* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Tamar Stieber appeals from two summary judgment ord ers and a jury verdict in favor of her employer, Journal Publishin g Co., d/b/a Albuquerque Journal, (Journal) on discrimination and retaliatio n claims she brought against the Journal. Stieber filed this action pursuant to Tit le 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 sum mary judgment on the disparate treatment and disparate impact claims, and granted partial summary judgment on the retaliation claims, dismissing most of those cl aims. A jury trial on the remaining retaliation claims resulted in a verdict for the Journal. On appeal, Stieber contends the district court erre d in granting summary judgment on the disparate treatment claim and in gr anting partial summary judgment on the retaliation claims. We review the court’s grant of summary judgment de novo, applying the same standards as th e 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 s ubmitted on appeal, and after consideration of the parties’ arguments in light of the applicable law, we affirm the district court’s orders granting summary judgme nt for substantially the same reasons set forth in its memorandum decisions datedAugust 26, 1994, and February 9, 1995. We disagree with Stieber's conte ntion 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-3-

Notari rather than McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), was a benefit to Stieber given the absence of any evide nce to support her disparate treatment claim. Stieber also raises two issues in connection with h er jury trial. First, she contends the court improperly excluded evidence of the retaliation claims that were dismissed on summary judgment, arguing such ex clusion prevented her from showing a pattern of retaliatory action. We reviewthe 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 ord er to preserve this issue on appeal. The Journal notes the district court denie d its motion in limine on this very issue and points to evidence Stieber presentedat trial regarding the dismissed claims. Based on our review of the recor d, 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 an d no attempt to articulate reason to depart from general rule not to consider)

. Second, Stieber contends the district court erred i n refusing to give the jury her proposed instruction 39, resulting in “the fail ure 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 r efusal to give a particular instruction is only for an abuse of discretion, whi le legal objections are reviewed-4-

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 co urt did not err in refusing to give an instruction implicating the mixed motive th eory, because we agree with the Journal that there was no directevidence of retaliation. See Ramsey v. City and County of Denver , 907 F.2d 1004, 1007-08 (10th Cir. 1990)(discussin g direct vs. circumstantial evidence of discrimination), cert. denied , 506 U.S. 907 (1992). Further, the instruction given adequately stated th e law and could not have misled the jury. The judgment of the district court is AFFIRMED. Th e Journal’s request for attorney’s fees and costs on appeal is DENIED.

Entered for the Court Mary Beck Briscoe Circuit Judge