F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 7 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARIE A. BRADLEY,
Plaintiff-Appellant,
v. No. 99-5080
(D.C. No. 97-CV-741-K)
GEAR PRODUCTS, INC., (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.
Plaintiff Marie A. Bradley appeals from the district court’s grant of
summary judgment to defendant on her claims of gender discrimination arising
under Title VII. 1
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291.
*
This order and judgment is not binding precedent, except under the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.
1
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(G). The case is therefore
ordered submitted without oral argument.
Before the district court, plaintiff raised claims under the Age
Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and
Title VII. On appeal, counsel ambiguously states that “[t]his appeal commences
as to the gender-related claim.” Appellant’s Br. at 1. Accordingly, we conclude
plaintiff has waived any appeal as to her age discrimination claim. Further,
although her EPA claim was gender-based, counsel makes no argument
challenging the grounds of the district court’s ruling rejecting that claim, namely
that plaintiff was, accordingly to defendant’s payroll records, making a higher
hourly wage than her chosen “comparator.” See Appellant’s App., Vol. II
at 430-31. Therefore, we conclude that any appeal as to this claim is also waived.
See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
Similarly, plaintiff raised a gender-based claim that she was denied overtime pay
in contrast to male employees and asserted a claim of hostile work environment.
Because she does not challenge the district court’s analysis and rejection of these
claims, however, we conclude that they also are waived. See Abercrombie v. City
of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990).
Plaintiff was discharged from her employment with defendant after almost
sixteen years. See Appellant’s Br. at 2. She contends that her discharge was
motivated by gender bias. The district court held that, even had plaintiff
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established a prima facie case under the classic McDonnell/Douglas analysis, 2
see Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1315-16 (10th Cir. 1999),
she made no showing that the reasons proffered by defendant for her termination
were a pretext for gender discrimination. See Appellant’s App., Vol. II at 433.
We review the district court’s grant of summary judgment de novo, applying
the same standards as that court pursuant to Fed. R. Civ. P. 56(c). See Anderson
v. Coors Brewing Co. , 181 F.3d 1171, 1175 (10th Cir. 1999).
To survive summary judgment on pretext, plaintiff must demonstrate
the existence of a genuine issue of fact material to the determinations whether
a discriminatory reason more likely motivated defendant to discharge her or
whether defendant’s proffered reasons for her discharge are unworthy of belief.
See Jones v. Denver Post Corp. , 203 F.3d 748, 753 (10th Cir. 2000); Bullington ,
186 F.3d at 1317. On appeal, plaintiff contends only that the district court failed
to consider 1) deposition statements made by defendant’s managers, and
2) a memorandum summarizing plaintiff’s personnel file. See Appellant’s Br. at 8
(citing Appellant’s App., Vol. II at 354-55). Upon review of these items, we
agree with the district court that this evidence does not demonstrate a genuine
2
The district court did not hold, as counsel states on appeal, that plaintiff
had made out a prima facie case of gender discrimination. The district court did
hold that plaintiff had established a prima facie case of age discrimination, an
issue not before us on appeal. See Appellant’s App., Vol. II at 432.
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issue of material fact on the issue of pretext. “Plaintiff’s mere conjecture that her
employer’s explanation is a pretext for intentional discrimination is an
insufficient basis for denial of summary judgment.” Jones , 203 F.3d at 754
(quotation and citation omitted).
Plaintiff also argues that “there is significant evidence that other
gender-based reasons also played a significant role, giving rise to a jury’s
application of the mixed motive analysis.” Appellant’s Br. at 8. However, we
agree with defendant that plaintiff did not present a mixed motive case to the
district court. See Appellee’s Br. at 18-19. We will not consider new theories
on appeal except under the most unusual circumstances not present here.
See Smith v. Rogers Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997).
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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