Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

MEMORANDUM^* 

Robert Dietrich appeals from the district court's grant of summary judgment in favor of his former employer, Varian Associates, on Dietrich's pendent state claim of breach of employment contract. Dietrich contends that the district court erred in finding that he was not constructively discharged because the record contains ample evidence to support his claim that his retirement was not voluntary. He also contends that the district court erred in awarding costs to Varian. We cannot agree.

Jurisdiction

Before addressing Dietrich's contentions, we must consider appellee Varian's claim that this court lacks jurisdiction to hear Dietrich's appeal. Varian contends that Dietrich's motion to strike costs was a Fed. R. Civ. P. 59 motion. Accordingly, under Fed. R. App. P. 4(a) (4), Dietrich's notice of appeal was ineffective because Dietrich filed it before he moved for an order striking costs. The law of this circuit, however, is "that a motion to alter or amend a judgment to award costs does not come within Rule 59(e)." Durham v. Kelly, 810 F.2d 1500, 1503 (9th Cir. 1987). Consequently, Fed. R. App. P. 4(a) does not render Dietrich's earlier notice of appeal ineffective. Thus, his appeal is timely.

Constructive Discharge

"A constructive discharge occurs when, looking at the totality of the circumstances, 'a reasonable person in [the employee's] position would have felt that he was forced to quit because of intolerable and discriminatory working conditions.' " Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984). To withstand a motion for summary judgment, a non-moving party is required to show that there are "genuine factual issues that properly can be resolved ... in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The evidence offered by Dietrich is not sufficient to raise a genuine issue as to whether his decision to retire was involuntary. He alleges that Varian supervisors engaged in several acts of retaliation against him. A close examination of the record, however, reveals that there is no basis for viewing these acts as retaliatory. Dietrich also alleges that his immediate supervisor, Lawler, made a threatening remark at the time Dietrich was offered voluntary retirement. But even accepting Dietrich's characterization of the remark, the record indicates that two supervisors higher in rank than Lawler reassured Dietrich that the retirement offer was entirely voluntary. Under these circumstances, we conclude that as a matter of law, a reasonable person would not have felt forced to retire.

Award of Costs

Dietrich also contends that the district court erred in awarding costs to Varian because Varian did not prevail on all counts. We find this contention meritless. Given that Varian prevailed on Dietrich's federal age discrimination and state breach of employment contract claims, and that Dietrich's remaining two claims were dismissed, the district court did not abuse its discretion in taxing costs against Dietrich.

AFFIRMED.