                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    THEOLA ANN JARRETT,

                Plaintiff-Appellant,

    v.                                                   No. 99-3134
                                                    (D.C. No. 97-CV-2487)
    SPRINT/UNITED MANAGEMENT                               (D. Kan.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and LUCERO , 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      This order and judgment is not binding precedent, except under the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 Theola Ann Jarrett, proceeding pro se on appeal, appeals the

district court’s order resolving her employment claims in favor of defendant

and its denial of her post-judgment motion. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291 and affirm.

      Plaintiff was employed by defendant. In May of 1989, due to a mental

disability, she was unable to return to work. She received short term disability

benefits until November 17, 1989, when her long term disability benefits began.

She claims she was discharged in violation of Title VII, the Rehabilitation Act,

and the Americans with Disabilities Act (ADA). The district court entered

summary judgment on plaintiff’s claim that defendant’s failure to accommodate

her disability violated the Rehabilitation Act and the ADA, and dismissed her

remaining claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

Following the entry of judgment in favor of defendant, plaintiff filed a motion

to set aside the judgment, pursuant to Fed. R. Civ. P. 59, which the district

court denied.

      On appeal, plaintiff asserts that the district court erred in denying her

motion to set aside the judgment, claiming her attorney’s illness had impaired his

ability to represent her, her motion to compel discovery should have been granted,

and the judgment violated her rights to due process and equal protection.

Plaintiff also challenges the summary judgment and dismissal order on the


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following grounds: (1) the district court erred in finding that plaintiff’s

employment was terminated on November 17, 1989 when her short term

disability benefits expired, (2) defendant failed to meet its burden of production

for summary judgment, (3) there exists a private right of action under the

Rehabilitation Act, (4) defendant’s contracts with the federal government

qualified as a federal subsidy under the Rehabilitation Act, (5) plaintiff’s claims

pre-dated the ADA based on a continuing violation theory, and (6) the district

court failed to address some of her claims.

       We review the district court’s denial of plaintiff’s post-judgment motion

for an abuse of discretion.    See Phelps v. Hamilton , 122 F.3d 1309, 1324

(10th Cir. 1997). A Rule 59(e) motion should be granted only to correct errors

of law or to consider newly discovered evidence.           See id.

       Plaintiff has demonstrated no prejudice due to her attorney’s illness or

the denial of her motion to compel. She has not alleged how her attorney’s

representation was compromised due to his illness during the summer before

he was granted leave to withdraw on November 6, 1998. As for her motion to

compel, she sought discovery relevant to her Rehabilitation Act claim, which,

as we discuss below, she abandoned before the district court. Therefore, the

discovery she sought was irrelevant. Furthermore, plaintiff failed to file an

affidavit pursuant to Fed. R. Civ. P. 56(f).         See United States v. Simons , 129 F.3d


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1386, 1388 (10th Cir. 1997) (“Where a movant has met the initial burden required

to support summary judgment, the non-movant then must either establish the

existence of a triable issue of fact under Fed. R. Civ. P. 56(e) or explain why

he cannot . . . under Rule 56(f).”) (quotation omitted).

       Plaintiff also claims that her due process and equal protection rights were

violated, and the only way to vindicate those rights is to set aside the judgment

and begin anew. The argument is nothing more than a request for another

opportunity to resist entry of a judgment against her, which the district court was

not obliged to entertain.   See Van Skiver v. United States , 952 F.2d 1241, 1243

(10th Cir. 1991) (appeal from denial of Rule 60(b) motion). Accordingly, we

conclude that the district court did not abuse its discretion in denying plaintiff’s

post-judgment motion.

       Turning to the judgment, w e review de novo the district court’s grant of

summary judgment, viewing the record in the light most favorable to the party

opposing summary judgment. See McKnight v. Kimberly Clark Corp., 149 F.3d

1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if there is no

genuine issue of material fact and the moving party is entitled to judgment

as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Fed. R. Civ. P. 56(c). Similarly, our review is de novo when considering

an order dismissing a complaint for failure to state a claim for relief under


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Rule 12(b)(6) of the Federal Rules of Civil Procedure, using the same standard

applied by the district court.   See Ordinance 59 Ass’n v. United States Dep’t of

Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998). “We accept as true all

well-pleaded facts, as distinguished from conclusory allegations, and view those

facts in the light most favorable to the nonmoving party.”     Maher v. Durango

Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint

pursuant to Rule 12(b)(6) will be upheld only if “it appears beyond doubt that the

plaintiff can prove no set of facts in support of [her] claim which would entitle

[her] to relief.”   Conley v. Gibson , 355 U.S. 41, 45-46 (1957).

       The judgment was based in large part on two critical circumstances:

(1) plaintiff abandoned her claims based on the Rehabilitation Act, and

(2) plaintiff failed to controvert defendant’s evidence that her employment was

terminated on November 17, 1989, the date her temporary disability benefits

ended, and before the effective date of the ADA. On the first point, in response

to defendant’s motions for summary judgment and dismissal, plaintiff

acknowledged defendant’s argument that she could not state a cause of action

under the Rehabilitation Act and stated, “[w]ithout arguing those po[i]nts,

Plaintiff contends that she brings her claims under the American[s] with

Disabilities Act of 1990.” R. vol. 2, doc. 77 at 5. The waiver of her

Rehabilitation Act claims is clear and unequivocal.      Because plaintiff waived


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her claims brought pursuant to the Rehabilitation Act, we need not address her

appellate issues based on it.   Cf. O’Connor v. City & County of Denver        , 894 F.2d

1210, 1214 (10th Cir. 1990) (appellate court will not consider claims abandoned

in district court).

       The other dispositive issue is whether plaintiff produced evidence to defeat

summary judgment on defendant’s assertion that her employment ended on

November 17, 1989. This factor is critical to plaintiff’s ADA claims because the

Act’s effective date was July 26, 1992, well after the alleged termination date of

November 17, 1989. The ADA is not effective retroactively.          See 42 U.S.C.

§ 12111 note--Effective Date (ADA “shall become effective 24 months after the

date of enactment [July 26, 1990].”);    Huels v. Exxon Coal USA, Inc. , 121 F.3d

1047, 1049 (7th Cir. 1997);     Morrison v. Carleton Woolen Mills, Inc.      , 108 F.3d

429, 443 (1st Cir. 1997);   Brown v. General Tel. Co. , 108 F.3d 208, 209 (9th Cir.

1997); Gonzales v. Garner Food Servs., Inc.       , 89 F.3d 1523, 1525 (11th Cir. 1996);

Buchanan v. City of San Antonio      , 85 F.3d 196, 197 (5th Cir. 1996);    Smith v.

United Parcel Serv. of Am., Inc.    , 65 F.3d 266, 266 (2d Cir. 1995);     cf. Office of

Senate Sergeant at Arms v. Office of Senate Fair Employment Practices           , 95 F.3d

1102, 1107 (Fed. Cir. 1996) (“[T]he ADA, as incorporated into the [Government

Employee Rights Act], does not require a retroactive accommodation for




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a disability.”). Therefore, if defendant’s alleged violations of the ADA occurred

before July 26, 1992, defendant cannot be held accountable under the ADA.

       Defendant produced the affidavit of its Benefits Services Manager to

establish plaintiff’s termination date.   See R. vol. 1, doc. 66, attach. B. Plaintiff

argues that a document entitled “Individual Terminations,” explaining long term

disability coverage, refutes defendant’s evidence.     See id. vol. 2, doc. 77, ex. A.

According to plaintiff, the Individual Terminations document provided that an

insured was employed by defendant as long as he or she was receiving long term

disability benefits. Plaintiff alleges she remained employed by defendant as late

as 1993 because she received benefits for a short period during that year. The

district court declined to consider the Individual Terminations document on

summary judgment because it was not properly authenticated and did not establish

that it applied during the dates in question, let alone that it proved that plaintiff

continued to be defendant’s employee as long as she received some form of long

term benefits.

       We will “consider only admissible evidence in reviewing an order granting

summary judgment.”       Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1541 (10th

Cir. 1995). “[T]he nonmoving party need not produce evidence ‘in a form that

would be admissible at trial,’ but the content or substance of the evidence must




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be admissible.”   Thomas v. International Business Machs.      , 48 F.3d 478, 485

(10th Cir. 1995) (quoting   Celotex Corp. , 477 U.S. at 324).

       Here, plaintiff merely attached the Individual Termination document to her

affidavit. She did not establish its authenticity or legal relevance to her claims.

Accordingly, we determine that the district court did not abuse its discretion in

refusing to consider the Individual Terminations document.        See Mitchael v.

Intracorp, Inc. , 179 F.3d 847, 854 (10th Cir. 1999) (district court’s ruling to

exclude evidence at summary judgment stage reviewed for abuse of discretion).

Consequently, we hold that plaintiff failed to demonstrate a genuine issue of fact

on the question of when her employment terminated. Her employment ended

before the effective date of the ADA; therefore, the district court properly

dismissed plaintiff’s ADA claims.

       Contrary to plaintiff’s argument that defendant was required to demonstrate

that its own witnesses would not help her case, we conclude that defendant met its

initial burden on summary judgment.         Cf. Celotex Corp. , 477 U.S. at 323 (moving

party not required to produce materials “     negating the opponent’s claim”).

Plaintiff’s continuing violation theory is rejected because she has offered no

evidence to support it. Finally, we reject plaintiff’s argument that not all of her

claims were resolved because we determine that the district court’s

comprehensive orders resolved plaintiff’s well-pleaded claims.


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

is AFFIRMED. The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Wade Brorby
                                                  Circuit Judge




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