Doll v. U.S. West Communications, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

COLLEEN DOLL and SANDRA
BRIDGES,

Plaintiffs, No. 01-1284
(D.C. No. 99-D-1714)
and (D. Colo.)

RUSSELL GREEN,

Plaintiff-Appellant,

v.

U.S. WEST COMMUNICATIONS,
INC., a Colorado corporation,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before MURPHY, ANDERSON, and HARTZ, 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This order and judgment is not binding precedent, except under the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.
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.

Plaintiff filed suit in state court against U.S. West, alleging retaliatory

discharge, breach of the employment contract, promissory estoppel, and race

discrimination. See Doll v. U.S. West Communications, Inc., 85 F. Supp. 2d 1038,

1040 (D. Colo. 2000). U.S. West removed the case to federal district court based

on the federal court’s original jurisdiction over several of the claims.

The district court denied plaintiff’s motion to remand the case to state court

and dismissed the breach-of-contract and promissory-estoppel claims as

preempted by Section 301 of the Labor Management Relations Act (LMRA). Id.

at 1043-46. The court dismissed the retaliatory-discharge claim as unavailable

under Colorado law to an employee covered by a collective bargaining agreement

or other employment contract. Id. at 1046-47. The race-discrimination claim was

later tried to a jury, which found for the defendant, U.S. West. Although

represented through the trial proceedings by counsel, plaintiff now appeals pro se.

In his notice of appeal, plaintiff listed the district court’s May 18, 2001,

entry of judgment on the jury verdict as the judgment being appealed. He

subsequently filed a motion to amend his notice of appeal to include the district

court’s earlier dismissal of the contract, estoppel, and discharge claims. The only

two issues addressed in his briefs on appeal, however, are (1) the district court’s

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disposition of the retaliatory-discharge claim and (2) the court’s “allowing failure

of [U.S. West] to comply with [d]iscovery provisions under Fed. R. Civ. P.

26(a)(1), (a)(2), (a)(3)[.]” Aplt. Opening Br. at 1. We therefore limit our

discussion to those matters. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,

679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are

waived . . . .”); Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999)

(court will not sift through record to construct arguments for party on appeal).

I. Retaliatory Discharge

First, we dispose of a non-issue. Plaintiff’s opening brief includes an

extended discussion of preemption under LMRA Section 301. This argument,

however, is applicable only to the two claims the district court found to be

preempted (and the dismissal of which plaintiff does not challenge on appeal):

breach of contract and promissory estoppel. Doll, 85 F. Supp. 2d at 1044-46.

Plaintiff appears to believe that the retaliatory-discharge claim was decided on the

basis of preemption. This belief is incorrect. Although the district court disposed

of the breach-of-contract and promissory-estoppel claims on the basis of Section

301 preemption, it clearly resolved the retaliatory-discharge claim strictly as a

state-law issue. Id. at 1046-47.

The district court dismissed plaintiff’s claim of retaliatory discharge

because plaintiff was covered by a collective bargaining agreement, which

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provided a grievance procedure for covered employees subject to discipline,

including termination. It ruled that a retaliatory-discharge claim is available only

to at-will employees. Doll, 85 F. Supp. 2d at 1046; see Martin Marietta Corp. v.

Lorenz, 823 P.2d 100, 108 (Colo. 1992) (en banc). We affirm for substantially

the reasons expressed by the district court. See Doll, 85 F. Supp. 2d at 1046-47;

see also Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (en banc)

(“As a general matter, the public policy exception allows at-will employees to

pursue claims for wrongful discharge . . . .” (emphasis added)).

II. Discovery

Plaintiff challenges the district court’s denial of his motion for sanctions

against U.S. West. The motion, filed more than three months after the trial on his

race-discrimination claim and two and one-half months after his notice of appeal,

suggested entitlement to an “award of expenses and fees resulting from

defendant’s refusal to admit truth of matters set forth in requests.” Aplee. Supp.

App. Vol. 2 at 438.

Following the district court’s denial of the motion for sanctions, plaintiff

did not file another notice of appeal or a second amended notice of appeal. Thus,

plaintiff has failed to preserve the matter for review. Fed. R. App. P. 4(a)

requires the filing of a notice of appeal “within 30 days after the judgment or

order appealed from is entered.” Absent an amended notice of appeal, we have no

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jurisdiction to review the district court’s denial of sanctions. See Pierce v. Shorty

Small’s of Branson Inc., 137 F.3d 1190, 1192-93 (10th Cir. 1998) (appellate

review is limited to final judgments or parts thereof designated in notice of

appeal; plaintiff needed to file amended notice of appeal to secure consideration

of order entered after notice of appeal filed). (We note that plaintiff obviously

understood the rules sufficiently to file an amended notice of appeal to include

the district court’s dismissal of three of his four claims.) Accordingly, we lack

jurisdiction to consider the sanctions issue.

AFFIRMED.

Entered for the Court

Harris L Hartz
Circuit Judge

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