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 the captioned decision:

The cover page of the order and judgment lists the Defendant-Appellee in the

case as “JOURNAL PUBLISHING CO., d/b/a/ ALBUQUERQUE JOURNAL,

Defendant-Appellee.” 

The correct name of the Defendant-Appellee in the case 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 This order and judgment is not binding precedent, except under the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 collateral estoppel. This court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist 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 Albuquerque Publishing Company

(APC) alleging racial discrimination, retaliation, and a hostile work environment. 
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Plaintiff appeals the district court’s grant of summary judgment on all claims. 

Because plaintiff has failed to raise a genuine issue of material fact regarding

discrimination or pretext, we affirm.

“We review de novo the grant of summary judgment and 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 judgment 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 when it: (1) suspended

him for ten days; (2) placed him on disability leave; (3) failed to promote him;

and (4) terminated him. Plaintiff also maintains APC took each of these actions

in retaliation for protected activities. 

We review discrimination and retaliation claims under 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 bears 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 burden shifts to
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the defendant to articulate legitimate non-discriminatory 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 plaintiff presented prima facie

cases of discrimination and retaliation. In response, APC offered the following

non-discriminatory explanations for each of its employment actions: (1) APC

suspended plaintiff for failure to meet with a supervisor; (2) APC placed plaintiff

on disability leave to receive a psychiatric evaluation after a mental health

counselor informed APC plaintiff had made threats on the lives of APC

employees; (3) APC did not promote plaintiff because two other employees were

more qualified for the position; and (4) APC terminated 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 asserts he was subjected to a

hostile work environment. In any event, this claim was not set forth in a short

and plain statement in the complaint as required by Fed. R. Civ. P. 8(a)(2); it was

not argued to the district court and, consequently was not ruled upon; nor was it

(continued...)

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After a careful and thorough review of the briefs and the record in this

case, we can find no evidence suggesting APC’s explanations are unworthy of

belief. Plaintiff’s mere assertions of pretext and discrimination 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 come forward with

evidence of pretext will entitle the defendant to judgment.”). 

Finally, plaintiff maintains his claims fall within the 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 alleged [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 are compelled to affirm.1
1

(...continued)

set forth in his appellant brief in an argument supported by authority with

citations to the record. The issue, thus, is not properly 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).

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AFFIRMED.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge