convictions. D. Ct. Dkt. 27, at 3;

D. Ct. Dkt. 30, at 3. In late August 2015, Herrera was sentenced to six months in county

jail, App. at 7, sixty days of which was a mandatory minimum period of incarceration, id.

at 17. The state court authorized work release, which allowed Herrera to leave jail to

attend work. Id. at 32. Work release was accompanied by certain conditions, including:

(1) United’s approval of Herrera’s participation in the program; (2) Herrera being fitted

with an ankle monitor; and (3) installation of an interlock device in Herrera’s vehicle. Id.

at 17–18.

                    C) United Denies Work Release and Fires Herrera

       Following his sentencing hearing, Herrera officially requested work release

approval from Mario Terenzio, United’s Director of Aircraft Maintenance at DIA. D. Ct.

Dkt. 27, at 4; D. Ct. Dkt. 30, at 4. Terenzio contacted Linda Ross, United’s Human

Resources Manager of Technical Operations for Chicago and Denver, to explain the

nature of the work release program and to seek her direction on how to proceed. Id.

       In early September 2015, Terenzio, other United management personnel, and

Herrera met in person at DIA to discuss Herrera’s request for United to approve his

participation in the work release program. Id. At the meeting, United placed Herrera on

paid leave pending its decision to approve or deny Herrera’s work release request. See

D. Ct. Dkt. 27-1, at 17. After the meeting with Herrera, Terenzio contacted Ross to

describe information learned during the meeting and to seek further guidance. D. Ct.

Dkt. 27, at 5; D. Ct. Dkt. 30, at 4.

                                             3
       Thereafter, Ross conducted research regarding Herrera’s work release request

because she “was unaware of any United employee who had been provided work

release.” Id. Ross was unable to identify an instance where a United employee had

sought work release approval, and concluded United had never accepted or denied an

employee’s work release request. Id.

       United then denied Herrera’s work release request and immediately terminated his

employment. App. at 7. Herrera learned about his termination by letter dated September

29, 2015. Id. The termination letter noted that Herrera violated United’s “Working

Together Guidelines.” D. Ct. Dkt. 27-5, at 2. The letter stated, “United’s Working

Together Guidelines instruct and bind each employee” to “[b]e responsible corporate

citizens and abide by local, state[,] and federal laws”; “[u]se good judgment and open

communication in all decisions”; and “[a]ct in ways that reflect favorably on the

Company[,] yourself[,] and your co-workers.” D. Ct. Dkt. 27-5, at 1. The letter also

stated that “the Working Together Guideline on ‘Working Dependably’ requires . . .

[r]egular and predictable attendance,” and emphasizes that “[e]xcessive absences can

impede the airline’s ability to provide on-time and reliable service.” Id. at 2. United

determined that it “does not support the work release program which impacts [Herrera’s]

ability to report to work.” Id. Thus, “taking into consideration the seriousness of

[Herrera’s] actions, [his] disregard for the Company’s policies and guidelines, and [his]

inability to report to work absent a work release requirement,” United terminated

Herrera’s employment. Id.



                                             4
       Four months later, in January 2016, Herrera filed a Charge of Discrimination with

the Equal Employment Opportunity Commission (the EEOC). The EEOC sent him a

Notice of Right to Sue at the beginning of August 2016, and Herrera sued United in the

United States District Court for the District of Colorado. App. at 6. Following

discovery, the district court granted United’s motion for summary judgment on Herrera’s

national origin discrimination claim and entered final judgment in the case. Herrera now

appeals.

                                              II

                                    A) Issues on Appeal

       Herrera raises two issues on appeal. First, he contends that the district court

incorrectly granted summary judgment to United. Herrera argues that the district court

“erred in applying unduly restrictive criteria for similarly situated comparators,” and that

he put forth enough evidence of pretext to survive summary judgment. Aplt. Br. at 1.

Second, Herrera asserts that the district court erred in failing to properly consider three

pieces of evidence he offered in support of his opposition to summary judgment.

According to Herrera, this “violat[ed] the requirement that all evidence be considered in

the light most favorable to the non-moving party.” Id.

       Nothing in the district court’s evidentiary rulings impacts our consideration of the

merits of Herrera’s discrimination claim, so we evaluate Herrera’s appeal of the district

court’s grant of summary judgment first and the evidentiary issues second. Because we

conclude that Herrera does not provide sufficient evidence of discriminatory intent to



                                              5
survive summary judgment, and none of the challenged evidentiary rulings affect that

determination, we affirm the district court’s grant of summary judgment to United.

                                  B) Standard of Review

       This court reviews a grant of summary judgment de novo, applying the same legal

standard used by the district court under Federal Rule of Civil Procedure 56(a). Twigg v.

Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011). We affirm if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1138 (10th Cir. 2011)

(quoting Fed. R. Civ. P. 56(a)). “A fact is ‘material’ if under the substantive law it could

have an effect on the outcome of the lawsuit. An issue is ‘genuine’ if a ‘rational jur[or]

could find in favor of the nonmoving party on the evidence presented.’” Adams v. Am.

Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (alteration in original)

(citation omitted) (quoting EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184,

1190 (10th Cir. 2000)). “The evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

                   C) Title VII and the McDonnell Douglas Framework

       Title VII makes it unlawful for an employer “to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s . . . national

origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff bringing a Title VII claim for disparate

treatment on the basis of national origin “must prove by a preponderance of the evidence

                                             6
that the defendant had a discriminatory motive or intent.” Sorensen v. City of Aurora,

984 F.2d 349, 351 (10th Cir. 1993). A plaintiff may do this by offering direct proof of

discriminatory intent or by using the burden-shifting framework articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), to demonstrate discrimination using

circumstantial evidence. Horizon/CMS Healthcare Corp., 220 F.3d at 1191.

       Herrera does not have direct evidence of discrimination, so he employs the

McDonnell Douglas burden-shifting framework. Under McDonnell Douglas, Herrera

must first establish a prima facie case of discrimination. 411 U.S. at 802. If he succeeds

in doing so, the burden shifts to United “to rebut the presumption of discrimination” by

“producing ‘some evidence that it had legitimate, nondiscriminatory reasons for the

decision.’” Sorensen, 984 F.2d at 352 (quoting Watson v. Fort Worth Bank & Trust, 487

U.S. 977, 986 (1988)). If United “succeeds in rebutting the presumption of

discrimination raised by [Herrera’s] prima facie case, then . . . . [Herrera] must prove by a

preponderance of all the evidence in the case that the legitimate reasons offered by

[United] were a pretext for discrimination.” Id. At every stage, Herrera always retains

“[t]he ultimate burden of persuading the trier of fact that [United] intentionally

discriminated against [him].” Watson, 487 U.S. at 986 (quoting Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

                  D) Analysis: United’s Motion for Summary Judgment

       Herrera successfully establishes a prima facie case of discrimination. And United

effectively articulates legitimate, nondiscriminatory motives for its employment actions.

Herrera fails, however, to demonstrate that United’s stated reasons are pretextual, and he

                                              7
therefore does not establish that United intentionally discriminated against him. The

district court properly granted summary judgment to United.

                    1) Herrera’s Prima Facie Case of Discrimination

       To establish his prima facie case of national origin discrimination, Herrera “must

show that (1) he belongs to a protected class; (2) he was qualified for his job; (3) despite

his qualifications, he was discharged; and (4) the job was not eliminated after his

discharge.” Rivera v. City & Cty. of Denver, 365 F.3d 912, 920 (10th Cir. 2004)

(quotation omitted). At this stage, Herrera’s “burden is ‘not onerous.’” Orr v. City of

Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005) (quoting Burdine, 450 U.S. at 253).

       Herrera has met his burden of establishing a prima facie case, and United

appropriately does not argue otherwise. First, Herrera belongs to a protected class

because he is of Hispanic national origin. Second, United does not challenge Herrera’s

claim that he was qualified for his job. Third, despite his qualifications, United

discharged Herrera. Finally, United did not eliminate Herrera’s job after his discharge.

Herrera has thus met his burden of establishing a prima facie case of discrimination, and

the burden shifts to United to articulate a legitimate, nondiscriminatory reason for its

employment actions.

