                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DALENE F. CHARLES,

                Plaintiff-Appellant,

    v.                                                    No. 99-3147
                                                    (D.C. No. 97-1400-JTM)
    WICHITA EAGLE AND BEACON                               (D. Kan.)
    PUBLISHING COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Dalene F. Charles appeals from an order of the district court that

granted summary judgment to defendant Wichita Eagle and Beacon Publishing

Company on her claims that her termination from employment violated the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, and breached an

implied-in-fact employment contract. We have jurisdiction under 28 U.S.C.

§ 1291, and affirm.

      Plaintiff worked in defendant’s Classified Advertising Department for

about twenty-six years. She was discharged after being held responsible for

certain mistakes, the last one being the omission of approximately 165 garage

sale ads from the May 2, 1997 edition of the newspaper. Defendant asserted

that plaintiff’s mistakes, especially the last one, were expensive and embarrassing

for the company. Plaintiff was fifty-eight years old when she was fired. She

contended that other employees shared responsibility for the referenced mistakes,

that nobody else was fired on account of them, that she did not receive the

progressive discipline the company had promised her, and that defendant’s true

motivation for her discharge was illegal age discrimination. The district court

reviewed the evidence in detail, and concluded that “the uncontroverted facts

show the primary responsibility [for the mistakes] was [plaintiff’s], and [her]

termination was not a pretext for unlawful discrimination.” Appellant’s App.,

Vol. IV at 942 (district court’s Memorandum Order at 1).


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       We review the grant of summary judgment de novo, applying the same

standard under Fed. R. Civ. P. 56 that the district court used.   See Adler v.

Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998). Summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Rule 56(c). “Supporting and opposing affidavits

shall be made on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent

to testify to the matters stated therein.” Rule 56(e).

       Plaintiff argues on appeal that the district court: (1) improperly found that

there were no genuine issues of material fact to be tried; (2) failed to construe all

inferences from the evidence in her favor as the nonmoving party; and (3) failed

to apply this court’s standards concerning the establishment of the prima facie

case and burden of proof in an age discrimination case.

       We find plaintiff’s arguments to be misplaced. The district court struck

twelve of the affidavits plaintiff presented in opposition to defendant’s motion for

summary judgment on the basis that they were not admissible under Rule 56(e).

Yet, most of the evidentiary cites in her brief on appeal are to these excluded




                                             -3-
affidavits. She does not challenge on appeal, except in the most conclusory

fashion, the district court’s exclusion of her evidence.

       In response to defendant’s summary judgment motion, it was plaintiff’s

burden to “go beyond the pleadings and ‘set forth specific facts’ that would be

admissible in evidence in the event of trial from which a rational trier of fact

could find for” her.   Adler , 144 F.3d at 671 (quoting Rule 56(e)). It was

plaintiff’s burden to demonstrate that her evidence was admissible under

Rule 56(e). See id. at 671, 672. In the face of the district court’s determination

that plaintiff’s affidavits were not admissible under Rule 56(e), it became

incumbent upon plaintiff to point out to this court why her evidence was

improperly excluded before she relied on it. Because she makes no reasoned

argument to this effect in her brief on appeal, we deem the issue waived.

See, e.g. , id. at 679; Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1547

(10th Cir. 1995).

       The result is that plaintiff’s appeal is left essentially unsupported by

citation to admissible evidence. However, “bald assertions in briefs that there

are genuine issues of material fact are insufficient to merit reversal of summary

judgment.” Adler , 144 F.3d at 679. The few remaining assertions of fact that

appear to be validly supported are insufficient to overcome the grant of summary

judgment to defendant. Thus, plaintiff’s appeal fails.


                                          -4-
     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




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