                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 5 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VERNA MARTINEZ,

                Plaintiff-Appellant,

    v.                                                   No. 96-2254
                                                   (D.C. No. CIV-95-724-JC)
    NORTHERN RIO ARRIBA                                   (D. N.M.)
    ELECTRIC COOPERATIVE, INC.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before PORFILIO, KELLY, 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. 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      This order and judgment is not binding precedent, except under the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.
       Verna Martinez appeals from the district court’s grant of summary

judgment to defendant on her Title VII claim. Ms. Martinez asserted that

defendant, her former employer, denied her payment for accrued sick leave time

as a benefit upon her retirement in 1994. Alleging gender discrimination in

violation of Title VII, Ms. Martinez argued that a male employee, Narciso

Rendon, had been paid for accrued sick leave time under a similar policy when he

retired in 1989. Ms. Martinez acknowledged that the policy regarding payment of

accrued sick leave had changed several times over the years. In 1979, defendant’s

policy allowed all employees to accrue sick leave time and receive payment for

that time upon retirement. In 1986, the policy was amended to limit accruals to

600 hours and required defendant to make annual payments for accrued sick leave

time. Although this was the policy in effect when Mr. Rendon retired, he was

paid for all accrued sick time, which exceeded 600 hours. The policy was

changed again in 1992, eliminating the accrual of sick leave time and expressly

providing that unused sick leave time would have no cash value upon retirement.

When Ms. Martinez retired in 1994, she sought payment for almost 3,000 hours

of accrued sick leave. Ultimately, she was paid only for those amounts which

were due her from 1986 through 1992 under the annual cash-out provision then

in effect.




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      Defendant moved for summary judgment, contending that Ms. Martinez and

Mr. Rendon were not similarly situated, having retired under different managers

and different policies. Further, it contended there was no evidence that any

decision on this issue was discrimination on the basis of gender. Ms. Martinez

responded, and after a hearing the district court granted summary judgment to

defendant on her Title VII claim. 1 This appeal followed.

      Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. “We review

de novo the grant of summary judgment and apply the same legal standards as the

district court under Rule 56.” Aramburu v. The Boeing Co., 112 F.3d 1398, 1402

(10th Cir. 1997). Under the applicable analysis, Ms. Martinez has the initial

burden to establish a prima facie case of intentional discrimination. See Elmore

v. Capstan, Inc., 58 F.3d 525, 529 (10th Cir. 1995). She seeks to satisfy this

burden using the disparate treatment theory, see generally Drake v. City of Fort

Collins, 927 F.2d 1156, 1160 (10th Cir. 1991), alleging that she was treated

differently than Rendon.

      On appeal, plaintiff essentially contends that the standards measuring when

other employees are similarly situated do not apply to her claim of disparate

treatment because the case was decided on summary judgment. This argument


1
      The district court’s order also dismissed, without prejudice, various state
law claims brought in conjunction with the Title VII claim. Martinez does not
appeal that part of the court’s ruling.

                                        -3-
is not persuasive; we have upheld the grant of summary judgment on Title VII

claims where a district court ruled that the plaintiff failed to establish a prima

facie case in a disparate treatment claim in part because she did not demonstrate

that other employees were similarly situated. See Lowe v. Angelo’s Italian

Foods, Inc., 87 F.3d 1170, 1172, 1174-75 (10th Cir. 1996). As part of her prima

facie case under the disparate treatment theory, Ms. Martinez must show that

she was similarly situated to Mr. Rendon in all material respects. See Shumway

v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997); Pierce v.

Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). Relying on the

undisputed facts before the district court regarding defendant’s sick leave accrual

policies, we conclude that Mr. Rendon and Ms. Martinez were not similarly

situated because, at the times of their respective retirements, those policies

differed greatly. Further, it does not help Ms. Martinez’s prima facie case that

the policy in force when Mr. Rendon retired was not followed. Not only were

the policies markedly different, they were also administered by different general

managers. Title VII does not constrain different managers in an organization

from taking different approaches in enforcing company rules or policies.

See Elmore, 58 F.3d at 532 (noting that a new manager who applied discipline

more rigorously did not compel an inference that any disparity in treatment

amounted to discrimination). In this case, the fact that different general managers


                                          -4-
implemented the different sick leave accrual policies further negates any

similarity between the two employees’ situations when they retired. See

Aramburu, 112 F.3d at 1404 (similarly situated individuals must have dealt with

same supervisor and been subject to same standards); Flasher, 986 F.2d at 1320;

Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).

      Ms. Martinez contends that factual issues remain regarding defendant’s

motivation for denying payment for her accrued sick leave time. She also asserts

that defendant’s action with regard to Mr. Rendon’s retirement should be grafted

onto the 1992 policy change, and that she has demonstrated “a clear factual

dispute as to whether this benefit was due to Plaintiff.” Appellant’s Br. at 7.

We disagree. Unless she can show that Mr. Rendon was a similarly situated

employee, her claim of disparate treatment fails without consideration of whether

defendant’s proffered reasons for its action were pretextual. Because we

conclude that Ms. Martinez neither established her prima facie case nor presented

evidence which creates a genuine issue of material fact as to any element of her

prima facie case, we do not address her further arguments.

      In her reply brief, Ms. Martinez appears to contend that defendant amended

the sick leave accrual policy in 1992 with discriminatory intent. This contention

was not raised to the district court, and was not raised in Martinez’s opening




                                         -5-
brief. Accordingly, we decline to address it. See Walker v. Mather (In re

Walker), 959 F.2d 894, 896 (10th Cir. 1992) (stating general rule that issues

not raised to district court will not be considered); State Farm Fire & Casualty

Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding that issues not

raised in opening brief are waived).

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

Mexico is AFFIRMED.



                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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