* This order and judgment is not binding precedent, except under the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. 

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 10/21/96

FOR THE TENTH CIRCUIT

TAMAR STIEBER,

Plaintiff-Appellant,

v.

JOURNAL PUBLISHING

COMPANY, doing business as

Albuquerque Journal,

Defendant- Appellee.

No. 95-2094

(D.C. No. CIV-93-648-LH)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER,** District

Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of
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this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Tamar Stieber appeals from two summary judgment orders and a jury

verdict in favor of her employer, Journal Publishing Co., d/b/a Albuquerque

Journal, (Journal) on discrimination and retaliation claims she brought against the

Journal. Stieber filed this action pursuant to Title VII, 42 U.S.C. § 2000e to e-5,

asserting claims of disparate treatment, disparate impact, and retaliation. The

district court granted the Journal’s motion for summary judgment on the disparate

treatment and disparate impact claims, and granted partial summary judgment on

the retaliation claims, dismissing most of those claims. A jury trial on the

remaining retaliation claims resulted in a verdict for the Journal. 

On appeal, Stieber contends the district court erred in granting summary

judgment on the disparate treatment claim and in granting partial summary

judgment on the retaliation claims. We review the court’s grant of summary

judgment de novo, applying the same standards as the district court pursuant to

Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.

1995). After careful review of the entire record submitted on appeal, and after

consideration of the parties’ arguments in light of the applicable law, we affirm

the district court’s orders granting summary judgment for substantially the same

reasons set forth in its memorandum decisions dated August 26, 1994, and

February 9, 1995. We disagree with Stieber's contention that the district court's

application of Notari v. Denver Water Dept., 971 F.2d 585, 588-90 (10th Cir.

1992), to her disparate treatment claim was error. The court's application of
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Notari rather than McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), was

a benefit to Stieber given the absence of any evidence to support her disparate

treatment claim.

Stieber also raises two issues in connection with her jury trial. First, she

contends the court improperly excluded evidence of the retaliation claims that

were dismissed on summary judgment, arguing such exclusion prevented her from

showing a pattern of retaliatory action. We review the district court’s evidentiary

ruling only for an abuse of discretion. Cartier v. Jackson, 59 F.3d 1046, 1048

(10th Cir. 1995). The Journal argues the district court did not rule such evidence

was to be excluded, and, if it did, Stieber failed to object or submit an offer of

proof as to evidence she intended to present in order to preserve this issue on

appeal. The Journal notes the district court denied its motion in limine on this

very issue and points to evidence Stieber presented at trial regarding the

dismissed claims. Based on our review of the record, we agree that this issue was

not presented to the district court, and therefore decline to consider appellant’s

arguments. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992) (argument not raised before district court and no attempt to articulate

reason to depart from general rule not to consider). 

Second, Stieber contends the district court erred in refusing to give the jury

her proposed instruction 39, resulting in “the failure of the Court’s instruction to

shift the burden of proof to Defendant as required in a mixed motive case.” 

Appellant’s Br. at 20. Our review of the court’s refusal to give a particular

instruction is only for an abuse of discretion, while legal objections are reviewed
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de novo. See United States v. Lee, 54 F.3d 1534, 1536 (10th Cir.), cert. denied,

116 S. Ct. 247 (1995). We conclude the district court did not err in refusing to

give an instruction implicating the mixed motive theory, because we agree with

the Journal that there was no direct evidence of retaliation. See Ramsey v. City

and County of Denver, 907 F.2d 1004, 1007-08 (10th Cir. 1990)(discussing direct

vs. circumstantial evidence of discrimination), cert. denied, 506 U.S. 907 (1992). 

Further, the instruction given adequately stated the law and could not have misled

the jury.

The judgment of the district court is AFFIRMED. The Journal’s request for

attorney’s fees and costs on appeal is DENIED. 

Entered for the Court

Mary Beck Briscoe 

Circuit Judge