* This order and judgment is not binding precedent, e xcept under the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

### NOV 4 1998 

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

Plaintiff-Appellant,

v. BOARD OF EDUCATION, UNIFIED 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. No. 97-3221 (D.C. No. 93-1321-JTM) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , 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 oral1 Plaintiff also asserted claims under 42 U.S.C. §§ 1 983 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.
-2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase 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 cl aim, 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 co ntract for the 1993-1994 school year. The district court assumed that plaintiff had made outa prima case, “albeit an extremely weak one,” under the burden-sh ifting 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 defen dants had presented legitimate, nondiscriminatory reasons for their action, and that plaintiff’s evidence did not demonstrate a triable issue on pretext under the bu rden-shifting analysis. The court also concluded that plaintiff had not present ed direct evidence of age discrimination. See id.-3-

On appeal, plaintiff presents and discusses evidenc e 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 al so contends that the district court looked at evidence not relied upon by the school board in making its decision, and that the court ap plied incorrect legal standards to his case, requiring him to come forward with dir ect evidence of age discrimination. See Greene v. Safeway Stores, Inc. , 98 F.3d 554, 557, 559 (10th Cir. 1996) (plaintiff may challenge employment acti on by using prima facie scheme or by presenting direct evidence of discrimi nation). Our review of the district court’s decision convinces us that these a rguments 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