                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 16 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MARGERY BURFIELD,

                Plaintiff-Appellant,

    v.                                                   No. 02-2170
                                               (D.C. Nos. CIV-00-990-KBM/DJS
    GALE NORTON, Secretary of the                 & CIV-01-199-KBM/DJS)
    United States Department of the                        (D. N.M.)
    Interior,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision 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.




*
      This order and judgment is not binding precedent, except under the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-appellant Margery Burfield appeals from: (1) the district court’s

order affirming the decision of the Merit Systems Protection Board (MSPB)

upholding defendant’s decision to terminate plaintiff’s employment as an office

assistant at the Bitter Lake National Wildlife Refuge in New Mexico; and (2) the

district court’s order entering summary judgment in favor of defendant on

plaintiff’s gender and age discrimination claims under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634. Our jurisdiction arises under

28 U.S.C. § 1291. We affirm.

       “[I]n this mixed case   1
                                   we review the challenged administrative

determination by the MSPB under the same deferential Administrative Procedures

Act, 5 U.S.C. § 7703(c), standard as did the district court.”    Daugherty v.

Thompson , 322 F.3d 1249, 1254 (10th Cir. 2003) (footnote added). Thus, we



1
       A “mixed case” is one in which a federal employee asserts both
administrative and discrimination claims.   See Williams v. Rice , 983 F.2d 177,
179 (10th Cir. 1993); see also Harms v. IRS , 321 F.3d 1001, 1005 (10th Cir.
2003) (noting that “cases are referred to as ‘mixed cases’ because the alleged
unlawful discrimination is either related to or stems from an employment action
over which the MSPB has jurisdiction”),    petition for cert. filed , (U.S. June 2,
2003) (No. 02-11158). Pursuant to 5 U.S.C. § 7703(b)(2), the federal district
courts have exclusive jurisdiction over appeals from decisions of the MSPB in
mixed cases. Coffman v. Glickman , 328 F.3d 619, 621-22 (10th Cir. 2003). In a
mixed case, a federal employee is entitled to a trial de novo in the district court
on the discrimination claims, while the nondiscrimination claims receive only a
record review. Williams , 983 F.2d at 179-80.

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must affirm the MSPB’s decision upholding plaintiff’s termination unless we

determine that the decision was: “(1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (2) obtained without procedures required

by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.”    Id. (quotation omitted). Further, we “may not substitute

[our] judgment for that of the MSPB.”       Williams v. Rice , 983 F.2d 177, 180 (10th

Cir. 1993) (quotation omitted).

       In this appeal, plaintiff claims the MSPB’s decision was arbitrary and

capricious and not supported by substantial evidence, and that the administrative

law judge was biased against her. Having thoroughly reviewed the record, we

agree with the magistrate judge that there is no basis for reversing the decision of

MSPB. We therefore affirm the district court’s affirmance of the decision of the

MSPB for the reasons set forth in the memorandum opinion and order filed by the

magistrate judge on June 6, 2002.    2
                                         See Aplt. Am. App. at 233-40.

       With respect to the district court’s entry of summary judgment in favor of

defendant on plaintiff’s Title VII and ADEA claims, we review the district court’s

entry of summary judgment de novo, applying the same legal standards as the

district court.   Kendrick v. Penske Transp. Servs., Inc.   , 220 F.3d 1220, 1225 (10th


2
      Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b), the parties
consented to the magistrate judge conducting all proceedings and entering final
judgment in the consolidated district court cases.

                                             -3-
Cir. 2000). Under Rule 56(c), summary judgment “shall be rendered forthwith 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.” Fed. R. Civ. P. 56(c). “When applying this standard, we view the evidence

and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.”    Kendrick , 220 F.3d at 1225 (quotation omitted).

       Plaintiff claims the district court erred in entering summary judgment on

her Title VII and ADEA claims because there are genuine issues of material fact

for trial concerning whether the nondiscriminatory reasons proffered by defendant

for her termination were actually pretexts for gender and age discrimination.     3



Having conducted the required de novo review of the record in this case, we agree

with the magistrate judge that plaintiff has failed to establish that there are

genuine issues of material fact for trial concerning the pretext issue.

Accordingly, we affirm the entry of summary judgment in favor of defendant on

plaintiff’s Title VII and ADEA claims for the reasons set forth in the




3
      In the complaints she filed in the district court, plaintiff also asserted
claims against defendant under Title VII and the ADEA relating to alleged
discriminatory and retaliatory acts that occurred prior to the termination of her
employment. Plaintiff has abandoned those claims on appeal.

                                            -4-
memorandum opinion and order filed by the magistrate judge on November 13,

2001. See Aplt. Am. App. at 193-96.

      The judgment of the district court dismissing the consolidated district court

cases with prejudice is AFFIRMED.


                                                   Entered for the Court


                                                   Michael W. McConnell
                                                   Circuit Judge




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