UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

JOSE M. BEJAR, 

 Plaintiff - Appellant, 

v. 

ROBERT A. McDONALD, Secretary of 

United States Department of Veterans 

Affairs, 

 Defendant - Appellee. 

No. 14-3154 

(D.C. No. 2:13-CV-02222-DDC-GLR) 

(D. Kan.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, McKAY, and McHUGH, Circuit Judges. 

 

 Dr. Jose M. Bejar brought this employment discrimination complaint under 

Title VII of the Civil Rights of Act 1964, 42 U.S.C. §§ 2000e - 2000e-17, alleging 

that the United States Department of Veterans Affairs (“VA”) had unlawfully 

discriminated and retaliated against him. The district court dismissed his first 

amended complaint, finding that it lacked subject matter jurisdiction over his claims 

 

*

 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 with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 1 
- 2 - 

because he had failed to exhaust his administrative remedies. It further found that, 

even if he had exhausted his administrative remedies as to certain claims, the 

complaint failed to state a claim on which relief could be granted. Dr. Bejar appeals 

from the judgment of dismissal. We affirm. 

BACKGROUND

 The VA hired Dr. Bejar as a neurologist in 1988. On July 5, 2011, he filed an 

EEOC charge alleging that the VA had discriminated against him based on his 

Hispanic race and his Ecuadorian national origin, and had retaliated against him for 

his prior EEO activity.1

 The alleged discriminatory and retaliatory actions occurred 

in May and June 2011, and involved assigning him extra work, harassing him, and 

attempting to frame him for misconduct with female patients. 

After the EEOC issued him a right-to-sue letter, Dr. Bejar filed this action. In 

his initial, pro se complaint, he alleged that he was the “victim of a well organized 

conspiracy,” R. at 13, in which the management of the Topeka VA hospital conspired 

with nurses and clerks at the hospital to frame him for sexual misconduct charges 

involving a female patient he identified as “W7589” (also referred to as “AW”), and 

four other female patients. Id. at 10, 12. 

 

1

 Dr. Bejar has alleged a long history of discrimination and retaliation 

complaints involving his employment with the VA. In 1996, he filed two EEOC 

complaints alleging discrimination and retaliation. The VA settled these complaints 

in 1999 by reinstating Dr. Bejar’s physician privileges and by paying him damages. 

Between 2007 and 2010, Dr. Bejar filed at least five additional EEOC complaints 

against the VA. 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 2 
- 3 - 

The VA moved to dismiss the complaint. Before the district court ruled on the 

motion, Dr. Bejar filed a counseled motion seeking leave to amend his complaint. 

The district court denied the pending motion to dismiss as moot and granted the 

motion to amend. Counsel then filed a first amended complaint for Dr. Bejar, which 

constitutes the operative complaint in this case. 

In the first amended complaint, Dr. Bejar alleged that it was the VA’s ordinary 

policy and procedure at its primary care unit to assign male patients to male doctors 

and female patients to female doctors. A female neurologist was available at the 

hospital where Dr. Bejar worked to treat female patients. But in contravention of the 

VA’s own policy, his immediate supervisor directly assigned female patients, many 

of whom were “severely psychiatrically disturbed,” id. at 106, to be treated by 

Dr. Bejar. These assignments allegedly were made in an effort to elicit a misconduct 

complaint against Dr. Bejar. Dr. Bejar alleged that his requests that the female 

patients be reassigned to the female neurologist, or that a nurse be present during his 

examination of the female patients, were ignored. 

The complaint did not specifically mention patient AW, whose allegations 

against Mr. Bejar were described in his pro se complaint. Instead, it further alleged, 

upon information and belief, that in September 2011 patient “MH” had reported to 

the VA that Dr. Bejar had touched her inappropriately during an examination. 

Dr. Bejar characterized this complaint as “incredible” and stated he could not have 

engaged in the alleged misconduct. Id. at 108. He further asserted that the VA failed 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 3 
- 4 - 

to investigate the matter before suspending his privileges as a physician on 

October 3, 2011. In his claims for relief Dr. Bejar asserted that the VA had 

discriminated and retaliated against him by (1) persuading MH to file a false 

complaint against him; (2) encouraging MH to file a complaint without investigating 

the legitimacy of the complaint; and (3) assigning MH, a psychiatrically disturbed 

female patient, to him in contravention of the VA’s ordinary policy and procedures. 

The VA moved to dismiss the amended complaint for, among other reasons, 

failing to allege an adverse employment action. In response, Dr. Bejar argued that he 

had alleged an adverse employment action because the VA had suspended his clinical 

privileges and eventually terminated his employment. In view of this assertion, the 

district court requested briefing concerning whether Dr. Bejar’s allegations about 

suspension and termination had been administratively exhausted. Dr. Bejar 

subsequently admitted that these allegations were unexhausted. 

The district court then dismissed all of Dr. Bejar’s claims for lack of 

jurisdiction. As noted, he had admitted that he had failed to exhaust his claims 

involving suspension and termination. As to his other claims involving patient MH, 

he alleged that she complained to the VA on September 30, 2011. But Dr. Bejar’s 

EEOC charge was filed on July 5, 2011, before patient MH made her complaint and 

before the VA took any action against him based on that complaint. Accordingly, the 

remaining claims in his first amended complaint, which related to MH’s allegedly 

false allegations, were also unexhausted. 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 4 
- 5 - 

Alternatively, the district court dismissed the first amended complaint on the 

merits. It found that Dr. Bejar had failed to allege an adverse employment action, 

which was a necessary element of both his discrimination and retaliation claims. He 

did not plead facts showing that the VA’s alleged attempt to “frame” him for 

unprofessional conduct itself constituted a significant change in his employment 

status, and he admitted that he had not exhausted his claims concerning the alleged 

results of being “framed”: his suspension and termination. 

DISCUSSION

 We review the district court’s dismissal for lack of jurisdiction de novo. 

Becker v. Ute Indian Tribe, 770 F.3d 944, 946 (10th Cir. 2014). “Federal courts lack 

jurisdiction to review Title VII claims that are not part of a timely-filed EEOC 

charge.” McDonald-Cuba v. Santa Fe Prot. Servs., Inc., 644 F.3d 1096, 1101 

(10th Cir. 2011) (internal quotation marks omitted); see also Jones v. U.P.S., Inc., 

502 F.3d 1176, 1183 (10th Cir. 2007) (describing jurisdictional nature of exhaustion 

requirement). “A plaintiff’s claim in federal court is generally limited by the scope 

of the administrative investigation that can reasonably be expected to follow the 

charge of discrimination submitted to the EEOC.” Jones, 502 F.3d at 1186 

(alteration and internal quotation marks omitted). “We review de novo the grant of a 

Rule 12(b)(6) motion to dismiss for failure to state a claim.” Gee v. Pacheco, 

627 F.3d 1178, 1183 (10th Cir. 2010). 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 5 
- 6 - 

In his briefing to us, Dr. Bejar asserts that the inclusion of claims involving his 

suspension, termination, or MH’s false complaint against him in his first amended 

complaint was the result of “involuntary mistakes” made by his attorney, for which 

he should not be penalized. Aplt. Opening Br. at 3. He urges us to return to his 

original pro se complaint involving “harassment by female patient AW,” which he 

asserts does contain properly exhausted claims that have merit. Id. 

 But we cannot do so. A litigant is bound by his attorney’s actions. Gripe v. 

City of Enid, 312 F.3d 1184, 1189 (10th Cir. 2002) (“Those who act through agents 

are customarily bound by their agents’ mistakes. It is no different when the agent is 

an attorney.”). The first amended complaint, filed by Dr. Bejar’s attorney, is the 

operative complaint in this action. We may not rescue Dr. Bejar from its purported 

deficiencies by resorting to different allegations in a prior, superseded complaint. 

See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (“[A]n amended 

complaint super[s]edes an original complaint and renders the original complaint 

without legal effect.” (internal quotation marks omitted)). Because Dr. Bejar failed 

to show that he exhausted his administrative remedies concerning the claims raised in 

his first amended complaint, which was the operative complaint in this case, we 

conclude that the district court properly dismissed the complaint and this action for 

lack of subject-matter jurisdiction. 

 In addition, even if the first amended complaint could be construed to include 

allegations about patient AW that were presented in Dr. Bejar’s prior pro se 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 6 
- 7 - 

complaint, we would affirm the district court’s conclusion that the first amended 

complaint failed to state a claim. In Dr. Bejar’s EEOC charge, he asserted that “[o]n 

May 9 2011 a female patient was being used by Agency employees to ‘frame him up’ for 

unprofessional conduct in an attempt to have him fired.” If these allegations and the 

general allegations involving unidentified female patients in Dr. Bejar’s first amended 

complaint are read to refer to patient AW, Dr. Bejar may have exhausted at least a portion 

of his claims involving patient AW. But these limited allegations involving patient AW, 

even if exhausted, fail to state a claim. 

Dr. Bejar’s allegations that patient AW was improperly assigned to him, that she 

was psychologically disturbed, that the VA refused to transfer her to a female 

neurologist, and that the VA refused to require that a nurse be present when he examined 

her, are by themselves insufficient to show that he suffered an adverse employment 

action that would give rise either to a viable claim for discrimination or for retaliation. 

First, there is no allegation in the first amended complaint that patient AW filed a 

complaint against Dr. Bejar. Second, “[a]n adverse employment action includes acts that 

constitute a significant change in employment status, such as hiring, firing, failing to 

promote, reassignment with significantly different responsibilities, or a decision causing a 

significant change in benefits.” Dick v. Phone Directories Co., 397 F.3d 1256, 1268 

(10th Cir. 2005) (internal quotation marks omitted). Although “an adverse employment 

action is not limited to such acts . . . we will not consider a mere inconvenience or an 

alteration of job responsibilities to be an adverse employment action.” Id. No such 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 7 
- 8 - 

allegation of an adverse employment action is made concerning patient AW in the first 

amended complaint. As a result, even if we generously construe the allegations of the 

first amended complaint to involve AW, they fail to state a claim. 

CONCLUSION

The judgment of the district court is affirmed. 

 Entered for the Court 

 Carolyn B. McHugh 

 Circuit Judge 

Appellate Case: 14-3154 Document: 01019379886 Date Filed: 02/03/2015 Page: 8