Gary v. U.S. West Communications, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 14 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROBERT GARY,
Plaintiff-Appellant,
v. No. 99-1587
(D.C. No. 98-D-1143)
U.S. WEST COMMUNICATIONS, (D. Colo.)
INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered 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This order and judgment is not binding precedent, except under the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.
Plaintiff/appellant Robert Gary appeals from summary judgment granted in
favor of defendant/appellee U.S. West Communications, Inc. on his claims
brought pursuant to sections 1132 and 1140 of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, federal common law, and
state law. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.
The relevant facts are set forth in the district court’s thorough and well-
reasoned order of November 24, 1999. On appeal, Mr. Gary argues that the
district court erred in holding that: (1) his claim for benefits should be dismissed
for failure to exhaust administrative remedies; (2) his evidence was insufficient to
support his claim for retaliation; and (3) dismissal of his case should be with
prejudice. “We review a district court’s grant of summary judgment de novo ,
applying the same legal standard used by the district court pursuant to Federal
Rule of Civil Procedure 56(c).” Deboard v. Sunshine Mining & Ref. Co. , 208
F.3d 1228, 1237 (10th Cir. 2000). After reviewing the parties’ briefs and
conducting a de novo review of the record, this court concludes that the district
court correctly decided issues one and two for substantially the same reasons as
stated in the district court’s order. See Appellant’s App. Vol. IV, at 1040-50. As
U.S. West Communications points out, Mr. Gary did not appeal from the district
court’s determination that, notwithstanding Mr. Gary’s failure to administratively
appeal from the denial of benefits, U.S. West Communications did not abuse its
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discretion in denying his disability claim. Thus, dismissal of the case with
prejudice was also proper.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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