FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 2, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court ALIREZA VAZIRABADI,
Plaintiff - Appellant,
v. No. 18-1411 (D.C. No. 1:17-CV-01737-RBJ) DENVER HEALTH AND HOSPITAL (D. Colo.) AUTHORITY, as Employer; JEREMY LEE, in his individual capacity; ELIZABETH FINGADO, in her individual capacity; MARK GENKINGER, in his individual capacity; THEODORE POKRYWKA, in his individual capacity; DOES ENTITIES 1 THROUGH 10, whose true names are unknown; JOHN AND JANE DOES, 1 through 10,
Defendants - Appellees.
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SHL US INC.,
Interested Party - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. _________________________________
Alireza Vazirabadi, appearing pro se,1 appeals from the district court’s grant of
summary judgment to defendants. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
I
Vazirabadi applied for two positions in the Lean Department with Denver
Health in July 2016. Denver Health sought candidates with strong project
management skills, familiarity facilitating groups and motivating people to adapt to
new processes, and experience dealing with interpersonal relationships and conflicts.
At the time he applied for the positions, Vazirabadi had been working as an Uber
driver for nearly three years, had a bachelor’s degree in industrial engineering, and
did not have any experience in the healthcare field.
Appellant applied for the positions online. The application form included a
request that the applicant list all fluent languages. Vazirabadi entered
“Farsi/Persian.” Denver Health emailed Vazirabadi an online competency
evaluation. SHL US Inc. (“SHL”) hosted and administered the test. In connection
with the test, SHL asked a series of demographic questions.2 One such question
1 Because Vazirabadi appears pro se, we construe his filings liberally, but do not serve as his advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). 2 SHL asserts that the questions were entirely voluntary and enabled SHL to ensure that its tests did not discriminate against any protected group.
2 asked “[a]re you 40 years of age or older?” Vazirabadi answered by clicking the
button next to the word yes.3
SHL provided the substantive test results to Denver Health as a percentile
score with a recommendation. Vazirabadi scored in the fifth percentile for deductive
reasoning and in the twenty-fifth percentile overall; he was “[n]ot [r]ecommended”
for hiring. SHL did not provide Denver Health with responses to the demographic
questions on a per-applicant basis. Instead, SHL made them available in batches that
contained aggregate information related to multiple applicants. And only Denver
Health’s director of recruitment, Mark Genkinger, had access to the batches. He did
not review any batch relating to July 2016 applications in the relevant timeframe.
Vazirabadi nonetheless claims SHL communicated his over-forty status to
Denver Health via metadata transmitted with his score report. To support this
allegation, Vazirabadi trumpets what appears to be a screenshot from a document
review tool that shows the text “'40” next to his last name in two locations. On its
face, the captured image purports to “Show Only Hidden Text.” Vazirabadi did not
authenticate the screenshot,4 and we cannot discern its origins from the record. The
3 The parties dispute whether Vazirabadi saw an option to click a button next to the text labeled “[p]refer not to answer.” Our disposition of this case does not require resolution of the dispute. 4 He did make a sworn statement that the screenshot is “true and correct.” But that naked remark says nothing about the source of the document shown to be under review in the screenshot, who performed the review, what program generated the image, etc. 3 record does not contain evidence that any of the defendants ever saw a “'40”
designation beside Vazirabadi’s name.
Elizabeth Fingado ran Denver Health’s Lean Department. Fingado tasked
Jeremy Lee with reviewing 112 applications for the two open positions and selecting
candidates. Because neither position required foreign language skills, Lee did not
review responses to the language-related section of the applications. Lee selected
Vazirabadi and fifteen other candidates to interview by telephone for both open
positions. A panel of existing employees interviewed each of the candidates using a
prepared list of questions. The panel members scored each candidate in several
work-related areas. Denver Health selected the three candidates with the highest
scores related to each open position for in-person interviews. Vazirabadi was not
selected for an in-person interview, and Denver Health ultimately hired others for the
two positions.
Vazirabadi then sued Denver Health and several of its employees for
employment discrimination, alleging they discriminated against him based on his age
and national origin. The district court granted summary judgment and dismissed his
case with prejudice. Vazirabadi appealed.
II
A
Vazirabadi appeals the district court’s decision not to recuse from this case.
He filed a motion seeking recusal of the district court judge in accordance with 28
U.S.C. §§ 144 and 455(a). Section 144 provides that if a judge has a “personal bias
4 or prejudice” for or against one of the parties, the judge should be recused. Under
§ 144, the court strictly construes the affidavits filed in support of recusal against the
affiant, and the moving party has a substantial burden to demonstrate that the judge is
not impartial. Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir.
1987). Section 455(a) provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Under § 455,
the “test is whether a reasonable person, knowing all the relevant facts, would harbor
doubts about the judge’s impartiality.” Hinman v. Rogers, 831 F.2d 937, 939 (10th
Cir. 1987) (per curiam). “We review the denial of a motion for recusal for an abuse
of discretion.” Cauthon v. Rogers, 116 F.3d 1334, 1336 (10th Cir. 1997).
The district court carefully considered each of Vazirabadi’s arguments, and
concluded that the facts did not show “bias, prejudice, or a basis on which a
reasonable person would question the Court’s impartiality.” We agree.
On appeal, Vazirabadi does not dispute the substance of the district court’s
findings. Instead, he asserts the district court erred because its explanation omitted
an explicit reference to § 144, citing only § 455(a). But § 455(b)(1) “entirely
duplicate[s] the grounds of recusal set forth in § 144 (‘bias or prejudice’).” Liteky v.
United States, 510 U.S. 540, 548 (1994). Section 455(a), in turn, “is a ‘catch-all’
provision that is broader than the specific grounds for disqualification set forth in
§ 455(b).” United States v. Young, 45 F.3d 1405, 1415 (10th Cir. 1995). “Inasmuch
as the grounds for disqualification set out in Section 144 ‘personal bias or prejudice
either against (a party) or in favor of any adverse party’ are included in Section 455,
5 we may consider both sections together.” United States v. Gigax, 605 F.2d 507, 512
(10th Cir. 1979) (quotation and citation omitted), overruled in part on other grounds
by United States v. Lang, 364 F.3d 1210 (10th Cir. 2004). The district court
therefore did not err by citing only § 455.
B
Vazirabadi next challenges the district court’s quashing a subpoena he issued
to defendants’ expert witness Forensic Pursuit. In September 2017, defense counsel
retained Forensic Pursuit as a consulting expert in this action. On March 23, 2018,
Vazirabadi contacted Forensic Pursuit to engage the firm as his expert in this action.
Forensic Pursuit declined, citing its work for defendants. On April 4, 2018,
Vazirabadi issued a subpoena to Forensic Pursuit seeking production of documents
related to Denver Health. Defendants moved to quash the subpoena under Federal
Rule of Civil Procedure 26(b)(4)(D)(ii), and Vazirabadi filed a competing motion to
compel.
Rule 26(b)(4)(D)(ii) permits discovery of a consulting expert who is not
expected to testify at trial only on a showing of “exceptional circumstances under
which it is impracticable for the party to obtain facts or opinions on the same subject
by other means.” The district court ruled in favor of defendants, finding that they
hired Forensic Pursuit as a consulting expert and Vazirabadi did not make the
necessary showing of exceptional circumstances. “We review pretrial discovery
rulings for abuse of discretion. A trial court abuses its discretion when it issues a
ruling that is arbitrary, capricious, whimsical, or manifestly unreasonable.” King v.
6 PA Consulting Grp., Inc., 485 F.3d 577, 590 (10th Cir. 2007) (quotation and citation
omitted).
On appeal, Vazirabadi argues that there was insufficient evidentiary support
for the conclusion that defense counsel retained Forensic Pursuit on defendants’
behalf. This evidence included representations of defense counsel and an affidavit
submitted by Forensic Pursuit’s CEO, Robert Keslo, in which Keslo states that “[o]n
September 19, 2017, a representative of [defense counsel] contacted Forensic Pursuit
and asked the firm to perform consulting services on behalf of the [d]efendants in the
present case.” Vazirabadi’s attacks on the evidence do not hold water.5 We therefore
conclude that the district court did not abuse its discretion by quashing the subpoena
issued to Forensic Pursuit.
C
Vazirabadi also challenges the district court’s denials of his two motions to
amend his once-amended complaint. Under its scheduling order, the district court set
November 6, 2017, as the deadline for amendment of the pleadings and June 1, 2018,
as the discovery cut-off. On June 7, 2018, Vazirabadi filed a motion to amend his
5 Vazirabadi’s argument that Keslo’s supporting affidavit should be stricken (because it lacks the phrases “true and correct” and “under penalty of perjury,” and contains trivial alleged inconsistencies) fails for the reasons discussed infra. His argument that the affidavit is not based on personal knowledge because it describes actions taken by another person misapprehends the concept that a person can competently testify about the actions they have observed another person take. His remaining arguments deliberately disregard the affidavit’s clear statement that defense counsel retained Forensic Pursuit to perform services on defendants’ behalf.
7 once-amended complaint to add three defendants and one cause of action. The
district court found Vazirabadi did not establish good cause for amending his
complaint, and it denied the motion. On August 7, 2018, Vazirabadi filed a second
motion to amend his complaint. The district court applied Rule 15(a)(2) and denied
this motion because the proposed amendment would be futile and would result in
undue prejudice to the defendants.
Rule 15(a)(2) provides that after the initial deadline for amendment has
passed, “a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Id. “The court should freely give leave when justice
so requires.” Id. But “[a]fter a scheduling order deadline, a party seeking leave to
amend must demonstrate (1) good cause for seeking modification under Fed. R. Civ.
P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v.
Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014). Rule 16(b)(4),
in turn, provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” Id. “Rule 16’s good cause requirement may be satisfied,
for example, if a plaintiff learns new information through discovery or if the
underlying law has changed. If the plaintiff knew of the underlying conduct but
simply failed to raise [applicable] claims, however, the claims are barred.” Gorsuch,
771 F.3d at 1240 (citation omitted). “We review for abuse of discretion a district
court’s denial of a motion to amend a complaint after the scheduling order’s deadline
for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th
Cir. 2015).
8 Vazirabadi’s first motion to amend his once-amended complaint did not
provide any reasoning as to why the amendment should be allowed. Instead, it
contained only conclusory and irrelevant statements. The district court thus properly
denied the first motion to amend due to his failure to establish good cause.
Vazirabadi’s second motion to amend articulated reasons for allowing the
amendment, and the district court evaluated the request under Rule 15(a)(2). District
courts may consider a wide range of factors, including undue delay, bad faith,
dilatory motive, undue prejudice to the opposing party, and futility. See Minter v.
Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). The “most important[]
factor in deciding a motion to amend the pleadings[] is whether the amendment
would prejudice the nonmoving party.” Id. at 1207. The district court found the
proposed amendment would prejudice defendants. We agree. The district court did
not abuse its discretion in denying Vazirabadi’s motions to amend.
D
Vazirabadi appeals the district court’s reliance on affidavits provided by
defendants supporting their motion for summary judgment. He claims that because
the affidavits state neither that they are “true and correct” nor signed “under the
penalty of perjury,” the affidavits are void.
An affidavit is “[a] voluntary declaration of facts written down and sworn to
by a declarant, [usually] before an officer authorized to administer oaths.” Affidavit,
Black’s Law Dictionary (11th ed. 2019). Each of the affidavits at issue in this case is
styled as an “Affidavit of [name].” Each of them contains an introductory sentence
9 in substantially the following form: “I, [name], being of lawful age and first duly
sworn upon oath, depose and state that I have personal knowledge and information
concerning the following.” And each of them states that it was “subscribed and
sworn” before a notary public. The defendants’ submitted affidavits legally suffice,
and the district court properly relied on them.
Vazirabadi’s argument that an affidavit must contain the phrases “true and
correct” and “under penalty of perjury” misconstrues 28 U.S.C. § 1746. That statute
authorizes parties to submit unsworn declarations in lieu of affidavits, provided that
the declarations state that they are “true and correct” and are made “under the penalty
of perjury,” among other things. Id. But § 1746 does not apply to sworn affidavits.
Appellant further claims the district court should have disregarded Lee’s
affidavit because the notary’s stamp indicated that her commission expires on
January 17, 2020, whereas the notary’s handwritten note indicated that her
commission expired on January 17, 2018—before Lee executed the affidavit on
August 28, 2018. But regardless whether the notary’s commission had expired, Lee
swore to the affidavit’s contents “upon oath,” and the district court properly
considered it.
Vazirabadi also presents a new argument on appeal that defendants’ affidavits
should have been stricken because they contradict attached exhibits. We generally
consider arguments not presented to the district court to be forfeited. See Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011). “[W]e will entertain
forfeited theories on appeal, but we will reverse a district court’s judgment on the
10 basis of a forfeited theory only if failing to do so would entrench a plainly erroneous
result.” Id. at 1128.
“Contradictions found in a witness’ testimony are not, in themselves, sufficient
to preclude such testimony.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d
965, 973 (10th Cir. 2001). This principle controls in this case, as the alleged
inconsistencies concern trivial issues of fact, and the support for the supposed
contradictions is speculative. The district court did not commit plain error in relying
on the defendants’ affidavits.
E
Vazirabadi appeals the district court’s grant of summary judgment to
defendants. Summary judgment should be granted “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.” Fed. R. Civ. P. 56(a). “To avoid summary judgment, a party must
produce specific facts showing that there remains a genuine issue for trial . . . .” Branson
v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir. 1988) (quotation omitted). We
review the district court’s summary judgment decision de novo, viewing the factual
record and making reasonable inferences from it in the light most favorable to the
nonmoving party. Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016).
Appellant alleges Denver Health violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. An employer violates the
ADEA if it “fail[s] or refuse[s] to hire . . . any individual . . . because of such
individual’s age.” § 623(a)(1). “[T]he plaintiff retains the burden of persuasion to
11 establish that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
A plaintiff may demonstrate age discrimination in violation of the ADEA by
providing either direct or circumstantial evidence of discrimination. See Roberts v.
Int’l Bus. Machs. Corp., 733 F.3d 1306, 1308-09 (10th Cir. 2013). Direct evidence
in this context “is evidence from which the trier of fact may conclude, without
inference, that the employment action was undertaken because of the employee’s
protected status.” Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105 (10th Cir.
2008). If the plaintiff relies on circumstantial evidence, then we review his claim
under the burden-shifting framework first described in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Roberts, 733 F.3d at 1309.
The attempt to prove age discrimination in this case rests on an
unauthenticated screenshot of a document review tool that supposedly shows hidden
metadata that flagged Vazirabadi as an over-forty candidate and on an allegation that
SHL transmitted the hidden metadata to Denver Health with Vazirabadi’s
competency test scores. The district court found that Vazirabadi “failed to put
forward any admissible or even arguably credible evidence that creates a triable issue
of fact as to whether [Denver Health] knew [] Vazirabadi’s age, much less acted on
it.” We agree.
Because Vazirabadi has no direct evidence to support his age discrimination
claim, his case must proceed under the three-step framework of McDonnell Douglas.
Under that framework, a plaintiff alleging discrimination in a failure to hire case has
12 the initial burden on summary judgment of producing evidence sufficient for a
reasonable jury to conclude the plaintiff “applied for an available position for which
she was qualified, but was rejected under circumstances which give rise to an
inference of unlawful discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981) (describing McDonnell Douglas framework).
If the plaintiff makes this initial showing, the burden shifts to the defendant to
articulate a nondiscriminatory reason for not hiring the plaintiff. Id. If the employer
does so, then the burden shifts back to the plaintiff to produce sufficient evidence for
a reasonable jury to conclude the defendant’s proffered rationale is a pretext for
discrimination. See id.; Roberts, 733 F.3d at 1309. “Under our precedents, a
plaintiff can establish pretext by showing the defendant’s proffered non-
discriminatory explanations for its actions are so incoherent, weak, inconsistent, or
contradictory that a rational factfinder could conclude they are unworthy of belief.”
Johnson v. Weld Cty., 594 F.3d 1202, 1211 (10th Cir. 2010) (alteration and quotation
omitted). “Mere conjecture that the employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.”
Bekkem v. Wilkie, 915 F.3d 1258, 1268 (10th Cir. 2019) (quotation omitted).
Assuming without deciding that Vazirabadi satisfied the initial step in the
McDonnell Douglas process, his claim nevertheless fails. Denver Health provided a
legitimate, nondiscriminatory reason for not hiring Vazirabadi: other candidates
were more qualified and performed better during the interview process. At the time
he applied for employment with Denver Health, Vazirabadi had been working as an
13 Uber driver for nearly three years, had a bachelor’s degree in industrial engineering,
and did not have any experience in healthcare. During his interview, Vazirabadi
failed to provide concrete examples that related his experience to the positions. And
the candidates ultimately hired had significantly more relevant education and work
experience.
Because Denver Health provided a nondiscriminatory reason for hiring other
candidates, the burden shifted back to Vazirabadi to produce evidence that Denver
Health’s proffered rationale was pretext for age discrimination. He provided no such
evidence, and therefore the district court properly granted summary judgment in
favor of defendants.
Vazirabadi also brought a conspiracy claim under 42 U.S.C. § 1985(3) related
to the alleged age discrimination. “The essential elements of a § 1985(3) claim are:
(1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and
immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or
deprivation resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1993).
Each of the individual defendants provided evidence that they (1) did not know
Vazirabadi’s age at the time the relevant hiring decisions were made, (2) did not take
his age into account when making a hiring decision, and (3) did not otherwise
conspire to discriminate against Vazirabadi. Lee and Fingado submitted evidence
that the interview and selection process provided Vazirabadi with a fair and equal
opportunity to be hired.
14 Vazirabadi has not pointed to any specific facts that call this evidence into
question. His sweeping allegations that defendants destroyed, forged, or altered
documents in furtherance of their supposed conspiracy lack evidentiary support. The
district court thus properly granted summary judgment in favor of the defendants on
the conspiracy claim.6
Finally, Vazirabadi brings a claim of national origin discrimination under 42
U.S.C. § 2000e-2(a)(1). Title VII of the Civil Rights Act of 1964 makes it an
“unlawful employment practice for an employer . . . to fail or refuse to hire . . . any
individual . . . because of such individual’s race, color, religion, sex, or national
origin.” § 2000e-2(a)(1). “To survive summary judgment on a Title VII claim of
discrimination based on race, color, religion, sex, or national origin, a plaintiff must
present either direct evidence of discrimination or indirect evidence that satisfies the
burden-shifting framework of McDonnell Douglas.” Bekkem, 915 F.3d at 1267
(citation omitted).
Appellant does not challenge the district court’s finding that he “has no direct
proof of national origin discrimination.” We therefore evaluate his claim of national
origin discrimination by applying the McDonnell Douglas framework. But again,
even if we assume Vazirabadi has established a prima facie case of discrimination,
Denver Health has articulated a nondiscriminatory reason for not hiring Vazirabadi.
6 To the extent his § 1985(3) cause of action also asserted an equal protection claim, we affirm the district court’s grant of summary judgment on that claim for substantially the same reasons cited by the district court. 15 Applying McDonnell Douglas, this shifted the burden back to appellant to prove that
Denver Health’s rationale was pretext for national origin discrimination. The district
court found that Vazirabadi did not make this showing and we agree.
F
Vazirabadi’s briefs raise additional claims that he did not present to the district
court. For example, he now asserts that defendants violated § 2000e-2(a)(2) by
asking for his language fluencies. Similarly, Vazirabadi avers that defendants ran
afoul of the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R.
§§ 1607.1-1607.18. Vazirabadi’s amended complaint does not assert either of these
causes of action. As a result, the district court did not rule on either of these claims
as separate causes of action.7 An issue must generally be “presented to, considered
and decided by the trial court before it can be raised on appeal.” Tele-Commc’ns,
Inc. v. Comm’r, 104 F.3d 1229, 1233 (10th Cir. 1997) (alterations and quotation
omitted). We decline Vazirabadi’s invitation to address these claims for the first
time on appeal.
7 The district court did address Vazirabadi’s argument, made in connection with his ADEA and conspiracy causes of action, that SHL—which is not a party in this case—violated the law by asking whether Vazirabadi was over the age of forty. The district court pointed out that the issue of whether SHL properly asked about Vazirabadi’s age is irrelevant to the claims in this case given that “there is no evidence that the information about [] Vazirabadi’s age was known to or used by [Denver Health] in its hiring decision.” We agree. 16 III
For the reasons stated above, we AFFIRM.
Entered for the Court
Carlos F. Lucero Circuit Judge