The full case caption appears at the
end of this opinion. ORDER AND JUDGMENT
[FOOTNOTE 1] Plaintiff Marie A. Bradley appeals from the district court’s grant of summary judgment to defendant on her claims of genderdiscrimination arising under Title VII.
[FOOTNOTE 2] We have jurisdiction over this appeal pursuant to 28 U.S.C. � 1291. 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 discrimination claim. Further,although her EPA claim was gender-based, counsel makes no argument challenging the grounds of the district court’s rulingrejecting that claim, namely that plaintiff was, accordingly to defendant’s payroll records, making a higher hourly wage than herchosen “comparator.” See Appellant’s App., Vol. II at 430-31. Therefore, we conclude that any appeal as to this claim is alsowaived. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). Similarly, plaintiff raised agender-based claim that she was denied overtime pay in contrast to male employees and asserted a claim of hostile workenvironment. Because she does not challenge the district court’s analysis and rejection of these claims, however, we conclude thatthey also are waived. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990). Plaintiff was discharged from her employment with defendant after almost sixteen years. See Appellant’s Br. at 2. She contendsthat her discharge was motivated by gender bias. The district court held that, even had plaintiff established a prima facie caseunder the classic McDonnell/Douglas analysis,
[FOOTNOTE 3] 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 defendant 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 judgment de novo, applying the samestandards 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 to thedeterminations whether a discriminatory reason more likely motivated defendant to discharge her or whether defendant’s profferedreasons for her discharge 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 only that the district court failed to consider 1) deposition statementsmade by defendant’s managers, and 2) a memorandum summarizing plaintiff’s personnel file. See Appellant’s Br. at 8 (citingAppellant’s App., Vol. II at 354-55). Upon review of these items, we agree with the district court that this evidence does notdemonstrate a genuine issue of material fact on the issue of pretext. “Plaintiff’s mere conjecture that her employer’s explanation isa pretext for intentional discrimination is an insufficient basis for denial of summary judgment.” Jones, 203 F.3d at 754 (quotationand citation omitted). Plaintiff also argues that “there is significant evidence that other gender-based reasons also played a significant role, giving rise toa jury’s application of the mixed motive analysis.” Appellant’s Br. at 8. However, we agree with defendant that plaintiff did notpresent a mixed motive case to the district court. See Appellee’s Br. at 18-19. We will not consider new theories on appeal exceptunder the most unusual circumstances 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
FOOTNOTES FN1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateralestoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be citedunder the terms and conditions of 10th Cir. R. 36.3.
FN2 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for adecision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore orderedsubmitted without oral argument.
FN3 The district court did not hold, as counsel states on appeal, that plaintiff had made out a prima facie case of genderdiscrimination. The district court did hold that plaintiff had established a prima facie case of age discrimination, an issue not beforeus on appeal. See Appellant’s App., Vol. II at 432.
Bradley v. Gear Products, Inc. United States Court of Appeals for the Tenth Circuit Marie A. Bradley, Plaintiff-Appellant, v. Gear Products, Inc., Defendant-Appellee. No. 99-5080 Filed: April 7, 2000 Appeal from District Court for the Northern District of Oklahoma (D.C. No. 97-CV-741-K) (N.D. Okla.) Before: BALDOCK, BRISCOE, and LUCERO, Circuit Judges.
