Almodovar v. McDonough ( 2021 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1061
CARLOS ALMODOVAR,
Plaintiff, Appellant,
v.
DENIS RICHARD MCDONOUGH,
Secretary, United States Department of Veteran Affairs,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Kayatta and Barron, Circuit Judges,
and Talwani,* District Court Judge.
Robert F. Stone for appellant.
Katelyn E. Saner, Assistant United States Attorney, with whom
Donald E. Clark, Acting United States Attorney, and John G. Osborn,
Assistant United States Attorney, were on brief, for appellee.
December 13, 2021
* Of the District of Massachusetts, sitting by designation.
KAYATTA, Circuit Judge. Carlos Almodovar alleges that,
in 2016, he was unlawfully passed over for a position within the
Maine Healthcare System of the U.S. Department of Veterans Affairs
(the "VA") both due to discrimination based on his gender and
disability status and in retaliation for reporting past
discrimination.1 The district court granted summary judgment to
the VA. Almodovar raises, in essence, two arguments on appeal,
but the first was untimely and he failed to exhaust the second.
Accordingly, we now affirm.
First, Almodovar complains that the district court
failed to permit him to amend his complaint to introduce a
memorandum written in 2012 by an employee within the VA's Equal
Employment Opportunity office who retired in January 2020. The
memo, retained by the employee but apparently never put in agency
records or shown to anyone else, discussed events that could be
read to support a race or national-origin discrimination claim by
Almodovar against his manager at the time. The parties in this
case were unaware of this 2012 memo until its author sent it to
each side shortly after her retirement, which was five months
before the VA moved for summary judgment. Nearly a month after
summary judgment briefing concluded and ten months after the
1 On appeal, he asserts that he has raised race and national-
origin discrimination claims. But, because such claims were not
alleged below, we do not consider them.
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parties received the memo, Almodovar filed what he styled as a
motion to amend his complaint, seeking to add an allegation that
the VA improperly withheld the memo during the course of
litigation.2 The district court denied that motion because it was
untimely. We agree. See Steir v. Girl Scouts of the USA, 383
F.3d 7, 12 (1st Cir. 2004) ("Once a scheduling order is in
place, . . . [the] standard [for amendment] focuses on the
diligence (or lack thereof) of the moving party more than it does
on any prejudice to the party-opponent."); Fed. R. Civ. P. 16(b).
Almodovar has presented no justifiable reason why he should have
been permitted to add a claim to his complaint after summary
judgment was fully briefed based on evidence that he received five
months before that briefing began. See Steir, 383 F.3d at 12
("Where the motion to amend is filed after the opposing party has
timely moved for summary judgment, a plaintiff is required to show
'substantial and convincing evidence' to justify a belated attempt
to amend a complaint." (quoting Resolution Tr. Corp. v. Gold, 30
F.3d 251, 253 (1st Cir. 1994))).
2 We reject Almodovar's repeated refrain that the VA, by
"withholding" the memorandum, somehow violated his due process
rights under Brady v. Maryland, 373 U.S. 83 (1963). This is a
civil case, not a criminal case, so the constitutional restrictions
outlined in Brady do not apply absent exceptional circumstances
not applicable here. See Fox v. Elk Run Coal Co., 739 F.3d 131,
138 (4th Cir. 2014) (declining to apply a civil Brady rule because
"only in rare instances" have courts applied Brady to civil
proceedings).
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On appeal, Almodovar maintains that he mislabeled his
motion and that the district court should have considered it a
motion to introduce the memo as evidence of his claims on summary
judgment. Almodovar had originally attached the memo to his
summary judgment briefing and argued that it was relevant to his
claims of discrimination in connection with his 2016 pass-over,
even though it concerned events that occurred four years earlier
and involved different people. But, based on Almodovar's repeated
failure to follow the local rules, the district judge did not
consider his evidence, including the 2012 memo, in issuing summary
judgment for the VA. Because Almodovar does not challenge those
evidentiary rulings on appeal, we have nothing to review on that
score. Regardless, Almodovar can claim no prejudice resulting
from the 2012 memo's exclusion because, even accepting that the
memo evidences race and national-origin discrimination by a former
manager in 2012, it does not support his claims in this case. The
memo detailed activity that occurred four years prior to the
employment action challenged in this lawsuit, involved alleged
bias by a person not involved in this suit, and concerned issues
that Almodovar settled with the Equal Employment Opportunity
Commission in 2012. So, for each of these reasons, we can find no
fault in how the district court handled Almodovar's quite belated
motion.
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Second, Almodovar argues in his opening brief that the
VA violated his due process rights by failing to follow the
requirements of 5 U.S.C. § 3318, which apply to the selection of
qualifying disabled veterans for certain employment positions.
But that statutory scheme sets out a detailed process that veterans
are required to go through to vindicate their rights under its
provisions before turning to federal district court, see 5 U.S.C.
§§ 3330a–3330b, and federal courts lack jurisdiction over claims
made under that statute until that process has been followed, see
Grayton v. SSA, 683 F. App'x 952, 956 (Fed. Cir. 2017). Almodovar
did not follow that process here, so he failed to exhaust any
potential claim arising under section 3318. See Conyers v.
Rossides, 558 F.3d 137, 148–49 (2d Cir. 2009) (explaining the
veteran preferences exhaustion process).3
In reply and at oral argument, Almodovar clarified that
he is not raising a claim under the statute; rather, he contends
that the failure to go through the statutorily mandated process
when passing him over -- namely, obtaining permission from the
Office of Personnel Management and providing him a chance to
respond -- is evidence that the VA's non-discriminatory reasons
for its decision are mere pretext. Since this argument was only
clearly articulated for the first time in his reply brief, however,
3 For this reason, we also reject Almodovar's contention that
the VA raised exhaustion in "bad faith."
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it is waived. N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35,
45 (1st Cir. 2001) (arguments first raised in reply are waived);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (arguments
not clearly developed in opening briefs are waived).
Almodovar raises no other preserved bases for
challenging the entry of summary judgment dismissing his claim.
We therefore affirm.
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