F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS May 15, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
BIJAN D ANESHVA R,
Plaintiff-Appellant,
v. No. 06-3242 (D.C. No. 04-CV -2212-JW L) GRAPHIC TECHNOLOGY, IN C., (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
Plaintiff Bijan Daneshvar, appearing pro se, appeals from the district
court’s entry of judgment in favor of defendant Graphic Technology, Inc. (GTI),
on his claims of discrimination and retaliation under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. W e have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background
M r. Daneshvar, who is Iranian, worked for GTI since 1988. 1 GTI is in the
printing business. M r. Daneshvar’s precise job title is a matter of some
contention between the parties, but the district court found that he was a “press
assistant.” See R., Vol. II, Doc. 116 at 8-9. On June 20, 2003, he filed a charge
of discrimination with the Kansas Human Rights Commission (KHRC) alleging
that GTI had paid him a lower wage than similarly situated non-Iranian
employees. On December 22, 2003, GTI suspended M r. Daneshvar with pay
based on allegations that he had sexually harassed a female coworker over the
course of several weeks. GTI investigated the allegations and terminated his
employment by letter dated January 6, 2004.
M r. Daneshvar filed a second charge with the KHRC alleging that GTI had
retaliated against him for filing the first charge by subjecting him to a heavier
workload and suspending him. The notarization on the second charge is dated
January 6, 2004, and the charge indicates it was received by the KHRC on
January 7. It also appears that M r. Daneshvar filed an amended charge that the
KHRC received on January 21, 2004, which added the termination of his
1 In the district court, GTI asserted that M r. Daneshvar worked for GTI since 1998. Although immaterial to our disposition, this apparent discrepancy is perhaps due to the fact that GTI had discharged him in 1997. M r. Daneshvar successfully challenged that discharge as retaliatory, which in turn lead to his reinstatement in GTI’s employ by court order filed in 1998. See Daneshvar v. Graphic Tech., Inc., 40 F. Supp. 2d 1225 (D. Kan. 1998).
-2- employment as another instance of retaliation. However, as discussed in detail
below, he never submitted a copy of the amended charge to the district court, but
has provided this court with a copy of it.
On February 19, 2004, the Equal Employment Opportunity Commission
(EEOC) sent M r. Daneshvar a right-to-sue letter in w hich it adopted the K HRC’s
findings; although the parties have not directed us to any documentation of those
findings in the record, they apparently were adverse to M r. D aneshvar.
M r. D aneshvar then filed his pro se complaint in this action on M ay 14. On
June 25, the KHRC sent M r. Daneshvar a letter stating that it was dismissing the
second charge because the pending lawsuit w as based on the same allegations.
On A ugust 4, 2004, the EEOC issued a second right-to-sue letter adopting those
findings.
In this action, M r. Daneshvar alleged that GTI committed numerous acts of
discrimination or retaliation in violation of Title VII. Chief among those w ere
disparate workload, disparate wage, and w rongful discharge claims. He also
listed a number of other claims, ostensibly under Title VII: failure to promote;
discriminatory promotional training and promotion; conspiracy; forgery;
obstruction of justice; perjury; witness tampering; failure to explain reasons for
suspension; failure to pay wages at time of termination; failure to enroll him in
GTI’s COBRA plan in a timely manner; and failure to enroll him in a guest
membership health plan.
-3- GTI filed a motion for summary judgment, which the district court granted
in part, denied in part, and retained under advisement in part. The court deemed
M r. Daneshvar’s disparate workload claim abandoned and granted summary
judgment to GTI on that claim. The court dismissed the remainder of the claims
for failure to exhaust administrative remedies with two exceptions— the disparate
wage and wrongful discharge claims. The court retained the disparate w age claim
because GTI had not moved for summary judgment on it. As to the wrongful
discharge claim, the court observed that although M r. Daneshvar had filed an
administrative charge concerning his suspension, a claim he had not asserted in
his complaint, it did not appear that he had filed an administrative charge relating
to his discharge. Because it could not determine whether M r. Daneshvar had
exhausted his administrative remedies as to his wrongful discharge claim, the
court concluded that it could not address GTI’s motion for summary judgment on
the merits of that claim. The court therefore ordered the parties to submit
supplemental briefing on whether it had subject matter jurisdiction over the
wrongful discharge claim.
In his supplemental brief, M r. Daneshvar did not assert that he had filed a
charge with the KHRC that identified his discharge as retaliatory. Instead, he
argued that his discharge was reasonably related to his suspension such that the
January 7 charge, which alleged that his suspension was retaliatory, was sufficient
to satisfy the exhaustion requirement as to his discharge. The court rejected that
-4- argument, relying primarily on M artinez v. Potter, 347 F.3d 1208 (10th Cir.
2003), which it had discussed in its briefing order. The court concluded that
M r. Daneshvar’s discharge was a discrete employment action requiring
administrative exhaustion and finding that he had failed to exhaust. The court
therefore dismissed his wrongful discharge claim for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1).
GTI then filed a second motion for summary judgment concerning the
remaining disparate wage claim. GTI presented evidence that one non-Iranian
press assistant who worked on the night shift received a higher rate of pay than
M r. Daneshvar because of a shift differential. GTI also presented evidence that
four other non-Iranian press assistants received higher pay because they had
accepted a demotion from higher-paying positions in order to survive a reduction
in force, and company policy was to pay such employees at the highest hourly
wage within the press assistant grade level. Concluding that M r. Daneshvar had
not presented sufficient evidence to raise a triable fact issue that GTI’s proffered
nondiscriminatory reasons were pretextual under the analytical framew ork
established by M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
district court granted summary judgment in favor of GTI on the disparate wage
claim. The court also rejected M r. Daneshvar’s argument that the affidavit of
GTI’s Vice President of Operations at the relevant time, Charlie Besch, which
GTI submitted in support of its second summary judgment motion, was
-5- inadmissible because it lacked foundation, and denied M r. Daneshvar’s motion to
strike the supporting affidavit of Jennifer Clary, GTI’s human resources manager,
and the exhibits attached to it. This appeal followed.
II. Discussion
M r. Daneshvar raises two issues on appeal in his opening brief, that the
district court erred by (i) dismissing his w rongful discharge claim for failure to
exhaust administrative remedies and (ii) considering the affidavits of M r. Besch
and M s. Clary as proper support for G TI’s second motion for summary judgment. 2
W e address each issue in turn, bearing in mind that we review M r. Daneshvar’s
pro se pleadings and other papers liberally and hold them to a less stringent
standard than those drafted by attorneys but do not act as his advocate. See Hall
v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
A. Dismissal of W rongful Discharge Claim
“[E]xhaustion of administrative remedies is a jurisdictional prerequisite to
instituting a Title VII action in federal court.” Khader v. Aspin, 1 F.3d 968, 970
(10th Cir. 1993) (quotation omitted). Thus, a district court must dismiss an
unexhausted claim for lack of subject matter jurisdiction. See Shikles v.
2 M r. Daneshvar raises no error in the district court’s order granting summary judgment on his disparate workload claim and dismissing all his other claims, except his disparate w age and wrongful discharge claims, for failure to exhaust. Accordingly, we do not consider the court’s rulings on those issues. See State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding that failure to raise an issue in an opening brief waives that issue).
-6- Sprint/United M gmt. Co., 426 F.3d 1304, 1318 (10th Cir. 2005) (considering
effect of failure to exhaust under Age Discrimination in Employment Act). “W e
review de novo the district court’s dismissal for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), and review findings of jurisdictional facts, if any, for
clear error.” M aestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003).
M r. Daneshvar contends that because his suspension and discharge
occurred close together in time, they were reasonably related and therefore he was
not required to file a separate charge concerning his discharge. W e disagree. In
M artinez, we noted that National Railroad Passenger Corp. v. M organ, 536 U.S.
101 (2002), had effected a fundamental change to the “continuing violation”
doctrine concerning unexhausted claims in Title VII actions. See Martinez,
347 F.3d at 1210. W e had previously held that “when an employee seeks judicial
relief for incidents not listed in his original charge to the EEOC, the judicial
complaint nevertheless may encompass any discrimination like or reasonably
related to the allegations of the EEOC charge, including new acts occurring
during the pendency of the charge before the EEOC.” Ingels v. Thiokol Corp.,
42 F.3d 616, 625 (10th Cir. 1994) (quotation and brackets omitted) (emphasis
added). 3 But we concluded in M artinez that M organ “abrogate[d] the continuing
violation doctrine . . . and replace[d] it with the teaching that each discrete
3 M r. Daneshvar relied on Ingels in the district court when advancing his “reasonably related” argument, although he has not cited to Ingels on appeal.
-7- incident of [discriminatory or retaliatory] treatment constitutes its own ‘unlawful
employment practice’ for which administrative remedies must be exhausted.”
M artinez, 347 F.3d at 1210 (citing M organ, 536 U.S. 101 at 114).
In M organ, the Court specifically identified termination as a discrete
incident that is “easy to identify” and “separate[ly] actionable.” 536 U.S. at 114.
The Court also identified the plaintiff’s exhausted claim of wrongful suspension
as a discrete incident that was not barred by the time limitations contained in the
statute providing the exhaustion requirement. See id at 114-15. Thus, we easily
conclude that M r. Daneshvar’s suspension and discharge were separate, discrete
incidents, and that each required exhaustion. The fact that M r. Daneshvar’s
discharge occurred some two weeks after his suspension does not compel a
contrary result; the incidents remain discrete and separately actionable.
Exhaustion of each act was required in order to meet the twin purposes of the
exhaustion requirement— “to put an employer on notice of a violation prior to the
comm encement of judicial proceedings” and “to facilitate internal resolution of
the issue rather than promoting costly and time-consuming litigation.” M artinez,
347 F.3d at 1211. The charge M r. Daneshvar filed with the KHRC on January 7
concerning his suspension did not fulfill either purpose with respect to his
discharge. Rather, he was required to present his discharge claim to the KHRC
explicitly in order to exhaust his administrative remedies as to that claim.
-8- Our conclusion that M r. Daneshvar’s January 7 charge did not exhaust his
administrative remedies as to his discharge claim, however, does not end matters
because he argues in the alternative that he filed an amended charge with the
KHRC but neglected to present it to the district court. In support of that
argument, he has attached a copy of a charge to his opening appellate brief. The
charge indicates that it was received by the KHRC on January 21, 2004, and that
it was an amendment to the January 7 charge. The amended charge adds
retaliatory discharge to the other acts M r. Daneshvar had set forth in the
January 7 charge. M r. Daneshvar contends that because of his pro se status, he
did not realize that the district court was unaw are of the amended charge. He also
has attached to his brief a copy of a letter dated August 15, 2006, and signed by
the executive director of the KHRC, indicating that a letter was sent to GTI on
January 21, 2004, notifying GTI of the amended charge.
In response, GTI has filed a motion to strike the documents attached to
M r. Daneshvar’s opening brief as well as his argument that relies on them
because he did not present the documents or the argument to the district court.
M r. Daneshvar has not filed a response to the motion to strike. Ordinarily, we do
not consider evidence that was not before the district court when an appealed
ruling was made. See Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545,
1549 n.1 (10th Cir. 1992). However, 28 U.S.C. § 1653 provides, in its entirety:
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
-9- appellate courts.” Thus, § 1653 is an exception to the general rule and permits
consideration of materials concerning defective jurisdictional allegations that are
presented for the first time on appeal. Accordingly, we deny GTI’s motion to
strike. 4 But as we explain, this is not an appropriate case in which to permit
amendment under § 1653.
Section 1653 permits amendment of “incorrect statements about jurisdiction
that actually exists, and not defects in the jurisdictional facts themselves.”
Newman-G reen, Inc. v. Alfonzo-Larrain, 490 U .S. 826, 831 (1989). That is,
§ 1653 does not “empow er federal courts to amend a complaint so as to produce
jurisdiction where none actually existed before.” Id. The purpose of § 1653 is
“to avoid dismissals on technical grounds.” Brennan v. Univ. of Kan., 451 F.2d
1287, 1289 (10th Cir. 1971). “A n application under § 1653 is . . . addressed to
the discretion of the court, and usually the section is to be construed liberally to
permit the action to be maintained if it is at all possible to determine from the
record that jurisdiction does in fact exist.” John Birch Soc’y v. NBC, 377 F.2d
194, 198-99 (2d Cir. 1967).
4 In its motion to strike, GTI also requests that we strike M r. Daneshvar’s entire opening brief for its wholesale failure to comply with the requirements of Fed. R. App. P. 28 and 32, in particular its failure to provide a table of contents, a table of authorities, a statement of facts with appropriate record citations, a jurisdictional statement, a statement of the applicable standards of review, and a certificate of compliance with the type-volume requirements. W e deny the motion as to this request as w ell.
-10- W e have applied § 1653 on a number of occasions, usually to permit
amendment of defective allegations of diversity or federal-question jurisdiction.
See, e.g., Penteco Corp. Ltd. P’Ship— 1985A v. Union Gas Sys., Inc., 929 F.2d
1519, 1523 (10th Cir. 1991) (remanding for fact-finding on diversity of
citizenship); Martinez v. U .S. O lympic Comm., 802 F.2d 1275, 1280 (10th Cir.
1986) (treating complaint as amended by allegations made during oral argument
in district court concerning federal cause of action); Lopez v. Denver & Rio
Grande W. R.R., 277 F.2d 830, 832 (10th Cir. 1960) (granting motion to amend
notice of removal to properly allege diversity). Other circuits have permitted
amendment on appeal also to remedy defective allegations of standing. See, e.g.,
Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach,
469 F.3d 129, 132 (D.C. Cir. 2006).
This case does not present the typical § 1653 consideration— whether there
have been sufficient allegations concerning a proper statutory basis for
jurisdiction or whether a party has standing. 5 But as we noted above, exhaustion
5 Indeed, the only case we have uncovered that considered § 1653 in connection with a right-to-sue letter is Gooding v. Warner-Lam bert Co., 744 F.2d 354 (3d Cir. 1984). In Gooding, the court cited § 1653 as additional authority for its holding that the district court abused its discretion by not granting the plaintiff leave to amend her complaint in order to allege the existence of a right-to-sue letter issued after the complaint was filed. See id. at 358-59. The district court had denied the motion to amend based on its view that issuance of the letter was a jurisdictional prerequisite, a position that the Third Circuit rejected, see id. at 358. The important distinction for our purposes is not that the Third Circuit does not share this circuit’s view of the jurisdictional significance of the (continued...)
-11- of administrative remedies is a jurisdictional prerequisite to a Title VII suit in this
circuit, not merely a condition precedent. See Khader, 1 F.3d at 970. Allegations
of exhaustion, then, concern jurisdictional facts. Treated as a motion to amend
his complaint, M r. Daneshvar’s submission of his amended charge to this court is
therefore proper under § 1653 because it is an attempt to correct his earlier
“statements about jurisdiction that actually exists,” not an attempt to remedy
“defects in the jurisdictional facts themselves.” Newman-Green, Inc., 490 U.S.
at 831.
Nonetheless, we conclude that this is not an appropriate case to exercise
our discretion under § 1653 and permit amendment on appeal. Permitting
appellate amendment of pleadings to satisfy jurisdictional requirements
“represents a narrow, case-specific, exception to our general rules of pleading.”
Sac & Fox N ation v. C uom o, 193 F.3d 1162, 1167 (10th Cir. 1999). Furthermore,
§ 1653 “presupposes that the parties, not suspecting a jurisdictional difficulty, had
no reasonable opportunity to cure it before the appeal.” Sarnoff v. Am. Home
Prods. Corp., 798 F.2d 1075, 1079 (7th Cir. 1986) (superseded on other grounds
as recognized in Hart v. Schering-Plough Corp., 253 F.3d 272, 274 (7th Cir.
2001)). Thus, “where a party has had an opportunity to seek to amend its
5 (...continued) right-to-sue letter, see Khader, 1 F.3d at 970, but that the plaintiff in Gooding had presented the letter to the district court and sought leave to amend, whereas here M r. Daneshvar did not.
-12- pleadings in the district court, it is not appropriate for that party belatedly to seek
leave to amend on appeal pursuant to . . . § 1653.” M ills v. M aine, 118 F.3d 37,
53 (1st Cir. 1997).
In Sac & Fox Nation, we declined to construe an appellate brief as an
amendment under § 1653 because the jurisdictional argument that was raised in
the brief w as not presented in the district court as part of the plaintiffs’ response
to a motion to dismiss for lack of subject matter jurisdiction. See 193 F.3d
at 1167. W e distinguished M artinez v. United States Olympic Committee, where
we permitted amendment on appeal, on the ground that the appellant there had
identified the specific federal cause of action on which jurisdiction was based
during oral argument in the district court whereas the appellants in Sac & Fox
Nation had not presented their appellate theory in the district court. See id.
Other circuits have denied leave to amend on appeal under § 1653 because the
appellants had failed in the district court to correct a jurisdictional defect raised
in a motion to dismiss. See Dubach v. Weitzel, 135 F.3d 590, 593 (8th Cir. 1998);
M ills, 118 F.3d at 53-54; Sarnoff, 798 F.2d at 1079; John Birch Soc’y, 377 F.2d
at 197, 199; Joy v. Hague, 175 F.2d 395, 396 (1st Cir. 1949). As the First Circuit
stated in Joy, an appellant who has not corrected a jurisdictional problem w hen
invited by the district court to do so may not avail himself of § 1653 on appeal:
Though appellants complain that the lower court erred in its conclusion that it had no jurisdiction, on the face of the record, the decision was correct,— indeed, unavoidable and mandatory upon the
-13- part of the court. Appellants now seek to have us declare this correct judgment erroneous, not because of anything the trial court did, but because of something which they now seek to inject into the record and which was never before that court. There is no error in the record; if error is to appear it will have arisen after the cause has left the trial tribunal because we allow appellants to make a record of facts which they refused to make in the trial court. In other words, appellants, having refused to amend as the District Court invited them to do, thereby knowingly acquiescing in the proposed action of the court and tacitly consenting that it might enter the only order proper on the face of the record, come to this court asking leave to do what they failed to do below and attempt to create an error upon the part of the trial court because of matter never before that court.
Id. (citation omitted).
As in the cited cases refusing to permit amendment under § 1653,
M r. Daneshvar had his opportunity to correct the jurisdictional problem in the
district court and he failed to do so. Although none of those cases involved a
pro se plaintiff, M r. Daneshvar cannot escape their reach based on his pro se
status. He was sophisticated enough to file his other charges in support of his
complaint. His rationale for failing to present the amended charge to the district
court— that he did not know the district court was unaware of it— defies logic and
credulity. The district court ordered supplemental briefs on exhaustion because it
did not know “whether a claim for his discharge ha[d] been the subject of a
charge of discrimination.” R., Doc. 99 at 4. The court’s statement, and the order
for additional briefing itself, clearly show that the court was unaware of the
amended charge. Furthermore, the court directly pointed M r. Daneshvar to
M artinez v. Potter, see id. at 3-4, which specifically undermined the very
-14- argument he chose to advance in the district court— that he did not need to file a
separate charge because his discharge was reasonably related to his
suspension— and the case on which he relied, Ingels. He made this argument with
the full knowledge that he in fact had filed an amended charge specifically
identifying his discharge as retaliatory. By choosing to rely on this argument
rather than presenting the amended charge to the district court, even as an
alternate basis for finding exhaustion, he manufactured the error of which he now
complains. Under the circumstances, we will not allow him to correct the
jurisdictional flaw in his case on appeal.
In sum, M r. Daneshvar’s suspension and termination were discrete
incidents each of which required explicit exhaustion of administrative remedies.
The tem poral proximity of those two actions did not render them one discrete
incident for purposes of exhaustion. M r. Daneshvar may not amend his defective
allegations of jurisdiction under § 1653 by submitting to this court, for the first
time in this litigation, a copy of his amended charge evidencing that he presented
his w rongful discharge claim to the KHRC because he was given a reasonable
opportunity to present it to the district court. Based on the record before it, the
district court did not clearly err in its factual finding that M r. Daneshvar had not
exhausted his administrative remedies as to his w rongful discharge claim, and it
properly dismissed the claim for lack of subject matter jurisdiction.
