FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 24, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ARSHAD AZIM,
Plaintiff - Appellant,
v. No. 16-3235 (D.C. No. 2:13-CV-02267-DDC) TORTOISE CAPITAL ADVISORS, LLC; (D. Kan.) H. KEVIN BIRZER; MICHELLE KELLY; MARTY BICKNELL; TABITHA BOISSONNEAU; MARINER HOLDINGS, LLC; FAMBRAN ENTERPRISES,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________
Plaintiff-Appellant Arshad Azim appeals the district court’s grant of summary
judgment in favor of Defendants-Appellees Tortoise Capital Advisors, LLC, H.
Kevin Birzer, Michelle Kelly, Marty Bicknell, Tabitha Boissonneau, Mariner
Holdings, LLC, and Fambran Enterprises in this employment law dispute. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. I
Arshad Azim is an experienced financial services professional, having gained
experience at firms in Chicago and Kansas City since 1998. Vol. V at 1034–36. He
was born in Kashmir, immigrated to the United States to attend college in Michigan,
and then spent approximately 13 years in the financial services industry in Chicago.
Id. In 2011, he accepted a position as the Vice President of Business Development at
Tortoise and moved to Kansas City to be closer to family. Id. at 1036. Azim was the
only Vice President in the Business Development department at Tortoise, and he
reported directly to Michelle Kelly, the Director of that department. See id. at 1075.
After working at Tortoise for eight months, Azim found his interactions with
Kelly had become increasingly difficult, and he began to view his position with
Tortoise as “unbearable.” See id. at 1101–02. By Monday, April 16, 2012, he had
concluded that he could no longer take it because he felt “humiliated” and had “lost
respect” for himself. Id. at 1103, 1109. The stress of the situation had reached such
a point that he had “dysentery and [a] headache,” and he was unable to attend work.
Id. at 1044. He stated in an email to the human resources manager the following day
that he had been harassed by Kelly for a “7-month period,” was in a “hostile work
condition,” and felt “threatened at work!” Vol. II at 429–30.
Azim continued to interact with Tortoise’s human resources department
several times in the ensuing days. Vol. I at 95; Vol. II at 405. On Friday, April 20,
2012, Azim and his counsel met with the human resources team at Tortoise and Azim
elaborated on his concerns regarding Kelly and the Tortoise management team. Vol.
2 II at 417–55. He also suggested ways that Tortoise could alleviate or resolve those
issues. Id. at 458. Ten days later, Azim met with the Senior Managing Director of
Tortoise, who informed Azim that Tortoise was terminating Azim’s employment
because of “distinct differences in how the company should operate.” Id. at 419–21.
A little more than a year later, Azim filed this action. Vol. I at 3. Although
Azim was represented by counsel when he met with Tortoise’s human resources
manager prior to his termination, he chose to proceed pro se before the district court.
Vol. VI at 1450–52. After multiple amendments, Azim’s final and controlling
complaint alleged violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2(1)
(hereinafter “Title VII”), 15 U.S.C. § 78u-6(h)(1)(A)(i), and 42 U.S.C. § 1985. Vol. I
at 48–49.
The parties then conducted discovery and prepared for summary judgment
and/or trial. As part of that process, Azim and Tortoise exchanged drafts and jointly
prepared a proposed Pretrial Order, which the district court adopted and entered on
April 20, 2015. Id. at 108–31. The Pretrial Order stated that it “supersede[d] all
pleadings and control[led] the subsequent course of this case.” Id. at 108. In the
Pretrial Order, Azim’s claims against the Defendants were:
Count I Defendants terminated plaintiff’s employment in violation of Section 1981 by discriminating against him based on racial background/ethnicity.
Count II Defendants terminated plaintiff’s employment in violation of Title VII, specifically, by discriminating against him based on religion.
3 Count III Defendants terminated plaintiff’s employment in violation of Dodd-Frank, specifically, by retaliating against him with abject disregard to the whistleblower protection the Act affords.
Count IV Defendants interfered with plaintiff’s civil rights by obstructing justice in violation of Section 1985(3).
Id. at 121–22.
The Defendants subsequently filed a motion for summary judgment, which the
district court granted. Vol. VI at 1324–67. In its order granting Defendants’
summary judgment motion, the district court concluded that the Pretrial Order
controlled the scope of Azim’s claims. Id. at 1363–64. The district court held that
Azim’s Title VII or § 1981 retaliation claims were not preserved because they were
not included in the Pretrial Order. The district court granted the Defendants
summary judgment on those claims.1 Id. The district court also held that Azim had
not demonstrated a triable issue of fact regarding any of his preserved claims, and
granted summary judgment in the Defendants’ favor on those claims as well. This
timely appeal follows.
1 In the alternative, the district court held that Azim’s retaliation claim—if he had stated it—would have failed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting analysis. Vol. VI at 1364. 4 II
On appeal, Azim only argues that the district court erred in granting summary
judgment on his Title VII and § 1981 retaliation claims, see Aplt. Reply Br. at vi,2
which the district court held Azim had waived by omitting those claims from the
Pretrial Order. “Because the district court is in the best position to interpret its
pretrial order, our standard of review on appeal is abuse of discretion.” Tyler v. City
of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997).
The Pretrial Order entered in this case was based upon Federal Rule of Civil
Procedure 16(e), which states:
The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 24, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court ARSHAD AZIM,
Plaintiff - Appellant,
v. No. 16-3235 (D.C. No. 2:13-CV-02267-DDC) TORTOISE CAPITAL ADVISORS, LLC; (D. Kan.) H. KEVIN BIRZER; MICHELLE KELLY; MARTY BICKNELL; TABITHA BOISSONNEAU; MARINER HOLDINGS, LLC; FAMBRAN ENTERPRISES,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________
Plaintiff-Appellant Arshad Azim appeals the district court’s grant of summary
judgment in favor of Defendants-Appellees Tortoise Capital Advisors, LLC, H.
Kevin Birzer, Michelle Kelly, Marty Bicknell, Tabitha Boissonneau, Mariner
Holdings, LLC, and Fambran Enterprises in this employment law dispute. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
* 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. I
Arshad Azim is an experienced financial services professional, having gained
experience at firms in Chicago and Kansas City since 1998. Vol. V at 1034–36. He
was born in Kashmir, immigrated to the United States to attend college in Michigan,
and then spent approximately 13 years in the financial services industry in Chicago.
Id. In 2011, he accepted a position as the Vice President of Business Development at
Tortoise and moved to Kansas City to be closer to family. Id. at 1036. Azim was the
only Vice President in the Business Development department at Tortoise, and he
reported directly to Michelle Kelly, the Director of that department. See id. at 1075.
After working at Tortoise for eight months, Azim found his interactions with
Kelly had become increasingly difficult, and he began to view his position with
Tortoise as “unbearable.” See id. at 1101–02. By Monday, April 16, 2012, he had
concluded that he could no longer take it because he felt “humiliated” and had “lost
respect” for himself. Id. at 1103, 1109. The stress of the situation had reached such
a point that he had “dysentery and [a] headache,” and he was unable to attend work.
Id. at 1044. He stated in an email to the human resources manager the following day
that he had been harassed by Kelly for a “7-month period,” was in a “hostile work
condition,” and felt “threatened at work!” Vol. II at 429–30.
Azim continued to interact with Tortoise’s human resources department
several times in the ensuing days. Vol. I at 95; Vol. II at 405. On Friday, April 20,
2012, Azim and his counsel met with the human resources team at Tortoise and Azim
elaborated on his concerns regarding Kelly and the Tortoise management team. Vol.
2 II at 417–55. He also suggested ways that Tortoise could alleviate or resolve those
issues. Id. at 458. Ten days later, Azim met with the Senior Managing Director of
Tortoise, who informed Azim that Tortoise was terminating Azim’s employment
because of “distinct differences in how the company should operate.” Id. at 419–21.
A little more than a year later, Azim filed this action. Vol. I at 3. Although
Azim was represented by counsel when he met with Tortoise’s human resources
manager prior to his termination, he chose to proceed pro se before the district court.
Vol. VI at 1450–52. After multiple amendments, Azim’s final and controlling
complaint alleged violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2(1)
(hereinafter “Title VII”), 15 U.S.C. § 78u-6(h)(1)(A)(i), and 42 U.S.C. § 1985. Vol. I
at 48–49.
The parties then conducted discovery and prepared for summary judgment
and/or trial. As part of that process, Azim and Tortoise exchanged drafts and jointly
prepared a proposed Pretrial Order, which the district court adopted and entered on
April 20, 2015. Id. at 108–31. The Pretrial Order stated that it “supersede[d] all
pleadings and control[led] the subsequent course of this case.” Id. at 108. In the
Pretrial Order, Azim’s claims against the Defendants were:
Count I Defendants terminated plaintiff’s employment in violation of Section 1981 by discriminating against him based on racial background/ethnicity.
Count II Defendants terminated plaintiff’s employment in violation of Title VII, specifically, by discriminating against him based on religion.
3 Count III Defendants terminated plaintiff’s employment in violation of Dodd-Frank, specifically, by retaliating against him with abject disregard to the whistleblower protection the Act affords.
Count IV Defendants interfered with plaintiff’s civil rights by obstructing justice in violation of Section 1985(3).
Id. at 121–22.
The Defendants subsequently filed a motion for summary judgment, which the
district court granted. Vol. VI at 1324–67. In its order granting Defendants’
summary judgment motion, the district court concluded that the Pretrial Order
controlled the scope of Azim’s claims. Id. at 1363–64. The district court held that
Azim’s Title VII or § 1981 retaliation claims were not preserved because they were
not included in the Pretrial Order. The district court granted the Defendants
summary judgment on those claims.1 Id. The district court also held that Azim had
not demonstrated a triable issue of fact regarding any of his preserved claims, and
granted summary judgment in the Defendants’ favor on those claims as well. This
timely appeal follows.
1 In the alternative, the district court held that Azim’s retaliation claim—if he had stated it—would have failed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting analysis. Vol. VI at 1364. 4 II
On appeal, Azim only argues that the district court erred in granting summary
judgment on his Title VII and § 1981 retaliation claims, see Aplt. Reply Br. at vi,2
which the district court held Azim had waived by omitting those claims from the
Pretrial Order. “Because the district court is in the best position to interpret its
pretrial order, our standard of review on appeal is abuse of discretion.” Tyler v. City
of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997).
The Pretrial Order entered in this case was based upon Federal Rule of Civil
Procedure 16(e), which states:
The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.
The pretrial order that is finalized following a pretrial conference “measures
the dimensions of the lawsuit, both in the trial court and on appeal.” Tyler, 118 F.3d
at 1403 (citation omitted). That is, if a claim is omitted from the pretrial order, that
claim is “not part of the case before the district court.” Gowan v. United States Dep’t
of Air Force, 148 F.3d 1182, 1192 (10th Cir. 1998).
Azim admits that he did not specifically include Title VII or § 1981 retaliation
claims in his list of claims in the Pretrial Order. Aplt. Br. at 45. But he argues that
2 At oral argument, Azim’s counsel reiterated that Azim is only challenging the district court’s decision regarding the Title VII and § 1981 retaliation claims. 5 by including references to Title VII and § 1981 discrimination he cured that
deficiency. Yet, the Supreme Court has held that “antidiscrimination and
antiretaliation provisions are indeed conceptually distinct, and serve distinct
purposes.” Gomez-Perez v. Potter, 553 U.S. 474, 495 (2008). Therefore, Azim
needed to explicitly set out a retaliation claim to preserve retaliation as a pending
claim, and his reference to Title VII and § 1981 discrimination was insufficient.
Azim also argues that he specifically referenced his retaliation claims
elsewhere in the Pretrial Order. His factual contentions, as set forth in the Pretrial
Order, contain two references to retaliation, but both refer to claims that Azim is not
pursuing in this appeal. The first, that Azim “was retaliated against after reporting”
misrepresentations, fraudulent representations, and false Security and Exchange
Commission filings, related to Azim’s “Count III,” which includes a cause of action
under the Dodd-Frank Act. Vol. I at 113; see also Vol. VII at 1571 (the district court
found that this sentence “clearly references [Azim’s] Dodd-Frank Act retaliation
claim, not a Title VII or § 1981 retaliation claim.”).
Azim’s second reference to retaliation in his factual contentions is more
ambiguous. It alleges that, “[i]n retaliation, to cover up the plethora of intentionally
contrived illegalities, [Azim] was tampered with as a witness (by obstructing justice
before, during and after he was fired) by proactively seeking his attendance—under
false pretenses—at the meeting during which he was threatened to sign a release
agreement and then fired.” Vol. I at 113. In context, though, the reference to
“obstructing justice” indicates this sentence refers to Azim’s § 1985(3) claim, which
6 Azim set out as “Count IV” in the Legal Claims section: “Defendants interfered with
plaintiff’s civil rights by obstructing justice in violation of Section 1985(3).” Vol. I at
122. We agree with the district court’s conclusion that the two sentences Azim included
in the factual contentions of the Pretrial Order were “mere references to retaliation,
without more, [and] fail to demonstrate that plaintiff asserted a Title VII or § 1981
retaliation claim.” Vol. VII at 1571. We also note that these references to retaliation in
relation to Azim’s Dodd-Frank and § 1985(3) counts did not alert Azim to the need to
identify his Title VII and § 1981 counts as retaliation claims in the Legal Claims
section of the Pretrial Order.
Further, Azim and Tortoise exchanged drafts of the Pretrial Order. In those
drafts, Tortoise included two affirmative defenses to Azim’s retaliation claims. Yet,
those references did not cause Azim to include Title VII or § 1981 retaliation claims
in the Legal Claims section of the Pretrial Order. Azim also had the opportunity to
discuss the Title VII and § 1981 retaliation claims at the April 2, 2015 pretrial
conference. See Vol. VII at 1486–1537. Azim did not identify those claims at that
time, or alert the district court in any way that he intended to pursue Title VII and
§ 1981 retaliation claims.
Finally, Azim argues that he could not be expected to know the difference
between discrimination and retaliation because he was a pro se litigant—albeit a very
sophisticated pro se litigant. It is true that “however inartfully pleaded” a pro se
filing may be, the court must use “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, this
7 court has also held that “it is [not] the proper function of the district court to assume
the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). If Azim sought to include Title VII and § 1981 retaliation claims it
was his responsibility to state those claims and not rely on the district court to
propose potential claims on his behalf.
We conclude that the district court did not abuse its discretion when it held
that Azim had not preserved his Title VII and § 1981 retaliation claims because he
failed to include them in the Pretrial Order.
III
The district court’s grant of summary judgment to the Defendants is affirmed.
Entered for the Court
Mary Beck Briscoe Circuit Judge