* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### MAR 13 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PAT HAYES,

Plaintiff-Appellant,

v. CORRECTION MANAGEMENT AFFILIATES INC.,

Defendant-Appellee. Nos. 95-6449 & 96-6030 (D.C. No. 95-CV-359-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Pat Hayes, appearing pro se, ap peals the district court’s summary judgment in his action against his former e mployer, Correction Management Affiliates, Inc., and the district court ’s denial of his motion to amend the judgment. We affirm. On March 10, 1992, plaintiff was dismissed from his position as a probationary employee of Correction Management Affi liates, Inc. He filed a complaint with the Equal Employment Opportunity Com mission and received a right to sue letter on February 7, 1994. Plaintiff filed his first employment discrimination action on May 10, 1994. This action was dismissed on December 6, 1994, for failure to comply with the re quirements of Rule 4(m) of the Federal Rules of Civil Procedure. We affirmed the dismissal in Hayes v. Correction Management Affiliates, Inc. , No. 95-6060, 1995 WL 761802 (10th Cir. Dec. 27, 1995), cert. denied , 117 S. Ct. 209 (1996). Plaintiff filed this second action against his form er employer on March 10, 1995, alleging that he was terminated in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623, and that his termi nation violated Oklahoma public policy, breached an implied contract, and co nstituted fraud. The district court granted the employer summary judgment on plai ntiff’s age discrimination and public policy claims based on their respective statutes of limitations. Summary judgment was granted on the fraud claim bec ause there was no evidence-3-

that plaintiff relied on any allegedly false statem ents by the employer, and on the breach of implied contract claim because the undisp uted evidence showed that the employer complied with all relevant policies. The district court declined to amend its judgment, and these appeals followed. We review a grant of summary judgment de novo, appl ying the same standards as those used by the district court. Un iversal Money Ctrs., Inc. v. American Tel. & Tel. Co. , 22 F.3d 1527, 1529 (10th Cir. 1994). Summary judgment is appropriate if “there is no genuine iss ue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We examine the record and reasonable inf erences therefrom in the light most favorable to the nonmoving party. Applied Gen etics Int’l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). After reviewing plaintiff’s pleadings, we find no a rgument that his age discrimination and public policy claims were filed within the time permitted by their respective statutes of limitations. The summ ary judgment on these claims, therefore, is affirmed. Plaintiff raises several arguments that, construed liberally, relate to his breach of implied contract and fraud claims. He ar gues first that he was entitled to a judgment in his favor on these claims because the employer failed to respond to his “Answer to Defendant’s Answer to Plaintiff’s motion for Summary-4-

Judgment.” This answer, however, is not the type o f “motion, application or objection” which the court may deem confessed if no t responded to within eighteen days. See United States District Court for the Western Distr ict of Oklahoma Local Rule 7.1(e). The employer, in fact, was not entitled to respond to plaintiff’s answer without leave of the court. See id. , Local Rule 7.1(g). Plaintiff next argues that the employer committed f raud by informing the EEOC and this court that plaintiff was dismissed fo r misconduct under Policy A-155-R, when he was actually dismissed under Polic y A-260-R, and that Policy A-260-R entitled him to a hearing, thus supporting his claim for breach of an implied contract. Policy A-260-R only governs perf ormance appraisals, however, and the appeal rights contained therein pertain onl y to such appraisals. Because Policy A-155-R governs dismissals for misconduct, and does not entitle a probationary employee to an appeal, no error occurr ed. Finally, plaintiff argues that the employer is prec luded from arguing that he was dismissed for misconduct under Policy A-155-R, based on the Oklahoma Employment Security Commission’s finding that plaintiff was not disqualified for unemployment benefits by a dismissal for misconductunder title 40, section 2-406 of the Oklahoma Statutes. “However, miscondu ct to deny unemployment benefits is not the same as [reasons justifying] te rmination from employment.” Doby v. Oklahoma Employment Sec. Comm’n , 823 P.2d 390, 392 (Okla. Ct. App.-5-

1991). Because Policy A-155-R defines “misconduct” to include incompetence, inefficiency, and neglect of duty, which do not con stitute “misconduct” under title 40, section 2-406 of the Oklahoma Statutes, see Tynes v. Uniroyal Tire Co. , 679 P.2d 1310, 1312 (Okla. Ct. App. 1984) (quotation om itted), the Commission’s finding is not implicated. Further, under title 40 , section 2-610A of the Oklahoma Statutes, the Commission’s finding is “not. . . conclusive or binding in any separate or subsequent action . . . between an individual and his . . . prior employer in any other forum.” The employer, theref ore, is not precluded from showing that plaintiff was dismissed for misconductunder Policy A-155-R, and summary judgment was appropriate. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge