                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 24, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ARSHAD AZIM,

      Plaintiff - Appellant,

v.                                                          No. 16-3235
                                                  (D.C. No. 2:13-CV-02267-DDC)
TORTOISE CAPITAL ADVISORS, LLC;                              (D. Kan.)
H. KEVIN BIRZER; MICHELLE KELLY;
MARTY BICKNELL; TABITHA
BOISSONNEAU; MARINER
HOLDINGS, LLC; FAMBRAN
ENTERPRISES,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
                  _________________________________

      Plaintiff-Appellant Arshad Azim appeals the district court’s grant of summary

judgment in favor of Defendants-Appellees Tortoise Capital Advisors, LLC, H.

Kevin Birzer, Michelle Kelly, Marty Bicknell, Tabitha Boissonneau, Mariner

Holdings, LLC, and Fambran Enterprises in this employment law dispute. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
                                           I

      Arshad Azim is an experienced financial services professional, having gained

experience at firms in Chicago and Kansas City since 1998. Vol. V at 1034–36. He

was born in Kashmir, immigrated to the United States to attend college in Michigan,

and then spent approximately 13 years in the financial services industry in Chicago.

Id. In 2011, he accepted a position as the Vice President of Business Development at

Tortoise and moved to Kansas City to be closer to family. Id. at 1036. Azim was the

only Vice President in the Business Development department at Tortoise, and he

reported directly to Michelle Kelly, the Director of that department. See id. at 1075.

      After working at Tortoise for eight months, Azim found his interactions with

Kelly had become increasingly difficult, and he began to view his position with

Tortoise as “unbearable.” See id. at 1101–02. By Monday, April 16, 2012, he had

concluded that he could no longer take it because he felt “humiliated” and had “lost

respect” for himself. Id. at 1103, 1109. The stress of the situation had reached such

a point that he had “dysentery and [a] headache,” and he was unable to attend work.

Id. at 1044. He stated in an email to the human resources manager the following day

that he had been harassed by Kelly for a “7-month period,” was in a “hostile work

condition,” and felt “threatened at work!” Vol. II at 429–30.

      Azim continued to interact with Tortoise’s human resources department

several times in the ensuing days. Vol. I at 95; Vol. II at 405. On Friday, April 20,

2012, Azim and his counsel met with the human resources team at Tortoise and Azim

elaborated on his concerns regarding Kelly and the Tortoise management team. Vol.

                                           2
II at 417–55. He also suggested ways that Tortoise could alleviate or resolve those

issues. Id. at 458. Ten days later, Azim met with the Senior Managing Director of

Tortoise, who informed Azim that Tortoise was terminating Azim’s employment

because of “distinct differences in how the company should operate.” Id. at 419–21.

      A little more than a year later, Azim filed this action. Vol. I at 3. Although

Azim was represented by counsel when he met with Tortoise’s human resources

manager prior to his termination, he chose to proceed pro se before the district court.

Vol. VI at 1450–52. After multiple amendments, Azim’s final and controlling

complaint alleged violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-2(1)

(hereinafter “Title VII”), 15 U.S.C. § 78u-6(h)(1)(A)(i), and 42 U.S.C. § 1985. Vol. I

at 48–49.

      The parties then conducted discovery and prepared for summary judgment

and/or trial. As part of that process, Azim and Tortoise exchanged drafts and jointly

prepared a proposed Pretrial Order, which the district court adopted and entered on

April 20, 2015. Id. at 108–31. The Pretrial Order stated that it “supersede[d] all

pleadings and control[led] the subsequent course of this case.” Id. at 108. In the

Pretrial Order, Azim’s claims against the Defendants were:

                                Count I
             Defendants terminated plaintiff’s employment in violation
             of Section 1981 by discriminating against him based on
             racial background/ethnicity.

                                Count II
             Defendants terminated plaintiff’s employment in violation
             of Title VII, specifically, by discriminating against him
             based on religion.

                                           3
                               Count III
             Defendants terminated plaintiff’s employment in violation
             of Dodd-Frank, specifically, by retaliating against him
             with abject disregard to the whistleblower protection the
             Act affords.

                                Count IV
             Defendants interfered with plaintiff’s civil rights by
             obstructing justice in violation of Section 1985(3).

Id. at 121–22.

      The Defendants subsequently filed a motion for summary judgment, which the

district court granted. Vol. VI at 1324–67. In its order granting Defendants’

summary judgment motion, the district court concluded that the Pretrial Order

controlled the scope of Azim’s claims. Id. at 1363–64. The district court held that

Azim’s Title VII or § 1981 retaliation claims were not preserved because they were

not included in the Pretrial Order. The district court granted the Defendants

summary judgment on those claims.1 Id. The district court also held that Azim had

not demonstrated a triable issue of fact regarding any of his preserved claims, and

granted summary judgment in the Defendants’ favor on those claims as well. This

timely appeal follows.




      1
        In the alternative, the district court held that Azim’s retaliation claim—if he
had stated it—would have failed under the McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), burden-shifting analysis. Vol. VI at 1364.
                                           4
                                            II

       On appeal, Azim only argues that the district court erred in granting summary

judgment on his Title VII and § 1981 retaliation claims, see Aplt. Reply Br. at vi,2

which the district court held Azim had waived by omitting those claims from the

Pretrial Order. “Because the district court is in the best position to interpret its

pretrial order, our standard of review on appeal is abuse of discretion.” Tyler v. City

of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997).

       The Pretrial Order entered in this case was based upon Federal Rule of Civil

Procedure 16(e), which states:

              The court may hold a final pretrial conference to formulate
              a trial plan, including a plan to facilitate the admission of
              evidence. The conference must be held as close to the start
              of trial as is reasonable, and must be attended by at least
              one attorney who will conduct the trial for each party and
              by any unrepresented party. The court may modify the
              order issued after a final pretrial conference only to
              prevent manifest injustice.

       The pretrial order that is finalized following a pretrial conference “measures

the dimensions of the lawsuit, both in the trial court and on appeal.” Tyler, 118 F.3d

at 1403 (citation omitted). That is, if a claim is omitted from the pretrial order, that

claim is “not part of the case before the district court.” Gowan v. United States Dep’t

of Air Force, 148 F.3d 1182, 1192 (10th Cir. 1998).

       Azim admits that he did not specifically include Title VII or § 1981 retaliation

claims in his list of claims in the Pretrial Order. Aplt. Br. at 45. But he argues that

       2
         At oral argument, Azim’s counsel reiterated that Azim is only challenging
the district court’s decision regarding the Title VII and § 1981 retaliation claims.
                                             5
by including references to Title VII and § 1981 discrimination he cured that

deficiency. Yet, the Supreme Court has held that “antidiscrimination and

antiretaliation provisions are indeed conceptually distinct, and serve distinct

purposes.” Gomez-Perez v. Potter, 553 U.S. 474, 495 (2008). Therefore, Azim

needed to explicitly set out a retaliation claim to preserve retaliation as a pending

claim, and his reference to Title VII and § 1981 discrimination was insufficient.

      Azim also argues that he specifically referenced his retaliation claims

elsewhere in the Pretrial Order. His factual contentions, as set forth in the Pretrial

Order, contain two references to retaliation, but both refer to claims that Azim is not

pursuing in this appeal. The first, that Azim “was retaliated against after reporting”

misrepresentations, fraudulent representations, and false Security and Exchange

Commission filings, related to Azim’s “Count III,” which includes a cause of action

under the Dodd-Frank Act. Vol. I at 113; see also Vol. VII at 1571 (the district court

found that this sentence “clearly references [Azim’s] Dodd-Frank Act retaliation

claim, not a Title VII or § 1981 retaliation claim.”).

      Azim’s second reference to retaliation in his factual contentions is more

ambiguous. It alleges that, “[i]n retaliation, to cover up the plethora of intentionally

contrived illegalities, [Azim] was tampered with as a witness (by obstructing justice

before, during and after he was fired) by proactively seeking his attendance—under

false pretenses—at the meeting during which he was threatened to sign a release

agreement and then fired.” Vol. I at 113. In context, though, the reference to

“obstructing justice” indicates this sentence refers to Azim’s § 1985(3) claim, which

                                            6
Azim set out as “Count IV” in the Legal Claims section: “Defendants interfered with

plaintiff’s civil rights by obstructing justice in violation of Section 1985(3).” Vol. I at

122. We agree with the district court’s conclusion that the two sentences Azim included

in the factual contentions of the Pretrial Order were “mere references to retaliation,

without more, [and] fail to demonstrate that plaintiff asserted a Title VII or § 1981

retaliation claim.” Vol. VII at 1571. We also note that these references to retaliation in

relation to Azim’s Dodd-Frank and § 1985(3) counts did not alert Azim to the need to

identify his Title VII and § 1981 counts as retaliation claims in the Legal Claims

section of the Pretrial Order.

       Further, Azim and Tortoise exchanged drafts of the Pretrial Order. In those

drafts, Tortoise included two affirmative defenses to Azim’s retaliation claims. Yet,

those references did not cause Azim to include Title VII or § 1981 retaliation claims

in the Legal Claims section of the Pretrial Order. Azim also had the opportunity to

discuss the Title VII and § 1981 retaliation claims at the April 2, 2015 pretrial

conference. See Vol. VII at 1486–1537. Azim did not identify those claims at that

time, or alert the district court in any way that he intended to pursue Title VII and

§ 1981 retaliation claims.

       Finally, Azim argues that he could not be expected to know the difference

between discrimination and retaliation because he was a pro se litigant—albeit a very

sophisticated pro se litigant. It is true that “however inartfully pleaded” a pro se

filing may be, the court must use “less stringent standards than formal pleadings

drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, this

                                              7
court has also held that “it is [not] the proper function of the district court to assume

the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). If Azim sought to include Title VII and § 1981 retaliation claims it

was his responsibility to state those claims and not rely on the district court to

propose potential claims on his behalf.

      We conclude that the district court did not abuse its discretion when it held

that Azim had not preserved his Title VII and § 1981 retaliation claims because he

failed to include them in the Pretrial Order.

                                           III

      The district court’s grant of summary judgment to the Defendants is affirmed.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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