Plaintiff David C. Munoz, M.D., appeals the district court’s grant of summary judgment to St. Mary-Corwin Hospital, St. Mary-Corwin Regional Medical Center of Pueblo, Colorado, Sisters of Charity Health Services Colorado, and Centura Health Corporation (defendants) on his complaint alleging that defendants illegally discriminated against him on the basis of his age and national origin. Plaintiff brought his federal claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. Plaintiff also asserted state law claims for breach of contract and promissory estoppel. In a cross-appeal, defendants challenge the district court’s denial of their request for an award of costs. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court’s grant of summary judgment on behalf of defendants and reverse and remand as to defendants’ appeal of the court’s denial of costs. 1
I. Background
In the summer of 1994, plaintiff entered a three-year residency program at St. Mary-Corwin Hospital in Pueblo, Colorado, under the direction of Dr. Charles Raye. Residents in the program received quarterly performance evaluations from the faculty. Upon starting the program, plaintiff signed an employment agreement setting out the obligations and expectations of the residents and the hospital. The agreement provided that a resident could only be terminated for cause, and set out a grievance process whereby a resident subjected to an adverse employment action would receive written notice of the action and a right to appeal the action to the Graduate Medical Education Committee (the Committee). Any appeal of an adverse employment action was to be conducted according to the program’s due process policy which provided for a hearing at which the resident could present information relevant to the appeal. The resident was to receive a written decision.
Plaintiff claims that soon after he started the residency program, Dr. Raye targeted him for criticism. Following plaintiffs first evaluation, considered good, although it expressed concern with plaintiffs failure to thoroughly check out every patient and his performance of procedures without required supervision, Dr. Raye began to closely supervise plaintiffs performance. In November 1994, plaintiff performed a circumcision without faculty supervision. The procedure was not done correctly and a urologist was required to correct the circumcision. Plaintiff was directed not to perform any more unsupervised procedures. Later that day, plaintiff violated this directive and was observed doing another unsupervised circumcision.
On February 22, 1995, plaintiff was placed on probation. He did not avail himself of the program’s grievance process regarding the warning for performing unsupervised procedures or the probation action. Plaintiff was ultimately terminated from the program on April 10, 1995. In Dr. Raye’s memorandum to plaintiffs file regarding termination, he detailed numerous other infractions of the rules regarding patient care by plaintiff. See Appellant’s App. Vol. Ill at 611-12. Plaintiff grieved *1164 his termination and was present at a hearing before the Committee. The Committee upheld plaintiffs termination.
Because some faculty members expressed concern that plaintiffs trouble with the program may have been caused by psychological problems, the committee agreed to meet to reconsider plaintiffs termination based on the outcome of a voluntary psychiatric evaluation. Plaintiff was told that he may or may not be included in this second meeting. Following consideration of the plaintiffs psychiatric evaluation, the committee met without plaintiff in attendance and affirmed its decision to terminate him from the residency program.
Plaintiff appealed the Committee’s termination decision to the hospital’s acting CEO, Dr. William Turman. Following a meeting with plaintiff and consideration of all the information he had been given regarding plaintiffs performance in the program, Dr. Turman denied plaintiffs appeal, finding that it would be “inappropriate for [plaintiff] to continue in the Residency.” Id. at 667.
Plaintiff brought this action in federal court alleging that his termination was based on age and national origin discrimination. Plaintiff also asserted state law claims for breach of contract, alleging that his termination was without cause and violated due process — and promissory estop-pel, claiming he reasonably relied on defendants’ affirmative action policy. The district court granted defendants’ motion for summary judgment on all of plaintiffs claims.
On appeal, plaintiff contends that the district court erred in (1) granting defendants summary judgment on his breach of contract and estoppel claims; (2) granting defendants summary judgment on his claims of age and national origin discrimination; (3) striking plaintiffs expert rebuttal witness; and (4) denying plaintiffs motion to compel discovery. We will address each of these in turn.
II. Discussion — No. 99-1377
A. Standard of Review
We review the district court’s grant of summary judgment de novo, applying the same legal standard as the court below.
Bullington v. United Air Lines, Inc.,
B. Breach of Contract and Promissory Estoppel Claims
Plaintiff asserted state law breach of contract claims alleging defendants breached the provisions of the employment agreement. Applying Colorado law, we have held that an employer’s personnel policies and procedures can form an implied contract.
See Bullington,
Plaintiff also asserted a claim of promissory estoppel premised on his al *1165 leged reliance on defendants’ affirmative action policy. In order to sustain a claim under the theory of promissory estoppel, plaintiff “must demonstrate that the employer should have reasonably expected the employee to consider the policy as a commitment from the employer, that the employee reasonably relied on the statements to [his] detriment, and that injustice can be avoided only by enforcement of the policy.” Id.
In rejecting these claims, the district court provided a thorough analysis of the facts and the law. In plaintiffs sixty-three page appellate brief, he devotes only one short page to these issues and does not point this court to any error in the district court’s analysis or conclusions.
2
This court is “not required to manufacture a party’s argument on appeal when it has failed in its burden to draw our attention to the error below.”
National Commodity & Barter Ass’n Nat’l Commodity Exch v. Gibbs,
C. ADEA and Title VII Claims
This court analyzes ADEA claims under the three-step framework set forth in
McDonnell Douglas Corp. v. Green,
A plaintiff relying on McDonnell Douglas bears the initial burden of establishing a prima facie case by a preponderance of the evidence. One way a plaintiff may establish a prima facie case of wrongful termination is by showing that: (1)[ ]he belongs to a protected class; (2)[]he was qualified for [his] job; (3) despite [his] qualifications, []he was discharged; and (4) the job was not eliminated after [his] discharge. If the plaintiff establishes [his] prima facie case, a rebuttable presumption arises that the defendants unlawfully discriminated against [him]. The defendants must then articulate a legitimate, nondiscriminatory reason for the adverse employment action suffered by the plaintiff. If the defendant is able to articulate a valid reason, the plaintiff can avoid summary judgment only if []he is able to show that a genuine dispute of material fact exists as to whether the defendant’s articulated reason was pretextual.
Id. at 1135 (citations omitted). 3 The Perry court further stated that “the fourth test *1166 of the prima fade case is met if the discharged plaintiff can show that someone was hired to replace [him]” and plaintiff is not required to prove that the person hired to replace him belonged to the protected group. Id. at 1138.
Applying
O’Connor v. Consolidated Coin Caterers Corp.,
Finally, plaintiff claims that defendants discriminated against him on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964. Plaintiff contended that the heightened scrutiny and increased restrictions placed on his work and performance were evidence of pretext. Moreover, he contended that other residents with similar or worse infractions of the rules were not subjected to heightened scrutiny. Specifically, plaintiff claims that “numerous non-Hispanic and younger comparators who committed comparable alleged misdeeds and were in identical or comparable circumstances ... were not fired, disciplined or treated the same as plaintiff.” Appellant’s Br. at 58.
A plaintiff alleging violations of Title VII must present either direct or indirect evidence sufficient to show intentional discrimination.
See Shorter v. ICG Holdings, Inc.,
*1167
Once plaintiff establishes a prima facie case of discrimination, the defendants must offer legitimate, non-diseriminatory reasons for their adverse employment decision.
See Bullington,
The Supreme Court has recently held that a prima facie case of discrimination, combined with sufficient evidence of pretext, is sufficient as a matter of law to show intentional discrimination.
See Reeves,
— U.S. -,
In their brief supporting their motion for summary judgment, defendants stated that plaintiff was terminated from the residency program for performing unsupervised procedures, failing to adhere to supervisory directives, failing to respond to faculty, failing to address the complaints of an emergency room patient, treating an emergency room patient in a manner that caused the patient to leave the hospital, failing to follow instructions regarding contacting a surgeon about a patient, and planning an improper treatment program for a patient. Dr. Raye determined that these incidents indicated poor judgment on plaintiffs part. 5 The district court concluded that these constituted legitimate nondiscriminatory reasons for plaintiffs termination from the residency program.
The burden of persuasion then shifted back to plaintiff to show that defendants’ claimed reasons for terminating him were pretextual, that is, “unworthy of credence.”
Bullington,
D. Striking Plaintiffs Rebuttal Witness
Plaintiff argues that the district court erred in granting defendants’ motion to strike the rebuttal opinion of his expert witness, Robert Jeffrey, Jr. “This court reviews for an abuse of discretion a district court’s refusal to allow rebuttal testimony.”
Koch v. Koch Indus., Inc.,
Plaintiff designated Mr. Jeffrey’s opinion to rebut the opinion of defendants’ expert witness, Dr. Wilson D. Pace. Defendants moved to strike. In an order granting defendants’ motion, the magistrate judge concluded that Mr. Jeffrey’s opinion did not rebut that of Dr. Pace. Plaintiff filed a lengthy opposition to the magistrate judge’s order in the form of an appeal to the district court. The district court overruled plaintiffs objections.
Dr. Pace rendered an opinion on the standards and procedures applicable to intern physicians in the area of plaintiffs residency and family practice. He also reviewed plaintiffs performance during his time in the residency program and rendered the opinion that the process leading to plaintiffs termination comported with the due process contained in the residency manual. Mr. Jeffrey, on the other hand, rendered his opinion in the areas of fundamentally fair personnel procedures and due process and discrimination in employment.
On appeal, plaintiff asserts that the district court erred in finding that Mr. Jeffrey’s opinion did not rebut that of Dr. Pace. He claims that the court “somehow overlooked the actual contents of plaintiff expert’s opinion and failed to detect the abundant, lengthy and precise analysis visa-vis the residency program’s written due process procedures and documents.” Appellant’s Br. at 66. Once again, plaintiffs argument is woefully lacking in support. He does not point this court to the record evidence of Dr. Pace’s opinion allegedly rebutted by Mr. Jeffrey’s opinion. Instead, he points us to statements in Mr. Jeffrey’s opinion where he opines that the procedures afforded plaintiff before his termination violated Mr. Jeffrey’s own perception of due process and fundamental fairness.
It appears, as the district court found, that Mr. Jeffrey’s opinion concerned his view of due process and fundamental fairness in the workplace and his opinion of what constitutes discrimination. Our reading does not indicate that he, in any way, offered rebuttal testimony to the opinion of Dr. Pace, and therefore we cannot determine that the district court’s order striking Mr. Jeffrey’s opinion was an abuse of the court’s discretion.
*1169 E. Discovery Claim
Lastly, plaintiff claims that the district court erred in denying his motion to compel. Plaintiff filed an order to compel responses to Nos. 5-8 in his first request for production of documents, and Nos. 1-3, 5, 13-16, and 18-21 in his second request for production of documents and interrogatories. The magistrate judge found that because plaintiffs discovery requests were not in compliance with the court’s scheduling order, plaintiff was not entitled to a second set of written discovery and therefore, the court would only consider plaintiffs motion to compel as to Nos. 5-8 of his first request for production of documents.
The magistrate judge accepted as sufficient defendants’ response that they had fully complied with Nos. 5 and 6.
7
In No. 7, plaintiff requested extensive information regarding negative intern performance over a five year period. Although defendants asserted that this request was overly broad, they responded that they had provided copies of all disciplinary action and performance evaluations within the five-year time frame. Defendants also found plaintiffs request No. 8 for personnel files for every intern placed on or considered for probation or terminated during the same five-year period to be equally overly broad. They did provide copies of the disciplinary actions from the requested files. The magistrate judge found defendants’ compliance to be sufficient, and following consideration of plaintiffs objections, the district court sustained the order. We review the district court’s discovery order for abuse of discretion.
Gomez v. Martin Marietta Corp.,
On appeal, plaintiff contends that certain notes evincing occasions when a resident was criticized were not produced. Without any specificity or statement of relevance, plaintiff asserts that files and documents relating to
“other
residents” were “intentionally withheld.” Appellant’s Br. at 60 (emphasis in original). We have held that “an employer’s general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment.”
Gomez,
When, as is apparent here, a plaintiff brings an initial action without any factual basis evincing specific misconduct by the defendants and then bases extensive discovery requests upon eonclusory allegations in the hope of finding the necessary evidence of misconduct, that plaintiff abuses the judicial process. Therefore, the magistrate judge appropriately recognized that defendants’ compliance was sufficient and the likely benefit of any further attempted fishing expedition would be negligible.
See, e.g., Jarvis v. Nobel/Sysco Food Servs. Co.,
In discovery matters, we believe the district court is in the best position to weigh the variables and determine the appropriate limits.
Cf. Moothart v. Bell,
III. Discussion — No. 99-1391
In their cross-appeal, defendants challenge the district court’s denial of their request for costs, a decision we review for an abuse of discretion.
See Klein v. Grynberg,
Here, the district court summarily denied an award of costs to defendants without explanation. Thus, we have no basis for judging whether the court abused its discretion. Therefore, the part of the district court’s judgment decreeing that each party shall bear his own costs is reversed and the matter is remanded to the trial court for further consideration of defendants’ request for costs.
The judgment of the United States District Court for the District of Colorado is in case No. 99-1377 is AFFIRMED. The denial of costs appealed in case No. 99-1391 is REVERSED, and the matter is REMANDED for further proceedings consistent with this order and judgment.
Notes
. 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 cases are therefore ordered submitted without oral argument.
. In their appellate brief, defendants assert that “[t]here is no 'affirmative action program’ applicable to the residency program, and it had none when Dr. Munoz was a resident." Appellees’ Br. at 6. Plaintiff does not rebut this factual assertion on appeal. Moreover, plaintiff's entire argument to this court on the estoppel issue states: "Even were there no contractual documents in this case, the promissory elements of estoppel were present in abundance.” Appellant’s Br. at 63.
. In its summary judgment order, the district court applied the prima facie case test articulated by this court in
Sanchez v. Denver Public Schools,
. We recognize that although the district court granted defendants summary judgment on plaintiffs ADEA claim based on plaintiffs failure to establish a prima facie case, the district court proceeded to address pretext in relation to plaintiffs ADEA claim in conjunction with its discussion of pretext in relation to plaintiff's Title VII claim. While we affirm the district court’s decision on the basis of plaintiff’s failure to establish a prima facie case, we note that our subsequent discussion of pretext in relation to plaintiff’s Title VII claim is applicable to his ADEA claim as well.
. The record indicates that several of. these incidents formed the basis for the Colorado State Board of Medical Examiners’ action in placing plaintiff’s license on five-years probation. In the probation agreement, plaintiff admitted that he performed an unsupervised circumcision which required further corrective surgery and that he discharged a patient without needed oxygen. See Appellant's App. Vol. Ill at 622. He also admitted that these incidents “establish!] that [plaintiff] has engaged in unprofessional conduct.” Id.
. In response to defendants’ motion for summary judgment, plaintiff submitted more than one thousand “Undisputed Facts in Opposition to Defendants’ Motion for Summary Judgment.”
See
Appellant’s App. Vol. Ill, at 750-913. Both in the district court and on appeal, plaintiff cites to large numbers of these “undisputed facts” to support his allegations. The district court refused to sift through these facts in order to determine which, if any, may contradict defendants' proffered reasons. On appeal, plaintiff submitted over 2000 pages of appendix. In his brief, he cites to depositions and exhibits without providing this court with any indication of where in this voluminous record we may be able to find these documents. Therefore, we also'decline to “search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury.”
Thomas v. Wichita Coca-Cola Bottling Co.,
. Following consideration of plaintiff's objections to the magistrate judge's order, the district court overruled the magistrate judge’s determination that compliance with Nos. 5 and 6 was sufficient. In so doing the court ordered defendants to produce any documents withheld from their responses to interrogatories Nos. 5 and 6. See Appellant’s App. Vol. I at 223. The record does not indicate that plaintiff renewed his motion to compel as to these requests.