* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

This dispute arises out of plaintiff’s brief employ ment with defendant. Defendant hired plaintiff, a white male, as a custo mer service representative on September 23, 1992, when plaintiff was sixty-seven years old. Defendant’s customer service representatives take catalog order s from customers over the telephone, and key the orders into a computer. Pla intiff completed his probationary period on December 22, 1992. At aboutthe same time, plaintiff filled out an application for a promotion to the po sition of personnel coordinator. Defendant interviewed nine out of eighteen applican ts for the job, and did not interview plaintiff. Defendant selected an Hispani c 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 s uffered a kidney stone attack. Plaintiff went on sick leave and remained on sick l eave for a variety of problems, including bilateral carpal tunnel syndrome. Defend ant terminated plaintiff’s employment effective April 30, 1994. Plaintiff brought this suit, asserting federal clai ms under the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Age Discriminati on 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 Ac t, 29 U.S.C. §§ 2601-2654. Plaintiff also asserted pendent stat e law claims for wrongful termination, wrongful denial of long-term benefits, bad-faith refusal to pay1 We note that plaintiff failed to point out in the r ecord 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). -3- insurance benefits, and negligence. Plaintiff’s cl aims were tried to the district court, which found in favor of defendant on all cla ims. 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 underlyin g 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 ap pellate court, after reviewing all the evidence, is left with the definite and firm co nviction that a mistake has been made.” Heim v. Utah , 8 F.3d 1541, 1543 (10th Cir. 1993) (quotation omi tted). “It is the appellant’s responsibility to order and provide all portions of the transcript necessary to give the court of appeals acomplete and accurate record . . . .” 10th Cir. R. 10.1.1. The record m ust 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). Be cause plaintiff included only excerpts from the trial transcript in the record on appeal, we cannot review the3 Plaintiff cites just one case in support of his iss ue under the Americans

with Disabilities Act, and that case is from a dist rict court in another circuit. Plaintiff’s citation to only one authority which is not particularly relevant “suggests either that there is no authority to sust ain [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 auth ority before citing case law from other circuits because this court is “controll ed by the law of this circuit”). -4- district court’s factual findings and must accept t hem as correct. Cf. Trujillo v. Grand Junction Regional Ctr. , 928 F.2d 973, 976 (10th Cir. 1991) (holding absence of trial transcript precludes appellate rev iew of district court’s factual findings). Our review is therefore limited to dete rmining whether the district court correctly applied the law to the facts. See id. In his first issue, plaintiff claims the district c ourt erred in concluding that he was not a qualified person within the meaning of the Americans with Disabilities Act. Plaintiff asserts that the distr ict 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 discrim ination “against a qualified individual with a disability because of t he 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-5-

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 fo und that plaintiff’s orthopedic surgeon recommended that plaintiff be permanently r estricted from keyboard use, that keying is an essential function of the custome r service representative job, and that plaintiff could not perform the essential keyi ng function. In the absence of a complete trial transcript, we presume these finding s 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 Disab ilities Act. Next, plaintiff argues that the district court erre d in concluding that defendant was not required to provide him with a jo b at the end of twelve weeks of sick leave he requested and was granted under th e Family and Medical Leave
Act. See 29 U.S.C. § 2612(a)(1)(D). Plaintiff does not dis pute that he did not work for defendant long enough to qualify for any b enefits under this Act. See id. § 2611(2)(A). He argues, rather, that because def endant mistakenly paid him some benefits under the Act, defendant should be es topped from relying on plaintiff’s ineligibility with regard to the Act’s other benefits. Plaintiff offers no support at all for this proposition, in contraventi on 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-6-

conclusory reference to district court error without sufficient citation to authority “is not adequate appellate argument”); Primas v. Ci ty of Okla. City , 958 F.2d 1506, 1511 (10th Cir. 1992) (holding party has dutyto cite authority for any argument raised). We point out, however, that plai ntiff’s reliance on defendant’s mistake could not have been reasonable because he p lainly was not eligible for
anybenefits 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), c ert. 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 theref ore did not err in rejecting plaintiff’s estoppel argument. Third, plaintiff contends that the district court e rred in finding for defendant on his claim under 42 U.S.C. § 1981. “Th e 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 u nlawful discrimination, the burden shifts to the employer to articulate a legit imate, nondiscriminatory reason for its adverse employment action. See Berry v. Stevinson Chevrolet , 74 F.3d 980, 985-86 (10th Cir. 1996). If the employer meet s its burden of production, the-7-

burden shifts back to the employee to demonstrate t hat 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 artic ulated and reasonable excuse for failing to promote him to the position of perso nnel coordinator. The district court found based on the evidence presented at tria l that seniority was a primary factor defendant used in ranking the eighteen appli cants 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 conclu ded that seniority was a legitimate, nondiscriminatory reason for defendant’ s hiring decision. Plaintiff argues that seniority was not included inany descriptions of the position. Once again, the absence of a complete tr ial transcript hampers our review of the district court’s factual findings andwe must presume them correct. In this instance, however, plaintiff himself points to evidence that defendant’s employees “knew that promotions were based on senio rity.” II Appellant’s App. at 218. Based on this evidence, the district court ’s finding that seniority was a primary qualification for the personnel coordinatorposition is not clearly erroneous, and it did not err in concluding that de fendant’s reliance on seniority was not a pretext for unlawful discrimination.-8-

Finally, plaintiff contends that the district courterred in finding in favor of defendant on his claim for company disability benef its. 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. Th is argument is pure speculation and is unsupported by either factual or legal analy sis. 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