* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAMELA J. TORRE, individually and PAMELA J. TORRE, as natural guardian and next friend of TRISHA B. TORRE, Plaintiffs-Appellants and Cross-Appellees,

v. FEDERATED MUTUAL INSURANCE COMPANY, Federated Mutual Insurance Company Medical Plan #501 Defendant-Appellee and Cross-Appellant, and JOHN CUMMINGS, individually and as Medical Plan #501 Administrator; WILLIAM HAEGELE, individually and as Regional Manager, a/k/a Bill Haegele; THOMAS LAURITZEN, individually and as Federated Mutual Insurance Company District Manager, a/k/a Tom Lauritzen, Defendants-Appellees. Nos. 95-3411 & 96-3010 (D.C. No. 91-CV-4235) (D. Kan.)

ORDER AND JUDGMENT *1 Ms. Torre also alleged discrimination in violatio n of Minnesota law,

intentional infliction of emotional distress, and t ortious interference with prospective business advantage. Torre II, 897 F. Supp. at 1339. The district court entered summary judgment against Ms. Torre on those claims. See Torre I, 854 F. Supp. at 834. In the "Statement of the Issu es" of her appellate brief, Ms. Torre claims this was error. However, because Ms. Torre presents no arguments within her brief in support of this contention, we decline to review this claim. Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (perfunct ory complaints that fail to frame and develop an issue are insufficient to invoke appellate review). -2- Michael B. Myers (Cheryl D. Myers with him on the b riefs) of Myers & Myers, Topeka, Kansas, for Plaintiffs-Appellants and Cross -Appellees. R. Scott Davies (Michael Thomas Miller with him on the briefs) of Briggs andMorgan, Minneapolis, Minnesota, for Defendants-Appellees and CrossAppellant.

Before BRORBY, HOLLOWAY and EBEL , Circuit Judges.
Ms. Pamela Torre brought this action against Federated Mutual Insurance Company ("Federated") alleging, inter alia , (1) breach of employment contract; (2) sex discrimination and retaliatory acts in viol ation of Title VII of the Civil Rights Act of 1964; and (3) violations of the Emplo yee Retirement Income Security Act of 1974. 1 The district court issued partial summary judgmen t against Ms. Torre on all three claims. Torre v. Federated Mut. Ins. Co. , 854 F. Supp. 790, 834 (D. Kan. 1994) ( Torre I ). The court then bifurcated the action for trial. Id. The parties tried Ms. Torre's breach of contract claim to a jury, which returned a $320,000 verdict for Ms. Torre on Octobe r 4, 1994. The parties then-3-

tried Ms. Torre's remaining Title VII and Employee Retirement Income Security Act claims to the court, which found for Federated on August 4, 1995. Torre v. Federated Mut. Ins. Co. , 897 F. Supp. 1332, 1380 (D. Kan. 1995) ( Torre II ).

Ms. Torre now appeals the district court's entry of partial summary judgment on her claims, and its final judgment agai nst her on the remainder of her Title VII and Employee Retirement Income Security A ct claims. See Torre I, 854 F. Supp. at 834; Torre II, 897 F. Supp. at 1380. Ms. Torre also appeals the district court's refusal to grant her interest on t he jury award for the ten months between the date of the jury verdict and when the d istrict court entered its final judgment on August 4, 1995. See Torre v. Federated Mut. Ins. Co. , 906 F. Supp. 616 (D. Kan. 1995) ( Torre V) . Federated cross-appeals the district court's fai lure to enter judgment as a matter of law in Federated's favor on Ms. Torre's breach of contract claim. See Torre v. Federated Mut. Ins. Co. , 897 F. Supp. 1327 (D. Kan. 1995) ( Torre III

). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 (1994).

The district court, in its ruling on Ms. Torre's Ti tle VII and Employee Retirement Income Security Act claims, engaged in alengthy and thorough review of the facts of this case. See Torre II, 897 F. Supp. at 1340-59 ¶¶ 1-130. Here, we provide only a greatly abbreviated factual recit al, stating only those facts that-4-

provide helpful background to our legal analysis. We refer readers seeking further detail to the district court opinion.

Federated hired Ms. Torre on February 10, 1988, as a "Marketing Representative," i.e. , an insurance salesperson. Torre II, 897 F. Supp. at 1340 ¶¶ 1,7. Ms. Torre's employment contract assigned h er the right to market Federated's insurance products throughout, inter alia , all of Shawnee County,
Kansas. Torre III, 897 F. Supp. at 1329. On April 14, 1988, Federat ed removed from Ms. Torre's territory assignment that part of Shawnee County outside the city limits of Topeka. Torre III, 897 F. Supp. at 1329. In her breach of contract claim, Ms. Torre asserted Federated breached her employment contract by removing that portion of Shawnee County from her te rritory assignment. Torre v. Federated Mut. Ins. Co. , 1994 WL 541773, at *1 (D. Kan. 1994) ( Torre IV ).

As a Federated employee, Ms. Torre received coverag e under Federated's Medical Plan #510, an "employee welfare benefit pla n" within the scope of the Employee Retirement Income Security Act. Torre II, 897 F. Supp. at 1340-41 ¶¶ 2, 11. The plan has individual lifetime maximum coverage limits of2The plan defines "mental illness" (falling under the mental/nervous

coverage limits) as "a mental disorder or a functio nal nervous disorder and includes psychiatric or psychological treatment of any physical condition ." Id. at 1341 n.3 (emphasis added.) -5- $1,000,000 for medical benefits and $50,000 for men tal/nervous benefits. 2 Id. at 1341 ¶ 11. Ms. Torre's daughter, Trisha Torre, was also covered under the plan. Id. at 1341 ¶¶ 8, 11. Trisha suffered from congenital health problems that resulted in, inter alia , behavioral, emotional and developmental language problems. Torre I, 854 F. Supp. at 799. Since late 1989, Trisha has received a great deal of health care for these problems. See Torre II, 897 F. Supp. at 1341- 51. Ms. Torre and Federated have engaged in a long -term dispute over the extent and type of Trisha's benefits under Federated's med ical plan. See id. This dispute underlies Ms. Torre's Employee Retirement Income Se curity Act claims.

As a Marketing Representative, Ms. Torre initially worked under Steve Rohr, a "District Marketing Manager," and his super ior, Bill Haegele, a "Regional Marketing Manager." Id. at 1340 ¶ 1, 1352 ¶ 84. In December 1989, Mr. Hae gele hired Thomas Lauritzen to replace Mr. Rohr. Id. at 1352 ¶ 84, 1355 n.29. Beginning as early as March 1989, Mr. Rohr, Mr. Hae gele, and, in December, Mr. Lauritzen, discussed with Ms. Torre the possibility of her opening a joint office in Topeka with Mr. Jeff Richardson, another Marketing Representative who also3 The Monthly Leadership Council Award is a program Federated designed

to recognize the efforts and achievements of Market ing Representatives. Id. at 1353 n.26. Each Regional Marketing Manager selects a winner from those Marketing Representatives recommended by the Distri ct Marketing Managers in the region. Id. Marketing Representatives cannot win the award mo re than once a year. Id. -6- represented Federated in Topeka. Id. at 1354 ¶ 98 & n.28. The decision to open the office with Mr. Richardson ultimately was made by Ms. Torre in early 1990. Id. at 1378 ¶ 81.

Ms. Torre's superiors thought highly of her ability and productivity, and considered her a successful and promotable employee

. Id. at 1352-53, 1356-57 ¶¶ 84, 93, 113-14. In October of both 1988 and 198 9 and March 1990, after recommendations by Messrs. Rohr and Lauritzen, Mr. Haegele selected Ms. Torre as the regional winner of the "Monthly Leadership C ouncil Award." 3 Id. at 1353 ¶ 92, 1355 ¶ 105. In April 1991, upon Mr. Lauritze n's recommendation, Mr. Haegele selected Mr. Richardson for the award rathe r than Ms. Torre. Id. at 1357 ¶ 115.

Ms. Torre also won a "Big Hitter" award in both 199 0 and 1991. Id. at 1356-57 ¶¶ 110, 117-19. Federated instituted the B ig Hitter award in 1990 to award and recognize Marketing Representatives who m eet certain sales4She also inquired about being transfered to Atlan ta, Georgia, or Phoenix,

Arizona. Id. at 1355-56 ¶¶ 99, 112. Ms. Torre did not receive a transfer. -7- production goals. Id. at 1356 ¶ 109. The award was to be presented to t he recipients at the regional annual kickoff meetings, before peers, supervisors, and upper-level management. Id. Although Mr. Haegele presented Ms. Torre with her 1990 award at the 1990 kickoff meeting, in 1991 he did not publicly present the award to Ms. Torre. Id. at 1356-57 ¶¶ 109-10, 117, 1375 ¶ 68. Mr. Haegele testified he, mistakenly, did not publicly present the 1991 award to Ms. Torre out of personal embarrassment that only one of his Mark eting Representatives met the necessary sales criteria. Id. at 1357 ¶¶ 117-18, 1375-76 ¶¶ 68-70.

From the commencement of her employment with Federated, Ms. Torre sought to advance her career through promotion. 4 See id. at 1352 ¶ 82, 1353 ¶¶ 91, 94, 1356 ¶¶ 112-13. In Federated's promotio n system, persons considered for promotion must undergo a formal career assessme nt as a prerequisite for promotion. Id. at 1352 ¶ 86. Although Ms. Torre informed a numbe r of her superiors of her interest in promotion, through May 1991 Federated had not given
Ms. Torre a career assessment. See id. at 1352-53, 1356 ¶¶ 82, 91, 94, 112-13. On May 23, 1991, Ms. Torre filed sex discrimination complaints with both the Kansas Commission on Civil Rights and the Equal Emp loyment Opportunity-8-

Commission. Id. at 1357 ¶ 116. In response, Federated's corporate counsel, Debra ReMine, sent a letter to the Kansas Commissio n on Civil Rights replying to Ms. Torre's complaint. Id. at ¶ 120. In that letter Ms. ReMine stated Ms. Tor re remained "in line for a career assessment" and disc ussed why Federated had not yet offered Ms. Torre one. Id. at 1357 ¶ 120. Ms. Torre never received a career assessment, and was never promoted.

We begin our analysis by first addressing Ms. Torre 's contention the district court erred in entering partial summary judgment ag ainst her on her Title VII and Employee Retirement Income Security Act claims. In her opening brief, Ms. Torre fails to develop this argument, stating only that the controverted claims "should have gone to trial because they involved di sputed issues of material fact." She does not elaborate on the alleged disputed issu es of material fact. In her reply brief Ms. Torre refers us to pleadings she fi led with the district court "as proper support" for her contention the district cou rt's grant of partial summary judgment was erroneous. Ms. Torre's cursory raisin g of this issue and her reference to pleadings filed with the district court are insufficient to preserve the issue for appellate review. See United States v. Kunzman , 54 F.3d 1522, 1534 (10th Cir. 1995) (appellant must present reasoned a rguments addressing grounds for appeal); Murrell , 43 F.3d at 1389 n.2 (perfunctory complaints that fail to-9-

frame and develop an issue are insufficient to invo ke appellate review); Hunter v. Allis-Chalmers Corp. , 797 F.2d 1417, 1430 (7th Cir. 1986) (claims are n ot "preserved by references to documents filed in the district court"). Accordingly, we decline to address the merits of this claim.

We next consider Ms. Torre's assertion the districtcourt erred in ruling against her on her remaining Title VII and Employee Retirement Income Security Act claims. Initially, we discuss her Employee Ret irement Income Security Act claims. Ms. Torre asserts both a claim for benefit s under 29 U.S.C. § 1132(a)(1)(B) (1994) and a discrimination claim u nder 29 U.S.C. § 1140 (1994). We then consider Ms. Torre's Title VII claims, whic h also are twofold: retaliation and sex discrimination through disparate treatment.

Ms. Torre engages in a two-pronged attack on the di strict court's holding regarding her claim for benefits under 29 U.S.C. § 1132(a)(1)(B). First, she asserts the district court applied an incorrect leg al standard in reviewing Federated's benefit decisions. Second, she claims the court's ultimate finding Federated did not violate § 1132 was erroneous.

We begin our analysis by briefly discussing both th e standard of review-10-

applicable to the district court's review of Federated's benefit decisions and the standard of review applicable to our own review of the district court's ultimate conclusions. Because Federated's medical plan gran ts Federated, as the plan administrator, discretion to determine eligibility for benefits under the plan, Torre
I, 854 F. Supp. at 813, Federated's benefits decisio ns must be upheld unless arbitrary and capricious. Chambers v. Family Health Plan Corp. , 100 F.3d 818, 825 & n.1 (10th Cir. 1996) (citing Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989)). A district court's holding that a plan administrator's benefit decision was not arbitrary and capricious i s a legal conclusion. Sandoval v. Aetna Life & Cas. Ins. Co. , 967 F.2d 377, 380 (10th Cir. 1992). Accordingly, "our review of the district court decision, althoug h not the underlying administrator's decision, is plenary." Id. ; see also Chambers , 100 F.3d at 827 (review of a trial court's application of the arbit rary and capricious standard is de

novo ). However, we give due deference to the district court's credibility determinations. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 39 F.3d 1482, 1492 (10th Cir. 1994).

Ms. Torre asserts the district court erred by faili ng to apply heightened scrutiny to Federated's benefit decisions because F ederated operated under a conflict of interest. Ms. Torre is correct that a conflict of interest on the part of a-11-

plan administrator with discretionary authority "tr iggers a less deferential standard of review." Chambers , 100 F.3d at 825. In Chambers we held courts reviewing decisions of conflicted plan administrato rs should still apply an arbitrary and capricious standard, but should "decr ease the level of deference given to the ... administrator's decision in proportion to the seriousness of the conflict." Id. We found the arbitrary and capricious standard to be a flexible one, and applied a "sliding scale" approach wherein any conflict of interest is simply "weighed as a facto[r]" in reaching the ultimate de termination of whether the administrator's decision was arbitrary and capricio us. Id. at 825 (quoting
Firestone , 489 U.S. at 115) Concomitantly, we rejected as u nduly strict the "presumptively void" test used by some circuits, wh erein "a decision rendered by a conflicted plan administrator is presumed to be a rbitrary and capricious unless the administrator can demonstrate that either (1) u nder de novo review, the result reached was nevertheless 'right' or (2) the decisio n was not made to serve the administrator's conflicting interest." Id. at 826; see also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1566-67 (11th Cir. 1990) (detailin g and applying that test), cert. denied, 498 U.S. 1040 (1991). The rejected presumptively void test thus shifts the burden of proving its decision was not arbitrary and capricious to the conflicted plan administrator. See Chambers , 100 F.3d at 826 (quoting
Brown , 898 F.2d at 1566-67).-12-

In the instant case, the district court found "Fede rated's dual role as Plan ... Administrator and issuing insurance company create[ d] a strong conflict of interest." Torre I, 854 F. Supp. at 815. Accordingly, contrary to Ms . Torre's assertion, the district court clearly applied a hei ghtened level of scrutiny in determining whether Federated's benefit decisions w ere arbitrary and capricious. See Torre II, 897 F. Supp. at 1361-66 ¶¶ 9-31. In fact, the co urt applied the presumptively void test we rejected in Chambers , rather than the sliding scale approach we espoused in that case. Chambers , 100 F.3d at 826.

We do not find the district court's use of the pres umptively void test to be reversible error because the district court's use o f this test resulted in even less deference to Federated's benefits decisions than wo uld have resulted under a sliding scale analysis. Instead of simply consider ing the conflict as a factor in deciding whether Federated's decisions were arbitra ry and capricious, the district court placed the burden upon Federated to prove it s decisions were not tainted by self-interest. See Torre II, 897 F. Supp. at 1361-66 ¶¶ 9-31. The district co urt carefully examined and considered the conflict of i nterest faced by Federated, and, in holding Federated's benefit decisions were not arbitrary and capricious, found the conflict to have had no impact on Federat ed's decisions. Id. at 1363-65 ¶¶ 19, 25. Accordingly, because the district courtcarefully considered-13-

Federated's conflict of interest and applied a redu ced deference arbitrary and capricious form of review, we will not reverse the district court's benefit decisions on standard of review grounds.

We now address Ms. Torre's substantive claim under 29 U.S.C. § 1132 to recover health benefits allegedly due and owing und er the terms of the plan. On appeal, Ms. Torre objects to Federated's classification of some of Trisha's expenses as mental/nervous, rather than medical. S he also asserts Federated had a duty to assist with the selection of a residential treatment facility. The district court found the controverted expenses were for psyc hological treatment and, therefore, Federated's allocation of those expenses to mental/nervous coverage was not arbitrary or capricious under the terms of the plan. Torre II, 897 F. Supp. at 1361-64 ¶¶ 11-20. The district court also found , after exhaustive review of the terms of the plan, Ms. Torre had no right or entitl ement to assistance from Federated in placing Trisha in a residential treatm ent facility. Id. at 1365-66 ¶¶ 26-31. After engaging in plenary review of the district court's decision, and, in so doing, considering Federated's conflict of inter est under the proper "sliding scale" approach, we affirm the district court's con clusion for substantially the reasons stated by that court. See id. at 1361-66 ¶¶ 10-20, 26-31.-14-

We next consider Ms. Torre's remaining Employee Ret irement Income Security Act claim: her assertion the district cou rt erred in finding Federated did not violate 29 U.S.C. § 1140, which "prohibits disc rimination against [beneficiaries] of any employee benefit plan for th e purpose of interfering with rights under such plan." Phelps v. Field Real Estate Co. , 991 F.2d 645, 646 (10th Cir. 1993). Ms. Torre asserts Federated discriminated against her for filing health claims by (1) refusing to promote or transfer her a nd (2) through Mr. Lauritzen's forcing her to open a Topeka office with Mr. Richar dson. To prevail on her claim, Ms. Torre had to prove Federated discriminat ed against her with the specific intent to interfere with her employee bene fit rights. See 29 U.S.C. § 1140; see also , e.g. , Phelps , 991 F.2d at 649; Gavalik v. Continental Can Co. , 812 F.2d 834, 851 (3d Cir.), cert. denied, 484 U.S. 979 (1987). We review a district court's finding of or against intentional discrimination for clear error. Sorensen v. City of Aurora , 984 F.2d 349, 351 (10th Cir. 1993); see also Zimmerman v. Sloss Equip. Inc. , 72 F.3d 822, 824-26 (10th Cir. 1995) (district court's § 1140 determination against plaintiff not clearly erroneous, and therefore affirmed).

Initially, Ms. Torre argues the letter written by M s. ReMine to the Kansas Commission on Civil Rights constituted direct evide nce of Federated's intent to-15-

discriminate. After review of the letter, however, we agree with the district court's assessment: the letter is not direct evide nce of discriminatory intent. See
Torre II, 897 F. Supp. at 1367 ¶ 35 & n.43. The letter simply "explains why Mrs. Torre had not yet received a career assessment and indicates that she still 'is' in line for an assessment." Id. at 1367 n.43.

Because the district court found Ms. Torre presente d no direct evidence of discrimination, in addressing her § 1140 claims the court engaged in the threestep burden-shifting analysis set forth by the Supr eme Court in Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 252-56 (1981), and McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 804 (1973). See , e.g. , Humphreys v. Bellaire Corp. , 966 F.2d 1037, 1043 (6th Cir. 1992) ("When applyi ng [§ 1140] ... it is appropriate to employ a Burdine , burden-shifting approach if there is no direct evidence of [discriminatory] motivation."). Under that analysis:
First , the plaintiff has the burden of proving by the pr eponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, no ndiscriminatory reason for the [allegedly discriminatory action]." Third, should the defendant carry this burden, the plaintiff must the n have an opportunity to prove by a preponderance of the evid ence that the legitimate reasons offered by the defendant were no t its true reasons, but were a pretext for discrimination. Burdine , 450 U.S. at 252-53 (quoting McDonnell Douglas , 411 U.S. at 802, 804)-16-

(emphasis added). The Burdine analysis provides a "basic 'order of presentation of proof'" to bring the controversy into focus and "assist in marshaling and presenting relevant evidence" at trial. Elmore v. Capstan, Inc. , 58 F.3d 525, 530 n.7 (10th Cir. 1995) (quoting Carey v. United States Postal Serv. , 812 F.2d 621, 623 (10th Cir. 1987)); Sorensen , 984 F.2d at 352. The ultimate question to be decided by the trier of fact remains whether the pl aintiff proved she was the victim of intentional discrimination. See Elmore , 58 F.3d at 530; Sorensen , 984 F.2d at 352.

On appeal we need not engage in the elaborate burde n-shifting procedure followed by the district court. Elmore , 58 F.3d at 530; Sorensen , 984 F.2d at 352. Rather, once the case has been fully tried, we cons ider only the ultimate question of whether the plaintiff proved the defendant inten tionally discriminated against her. Sorensen , 984 F.2d at 352. "The subsidiary steps in the McDonnell Douglas proof scheme become irrelevant." Id. The district court found Mr. Lauritzen, Ms. Torre's District Marketing Manager in December of 1 989, could have had no discriminatory intent when he encouraged Ms. Torre to open a joint office with Mr. Richardson because at that time he was unaware of Ms. Torre's health benefit claims. Torre II, 897 F. Supp. at 1367-68 ¶¶ 38-39. In regard to M s. Torre's claim premised on Federated's failure to promote ortransfer her, the district court-17-

found Ms. Torre had failed to meet her initial burd en of proving she was at least as qualified as those persons promoted or transferr ed in her stead, and that therefore her discrimination claim failed. Id. at 1369-70 ¶¶ 48-49. W e affirm the holding of the district court on this issue for sub stantially the reasons stated by that court in its final judgment. See id. at 1366-70 ¶¶ 32-49.

We now focus our attention on Ms. Torre's remaining Title VII claims, beginning with her assertion the district court err ed in holding Federated did not intentionally discriminate against her on the basis of her sex. In addressing this claim, the district court again followed the Burdine/McDonnell Douglas burdenshifting approach discussed above, Torre II, 897 F. Supp. at 1370-76 ¶¶ 51-73, and here too we need address only the ultimate ques tion of whether Ms. Torre proved Federated intentionally discriminated agains t her. See Sorensen , 984 F.2d at 352. Because that question is a "pure question of fact," again our review is for clear error. Pitre v. Western Elec. Co. , 843 F.2d 1262, 1266 (10th Cir. 1988).

On appeal, Ms. Torre asserts Federated intentionall y discriminated against her on the basis of her sex by: (1) selecting Jeff Richardson for the April 1991 Leadership Council Award instead of her and (2) notrecognizing her as a recipient of the 1991 Big Hitter Award at the Centr al Region's annual kickoff-18-

meeting. She argues the district court made errone ous findings of fact, which led to its ultimate erroneous conclusion Federated did not intentionally discriminate against her on the basis of her sex. We have revie wed the record and, in light of the district court's detailed findings of fact and resulting conclusions, find her arguments unpersuasive. The district court found M r. Haegele awarded Mr. Richardson the Leadership Council Award to reward " a specific case of outstanding service to a client," rather than to se xually discriminate against Ms.
Torre. Torre II, 897 F. Supp. at 1372-73, 1375 ¶¶ 59-60, 66. The court also found Mr. Haegele's failure to publicly present Ms. Torre with the 1991 Big Hitter Award resulted from his personal embarrassme nt rather than "illegal discriminatory animus." Id. at 1372-76 ¶¶ 58-66, 73. We affirm the district court's holding Federated did not intentionally sex ually discriminate against Ms. Torre for substantially the reasons stated by that court. See id. at 1371-76 ¶¶ 51- 73.

Ms. Torre also contends the district court erred in finding Federated did not retaliate against her for informally complaining ab out alleged sexual discrimination and formally filing charges with the Equal Employment Opportunity Commission and the Kansas Commission on Civil Rights. See id. at 1376 ¶¶ 75, 78. Here too, the district court appli ed the three-step burden-shifting5 Ms. Torre also asserts "the district court erred by failing to deal with

Torre's claim of retaliation with respect to her co mplaints of pervasive sexual bias." We note the district court did examine Ms. Torre's complaints of pervasive sexual bias, albeit in the context of its consideration of her sex discrimination claim rather than her retaliation claim. See Torre II, 897 F. Supp. at 1374-75 & n.49. At any rate, Ms. Torre utterly fails to expl ain how the alleged "pervasive sexual bias" was retaliatory. Given that failure, she fails to sufficiently present her claim for appellate review. See Murrell , 43 F.3d at 1389 n.2 (perfunctory complaints that fail to frame and develop an issue are insufficient to invoke appellate review). -19- analysis, id. at 1376-80 ¶¶ 74-84, whereas we simply review for c lear error its ultimate finding Federated did not retaliate agains t Ms. Torre for protected activity. Sorensen , 984 F.2d at 352; Purrington v. University of Utah , 996 F.2d 1025, 1031 (10th Cir. 1993).

On appeal, Ms. Torre posits five bases for her reta liation claim, claiming Federated retaliated against her by (1) failing to promote or transfer her; (2) forcing her to open a Topeka office; (3) providing her with unfavorable price quotes; (4) failing to give her the Leadership Coun cil Award in April 1991; and (5) failing to publicly recognize her as a recipien t of the 1991 Big Hitter Award at the Central Region's annual kickoff meeting. 5 The district court found Ms. Torre either failed to make even a prima facie case the controverted actions were motivated by illegal retaliatory animus, or failed to show Federated's legitimate, nondiscriminatory reasons for the controverted acti ons were pretextual. Torre II,-20-

897 F. Supp. at 1376-80 ¶¶ 74-84. After review of the record, we find ourselves in agreement with the district court's analysis and disposition of these claims. Accordingly, we again affirm the district court forsubstantially the reasons stated in its final judgment. See id.

Lastly, Ms. Torre appeals the district court's fail ure to grant her prejudgment interest on the $320,000 jury award forher breach of contract claim for the ten-month period between the jury verdict o n October 4, 1994 and the district court's entry of judgment on August 4, 19 95. We review the district court's denial of Ms. Torre's Fed. R. Civ. P. 59(e) motion for prejudgment interest for an abuse of discretion. Green Constr. Co. v. Kansas Power & Light Co. , 1 F.3d 1005, 1010 (10th Cir. 1993); U.S. Indus. Inc. v. Touche Ross & Co. , 854 F.2d 1223, 1255 n.43 (10th Cir. 1988).

Because the jury award was based on Ms. Torre's Kan sas state law breach of contract claim, the district court looked to Kan sas law as the law of decision.
Torre V , 906 F. Supp. at 618. See Green Constr. Co. , 1 F.3d at 1010 (applying Kansas law regarding prejudgment interest); Touche Ross , 854 F.2d at 1255 ("[S]tate law governs the award of prejudgment inte rest on state law claims that are pendent to a federal claim."). Under Kansas la w, courts grant prejudgment6In her reply brief, Ms. Torre states she "is well aware of the decisional

law requiring a claim to be liquidated before inter est can run." She then asserts the district court should not have delayed entering judgment on the jury verdict until after the bench trial. However, Ms. Torre wa ived this argument by failing to make it in her opening brief. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d -21- interest only on liquidated claims. See Kan. Stat. Ann. § 16-201 (1995); Green Constr. Co. , 1 F.3d at 1010. "'A claim becomes liquidated whe n both the amount due and the date on which it is due are fixed and c ertain, or when the same become definitely ascertainable by mathematical computation.'" Green Constr. Co. , 1 F.3d at 1010 (quoting Plains Resources, Inc. v. Gable , 682 P.2d 653, 657 (Kan. 1984)). In denying Ms. Torre's post-trial mo tion, the district court held the amount due on Ms. Torre's breach of contract claim was not liquidated until the court's entry of judgment on August 4, 1995, becaus e until that time "the sum was in dispute" and "[t]here was no fixed [due] date." Torre V , 906 F. Supp. at 618.

On appeal, Ms. Torre simply states "[t]o provide in terest on [the jury] verdict during the interim ten month period would s erve to compensate Torre as the injured party and equities do not preclude the award." Even if that is the case, it remains true that under Kansas law the district court could not award Ms. Torre prejudgment interest until her claim was liquidated

. Green Constr. Co. , 1 F.3d at 1010. Ms. Torre fails to argue the district court erred in finding her claim was not liquidated until its final judgment on August 4 , 1995. 6 Accordingly, we979, 984 n.7 (10th Cir. 1994) (failure to raise an issue in the opening brief waives

the issue).

7Throughout the course of her brief Ms. Torre cont inually complains the district court failed to find "undisputed facts," o r mischaracterized or otherwise erroneously described the facts. E.g. , "Torre presented evidence that established an atmosphere of pervasive sexual bias"; "Torre's t estimony that she received unreasonable price quotes on policies she quoted bu t did not sell was unopposed." She then sets forth what she alleges to be undisput ed facts or the correct version of the facts. However, she consistently fails to p rovide cites to the record that support her factual claims of error. In such insta nces, Ms. Torre fails to carry her burden of proof. See Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1546 (10th Cir. 1995) (appellate court will not search the rec ord to locate evidence supporting appellant's claims of error); Securities Exchange Commission v. Thomas , 965 F.2d 825, 827 (10th Cir. 1992) (appellant cla iming factual error by the district court must provide the appellate courtessential references to the record to carry appellant's burden of proving error ). Also, Ms. Torre makes additional allegations of err or by the district court beyond those we consider in our opinion above. Usu ally, these charges consist of one or two sentences within Ms. Torre's discussion of another issue. Ms. Torre asserts the sufficiency of the evidence did not sup port the district court's findings, the court erred in allowing testimony by a particul ar witness, "the attorney client privilege should not have been applied by the courtto the representations ReMine made to the Kansas Commission on Civil Rights," the district court erroneously substituted its business judgment for Federated's, and the court erred in refusing to allow Ms. Torre and a medical expert to testify regarding Ms. Torre's "emotional and physical damage of which Federated's failure to promote or transfer Torre was a major contributor." In each i nstance, Ms. Torre has failed to sufficiently present these claims for appellate rev iew, and therefore we decline to address them. See Murrell , 43 F.3d at 1389 n.2; Phillips v. Calhoun , 956 F.2d 949, 953 (10th Cir. 1992) (a party must support its argument with legal authority). -22- presume that finding to be correct, see Hein v. TechAmerica Group, Inc. , 17 F.3d 1278, 1279 (10th Cir. 1994) (appellate court accept s as undisputed district court findings not expressly appealed), and therefore aff irm the district court's refusal to grant prejudgment interest on Ms. Torre's breach of contract claim. 7-23-

We now direct our attention to Federated's cross-ap peal. Federated appeals from the jury verdict on Ms. Torre's breach of cont ract claim and the district court's denial of Federated's post-trial motion forjudgment as a matter of law. We review de novo the district court's denial of Federated's motion for judgment as a matter of law, applying the same standard used by the district court. Haines v. Fisher , 82 F.3d 1503, 1510 (10th Cir. 1996); Clark v. Brien , 59 F.3d 1082, 1086 (10th Cir. 1995), cert. denied, 116 S. Ct. 800 (1996). "It is appropriate for a trial court to enter judgment as a matter of law '[ i]f during a trial by jury a party has been fully heard on an issue and there is no le gally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.'" Mitchell v. Maynard, 80 F.3d 1433, 1438 (10th Cir. 1996) (quoting Fed. R . Civ. P. 50(a)). "[T]he court must view the evidence and indulge all inferences i n favor of the party opposing the motion and cannot weigh the evidence, consider the credibility of witnesses or substitute its judgment for that of the jury." Lucas v. Dover Corp. , 857 F.2d 1397, 1400 (10th Cir. 1988) (internal quotation mar ks omitted). "Under this standard, we may find error in the denial of such amotion only if the evidence points but one way and is susceptible to no reasona ble inferences supporting the party opposing the motion." Haines , 82 F.3d at 1510.-24-

As previously noted, in Ms. Torre's breach of contr act claim, she asserted Federated breached her employment contract by remov ing that portion of Shawnee County outside the city limits of Topeka fr om her sales territory. Torre
IV , 1994 WL 541773, at *1. The jury agreed with Ms. Torre that Federated breached her employment contract by decreasing her assigned sales territory, and awarded her past and future damages of $320,000. Torre III, 897 F. Supp. at 1329.

