* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 8 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PHILLIP ARCHULETA,

Plaintiff-Appellant,

v. 12TH JUDICIAL DISTRICT, PROBATION DEPARTMENT, STATE OF COLORADO,

Defendant-Appellee. No. 98-1204 (D.C. No. 96-S-2989) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Phillip Archuleta appeals the d istrict court’s summary judgment on his employment discrimination claims in favor of his former employer, the State of Colorado Probation Departmen t for the 12th Judicial District (Probation Department). Because plaintiff has not demonstrated a genuine dispute of material fact and the employeris entitled to judgment as a matter of law, we affirm. On February 1, 1994, plaintiff was hired by the Pro bation Department to work as a contract employee with the intensive supe rvision program and to perform some probation officer duties. On April 1, 1994, upon plaintiff’s request, he was transferred to a full-time probation officerposition. In June 1994, several incidents occurred: (1) plaintiff filed a motion f or a continuance in the state district court which was of such poor quality that the court returned it to the probation office to be redone; (2) plaintiff reques ted a continuance, alleging he would be out of the jurisdiction on the day of sent encing, but later admitting to the court that he requested the continuance because he had not finished the presentence report; and (3) plaintiff called in sic k, but later admitted he was not sick and simply had had “too much weekend.” As a r esult, plaintiff’s supervisor gave plaintiff an unsatisfactory performance evaluation, identified five areas requiring improvement, and extended his probationary period. In July 1994,-3-

plaintiff missed a filing deadline for a presentenc e report. After his supervisor was notified, she completed the report herself and asked plaintiff to resign. Plaintiff brought this employment discrimination ac tion pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e through 2000e-16, alleging discrimination based on national origin and gender. The district court granted summary judgmen t in favor of the employer, finding (1) plaintiff’s § 1981 claim was barred bythe statute of limitations; (2) the evidence was insufficient to make a prima f acie showing in support either of his discrimination claims; and (3) even if plain tiff could make a prima facie case regarding his discrimination claims, he could not rebut defendant’s showing of a legitimate nondiscriminatory reason for the employment decisions. On appeal, plaintiff challenges only the grant of s ummary judgment on his Title VII claims. He argues the district court err ed by disregarding evidence of discrimination in the record and by impermissibly w eighing the evidence. We review a grant of summary judgment de novo, applyin g the same legal standards as those used by the district court. See Sundance Assocs., Inc. v. Reno , 139 F.3d 804, 807 (10th Cir. 1998). Summary judgment is app ropriate “if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.-4-

P. 56(c). We examine the factual record and reason able inferences therefrom in the light most favorable to the party opposing summary judgment. See Sundance , 139 F.3d at 807. After carefully reviewing the record and the briefs in light of these standards, we conclude the district court correctly found plaintiff’s evidence insufficient to raise a triable issue of gender or national origin discrimination. We therefore affirm the summary judgment for the re asons stated in the district court’s well-reasoned Memorandum Opinion and Order, dated May 8, 1998. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge