                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 29 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TED BUCKLEY,

                Plaintiff-Appellant,

    v.                                                   No. 97-3254
                                                 (D.C. No. 95-CV-2393-KHV)
    KEEBLER COMPANY,                                       (D. Kan.)

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before PORFILIO, BARRETT, and HENRY, 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); 10th Cir. R. 34.1.9. Therefore,

appellant’s request for oral argument is denied, and the case is 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      This order and judgment is not binding precedent, except under the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 Ted Buckley brought this action against defendant Keebler

Company, alleging age discrimination in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 623(a), breach of implied contract, and

negligence. In a bench ruling, the United States District Court for the District of

Kansas entered summary judgment in favor of Keebler on each of these claims,

and plaintiff appeals. In addition, plaintiff appeals the court’s denial of his

request for an award of attorney fees in connection with his motion to compel.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



                                   I. Background

      The following facts were undisputed by the parties. Plaintiff was employed

by Keebler as a sales representative from May 1986, until his termination on

October 17, 1994. The employee handbook he received at the time he was hired

contained no express language regarding Keebler’s intent to discharge employees

only for cause. This was the only handbook received by plaintiff during his

tenure with Keebler. In 1990, Keebler had written employment policies in place

which provided for certain procedures to be followed regarding notification of

performance deficiencies and dismissals. Plaintiff admitted that he never

received a copy of these employment policies and was unaware of their existence

until after termination of his employment.


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      In a May 1994 performance evaluation, plaintiff was written up as

unsatisfactory in reaching his sales goals and on the levels of his unsalable

product. All of plaintiff’s previous performance evaluations had been satisfactory

or above. On July 20, 1994, plaintiff received a memo from Richard Murdock,

Keebler district manager, addressing the problem of his unsalable product levels.

In this memo, Mr. Murdock stated that “[i]t is critical that you understand the

severity of this problem. If it were to happen again disciplinary action up to and

including termination will be taken.” Appellant’s App. at 57. On October 14,

1994, Mr. Murdock met with plaintiff to discuss other deficiencies and problems

with plaintiff’s performance, including requests by two store owners that plaintiff

not return to their stores. On October 17, 1994, plaintiff’s employment with

Keebler was terminated. He filed an EEOC complaint followed by this diversity

action in federal court.

      In his complaint, plaintiff asserted that (1) Keebler breached an implied

contract of employment which allows for termination only for cause, (2) Keebler

was negligent in failing to conduct an investigation of plaintiff’s performance and

in complying with its termination procedures, and (3) his termination was

discriminatory based on his age in violation of the ADEA. On plaintiff’s implied

contract claim, the district court, relying on this court’s cases applying Kansas

law, concluded that the policies and procedures contained in Keebler’s personnel


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manuals and handbooks, without more, were insufficient to establish an implied

contract. In addition, the court held that Kansas law did not recognize a

negligence cause of action for an employer’s failure to follow its internal

notification and discharge procedures. Finally, the court held that plaintiff had

failed to establish a prima facie case of age discrimination.

      On appeal, plaintiff asserts that the district court improperly granted

summary judgment to Keebler on his implied contract claim because a disputed

issue of material fact existed. Second, he contends that, because Keebler created

a duty which was breached resulting in damages to plaintiff, he stated a

cognizable negligence claim. Finally, he asserts that the court abused its

discretion in denying his request for attorney fees on his motion to compel. 1



                                   II. Discussion

                              A. Standard of Review

      We review the district court’s grant of summary judgment de novo,

applying the same standard as that used by the district court. See Applied

Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.



1
       We note that plaintiff did not appeal the district court’s grant of summary
judgment on his ADEA claim. Absent argument on this issue, we deem it
abandoned. See Farthing v. City of Shawnee, 39 F.3d 1131, 1134 n.3 (10th Cir.
1994).

                                         -4-
1990). Pursuant to Fed. R. Civ. P. 56(c), the moving party has the initial

responsibility to show that “there is an absence of evidence to support the

nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If

the moving party meets this burden, the burden then shifts to the nonmoving party

to establish the existence of a genuine issue of material fact regarding “the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Id. at 322.

                            B. Implied Contract Claim

      Plaintiff alleges that his termination from his employment with Keebler was

in breach of an implied contract of employment allowing termination only for

cause. Keebler argues that plaintiff failed to establish an intent on its part to

abandon its at-will employment policy and create an implied contract, and asserts

that plaintiff’s evidence of the creation of an implied contract is insufficient to

withstand summary judgment.

      In this case, we apply Kansas law to determine whether plaintiff was

entitled to continued employment under an implied contract. See Carnes v.

Parker, 922 F.2d 1506, 1510 (10th Cir. 1991). Kansas embraces the common law

doctrine of employment-at-will wherein employees are considered at-will in the

absence of an express or implied contract. See Johnson v. National Beef Packing

Co., 551 P.2d 779, 781 (Kan. 1976). We have interpreted Kansas law as standing


                                          -5-
for the principle that the question of whether an implied contract exists normally

is a question of fact for the jury. See Anglemyer v. Hamilton County Hosp., 58

F.3d 533, 537 (10th Cir. 1995); Morriss v. Coleman Co., 738 P.2d 841, 848 (Kan.

1987). Summary judgment, however, is not precluded where there is no showing

of liability as a matter of law, where there are no essential facts in dispute, and

where “‘the plaintiff presents only evidence of his own unilateral expectations of

continued employment.’” Kastner v. Blue Cross & Blue Shield of Kan., Inc., 894

P.2d 909, 916 (Kan. Ct. App. 1995) (quoting Conyers v. Safelite Glass Corp., 825

F. Supp. 974, 977 (D. Kan. 1993)); see, e.g., Pilcher v. Board of County

Comm’rs. 787 P.2d 1204, 1207-08 (Kan. Ct. App. 1990) (upholding directed

verdict where evidence was of insufficient quality to create disputed issue of

material fact).

      In Morriss, 738 P.2d 841, the court stated:

      “Where it is alleged that an employment contract is one to be based
      upon the theory of ‘implied in fact,’ the understanding and intent of
      the parties is to be ascertained from several factors which include
      written or oral negotiations, the conduct of the parties from the
      commencement of the employment relationship, the usages of the
      business, the situation and objective of the parties giving rise to the
      relationship, the nature of the employment, and any other
      circumstances surrounding the employment relationship which would
      tend to explain or make clear the intention of the parties at the time
      said employment commenced.”

Id. at 848-49 (quoting Allegri v. Providence-St. Margaret Health Ctr., 684 P.2d

1031, 1033 (Kan. Ct. App. 1984)). Plaintiff points to the following factors in

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support of his contention that an implied contract existed: (1) he wrote on his

employment application that he left his former employment in order to pursue a

career with Keebler; (2) when he was hired by Keebler he received an employee

handbook outlining Keebler’s policies regarding unsatisfactory performance;

(3) Keebler has a written performance deficiency notification and dismissals

policy which defined a discharge as involuntary termination for just cause;

(4) representations of various of plaintiff’s supervisors that plaintiff would not be

terminated if his performance was satisfactory; and (5) satisfactory or better

performance evaluations during the course of his employment.

      In Allegri, the Kansas court recognized that “[a] contract implied in fact

arises from facts and circumstances showing mutual intent to contract.” 684 P.2d

at 1035 (further quotation omitted). On July 19, 1991, after plaintiff had been

employed by Keebler for five years, he signed a statement that provided:

      I have received a copy of the Employee Handbook, including Local
      Policies and Practices, and I have reviewed it, and understand and
      agree that any provision of the handbook or local policies and
      practices may be amended or revised, at any time, by Keebler
      Company. I also understand and agree that my employment is
      terminable at will so that both Keebler and I remain free to chose to
      end our work relationship; and, further, nothing in this handbook in
      any way creates an express or implied contract of employment
      between Keebler and me.

Appellant’s App. at 56. Keebler asserts that this disclaimer is “strong evidence”

that it did not intend to enter into an employment contract with plaintiff.


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Appellee’s Br. at 12. Although Kansas courts have held that a disclaimer does

not necessarily preclude the formation of an implied contract of employment, see,

e.g., Morriss, 738 P.2d at 849 (holding that disclaimer in supervisor’s manual

does not, as a matter of law, decide the issue of an implied employment contract),

we conclude that under the circumstances here, the disclaimer signed by plaintiff

is dispositive of Keebler’s intent.

      In Morriss, the court determined that it had not been established that the

disclaimer had ever been brought to the plaintiff’s attention or that the disclaimer

was intended to create an unqualified employment-at-will relationship. See id.

Distinguishing the facts in Morriss, the Kansas appellate court in Kastner held

that where the plaintiff admitted reading a disclaimer contained in the employee

handbook which stated that the policies in the handbook were not intended to

create an implied contract of employment, the disclaimer was dispositive of the

question of whether the employer intended to form a contract with the plaintiff.

See 894 P.2d at 918-19. Here, as in Kastner, there is no dispute that the

disclaimer was brought to plaintiff’s attention and the language of the disclaimer

unequivocally establishes Keebler’s intent to create an employment-at-will

relationship. See id. (“A more absolute declaration of intent on the part of [the

employer] to create an unqualified employment-at-will relationship is difficult to

envision.”).


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      Plaintiff further argues that, despite the disclaimer, there was enough

evidence to create a disputed issue of fact regarding whether Keebler intended to

create an employment contract. We do not agree. First, plaintiff’s notation of

“career w/ Keebler” on his employment application as a reason for leaving his

previous employer, Appellant’s App. at 111, evinces only plaintiff’s unilateral

desire to pursue a career with Keebler, and cannot create a contractual obligation

on Keebler’s part to terminate plaintiff only for cause. True to plaintiff’s

assertions, the language in the employee handbook given to plaintiff at the time

he was hired clearly sets forth certain reasons for termination and outlines

procedures to be followed in handling performance deficiencies and dismissals.

The manual does not, however, state any limits on the length of employment or

definitively state that termination will only be for cause or only for those reasons

stated. See Dehart v. City of Manhattan, 942 F. Supp. 1395, 1402 (D. Kan. 1996)

(list of causes for disciplinary action or dismissal in handbook do not create a

contractual right to continued employment); Kastner, 894 P.2d at 917 (informing

employee of certain grounds for discharge “is not the same as telling an employee

that he or she will not be terminated absent those grounds”). Here, the employee

manual does not expressly state that termination will only be for cause. It is,

therefore, merely an expression of Keebler’s policy and, without more, cannot be

interpreted as an intent to be bound by an employment contract. See Dehart, 942


                                         -9-
F. Supp. at 1403 (employer’s unilateral expression, not bargained for, cannot,

without more, form the basis of an employment contract).

      Plaintiff asserts that certain supervisors told him that as long as his

performance was satisfactory, his employment with Keebler would be safe. In his

affidavit submitted in opposition to Keebler’s motion for summary judgment,

plaintiff refers to the speakers only as “supervisors,” offering no more specifics

about the alleged statements. Appellant’s App. at 94. Given Keebler’s express

disclaimer, these broad, unspecific statements are insufficient to raise a disputed

issue of fact as to Keebler’s intent to contract with plaintiff. See Pilcher, 787

P.2d at 1207-08 (plaintiff’s testimony that employees believed they would not be

terminated until after receiving three warnings, without further written

documentation or identification of source of information, held insufficient to

withstand summary judgment). Here, the alleged statements of plaintiff’s

supervisors do not constitute a promise that plaintiff will only be discharged for

good cause, and, without more, cannot be considered probative of whether

Keebler intended to abandon its employment-at-will relationship with plaintiff.

      It is clear that pursuant to Kansas law, an employee manual which contains

a general statement of company policy and was not bargained for by the parties

nonetheless may be a relevant factor to be considered in determining whether an

implied contract exists. See generally Brown v. United Methodist Homes for the


                                         -10-
Aged, 815 P.2d 72, 82-83 (Kan. 1991). Here, however, the provisions of the

performance deficiency policy were not only not bargained for by the parties, but,

in fact, plaintiff admitted that he had no knowledge of the policies until after he

was terminated. Clearly these policies cannot be considered probative of the

existence of an implied contract of employment.

      Plaintiff’s reliance on his satisfactory performance evaluations is also

misplaced. As in Kastner, although plaintiff’s evaluations suggest that he could

be terminated for poor performance, nothing suggests a contract allowing for

termination only if good cause exists. See 894 P.2d at 918.

      In order to withstand a motion for summary judgment, the opposing party

must provide some evidence establishing the existence of a disputed material fact.

See Kastner, 894 P.2d at 916. “To have evidentiary value, the particular

document or testimony relied upon by the party opposing summary judgment must

be probative of that parties’ [sic] position on a material issue of fact. Probative

evidence . . . is that which furnishes, establishes or contributes toward proof.” Id.

at 916-17 (further quotation omitted). Here, plaintiff provided nothing other than

his own expectations of continued employment with Keebler. This does not give

rise to an implied employment contract. See Harris v. Board of Pub. Utilities, 757

F. Supp. 1185, 1190 (D. Kan. 1991). Accordingly, absent the required disputed

issue of material fact, the district court correctly held that Keebler was entitled to


                                          -11-
summary judgment on the issue of the existence of an implied employment

contract.

                               C. Negligence Claim

      Plaintiff continues to argue on appeal that Keebler’s failure to investigate

his performance deficiencies and follow its own pretermination procedures was a

breach of duty giving rise to liability for negligence. The district court granted

summary judgment to Keebler on this claim, opining that no cause of action for

negligence in this context existed in Kansas law. We also are unaware of any

case in which the Kansas courts have recognized such a cause of action. In Prost

v. F.W. Woolworth Co., 647 F. Supp. 946, 947 (D. Kan. 1985), although the

plaintiff conceded that, under Kansas law, an employer is under no legal duty to

inform an at-will employee of performance deficiencies before termination, she

argued that “once the employer undertakes to perform evaluations, he must do so

in a non-negligent manner.” Holding this argument to be contrary to Kansas’

employment-at-will doctrine, the court held that rights of this nature only arise

from the breach of a contract existing between the parties. See id. Here, there

was no contract, hence no duty, and plaintiff’s negligence claim fails.

                                 D. Attorney Fees

      Lastly, plaintiff asserts that the district court erred in denying his request

for an award of attorney fees in connection with his motion to compel. “We give


                                         -12-
deference to a district court’s decision regarding attorneys’ fees. We only

overturn these decisions where the district court abuses its discretion.” O’Connor

v. R.F. Lafferty & Co., 965 F.2d 893, 903 (10th Cir. 1992).

      Prior to the hearing in this case, plaintiff filed a motion to compel, seeking

Keebler’s compliance with certain of plaintiff’s discovery requests. The district

court denied the motion as untimely. Renewing his motion at the hearing,

plaintiff’s counsel claimed that, if he was provided with the discovery requested,

he would be able to provide an evidentiary record in support of plaintiff’s age

discrimination claim. The district court again denied plaintiff’s request, opining

that pursuant to the court’s pretrial scheduling order, the request was untimely,

and plaintiff had failed to show good cause as to why he had not timely filed the

motion.

      In his motion to alter, amend, or set aside judgment, plaintiff again argued

his need for the unsupplied discovery. The district court entered an initial order,

requiring Keebler to comply with plaintiff’s discovery requests and requiring

plaintiff to file a supplemental brief setting forth his arguments as to why, based

on the additional discovery, the court should reconsider its summary judgment

decision. Following review of plaintiff’s supplemental brief, the court entered a

second order denying plaintiff’s motion by adoption of “the points articulated in

Defendant’s Suggestions In Opposition To Plaintiff’s Motion To Alter, Amend,


                                         -13-
Or Set Aside Judgment.” Appellant’s App. at 335. Because the court found that,

even with the requested discovery, plaintiff had failed to provide any new

evidence in support of its challenge to the court’s summary judgment decision,

the court concluded that sanctions in the form of an award of attorney fees “would

hardly seem appropriate.” Id. at 336. We discern no abuse of discretion in this

decision.

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

is AFFIRMED.



                                                   Entered for the Court


                                                   John C. Porfilio
                                                   Circuit Judge




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