* This order and judgment is not binding precedent, e xcept under the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

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

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

### JAN 27 1998 

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

SIMPLICIO G. TORREZ,

Plaintiff-Appellee,

v. BEI GRAPHICS CORPORATION,

Defendant-Appellant. No. 96-1436 (D.C. No. 94-N-2086) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

Defendant appeals 1 from a judgment entered in favor of plaintiff, fol lowing a jury trial, on his claims that defendant unlawful ly discharged him from his-2-

employment because he is Hispanic, see 42 U.S.C. § 1981; 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and breached an implied-in-fa ct employment contract. Upon review of the record and the parties’ argument s on appeal, we affirm.

I. BREACH OF CONTRACT Defendant argues that the district court erred in d enying its motions for the entry of judgment as a matter of law. See Fed. R. Civ. P. 50. It claims disclaimers preclude defendant’s employment manual from creating contractual obligations between defendant and its employees, an d equal opportunity statements contained in the manual are too vague to do so. We review de novo the district court’s denial of a motion for judgmen t as a matter of law, and reverse only if the evidence points but one way and is not susceptible to any reasonable inferences supporting the nonmoving party. See Yearous v. Niobrara County Mem’l Hosp. , 128 F.3d 1351, 1353 (10th Cir. 1997). Under Colorado law, an implied contract can arise f rom an employment manual or handbook. See, e.g. , Frymire v. Ampex Corp. , 61 F.3d 757, 769 (10th Cir. 1995). To establish that an employment manual creates contractual obligations, the employee must show that the employ er’s actions manifest to a reasonable person an intent to be bound by the prov isions of the document. See id. ; see also, e.g. , Evenson v. Colorado Farm Bureau Mut. Ins. Co. , 879 P.2d 402, 408-09 (Colo. Ct. App. 1993). Ordinarily, the issu e of whether a contract exists-3-

is one of fact to be resolved by the jury, see, e.g

. , Vasey v. Martin Marietta Corp. , 29 F.3d 1460, 1464 (10th Cir. 1994) (applying Color ado law), unless, for example, there is a clear and conspicuous disclaime r indicating the employer did not intend to create a contract or the alleged prom ises are too vague, see, e.g. , Clark v. Town of Kersey , 973 F. Supp. 1217, 1220 & n.4 (D. Colo. 1997) (applying Colorado law). The employment manual at issue here contains severa l disclaimers indicating that the manual does not change the at-w ill nature of plaintiff’s employment with defendant. The district court corr ectly held that these disclaimers did not defeat plaintiff’s contract cla im, which was not premised on a right not to be terminated without cause or withoutapplication of required procedural protections. The court instead focused on the representations in the employment manual that defendant would not treat it s employees in a discriminatory manner. Cf. Stahl v. Sun Microsystems, Inc. , 775 F. Supp. 1394, 1396 & n. 3 (D. Colo. 1991), aff’d , 19 F.3d 533 (10th Cir. 1994) (disclaimer indicating employment relationship was at-will is n ot relevant to claim of failure to follow employment manual’s procedures regarding reassignment of territory). Despite its disclaimer of the creation of any contr actual obligations, the employment manual also contains express language mandating that defendant not discriminate against its employees when hiring, dis charging, transferring or2 See Vasey , 29 F.3d at 1465-66 (general statement regarding c ommitment to

affirmative action insufficient to support contractclaim); Fejes v. Gilpin (continued...) -4- promoting them. This is sufficient to create a tri able issue of fact as to whether the defendant intended to enter into a contractual obligation with its employees. See, e.g. , Evenson , 879 P.2d at 409. Moreover, defendant’s management personnel indicate d that they viewed the provisions of the employee handbook as mandatory. See Mariani v. Rocky Mountain Hosp. & Med. Serv. , 902 P.2d 429, 435 (Colo. Ct. App. 1994) (citing
Evensonas holding that even if employment manual contains disclaimer and includes language making disciplinary procedures di scretionary, rather than mandatory, issue of existence of contract should be submitted to jury if supervisors treated provisions of manual as mandato ry), aff’d on other grounds , 916 P.2d 519, 523 (Colo. 1996). For these reasons, the district court did not err in submitting to the jury the question of whether d efendant’s employment manual created a contract between defendant and its employ ees. Defendant also argues that the equal opportunity st atements in its employment manual were too vague to create any bind ing contractual obligation. Unlike cases in which courts have held that general statements of fair treatment and equal opportunity are too vague to create a bin ding contractual obligation under Colorado law, 2 the language at issue here, in addition to providi ng that2 (...continued)

Ventures, Inc. , 960 F. Supp. 1487, 1496 (D. Colo. 1997) (applying Colorado law; holding language in employment handbook stating emp loyer does not and will not discriminate was insufficient to serve as basis forcontract claims). -5- defendant is committed to having a fair employment policy, specifically mandates that “[a]ll persons having the authority to hire, d ischarge, transfer or promote personnel shall support, without reservations, a no n-discriminatory policy of hiring or transferring to any vacancy, any qualifie d applicant without regard to race, color, religion, national origin, age, sex orotherwise qualified handicapped or disabled.” Rec., Vol. I at 101. This language is sufficient to establish a triable fact as to whether the parties entered into a contr act requiring defendant to refrain from discriminating against its employees. See Stahl v. Sun Microsystems, Inc. , 19 F.3d 533, 536-37 (10th Cir. 1994) (employment manual’s statement that employer would treat it employees equitably and fai rly, in addition to elaborate compensation plan, is sufficient to support finding of existence of contract); Tuttle v. ANR Freight Sys., Inc. , 797 P.2d 825, 827-28 (Colo. Ct. App. 1990) (employment handbook indicating employer’s commitme nt to providing fair and equitable working environment and fair compensationto its employees, together with detailed compensation policies, is sufficient to create triable issue of fact as to existence of contract).-6-

Lastly, defendant asserts that the district court e rred in analyzing plaintiff’s breach of contract claim under a theory of promisso ry estoppel. Defendant failed to raise this issue before the district court. See Sac & Fox Nation v. Hanson , 47 F.3d 1061, 1063 (10th Cir. 1995) (absent jurisdicti onal or manifest error, this court will not address issue raised for first time on appeal). In any event, this argument is meritless.

II. DISCRIMINATORY DISCHARGE Defendant argues that the trial court erred in deny ing its motion for summary judgment because plaintiff failed to establ ish a prima facie case of discrimination. When a discrimination claim has be en fully tried to the jury, the issue of whether plaintiff established a prima faci e case drops out and we consider only whether plaintiff has proved discrimi nation at trial. See Coleman v. B-G Maintenance Management of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997) (citing Metz v. Merrill Lynch, Pierce, Fenner& Smith, Inc. , 39 F.3d 1482, 1491 (10th Cir. 1994)). And, although defendant ar gues that the jury’s finding of discrimination was contrary to the weight of the ev idence, reviewing the record in the light most favorable to plaintiff, see Thunder Basin Coal Co. v. Southwestern Pub. Serv. Co. , 104 F.3d 1205, 1212 (10th Cir. 1997), we determin e that there was sufficient evidence to support the jury’s determination.-7-

Defendant challenges the trial court’s refusal to g ive its proposed jury instructions which would have required the jury to consider that defendant replaced plaintiff with another Hispanic male. Thi s court reviews the trial court’s refusal to give a requested instruction only for ab use of discretion. See Harrison v. Eddy Potash, Inc. , 112 F.3d 1437, 1442 (10th Cir. 1997), petition fo r cert. filed , 66 U.S.L.W. 3137 (Aug. 6, 1997) (No. 97-232). Th e trial court did not instruct the jury on the elements of a prima facie case; nor was it required to do
so. See Messina v. Kroblin Transp. Sys., Inc. , 903 F.2d 1306, 1307-09 (10th Cir. 1990). Defendant does not advance any authority th at required the trial court to give these instructions. In the absence of such pr ecedence, we cannot say that the district court abused its discretion in refusing to instruct the jury as requested. Defendant next challenges several instructions the trial court did give to the jury -- including one addressing the agency relatio nship between a corporation and its employees, and another detailing plaintiff’ s theory of the case. This court reviews jury instructions de novo, inquiring whethe r the instructions, as a whole, “correctly stated the governing law and provided th e jury with an ample understanding of the issues and applicable standard s.” Harrison , 112 F.3d at 1442. The jury instructions in this case correctlystate the applicable law and properly focused the jury on the relevant inquiry. Contrary to defendant’s-8-

assertion, the trial court did not instruct the jury on a hostile work environment claim.
III. RULE 60(b)(3) MOTION Defendant challenges the district court’s denial of its Fed. R. Civ. P. 60(b)(3) motion for relief from judgment, based upo n plaintiff’s post-trial admission that his attorney advised him to lie abou t the fact that plaintiff had consulted with an attorney prior to speaking with the Equal Employment Opportunity Commission. The district court did notabuse its discretion in denying this motion. See Anderson v. Department of Health & Human Servs. , 907 F.2d 936, 952 (10th Cir. 1990). The judgment is AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge