Matthews v. Kennecott Corp.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 28 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

DAVID MATTHEWS,

Plaintiff-Appellant,

v. No. 99-4133
(D.C. No. 97-CV-549)
KENNECOTT COPPER (D. Utah)
CORPORATION,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , 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.

*
This order and judgment is not binding precedent, except under the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 David Matthews appeals from summary judgment

entered in favor of defendant-appellee Kennecott Utah Copper Corporation on

his discrimination claim brought pursuant to Title I of the Americans with

Disabilities Act, 42 U.S.C. §§ 12101-17 (ADA) and on his state law claims for

breach of contract, breach of the covenant of good faith and fair dealing,

intentional infliction of emotional distress, and negligent supervision. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Appellant’s claims arose from his belief that he was transferred, demoted,

denied jobs, and terminated because he suffered from a learning disability.

During the discovery period, appellant stipulated to dismissal with prejudice of

his claim for retaliation under the ADA and of his state law claims for defamation

and wrongful discharge. See Appellee’s Supp. App. at 27-28. Thereafter,

appellee moved for summary judgment on the remaining claims. After a hearing

on the motion, appellant stipulated to dismissal of his state law claims for breach

of contract, breach of the covenant of good faith and fair dealing, intentional

infliction of emotional distress, and negligent supervision. See id. at 174.

Despite the stipulation, the district court also analyzed those claims on their

merits in the memorandum opinion and order and granted summary judgment

on them.

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 The district court granted summary judgment on appellant’s discrimination

claim because he failed to timely file his claims with the Equal Employment

Opportunity Commission (EEOC) as required by § 12117(a) of the ADA and

42 U.S.C. § 2000e-5. See id. at 183-84. Construing his arguments on appeal

broadly, appellant seems to argue that his failure to properly file his EEOC claims

should be equitably tolled because: (1) his learning disability precluded him from

knowing the proper way to proceed; and (2) he received “wrong advice” from

counsel. A review of the record shows that appellant never raised these two

arguments to the district court and the court therefore did not consider them

when granting summary judgment. We will not consider these arguments now.

See Smith v. Rogers Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997)

(stating that this court considers matters not raised or argued in the trial court

only in the “most unusual circumstances,” such as in questions regarding

jurisdiction or sovereign immunity or where public interest is implicated or

manifest injustice would result) (quotation omitted).

In his third issue on appeal, appellant argues that his claim for wrongful

discharge should go to trial because appellee wrongfully terminated him for

absences occurring while he was on leave under the Family and Medical Leave

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Act. 1 Because appellant had previously stipulated to dismissal of his wrongful

discharge claim, and the district court had earlier dismissed that claim with

prejudice, the district court did not address the wrongful discharge claim other

than noting that it had previously been dismissed. See Appellee’s Supp. App.

at 175. Having stipulated in district court to the dismissal of his wrongful

discharge claim, appellant is now precluded from challenging the dismissal of

that claim. See Smith , 128 F.3d at 1386.

The judgment of the United States District Court for the District of Utah

is AFFIRMED.

Entered for the Court

Deanell Reece Tacha
Circuit Judge

1
We note that plaintiff’s claim for wrongful discharge was based on his
assertion that he was terminated “solely as a consequence of reporting the
discrimination to which he has been subjected” and did not allege violation of the
Family Medical Leave Act. Appellee’s Supp. App. at 9.

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