                    2) United’s Legitimate, Nondiscriminatory Reason

       United’s burden at this stage “is one of production, not persuasion.” Reeves v.

Sanderson Plumbing Prods., Inc. 530 U.S. 133, 142 (2000). This “burden is exceedingly

light.” DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017)

(quotation omitted). United must only “explain its actions against [Herrera] in terms that

                                              8
are not facially prohibited by Title VII.” Jones v. Denver Post Corp., 203 F.3d 748, 753

(10th Cir. 2000). United does not “need to litigate the merits of [its] reasoning, . . . prove

that the reason relied upon was bona fide, . . . [or] prove that the reasoning was applied in

a nondiscriminatory fashion.” EEOC v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir.

1992). Moreover, we do not question “whether [United’s] proffered reasons were wise,

fair[,] or correct, but whether it honestly believed those reasons and acted in good faith

upon those beliefs.” Rivera, 365 F.3d at 924–25 (quotation and alterations omitted).

       Because United’s denial of Herrera’s work release and its ultimate decision to

terminate his employment are interrelated, we consider United’s stated reasons for both

of those actions. United stated that it terminated Herrera because of “the seriousness of

[his] actions, [his] disregard for the Company’s policies and guidelines, and [his] inability

to report to work absent a work release requirement.” D. Ct. Dkt. 27-5, at 2. And United

stated that it denied Herrera’s request for work release

              principally based on [his] inability to freely perform his
              responsibilities without the restrictions inherent in a work release
              program, the risk that [Herrera] would not be able to predictably
              attend work during his incarceration and while on work release, the
              fact that if work release was approved for [Herrera] than [sic] it
              would need to be considered and potentially approved for all of
              United’s 85,000 employees[,] and the fact that Ms. Ross’[s] research
              did not reveal any United employee who had been provided work
              release.

App. at 43.

       These are legitimate, nondiscriminatory reasons for United’s employment

decisions. See Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1396 (10th Cir. 1997)

(concluding defendant’s statement that it terminated plaintiff for violating company

                                              9
policy was a legitimate, nondiscriminatory reason for its employment action). United has

thus met its burden of articulating a nondiscriminatory reason for its denial of Herrera’s

work release request and termination of his employment. The burden now shifts back to

Herrera “to prove by a preponderance of the evidence that the legitimate reasons offered

by” United “were not its true reasons, but were a pretext for discrimination.” Simmons v.

Sykes Enters., Inc., 647 F.3d 943, 947 (10th Cir. 2011).

                             3) Herrera’s Evidence of Pretext

       At the third and final step of the McDonnell Douglas framework—the pretext

inquiry—“the presumption of discrimination created by” Herrera’s “prima facie case

‘simply drops out of the picture.’” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d

1160, 1167 (10th Cir. 2007) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510

(1993)). At this step, Herrera “carries the full burden of persuasion to show that” United

“discriminated on the illegal basis of” national origin. Id. (quoting Bryant v. Farmers Ins.

Exch., 432 F.3d 1114, 1125 (10th Cir. 2005)).

       “A plaintiff shows pretext by demonstrating such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the asserted nondiscriminatory

reasons.” Id. (quotation omitted). A common method of showing pretext is by arguing

disparate treatment. Id. This is the method Herrera employs.

       Under this approach, a plaintiff can establish pretext by “demonstrat[ing] that the

employer treated the plaintiff differently from other similarly-situated employees who

                                            10
violated work rules of comparable seriousness.” Id. at 1167–68 (quotation and alterations

omitted). However, even if a plaintiff demonstrates disparate treatment, “if the

employer’s differential treatment of similarly-situated employees is ‘trivial or accidental

or explained by a nondiscriminatory motive,’ such treatment is insufficient to create an

inference of discrimination.” Id. at 1168 (quoting Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1232 (10th Cir. 2000)). “[T]he existence of differential treatment[]

defeats summary judgment only if it could reasonably lead the trier of fact to infer a

discriminatory motive; where the evidence of pretext supports only nondiscriminatory

motives, such an inference is logically precluded and summary judgment for the

employer is appropriate.” Id.

       Herrera offers for comparison five individuals who he claims were similarly

situated to him yet treated differently—Marty Mock, Mark Leber, James Schneider,

Byron Coffey, and William Bragg. 2 Four of the men—Mock, Leber, Schneider, and

Coffey—are proper pretext comparators. 3 Bragg is not.


       2
         Herrera also discusses Ed Avila, a purportedly Hispanic individual who, Herrera
argues, was treated similarly poorly to him. However, because Avila is in Herrera’s
protected class, he cannot serve as a proper comparator. See Aramburu v. Boeing Co.,
112 F.3d 1398, 1405 (10th Cir. 1997) (noting that evidence that “does not reflect the
ancestries of the other employees” who were treated more favorably “does not allow for a
comparison which supports an inference” of discrimination on the basis of national
origin).
       3
         In this regard, the district court erred in holding that Mock, Leber, Schneider, and
Coffey were invalid comparators because Herrera did not provide evidence that these
men were allowed to participate in work release while he was not. To the contrary,
Herrera was not required to show that a nonprotected United employee was allowed to
participate in work release to establish he was a proper comparator. See, e.g., Aramburu,
                                                                              (Continued . . .)
                                              11
       For an individual to be “similarly situated” to Herrera, he must have: (1) “deal[t]

with the same supervisor,” and (2) been “subject to the same standards governing

performance evaluation and discipline.” Aramburu, 112 F.3d at 1404 (quotation

omitted). It is undisputed that Mock, Leber, Schneider, and Coffey worked at DIA as

Aviation Mechanics, like Herrera, and at the same time as Herrera. They all had the

same supervisor, Terenzio, and were all “subject to the same standards governing

performance evaluation and discipline”—United’s Working Together Guidelines. Id.

Thus, Mock, Leber, Schneider, and Coffey are all “similarly situated” to Herrera. Id.

Bragg, however, did not work at DIA. App. at 20. He worked for United at the San

Francisco International Airport. Id. Bragg did not “deal with the same supervisor” as

Herrera. Aramburu, 112 F.3d at 1404 (quotation omitted). He is thus not “similarly

situated” to Herrera and not an appropriate comparator. 4 Id.


        (cont’d)
112 F.3d at 1404. Nevertheless, despite wrongly believing they were invalid
comparators, the district court still considered Mock, Schneider, Leber, and Coffey in its
disparate treatment analysis. See App. at 44 (“Herrera has been unable to offer even a
single instance where United supported a non-Hispanic employee’s work release request.
Nonetheless, because the comparators Herrera does identify are critical to his claim, the
Court will pause to dwell on the facts that were discovered as to each of these
individuals.”).
       4
        We could also decline to consider evidence related to Bragg because Herrera
inadequately presented his arguments regarding Bragg to the district court. In its ruling
on United’s motion for summary judgment, the district court noted that Herrera “d[id] not
mention” Bragg “in the text of his response” to United’s summary judgment motion, but
merely “reference[d] . . . Bragg[ ] in his Statement of Undisputed facts, and attache[d] an
‘Alternative Sentencing Burau [sic] Employer’s Agreement,’ . . . which Herrera
suggest[ed] [wa]s evidence that Bragg . . . ‘received approval from United for continuing
his employment while on work release.” App. at 46. Because Herrera did not adequately
                                                                            (Continued . . .)
                                             12
       In order to establish pretext by showing differential treatment, Herrera must show

that: (1) his nonprotected similarly-situated colleagues violated United “rules of

comparable seriousness”; (2) United treated them differently (by, for example, not

terminating their employment, as it did with Herrera); and (3) this differential treatment is

not trivial, accidental, or explained by nondiscriminatory motives. Kendrick, 220 F.3d at

1230. Herrera fails on the third prong.

       Herrera, Schneider, Coffey, Mock, and Leber all “violated work rules of

comparable seriousness.” Id. Herrera, Schneider, and Coffey were all arrested for DUI.

Mock was arrested for DWAI. Finally, Leber was arrested for domestic violence. All of

these arrests and associated convictions resulted in violations of work policies “of

comparable seriousness” by Herrera and the comparators. Kendrick, 220 F.3d at 1232.

