* This order and judgment is not binding precedent, e xcept under the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

### JUL 16 2003 

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

MARGERY BURFIELD,

Plaintiff-Appellant,

v. GALE NORTON, Secretary of the United States Department of the Interior, Defendant-Appellee. No. 02-2170 (D.C. Nos. CIV-00-990-KBM/DJS & CIV-01-199-KBM/DJS) (D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and McCONNELL , 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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 A “mixed case” is one in which a federal employee a sserts both

administrative and discrimination claims. See Williams v. Rice , 983 F.2d 177, 179 (10th Cir. 1993); see also Harms v. IRS , 321 F.3d 1001, 1005 (10th Cir. 2003) (noting that “cases are referred to as ‘mixedcases’ because the alleged unlawful discrimination is either related to or ste ms from an employment action over which the MSPB has jurisdiction”), petition for cert. filed , (U.S. June 2, 2003) (No. 02-11158). Pursuant to 5 U.S.C. § 7703( b)(2), the federal district courts have exclusive jurisdiction over appeals fro m decisions of the MSPB in mixed cases. Coffman v. Glickman , 328 F.3d 619, 621-22 (10th Cir. 2003). In a mixed case, a federal employee is entitled to a tri al de novo in the district court on the discrimination claims, while the nondiscrimi nation claims receive only a record review. Williams , 983 F.2d at 179-80. -2- Plaintiff-appellant Margery Burfield appeals from: (1) the district court’s order affirming the decision of the Merit Systems P rotection Board (MSPB) upholding defendant’s decision to terminate plainti ff’s employment as an office assistant at the Bitter Lake National Wildlife Refu ge in New Mexico; and (2) the district court’s order entering summary judgment infavor of defendant on plaintiff’s gender and age discrimination claims un der Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, an d the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Our j urisdiction arises under 28 U.S.C. § 1291. We affirm. “[I]n this mixed case 1 we review the challenged administrative determination by the MSPB under the same deferentia l Administrative Procedures Act, 5 U.S.C. § 7703(c), standard as did the district court.” Daugherty v. Thompson , 322 F.3d 1249, 1254 (10th Cir. 2003) (footnote ad ded). Thus, we2 Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties

consented to the magistrate judge conducting all pr oceedings and entering final judgment in the consolidated district court cases. -3- must affirm the MSPB’s decision upholding plaintiff’s termination unless we determine that the decision was: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtain ed without procedures required by law, rule, or regulation having been followed; o r (3) unsupported by substantial evidence.” Id. (quotation omitted). Further, we “may not substitute [our] judgment for that of the MSPB.” Williams v. Rice , 983 F.2d 177, 180 (10th Cir. 1993) (quotation omitted). In this appeal, plaintiff claims the MSPB’s decisio n was arbitrary and capricious and not supported by substantial evidenc e, and that the administrative law judge was biased against her. Having thoroughl y reviewed the record, we agree with the magistrate judge that there is no ba sis for reversing the decision of MSPB. We therefore affirm the district court’s aff irmance of the decision of the MSPB for the reasons set forth in the memorandum op inion and order filed by the magistrate judge on June 6, 2002. 2 See Aplt. Am. App. at 233-40. With respect to the district court’s entry of summary judgment in favor of defendant on plaintiff’s Title VII and ADEA claims, we review the district court’s entry of summary judgment de novo, applying the sam e legal standards as the district court. Kendrick v. Penske Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th3 In the complaints she filed in the district court, plaintiff also asserted

claims against defendant under Title VII and the AD EA relating to alleged discriminatory and retaliatory acts that occurred p rior to the termination of her employment. Plaintiff has abandoned those claims o n appeal. -4- Cir. 2000). Under Rule 56(c), summary judgment “sh all be rendered forthwith if the pleadings, depositions, answers to interrogator ies, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the lig ht most favorable to the nonmoving party.” Kendrick , 220 F.3d at 1225 (quotation omitted). Plaintiff claims the district court erred in enteri ng summary judgment on her Title VII and ADEA claims because there are gen uine issues of material fact for trial concerning whether the nondiscriminatory reasons proffered by defendant for her termination were actually pretexts for gender and age discrimination. 3 Having conducted the required de novo review of the record in this case, we agree with the magistrate judge that plaintiff has failedto establish that there are genuine issues of material fact for trial concernin g the pretext issue. Accordingly, we affirm the entry of summary judgment in favor of defendant on plaintiff’s Title VII and ADEA claims for the reaso ns set forth in the-5-

memorandum opinion and order filed by the magistrat e judge on November 13, 2001. See Aplt. Am. App. at 193-96. The judgment of the district court dismissing the c onsolidated district court cases with prejudice is AFFIRMED.

Entered for the Court

Michael W. McConnell Circuit Judge