                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 29 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DAVID R. TINKLE,

                Plaintiff-Appellant,

    v.                                                   No. 00-6280
                                                   (D.C. No. 99-CV-1132-P)
    OKLAHOMA GAS & ELECTRIC                              (W.D. Okla.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , PORFILIO, and KELLY , 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      This order and judgment is not binding precedent, except under the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 David Tinkle appeals from the magistrate judge’s summary

judgment dismissal of his complaint against his former employer, Oklahoma Gas

and Electric Company (OG&E).         1
                                         Plaintiff alleged age discrimination under the

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34; interference with

his right to receive benefits in violation of the Employee Retirement Income

Security Act, 29 U.S.C. § 1140; intentional or negligent infliction of mental or

emotional distress; and retaliation for his participation in another employee’s age

discrimination claim. On appeal, plaintiff challenges only the dismissal of his

retaliation claim.   2
                         Therefore, all other issues that were decided by the magistrate

judge are considered waived.        See State Farm Fire & Cas. Co. v. Mhoon     , 31 F.3d

979, 984 n.7 (10th Cir. 1994). We affirm.

       The parties are familiar with the facts, which are fully set out in the

magistrate judge’s very thorough thirty-one page order. Thus, we will only

briefly repeat those necessary to resolve the appeal. Plaintiff was employed by

1
      The parties consented to disposition of this case by the magistrate judge.
See 28 U.S.C. § 636(c)(3).
2
       At the conclusion of his brief, plaintiff summarily requests the court to also
reverse his age discrimination claim. Plaintiff does not otherwise argue his age
discrimination claim in his brief. Accordingly, we do not address this claim on
appeal. See Ambus v. Granite Bd. of Educ. , 975 F.2d 1555, 1558 n.1 (10th Cir.
1992) (stating an issue mentioned in brief on appeal, but not addressed, is
waived), modified on other grounds on reh’g , 995 F.2d 992 (10th Cir. 1993);
Fed. R. App. P. 28(a)(9)(A) (requiring that argument contain the “appellant’s
contentions and the reasons for them, with citations to the authorities and parts of
the record on which the appellant relies”).

                                               -2-
OG&E in its heavy hauling department. In March 1997, he was listed as a

witness against OG&E in an age discrimination claim brought by another OG&E

employee, Don Riffel, but he refused to meet with OG&E’s attorney to discuss

the Riffel case. Plaintiff also had neck surgery that month. When he returned to

work in April, his supervisor, John Singleton, refused plaintiff’s request to be

assigned to drive an air-suspension ride truck, which has a softer ride than other

trucks. Plaintiff claims his request was refused because of his participation in the

Riffel case.

      Plaintiff gave his deposition in the Riffel case in June 1997, providing

some evidence that Singleton discriminated against Riffel because of his age. In

August 1997, Singleton ordered plaintiff to drive a seventy-five ton crane.

Plaintiff claims that this crane has a rough and bumpy drive and that he injured

his neck driving it. He claims Singleton made him drive the crane in retaliation

for his deposition testimony. Thereafter, plaintiff’s doctor restricted him to light

duty work assignments for two weeks, and plaintiff alleges Singleton refused to

give him available light work assignments.

      To establish a prima facie case of retaliation, plaintiff must show he was

engaged in protected opposition to age discrimination, he was subjected to

adverse employment action, and a causal connection existed between the

protected activity and the adverse employment action.    Sanchez v. Denver Pub.


                                          -3-
Sch. , 164 F.3d 527, 533 (10th Cir. 1998). We have reviewed the briefs and the

record on appeal, and are not persuaded by plaintiff’s claims of error. His

allegations that Singleton refused plaintiff’s requested truck assignment or

assigned him to drive the crane do not rise to the level of an adverse employment

action. See id . at 532 (explaining that “mere inconvenience or an alteration of job

responsibilities” does not constitute “adverse employment action,” which requires

a “significant change in employment status” (quotations omitted)). Further, there

is no record support for plaintiff’s assertion that Singleton refused him available

light-duty job assignments after he injured his neck in August. The magistrate

judge properly disregarded statements in plaintiff’s affidavit that contradicted his

earlier sworn deposition testimony.   See Kendrick v. Penske Transp. Servs., Inc.   ,

220 F.3d 1220, 1224 n.2 (10th Cir. 2000). Plaintiff’s evidence demonstrates only

that some employees were given short-term, light-duty assignments for various

medical reasons. However, plaintiff failed to present any evidence of any specific

light-duty work that was available for him to do after his injury and it is

undisputed that plaintiff never applied for any light-duty work assignments.

      Plaintiff also failed to present evidence that a causal connection existed

between his participation in the Riffel case and the alleged adverse employment

actions. He presented no evidence that Singleton had any knowledge that plaintiff

was a witness in the Riffel case, had refused to cooperate with an OG&E attorney


                                          -4-
or had given deposition testimony implicating Singleton. A party opposing

summary judgment cannot rest upon his pleadings, but “must bring forward

specific facts showing a genuine issue for trial as to those dispositive matters for

which [he or she] carries the burden of proof.”    Jenkins v. Wood , 81 F.3d 988,

990 (10th Cir. 1996).

       The magistrate judge thoroughly addressed the arguments plaintiff raises on

appeal, and we AFFIRM for substantially the same reasons as set forth in the

magistrate judge’s order filed on July 17, 2000.




                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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