Beams v. Norton

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 26 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

RICHARD LEE BEAMS,

Plaintiff-Appellant,

v. No. 03-3106
(D.C. No. 00-CV-4124-SAC)
GALE NORTON, Secretary of the (D. Kan.)
Department of Interior,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before EBEL , HENRY , and MURPHY , Circuit Judges.

Richard Lee Beams appeals from the district court’s grant of summary

judgment to defendant on claims of employment discrimination and retaliation in

violation of Title VII, the Age Discrimination in Employment Act and the

Americans with Disabilities Act. 1
He brought six separate claims before the

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
(continued...)
EEOC in connection with unsuccessful applications for employment with the

Bureau of Indian Affairs and ultimately combined them in a single lawsuit filed in

federal district court. The court concluded, as did the administrative law judge in

the agency proceedings, that appellant’s claims had no merit. See Beams v.

Norton , 256 F. Supp. 2d 1203, 1215-1218 (D. Kan. 2003). The court also denied

appellant’s motion to include additional claims which were decided by the agency

during the pendency of his case in federal court. Id. at 1205.

We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291. We

review the district court’s summary judgment ruling de novo , applying the same

legal standards as did that court to determine whether genuine issues of material

fact exist and, if not, whether the nonmoving party is entitled to judgment as a

matter of law. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). In the context of appellant’s

substantive claims, that means we consider his arguments in light of the familiar

burden-shifting analysis based on the Supreme Court’s decision in McDonnell

Douglas Corp. v. Green , 411 U.S. 792 (1973). See Beams , 256 F. Supp. 2d

at 1213, 1214 (setting out the general elements of prima facie cases alleging

discriminatory failure to hire and retaliation) (citing Garcia v. Pueblo Country

1
(...continued)
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.

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Club , 299 F.3d 1233, 1238 (10th Cir. 2002) and Pastran v. K-Mart Corp. ,

210 F.3d 1201, 1205 (10th Cir. 2000)). In our consideration of appellant’s

claims, we construe his pro se pleadings, including his appellate filings, liberally.

See Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998). We will not,

however, supply additional factual allegations to support appellant’s complaint or

construct legal theories on his behalf. Whitney v. New Mexico , 113 F.3d 1170,

1173-74 (10th Cir. 1997). Unsupported conclusory allegations do not create an

issue of fact. See Matthiesen v. Banc One Mortgage Corp. , 173 F.3d 1242, 1247

(10th Cir. 1999).

After careful review of the record on appeal and the parties’ briefs, we

conclude that the district court correctly decided this case. Further, appellant’s

arguments on appeal do not challenge the basis of the district court’s rulings,

namely that he had not demonstrated either the existence of a prima facie case or,

where such case existed, had not presented evidence that the agency’s articulated

legitimate reasons for not hiring him were a pretext for discrimination or

retaliation. To the extent that appellant’s appellate arguments attempt to raise

new claims based on the Indian Preference statute, 25 U.S.C. § 472, we decline to

address them. Appellant’s comments on Indian preference rules to the district

court were made in the context of his discrimination claims and did not refer to

the statute itself. Even under the liberal construction afforded pro se pleadings,

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these sparse references did not apprise that court of a separate claim based on the

statute. We do not, as a general rule, address matters that were not presented to

the district court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896

(10th Cir. 1992).

Appellant also challenges as error the district court’s denial of his motion

to amend the pretrial order with additional claims of employment discrimination.

We review this decision for abuse of discretion only. Davey v. Lockheed Martin

Corp. , 301 F.3d 1204, 1208 (10th Cir. 2002). We find no abuse of discretion in

the district court’s conclusion that the addition of new claims would prejudice

defendant in this case, and appellant does not argue otherwise.

The judgment of the district court is AFFIRMED.

Entered for the Court

David M. Ebel
Circuit Judge

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