                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                        FEB 18 1999
                               TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 SAMUEL DOUGLAS GAGLIANO,

             Plaintiff-Appellant,
                                                      No. 97-1235
 v.                                              (D.C. 96-WY-1793-AJ)
                                                  (District of Colorado)
 STORAGE TECHNOLOGY
 CORPORATION, a Delaware
 corporation,

             Defendant-Appellee.



                          ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, BRORBY , and HENRY , Circuit Judges.




      Plaintiff Samuel Gagliano appeals from the grant of summary judgment in

favor of the defendant, Storage Technology Corporation, on three employment

discrimination claims: (1) age discrimination under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634; (2) reverse sex discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17;

      *
             This order and judgment is not binding precedent, except under the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.
and (3) disability discrimination under the Americans with Disabilities Act

(ADA), 29 U.S.C. § 12101-12213. He also appeals from the district court's

decision to exclude several proffered exhibits at the trial on his related retaliation

claim. We affirm in all respects.

       As to the summary judgment rulings, Mr. Gagliano contends that the

district court erred in applying the wrong prima facie test with respect to his age

discrimination claim, inappropriately required the plaintiff to produce

background evidence with respect to his reverse sex discrimination claim, and

incorrectly concluded that the plaintiff had not created a prima facie case of

disability discrimination. We review the district court's decision de novo,

applying the same legal standards pursuant to Fed. R. Civ. Proc. 56(c).    See Kaul

v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).

       After careful review of the record on appeal together with the parties'

briefs and the applicable law, we conclude that the district court was correct in

determining that Mr. Gagliano had not presented a prima facie case of age

discrimination because he did not "produc[e] evidence, circumstantial or direct,

from which a factfinder might reasonably conclude that [Storage Technology]

intended to discriminate in reaching the decision at issue."    Branson v. Price

River Coal Co. , 853 F.2d 768, 771 (10th Cir. 1988). Mr. Gagliano failed the

fourth prong of the familiar   McDonnell Douglas analysis for employment


                                             2
discrimination claims.   See McDonnell Douglas Corp. v. Green     , 411 U.S. 792,

802-04 (1973). Similarly, as to the reverse sex discrimination claim, the district

court correctly found that Mr. Gagliano had not presented background evidence

supporting the inference that Storage Technology discriminated against men nor

sufficient indirect evidence that but for his gender he would not have been

terminated. See Notari v. Denver Water Dep't , 971 F.2d 585, 588-89 (10th Cir.

1992). As to the ADA claim, the district court also correctly found that Mr.

Gagliano had not established a prima facie case because he did not show that he

had a disability under the ADA's statutory definition.   See 42 U.S.C. § 12102(2);

Bolton v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994). Therefore, for

substantially the same reasons as stated in the district court's oral ruling on

February 27, 1997 and its subsequent written order dated March 5, 1997, we

conclude that Storage Technology is entitled to summary judgment on Mr.

Gagliano's employment discrimination claims.

       As to the retaliation claim that proceeded to trial, Mr. Gagliano argues that

the district court improperly excluded letters and memoranda written by him to

Storage Technology representatives during the course of his internal appeal. He

challenges the district court's ruling that these proffered exhibits were not

contemporaneous, were hearsay, and were potentially misleading because they

contained references to the previously dismissed employment discrimination


                                             3
claims. Mr. Gagliano also contends that although the district court subsequently

admitted redacted versions of two of these exhibits, it improperly excluded two

other redacted exhibits as not contemporaneous hearsay. Mr. Gagliano argues

that the exhibits should have been admitted under the residual hearsay exception,

Fed. R. Evid. 803(24), as contemporaneous writings, or under the business

records hearsay exception, Fed. R. Evid. 803(6).

      We review a district court's decision to exclude evidence for an abuse of

discretion. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). Here,

the original exhibits contained numerous hearsay statements and references to the

dismissed discrimination claims. Further, the district court correctly observed

that Mr. Gagliano was capable of testifying to the same material. Accordingly,

the district court did not abuse its discretion in excluding the original exhibits.

Additionally, the two redacted exhibits excluded by the district court were not

contemporaneous to the retaliation events, did not bear the necessary hallmarks

of reliability under Rule 803(24), and were not business records in any sense of

the term. Thus, after careful review of the record, we conclude that the district

court did not abuse its discretion in excluding the redacted exhibits.

      Accordingly, we AFFIRM the district court's grant of summary judgment

in favor of the defendant Storage Technology Corporation on all three of Mr.

Gagliano's employment discrimination claims. We also AFFIRM the district


                                           4
court's judgment in favor of Storage Technology Corporation on Mr. Gagliano's

retaliation claim.



                                           Entered for the Court,

                                           Robert H. Henry
                                           Circuit Judge




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