                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 27 1998
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    SIMPLICIO G. TORREZ,

                Plaintiff-Appellee,

    v.                                                   No. 96-1436
                                                     (D.C. No. 94-N-2086)
    BEI GRAPHICS CORPORATION,                              (D. Colo.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




         Defendant appeals 1 from a judgment entered in favor of plaintiff, following

a jury trial, on his claims that defendant unlawfully discharged him from his


*
      This order and judgment is not binding precedent, except under the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.
1
       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.
employment because he is Hispanic, see 42 U.S.C. § 1981; 42 U.S.C. §§ 2000e to

2000e-17 (Title VII), and breached an implied-in-fact employment contract.

Upon review of the record and the parties’ arguments on appeal, we affirm.


I.    BREACH OF CONTRACT

      Defendant argues that the district court erred in denying its motions for the

entry of judgment as a matter of law. See Fed. R. Civ. P. 50. It claims

disclaimers preclude defendant’s employment manual from creating contractual

obligations between defendant and its employees, and equal opportunity

statements contained in the manual are too vague to do so. We review de novo

the district court’s denial of a motion for judgment as a matter of law, and

reverse only if the evidence points but one way and is not susceptible to any

reasonable inferences supporting the nonmoving party. See Yearous v. Niobrara

County Mem’l Hosp., 128 F.3d 1351, 1353 (10th Cir. 1997).

      Under Colorado law, an implied contract can arise from an employment

manual or handbook. See, e.g., Frymire v. Ampex Corp., 61 F.3d 757, 769 (10th

Cir. 1995). To establish that an employment manual creates contractual

obligations, the employee must show that the employer’s actions manifest to a

reasonable person an intent to be bound by the provisions of the document. See

id.; see also, e.g., Evenson v. Colorado Farm Bureau Mut. Ins. Co., 879 P.2d 402,

408-09 (Colo. Ct. App. 1993). Ordinarily, the issue of whether a contract exists

                                         -2-
is one of fact to be resolved by the jury, see, e.g., Vasey v. Martin Marietta Corp.,

29 F.3d 1460, 1464 (10th Cir. 1994) (applying Colorado law), unless, for

example, there is a clear and conspicuous disclaimer indicating the employer did

not intend to create a contract or the alleged promises are too vague, see, e.g.,

Clark v. Town of Kersey, 973 F. Supp. 1217, 1220 & n.4 (D. Colo. 1997)

(applying Colorado law).

      The employment manual at issue here contains several disclaimers

indicating that the manual does not change the at-will nature of plaintiff’s

employment with defendant. The district court correctly held that these

disclaimers did not defeat plaintiff’s contract claim, which was not premised on a

right not to be terminated without cause or without application of required

procedural protections. The court instead focused on the representations in the

employment manual that defendant would not treat its employees in a

discriminatory manner. Cf. Stahl v. Sun Microsystems, Inc., 775 F. Supp. 1394,

1396 & n. 3 (D. Colo. 1991), aff’d, 19 F.3d 533 (10th Cir. 1994) (disclaimer

indicating employment relationship was at-will is not relevant to claim of failure

to follow employment manual’s procedures regarding reassignment of territory).

      Despite its disclaimer of the creation of any contractual obligations, the

employment manual also contains express language mandating that defendant not

discriminate against its employees when hiring, discharging, transferring or


                                          -3-
promoting them. This is sufficient to create a triable issue of fact as to whether

the defendant intended to enter into a contractual obligation with its employees.

See, e.g., Evenson, 879 P.2d at 409.

      Moreover, defendant’s management personnel indicated that they viewed

the provisions of the employee handbook as mandatory. See Mariani v. Rocky

Mountain Hosp. & Med. Serv., 902 P.2d 429, 435 (Colo. Ct. App. 1994) (citing

Evenson as holding that even if employment manual contains disclaimer and

includes language making disciplinary procedures discretionary, rather than

mandatory, issue of existence of contract should be submitted to jury if

supervisors treated provisions of manual as mandatory), aff’d on other grounds,

916 P.2d 519, 523 (Colo. 1996). For these reasons, the district court did not err

in submitting to the jury the question of whether defendant’s employment manual

created a contract between defendant and its employees.

      Defendant also argues that the equal opportunity statements in its

employment manual were too vague to create any binding contractual obligation.

Unlike cases in which courts have held that general statements of fair treatment

and equal opportunity are too vague to create a binding contractual obligation

under Colorado law, 2 the language at issue here, in addition to providing that


2
      See Vasey, 29 F.3d at 1465-66 (general statement regarding commitment to
affirmative action insufficient to support contract claim); Fejes v. Gilpin
                                                                       (continued...)

                                         -4-
defendant is committed to having a fair employment policy, specifically mandates

that “[a]ll persons having the authority to hire, discharge, transfer or promote

personnel shall support, without reservations, a non-discriminatory policy of

hiring or transferring to any vacancy, any qualified applicant without regard to

race, color, religion, national origin, age, sex or otherwise qualified handicapped

or disabled.” Rec., Vol. I at 101. This language is sufficient to establish a triable

fact as to whether the parties entered into a contract requiring defendant to refrain

from discriminating against its employees. See Stahl v. Sun Microsystems, Inc.,

19 F.3d 533, 536-37 (10th Cir. 1994) (employment manual’s statement that

employer would treat it employees equitably and fairly, in addition to elaborate

compensation plan, is sufficient to support finding of existence of contract);

Tuttle v. ANR Freight Sys., Inc., 797 P.2d 825, 827-28 (Colo. Ct. App. 1990)

(employment handbook indicating employer’s commitment to providing fair and

equitable working environment and fair compensation to its employees, together

with detailed compensation policies, is sufficient to create triable issue of fact as

to existence of contract).




2
 (...continued)
Ventures, Inc., 960 F. Supp. 1487, 1496 (D. Colo. 1997) (applying Colorado law;
holding language in employment handbook stating employer does not and will not
discriminate was insufficient to serve as basis for contract claims).

                                          -5-
      Lastly, defendant asserts that the district court erred in analyzing plaintiff’s

breach of contract claim under a theory of promissory estoppel. Defendant failed

to raise this issue before the district court. See Sac & Fox Nation v. Hanson, 47

F.3d 1061, 1063 (10th Cir. 1995) (absent jurisdictional or manifest error, this

court will not address issue raised for first time on appeal). In any event, this

argument is meritless.


II.   DISCRIMINATORY DISCHARGE

      Defendant argues that the trial court erred in denying its motion for

summary judgment because plaintiff failed to establish a prima facie case of

discrimination. When a discrimination claim has been fully tried to the jury, the

issue of whether plaintiff established a prima facie case drops out and we

consider only whether plaintiff has proved discrimination at trial. See Coleman v.

B-G Maintenance Management of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.

1997) (citing Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482,

1491 (10th Cir. 1994)). And, although defendant argues that the jury’s finding of

discrimination was contrary to the weight of the evidence, reviewing the record in

the light most favorable to plaintiff, see Thunder Basin Coal Co. v. Southwestern

Pub. Serv. Co., 104 F.3d 1205, 1212 (10th Cir. 1997), we determine that there

was sufficient evidence to support the jury’s determination.



                                          -6-
      Defendant challenges the trial court’s refusal to give its proposed jury

instructions which would have required the jury to consider that defendant

replaced plaintiff with another Hispanic male. This court reviews the trial court’s

refusal to give a requested instruction only for abuse of discretion. See Harrison

v. Eddy Potash, Inc., 112 F.3d 1437, 1442 (10th Cir. 1997), petition for cert.

filed, 66 U.S.L.W. 3137 (Aug. 6, 1997) (No. 97-232). The trial court did not

instruct the jury on the elements of a prima facie case; nor was it required to do

so. See Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1307-09 (10th Cir.

1990). Defendant does not advance any authority that required the trial court to

give these instructions. In the absence of such precedence, we cannot say that the

district court abused its discretion in refusing to instruct the jury as requested.

      Defendant next challenges several instructions the trial court did give to the

jury -- including one addressing the agency relationship between a corporation

and its employees, and another detailing plaintiff’s theory of the case. This court

reviews jury instructions de novo, inquiring whether the instructions, as a whole,

“correctly stated the governing law and provided the jury with an ample

understanding of the issues and applicable standards.” Harrison, 112 F.3d at

1442. The jury instructions in this case correctly state the applicable law and

properly focused the jury on the relevant inquiry. Contrary to defendant’s




                                          -7-
assertion, the trial court did not instruct the jury on a hostile work environment

claim.


III.     RULE 60(b)(3) MOTION

         Defendant challenges the district court’s denial of its Fed. R. Civ. P.

60(b)(3) motion for relief from judgment, based upon plaintiff’s post-trial

admission that his attorney advised him to lie about the fact that plaintiff had

consulted with an attorney prior to speaking with the Equal Employment

Opportunity Commission. The district court did not abuse its discretion in

denying this motion. See Anderson v. Department of Health & Human Servs.,

907 F.2d 936, 952 (10th Cir. 1990).

         The judgment is AFFIRMED.



                                                       Entered for the Court



                                                       Carlos F. Lucero
                                                       Circuit Judge




                                            -8-
