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 gr ant 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 jurisd iction 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 pl eading 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 pr o 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt 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 Court2 his convictions and termination manifested a c onspiracy to retaliate against him for filing an EEOC complaint more than a decade earlier, and to di scriminate against him based on his race and national origin. 1 Bejar subsequently aban doned his retaliation claim, 2 and the district court granted summary judgmen t 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 (1 0th Cir. 2005). “Summary judg ment 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.” Da vis v. Unified Sch. Di st. 500, 750 F.3d 1168, 1170 (10th Cir. 2014) (quota tions omitted). We view th e evidence and all reasonable inferences therefrom in favor of the nonmoving party. Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1 261, 1266 (10th Cir. 2015). Under the burden-shifting framework of McDonnell Dougla s Corp. v. Green, 411 U.S. 792 (1973), Bejar must make a pr ima 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. Unite d States v. Pi nson, 584 F.3d 972, 975 (10th Cir. 2009).

2 The pretrial order, which supersedes th e pleadings, see Fed. R. Civ. P. 16(d); Weyerhaeuser Co. v. Brantley, 510 F.3d 12 56, 1267 (10th Cir. 2007), presented only a claim for discrimination. Further, Bejar’s opposition to the VA’s summary judgment motion exclusively argued a disc rimination theory, without advancing a retaliation claim. Although Bejar’s brief on appeal suggest s he experienced “reprisal for prior EEO activity,” he waived his re taliation claim by abando ning 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 oc curred under circumstances that give rise to an inference of discrimination. Benne tt, 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 Beja r 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 fe male patients to be examined and treated by male doctors only when another female st aff 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 co ncluded that Bejar failed to allege a prima facie case of discrimination because there wa s no evidence that the VA violated its policy or that any purported violati on 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. Be cause Bejar has not provided any evidence that his termination “took place under circum stances giving rise to an inference of discrimination,” he has failed to make a prim a facie showing of disc rimination. Daniels v. UPS, 701 F.3d 620, 627 (10t h Cir. 2012). Bejar advances three arguments on appeal: (1) there is a videotape record ing of his exam of one of th e victims that will exonerate4 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. Erne st Grp., Inc., 634 F.3d 1123 , 1127-28 (10th Cir. 2011). Even if we were to consider these assertions, they are no t supported by record evidence and do not give rise to an in ference of discrimination. Finally, despite conceding that the VA offered a legitimate, nondiscriminatory reason for terminating him—VA regulations re quire that its doctors be licensed, and Bejar surrendered his medical license af ter being convicted of sexual battery 3 —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 circumst ances 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 presente d, in an appellant’s opening brief.”).

3 The VA initially proposed to terminate Bejar because of hi s convictions, but it rescinded that rationale and terminat ed 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

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Entered for the Court

Carlos F. Lucero Circuit Judge