                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 8 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WILLIAM BIRKLEY,

                Plaintiff - Appellant,

    v.

    PRI AUTOMATION OF
    MASSACHUSETTS and INTEL, a                         No. 02-2091
    Delaware corporation, each a              D.C. No. CIV-01-350 M/WWD
    corporation and their shareholders and          (D. New Mexico)
    any future owners; ARCHDIOCESE
    OF SANTA FE and ARCHDIOCESE
    OF PHOENIX, each a corporation;
    STEPHEN HOUIDOBRE, DENNIS
    MILINAZZO, BOB GASSIOT,
    JAMES CONSTAND, MARK
    BRITTON, STEPHEN WENTZELL,
    KARL LE CLAIRE, G. WATTLEY,
    SHARON BECKLEY, and SANDRA
    ABEYTA, each an individual, their
    spouse, heirs, and estate, if any,

                Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , BARRETT , and EBEL , Circuit Judges.



*
      This order and judgment is not binding precedent, except under the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.
       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.

       Plaintiff appeals the district court’s dismissal of his action against his

former employer and others for damages resulting from his loss of employment.

The district court dismissed certain defendants under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim on which relief could be granted and granted summary

judgment to the others.

       We review both the Rule 12(b)(6) dismissal and the grant of summary

judgment de novo.     Sutton v. Utah State Sch. for Deaf & Blind   , 173 F.3d 1226,

1236 (10th Cir. 1999) (Rule 12(b)(6));      Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs.      , 165 F.3d 1321, 1326 (10th Cir. 1999)

(summary judgment). A motion to dismiss for failure to state a claim is to be

granted only when it appears beyond doubt that the plaintiff cannot prove facts in

support of his claim that would entitle him to relief.   Conley v. Gibson , 355 U.S.

41, 45-46 (1957). Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

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that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

      Plaintiff was a field engineer employed by PRI Automation, Inc. (PRI),

which, in turn, is a subcontractor at the Intel Plant in Rio Rancho, New Mexico.

PRI provides engineers to work on equipment it provides Intel. Plaintiff and the

other PRI defendants worked at the Intel plant as PRI employees.

      In July of 1998, plaintiff complained to the PRI Human Resources Office

that PRI defendant Houidobre and a religious organization (referred to as both

“Warriors of the Sacred King” and “Warriors of Christ,” R. Vol. I, doc. 3 at 5,

attach. C-1) were harassing him because he did not belong to the Warriors.     Id.,

doc. 56 at 3. According to plaintiff, the group was supported by the two Catholic

Archdiocese defendants and lead by defendant Father Karl LeClaire (Archdiocese

defendants). Plaintiff further contended members of the group had used Intel’s

e-mail system to promote themselves, were engaged in hate-crime activity, and

promoted a paramilitary image.    Id. Plaintiff was transferred to another shift, in

which he did not have personal contact with Houidobre, but on the new shift,

plaintiff claims he was harassed by other PRI employees.

      Plaintiff was injured in September of 1999, and claimed he received

inadequate medical treatment. He also contended he was suffering from

depression. Two of PRI’s employees accused plaintiff of sleeping at the plant


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during his work shift, an accusation made in front of Intel defendant Wattley.   1



On October 30, 1999, Wattley discovered plaintiff asleep on the job and escorted

plaintiff from the plant. This was in accordance with Intel’s policy to walk an

employee or a subcontractor’s employee from the plant if the employee was found

sleeping. Subsequently, a meeting was held among PRI and Intel employees at

which it was determined that plaintiff was asleep during his work and had

properly been escorted from the plant. Plaintiff was not present at the meeting.

       Intel advised PRI that plaintiff would not be able to work at its facilities.

PRI subsequently terminated plaintiff from its employ. As part of that

termination, plaintiff signed a Release of Claims, releasing PRI and its employees

from all claims that might be brought arising from his employment with and

termination by PRI. As part of the release, plaintiff received seven weeks’ salary

as compensation. Plaintiff contended that as a result of his termination, he was

unemployed for fourteen months, lost his medical insurance, could not pay

medical bills or receive proper medical care, and incurred other monetary

damages.

       Rather than setting forth counts or causes of action, plaintiff’s amended

complaint recited numerous “supporting laws” for his claims against the three



1
      Plaintiff alleges that part of his job duties included training Wattley, who
could eventually have succeeded to plaintiff’s job.

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defendant groups: PRI and its employees, Intel and its employees, and the

Archdiocese defendants. Intel moved to dismiss under Fed. R. Civ. P. 12(b)(6);

PRI filed a motion for summary judgment, or, alternatively, to dismiss. In a

comprehensive order giving plaintiff the broadest possible latitude in terms of his

claims, the district court granted these motions and sua sponte dismissed the

remaining claims against the Archdiocese defendants. R. Vol. I, doc. 56.

       On appeal, plaintiff lists six issues, the first three of which concern the

Archdiocese defendants. Plaintiff contends that defendant LeClaire was properly

served at his place of work/residence, but that he did not answer the complaint or

consent to proceeding before a magistrate judge. Plaintiff also contends that the

Diocese of Santa Fe was served in the same manner as the other defendants and

also did not answer the complaint. Plaintiff claims the district court denied him

his rights under Fed. R. Civ. P. 55 “to file for a default judgment” against these

defendants and that the “matter should be reset before a judge not a magistrate.”

Aplt. Br. at 4.

       The district court dismissed this set of defendants, sua sponte, for failure to

state a claim against them on which relief could be granted. R. Vol. I, doc. 56

at 13-15. However, the court further granted plaintiff ten days in which to amend

his complaint to attempt to state a cause of action against these defendants.

Plaintiff did not do so.   Id. at 14-15. Plaintiff does not argue that his amended


                                           -5-
complaint stated a cognizable cause of action against these defendants, and we

uphold the district court’s determination that no claim was stated.    See Curley v.

Perry , 246 F.3d 1278, 1283 (10th Cir.),    cert. denied , 122 S. Ct. 274 (2001) (sua

sponte dismissal of meritless claim permissible under Rule 12(b)(6)). Plaintiff’s

arguments regarding service are therefore irrelevant, as is defendant LeClaire’s

refusal to proceed before a magistrate judge. In addition, plaintiff did not file a

motion for default judgment under Fed. R. Civ. P. 55, nor is there any support in

the record for his statement that the district court denied him the right to do so.

       As his fourth issue, plaintiff argues that the district court’s dismissal of

Intel was improper because Intel permitted the abuse of its e-mail system by

certain of PRI’s employees. There is no claim that any e-mail messages were sent

to plaintiff promoting the Warriors or that any specific Intel employees were

Warriors who were misusing the e-mail system. Plaintiff also made no factual

showing of how he was harmed by the allegedly improper e-mails. With the

possible exception of a single word, none of the messages furnished by plaintiff

show any per se offensive language. This issue is therefore without merit.

       For his fifth issue, plaintiff argues that he “signed an agreement under great

personal, physical, and mental duress.” Aplt. Br. at 5. We take this to mean the

release form by which he relinquished his right to sue PRI based on any

employment/termination causes of action he might have had. In his complaint,


                                            -6-
plaintiff did not mention the Release of Claims.       2
                                                            In fact, not until his response to

PRI’s motion for summary judgment and/or to dismiss did he acknowledge PRI’s

defense of a valid release and allege for the first time that PRI had failed to

comply with certain of the agreement’s terms.      3
                                                           Because he did not raise the

“mental duress” claim below, we will not consider this argument made for the

first time on appeal.   See Tele-Communications, Inc. v. Comm’r            , 104 F.3d 1229,

1232 (10th Cir. 1997).

       As his sixth issue, plaintiff argues both that PRI defaulted in its

performance of the agreement and that even if the release is valid, he can still

proceed. Citing Oubre v. Entergy Operations, Inc.            , 522 U.S. 422 (1998), he

contends that “circumstances such as fraud, duress or mutual mistake may render

an age discrimination waiver invalid because the waiver is not knowing and

voluntary.” Aplt. Br. at 6. We note, however, that            Oubre concerned the

requirements for a valid waiver of Age Discrimination in Employment Act claims

and that none of plaintiff’s two dozen cited “supporting laws” include the age

discrimination statute. Moreover, it appears that the release in fact complied with




2
      Rather, he stated that he received a “termination letter” and that “[a]ll the
conditions of the contract were breached except for the payment of wages.”
R. Vol. I, doc. 3 at 7. He offered no specifics beyond this statement.
3
      In response, PRI denied any breach of the agreement, but also offered to
work toward curing any failure to comply.

                                            -7-
the very requirements the Supreme Court found wanting in         Oubre . See Id. at

426-28; 29 U.S.C. § 626(f).

       Again, we note that when plaintiff belatedly raised his argument that

certain terms of the agreement had not been met, PRI specifically offered to

correct any error by paying any of plaintiff’s bills or expenses that should have

been covered under the terms of the agreement. R. Vol. I, doc. 55 at 3. Plaintiff

does not deny that PRI has offered to cure any mistake in failing to provide

plaintiff a promised benefit, nor, apparently has he responded to PRI’s offer.        See

PRI’s Br. at 12. The district court correctly concluded that the Release of Claims

bars plaintiff’s claims against PRI and its employees.

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

Mexico is AFFIRMED.



                                                        Entered for the Court



                                                        David M. Ebel
                                                        Circuit Judge




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