* This order and judgment is not binding precedent, e xcept under the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 10th Cir. R. 36.3. 

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

### JAN 31 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ED M. SHARON,Plaintiff-Appellee/CrossAppellant,

v. YELLOW FREIGHT SYSTEM, INC.,Defendant-Appellant/CrossAppellee. Nos. 95-3113 & 95-3132 (D.C. No. 94-CV-2035) (D. Kan.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and ANDERSON, Circuit Judges.

Ed M. Sharon sued his former employer, Yellow Freig ht System, Inc. (YFS), alleging that he was terminated in violationof an implied employment contract and that he was the victim of discriminati on of the basis of his age, sex,1 Mr. Sharon also originally asserted a claim for re ligious discrimination

and a claim under promissory estoppel. These claim s are not at issue in this appeal. -2- and national origin. 1 The district court granted summary judgment for Y FS on the discrimination claims, holding that Mr. Sharon had failed to make a prima facie case and alternatively that he had failed to show p retext. The court denied YFS’s summary judgment motion on the implied contract cla im, ruling that Mr. Sharon had shown a question for the jury on whether an imp lied contract existed and on whether, if so, YFS breached it. A jury trial resu lted in a verdict for Mr. Sharon on the implied contract claim in the amount of $47, 916.66. YFS appeals, contending that the evidence on the implied contract claim was insufficient as a matter of law and that the tr ial court therefore erred in denying its motions for directed verdict and for ju dgment notwithstanding the verdict. Mr. Sharon cross-appeals, arguing that th e lower court erred in granting YFS summary judgment on the discrimination claims. We affirm. Mr. Sharon is an Israeli man of the Jewish faith wh o was over forty years of age during the relevant time. He had four advan ced degrees and fifteen years experience in transportation and research. He got in touch with YFS in December 1990 to explore employment opportunities. YFS was familiar with his work and responded favorably, arranging an interview in mid -February. Prior to the interview, Mr. Sharon completed and signed an emplo yment application which he-3-

brought with him. Included in this application alo ng with other employment information was the phrase “my employment and compe nsation can be terminated, with or without cause by either the company or myse lf.” Aplt. App. at 218. Mr. Sharon met with several supervisors, who represente d to him that the job was a career position, long-term and stable, and that he could stay there as long as he wished so long as he did a good job. Mr. Sharon ac cepted a position with YFS and began work on April 1. His wife had a professo rship at Rutgers University in New Jersey and she continued to reside there with their three children until August, 1991, when she and the children joined Mr. Sharon in Kansas. In June 1991, Mr. Sharon’s supervisor, Cathy Larrim er, met with him to discuss problems with his performance. He then hadseveral frank discussions with her in which he told her about his family situ ation and expressed concern whether he and YFS were a good match. Ms. Larrimerreassured him and encouraged him to remain with the company. The emp loyment situation did not improve, however, and Mr. Sharon had more counselin g sessions with Ms. Larrimer in August and others in September. Ms Larrimer kept a running log on Mr. Sharon detailing both positive and negative inc idents. Mr. Sharon and Ms. Larrimer continued to have problems over his time o ut of the office, punctuality, the state of his desk, and obtaining her approval b efore circulating material out of the department. In December, Ms. Larrimer issued aNotice of Corrective Action-4-

and placed Mr. Sharon on a ninety-day probationary period. The Notice listed several performance problems and required several c orrective actions. Mr. Sharon complied fully. In February 1992, however, Ms. Larrimer learned that Mr. Sharon had circulated a document without her permis sion, although Mr. Sharon asserted that he did not believe he needed permissi on for this particular document. Mr. Sharon was fired. He was not told the reason f or his discharge and the record contains conflicting reasons proffered by YFS perso nnel. The decision was reviewed by the Employee Review Committee, which af firmed the termination, concluding that Mr. Sharon’s performance, including his failure to follow his supervisor’s instructions, was unsatisfactory. In its appeal, YFS argues that the evidence to supp ort the jury verdict is insufficient as a matter of law. Under Kansas law, “intent of the contracting parties is normally a question of fact for the juryand . . . the determination of whether there is an implied contract in employment requires a factual inquiry.” Morriss v. Coleman Co. , 738 P.2d 841, 848 (Kan. 1987) (citing Allegri v. Providence-St. Margaret Health Ctr. , 684 P.2d 1031 (Kan. Ct. App. 1984)). A disclaimer, such as that in the application signed by Mr. Sharon, is not dispositive when the record contains evidence of statements by company personnel indicating a contrary intent. See id. at 849; see also Brown v. United Methodist Homes , 815 P.2d 72, 82-83 (Kan. 1991). This contrary evidence is sufficient to overcome the-5-

disclaimer if it is in the nature of trial testimony by company supervisors “indicating their intent to treat employees fairly and to follow the rules.” Brown , 815 P.2d at 83.

We review de novo the [ruling on] a motion for judgment notwithstanding the verdict, applying the same stan dard as the trial court should when deciding the motion. Under this standard, the court must view all of the evidence in the light mo st favorable to the nonmoving party, and then determine whether there i s evidence upon which the jury could have properly relied in return ing a verdict for the nonmoving party. The court may not reweigh the evidence or substitute its judgment for the jury’s. If there i s evidence upon which the jury could have properly relied in reachi ng its verdict, that verdict must stand. Klein v. Grynberg , 44 F.3d 1497, 1503 (10th Cir.) ( citations omitte d), cert. denied , 116 S. Ct. 58 (1995). As the applicable standard makes clear, a court con sidering whether the evidence is sufficient to support a jury verdict mu st review all the evidence. The Federal Rules of Appellate Procedure clearly state: “If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence . . . , the appellant shall include in the record a transcr ipt of all evidence relevant to such finding or conclusion.” Fed. R. App. P. 10(b) (2). Our local rule likewise provides: It is the appellant’s responsibility to order and p rovide all portions of the transcript necessary to give the co urt of appeals a complete and accurate record of the proceedings ins ofar as such proceedings relate to the issues raised on appeal, and when sufficiency of the evidence is raised, the entire t rial transcript-6-

ordinarily should be provided. 10th Cir. R. 10.1.1. The appendix submitted by YFS in this appeal contains two short excerpts of the testimony of Mr. Sharon and o ne half page of crossexamination of a company official. The record is s imply inadequate to enable us to assess all the evidence in the light most favorable to Mr. Sharon and determine whether it is sufficient to support the jury verdic t. We have frequently held that the lack of a transcript in such circumstances requ ires that we affirm the ruling of the district court. See , e.g. , United States v. Vasquez , 985 F.2d 491, 494-95 (10th Cir. 1993); Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979-80 (10th Cir. 1992). We again follow the rules and precedent governing the provision and use of transcripts, and hold that the lack of a complete t ranscript here requires that we affirm the district court’s denial of YFS’s motion for judgment notwithstanding the verdict. Mr. Sharon cross-appeals the district court’s grantof summary judgment on his discrimination claims. The court held that he had failed to create a fact issue on the existence of a prima facie case and alternat ively that he had failed to present evidence of pretext. We have carefully rev iewed the summary judgment record in light of Mr. Sharon’s arguments and autho rities and we are not persuaded that the lower court committed reversible error in this regard. The judgment is AFFIRMED.-7- ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge