### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk February 2, 1998

TO: ALL RECIPIENTS OF THE CAPTIONED ORDER AND JUDGMENT
RE: 96-2215, Sun v. Journal Publishing Co., January 16, 1998
Please be advised of the following correction to th e captioned decision: The cover page of the order and judgment lists the Defenda nt-Appellee in the case as “JOURNAL PUBLISHING CO., d/b/a/ ALBUQUERQUEJOURNAL, Defendant-Appellee.” The correct name of the Defendant-Appellee in the c ase should be “ALBUQUERQUE PUBLISHING CO., Defendant-Appellee.” A corrected copy of the cover page is attached for your convenience. Very truly yours, Patrick Fisher, Clerk

Keith Nelson Deputy Clerk

encl.* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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 

### JAN 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVE W. SUN, Plaintiff-Appellant, v. ALBUQUERQUE PUBLISHING CO., Defendant-Appellee. No. 96-2215 (D.C. No. CIV-95-0146 LH-DJS) (District of New Mexico)

ORDER AND JUDGMENT *

Before PORFILIO , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a) ; 10th Cir. R. 34.1.9 . The case is therefore ordered submitted without oral argument. Plaintiff Steve Sun brought suit against Albuquerqu e Publishing Company (APC) alleging racial discrimination, retaliation, and a hostile work environment.- 2 -

Plaintiff appeals the district court’s grant of sum mary judgment on all claims. Because plaintiff has failed to raise a genuine iss ue of material fact regarding discrimination or pretext, we affirm. “We review de novo the grant of summary judgment an d apply the same legal standards as the district court under Rule 56 .” Aramburu v. The Boeing Co. , 112 F.3d 1398, 1402 (10th Cir.1997). Summary jud gment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c)

. Plaintiff maintains APC discriminated against him w hen it: (1) suspended him for ten days; (2) placed him on disability leav e; (3) failed to promote him; and (4) terminated him. Plaintiff also maintains A PC took each of these actions in retaliation for protected activities. We review discrimination and retaliation claims und er the burden shifting analysis of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Randle v. Aurora , 69 F.3d 441, 451 (10th Cir. 1995); Burrus v. United Tel. Co. , 683 F.2d 339, 343 (10th Cir. 1982) (“The general approach to Title VII suits set out in McDonnell Douglas and Texas Department of Community Affairs is also applicable to retaliation claims.”). Plaintiff bea rs the initial burden of demonstrating a prima facie case of discrimination or retaliation. Randle , 69 F.2d at 451; Burrus , 683 F.2d at 343. Upon such a showing, the burdenshifts to- 3 -

the defendant to articulate legitimate non-discrimi natory reasons for the challenged employment decisions. Texas Dep’t of Community Affairs v. Burdine , 450 U.S. 248 (1981); Burrus , 683 F.2d at 343. If defendant satisfies this burden, the plaintiff must “show that there is a genuine dispute of material fact as to whether the employer’s proffered reason[ s] for the challenged action[s] [are] pretextual -- i.e. unworthy of belief.” Randle , 69 F.2d at 451; Burrus , 683 F.2d at 343. We will assume for purposes of this appeal plaintif f presented prima facie cases of discrimination and retaliation. In respon se, APC offered the following non-discriminatory explanations for each of its emp loyment actions: (1) APC suspended plaintiff for failure to meet with a supe rvisor; (2) APC placed plaintiff on disability leave to receive a psychiatric evaluation after a mental health counselor informed APC plaintiff had made threats o n the lives of APC employees; (3) APC did not promote plaintiff becaus e two other employees were more qualified for the position; and (4) APC termin ated plaintiff because he misappropriated company property. By articulating these reasons for its actions, APC met its burden under McDonnell Douglas ; therefore, the burden shifted to plaintiff to present evidence of pretext. Randle , 69 F.2d at 451; Burrus , 683 F.2d at 343.1 It is unclear from the briefs whether plaintiff ass erts he was subjected to a

hostile work environment. In any event, this claimwas not set forth in a short and plain statement in the complaint as required byFed. R. Civ. P. 8(a)(2); it was not argued to the district court and, consequently was not ruled upon; nor was it (continued...) - 4 - After a careful and thorough review of the briefs and the record in this case, we can find no evidence suggesting APC’s expl anations are unworthy of belief. Plaintiff’s mere assertions of pretext anddiscrimination are insufficient to survive a motion for summary judgment. See, e.g., Branson v. Price River Coal Co. , 853 F.2d 768, 772 (10th Cir. 1988) (“[P]laintiff[ ’s] mere conjecture that [his] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” ); Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 529 (10th Cir. 1994) (“Failure to co me forward with evidence of pretext will entitle the defendant to j udgment.”). Finally, plaintiff maintains his claims fall withinthe purview of the mixed motives analysis set forth in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989). To be entitled to the burden shifting analysis of Price Waterhouse , the plaintiff must present evidence “directly reflecting the alle ged [discriminatory or retaliatory] attitude” or “circumstantial evidence ... demonstrat[ing] that an improper factor was a substantial motivation in the challenged decision.” Kenworthy v. Conoco, Inc. , 979 F.2d 1462, 1471 n.5 (10th Cir. 1992). The record reveals neither. Absent this evidence we ar e compelled to affirm. 11 (...continued)

set forth in his appellant brief in an argument sup ported by authority with citations to the record. The issue, thus, is not p roperly before us, and we decline to consider it. Fed. R. App. P. 28(a)(6); Gross v. Burggraf Const. Co . 53 F.3d 1531, 1547 (10th Cir. 1995). - 5 - AFFIRMED

. ENTERED FOR THE COURT John C. Porfilio Circuit Judge