                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 2 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 JOE JINZO,

               Plaintiff - Appellant,                   No. 98-2322
          v.                                         (D. New Mexico)
 CITY OF ALBUQUERQUE;                          (D.C. No. CIV-96-1581-MV)
 LAWRENCE RAEL, Chief
 Administrative Officer; ROBERT
 GURULE, Director of Public Works
 Department; CITY EMPLOYEE
 HEALTH CLINIC,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before ANDERSON , KELLY , and BRISCOE , 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       This order and judgment is not binding precedent, except under the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.
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.

       Joe Jinzo originally brought this action in New Mexico state court against

his former employer, the City of Albuquerque, and his former immediate

supervisors (collectively, the City),   1
                                            claiming violations of his due process and

Fourth Amendment rights as well as breach of his employment contract. At the

City’s request, the case was removed to federal district court. Jinzo now appeals

the district court’s grant of summary judgment in favor of the City. We affirm.

       The following facts are undisputed: In April 1994 Jinzo was terminated

from his City employment for “[f]ailure to meet job qualification/certification

requirements” after his driver’s license was suspended for a non-work related

DWI (the first termination). App. at 85. Pursuant to the City’s Merit System

Ordinance (MSO), Jinzo filed a grievance respecting his termination. However,

prior to the grievance hearing, Jinzo and the City entered into a Stipulation of

Agreement (the Agreement) which purported to settle all Jinzo’s pending claims

and grievances against the City. Under the terms of the Agreement, Jinzo was

reinstated at a demoted position under specified conditions, including Jinzo’s

consent to random drug tests and his stipulation that a positive drug test would




       Jinzo also named the City Employee Health Clinic in his original action,
       1

but he makes no claim against the Clinic in this appeal.

                                               -2-
result in termination of his City employment. Jinzo reads and understands

English, and he signed the Agreement after consulting with his union

representatives. As provided in the Agreement, Jinzo entered the City’s drug

testing program. Approximately four months later he tested positive for drugs,

and the City terminated him. Thereafter, Jinzo again initiated grievance

procedures under the MSO. After a year and a half of related proceedings and

continuances, the hearing officer recommended termination, and the Personnel

Board unanimously accepted the recommendation. The MSO provides that an

aggrieved employee may appeal an adverse decision to state court within thirty

days. Jinzo did not file an appeal within the specified period, but, rather, brought

this action more than thirty days following the adverse decision.

      Jinzo’s complaint alleges that the Agreement he signed with the City is an

unenforceable adhesion contract, and, therefore, his consent to drug testing was

an invalid waiver of his Fourth Amendment rights. He further alleges that the

City’s delay in processing his grievance constituted a breach of his employment

contract under the MSO regulations and also violated his due process rights.   The

district court granted the City’s motion for summary judgment after finding that

Jinzo had failed to produce any evidence to support his claims. On appeal, Jinzo




                                           -3-
repeats the claims he made in his complaint. He also contends that material

disputed factual issues precluded summary judgment.           2



       We review the grant of summary judgment de novo, using the same

standard as the district court under Fed. R. Civ. P. 56(c).          Siemon v. AT&T Corp. ,

117 F.3d 1173, 1175 (10th Cir. 1997). “Summary judgment is appropriate if

‘there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.’”         Id. (quoting Fed. R. Civ. P. 56(c)).

The moving party bears the initial burden of showing an absence of any issues of

material fact.   Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986);        Kaul v.

Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Once the moving party meets this

burden, the non-movant may not rest upon his pleadings, but must set forth

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

carries the burden of proof.    Matsushita Elec. Indus. Co. v. Zenith Radio Corp.         ,

475 U.S. 574, 586-87 (1986);      Kaul , 83 F.3d at 1212. Mere conclusory statements

are inadequate to defeat a summary judgment motion.               See Nichols v. Hurley , 921

F.2d 1101, 1113 (10th Cir. 1990).

       We have carefully reviewed the pleadings and briefs, the record on appeal,

and the district court’s decision, and we have considered them in light of the


       2
        Additionally, Jinzo raises other arguments which he did not raise in the
district court. Therefore, we do not consider them. See Walker v. Mather (In re
Walker), 959 F.2d 894, 896 (10th Cir. 1992).

                                               -4-
applicable law. We agree with the district court’s conclusion that Jinzo failed to

present any evidence sufficient to defeat the City’s motion. Although Jinzo cites

to his deposition testimony that he did not understand the Agreement, that

conclusory statement is insufficient to withstand summary judgment.   3
                                                                          Likewise,

Jinzo argues that he was coerced into signing the Agreement, but he cites no

evidence of coercion.

      On September 17, 1998, the district court issued a thorough, well-reasoned

order granting summary judgment to the City. App. at 212-25. We affirm that

order for substantially the same reasons stated therein.

      AFFIRMED.

                                                ENTERED FOR THE COURT



                                                Stephen H. Anderson
                                                Circuit Judge




      3
       We also note the referenced statement is inconsistent with Jinzo’s other
deposition testimony which concedes not only that there was no reason he could
not understand the Agreement, but also that he asked his own union
representatives about the Agreement, and they advised him to sign. App. at 189-
91.

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