Allen v. Board of Education

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 4 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

CARLTON ALLEN,

Plaintiff-Appellant,

v. No. 97-3221
(D.C. No. 93-1321-JTM)
BOARD OF EDUCATION, UNIFIED (D. Kan.)
SCHOOL DISTRICT 436; JACKIE
FREISBERG, JOYE NUNNELEY,
TIM RIGDON, REX BARRETT,
TIM CARSON and HAROLD L.
HOWARD, individually and in
their official capacity,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

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

*
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Carlton Allen appeals from the district court’s grant of summary

judgment to defendants on his age discrimination claim, filed pursuant to the Age

Discrimination in Employment Act (ADEA). 1
Plaintiff, formerly a high school

principal, alleged that defendants, a school board and its members, violated the

ADEA when they voted not to renew his employment contract for the 1993-1994

school year. The district court assumed that plaintiff had made out a prima case,

“albeit an extremely weak one,” under the burden-shifting analysis set out in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). See

Appellant’s App., Vol. I, at 54. However, the court determined that the ADEA

claim should be dismissed. It concluded that defendants had presented legitimate,

nondiscriminatory reasons for their action, and that plaintiff’s evidence did not

demonstrate a triable issue on pretext under the burden-shifting analysis. The

court also concluded that plaintiff had not presented direct evidence of age

discrimination. See id.

1
Plaintiff also asserted claims under 42 U.S.C. §§ 1983 and 1985, and state
law. The district court dismissed these claims, as well as several original
defendants, following Plaintiff’s stip ulation. See Appellant’s App., Vol. I, at 40.

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 On appeal, plaintiff presents and discusses evidence supporting various

arguments which were not before the district court on summary judgment. As a

general rule, we will not consider arguments not raised below. See Walker v.

Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Plaintiff also

contends that the district court looked at evidence not relied upon by the school

board in making its decision, and that the court applied incorrect legal standards

to his case, requiring him to come forward with direct evidence of age

discrimination. See Greene v. Safeway Stores, Inc. , 98 F.3d 554, 557, 559 (10th

Cir. 1996) (plaintiff may challenge employment action by using prima facie

scheme or by presenting direct evidence of discrimination). Our review of the

district court’s decision convinces us that these arguments lack merit. For

substantially the reasons set forth in the district court’s Memorandum and Order

dated June 25, 1997, the judgment of the United States District Court for the

District of Kansas is AFFIRMED.

Entered for the Court

Robert H. Henry
Circuit Judge

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