* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### 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 Judisc ak’s claim for breach of a contract to promote. Judiscak also appeals the dis trict 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 su mmary judgment de novo , applying the same legal standard used by the distri ct court. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f 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 reasonab le inferences therefrom in the light most favorable to the party opposing summary judgment. Kaul v. Stephan , 83 F.3d 1208, 1212 (10 thCir.1996). “[T]he relevant inquiry is whether the evidence presents a sufficient disagreement to requ ire submission to a jury or whether it is so one-sided that one party must prev ail 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 Judis cak as a purchasing specialist. By 1992, Judiscak held a position as an AcquisitionConsultant I with a Salary Range Indicator (“SRI”) level of 39. During that y ear, Digital’s purchasing organizations undertook a program to update and ens ure consistent job classifications. Judiscak’s supervisor, Joseph Ric hardson, sent his own supervisor1 According to Judiscak, Svirsky further confirmed hi s intention to promote

Judiscak by sending the following documents from Di gital’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 i n 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 “CommodityManagers” within his group. Judiscak was aware of the memo, but was spe cifically informed that it was simply a “recommendation.” Ultimately, Digital rej ected Richardson’s recommendation. Dick Svirsky became Judiscak’s supervisor in January of 1993. Seeking promotion to SRI 40, Judiscak sent Svirsky an e-mai l asking about his 1992 performance review and pointing out Richardson’s re commendation. Svirsky worked in Massachusetts, had never met Judiscak, an d was unfamiliar with Judiscak’s job performance. As a result, Svirsky a sked Judiscak to prepare a draft review of himself as a starting point for the evalu ation. Judiscak drafted a review in which he awarded himse lf a “1 Exceptional” rating (Digital’s highest possible) and “recommende d” that he be promoted to level SRI 40. Judiscak e-mailed this draft to Svir sky and they discussed it by phone. According to Judiscak, Svirsky indicated he agreed with the entire review. 1 Nevertheless, neither Judiscak, Svirsky, nor Svir sky’s supervisor signed the draft, as required by Digital standard practice . In fact, Svirsky produced an-4-

alternate performance review which did not incorpor ate Judiscak’s promotion “recommendation.” The resulting June 1993 final re view 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 parti cularly Svirsky’s specific oral promise to adopt Judiscak’s draft performance revie w constitute a binding express promise to promote Judiscak to an SRI 40 with comme nsurate 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 promot e 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 o f 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 a ctual authority, the district court concluded that “Digital, like many l arge companies, requires that promotions and other personnel changes be approved by several management levels.” Furthermore, the documentary evidence pro duced by the parties clearly2 After the district court granted Digital summary ju dgment, Judiscak filed a

motion for reconsideration, requesting that the dis trict court reconsider its ruling on Svirsky’s actual authority in light of a recentl y 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 completelysilent as to the question of whether Svirsky had the unilateral power to promote his subordinates. -5- showed that Svirsky did not have unilateral power t o promote Judiscak. 2 As to whether Svirsky had apparent authority, the distric t 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 th at 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 h is deposition, however, Judiscak admitted he was aware that Svirsky could only recommend a promotion and that the ultimate authority to promot e was in the hands of managers further up the corporate ladder. In parti cular, 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 t he salary plan.” Id. Because there was no material disputed issue of fact regard ing Judiscak’s knowledge of Digital’s promotion process and because that knowle dge negated any reasonable belief that Svirsky could unilaterally promote Judi scak 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 summ ary judgment and its order denying reconsideration, and the entire record on appeal. Based on that review this court concludes the district court did not errin granting Digital summary judgment on Judiscak’s actual and apparent authority claims and affirms for substantially those reasons set out in the districtcourt orders dated June 3, 1997, and August 29, 1997. Judiscak asserts the district court erred when it f ailed to address Judiscak’s contention that several Digital policy documents pr ovided to Judiscak by Svirsky, standing alone, created an implied contract to prom ote. The law in Colorado is clear: “To create an implied contractual term, stat ements 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 againstthis standard, Judiscak’s implied-contract claim borders on the frivolous. Judiscak relies on the following documents in suppo rt of his impliedcontract claim: (1) a pay matrix; (2) the job descr iption for the Acquisition Consultant II position; (3) Digital’s Time-in-Job f actors; (4) the CY93 US Pay Program; and (5) Digital’s Personnel Policies and P rocedures. Upon a meticulous review of the relevant documents, this court conclu des no reasonable jury could3 In particular, the 1993 Rate Guidelines, which cont ains 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.

4 The Personnel Policies and Procedures provide as fo llows: 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 membe r of the Board of Directors are authorized to enter into suc h contracts. -7- conclude the documents evince an intent on the partof 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 on e-sided that one party must prevail as a matter of law). In particular, we note that Digital’s Personnel Pol icies 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) (“[Digita l’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 i n only the most general terms and that none speak to a substantive and enforceabl e right to promotion. Upon review, this court concludes that none of the docum ents identified by Judiscak, considered either alone or in the aggregate, can re asonably 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 here by affirmed.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge