*This order and judgment is not binding precedent, except under the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

DEC 30 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES F. JUDISCAK,

Plaintiff-Appellant,

v.

DIGITAL EQUIPMENT

CORPORATION, a foreign

corporation,

Defendant-Appellee.

No. 97-1356

(District of Colorado)

(D.C. No. 96-WY-2400 CB)

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

James F. Judiscak appeals the district court’s grant of summary judgment to

Digital Equipment Corporation (“Digital”) on Judiscak’s claim for breach of a

contract to promote. Judiscak also appeals the district court’s denial of

Judiscak’s Motion for Reconsideration or to Amend the Judgment. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
-2-

I. BACKGROUND

This court reviews the district court’s grant of summary judgment de novo, 

applying the same legal standard used by the district court. Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). When applying this standard,

this court examines the factual record and reasonable inferences therefrom in the

light most favorable to the party opposing summary judgment. Kaul v. Stephan,

83 F.3d 1208, 1212 (10th Cir.1996). “[T]he relevant inquiry is whether the

evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” 

Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980 (10th Cir.1993)

(quotation marks and citation omitted).

Stated briefly and in accord with the standard set out above, the relevant

facts are as follows. In 1984, Digital hired Judiscak as a purchasing specialist. 

By 1992, Judiscak held a position as an Acquisition Consultant I with a Salary

Range Indicator (“SRI”) level of 39. During that year, Digital’s purchasing

organizations undertook a program to update and ensure consistent job

classifications. Judiscak’s supervisor, Joseph Richardson, sent his own supervisor
1According to Judiscak, Svirsky further confirmed his intention to promote

Judiscak by sending the following documents from Digital’s confidential salary

guidelines to Judiscak in May of 1993: (1) Digital’s pay matrix; (2) the CY93 US

Pay Program; (3) Performance and Experience (Time in Job) Factors; (4) the

Acquisition Consultant II job description; and (5) Digital’s Personnel Policies and

Procedures.

-3-

a memo recommending an SRI of 40 for the “Commodity Managers” within his

group. Judiscak was aware of the memo, but was specifically informed that it was

simply a “recommendation.” Ultimately, Digital rejected Richardson’s

recommendation.

Dick Svirsky became Judiscak’s supervisor in January of 1993. Seeking

promotion to SRI 40, Judiscak sent Svirsky an e-mail asking about his 1992

performance review and pointing out Richardson’s recommendation. Svirsky

worked in Massachusetts, had never met Judiscak, and was unfamiliar with

Judiscak’s job performance. As a result, Svirsky asked Judiscak to prepare a draft

review of himself as a starting point for the evaluation.

Judiscak drafted a review in which he awarded himself a “1 Exceptional”

rating (Digital’s highest possible) and “recommended” that he be promoted to

level SRI 40. Judiscak e-mailed this draft to Svirsky and they discussed it by

phone. According to Judiscak, Svirsky indicated he agreed with the entire

review.1 Nevertheless, neither Judiscak, Svirsky, nor Svirsky’s supervisor signed

the draft, as required by Digital standard practice. In fact, Svirsky produced an
-4-

alternate performance review which did not incorporate Judiscak’s promotion

“recommendation.” The resulting June 1993 final review rated Judiscak a “2"

performer and addressed a promotion recommendation as a conditional matter

linked to a future reevaluation.

Svirsky’s June 1993 review is the only performance review signed by

Svirsky or his supervisor. Nevertheless, Judiscak claims that his discussions with

Svirsky during the entire review process, and particularly Svirsky’s specific oral

promise to adopt Judiscak’s draft performance review constitute a binding express

promise to promote Judiscak to an SRI 40 with commensurate salary increase.

II. ANALYSIS

In resolving Judiscak’s claims, the district court assumed the existence of

an express promise on the part of Svirsky to promote Judiscak and resolved

Judiscak’s claim as a matter of law. The district court began by noting that under

Colorado law, a principal is bound by the actions of its agent only where the agent

is acting pursuant to actual or apparent authority. See Life Investors Ins. Co. v.

Smith, 833 P.2d 864, 868 (Colo. Ct. App. 1992). As to actual authority, the

district court concluded that “Digital, like many large companies, requires that

promotions and other personnel changes be approved by several management

levels.” Furthermore, the documentary evidence produced by the parties clearly
2After the district court granted Digital summary judgment, Judiscak filed a

motion for reconsideration, requesting that the district court reconsider its ruling

on Svirsky’s actual authority in light of a recently disclosed copy of Svirsky’s job

description. As aptly noted by the district court in denying the motion, however,

the newly discovered job description was completely silent as to the question of

whether Svirsky had the unilateral power to promote his subordinates.

-5-

showed that Svirsky did not have unilateral power to promote Judiscak.2 As to

whether Svirsky had apparent authority, the district court began by recognizing

that “[i]n order for Judiscak to show that Svirsky had apparent authority to

contract on Digital’s behalf, Judiscak must show that he was reasonably justified

in believing Svirsky could promote him.” Dist. Ct. Order at 4 (citing Cornelius v.

Gerwin & Co., 642 P.2d 54, 56 (Colo. Ct. App. 1982)). During his deposition,

however, Judiscak admitted he was aware that Svirsky could only recommend a

promotion and that the ultimate authority to promote was in the hands of

managers further up the corporate ladder. In particular, Judiscak testified that

promotion “paperwork has got to be approved by the management all the way up. 

It’s got to be in the budget, and it should be in the salary plan.” Id. Because

there was no material disputed issue of fact regarding Judiscak’s knowledge of

Digital’s promotion process and because that knowledge negated any reasonable

belief that Svirsky could unilaterally promote Judiscak to SRI 40, the district

court granted summary judgment to Digital.
-6-

This court has conducted a de novo review of the parties’ briefs and

pleadings, the district court’s order granting summary judgment and its order

denying reconsideration, and the entire record on appeal. Based on that review

this court concludes the district court did not err in granting Digital summary

judgment on Judiscak’s actual and apparent authority claims and affirms for

substantially those reasons set out in the district court orders dated June 3, 1997,

and August 29, 1997.

Judiscak asserts the district court erred when it failed to address Judiscak’s

contention that several Digital policy documents provided to Judiscak by Svirsky,

standing alone, created an implied contract to promote. The law in Colorado is

clear: “To create an implied contractual term, statements in an employee

handbook must be a manifestation of the employer’s willingness to enter into a

bargain with the employee.” George v. Ute Water Conservancy Dist., 950 P.2d

1195, 1198 (Colo. Ct. App. 1997). Measured against this standard, Judiscak’s

implied-contract claim borders on the frivolous.

Judiscak relies on the following documents in support of his impliedcontract claim: (1) a pay matrix; (2) the job description for the Acquisition

Consultant II position; (3) Digital’s Time-in-Job factors; (4) the CY93 US Pay

Program; and (5) Digital’s Personnel Policies and Procedures. Upon a meticulous

review of the relevant documents, this court concludes no reasonable jury could
3

In particular, the 1993 Rate Guidelines, which contains the pay matrix,

provides as follows: “The Target Rates provided in this document are meant to

serve as guidelines for managers.” Similarly, the instruction manual

accompanying the guidelines provides that “[t]he Rate Guidelines are ONLY

GUIDELINES; they are NOT intended to determine the exact increase or rate of

pay.

4The Personnel Policies and Procedures provide as follows:

ONLY THE CEO IS AUTHORIZED TO GRANT BLANKET

EXCEPTION(S) TO THESE POLICIES. AS SUCH, DIGITAL’S HR

POLICIES ARE NOT CONTRACTS OR GUARANTEES OF ANY

PARTICULAR KIND OF TREATMENT OR MANAGEMENT

PROCESS. Only the Senior Leadership Team and member of the

Board of Directors are authorized to enter into such contracts.

-7-

conclude the documents evince an intent on the part of Digital to enter into a

bargain with Judiscak. See Bingaman, 1 F.3d at 980 (providing that summary

judgment is appropriate where the evidence is so one-sided that one party must

prevail as a matter of law).

In particular, we note that Digital’s Personnel Policies and Procedures and

most of the pay-related documents were specifically delineated as “guidelines”3

and were not distributed to general employees. See Marsh v. Digital Equip.

Corp., 675 F. Supp. 1186, 1196 (D. Ariz. 1987) (“[Digital’s] policies and

procedures were issues to the supervisors to guide them in their dealings with

other employees and certainly were not meant in any way to impliedly created a

contract . . . .”). Furthermore, there is a clear and conspicuous disclaimer of

intent on the first page of the Personnel Policies and Procedures.4 See George,

950 P.2d at 1198 (holding that summary judgment is appropriate where employee
-8-

manual contains clear and conspicuous disclaimer of intent). Finally, we note that

all of the documents identified by Judiscak speak in only the most general terms

and that none speak to a substantive and enforceable right to promotion. Upon

review, this court concludes that none of the documents identified by Judiscak,

considered either alone or in the aggregate, can reasonably be interpreted as

evincing an intent on the part of Digital to enter into a bargain with Judiscak.

III. CONCLUSION

For all of the reasons set out above, the judgment of the United States

District Court for the District of Colorado is hereby affirmed.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge