* This order and judgment is not binding precedent, e xcept under the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

1 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. 

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

### APR 7 2000 

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

MARIE A. BRADLEY,

Plaintiff-Appellant,

v. GEAR PRODUCTS, INC.,

Defendant-Appellee. No. 99-5080 (D.C. No. 97-CV-741-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.

Plaintiff Marie A. Bradley appeals from the distric t court’s grant of summary judgment to defendant on her claims of gend er discrimination arising under Title VII. 1 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.-2-

Before the district court, plaintiff raised claims under the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and Title VII. On appeal, counsel ambiguously states that “[t]his appeal commences as to the gender-related claim.” Appellant’s Br. at 1. Accordingly, we conclude plaintiff has waived any appeal as to her age discr imination claim. Further, although her EPA claim was gender-based, counsel makes no argument challenging the grounds of the district court’s rul ing rejecting that claim, namely that plaintiff was, accordingly to defendant’s payr oll records, making a higher hourly wage than her chosen “comparator.” See Appellant’s App., Vol. II at 430-31. Therefore, we conclude that any appeal as to this claim is also waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). Similarly, plaintiff raised a gender-based claim th at she was denied overtime pay in contrast to male employees and asserted a claim of hostile work environment. Because she does not challenge the district court’s analysis and rejection of these claims, however, we conclude that they also are waived. See Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990). Plaintiff was discharged from her employment with d efendant after almost sixteen years. See Appellant’s Br. at 2. She contends that her discharge was motivated by gender bias. The district court held that, even had plaintiff2 The district court did not hold, as counsel states on appeal, that plaintiff

had made out a prima facie case of gender discrimin ation. The district court did hold that plaintiff had established a prima facie c ase of age discrimination, an issue not before us on appeal. See Appellant’s App., Vol. II at 432. -3- established a prima facie case under the classic McDonnell/Douglas analysis, 2 see Bullington v. United Air Lines, Inc. , 186 F.3d 1301, 1315-16 (10th Cir. 1999), she made no showing that the reasons proffered by d efendant for her termination were a pretext for gender discrimination. See Appellant’s App., Vol. II at 433. We review the district court’s grant of summary jud gment de novo, applying the same standards as that court pursuant to Fed. R. Civ. P. 56(c). See Anderson v. Coors Brewing Co. , 181 F.3d 1171, 1175 (10th Cir. 1999). To survive summary judgment on pretext, plaintiff must demonstrate the existence of a genuine issue of fact material t o the determinations whether a discriminatory reason more likely motivated defen dant to discharge her or whether defendant’s proffered reasons for her disch arge are unworthy of belief. See Jones v. Denver Post Corp. , 203 F.3d 748, 753 (10th Cir. 2000); Bullington , 186 F.3d at 1317. On appeal, plaintiff contends on ly that the district court failed to consider 1) deposition statements made by defend ant’s managers, and 2) a memorandum summarizing plaintiff’s personnel file. See Appellant’s Br. at 8 (citing Appellant’s App., Vol. II at 354-55). Uponreview of these items, we agree with the district court that this evidence do es not demonstrate a genuine-4-

issue of material fact on the issue of pretext. “P laintiff’s mere conjecture that her employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Jones , 203 F.3d at 754 (quotation and citation omitted). Plaintiff also argues that “there is significant ev idence that other gender-based reasons also played a significant role , giving rise to a jury’s application of the mixed motive analysis.” Appellant’s Br. at 8. However, we agree with defendant that plaintiff did not presenta mixed motive case to the district court. See Appellee’s Br. at 18-19. We will not consider newtheories on appeal except under the most unusual circumstanc es not present here. See Smith v. Rogers Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997). The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge