* This order and judgment is not binding precedent, e xcept under the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 7 2000 

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

THEOLA ANN JARRETT,

Plaintiff-Appellant,

v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant-Appellee. No. 99-3134 (D.C. No. 97-CV-2487) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Theola Ann Jarrett, proceeding pro se on appeal, appeals the district court’s order resolving her employment cla ims in favor of defendant and its denial of her post-judgment motion. We exe rcise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. Plaintiff was employed by defendant. In May of 198 9, due to a mental disability, she was unable to return to work. She received short term disability benefits until November 17, 1989, when her long term disability benefits began. She claims she was discharged in violation of Title VII, the Rehabilitation Act, and the Americans with Disabilities Act (ADA). The district court entered summary judgment on plaintiff’s claim that defendan t’s failure to accommodate her disability violated the Rehabilitation Act and the ADA, and dismissed her remaining claims for failure to state a claim underFed. R. Civ. P. 12(b)(6). Following the entry of judgment in favor of defenda nt, plaintiff filed a motion to set aside the judgment, pursuant to Fed. R. Civ. P. 59, which the district court denied. On appeal, plaintiff asserts that the district court erred in denying her motion to set aside the judgment, claiming her atto rney’s illness had impaired his ability to represent her, her motion to compel disc overy should have been granted, and the judgment violated her rights to due process and equal protection. Plaintiff also challenges the summary judgment and dismissal order on the-3-

following grounds: (1) the district court erred infinding that plaintiff’s employment was terminated on November 17, 1989 whenher short term disability benefits expired, (2) defendant failed t o meet its burden of production for summary judgment, (3) there exists a private ri ght of action under the Rehabilitation Act, (4) defendant’s contracts with the federal government qualified as a federal subsidy under the Rehabilitation Act, (5) plaintiff’s claims pre-dated the ADA based on a continuing violation t heory, and (6) the district court failed to address some of her claims. We review the district court’s denial of plaintiff’ s post-judgment motion for an abuse of discretion. See Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1997). A Rule 59(e) motion should be gr anted only to correct errors of law or to consider newly discovered evidence. See id. Plaintiff has demonstrated no prejudice due to her attorney’s illness or the denial of her motion to compel. She has not al leged how her attorney’s representation was compromised due to his illness d uring the summer before he was granted leave to withdraw on November 6, 199 8. As for her motion to compel, she sought discovery relevant to her Rehabi litation Act claim, which, as we discuss below, she abandoned before the distr ict court. Therefore, the discovery she sought was irrelevant. Furthermore, plaintiff failed to file an affidavit pursuant to Fed. R. Civ. P. 56(f). See United States v. Simons , 129 F.3d-4-

1386, 1388 (10th Cir. 1997) (“Where a movant has me t the initial burden required to support summary judgment, the non-movant then mu st either establish the existence of a triable issue of fact under Fed. R. Civ. P. 56(e) or explain why he cannot . . . under Rule 56(f).”) (quotation omitted). Plaintiff also claims that her due process and equa l protection rights were violated, and the only way to vindicate those right s is to set aside the judgment and begin anew. The argument is nothing more than a request for another opportunity to resist entry of a judgment against h er, which the district court was not obliged to entertain. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991) (appeal from denial of Rule 60(b) motion). Accordingly, we conclude that the district court did not abuse its discretion in denying plaintiff’s post-judgment motion. Turning to the judgment, w e review de novo the district court’s grant of summary judgment, viewing the record in the light m ost favorable to the party opposing summary judgment. See McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Similarly, our review is de novo when considering an order dismissing a complaint for failure to stat e a claim for relief under-5-

Rule 12(b)(6) of the Federal Rules of Civil Procedu re, using the same standard applied by the district court. See Ordinance 59 Ass’n v. United States Dep’t of Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998). “We acceptas true all well-pleaded facts, as distinguished from conclusory allegations, and view those facts in the light most favorable to the nonmoving party.” Maher v. Durango Metals, Inc. , 144 F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint pursuant to Rule 12(b)(6) will be upheld only if “i t appears beyond doubt that the plaintiff can prove no set of facts in support of [ her] claim which would entitle [her] to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). The judgment was based in large part on two critica l circumstances: (1) plaintiff abandoned her claims based on the Reh abilitation Act, and (2) plaintiff failed to controvert defendant’s evid ence that her employment was terminated on November 17, 1989, the date her tempo rary disability benefits ended, and before the effective date of the ADA. O n the first point, in response to defendant’s motions for summary judgment and dis missal, plaintiff acknowledged defendant’s argument that she could no t state a cause of action under the Rehabilitation Act and stated, “[w]ithoutarguing those po[i]nts, Plaintiff contends that she brings her claims underthe American[s] with Disabilities Act of 1990.” R. vol. 2, doc. 77 at 5 . The waiver of her Rehabilitation Act claims is clear and unequivocal. Because plaintiff waived-6-

her claims brought pursuant to the Rehabilitation A ct, we need not address her appellate issues based on it. Cf. O’Connor v. City & County of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990) (appellate court will n ot consider claims abandoned in district court). The other dispositive issue is whether plaintiff pr oduced evidence to defeat summary judgment on defendant’s assertion that her employment ended on November 17, 1989. This factor is critical to plai ntiff’s ADA claims because the Act’s effective date was July 26, 1992, well after the alleged termination date of November 17, 1989. The ADA is not effective retroactively. See 42 U.S.C. § 12111 note--Effective Date (ADA “shall become eff ective 24 months after the date of enactment [July 26, 1990].”); Huels v. Exxon Coal USA, Inc. , 121 F.3d 1047, 1049 (7th Cir. 1997); Morrison v. Carleton Woolen Mills, Inc. , 108 F.3d 429, 443 (1st Cir. 1997); Brown v. General Tel. Co. , 108 F.3d 208, 209 (9th Cir. 1997); Gonzales v. Garner Food Servs., Inc. , 89 F.3d 1523, 1525 (11th Cir. 1996); Buchanan v. City of San Antonio , 85 F.3d 196, 197 (5th Cir. 1996); Smith v. United Parcel Serv. of Am., Inc. , 65 F.3d 266, 266 (2d Cir. 1995); cf. Office of Senate Sergeant at Arms v. Office of Senate Fair Employment Practices , 95 F.3d 1102, 1107 (Fed. Cir. 1996) (“[T]he ADA, as incorpo rated into the [Government Employee Rights Act], does not require a retroactiv e accommodation for-7-

a disability.”). Therefore, if defendant’s alleged violations of the ADA occurred before July 26, 1992, defendant cannot be held acco untable under the ADA. Defendant produced the affidavit of its Benefits Se rvices Manager to establish plaintiff’s termination date. See R. vol. 1, doc. 66, attach. B. Plaintiff argues that a document entitled “Individual Terminations,” explaining long term disability coverage, refutes defendant’s evidence. See id. vol. 2, doc. 77, ex. A. According to plaintiff, the Individual Terminations document provided that an insured was employed by defendant as long as he or she was receiving long term disability benefits. Plaintiff alleges she remaine d employed by defendant as late as 1993 because she received benefits for a short p eriod during that year. The district court declined to consider the Individual Terminations document on summary judgment because it was not properly authenticated and did not establish that it applied during the dates in question, let a lone that it proved that plaintiff continued to be defendant’s employee as long as she received some form of long term benefits. We will “consider only admissible evidence in revie wing an order granting summary judgment.” Gross v. Burggraf Constr. Co. , 53 F.3d 1531, 1541 (10th Cir. 1995). “[T]he nonmoving party need not produc e evidence ‘in a form that would be admissible at trial,’ but the content or s ubstance of the evidence must-8-

be admissible.” Thomas v. International Business Machs. , 48 F.3d 478, 485 (10th Cir. 1995) (quoting Celotex Corp. , 477 U.S. at 324). Here, plaintiff merely attached the Individual Term ination document to her affidavit. She did not establish its authenticity or legal relevance to her claims. Accordingly, we determine that the district court d id not abuse its discretion in refusing to consider the Individual Terminations document. See Mitchael v. Intracorp, Inc. , 179 F.3d 847, 854 (10th Cir. 1999) (district court’s ruling to exclude evidence at summary judgment stage reviewed for abuse of discretion). Consequently, we hold that plaintiff failed to demo nstrate a genuine issue of fact on the question of when her employment terminated. Her employment ended before the effective date of the ADA; therefore, th e district court properly dismissed plaintiff’s ADA claims. Contrary to plaintiff’s argument that defendant was required to demonstrate that its own witnesses would not help her case, we conclude that defendant met its initial burden on summary judgment. Cf. Celotex Corp. , 477 U.S. at 323 (moving party not required to produce materials “ negating the opponent’s claim”). Plaintiff’s continuing violation theory is rejected because she has offered no evidence to support it. Finally, we reject plainti ff’s argument that not all of her claims were resolved because we determine that the district court’s comprehensive orders resolved plaintiff’s well-plea ded claims.-9-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby Circuit Judge