* This order and judgment is not binding precedent, e xcept under the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

### FEB 18 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAMUEL DOUGLAS GAGLIANO,

Plaintiff-Appellant,

v. STORAGE TECHNOLOGY CORPORATION, a Delaware corporation, Defendant-Appellee. No. 97-1235 (D.C. 96-WY-1793-AJ) (District of Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and HENRY , Circuit Judges.

Plaintiff Samuel Gagliano appeals from the grant of summary judgment in favor of the defendant, Storage Technology Corporat ion, on three employment discrimination claims: (1) age discrimination unde r the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634; (2) re verse sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17;2

and (3) disability discrimination under the Americans with Disabilities Act (ADA), 29 U.S.C. § 12101-12213. He also appeals fr om the district court's decision to exclude several proffered exhibits at t he trial on his related retaliation claim. We affirm in all respects. As to the summary judgment rulings, Mr. Gagliano co ntends that the district court erred in applying the wrong prima fa cie test with respect to his age discrimination claim, inappropriately required the plaintiff to produce background evidence with respect to his reverse sex discrimination claim, and incorrectly concluded that the plaintiff had not cr eated a prima facie case of disability discrimination. We review the district court's decision de novo, applying the same legal standards pursuant to Fed. R. Civ. Proc. 56(c). See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). After careful review of the record on appeal togeth er with the parties' briefs and the applicable law, we conclude that the district court was correct in determining that Mr. Gagliano had not presented a p rima facie case of age discrimination because he did not "produc[e] eviden ce, circumstantial or direct, from which a factfinder might reasonably conclude t hat [Storage Technology] intended to discriminate in reaching the decision at issue." Branson v. Price River Coal Co. , 853 F.2d 768, 771 (10th Cir. 1988). Mr. Gagliano failed the fourth prong of the familiar McDonnell Douglas analysis for employment3

discrimination claims. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973). Similarly, as to the reverse sex di scrimination claim, the district court correctly found that Mr. Gagliano had not pre sented background evidence supporting the inference that Storage Technology di scriminated against men nor sufficient indirect evidence that but for his gende r he would not have been terminated. See Notari v. Denver Water Dep't , 971 F.2d 585, 588-89 (10th Cir. 1992). As to the ADA claim, the district court als o correctly found that Mr. Gagliano had not established a prima facie case bec ause he did not show that he had a disability under the ADA's statutory definition. See 42 U.S.C. § 12102(2); Bolton v. Scrivner, Inc. , 36 F.3d 939, 942 (10th Cir. 1994). Therefore, fo r substantially the same reasons as stated in the dis trict court's oral ruling on February 27, 1997 and its subsequent written order dated March 5, 1997, we conclude that Storage Technology is entitled to sum mary judgment on Mr. Gagliano's employment discrimination claims. As to the retaliation claim that proceeded to trial , Mr. Gagliano argues that the district court improperly excluded letters and memoranda written by him to Storage Technology representatives during the cours e of his internal appeal. He challenges the district court's ruling that these p roffered exhibits were not contemporaneous, were hearsay, and were potentially misleading because they contained references to the previously dismissed employment discrimination4

claims. Mr. Gagliano also contends that although t he district court subsequently admitted redacted versions of two of these exhibits , it improperly excluded two other redacted exhibits as not contemporaneous hear say. Mr. Gagliano argues that the exhibits should have been admitted under t he residual hearsay exception, Fed. R. Evid. 803(24), as contemporaneous writings, or under the business records hearsay exception, Fed. R. Evid. 803(6). We review a district court's decision to exclude ev idence for an abuse of discretion. See Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). Here, the original exhibits contained numerous hearsay st atements and references to the dismissed discrimination claims. Further, the district court correctly observed that Mr. Gagliano was capable of testifying to the same material. Accordingly, the district court did not abuse its discretion in excluding the original exhibits. Additionally, the two redacted exhibits excluded by the district court were not contemporaneous to the retaliation events, did not bear the necessary hallmarks of reliability under Rule 803(24), and were not bus iness records in any sense of the term. Thus, after careful review of the record , we conclude that the district court did not abuse its discretion in excluding the redacted exhibits. Accordingly, we AFFIRM the district court's grant o f summary judgment in favor of the defendant Storage Technology Corpor ation on all three of Mr. Gagliano's employment discrimination claims. We al so AFFIRM the district5

court's judgment in favor of Storage Technology Corporation on Mr. Gagliano's retaliation claim.

Entered for the Court, Robert H. Henry Circuit Judge