* This order and judgment is not binding precedent, e xcept under the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 8 2000 

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

SONNI SCHWINN,

Plaintiff-Appellant,

v. HUMAN AFFAIRS INTERNATIONAL, INC.; MARSHA PETERS, ERIC EPPERSON, STEPHANIE BOYERS, individually and in their employment capacity with the Defendant corporation,

Defendants-Appellees. No. 99-4140 (D.C. No. 97-CV-271-S) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and BRISCOE , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Plaintiff Sonni Schwinn began working for defendantHuman Affairs International, Inc. (HAI) as an associate proposal writer in 1994 when she was sixty years old. Defendants Peters, Epperson and Boyers were her supervisors. Following difficulties in the working relationship between the parties, plaintiff resigned in July 1996. She then brought this actio n alleging violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, conspiracy under 42 U.S.C. § 1985(3), and intentional inflicti on of emotional distress. She also attempted to amend her complaint to add a clai m of gender discrimination. The district court dismissed the conspiracy and int entional infliction of emotional distress claims, denied her leave to amend her comp laint, and granted summary judgment to HAI on her ADEA claim. Plaintiff appea ls. We affirm for the reasons stated below.
Dismissal of conspiracy claim Plaintiff asserted a claim against the individual d efendants under 42 U.S.C. § 1985(3) alleging that they conspired to deprive h er of the equal opportunities of her job and equal protection in her working conditi ons. The district court noted that plaintiff apparently conceded that violations of the ADEA cannot support a § 1985(3) claim. It then held that her vague and c onclusory allegations of-3-

violations of her rights to equal protection and pr operty interests failed to adequately state a claim under § 1985(3), noting in particular that as an at-will employee, plaintiff had no property interest in her employment. We review the district court’s dismissal for failur e to state a claim de novo,

see Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999), and may affirm for any reason supported by the record, see Seibert v. Oklahoma ex rel. Univ. of Okla. Health Sciences Ctr. , 867 F.2d 591, 597 (10th Cir. 1989). Plaintiff contends that her § 1985(3) claim has been validated by the Supreme Court’s determination that interference wit h an at-will employment relationship is sufficient to state a claim under § 1985(2). See Haddle v.
Garrison , 525 U.S. 121, 126 (1998). Haddle , however, is irrelevant to the principles that § 1985(3) does not create its own s ubstantive rights but merely provides a remedy for violation of other rights, see Great Am. Fed. Sav. & Loan Ass’n v. Novotny , 442 U.S. 366, 376 (1979), and that § 1985(3) clai ms must be based on racial or class-based discrimination, see Tilton v. Richardson , 6 F.3d 683, 686 (10th Cir. 1993). The only class on which the alleged conspiracy could be based is plaintiff’s age, and her substantive ri ghts in this regard are created by the ADEA. Violation of the ADEA cannot form the ba sis for a § 1985(3) claim.
See Sherlock v. Montefiore Medical Ctr. , 84 F.3d 522, 527 (2d Cir. 1996).-4-

Dismissal of intentional infliction of emotional distress claim Noting that plaintiff conceded that the Utah Worker ’s Compensation Act generally provides the exclusive remedy for job-sus tained injury, the district court rejected plaintiff’s contention that she fell withi n an exception for deliberate intent to injure. On appeal, she contends only tha t the exclusive-remedy provision is unconstitutional. She did not raise t his argument in the district court, and we will not consider it. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
Denial of motion for leave to amend complaint Seventeen months after filing her complaint and fou r months after the deadline for amending pleadings, plaintiff moved fo r leave to amend her complaint to add a claim of gender discrimination t hat had not been administratively exhausted and which was based on a n incident occurring over two years before she filed her complaint. She has not persuaded us that the district court abused its discretion in denying her motion. See Ben Ezra, Weinstein, & Co. v. America Online Inc. , 206 F.3d 980, 987 (10th Cir. 2000).
Grant of summary judgment to HAI on ADEA claim Plaintiff contended that HAI denied her equal pay a nd promotional opportunity and constructively discharged her in vi olation of the ADEA. In2 McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-04 (1973).

-5- assessing her claims, the district court applied the McDonnell Douglas 2 burdenshifting scheme, see Beaird v. Seagate Tech., Inc. , 145 F.3d 1159, 1165 (10th Cir.), cert. denied , 525 U.S. 1054 (1998). For the equal pay and prom otional opportunity claims, the court assumed that plaintif f made her prima facie case. It then found that HAI had met its burden of profferin g facially nondiscriminatory reasons for the challenged employment actions. Spe cifically, it found that plaintiff was the only proposal writer without a co llege degree and that HAI’s supervisory personnel and senior writers viewed herperformance and skills as deficient. The court then held that plaintiff had not demonstrated that these explanations for the challenged actions were pretex tual. With respect to the constructive discharge claim, the court first held that plaintiff had failed to demonstrate that HAI created working conditions tha t were sufficiently intolerable as to be actionable as a constructive d ischarge and thus failed to establish her prima facie case. Alternatively, the court held that HAI met its burden of showing legitimate nondiscriminatory reas ons for its actions, and that plaintiff again failed to show these reasons were p retextual. On appeal, plaintiff challenges all of the district court’s determinations leading to its grant of summary judgment to HAI. F urther, she contends that the-6-

court erred by not granting her motion for summary judgment on ADEA liability. We review the district court’s grant of summary ju dgment de novo, applying the same standards under Fed. R. Civ. P. 56 used by the district court. See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999). We have fully considered plaintiff’s arguments and reviewed the r ecord, and we conclude the district court correctly assessed the parties’ moti ons for summary judgment. Therefore, for substantially the same reasons as st ated in the district court’s May 29, 1999 memorandum decision, we affirm its grant o f summary judgment to HAI and its denial of summary judgment to plaintiff.
AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge