UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LEE J. LEYBA,

Plaintiff-Appellant,

v.

ALEXIS HERMAN, Secretary, United States Department of Labor,

Defendant-Appellee.

No. 00-2133

(D.C. No. CIV-99-261-M)

(D. N.M.)

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.

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 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