UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSE M. BEJAR, 

 Plaintiff - Appellant, 

v. 

DEPARTMENT OF VETERANS 

AFFAIRS, 

 Defendant - Appellee. 

No. 16-3218 

(D.C. No. 2:15-CV-02601-CM) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

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 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

March 28, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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). 
3 

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 
4 

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. 
5 

III 

 For the foregoing reasons, the district court’s grant of summary judgment is 

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge