Zokari v. Gates

FILED
United States Court of Appeals
Tenth Circuit

March 17, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUNDAY A. ZOKARI,

Plaintiff - Appellant,
v. No. 07-6173
ROBERT M. GATES, Secretary of the
Department of Defense,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 04-CV-940-M)

Submitted on the briefs *:

Aletia Haynes Timmons, Timmons & Associates, LLC, Oklahoma City,
Oklahoma, for Plaintiff - Appellant.

John C. Richter, United States Attorney, and Tom Majors, Assistant United States
Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for
Defendant - Appellee.

Before LUCERO, EBEL, and HARTZ, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
HARTZ, Circuit Judge.

Plaintiff Sunday A. Zokari is an African-American man born in Nigeria but

a naturalized citizen of the United States. He was hired by the Defense Contract

Audit Agency (DCAA) in May 2000 as an auditor-trainee in Oklahoma City. He

was terminated on February 26, 2001, during his one-year probationary period.

Mr. Zokari brought suit in the United States District Court for the Western

District of Oklahoma under Title VII of the Civil Rights Act of 1964, alleging (1)

discrimination based on his race and national origin and (2) retaliation for

refusing to take an English class suggested by his supervisors, who had expressed

concern about his accent. The district court granted summary judgment for

DCAA on the retaliation claim, but allowed the discrimination claims to proceed

to trial. A jury entered a verdict for DCAA on the discrimination claims.

Mr. Zokari contends that (1) he presented sufficient evidence to overcome

summary judgment on his retaliation claim; (2) the district court erred in granting

DCAA’s motion in limine to exclude from trial all evidence regarding his claim

that DCAA failed to pay him for his last day of employment; (3) the court

improperly excluded the proffered testimony of another African-American

employee at DCAA; and (4) the court improperly rejected his requested jury

instruction authorizing an inference of discrimination based on his supervisors’

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comments about his accent. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

I. BACKGROUND

There were, of course, disputes below regarding the historical facts. But

the only issues to which the disputes relate are the propriety of summary

judgment and the rejected instruction. We therefore summarize the evidence in

the light most favorable to the appellant, Mr. Zokari, as required in reviewing

those two issues. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213, 1216

(10th Cir. 2008) (on appeal from summary judgment, evidence is viewed in light

most favorable to appellant); Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 506

(8th Cir. 1993) (on appeal from denial of requested instruction, “evidence must be

examined in the light most favorable to the party proposing the instruction”).

DCAA, an agency within the Department of Defense, provides auditing,

accounting, and financial-advisory services to the Department. DCAA’s

Oklahoma City office is a suboffice of the branch office in Richardson, Texas.

During Mr. Zokari’s employment, Paul Peters was the branch manager of the

Richardson office.

On May 8, 2000, Mr. Zokari was hired as an auditor-trainee in the

Oklahoma City suboffice, subject to a one-year probationary period. He was

initially supervised in the Oklahoma City suboffice by Darrell Patterson, but John

Michael Green became his supervisor in July. Green also supervised two other

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auditor-trainees, Terry Davis and Francine Montgomery, while Patterson

supervised one other auditor-trainee, Rebbecca Kerr. Both Patterson and Green

were, in turn, supervised by Peters from the Richardson office. Davis, hired in

January 2000, only a few months before Mr. Zokari, was the first African-

American to work in the Oklahoma City suboffice, and Mr. Zokari was the first

Nigerian to work there.

Shortly after Green became his supervisor, Mr. Zokari met with Peters, who

expressed concern about his accent and suggested that he take an English class.

DCAA’s policy was to encourage managers to offer an English class to employees

for whom English was a second language. Mr. Zokari rejected the offer, saying

that the failure of others to understand his accent resulted from their lack of

exposure to people with accents, and that they would get used to it.

In September 2000 Peters and Green met with Mr. Zokari to inquire

whether he had taken the English class. Mr. Zokari informed them that he had

not. According to Mr. Zokari, their attitudes toward him then markedly changed:

Both became hostile, and Green began to give Mr. Zokari vague instructions at

work and refused to clarify them. In November 2000 Peters and Mr. Zokari met

with a contractor outside the office. The contractor, who had lived in Nigeria for

some time, conversed with Mr. Zokari about his homeland. Afterwards, Peters

chastised Mr. Zokari for socializing with the contractor. In January 2001

Mr. Zokari requested to be sent to a training seminar, but Green elected to send

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Kerr, a white, native-born woman, instead. When Mr. Zokari persisted, Green

signed the papers so that he could attend, but threw the papers at him.

Mr. Zokari also complains that he received minimal guidance from the

auditors supervising his work. His supervisors recorded his errors on internal

forms (called A-3s), which were then used as evidence of his poor work

performance to justify his termination, whereas the errors of the other three

auditor-trainees in the Oklahoma City suboffice were not recorded or used against

them. Instead, the other auditor-trainees were given constructive feedback and

the opportunity to correct their errors. Moreover, Mr. Zokari’s assigned mentor

provided only three hours of mentorship, whereas the other auditor-trainees

typically received 24 hours.

In late January 2001 Mr. Zokari attended a final meeting with Green and

Peters. They discussed his poor work performance and the difficulty others had

in understanding him because of his accent. A month later, on February 26, 2001,

Mr. Zokari was terminated. He received a termination letter signed by Peters that

listed the reasons for his termination: frequent failure to follow up on or correct

errors noted by his supervisors; too many repetitive errors in reports and working

papers; failure to follow instructions of supervisors; and excessive use of the

telephone for personal calls and use of a government computer for nongovernment

work during normal work hours. Mr. Zokari was not paid for his final day of

employment until June 2001.

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 On August 2, 2004, Mr. Zokari, acting pro se, brought suit against DCAA

under Title VII of the Civil Rights Act of 1964. His complaint alleged that

DCAA discriminated against him on the basis of race and national origin and

retaliated “after he opposed illegal activities.” Aplt. App. Vol. III at 80. Among

the “Background Facts” recited in the complaint is the allegation that DCAA had

failed to pay him for his last day of employment, in “violation of Department of

Labor guidelines.” Id. at 80–81. After obtaining counsel, Mr. Zokari filed an

amended complaint that largely repeated verbatim the original complaint.

DCAA filed a motion for summary judgment. The district court granted

summary judgment on the retaliation claim, but denied summary judgment on the

discrimination claims. Before trial DCAA filed a motion in limine to exclude all

evidence regarding Mr. Zokari’s claim that DCAA had failed to pay him for his

last day of employment. It asserted that the money had been paid and that

Mr. Zokari was raising for the first time (in a proposed pretrial order and a

proposed instruction) a “‘labor’” claim based on the late payment of wages. Id. at

75. The district court granted the motion, agreeing that Mr. Zokari had raised the

“‘labor claim’” for the first time in “pretrial filings.” Id. at 101.

At trial Mr. Zokari offered the testimony of Emmett Holland, an African-

American senior auditor in the Richardson office, regarding his experiences as an

African-American at DCAA and information he had learned from reviewing

employee evaluations in preparation for bringing his own claim of discrimination

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against DCAA (which he ultimately decided not to pursue). The district court

excluded Holland’s testimony on the ground that he lacked personal knowledge of

relevant discrimination.

Before closing arguments Mr. Zokari requested an instruction permitting

the jury to infer discrimination from comments made by Green and Peters about

his accent. The district court denied the request, and the jury rendered a verdict

for DCAA on Mr. Zokari’s discrimination claims.

Mr. Zokari challenges the verdict, contending that the district court erred in

granting DCAA’s motion in limine regarding his wage claim, in excluding

Holland’s testimony, and in failing to give his proposed jury instruction. He also

appeals the court’s award of summary judgment to DCAA on his retaliation

claim. We first address the retaliation claim.

II. RETALIATION CLAIM

The district court granted DCAA’s motion for summary judgment on

Mr. Zokari’s retaliation claim. We review the district court’s ruling de novo. See

Pignanelli, 540 F.3d at 1216. Summary judgment should be granted if “there is

no genuine issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Mr. Zokari contends that his supervisors at DCAA retaliated against him in

violation of 42 U.S.C. § 2000e-3(a) by treating him with hostility, disciplining

him for poor performance, and eventually terminating his employment because he

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refused to take an English class offered to him. Section 2000e-3(a) states in

pertinent part: “It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has opposed any

practice made an unlawful employment practice by this subchapter . . . .”

In the absence of direct evidence, we review the grant of summary

judgment on such a claim under the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Medina v.

Income Support Div., N.M., 413 F.3d 1131, 1135 (10th Cir. 2005). Under this

framework Mr. Zokari bears the initial burden of establishing a prima facie case

of retaliation, which has three elements: (1) the plaintiff’s “protected opposition”

under § 2000e-3(a), (2) an adverse employment action against the plaintiff, and

(3) a causal connection between the “protected opposition” and the adverse

employment action. Id. at 1135–36. Opposition is protected under § 2000e-3(a)

only if it is opposition to a “practice made an unlawful employment practice by

Title VII.” Petersen v. Utah Dept. of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002)

(brackets and internal quotation marks omitted).

We may assume, without deciding, that Mr. Zokari established the first two

elements of his prima-facie case. But his claim of retaliation fails because he

cannot establish a causal connection between his protected opposition and the

adverse employment action. To establish a causal connection, Mr. Zokari must

show that the individuals who took adverse action against him knew of his

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protected opposition. See Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993).

As we have explained, “[a]n employer’s action against an employee cannot be

because of that employee’s protected opposition unless the employer knows the

employee has engaged in protected opposition.” Petersen, 301 F.3d at 1188. The

employer must know not only that the employee has opposed an action of the

employer (here, the request to take an English class), but that the opposition was

based on a belief that the employer’s action constituted discrimination prohibited

by Title VII (here, racial or national-origin discrimination). See id. As we have

explained:

[T]his result is compelled not only by the natural reading of the
statutory language, but also by the purpose of the provision. The
purpose of § 2000e-3(a) is to let employees feel free to express
condemnation of discrimination that violates Title VII. That purpose
is hardly served by imposing sanctions upon employers who take
action against employees who never communicate their concern
about unlawful discrimination.

Id. at 1189.

Although Mr. Zokari may have refused the English class because he felt

that the request was discriminatory, he has not presented evidence that he made

this basis of his refusal known to his supervisors. He never told them of his

belief that their request constituted improper discrimination based on his race or

national origin. The only reason he gave Green and Peters for his refusal was that

the failure of others to understand him was due to their lack of exposure to people

with an accent, a problem that would disappear over time. This explanation

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would not have informed his supervisors that he was opposing a violation of Title

VII. The natural interpretation of his remarks is that he was refusing the request

because he thought the course unnecessary.

Accordingly, we affirm the district court’s grant of summary judgment for

DCAA on Mr. Zokari’s retaliation claim.

III. WAGE CLAIM

Less than two weeks before the scheduled date for trial, DCAA filed a

“Motion in Limine as [to] ‘Labor Claims’,” Aplt. App. Vol. III at 75, in response

to a proposed pretrial order and a proposed instruction filed by Mr. Zokari.

DCAA’s motion sought to exclude from trial any evidence “regarding the failure

to pay [Mr. Zokari] for his last day of employment.” Id. The motion was

premised on the grounds that (1) Mr. Zokari had originally alleged that failure to

pay his last day’s wages was an act of retaliation, (2) the money had been paid,

(3) the court had granted summary judgment against Mr. Zokari on the retaliation

claim, and (4) Mr. Zokari had just raised for the first time (in the proposed

pretrial order and proposed instruction) a “‘labor’” claim based on the late

payment. Id. at 75. The district court granted the motion, agreeing with DCAA

that Mr. Zokari had not raised a wage-law claim until the eve of trial.

On appeal Mr. Zokari complains that the district court’s ruling in essence

granted summary judgment against him on his wage-law claim (although his brief

on appeal never cites a federal or state law under which he was bringing such a

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claim). The heart of his argument is that, contrary to what the district court said,

he had consistently raised a wage-law claim in his original complaint and

thereafter. We agree with Mr. Zokari that the court’s grant of the motion in

limine was not an evidentiary ruling but was a substantive ruling that he could not

pursue a particular cause of action (a wage-law claim) at trial. Nevertheless, we

affirm the district court. We begin our analysis by describing the relevant

pleadings below.

Mr. Zokari’s original pro se complaint, filed on August 2, 2004, clearly

describes itself as arising under Title VII. The caption of the complaint contains

the following description of the cause of action: “Discrimination in Violation of

Title VII (RACE and NATIONAL ORIGIN).” Id. at 79. The portion of the

complaint headed “Parties and Jurisdiction” recites the parties and then states:

4. Plaintiff is an African-American employee bringing this action
in response to his being discriminated against by the Agency on the
basis of his race (African-American) and his national origin (Africa)
both in violation of Title VII of the Human Rights act.

5. This action is brought for violation of Title VII of the Civil
Rights Act of 1964, discrimination on the basis of race and/or
retaliation after he opposed illegal activities.

Id. at 79–80. The remainder of that portion of the complaint recites the basis of

venue and jurisdiction (citing to the general provisions of Title 28 and special

provisions in Title 42 for discrimination claims) and alleges compliance with the

notice and administrative-exhaustion requirements of Title VII. No wage law is

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cited. The heading for the final 12 paragraphs of the complaint (up to the prayer

for relief) is “Background Facts.” Id. at 80. The paragraphs in that section recite

complaints about his accent, the lack of training provided to him, examples of

racial harassment, and adverse actions taken against him. One such adverse

action is alleged in ¶ 20, which states in full: “Plaintiff was not paid through the

last day of his employment, which constitutes a violation of Department of Labor

guidelines.” Id. at 81.

Mr. Zokari later retained counsel, who filed an amended complaint in July

2005. The amended complaint is virtually identical in all material respects to the

original pro se complaint. The above description of the pro se complaint

describes the amended complaint verbatim except that the caption contains no

description of the cause of action.

On November 20, 2006, DCAA filed its motion to dispose of the entire case

through summary judgment. Reading the complaint as a whole as raising only

Title VII claims, the motion makes no mention of any wage-law claim. The

motion makes only two references to ¶ 20 of the amended complaint.

Paragraph 15 of the statement of uncontroverted facts asserts that Mr. Zokari was

paid through his final day of employment. And in the motion’s “Statement of the

Case,” after reciting that Mr. Zokari had alleged discrimination by (1) being

provided less training than white employees, (2) being directed to take an English

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class, and (3) having his work reviewed more than other employees, it appends a

footnote saying:

Plaintiff further alleges that he was not paid for his time on the last
day of his employment. Whether or not this is an act of
discrimination, plaintiff has conceded that he has now been paid the
approximately $100.00 he alleged he earned his last date of
employment. This issue is moot.

Aplt. App. Vol. I at 18 n.5. More importantly, the response to the motion for

summary judgment, filed by Mr. Zokari’s attorney on January 25, 2007, makes no

mention of a claim under any wage law. Its only reference to wages earned on

Mr. Zokari’s final day of employment is in the section entitled “Plaintiffs [sic]

Response to the Defendants [sic] Statement of Uncontroverted Facts.” Id. Vol. II

at 10. In response to DCAA’s ¶ 15, he asserts that payment for his last day’s

wages was several months late.

On March 16, 2007, the district court granted DCAA’s motion as to the

retaliation claim, set the discrimination claims for trial, and, not surprisingly, said

nothing about any possible wage claim. Trial was scheduled for April 9.

The pleadings that precipitated DCAA’s motion in limine were filed shortly

after the district court’s summary-judgment ruling. On March 27, eleven days

after that ruling, and less than two weeks before the scheduled trial date,

Mr. Zokari submitted a proposed jury instruction entitled “CLAIM FOR UNPAID

WAGES.” Id. Vol. III at 73. Referencing Oklahoma statute, title 40, § 165.3, the

instruction told the jury that payment for an employee’s final wages must be paid

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by the next regular payday and that late payment is subject to a penalty up to the

amount of the unpaid wages. Two days later, in a proposed final pretrial report,

Mr. Zokari recited as a legal issue for trial: “Did the Defendant violate the Fair

Labor Standards Act relative to work performed by the Plaintiff pursuant to

29 U.S.C.A. 216 and 40 O.S. 165.3?” Zokari v. Gates, No. CIV-04-0940-M

(W.D. Okla.) (Final Pretrial Report, March 29, 2007, at 3). The report also

contained DCAA’s objection to this issue on several grounds, including that it

had not been pleaded. That same day, DCAA filed its motion in limine to exclude

evidence regarding Mr. Zokari’s claim that DCAA had failed to pay his final

wages on time. The district court granted the motion, saying that Mr. Zokari’s

“‘labor claim’ was raised for the first time in his pretrial filings and . . . [DCAA]

was never on notice that [he] was asserting such a claim.” Aplee. Supp. App. at

80.

Mr. Zokari contends on appeal that he had raised his wage-law claim well

before the district court’s summary-judgment ruling. In particular, he points to

¶ 20 of his amended complaint, which alleged: “Plaintiff was not paid through

the last day of his employment, which constitutes a violation of Department of

Labor guidelines.” Aplt. App. Vol. III at 87. 1

1
On appeal Mr. Zokari argues that he had also raised his wage-law claim on
two other occasions. First, he asserts that in his deposition he “reiterated that he
was pursuing the claim for unpaid wages.” Aplt. Br. at 15. But as we read his
testimony, he was treating the nonpayment as an act of discrimination and made
(continued...)

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 In our view, the district court properly ruled that Mr. Zokari had not timely

raised a wage-law claim. We recognize that most of our sister circuits have stated

the general rule that a complaint need not set forth the plaintiff’s legal theories.

See 2 James Wm. Moore et al., Moore’s Federal Practice § 8.04[3] n.13 (3d ed.

2008) (collecting cases); 5 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1215 n.1 (3d ed. 2004) (same). And one might say that

¶ 20 of Mr. Zokari’s amended complaint adequately states the basis of a wage-law

claim. But the complaint must “‘give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests,’” Bell Atlantic Corp. v. Twombly,

127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

And Federal Rule of Civil Procedure 8(e) states that “[p]leadings must be

construed so as to do justice.” We would not be doing justice if, in the present

context, we were to construe Mr. Zokari’s amended complaint as providing notice

to DCAA of a wage-law claim.

1
(...continued)
no reference to a possible wage-law claim. Second, he contends that his wage-
law claim was raised in the Joint Status Report and Discovery Plan filed on May
26, 2006. But he did not rely on this pleading in his objection to the motion in
limine or in his motion to reconsider the district court’s ruling granting the
motion in limine. Nine days after the court denied the motion to reconsider, he
filed “Plaintiffs’ Formal Offer of Proof Regarding the ‘Labor Claim’ and Brief in
Support,” which referenced the status report for the first time and attached a copy.
This was too late to raise the issue, particularly when the offer of proof requested
no action by the district court. We will not reverse on a ground not properly
presented below. See Shoels v. Klebold, 375 F.3d 1054, 1061 (10th Cir. 2004).

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 Aside from ¶ 20, every signal in the amended complaint informed DCAA

that Mr. Zokari was not raising a wage claim under the Fair Labor Standards Act

(FLSA) or some state law. The failure to cite a wage-law statute is only part of

the story. The amended complaint affirmatively states that Mr. Zokari “is an

African-American employee bringing this action in response to his being

discriminated against by the Agency on the basis of his race (African-American)

and his national origin (Africa) both in violation of Title VII of the Human Rights

Act” and that “[t]his action is brought for violation of Title VII of the Civil

Rights Act of 1964, discrimination on the basis of race and/or retaliation after he

opposed illegal activities.” Aplt. App. Vol. III at 85–86. The allegation that

Mr. Zokari had not been paid all his wages is one of 12 paragraphs under the

heading “Background Facts.” It appears within a series of paragraphs alleging

acts showing that he had been subject to discrimination or retaliation.

Paragraph 20 is preceded by a paragraph alleging that “[i]t would appear that no

African-American employees worked in this department during any of the past

thirty (30) years,” id. at 87, and is followed by a paragraph describing statements

made at his EEOC hearing. One would naturally conclude that the purpose of

alleging that nonpayment of his wages was contrary to “Department of Labor

guidelines,” id. at 87, was to reinforce that there was no legitimate reason for

nonpayment, thereby implying that the reason must have been discrimination or

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retaliation. A pleading should be read as a whole. And reading Mr. Zokari’s

amended complaint as a whole, it plainly asserts only claims under Title VII.

In short, it would be a stretch to construe Mr. Zokari’s amended complaint

as putting DCAA on notice of a wage-law claim. To be sure, courts often, and

properly, engage in such a stretch. But whether or not to do so should depend on

the status of the litigation. A decision that “do[ing] justice,” Fed. R. Civ. P. 8(e),

requires an expansive construction of a complaint will turn on the fairness to the

parties and the burdens on the court that would result from giving a pleading a

possible, but improbable, reading. Early in litigation, justice is usually served by

expansively construing complaints. For example, if DCAA had initially

responded to the complaint by moving to dismiss because Mr. Zokari had not

properly exhausted administrative remedies, and if Mr. Zokari had replied that

this ground for dismissal did not apply to his wage-law claim, then the district

court would have been well-advised to construe the complaint as raising such a

wage-law claim. After all, the court would likely grant leave to amend the

complaint to allege a wage claim unambiguously. See Fed. R. Civ. P. 15(a)(2)

(“The court should freely give leave [to amend] when justice so requires.”) Little

purpose would be served by requiring a motion to amend.

In other circumstances, however, reading a complaint so expansively could

create injustice. This may be the thinking behind the statement by the Seventh

Circuit that “identif[ying] the wrong statute as the basis for [the plaintiffs’]

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claim” was not important “as long as [their] allegations gave notice of a legally

sufficient claim . . . and they brought the legal support for their claim to the

district court’s attention in their response to the defendants’ summary judgment

motion.” Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 764 (7th

Cir. 1999). A court, we can infer, should not stretch to read a complaint as

asserting a claim not pursued by the plaintiff in response to a summary-judgment

motion.

The Second Circuit’s opinion in Brock v. Superior Care, Inc., 840 F.2d

1054 (2d Cir. 1988), is a particularly informative illustration of how the litigation

context can inform how broadly a court should construe a complaint. The Second

Circuit has consistently stated that complaints need not state legal theories. See,

e.g., Newman v. Silver, 713 F.2d 14, 15 n.1 (2d Cir. 1983). In Brock, however,

the court held that a complaint by the Secretary of Labor alleging failure to pay

overtime stated a claim under § 17 of the Fair Labor Standards Act, 29 U.S.C.

§ 217, but not under § 16, 29 U.S.C. § 216, and therefore the district court had

lacked authority to grant relief under § 16. See 840 F.2d at 1062–64. Section 17

authorizes suits by the Secretary for injunctive relief plus an order requiring the

employer to pay unpaid wages. See id. at 1063. Section 16(c) permits further

relief—namely, recovery of liquidated damages in addition to back wages. See

id. The complaint in Brock referred only to § 17, never to § 16; but the prayer for

relief included liquidated damages, which were available only under § 16(c), and

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the district court had granted that relief. Under general principles one would

think this an easy case and construe the complaint to raise a claim under § 16(c)

as well as § 17. But an unusual feature of the case was that a defendant has no

right to a jury trial for a claim under § 17 (which provides for only equitable

relief), whereas there is a right to a jury in a suit for liquidated damages under

§ 16(c). See id. The Secretary argued that the defendant should have noted the

prayer for liquidated damages and demanded a jury trial if it did not wish the

district judge to rule on liquidated damages under § 16(c). The Second Circuit,

however, held that the defendant could properly read the complaint as seeking

only § 17 relief, and the Secretary should have sought to amend the complaint if

he wanted liquidated damages. Id. at 1064. See Reich v. Tiller Helicopter Servs.,

Inc., 8 F.3d 1018, 1032–35 (5th Cir. 1993) (following Brock). But see Martin v.

Deiriggi, 985 F.2d 129, 134–35 (4th Cir. 1992) (distinguishing Brock).

The result in Brock can best be understood as an application of Fed. R. Civ.

P. 8(e) (“[p]leadings must be construed so as to do justice”) to preserve the right

to a jury trial. A party has only a limited time to demand a jury. See Fed. R. Civ.

P. 38(b). A plaintiff should not be permitted to deprive a defendant of a jury trial

by burying a legal claim (for which there is a right to a jury) in a complaint

seeking equitable relief (for which there is no right to a jury) and then, when it is

too late for the defendant to demand a jury, surfacing the legal claim. The

plaintiff should be required, as Brock held, to amend the complaint to state the

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legal claim, thereby providing the defendant an opportunity to demand a jury on

the claim, see id.

This approach of applying Fed. R. Civ. P. 8(e) to construe pleadings in

light of the stage of the district-court proceedings is implicit in our own case law.

In this circuit when a plaintiff attempts to add a new theory—a new cause of

action—late in the game, the issue has not been whether the legal theory should

be read into the complaint, but whether an amendment to the complaint should be

permitted. We have stated:

Courts will properly deny a motion to amend when it appears that the
plaintiff is using Rule 15 to make the complaint “a moving target,”
Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800 (10th Cir. 1998),
to “salvage a lost case by untimely suggestion of new theories of
recovery,” Hayes v. Whitman, 264 F.3d 1017, 1027 (10th Cir. 2001),
to present “theories seriatim” in an effort to avoid dismissal,
Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.
1994), or to “knowingly delay[] raising [an] issue until the ‘eve of
trial,’” Walters v. Monarch Life Ins. Co., 57 F.3d 899, 903 (10th Cir.
1995).

Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (brackets in

original). This statement would make no sense if, regardless of the course of

litigation, we always construed complaints to raise any legal theory supported by

the allegations of the complaint. If that were our rule, then a motion to amend

would not have been necessary—the “‘new theories of recovery,’” id., would be

read into the unamended complaint.

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 Of particular interest is Viernow, 157 F.3d at 799–800, in which we

affirmed the denial of a motion to amend the complaint to add federal claims of

violation of the Securities and Exchange Act to a complaint that alleged

violations of the Texas Securities Act. And in Pallottino, 31 F.3d at 1025–27, we

affirmed the denial of a motion to amend to add a claim under the Fourth

Amendment to a complaint alleging a Fifth Amendment violation based on the

same alleged facts. See Foman v. Davis, 371 U.S. 178, 181–82 (1962)

(remanding for reconsideration of motion to amend to add quantum meruit claim

to complaint alleging breach of agreement not to make a will, when amendment

would present no new facts and do “no more than state an alternative theory for

recovery”). Implicit in these decisions is that the original complaint needed to be

amended—that is, the new theory of recovery was not raised by the original

complaint even though the predicate facts were alleged.

The underlying principle is stated in Evans v. McDonald’s Corp., 936 F.2d

1087 (10th Cir. 1991), although without referencing Fed. R. Civ. P. 8(e). In

Evans the plaintiff, in response to a motion for summary judgment, for the first

time characterized her claim as a retaliatory failure to hire rather than, as before,

a retaliatory discharge. We upheld the district court’s refusal to address the new

theory. We wrote:

As a general rule, a plaintiff should not be prevented from pursuing a
valid claim just because she did not set forth in the complaint a
theory on which she could recover, “provided always that a late shift

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 in the thrust of the case will not prejudice the other party in
maintaining his defense upon the merits.” 5 C. Wright & A. Miller,
Federal Practice & Procedure § 1219 at 194 (1990) [now § 1219 at
282–83 (2004)] . . . .

We do not believe, however, that the liberalized pleading rules
permit plaintiffs to wait until the last minute to ascertain and refine
the theories on which they intend to build their case. This practice,
if permitted, would waste the parties’ resources, as well as judicial
resources, on discovery aimed at ultimately unavailing legal theories
and would unfairly surprise defendants, requiring the court to grant
further time for discovery or continuances.

936 F.3d at 1090–91. Expressing that holding in terms of Rule 8(e), one would

say that it would not have served justice at that stage of the proceedings to

construe the plaintiff’s complaint as encompassing a failure-to-hire claim. As a

leading treatise states, “It must be remembered that an undue amount of

permissiveness toward the pleadings by the judicial system eventually may be

reflected as an unwarranted increase in the burden on the other parties and the

district judge.” Wright & Miller, supra, § 1286 at 764–65.

Here, Mr. Zokari did not present his wage-law claim to the district court in

response to DCAA’s motion for summary judgment. He waited until the eve of

trial. In that context the district court properly refused to construe the amended

complaint so broadly as to include a wage-law claim. See Evans, 936 F.2d at

1091. As our precedents suggest, Mr. Zokari simply acted too late to burden the

court and the defendant with a new theory for relief. 2

2
Mr. Zokari might have pursued his wage-law claim at trial by obtaining
(continued...)

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 We affirm the district court’s grant of DCAA’s motion in limine.

IV. EXCLUSION OF HOLLAND’S TESTIMONY

Mr. Zokari also contends that the district court erred by excluding the

testimony of Emmett Holland, an African-American senior auditor from the

Richardson office of DCAA. We review the district court’s decision to exclude

his testimony for an abuse of discretion. See Coletti v. Cudd Pressure Control,

165 F.3d 767, 776 (10th Cir. 1999).

In the pretrial report Mr. Zokari stated that Holland would “testify that he

was rated lower than non-black counterparts, . . . testify about errors made on A-

3’s [internal auditing forms], [and] testify about his conversations with

Defendants Counsel about such and the atmosphere of discrimination in the

agency that he relayed while being interviewed by Defense Counsel.” Zokari, No.

CIV-04-0950 (Final Pretrial Report at 15). At trial, counsel for DCAA sought to

exclude the evidence on the ground of lack of personal knowledge. He argued:

2
(...continued)
court permission to amend his complaint. But he makes no effort to argue that he
would have been entitled to such an amendment. In any event, it would have
been no abuse of discretion for the district court to refuse to add the additional
claim (with an apparent value of no more than $100) at such a late stage of the
proceedings. See id. (“The grant of leave to amend the pleadings pursuant to Rule
15(a) is within the discretion of the trial court, and we will not reverse the court’s
decision absent an abuse of discretion.” (brackets, citation and internal quotation
marks omitted)); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d
1182, 1185 (10th Cir. 1990) (“Untimeliness alone may be a sufficient basis for
denial of leave to amend.”).

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 According to the statements of the final pretrial report, he would
testify that he was rated lower than non-black counterparts. I’m
concerned they will not be able to lay a foundation that this witness
has access to every evaluation of every employee similarly situated
to him—not similarly situated in the context of color—but he would
have to be able to have access to that and then if he doesn’t have
access to that, then he is testifying as an expert and he is not an
expert.

He would also testify about errors made on A-3s. He did not
work in this office. He did not work with any of these senior
auditors that prepared the A-3s that are subject to the lawsuit. I think
that that is not relevant, what A-3s that somebody else in the Dallas
office prepared.

Finally, in conversations with defense counsel, I think that is
irrelevant.

Atmosphere discrimination in the agency, I would like to know
the foundation of his knowledge there. Unless he has personal
experience throughout the worldwide offices of DCAA, he is not able
to testify with his personal knowledge and he has not been
designated as an expert.

Aplt. App. Vol. IV(A) at 191–92.

When counsel for Mr. Zokari then spoke, she did little to suggest

Mr. Holland’s personal knowledge. She began by saying that Holland “got his

information from the business records of the Union when he was contemplating

filing a grievance against . . . Peters for his low ratings, so he has personal

knowledge about which he can testify.” Id. at 192. In response to questions from

the court, she added,

The A-3s are about when he came up as he has gone through and had
people working under and around him, that they are prevalent, the

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 errors are prevalent in those. That has been his experience everytime
he has been with [DCAA]. I believe he has been there over 20 years.

Id. at 192–93. She also said:

He will testify to his experience at DCAA, his conversations with
[DCAA’s trial attorney] where he informed him that there is an
atmosphere of discrimination at that agency, and the A-3s, the errors
that he has seen. He came in and out of the Oklahoma City office, he
would come to Oklahoma City and do audits also. That is the only
reason why he is going to be able to testify to those things.

Id. at 193–94.

The court said that it would decide the admissibility issue after counsel

conducted a voir dire of Holland outside the jury’s presence. On direct

examination by DCAA’s counsel at voir dire, Holland testified as follows: He

had been employed by DCAA for 20 years and was currently a senior auditor at

DCAA and a steward for the local union. As a union steward he had access to

DCAA employee evaluations upon request. He had not requested any information

for Mr. Zokari’s case, but he had examined records in 2003 or 2004 when he had

considered bringing his own claim of discrimination against DCAA. In

preparation for his case, he had obtained the evaluations for all DCAA employees

in the Richardson branch office for the year of his grievance. (He had not

reviewed employee evaluations for 2000 or 2001, the years that Mr. Zokari

worked at DCAA.) He admitted that he was not familiar with the work

performance of the DCAA employees whose evaluations he had reviewed and that

he had not looked at the files used to evaluate the employees.

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 Holland’s cross-examination by Mr. Zokari’s counsel was brief:

Q: During your 20 years at the DCAA, have you seen African-
Americans and minorities have a difficult time with regard to
evaluations and ratings and mentoring and on-the-job training?

I know that is a lot of questions, do you want me to break it
up?

A: Yes, yes, and yes.

Q: You answered my question.

A: Yes.

Q: Okay.

A: Because I think it was two or three parts and the answer is yes.

Q: Has that been while Paul Peters has been the branch manager?

A: I have been here since 1989, I have been in this agency since
1987. The answer to that question would be yes.

Id. at 204.

Because the district court had announced that it would decide the

admissibility of Holland’s testimony upon completion of the voir dire, it was

incumbent on Mr. Zokari to establish the basis on which Holland would testify.

This he failed to do. It was clear from the voir dire that Holland did not have

personal knowledge of discriminatory evaluations by DCAA. He knew the

evaluation scores for employees two or three years after Mr. Zokari’s termination,

but he could not know if the evaluations were discriminatory because he knew

nothing regarding the work performance of any employee except himself.

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Although he may have had knowledge of other discriminatory conduct, his

testimony did not provide sufficient information concerning his knowledge of

such conduct for the district court to decide that he had personal knowledge of

matters relevant to Mr. Zokari’s trial. In this circumstance, the district court did

not abuse its discretion in ruling that Holland’s testimony should be excluded for

lack of personal knowledge. See Fed. R. Evid. 602 (“A witness may not testify to

a matter unless evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”).

V. JURY INSTRUCTION

Mr. Zokari finally contends that the district court erred by failing to give

the jury the following requested instruction:

In a national origin case comments regarding a plaintiff’s accent may
constitute indirect evidence of discrimination where there is no
showing that language difficulties would interfere with a plaintiff’s
ability to perform the duties of the job.

Aplt Br. 18. Without this instruction, Mr. Zokari argues, the jury was provided

no guidance on how to consider evidence regarding his accent.

We review de novo the instructions as a whole to determine whether they

accurately informed the jury of the governing law. Whittington v. Nordam Group

Inc., 429 F.3d 986, 996 (10th Cir. 2005). But we review for abuse of discretion a

district court’s decision to deny a request for a particular jury instruction.

McKenzie v. Benton, 388 F.3d 1342, 1348 (10th Cir. 2004). “As long as the

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charge as a whole adequately states the law, the refusal to give a particular

instruction is not an abuse of discretion.” Id. (internal quotation marks omitted).

We agree with Mr. Zokari that an employer’s comments regarding a

plaintiff’s accent may constitute circumstantial evidence of discrimination based

on national origin. See Carino v. Univ. of Okla. Bd. of Regents, 750 F.2d 815,

819 (10th Cir. 1984); 29 C.F.R. § 1606.1 (defining national origin discrimination

to include “the denial of equal employment opportunity . . . because an individual

has the physical, cultural or linguistic characteristics of a national origin group”).

But

a party is not entitled to a specific jury instruction on every correct
proposition of law. When the other instructions establish a sound
basis for an argument by the party to the jury on that proposition, an
additional instruction is not essential and runs the risk of suggesting
that the trial judge has adopted the party’s view.

Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1023 (10th Cir. 2004).

In our view, the jury was provided with sufficient guidance to consider

evidence regarding Mr. Zokari’s accent. The instructions conveyed the value of

circumstantial evidence, even pointing out that “[i]ntentional discrimination, if it

exists, is seldom admitted.” Aplt. App. Vol. III at 158. The connection between

Mr. Zokari’s nationality and his accent was clear from the trial testimony, and

Mr. Zokari’s counsel raised the issue repeatedly in closing argument. The district

court acted well within the proper limits of its discretion in determining that the

jury did not need the requested instruction to evaluate the evidence fairly.

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VI. CONCLUSION

We AFFIRM the judgment below.

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