-15- B. Support for GTI’s Second Summary Judgm ent M otion
In its memorandum and order granting summary judgment to GTI on the
disparate wage claim, the district court assumed that M r. Daneshvar had
established a prima facie case of discrimination under M cDonnell Douglas. The
court relied on the affidavits of M r. Besch, GTI’s Vice President of Operations at
the relevant time, and M s. Clary, GTI’s human resources manager, in finding that
GTI had met its burden to proffer a legitimate, nondiscriminatory reason why it
paid five non-Iranian press assistants more than M r. Daneshvar at the time he
filed his disparate-wage administrative charge in June 2003. In finding that
M r. Daneshvar had not shown pretext, the court rejected his argument that he was
not a press assistant and therefore not similarly situated to the comparator
employees. The court also rejected his procedural challenges to the Besch and
Clary affidavits.
In his opening brief on appeal, M r. Daneshvar renews his challenges to the
district court’s reliance on the affidavits. W e review the district court’s
evidentiary rulings at the summary judgment stage for abuse of discretion. See
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.
2006).
W e need not address the issues M r. Daneshvar takes with the Besch
affidavit because that affidavit w as not integral to the district court’s disposition.
M s. Clary’s affidavit, while not a model of clarity, set forth legitimate,
-16- nondiscriminatory reasons that GTI paid the five non-Iranian press assistants
more than M r. Daneshvar. Specifically, when employees accept a transfer or
demotion to a lower-graded position within the company to avoid a layoff,
M s. Clary stated that it was GTI’s policy to attempt to pay them at the highest
level of pay within the lower-graded position. This policy accounted for the
higher wages paid to four of the other press assistants. She also stated that the
fifth press assistant was paid a higher w age due to a night-shift differential.
M r. Daneshvar did not contest the accuracy of the information set forth in
the Clary affidavit, challenge the evidentiary admissibility of the documents
attached to it, or make any showing that GTI’s nondiscriminatory reasons were
pretextual. He only moved to strike the affidavit on the ground that it was
impermissibly attached to GTI’s reply brief, an argument he repeats on appeal,
and one that we reject. “Rule 56 neither authorizes nor forbids a reply brief.”
Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). But “if the
court relies on new materials or argument in a reply brief, it may not forbid the
nonmovant from responding to these new materials.” Id. at 1165. This rule
applies to new materials submitted in support of a legal argument that has already
been made. See Doeble v. Sprint/United M gmt. Co., 342 F.3d 1117, 1139 n.13
(10th Cir. 2003).
The district court relied on the Clary affidavit and the attached exhibits.
The evidence contained in those materials concerning the five non-Iranian press
-17- assistants was in further support of arguments made in GTI’s opening brief.
Because the district court did not prohibit M r. Daneshvar from responding to the
Clary affidavit, but in fact considered his motion to strike the affidavit, the
district court’s reliance on the Clary affidavit was proper, and the court did not
abuse its discretion in denying the motion to strike it. 6
III. Conclusion
The judgment of the district court is AFFIRM ED. M r. Daneshvar’s
opening brief, treated as a motion to amend pursuant to 28 U.S.C. § 1653, is
denied. GTI’s motion to strike is denied as moot.
Entered for the Court
Bobby R. Baldock Circuit Judge
6 In his reply brief, M r. Daneshvar asserts for the first time on appeal that because he was a production assistant, not a press assistant, he was compared to a category of employees w ith whom he was not similarly situated. In contrast to the Clary affidavit submitted with GTI’s summary judgment reply brief, which presented further evidence in support of an argument made in GTI’s opening brief, M r. Daneshvar’s appellate reply brief raises a new issue— an alternate ground for reversing the district court’s decision. “This court does not ordinarily review issues raised for the first time in a reply brief.” Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). Accordingly, M r. Daneshvar has waived this issue.
-18-