                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUL 28 1998
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ELLA PETTIS,

          Plaintiff-Appellant,
 v.

 U. S. WEST COMMUNICATIONS,
                                                             No. 97-2210
 INC.,
                                                     (D.C. No. CIV-95-1549-JC)
                                                      (District of New Mexico)
          Defendant-Appellee,

 GRETCHEN HEDGE,

          Defendant.




                                 ORDER AND JUDGMENT*


Before BRISCOE, Circuit Judge, MURPHY, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


      In 1991 and 1992, U. S. West Communications, Inc. (“U. S. West”), a Colorado

corporation doing business in New Mexico, instituted a reduction-in-force (“RIF”)

program for its operation in New Mexico, which program ultimately affected hundreds of

its employees. As a result thereof, Ella Pettis, who had been employed by U. S. West and

      *
         This order and judgment is not binding precedent, except under the doctrines of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
its predecessor since 1963, lost her job as an Equal Employment Opportunity (“EEO”)

Consultant and her employment with U. S. West was terminated. She later brought suit

against U. S. West for unlawful termination of her employment. The district court

thereafter granted U. S. West’s motion for summary judgment and Pettis now appeals the

judgment entered.

       On December 19, 1995, Pettis filed a complaint in the United States District Court

for the District of New Mexico, naming as defendants U. S. West and two of its

employees, Gretchen Hedge and Darlene Siedschlaw, individually. Pettis identified

herself in the complaint as a Hispanic female citizen of the United States who, at the time

of her discharge, had “credited service” with U. S. West of over 26 years and that she was

then 47 years of age. Hedge and Siedschlaw were described in the complaint as

employees of U. S. West, each of whom “performed most or all of the actions that form

the basis for this complaint . . . .” Under the heading “Factual Allegations” Pettis set forth,

in considerable detail, the chronology leading up to her discharge, including U. S. West’s

decision in 1991 and 1992 to institute a RIF program, which involved, inter alia,

declaring her as “surplus,” and performing a subsequent “evaluation” to determine

whether she should be retained in her then current position as an EEO Consultant or be

offered another position with the company, which “evaluation” was conducted, in the




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main, by Hedge and Siedschlaw.1

       Based on the “Factual Allegations” in her complaint, Pettis alleged five claims for

relief: (1) U. S. West intentionally interfered with her right to enhanced retirement benefits

and, in so doing, violated 29 U.S.C. § 1001, et seq. (“ERISA”); (2) the defendants,

apparently all three, violated the provisions of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621, et seq.; (3) U. S. West terminated her employment based on

her race, Hispanic, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000(e), et seq.; (4) Hedge and Siedschlaw conspired with “discriminatory animus” based

on age and race to deprive her of her constitutional right to equal protection in violation of

42 U.S.C. § 1985; and (5) U. S. West under New Mexico law breached its contract with

her.

       On or about April 15, 1996, a joint answer was timely filed on behalf of U. S. West

and Hedge.2 Although it is not in the record before us, it would appear that U. S. West and

Hedge, on July 10, 1996, filed a motion to dismiss claims made against each of them. On

August 29, 1996, the district court granted Hedge’s motion to dismiss and dismissed with

prejudice claims 1, 2, 3 and 5 in the complaint against Hedge in her individual capacity



       A part of U. S. West’s RIF program was to reduce the number of EEO
       1

Consultants from twelve to seven. Seventy-eight U. S. West employees applied for the
seven EEO Consultant positions, and Pettis was one of the applicants.

      We are advised that defendant Siedschlaw was never served with process.
       2

Accordingly, Siedschlaw is not a party to the present appeal.


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and, at the same time, dismissed with prejudice claim 4 of the complaint against both

Hedge and U. S. West. Claims 1, 2, 3 and 5 against U. S. West remained unresolved.

       On or about March 10, 1997, U. S. West filed a motion for summary judgment,

supported by a memorandum brief with various attachments thereto, which included

excerpts from numerous depositions. Pettis apparently filed a response to U. S. West’s

motion for summary judgment, but, again, we cannot find it in the record before us.

       In any event, on June 3, 1997, the district court, in an unpublished memorandum

opinion, granted U. S. West’s motion for summary judgment on the remaining claims

against U. S. West, i.e., claims l, 2, 3 and 5. Specifically, the district court held that on the

record before it, U. S. West was entitled to summary judgment on Pettis’ claims based on

ERISA, age and race discrimination, as well as Pettis’ claim based on implied contract

under New Mexico state law.

       As concerns Pettis’ ERISA claim, the district court held that Pettis had not made a

sufficient showing that in not rehiring Pettis U. S. West had a specific intent to interfere

with her pension benefits. In this regard, Pettis, though terminated, still had certain

pension benefits, though she, of course, no longer had a right to enhance those benefits by

continued employment with U. S. West. See Babich v. Unisys Corp., 859 F. Supp. 454,

457-58 (D. Kan. 1994); Clark v. Resistoflex Co., 854 F.2d 762, 771 (5th Cir. 1988).

       As concerns Pettis’ claim based on age and race discrimination, the district court

concluded that Pettis had not made a sufficient showing that she was treated less favorably


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than other employees who were not within the age or race protected classes as she was

required to do under Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir. 1994). In this

connection, the district court noted that of the 17 applicants who ranked higher than Pettis,

nine were 40 years of age or older, and that of four Hispanic applicants, two were offered

EEO Consultant positions.

       In connection with Pettis’ claim of breach of implied contract, the district court held

that under New Mexico law her employment with U. S. West was “at will” employment,

citing Hartbarger v. Frank Paxton Co., 857 P.2d 776 (N.M.), cert. denied, 510 U.S. 1118

(1993), and that U. S. West’s at-will provision in its Code of Business Ethics, which Pettis

had read, made any expectations of continued employment unreasonable.

       Petits’ basic position on appeal is that summary judgment was improper because

there were genuine issues of material fact which precluded summary judgment. Fed. R.

Civ. P. 56(c) provides, in part, as follows:

              “. . . The judgment sought shall be rendered forthwith if 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 that
              the moving party is entitled to a judgment as a matter of law
              . . . .”

       In Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), the Supreme Court stated

that “the plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on

                                               -5-
which that party will bear the burden of proof at trial.” In Catrett, the Court went on to

add that Rule 56 does not require that “the moving party support its motion with affidavits

or other similar materials negating the opponent’s claim.” Id. at 323. (Emphasis in

original.)

       In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986), the Supreme Court

stated that where a defendant in a “run-of-the-mill civil case” files a pre-trial motion for

summary judgment, “the judge must ask himself not whether he thinks the evidence

unmistakably favors one side or the other but whether a fair-minded jury could return a

verdict for the plaintiff on the evidence presented.” (Emphasis added.) In Anderson, the

Court also stated that “summary judgment will not lie if the dispute about a material fact is

‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. at 248. See also Carey v. U.S. Postal Serv., 812 F. 2d 621, 623

(10th Cir. 1987).

       As stated, on appeal Pettis’ basic position is that the case was not “ready” for

summary judgment. This is not our view of the matter. Under the authorities above cited,

our study of the record convinces us that the action taken by the district court was proper.

In short, we agree with the district court’s analysis of the matter and its granting of

summary judgment in favor of U. S. West on claims 1, 2, 3 and 5 of the complaint. As

indicated, the district court, inter alia, dismissed claim 4 of the complaint against both U.

S. West and Hedge on August 29, 1996, and Pettis’ brief in this court makes no challenge


                                              -6-
to that order. Pettis’ brief in this court challenges only the district court’s ruling of June 3,

1997.

        Judgment affirmed.

                                            ENTERED FOR THE COURT

                                            Robert H. McWilliams
                                            Senior Circuit Judge




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