                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              MAR 24 2000
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 BEATRICE A. ARMENDARIZ,

          Plaintiff-Appellant,
 v.

 CITY AND COUNTY OF DENVER, a
 municipal corporation; THE OFFICE OF
 EMPLOYEE ASSISTANCE, a
 Department of the Executive Branch of
                                                             No. 99-1006
 the government of the City and County of
                                                     (D.C. No. 97-WY-2657-CB)
 Denver; ANDREW WALLACH,
                                                        (District of Wyoming)
 individually and in his official capacity as
 the Assistant to the Mayor of the City and
 County of Denver; CHRISTOPHER
 WEIMER, individually and in his capacity
 as the Director of the Office of Employee
 Assistance,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ROGERS,
Senior District Judge**.


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
      **
         Honorable Richard D. Rogers, Senior District Judge, United States District Court
for the District of Kansas, sitting by designation.
       Beatrice A. Armendariz (“Ms. Armendariz”) brought suit in the United States

District Court for the District of Colorado against her erstwhile employer, the City and

County of Denver, Andrew Wallach, assistant to the Mayor of Denver, and Christopher

Weimer, director of the Office of Employee Assistance for Denver, alleging numerous

violations of the Civil Rights Act of 1866, 42 U.S.C. §1981; the Civil Rights Act of

1871, 42 U.S.C. §1983; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et.

seq. as amended by the Civil Rights Act of 1991; the Equal Pay Act of 1963, 29 U.S.C. §

206(d); the Age Discrimination in Employment Act, 29 U.S.C. §621 et. seq.; and the

Americans with Disabilities Act, 42 U.S.C. §12101 et .seq.

       In her complaint, Ms. Armendariz described herself as a “forty-six year old female

citizen of the United States of Mexican-American and Native American descent who,

during the times relevant to this complaint, suffered from the mental maladies of

depression and situational anxiety disorder.” The defendants in due time filed an answer

and an amended answer to the complaint. Discovery ensued. Thereafter the defendants

filed a motion for summary judgment alleging, inter alia, that there was no genuine issue

of material fact. In support thereof, defendants filed a 255 page memorandum brief

which included extended excerpts from depositional testimony and numerous affidavits.

Ms. Armendariz filed a 105 page brief in opposition to the motion for summary

judgment, with numerous attachments, to which the defendants filed a 31 page reply

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brief. After oral argument, the district court in a 28 page order granted defendants’

motion for summary judgment and dismissed all claims with prejudice. In so doing, the

district court carefully analyzed the evidentiary matter before it, concluding that as to

certain claims there was no adverse employment action and holding that, as to other

claims, even assuming that Ms. Armendariz had made a prima facie showing, the

defendants had articulated legitimate non-discriminatory reasons for their adverse

employment actions and that Ms. Armendariz had failed to show pretext. Ms.

Armendariz, incidentally, was eventually terminated.

       The facts of the case are fully set forth in the district court’s unpublished order

and need not be set forth here, since the facts are not really in dispute. In his brief,

counsel for Ms. Armendariz describes the “Issues Presented for Review” on appeal as

follows:

                 The issues presented for review by this Court are: (1)
              whether the plaintiff-appellant presented sufficient evidence
              of pretext to create genuine issues of material fact regarding
              the defendant-appellee’s proffered explanations for the
              adverse employment actions taken against the plaintiff-
              appellant and (2) whether the district court erred in granting
              the defendant-appellee’s motion for summary judgment.
              Since these two issue are inextricably interwoven, the
              plaintiff-appellant will make one argument which is
              applicable to both.

       Also in his brief for Ms. Armendariz, counsel’s “Summary of the

Argument”, in its entirety, reads as follows:

                 The plaintiff submits that she presented sufficient

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              evidence of pretext to the court below to overcome the
              defendants’ articulated reasons regarding the adverse
              employment actions of which she complained thus creating
              genuine issues for determination by a jury.

       From the foregoing we conclude that the only issue in this appeal is whether in

granting summary judgment for the defendants the district court erred in holding that Ms.

Armendariz failed to make a sufficient showing that the defendants’ articulated non-

discriminatory reasons for their adverse employment actions were, in fact, not their true

reasons and were, indeed, pretextual.1 In this regard, in Cone v. Longmont United

Hospital Ass’n, 14 F.3d 526, 529 (10th Cir. 1994), we spoke as follows:

                  If the plaintiff satisfies the prima facie requirements under
              the ADEA, then the case enters the next stage. In this second
              stage, the burden of production moves to the defendant. The
              defendant has to present a legitimate nondiscriminatory
              reason for its action. If the defendant articulates a legitimate,
              nondiscriminatory reason for its action, then the burden of
              persuasion moves back to the plaintiff. In this third stage of
              the discrimination analysis, the plaintiff must show that age
              was a determinative factor in the defendant’s employment
              decision, or show that the defendant’s explanation for its
              action was merely pretext. Failure to come forward with
              evidence of pretext will entitle the defendant to judgment
              (citations omitted).


       1
        At oral argument, counsel raised certain matter that was not raised in Ms.
Armendariz’ brief. We generally do not consider issues raised for the first time in oral
argument and which were not raised in the briefs. Thomas v. Denny’s, Inc., 111 F.3d
1506, 1510 n.5 (10th Cir.) cert. denied, 522 U.S. 1028 (1997), citing Durham v. Xerox
Corp., 18 F.3d 836, 841 n.4 (10th Cir.) cert. denied, 513 U.S. 819 (1994). Other matter,
though casually mentioned in Ms. Armendariz’ brief, was not “adequately briefed,” and is
therefore deemed waived. Gross v. Burggraf Const. Co., 53 F.3d 1531, 1547 (10th Cir.
1995).

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       And in the very recent case of Perry v. Woodward, 199 F.3d 1126, 1135 (10th
Cir.

1999), we stated:

                  A plaintiff relying on McDonnell Douglas bears the initial
              burden of establishing a prima facie case by a preponderance
              of the evidence. One way a plaintiff may establish a prima
              facie case of wrongful termination is by showing that: (1) she
              belongs to a protected class; (2) she was qualified for her job;
              (3) despite her qualifications, she was discharged; and (4) the
              job was not eliminated after her discharge. If the plaintiff
              establishes her prima facie case, a rebuttable presumption
              arises that the defendant unlawfully discriminated against her.
              The defendant must then articulate a legitimate,
              nondiscriminatory reason for the adverse employment action
              suffered by the plaintiff. If the defendant is able to articulate
              a valid reason, the plaintiff can avoid summary judgment only
              if she is able to show that a genuine dispute of material fact
              exists as to whether the defendant’s articulated reason was
              pretextual (citations omitted).

       Our study of the present record leads us to conclude that the district court did not

err in holding that Ms. Armendariz failed to show that the defendants proffered reasons

for their adverse employment actions, which reasons Ms. Armendariz apparently

concedes were facially legitimate non-discriminatory reasons, were “pretextual”. On this

basis, we affirm.

       Judgment affirmed.

                                          Entered for the Court

                                          Robert H. McWilliams
                                          Senior Circuit Judge



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