* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 19 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT DIMOND,

Plaintiff-Appellant,

v.

J.C. PENNEY COMPANY, INC.,

doing business as J.C. Penney

Telemarketing, Inc.,

Defendant-Appellee.

No. 96-2131

(D.C. No. CIV-94-718-BB)

(D. N.M.)

ORDER AND JUDGMENT*

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.
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This dispute arises out of plaintiff’s brief employment with defendant. 

Defendant hired plaintiff, a white male, as a customer service representative on

September 23, 1992, when plaintiff was sixty-seven years old. Defendant’s

customer service representatives take catalog orders from customers over the

telephone, and key the orders into a computer. Plaintiff completed his

probationary period on December 22, 1992. At about the same time, plaintiff

filled out an application for a promotion to the position of personnel coordinator. 

Defendant interviewed nine out of eighteen applicants for the job, and did not

interview plaintiff. Defendant selected an Hispanic female under age forty with

over six years of experience with defendant for the position. Plaintiff continued

working for defendant until July 3, 1993, when he suffered a kidney stone attack. 

Plaintiff went on sick leave and remained on sick leave for a variety of problems,

including bilateral carpal tunnel syndrome. Defendant terminated plaintiff’s

employment effective April 30, 1994. 

Plaintiff brought this suit, asserting federal claims under the Civil Rights

Act of 1866, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, 29

U.S.C. §§ 621-634, the Americans with Disabilities Act, 42 U.S.C.

§§ 12101-12213, and the Family and Medical Leave Act, 29 U.S.C.

§§ 2601-2654. Plaintiff also asserted pendent state law claims for wrongful

termination, wrongful denial of long-term benefits, bad-faith refusal to pay
1 We note that plaintiff failed to point out in the record where each issue was

raised and ruled on in the district court, in violation of our local rules. See 10th

Cir. R. 28.2(b).

2 We also note that plaintiff failed to identify the standard of review for any

of his issues, as required by the federal rules of appellate procedure. See Fed. R.

App. P. 28(a)(6). 

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insurance benefits, and negligence. Plaintiff’s claims were tried to the district

court, which found in favor of defendant on all claims. Plaintiff appeals. We

have jurisdiction under 28 U.S.C. § 1291, and affirm.

Plaintiff raises four issues on appeal.1 In each case, we review the district

court’s legal conclusions de novo and its underlying factual findings for clear

error.2 See, e.g., Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996)

(Federal Tort Claims Act case). A finding of fact is clearly erroneous if “it is

without factual support in the record, or if the appellate court, after reviewing all

the evidence, is left with the definite and firm conviction that a mistake has been

made.” Heim v. Utah, 8 F.3d 1541, 1543 (10th Cir. 1993) (quotation omitted). 

“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 . . . .” 10th Cir. R. 10.1.1. The record must include “a transcript of all

evidence relevant to” any findings or conclusions the appellant intends to

challenge on appeal. Fed. R. App. P. 10(b)(2). Because plaintiff included only

excerpts from the trial transcript in the record on appeal, we cannot review the
3 Plaintiff cites just one case in support of his issue under the Americans

with Disabilities Act, and that case is from a district court in another circuit. 

Plaintiff’s citation to only one authority which is not particularly relevant

“suggests either that there is no authority to sustain [his] position or that [he]

expects the court to do [his] research [for him].” Rapid Transit Lines, Inc. v.

Wichita Developers, Inc., 435 F.2d 850, 852 (10th Cir. 1970); see also United

States v. Rodriguez-Mejia, 20 F.3d 1090, 1092 n.2 (10th Cir. 1994) (noting that

litigants should “find and cite” Tenth Circuit authority before citing case law

from other circuits because this court is “controlled by the law of this circuit”). 

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district court’s factual findings and must accept them as correct. Cf. Trujillo v.

Grand Junction Regional Ctr., 928 F.2d 973, 976 (10th Cir. 1991) (holding

absence of trial transcript precludes appellate review of district court’s factual

findings). Our review is therefore limited to determining whether the district

court correctly applied the law to the facts. See id. 

In his first issue, plaintiff claims the district court erred in concluding that

he was not a qualified person within the meaning of the Americans with

Disabilities Act. Plaintiff asserts that the district court erroneously focused on

whether plaintiff actually had a disability rather than whether defendant regarded

plaintiff as having a disability.3

The Americans with Disabilities Act forbids discrimination “against a

qualified individual with a disability because of the disability . . . in regard to

. . . employment.” 42 U.S.C. § 12112(a). The Act protects an individual whether

he actually has a disability or is merely “regarded as” having a disability. See id.

§ 12102(2). An individual is “qualified,” however, only if he can perform the
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essential functions of the job he holds or desires, with or without reasonable

accommodation. See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir.

1995); 42 U.S.C. § 12111(8). The district court found that plaintiff’s orthopedic

surgeon recommended that plaintiff be permanently restricted from keyboard use,

that keying is an essential function of the customer service representative job, and

that plaintiff could not perform the essential keying function. In the absence of a

complete trial transcript, we presume these findings are correct. As a result,

plaintiff cannot show that the district court erred in concluding that he was not a

qualified individual under the Americans with Disabilities Act. 

Next, plaintiff argues that the district court erred in concluding that

defendant was not required to provide him with a job at the end of twelve weeks

of sick leave he requested and was granted under the Family and Medical Leave

Act. See 29 U.S.C. § 2612(a)(1)(D). Plaintiff does not dispute that he did not

work for defendant long enough to qualify for any benefits under this Act. See

id. § 2611(2)(A). He argues, rather, that because defendant mistakenly paid him

some benefits under the Act, defendant should be estopped from relying on

plaintiff’s ineligibility with regard to the Act’s other benefits. Plaintiff offers no

support at all for this proposition, in contravention of the procedural rules and our

case law. See Fed. R. App. P. 28(a)(6); see also Brownlee v. Lear Siegler

Management Servs. Corp., 15 F.3d 976, 977-78 (10th Cir. 1994) (holding
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conclusory reference to district court error without sufficient citation to authority

“is not adequate appellate argument”); Primas v. City of Okla. City, 958 F.2d

1506, 1511 (10th Cir. 1992) (holding party has duty to cite authority for any

argument raised). We point out, however, that plaintiff’s reliance on defendant’s

mistake could not have been reasonable because he plainly was not eligible for

any benefits under the Family and Medical Leave Act. See, e.g., Cannon v.

Group Health Serv. of Okla., Inc., 77 F.3d 1270, 1277 (10th Cir.) (noting

equitable estoppel based on reasonable reliance), cert. denied, 117 S. Ct. 66

(1996); Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1417

(10th Cir. 1984) (same). The district court therefore did not err in rejecting

plaintiff’s estoppel argument.

Third, plaintiff contends that the district court erred in finding for

defendant on his claim under 42 U.S.C. § 1981. “The allocation of burdens under

Title VII applies to proving intentional discrimination under section 1981 as

well.” Durham v. Xerox Corp., 18 F.3d 836, 839 (10th Cir. 1994). That is, once

an employee has established a prima facie case of unlawful discrimination, the

burden shifts to the employer to articulate a legitimate, nondiscriminatory reason

for its adverse employment action. See Berry v. Stevinson Chevrolet, 74 F.3d

980, 985-86 (10th Cir. 1996). If the employer meets its burden of production, the
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burden shifts back to the employee to demonstrate that the employer’s reason is a

pretext for unlawful discrimination. See id. at 986. 

Plaintiff asserts that he proved a prima facie case of discrimination and

defendant did not come forward with a clearly articulated and reasonable excuse

for failing to promote him to the position of personnel coordinator. The district

court found based on the evidence presented at trial that seniority was a primary

factor defendant used in ranking the eighteen applicants for this job. The district

court further found that defendant interviewed the nine most senior applicants and

made its selection for the job based on the chosen candidate’s qualifications,

including her seniority. The district court concluded that seniority was a

legitimate, nondiscriminatory reason for defendant’s hiring decision. 

Plaintiff argues that seniority was not included in any descriptions of the

position. Once again, the absence of a complete trial transcript hampers our

review of the district court’s factual findings and we must presume them correct. 

In this instance, however, plaintiff himself points to evidence that defendant’s

employees “knew that promotions were based on seniority.” II Appellant’s App.

at 218. Based on this evidence, the district court’s finding that seniority was a

primary qualification for the personnel coordinator position is not clearly

erroneous, and it did not err in concluding that defendant’s reliance on seniority

was not a pretext for unlawful discrimination.
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Finally, plaintiff contends that the district court erred in finding in favor of

defendant on his claim for company disability benefits. Plaintiff asserts that he

“[might] have been successful [during the company appeal process] but for the

failure of the Company to inform him that he had a legal right to counsel during

the appeal process.” Appellant’s Br. at 12-13. This argument is pure speculation

and is unsupported by either factual or legal analysis. The district court found

that the medical evidence showed that plaintiff was not totally disabled, and that

this was the reason that defendant denied his claim for company disability

benefits. In light of these findings, which, again, we must presume correct,

plaintiff cannot show that the district court erred in denying his claim for

company disability benefits.

AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge