                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                        _________________

                                            No. 01-10928

                                        (Summary Calendar)
                                        _________________


                MELVIN STEVE PRESTON,


                                                Plaintiff - Appellant,

                versus


                GOOD NATURE CAFE; DAKA INTERNATIONAL, INC.,


                                                Defendants - Appellees.



                            Appeal from the United States District Court
                                For the Northern District of Texas
                                      USDC 3:00-CV-2805-X

                                            March 1, 2002


Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

        Melvin Preston filed suit against the Good Nature Cafe and Daka International, Inc.

(collectively, “Daka”), alleging racial discrimination in violation of Title VII of the Civil Rights Act




        *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of 1964. 42 U.S.C. § 2000e et seq. (2000). In response, Daka filed a motion to dismiss for failure

to state a claim upon which relief can be granted pursuant to FED. R. CIV. P. 12(b)(6). The district

court subsequently dismissed two of Preston’s Title VII claims for failure to exhaust administrative

remedies and also dismissed Preston’s remaining claim for lack o f standing. On appeal, Preston

renews the claims that he filed in the district court and raises several new grounds for relief under

Title VII. We conclude that the district court correctly granted Daka’s motion to dismiss.

       Preston filed a complaint with the Equal Employment Opportunity Commission (EEOC)

against Daka, his employer. Preston alleged that he was paid less than white employees with similar

or less experience and that African-American applicants generally were being denied employment

because Daka would not allow them to fill out employment applications. The EEOC investigated his

claims and issued Preston a right to sue letter. Preston then filed suit against Daka. In the district

court, Preston pursued his claim that African-American applicants were not permitted to fill out

applications for employment. In addition, he alleged that African-American employees were

terminated because they did not “fit the rich white clientele” Daka sought to attract, and that those

employees had their notices of separation coded with the letter “B,” allegedly standing for black.

       Title VII requires that parties exhaust administrative remedies before instituting a suit in

federal court. 42 U.S.C. § 2000e-5(f)(1) (2000); Nat’l Ass’n of Gov’t Employees v. City Pub. Serv.

Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). This requirement is jurisdictional and cannot

be waived. Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990) (per curiam). Preston

must exhaust his administrative remedies on each of his claims before seeking review in federal court.



Randel v. U.S. Dept. of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (explaining that a “racial


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discrimination claim is separate and distinct from [a] reprisal claim, and accordingly, [the

complainant] must exhaust his administrative remedies on that claim before seeking review in federal

court”).

        Preston raised for the first time in the district court his claim that African-American employees

were terminated because they did not “fit the rich white clientele,” and that African-American

employees who were terminated had t he letter “B” listed on their employment forms. Although

Preston did not raise these specific factual allegations before the EEOC, he did assert racial

discrimination claims in front of that body. We have held that the scope of an EEOC complaint

should not be strictly interpreted. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir.

1970). Instead, “a judicial complaint filed pursuant to Title VII may encompass any kind of

discrimination like or related to allegations contained in the charge and growing out of such allegation

during the pendency of the case before the [EEOC].” Id. at 466 (quoting King v. Georgia Power

Co., 295 F. Supp. 943, 947 (N.D. Ga. 1968). In other words, the scope of the exhaustion of

administrative remedies is coextensive with “the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of discrimination.” Id.

        Here, it is possible that Preston’s initial allegations of racial discrimination would have lead

to an EEOC investigation of Daka’s potentially discriminatory employment practices. Thus,

Preston’s claims of racially discriminatory termination and of racially-coded forms may have been

administratively exhausted. Nevertheless, we need not decide this issue because Preston has not

challenged the district court’s conclusion that his claims were not administratively exhausted on

appeal. We have consistently held that a party who fails to contest a trial court’s ruling in its opening

brief on appeal waives any error regarding that ruling. See, e.g., Procter & Gamble Co. v. Amway


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Corp., 242 F.3d 539, 555 (5th Cir. 2001) (holding that an appellant abandons all issues not raised and

argued in its initial brief on appeal). By failing to address the district court’s conclusion that he had

failed to exhaust his administrative remedies with respect to his racial discrimination claims, Preston

has abandoned those arguments.

        Preston did administratively exhaust his claim that Daka prevented other African-Americans

from filling out employment applications. Nevertheless, this claim must be dismissed because he lacks

standing to assert it. A plaintiff who merely asserts an injury suffered by third parties does not have

standing as to that claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (explaining

that “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the

party seeking review be himself among the injured.”). Daka employed Preston, and thus he is not

a member of the class of persons allegedly denied the opportunity to apply for employment.

Accordingly, he has not suffered any injury. Thus, the district court properly dismissed this claim for

lack of standing.

        Preston also raises several new arguments on appeal. Because Preston did not assert these

claims before the EEOC or in the district court, we will not consider them. See Little v. Liquid Air

Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (stating that the court i s “limited to the

summary judgment record and the plaintiffs may not advance on appeal new theories or raise new

issues not properly before the district court to obtain reversal of the summary judgment”); 11 JAMES

WM. MOORE ET. AL., MOORE’S FEDERAL PRACTICE ¶ 56.41[3][c] (3d ed. 1997) (“As a general rule,

arguments and evidence not presented in the district court in connection with a summary judgment

motion are waived on appeal and the appellate court will be unable to consider these materials in its

review of the district court’s decision.”).


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For the foregoing reasons, the decision of the district court is AFFIRMED.




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