Federated first argues "it was entitled to judgmentas a matter of law because ... Torre's employment agreement with Feder ated unambiguously gave Federated the right to unilaterally assign her terr itory 'from time to time.'" Federated asserts that because the contract was una mbiguous in that regard, it was the district court's responsibility to ascertain th e parties' contractual rights, not the jury's. See Carland v. Metropolitan Life Ins. Co. , 935 F.2d 1114, 1120 (10th Cir.) ("Only when ambiguity exists on the face of a contr act is a question of fact presented."), cert. denied, 502 U.S. 1020 (1991). However, even if Federated is correct, the right to unilaterally assign sales territory is not necessarily the same as the right to unilaterally reduce assigned territory, which is what Federated did in the instant case. In that regard, we find the c ontract ambiguous. See id. (whether a contract is ambiguous is a matter of law ). Because Ms. Torre's-25-

employment contract did not unambiguously give Fede rated the right to reduce Ms. Torre's assigned territory, the district court did not err in refusing to grant Federated judgment as a matter of law on this asserted ground.

In its motion for judgment as a matter of law, Fede rated also argued Ms. Torre waived any right to contest, and was estopped from contesting, Federated's modification of her territory assignment by failing to raise the issue for three and a half years. See Torre III, 897 F. Supp. at 1329-30. The district court held Federated failed to argue waiver or estoppel in its pre-verdict motion for judgment as a matter of law, and therefore could no t assert those theories in its post-verdict motion. Torre III, 897 F. Supp. at 1330-31.

A party may move for judgment as a matter of law "at any time before submission of the case to the jury." Fed. R. Civ. P. 50(a)(2). The motion "shall specify the judgment sought and the law and the fac ts on which the moving party is entitled to the judgment." Id. A party that moved for judgment as a matter of law prior to the court's submission of the case to the jury, as Federated did, Torre
III, 897 F. Supp. at 1330, may reassert its motion wit hin ten days after entry of judgment. Fed. R. Civ. P. 50(b). "The post-verdic t motion is actually a renewal of the earlier motion made at the close of the evid ence." Courtney v. Safelite-26-

Glass Corp. , 811 F. Supp. 1466, 1470-71 (D. Kan. 1992). "A po st-trial motion for judgment can be granted only on grounds advance d in the pre-verdict motion." Fed. R. Civ. P. 50 advisory comm. note, 1991 amend. ; Anderson v. United Telephone Co. , 933 F.2d 1500, 1503 (10th Cir.), cert. denied, 502 U.S. 940 (1991).

Federated's pre-verdict motion for judgment was as follows: At this point, I move for [judgment as a matter of law] and I will not make an elongated argument. I know the Court is aw are of the record and has been here and has had all of our bri efs. I would suggest to you you've had a chance now to see the c ontract and the issues before us. I don't believe there's ambiguity about what happened. I believe it was a mistake and I don't be lieve there's sufficient evidence to go to the jury on that matte r. I also believe that even if that is not the case, there's no evide nce here that there was a breach of the contract with respect to the te rritory assignment correction that was provided to the plaintiff on th e 14th of April, 1988, and so I would ask the Court at this time for[judgment as a matter of law] on the case.
Although "we liberally construe [pre-verdict motion s for judgment], and do not require technical precision as long as the tria l court is aware of the movant's position," Aguinaga v. United Food & Commercial Workers Int'l Union , 993 F.2d 1463, 1470 (10th Cir. 1993), cert. denied, 510 U.S. 1072 (1994), Federated has failed to satisfy even that standard. In its pre-v erdict motion, Federated argues sufficiency of the evidence, and perhaps mutual mis take in formation. Federated-27-

did not argue waiver or estoppel. Federated's gene ral reference to the record and the parties' briefs is insufficient to raise those claims. See Fed. R. Civ. P. 50 advisory comm. note, 1991 amend. ("The information required with the motion may be supplied by explicitreference to materials and argument previously supplied to the court." (Emphasis added.)). Our f inding is further supported by review of Ms. Torre's response to Federated's pre-v erdict motion. She responds to Federated's sufficiency of the evidence and mutual mistake arguments; she makes no mention of waiver or estoppel. Because we find Federated did not adequately present its waiver and estoppel claims in its pre-v erdict motion, we affirm the district court's dismissal of these arguments.

We AFFIRM the appealed holdings of the district court.

Entered for the Court

WADE BRORBY United States Circuit Judge