McEwen v. University of Oklaho

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 20, 2000
• Docket: 99-6214
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 20 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JUANITA CECILIA MCEWEN,

Plaintiff-Appellant,

v. No. 99-6214 (D.C. No. 98-CV-1424-M) UNIVERSITY OF OKLAHOMA (W.D. Okla.) BOARD OF REGENTS, ex rel., State of Oklahoma, a constitutional state agency,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and EBEL , 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Juanita Cecilia McEwen appeals from the district court’s grant of

summary judgment to defendant on her age discrimination and breach of contract

claims. We affirm.

Plaintiff was an employee in defendant’s Athletic Department for

twenty-two years. According to defendant, plaintiff declined a transfer to a job

in the Physical Plant and so was terminated as part of a reduction in force in the

Athletic Department. Plaintiff was fifty-three years old at the time, and alleged

that the asserted reduction in force was a pretext for age discrimination.

Defendant maintained that a budget crisis in the Athletic Department motivated

its action. Plaintiff also alleged that defendant breached her employment contract

by failing to follow prescribed policies and procedures for the termination.

Plaintiff argues on appeal that the district court erred: (1) by finding that

she failed to submit sufficient evidence to create a genuine issue of material fact

as to whether defendant’s proffered legitimate, non-discriminatory reason for

discharging her was a pretext for unlawful discrimination; and (2) by finding that

her breach of contract claim based on defendant’s policy and procedures

handbook was without merit. We review a grant of summary judgment de novo,

applying the same standard as the district court under Fed. R. Civ. P. 56(c).

See Willmar Elec. Serv., Inc. v. Cooke , No. 99-1221, 2000 WL 628191, at *2

(10th Cir. May 16, 2000). Summary judgment is appropriate if the record shows

-2- that “there is no genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Defendant is not entitled to summary judgment on plaintiff’s age

discrimination claim if she showed by a “preponderance of the evidence . . . that

the employer’s proffered explanation [for its adverse action] is unworthy of

credence.” Reeves v. Sanderson Plumbing Prods., Inc. , No. 99-536, 2000 WL

743663, at *6 (U.S. June 12, 2000) (quotation omitted). The district court

thoroughly reviewed the evidence plaintiff offered in support of her

discrimination claim, holding that it was insufficient to create a triable issue of

fact as to whether defendant’s asserted financial difficulty was a pretext for

unlawful discrimination. We are unpersuaded by plaintiff’s argument on appeal

that the district court erred in its analysis. We affirm on this issue.

In considering plaintiff’s claim that defendant breached a contract with her

by failing to follow its own policies and procedures for the termination, the

district court correctly noted that the disclaimer language in defendant’s policy

handbook defeats plaintiff’s contract claim. See Walker v. Elbert , 75 F.3d 592,

596 (10th Cir. 1996). We find no error.

-3- The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge

-4-