These include the Working Together Guidelines’ directives that all United employees:

(1) “[b]e responsible corporate citizens and abide by local, state and federal laws”; (2)

“[u]se good judgment . . . in all decisions”; and (3) “[a]ct in ways that reflect favorably

on the Company[,] yourself[,] and your co-workers.” D. Ct. Dkt. 27-5, at 3.

       Herrera establishes that United treated him differently than his identified

comparators because Herrera was the only one of the five men whose employment was


        (cont’d)
present to the district court any arguments that Bragg was a proper comparator, those
arguments are not properly preserved. See Tele-Comm., Inc. v. C.I.R., 104 F.3d 1229,
1233 (10th Cir. 1997) (“Propounding new arguments on appeal in an attempt to prompt
us to reverse the trial court undermines important judicial values. In order to preserve the
integrity of the appellate structure, we should not be considered a ‘second-shot’ forum, a
forum where secondary, back-up theories may be mounted for the first time.”).

                                             13
terminated. However, because United’s differential treatment of Herrera can be

explained by a nondiscriminatory motive—namely, United’s desire not to approve

Herrera for the work release program—Herrera cannot establish pretext through disparate

treatment.

        Mock, like Herrera, pled guilty to DWAI. Unlike Herrera, however, Mock did not

receive a jail sentence, but was required to wear an ankle monitor for ten days. Mock

could wear his monitor undetected and complete his sentence without informing United

and without interrupting his regular work schedule. Mock did not work for six of the ten

days he wore the ankle monitor, because he used vacation days and had scheduled days

off of work. For the remaining four days, Mock went to work as normal and secretly

wore the ankle monitor under his uniform. App. at 19 (stating Mock “did not inform any

United management employee” that he was wearing an ankle bracelet). Unlike Herrera,

United did not need to decide whether it would approve a court-authorized program

related to Mock’s conviction. Thus, United’s differential treatment of Herrera and Mock

is explained by its statement that it terminated Herrera’s employment in part because of

his “inability to report to work absent a work release requirement.” D. Ct. Dkt. 27-5,

at 4.

        United’s treatment of Leber is likewise explained by nondiscriminatory reasons.

Leber was convicted on a domestic violence charge. He, like Mock, was sentenced to

wear an ankle monitor. Also like Mock, Leber wore his ankle monitor to work. Leber

“could not definitively recall whether he ever informed anyone at United management

. . . that he was wearing an ankle bracelet under his uniform.” App. at 46 (quotation

                                            14
omitted). Leber stated “he is relatively certain that a number of his co-workers knew he

was wearing an ankle bracelet,” but “he was not proud of his status,” “did not discuss the

matter with his co-workers,” and “did his best to hide the bracelet so it was not seen at

work.” Id. (quotation omitted). Thus, as with Mock and unlike Herrera, United made no

decision about whether to authorize a court-administered program related to Leber’s

conviction.

       Schneider, like Herrera and unlike Mock and Leber, was sentenced to jail time.

Unlike Herrera, Schneider had a lot of vacation time in reserve. Schneider used seventy-

one vacation days to cover ninety-three percent of his seventy-five-day sentence. 5 For

the four days of Schneider’s sentence that were not covered by his vacation days, United

marked Schneider absent from work under the “N/A” designation. United disciplined

Schneider for his four days of absence by issuing him a “strike” in the attendance

discipline program. App. at 45. Schneider was entitled to use his vacation days,

provided his time off was approved by United, and the record evidence does not reveal if

United knew Schneider was spending seventy-one vacation days in jail. Moreover,

Schneider was disciplined for the additional four days that he was absent in accordance

with United’s policy. Therefore, like Mock and Leber, and unlike Herrera, Schneider did

not have to seek United’s approval of his participation in the work release program to

serve his sentence. Thus, United’s differential treatment of Schneider is also explained

by nondiscriminatory reasons.

       5
        “Herrera . . . had enough vacation time to cover only fourteen days of absence,
and his mandatory minimum sentence was sixty days.” App. at 48.

                                             15
       There is little record evidence about Coffey. We know “Coffey was sentenced to

180 days of home detention.” Id. at 20. We also know Coffey “successfully completed

his sentence,” and United did not terminate his employment. Id. Herrera points to no

evidence, however, that tells us when Coffey served his home-detention sentence, the

terms of that sentence, or if United knew of it. Herrera also identifies no admissible

evidence establishing that Coffey is non-Hispanic. 6 Without this evidence, Herrera

cannot show that United unlawfully discriminated against him by treating a nonprotected

employee (ostensibly Coffey) differently than it treated a protected employee (Herrera).

Herrera’s attempt to rely on United’s disparate treatment of Coffey to support a finding of

discrimination fails.

       Herrera provides no evidence from which we can conclude that any of the

comparators he identifies in support of his pretext argument were treated differently in a

way that demonstrates such “weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in [United’s] proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them unworthy of credence and hence infer that the

employer did not act for the asserted nondiscriminatory reasons.” Swackhammer, 493

F.3d at 1167 (quotation omitted). Herrera has not proven “by a preponderance of the


       6
         Herrera argues that “United has never contested that fact that [Coffey is a] white,
non-Hispanic m[a]n.” Aplt. Br. at 11 n.3. Even if that were true, the burden was on
Herrera to set forth admissible evidence of Coffey’s protected or nonprotected status at
this stage of litigation. Regardless, even if Coffey was of nonprotected national origin,
Herrera produced no evidence from which a reasonable juror could conclude that
Coffey’s home detention sentence occurred during his employment at United or that, if it
did occur during his employment, United knew of and authorized it.

                                             16
evidence that the legitimate reasons offered by” United “were not its true reasons, but

were a pretext for discrimination.” Simmons, 647 F.3d at 947. The district court

appropriately granted summary judgment for United.

                                    E) Evidentiary Issues

       Herrera raises three evidentiary issues on appeal. “At the summary judgment

stage, we review a district court’s evidentiary ruling for abuse of discretion.” Jones v.

Barnhart, 349 F.3d 1260, 1270 (10th Cir. 2003). First, he argues that the district court

incorrectly “declined to fully consider” memoranda United’s labor relations staff

prepared of interviews that United conducted with Mock, Lieber, and Schneider. Aplt.

Br. at 20–21. Second, Herrera argues that the district court improperly “took issue with

the admissibility and relevance” of a document related to Bragg titled “Alternative

Sentencing Burau [sic] Employer’s Agreement.” Id. at 21. Finally, he argues that the

district court incorrectly “suggested that the Douglas County criminal justice document”

Herrera submitted to show that Coffey served a home detention sentence was

inadmissible. Id.

       As to Herrera’s first asserted error, although the district court noted that the

interview memoranda “were not presented to the Court in a form admissible into

evidence,” App. at 45 n.6, the district court repeatedly referred to the memoranda in its

order granting United’s motion for summary judgment, id. at 45–48. Therefore, despite

the district court’s statement that the interviews were not presented in an admissible form,

it is apparent that the district court considered the interviews in its analysis. Regardless,

nothing in the memoranda changes our ruling that Herrera failed to establish pretext.

                                              17
         Herrera next argues that the district court improperly failed to consider the

document he offered titled, “Alternative Sentencing Burau [sic] Employer’s Agreement”

with Bragg. The district court stated in its ruling that “this agreement may be

inadmissible hearsay, although it is possible it could be admissible under the government

records exception.” Id. at 46–47 n.9. Because we have already determined that Bragg

does not qualify as a comparator for Herrera’s disparate treatment claim, Bragg’s

Alternative Sentencing Agreement is not relevant, and we need not determine whether

the district court’s ruling on this document constituted abuse of discretion.

         Finally, Herrera argues “the district court [incorrectly] suggested that the Douglas

County criminal justice document” about Coffey, titled, “Electronic Monitoring

Successful Termination Report,” which Herrera attached to his response to United’s

motion for summary judgment, “is inadmissible.” Aplt. Br. at 21. However, the district

court discussed the document’s significance in its disparate treatment analysis. App. at

48–49. And, as the district court correctly noted, nothing in the report indicates that

Coffey’s home detention “corresponded with Coffey’s employment with [United], that

[United] knew of such in-home detention, or even that . . . Coffey is non-Hispanic.” App.

at 49.




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                                          III

      For the reasons discussed above, we AFFIRM the district court’s grant of

summary judgment to United.



                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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