UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ HUNG THAI PHAM, Plaintiff - Appellant,

v. DEBORAH LEE JAMES, Secretary Department of Air Force, Defendant - Appellee. No. 14-6232 (D.C. No. 5:13- CV-00743-L) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HOLMES and McHUGH , Circuit Judges.

________________ _________________ Hung Thai Pham appeals th e district court’s order di smissing his Title VII case for lack of subject-matter jurisdiction for failure to exhaust his administrative remedies. Exercising jurisd iction under 28 U.S.C. § 129 1, we affirm, although for different reasons than those relie d on by the district court.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 20, 2015 Elisabeth A. Shumaker Clerk of Court2 I. Background The relevant facts are undisputed. Mr. Pham is employ ed as a civilian electrical engineer at Tinke r Air Force Base in Midwest City, Oklahoma. He filed numerous complaints with the EEOC claimi ng that he was the victim of workplace harassment based on his disability and in retaliation for prior EEO activity. An EEOC administrative judge (AJ) informed Mr . Pham repeatedly th at his complaints were not actionable because he failed to state a claim on his allegation that his interim appraisal contained fa lse and misleading statements and he was not subjected to discrimination. The AJ warned him that if he continued to file similar claims, an abuse-of-process dismissal may be warranted. Notwithstanding this warning, Mr. Ph am filed two additional similar EEO complaints. Consequently, the AJ issued an order to show cause why the cases should not be dismissed for abuse of process. The order gave the parties fifteen days to submit an objection or response. The Ai r Force Review Board (Board) responded, supporting the dismissal of Mr. Pham’s cas es. Neither Mr. Pham nor his attorney filed a response to the show- cause order. The AJ dism issed Mr. Pham’s EEO cases for failing to respond to the show-cause or der and for abuse of process. The Board then issued a final order of dismissal sta ting that it would fully implement the AJ’s decision. The Board’s order included a notice of Right to File Civil Action, indicating that “the complainant may be authorized under Title VII, ADEA, or the Rehabilitation Act to file such action.” Aplt. App. at 53 (emphasis added).3 Mr. Pham filed suit in federal court under Title VII claiming “unlawful harassment (non-sexual) a nd retaliation for Plaintiff’ s prior EEO activity and disability discrimination.” Aplt. App. at 3. In her answer to the complaint, the Secretary of the Air Force (Secretary) included the affi rmative defense that the court lacked subject-matter jurisdiction over claims for which Mr. Pham did not exhaust administrative remedi es. The Secretary then moved for dismissal under Fed. R. Civ. P. 12(b)(1), asserting, among ot her things, that the di strict court lacked subject-matter jurisdiction because Mr. Pham failed to cooperate in good faith with the EEOC and essentially abandoned his claims, thus fail ing to exhaust administrative remedies. Mr. Pham opposed the motion. The district court granted the motion to dismiss, holding that Mr. Pham had failed to meet his burden to establish fe deral subject-matter ju risdiction because he did not establish that he ha d exhausted administrative re medies. The court relied on Tenth Circuit law requiring an employ ee to cooperate with the EEOC. See Aplt. App. at 62 (citing Khader v. Aspin , 1 F.3d 968, 971 (10th Cir. 1993)). Therefore, the court held that subject-matter jurisdiction was lacking. Id. at 64 (citing Shikles v. Sprint/United Mgmt. Co. , 426 F.3d 1304, 1317 (10th Cir. 2005)). Mr. Pham filed a motion for new trial under Fed. R. Civ. P. 59, which the di strict court construed as a motion to alter or amend the judgm ent under Fed. R. Civ. P. 59(e)

. The court denied the motion. Mr. Pham appeals, arguing that the Board’s notice that he “may be” authorized to file a civil action conferred federal subj ect-matter jurisdiction. He further argues4 that he exhausted administ rative remedies by “respond[i ng] affirmatively to the [Board’s] offer to me diate,” even though the Board “n ever set up mediation,” Aplt. Opening Br. at 7, and he filed various doc uments in the admini strative proceedings. 1
He does not claim that he res ponded to the show-cause order. 2 Finally, he claims the district court erred in de nying his Rule 59 motion. II. Analysis “We review a Rule 12(b)(1 ) dismissal de novo.” McKenzie v. U.S. Citizenship & Immigration Servs. , 761 F.3d 1149, 1154 (10th Cir. 2014). In an opinion issued after the district court’s order dismissi ng for lack of jurisdiction, this court reexamined the issue of whether exhaus tion of administrative remedies is jurisdictional. See Gad v. Kan. State Univ. , 787 F.3d 1032 (10th Cir. 2015). There, we held that the requirement for a Title VII plaintiff to sign and verify a formal charge document for the EEOC “is non-jurisd ictional and does not divest the federal courts of subject-matter jurisdiction.” Id. at 1034. Gad acknowledged circuit precedent holding that “the exhaustion of admi nistrative remedies is ‘a jurisdictional

1 Mr. Pham also argues that his claims properly fall under Title VII, rather than the Rehabilitation Act, and that summary ju dgments are disfavored. We need not address these arguments becau se they are irrelevant to the dispositive issue of exhaustion, and because the district c ourt did not enter summary judgment.

2 In his reply brief, Mr. Pham argues, apparently for the fi rst time, that he never received the show-cause order. See Aplt. Reply Br. at 2. The show-cause order was mailed to both Mr. Pham and his attorney. He does no t claim his attorney did not receive it. We will not address this claim raised for the first time on appeal. See McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent extraordinary circ umstances, we will not cons ider arguments raised for the first time on appeal.”).5 prerequisite to suit under Title VII.’” Id. at 1039 (quoting Shikles , 426 F.3d at 1317)). Gad further noted circuit precedent holdi ng “that failure to cooperate was a jurisdictional bar simply because it is an exhaustion requireme nt,” and stated that this logic “is at odds with the Supreme Court’ s instructions in s ubsequent cases and cannot be squared with current law.” Id. But even if exhausti on is not jurisdictional, this Title VII require ment is vital. See, e.g., Shikles , 426 F.3d at 1317 (“It is well-established that Title VI I requires a plaintiff to exha ust his or her administrative remedies before filing suit.”). “Exhausti on still serves the important purposes of protecting employers by giving them notic e of the discrimina tion claims being brought against them and prov iding the EEOC with an op portunity to conciliate the claims.” Gad , 787 F.3d at 1040 (brackets, ellip sis and internal quotation marks omitted). We need not decide whet her the failure to cooperate in good faith with the EEOC results in a lack of jurisdiction, how ever, because the Secretary has not waived or forfeited the issue. See McQueen v. Colo. Springs Sch. Dist. No. 11 , 488 F.3d 868, 873 (10th Cir. 2007) (declining to decide whether exhausti on is jurisdictional because defendant did not waive or forfeit claim that plaintiffs failed to exhaust administrative remedies). Whether the exhaustion require ment is characterized as jurisdictional is important “only when th e defendant has waived or forfeited the issue: If exhaustion is a jurisdic tional requirement, the district court must always dismiss if there has been a failure to exhaus t. If exhaustion is not jurisdictional, the court must dismiss only if the issue has been properly presented for decision.” Id.6 Mr. Pham does not refute the Secretary’ s claim that he did not respond to the show-cause order, nor does he challenge he r argument that a failu re to respond to a show-cause order constitutes a failure to e xhaust administrative re medies. Therefore, even if the exhaustion requirement is de emed to be a conditi on precedent to suit, see Gad , 787 F.3d at 1041 (“In this context, a condition precedent is a duty Title VII imposes that serves as a necessary precondition to fili ng a lawsuit.” (brackets and internal quotation marks omitted)), we co nclude that by indisputably failing to exhaust, Mr. Pham has failed to satisfy this condition. Therefore, we affirm the dismissal order. See Ridge at Red Hawk , L.L.C. v. Schneider , 493 F.3d 1174, 1178 n.4 (10th Cir. 2007) (affirmi ng dismissal on a rationale different from the district court’s, noting that appellate court may affirm “on any gr ound that finds support in the record” (internal quotation marks omitted)). Mr. Pham complains that the district court did not hold a hearing on the motion to dismiss and states that he was th erefore denied an opportunity to present his evidence of exhaustion. But he filed an objection to the Secretary’s motion to dismiss in which he presen ted his claims and arguments , and he has not identified any additional relevant evidence. Therefore, we find no error in the district court’s decision to grant the motion without holdi ng an evidentiary hearing because it is clear that the motion could be resolved on the record. See Anderson v. Att’y Gen. of Kan. , 425 F.3d 853, 859 ( 10th Cir. 2005) (“[A]n evidentiary hearing is unnecessary if the claim can be resolved on the record.”).7 Because we have concluded that we n eed not address jurisdiction, we do not consider Mr. Pham’s argument that the Board’s notice that he may have the right to file a civil action conferred juri sdiction on the federal court. Mr. Pham also appeals th e district court’s order de nying his Rule 59 motion, which he styled as a motion fo r new trial. We agree with the district court that the motion should be characterized as a moti on to alter or amend the judgment under Rule 59(e). “We review the denial of a Rule 59(e) motion to alter or amend a judgment for abuse of discretion. A district court abuses its di scretion if it made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Monge v. RG Petro-Machinery (Group) Co. , 701 F.3d 598, 610-11 (10th Cir. 2012) (citation a nd internal quotation marks omitted). A Rule 59(e) motion is used “to correct manifest errors of law or to pres ent newly discovered evidence. Grounds for granting a Rule 59(e) motion include (1) an intervening change in the controlling law, (2) new ev idence previously unava ilable, and (3) the need to correct clear error or prevent ma nifest injustice.” Id. at 611 (citations and internal quotation marks omitted). Mr. Pham argues that he exercised d iligence in processing his EEO claims and that denying relief will be a miscarriage of justice because he is foreclosed from seeking relief for his allege d damages. These general, conclusory arguments do not meet the criteria to alter or amend a judgm ent. Accordingly, we find no abuse of discretion in the district court’s denial of Rule 59(e) relief.8 III. Conclusion We affirm the district c ourt’s judgment of dismissal.

Entered for the Court
Timothy M. Tymkovich Circuit Judge