                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 14 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT GARY,

                Plaintiff-Appellant,

    v.                                                   No. 99-1587
                                                     (D.C. No. 98-D-1143)
    U.S. WEST COMMUNICATIONS,                              (D. Colo.)
    INC.,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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 Robert Gary appeals from summary judgment granted in

favor of defendant/appellee U.S. West Communications, Inc. on his claims

brought pursuant to sections 1132 and 1140 of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, federal common law, and

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

       The relevant facts are set forth in the district court’s thorough and well-

reasoned order of November 24, 1999. On appeal, Mr. Gary argues that the

district court erred in holding that: (1) his claim for benefits should be dismissed

for failure to exhaust administrative remedies; (2) his evidence was insufficient to

support his claim for retaliation; and (3) dismissal of his case should be with

prejudice. “We review a district court’s grant of summary judgment          de novo ,

applying the same legal standard used by the district court pursuant to Federal

Rule of Civil Procedure 56(c).”         Deboard v. Sunshine Mining & Ref. Co.   , 208

F.3d 1228, 1237 (10th Cir. 2000). After reviewing the parties’ briefs and

conducting a de novo review of the record, this court concludes that the district

court correctly decided issues one and two for substantially the same reasons as

stated in the district court’s order.     See Appellant’s App. Vol. IV, at 1040-50. As

U.S. West Communications points out, Mr. Gary did not appeal from the district

court’s determination that, notwithstanding Mr. Gary’s failure to administratively

appeal from the denial of benefits, U.S. West Communications did not abuse its


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discretion in denying his disability claim. Thus, dismissal of the case with

prejudice was also proper.

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

Colorado is AFFIRMED.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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