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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, we

grant Walter H. Martinez’s request for a decision on the briefs and order this case

submitted without oral argument. 

This order and judgment is not binding precedent, except under the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

SEP 29 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

WALTER H. MARTINEZ,

Plaintiff-Appellant,

v.

TG SODA ASH, INC., a Delaware

corporation,

Defendant-Appellee.

No. 97-8070

(D.C. No. 96-CV-307-J)

(District of Wyoming)

 

ORDER AND JUDGMENT *

 

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

 

Walter H. Martinez appeals the district court’s grant of summary judgment

to TG Soda Ash, Inc. (“TG”). Because the district court correctly determined that
2

Mr. Martinez failed to demonstrate a genuine issue of material fact as to whether

TG had breached his employment contract, we affirm.

FACTS

From April 1978 until May 1996, Mr. Martinez worked at TG’s soda ash

production facility in Sweetwater County, Wyoming. On March 13, 1996, after

experiencing back pain, Mr. Martinez visited his chiropractor, Dr. Debra

Arguello. During this visit, Dr. Arguello instructed Mr. Martinez not to work

from March 13 through March 31 in order to allow his back to heal. Mr. Martinez

subsequently telephoned his supervisor and informed him that he would be out of

work from March 13 through March 31 in order to recuperate from his back injury

and to obtain treatment. Mr. Martinez later submitted a note to TG from Dr.

Arguello in which the doctor “recommend[ed] [that] Walter remain off work 3-

13-96--3-31-96, so as not to further aggravate his low back.” See Aplt’s App. at

211. 

Dr. Arguello referred Mr. Martinez to a specialist, Dr. Mark McGlothlin,

who examined Mr. Martinez on March 26 and tentatively diagnosed him as

suffering from unhealed fractured ribs. Dr. McGlothlin recommended a bone

scan to confirm this diagnosis. Mr. Martinez visited Dr. McGlothlin again on

April 2, at which time Dr. McGlothlin conducted a bone scan that revealed a

possible rib fracture. Dr. McGlothlin then recommended a CT scan. On April 12,
3

Dr. McGlothlin gave Mr. Martinez a note that read, “Walter is under the care of

Dr. McGlothin [sic] for his back and ribs. He had an MRI on 4-2-96. We are in

the process of scheduling a CT scan, no change in working status pending results

of CT scan.” See Aplt’s App. at 224. Mr. Martinez underwent a CT scan on

April 13. On or about April 14, Mr. Martinez delivered the note from Dr.

McGlothlin to the safety supervisor at TG. 

On April 16, Robert MacAdams, TG’s human resources manager, sent a

letter to Mr. Martinez that stated:

Effective . . . April 20, 1996 you are placed on indefinite suspension

without pay for excessive absenteeism. The suspension will be

removed only if you can . . . . demonstrate that you could not have

worked at any time during your absence, that you have been under

constant care of a qualified physician, what you are suffering from,

and that you have been aggressively seeking treatment.

See Aplt’s App. at 280 (emphasis omitted).

On April 18, Dr. McGlothlin drafted a letter to Dr. Arguello, which he

copied to Mr. MacAdams, that stated:

CT scan was . . . completed . . . 4/13/96, with scan delineating

evidence of a compression deformity . . . [and] degenerative changes

of the thoracic spine. . . . I strongly suggested to Mr. Martinez that

he will continue to suffer intermittent . . . spinal axis pain. . . . I

would suggest the patient is clearly capable of returning to his

present job, . . . and I have suggested that he do so with all

expediency. Mr. Martinez informs me that you are his attending

physician of record and that his work release must come from your

office.
4

Aplt’s App. at 225-26. On April 22, Dr. Arguello released Mr. Martinez to return

to work on the following day.

Mr. Martinez called his foreman on April 22 and informed the foreman that

he would be available to work the next day. Mr. Martinez came to work on April

23, but prior to his scheduled shift, Mr. MacAdams asked to meet with him. In

the meeting, Mr. Martinez provided Mr. MacAdams with a copy of Dr. Arguello’s

release. However, Mr. MacAdams stated that the release did not satisfactorily

address all of the issues raised in the April 16 letter and informed Mr. Martinez

that TG would not permit him to work until he provided TG with documentation

that addressed all of the issues raised in the letter.

The next day, Mr. Martinez met with Mr. MacAdams and two other TG

superiors and gave them copies of his medical records, which included all of the

correspondence described above. After examining the records, Mr. MacAdams

informed Mr. Martinez that this documentation was insufficient and instructed

him to provide TG with medical documentation justifying his absence. Mr.

MacAdams told Mr. Martinez to return on April 26 in order to meet again. On

April 26, Mr. Martinez again met with Mr. MacAdams and several other TG

managers. The managers again informed Mr. Martinez that he had failed to

provide sufficient justification for his absence and gave him two weeks to provide

documentation demonstrating that he could not have worked from April 1 until
5

April 22. When Mr. Martinez did not provide TG with any additional

documentation within the two-week period, the company terminated his

employment.

THE LITIGATION

Mr. Martinez sued TG in Wyoming state court, alleging that TG breached

his implied contract of employment when it terminated him. TG removed the case

to the United States District Court for the District of Wyoming on diversity

grounds. Mr. Martinez moved for partial summary judgment, seeking a ruling

that TG’s employment and personnel policies constituted an implied-in-fact

employment contract that required just cause for discharge. TG also moved for

summary judgment, arguing that Mr. Martinez was an at-will employee or, in the

alternative, that the company had not breached any implied contract. The district

court granted TG’s motion, holding that even though there was sufficient

evidence to allow the question of the existence of an implied contract to go to the

jury, Mr. Martinez had failed to demonstrate a genuine issue of material fact on

the question of breach. The court denied Mr. Martinez’s motion as moot. Mr.

Martinez appeals only the district court’s grant of summary judgment to TG.
6

DISCUSSION

I. Standard of Review

We review de novo the district court’s grant of summary judgment,

applying the same legal standard as the district court. Lowe v. Angelo’s Italian

Foods, Inc. , 87 F.3d 1170, 1173 (10th Cir. 1996). Summary judgment is

appropriate if the evidence, when viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and that

the moving party is entitled to judgment as a matter of law. Seymore v. Shawver

& Sons, Inc. , 111 F.3d 794, 797 (10th Cir.), cert. denied , 118 S. Ct. 342 (1997).

II. Mr. Martinez Possessed An Implied Contract Of Employment

The district court held that Mr. Martinez came forward with sufficient

evidence to withstand summary judgment on the issue of whether he possessed an

implied contract of employment. In arriving at this holding, the district court

relied, in relevant part, on three documents that TG produced.

A. TG’s Work Rules and General Conditions of Employment

The first of these documents, a memorandum entitled “General Conditions

of Employment,” was printed on TG stationery and bore Mr. MacAdams’s

signature. This document lists eighteen work rules that “have been set forth as

guidelines for employee conduct” and provides that “[a]ll violations of these rules

are subject to disciplinary action and may lead to dismissal.” See Aplt’s App. at
7

292-93. It also lists three other rules, the violation of which will be “cause for

immediate dismissal.” See id. at 293. At deposition, Mr. Martinez testified that

TG gave him a copy of this memo while he was employed by the company.

The second document the district court cited was TG Personnel Policy 2.1,

“Work Rules,” which, not surprisingly, lists 25 work rules. This document

explains that an employee who violates any of the listed rules may be disciplined

and indicates that violations may, in some instances, lead to immediate dismissal. 

The Work Rules are quite similar to the General Conditions of Employment; Mr.

MacAdams testified that the General Conditions of Employment were intended to

clarify the Work Rules. TG distributed the Work Rules to its employees, and at

some point during his employment with TG, Mr. Martinez signed a document

acknowledging that he had received a copy of these rules.

The Wyoming Supreme Court has stated that when a company distributes

employee handbooks that “list[] misconduct that could result in discharge, the

handbooks imply that cause is required” for discharge. Leithead v. American

Colloid Co. , 721 P.2d 1059, 1063 (Wyo. 1986). We see no principled difference

between an employee handbook and individual policies such as those distributed

by TG. Thus, there is no reason to distinguish the present case from Leithead ,

where the Wyoming Supreme Court held that an employer that distributed an

employee handbook could not terminate an employee unless he violated one of the
8

rules listed in the handbook. See id. Accordingly, we hold that the district court

was correct when it ruled that there existed sufficient evidence from which a jury

could find that Mr. Martinez possessed a contractual right to continued

employment so long as he did not violate the rules set forth in the General

Conditions of Employment and the Work Rules.

