*This order and judgment is not binding precedent, except under the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 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 Freight System, Inc.

(YFS), alleging that he was terminated in violation of an implied employment

contract and that he was the victim of discrimination of the basis of his age, sex,
1

 Mr. Sharon also originally asserted a claim for religious discrimination

and a claim under promissory estoppel. These claims are not at issue in this

appeal.

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and national origin.1

 The district court granted summary judgment for YFS on the

discrimination claims, holding that Mr. Sharon had failed to make a prima facie

case and alternatively that he had failed to show pretext. The court denied YFS’s

summary judgment motion on the implied contract claim, ruling that Mr. Sharon

had shown a question for the jury on whether an implied contract existed and on

whether, if so, YFS breached it. A jury trial resulted 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 trial court therefore erred in

denying its motions for directed verdict and for judgment notwithstanding the

verdict. Mr. Sharon cross-appeals, arguing that the lower court erred in granting

YFS summary judgment on the discrimination claims. We affirm.

Mr. Sharon is an Israeli man of the Jewish faith who was over forty years

of age during the relevant time. He had four advanced 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 employment application which he
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brought with him. Included in this application along with other employment

information was the phrase “my employment and compensation can be terminated,

with or without cause by either the company or myself.” Aplt. App. at 218. Mr.

Sharon met with several supervisors, who represented 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 accepted a position with YFS

and began work on April 1. His wife had a professorship 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 Larrimer, met with him to

discuss problems with his performance. He then had several frank discussions

with her in which he told her about his family situation and expressed concern

whether he and YFS were a good match. Ms. Larrimer reassured him and

encouraged him to remain with the company. The employment situation did not

improve, however, and Mr. Sharon had more counseling sessions with Ms.

Larrimer in August and others in September. Ms Larrimer kept a running log on

Mr. Sharon detailing both positive and negative incidents. Mr. Sharon and Ms.

Larrimer continued to have problems over his time out of the office, punctuality,

the state of his desk, and obtaining her approval before circulating material out of

the department. In December, Ms. Larrimer issued a Notice of Corrective Action 
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and placed Mr. Sharon on a ninety-day probationary period. The Notice listed

several performance problems and required several corrective actions. Mr.

Sharon complied fully. In February 1992, however, Ms. Larrimer learned that Mr.

Sharon had circulated a document without her permission, although Mr. Sharon

asserted that he did not believe he needed permission for this particular document. 

Mr. Sharon was fired. He was not told the reason for his discharge and the record

contains conflicting reasons proffered by YFS personnel. The decision was

reviewed by the Employee Review Committee, which affirmed 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 support 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 jury and . . . 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
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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 standard as the trial

court should when deciding the motion. Under this standard, the

court must view all of the evidence in the light most favorable to the

nonmoving party, and then determine whether there is evidence upon

which the jury could have properly relied in returning a verdict for

the nonmoving party. The court may not reweigh the evidence or

substitute its judgment for the jury’s. If there is evidence upon

which the jury could have properly relied in reaching its verdict, that

verdict must stand.

Klein v. Grynberg, 44 F.3d 1497, 1503 (10th Cir.) ( citations omitted), cert.

denied, 116 S. Ct. 58 (1995).

As the applicable standard makes clear, a court considering whether the

evidence is sufficient to support a jury verdict must 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 transcript 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 provide all

portions of the transcript necessary to give the court of appeals a

complete and accurate record of the proceedings insofar as such

proceedings relate to the issues raised on appeal, and when

sufficiency of the evidence is raised, the entire trial transcript
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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 one half page of crossexamination of a company official. The record is simply 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 verdict. We have frequently held that

the lack of a transcript in such circumstances requires 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 transcript 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 grant of 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 alternatively that he had failed to

present evidence of pretext. We have carefully reviewed the summary judgment

record in light of Mr. Sharon’s arguments and authorities and we are not

persuaded that the lower court committed reversible error in this regard.

The judgment is AFFIRMED. 
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ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge