                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 9 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    LEE J. LEYBA,

                  Plaintiff-Appellant,

    v.                                                    No. 00-2133
                                                    (D.C. No. CIV-99-261-M)
    ALEXIS HERMAN, Secretary, United                       (D. N.M.)
    States Department of Labor,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRORBY , KELLY , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
       Appellant Lee J. Leyba, proceeding pro se, challenges the           district court ’s

grant of summary judgment to appellee, his former employer, on his claim of age

discrimination.   1
                      The basis for appellant’s suit was his employer’s denial of a

promotion to a supervisory position in favor of another, younger, candidate. Our

jurisdiction over this appeal arises from 28 U.S.C. § 1291. We review the                 district

court ’s grant of summary judgment de novo, applying the same standard as that

court did pursuant to Fed. R. Civ. P. 56(c).         Simms v. Okla. ex rel. Dep’t of

Mental Health & Substance Abuse Servs.          , 165 F.3d 1321, 1326 (10th Cir.),        cert.

denied , 120 S. Ct. 53 (1999).

       On appeal, appellant argues with the          district court ’s conclusion that,

despite meeting the standards for a prima facie case of age discrimination,

appellant had presented no admissible evidence demonstrating that appellee’s

reasons for hiring the successful candidate were a pretext for age discrimination.

He contends that the affidavit supporting appellee’s motion for summary

judgment is itself inadmissible, and argues that he was the better qualified

applicant. He alleges prior instances of discrimination by appellee, and concludes



1
       Appellant’s complaint also set out claims of retaliation, hostile work
environment and constructive discharge, and requested punitive damages against
appellee. The district court ruled that these additional claims were unsupported
and that the request for punitive damages was not authorized by law. Appellant
does not challenge these rulings on appeal and has therefore waived the issues.
See State Farm Fire & Cas. Co. v. Mhoon    , 31 F.3d 979, 984 n.7 (10th Cir. 1994).

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with unsupported allegations that judges and attorneys in New Mexico are biased

against pro se litigants in federal court.

      After careful review of the entire record on appeal in light of appellant’s

arguments, we conclude that the    district court correctly decided this case.

Appellant’s arguments misconstrue the        district court ’s ruling and misunderstand

the law applicable to his claims. Therefore, for substantially the same reasons

given by the district court in its Memorandum Opinion and Order dated March 24,

2000, the judgment of the United States District Court for the District of New

Mexico is AFFIRMED. The mandate shall issue forthwith.



                                                         Entered for the Court



                                                         Paul J. Kelly, Jr.
                                                         Circuit Judge




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