B. TG’s Absence Policy

The district court also determined that TG’s Personnel Policy 5.0, entitled

“Absence,” was a part of the employment contract between TG and Mr. Martinez. 

TG’s Absence Policy lists, among other things, the company’s disciplinary

policies and procedures regarding unexcused employee absences. TG made this

policy available for its employees to review, and Mr. Martinez did, indeed, review

this policy during his tenure with the company. The Wyoming Supreme Court has

held that when a company distributes an employee handbook that lists disciplinary

procedures, it “create[s] an expectation on the part of an employee that [those

procedures] will be followed” and, hence, is contractually bound to adhere to

those procedures. See Mobil Coal Producing Co. v. Parks , 704 P.2d 702, 707

(Wyo. 1985). Accordingly, we hold that the district court was also correct when

it determined that a genuine issue of material fact existed as to whether TG was

contractually bound to adhere to the procedures set forth in the Absence Policy.

III. TG Did Not Breach Mr. Martinez’s Implied Employment Contract
9

A. TG’s Work Rules And General Conditions of Employment

Both the Work Rules and the General Conditions of Employment provide

that employees are required to notify their supervisors prior to missing a

scheduled shift and that unexcused absences from three shifts within a twelvemonth period will be cause for dismissal. See Aplt’s App. at 286, 292. The

district court granted summary judgment to TG because it found that the

undisputed facts demonstrated that Mr. Martinez had missed more than three

shifts from April 1-12, 1996 and that he had failed to provide notification to his

supervisor prior to those absences. Mr. Martinez contends that when the evidence

is viewed in the light most favorable to him, it reveals a genuine issue of material

fact as to whether he notified TG prior to the April 1-12 absences and whether

those absences were, in fact, excused. 

To demonstrate that Mr. Martinez notified TG prior to his April 1-12

absences, he points to the deposition testimony of Todd Brichacek and Michael

Hunt, two supervisors at TG. However, neither man’s testimony bears out Mr.

Martinez’s argument. Mr. Brichacek merely testified that when Mr. Martinez’s

foreman inquired about Mr. Martinez’s status at some unspecified time, Mr.

Brichacek responded that as far as he knew, Mr. Martinez was “getting treated.” 

See id. at 229. Mr. Hunt’s testimony is even less helpful to Mr. Martinez: It
10

establishes that Mr. Hunt could not recall when he was notified about Mr.

Martinez’s absences. See id. at 235.

The undisputed evidence demonstrates that on March 13, 1996, Mr.

Martinez telephoned TG and informed the company that he would be out of work

from March 13 until March 31 due to his back injury. At some point thereafter,

Mr. Martinez submitted a doctor’s note to TG indicating that he would be out of

work from March 13-31. On or about April 14, Mr. Martinez submitted another

doctor’s note to TG stating that he was continuing to seek treatment for his back

injury and that there should be no change in his working status until his doctor

received the results of a CT scan. Thus, the undisputed evidence shows that Mr.

Martinez failed to contact TG prior to his April 1-12 absences in order to notify

the company that he would miss work during that period.

Moreover, even if he had come forward with evidence of prior notification,

he has failed to show that his April 1-12 absences were excused. Both the Work

Rules and the General Conditions of Employment provide that an absence will be

deemed unexcused if the employee is unable to provide a sufficient explanation

for missing work and that three unexcused absences are cause for termination. 

The Work Rules specify that “the opinion of the employee’s supervisor and/or

department head” controls whether an absence should be deemed excused. See

Aplt’s App. at 286.
11

Mr. Martinez does not dispute that TG was entitled to exercise discretion in

deciding whether his absences should have been excused. However, he points to

numerous provisions in various TG policies and memoranda, as well as

Wyoming’s implied covenant of good faith and fair dealing, see Wilder v. Cody

County Chamber of Commerce , 868 P.2d 211, 220 (Wyo. 1994), and argues that

the company’s discretion is not boundless. Mr. Martinez contends that the

company is contractually required to exercise its discretion “in a fair manner,

after thorough investigation, with caution and only after consideration of all the

facts and extenuating circumstances.” Aplt’s Brief at 39. 

Even were we to accept Mr. Martinez’s argument, he has failed to identify

any evidence showing that TG acted in anything other than a reasonable and

thorough manner in determining that his absence was unexcused. Rather, Mr.

Martinez simply asserts baldly that “[t]here are definite issue[s] of fact as to

whether or not Defendant breached the contract by failing to exercise its

discretion within the guidelines set forth in the remainder of the contract.” See

id. However, “[w]ithout a specific reference, we will not search the record in an

effort to determine whether there exists dormant evidence which might require

submission of the case to a jury.” Gross v. Burggraf Constr. Co. , 53 F.3d 1531,

1546 (10th Cir. 1995) (quotation omitted). 
12

In addition, the undisputed evidence demonstrates that prior to discharging

Mr. Martinez, TG held several meetings with him to discuss his condition, gave

him a full month to provide the company with documentation showing that he was

unable to work during his absences, and examined all of the medical records that

he submitted to the company in an attempt to justify his absences. We find it

particularly telling that not one of Mr. Martinez’s doctors would provide him with

a simple note excusing his April 1-12 absences. See also Aplt’s App. at 306

(TG’s Short Term Disability Income Plan) (“A doctor’s certificate attesting to an

employee’s absence due to illness will be required when, in the opinion of

management, the absence is abusive.”). Under these circumstances, no reasonable

trier of fact could determine that TG handled this matter in anything other than a

fair and thorough fashion.

B. TG’s Absence Policy

Mr. Martinez also directs our attention to the following passage from TG’s

Absence Policy:

Any absence not determined under the provisions . . . to be excused

shall be deemed unexcused , and the following penalties shall apply

without discretion:

A. First day of unexcused absences : Recorded warning and loss

of salary.

B. Second unexcused absence within a 12 month period of the

first unexcused absence: Suspension from work without pay

for three consecutive work turns . . . .
13

C. Third unexcused absence within a 12 month period of the first

unexcused absence: Termination.

Aplt’s App. at 304-05 (emphasis in original). Mr. Martinez argues that the

Absence Policy requires progressive discipline and, thus, that TG violated this

policy when it failed to impose the penalty for his first unexcused absence

(recorded warning and loss of salary) prior to imposing more serious penalties for

his subsequent unexcused absences. 

Mr. Martinez, however, failed to come forward with any evidence

demonstrating that TG’s Absence Policy requires progressive discipline. 

Although it is true that the policy listed the penalties in ascending order of

seriousness, there is nothing in its language suggesting that TG’s right to impose

the more serious penalties is contingent upon the company’s previously having

placed a recorded warning in the employee’s file and docked his pay. Rather, the

policy simply provides that three unexcused absences will automatically result in

an employee’s termination. 

Perhaps our decision would have been different if Mr. Martinez had shown

that he had detrimentally relied on TG’s failure to issue him a written warning. 

However, TG provided Mr. Martinez with ample notice that his job was in

jeopardy and afforded him repeated opportunities to justify his absences. It was

only after Mr. Martinez had missed more than a month of work and demonstrated

an inability to account for many of those absences that TG finally terminated his
14

employment. Of course, at the meeting in which it discharged Mr. Martinez, TG

could have gone through the formality of issuing him a written warning before

firing him. However, requiring the company to jump through such a pointless

hoop would neither further TG’s policies nor serve Mr. Martinez’s interests. 

In sum, we will not allow Mr. Martinez to profit from TG’s lenity (or,

perhaps, oversight) in failing to penalize him after his first unexcused absence. 

Under the facts of this case, TG’s failure to issue a written warning did not work

to Mr. Martinez’s detriment, and it did not preclude the company from later

terminating him when he subsequently continued to amass unexcused absences.

CONCLUSION

Although Mr. Martinez demonstrated a genuine issue of material fact

regarding the existence of an implied contract of employment, he failed to adduce

any evidence that TG breached that contract. Consequently, we hereby AFFIRM

the district court’s grant of summary judgment to TG.

Entered for the Court,

Robert H. Henry

Circuit Judge