Bejar v. Department of Veterans Affairs

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSE M. BEJAR,
Plaintiff - Appellant,
v. No. 16-3218
(D.C. No. 2:15-CV-02601-CM)
DEPARTMENT OF VETERANS (D. Kan.)
AFFAIRS,
Defendant - Appellee.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
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Jose Bejar appeals the district court’s grant of summary judgment in favor of the
Department of Veterans Affairs (“VA”) on his claim under Title VII, 42 U.S.C.
§§ 2000e-2(a), 2000e-16. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Bejar was employed as a staff neurologist at a VA hospital in Topeka, Kansas.
The VA fired him after he lost his medical license—a result of pleading nolo contendere
to one count of sexual battery and one count of aggravated sexual battery for unwanted
sexual contact with his patients. He filed a pro se complaint under Title VII, alleging that
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
his convictions and termination manifested a conspiracy to retaliate against him for filing
an EEOC complaint more than a decade earlier, and to discriminate against him based on
his race and national origin.1 Bejar subsequently abandoned his retaliation claim,2 and
the district court granted summary judgment to the VA on the remaining discrimination
claim.
II
We review the district court’s grant of summary judgment de novo. Plotke v.
White, 405 F.3d 1092, 1093 (10th Cir. 2005). “Summary judgment is appropriate if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Davis v. Unified Sch. Dist. 500, 750 F.3d 1168,
1170 (10th Cir. 2014) (quotations omitted). We view the evidence and all reasonable
inferences therefrom in favor of the nonmoving party. Bennett v. Windstream
Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015).
Under the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), Bejar must make a prima facie showing of discrimination by
1
Bejar has, at varying times, acted both pro se and through counsel. We
afford his pro se materials a liberal construction. United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009).
2
The pretrial order, which supersedes the pleadings, see Fed. R. Civ. P. 16(d);
Weyerhaeuser Co. v. Brantley, 510 F.3d 1256, 1267 (10th Cir. 2007), presented only
a claim for discrimination. Further, Bejar’s opposition to the VA’s summary
judgment motion exclusively argued a discrimination theory, without advancing a
retaliation claim. Although Bejar’s brief on appeal suggests he experienced “reprisal
for prior EEO activity,” he waived his retaliation claim by abandoning it before entry
of the pretrial order and omitting it from his summary judgment briefing. See
Paycom Payroll, LLC v. Richison, 758 F.3d 1198, 1203 (10th Cir. 2014).
2
demonstrating that he is a member of a protected class, he suffered an adverse
employment action, and the challenged action occurred under circumstances that give rise
to an inference of discrimination. Bennett, 792 F.3d at 1266. If he satisfies that
requirement, the burden shifts to the VA to articulate a legitimate, nondiscriminatory
reason for its actions, after which the burden shifts back to Bejar to show the VA’s
explanation is merely pretextual. Id.
Bejar argued in the district court that he was framed for the sexual assaults. He
posited that the VA had a policy of allowing female patients to be examined and treated
by male doctors only when another female staff member was present. And he alleged
that the VA forced him to violate this policy by intentionally failing to make female staff
members available during his exams—all so it could terminate him on account of
discriminatory animus. The district court concluded that Bejar failed to allege a prima
facie case of discrimination because there was no evidence that the VA violated its policy
or that any purported violation was based on Bejar’s race. The court further noted that
even if Bejar had made the prima facie showing, he conceded that the VA had a
legitimate reason to terminate him and offered no argument to support a finding of
pretext.
We agree with the district court. Because Bejar has not provided any evidence
that his termination “took place under circumstances giving rise to an inference of
discrimination,” he has failed to make a prima facie showing of discrimination. Daniels
v. UPS, 701 F.3d 620, 627 (10th Cir. 2012). Bejar advances three arguments on appeal:
(1) there is a videotape recording of his exam of one of the victims that will exonerate
3
him; (2) he was coerced by his attorney to surrender his medical license; and (3) the
victims were encouraged or coached to frame him for the sexual assaults so he could be
fired. But these arguments were not advanced before the district court and are therefore
waived. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011).
Even if we were to consider these assertions, they are not supported by record evidence
and do not give rise to an inference of discrimination.
Finally, despite conceding that the VA offered a legitimate, nondiscriminatory
reason for terminating him—VA regulations require that its doctors be licensed, and
Bejar surrendered his medical license after being convicted of sexual battery3—Bejar has
failed to assert any argument of pretext before the district court or on appeal. Although
his opening appellate brief alludes to the VA’s “fabricated ‘legal’ excuse” for terminating
him, Bejar does not explain how the circumstances surrounding his termination create an
inference of pretext. Thus, any argument of pretext is waived. Bronson v. Swensen, 500
F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments
that are not raised, or are inadequately presented, in an appellant’s opening brief.”).
3
The VA initially proposed to terminate Bejar because of his convictions, but
it rescinded that rationale and terminated him because he was no longer qualified
upon surrendering his license.
4
III
For the foregoing reasons, the district court’s grant of summary judgment is
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
5