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

                           FOR THE TENTH CIRCUIT                     September 17, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GUSTAVO M. JUAREZ-GALVAN,

             Plaintiff - Appellant,

v.                                                        No. 14-3027
                                              (D.C. No. 5:13-CV-04046-SAC-KGS)
UNITED PARCEL SERVICE, INC.,                                (D. Kan.)

             Defendant - Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, PORFILIO, and MATHESON, Circuit Judges.


      Gustavo Juarez-Galvan appeals the district court’s order dismissing his claims

of employment discrimination, retaliation, and hostile work environment because

they should have been included in a prior action Mr. Juarez-Galvan filed against his

employer, see Juarez-Galvan v. United Parcel Serv., Inc., No. 13-3118, 2014 WL

3585735 (10th Cir. July 22, 2014) (unpublished) (Juarez-Galvan I). The district

court concluded that Mr. Juarez-Galvan’s attempt to bring additional claims in a

*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
second lawsuit was improper claim-splitting. We exercise jurisdiction under

28 U.S.C. § 1291 and affirm.

      At all times relevant to Juarez-Galvan I and this case, Mr. Juarez-Galvan was

employed by United Parcel Service (UPS). He filed Juarez-Galvan I on November 2,

2010, alleging he was denied a promotion based on his national origin, in violation of

Title VII, see 42 U.S.C. §§ 2000e to 2000e-17. While Juarez-Galvan I was pending,

Mr. Juarez-Galvan filed a charge with the EEOC claiming discrimination, retaliation,

and a hostile work environment on the basis of national origin. This charge was filed

on November 3, 2011, and alleged Title VII violations occurring on November 2,

2009, November 3, 2009, June 15, 2010, and July 15, 2011.

      On the day after the EEOC charge was filed, November 4, 2011, the district

court held a scheduling conference in Juarez-Galvan I during which the court

modified the scheduling order to permit Mr. Juarez-Galvan to amend his complaint in

Juarez-Galvan I after he received a right-to-sue letter from the EEOC on his

discrimination, retaliation and hostile-work-environment claims. A right-to-sue letter

is a jurisdictional prerequisite to a Title VII lawsuit. Bertsch v. Overstock.com,

684 F.3d 1023, 1029 (10th Cir. 2012). The EEOC issued the right-to-sue letter on

January 23, 2013, while Juarez-Galvan I was still pending, but Mr. Juarez-Galvan

did not seek leave to amend his complaint to add the additional claims. On April 8,

2013, the district court granted summary judgment in favor of UPS in




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Juarez-Galvan I. On April 23, 2013, Mr. Juarez-Galvan filed the underlying lawsuit

alleging national-origin discrimination, retaliation, and hostile work environment.

      The district court discussed the law applicable to claim-splitting, noting that

the claims Mr. Juarez-Galvan raised in this case arose from the same employment

relationship as Juarez-Galvan I, three of the four events he relies on in this case had

occurred before he filed his complaint in Juarez-Galvan I, and he did not seek leave

to amend his complaint in Juarez-Galvan I after he received the right-to-sue letter.

The court observed that a litigant awaiting a right-to-sue letter before filing suit has

at least five options, including requesting the right-to-sue letter before expiration of

the 180-day waiting period, as authorized by regulation, or asking the district court to

stay the first case pending receipt of the right-to-sue letter. The court remarked that

litigants in similar circumstances “have a very strong case for requesting a stay.”

Aplt. App. at 104. Yet Mr. Juarez-Galvan did not request a stay, even though the

district court had indicated its willingness to combine all claims in Juarez-Galvan I

by amending the scheduling order to allow him to amend the complaint after

receiving the right-to-sue letter for his discrimination and other claims. The court

further noted that Mr. Juarez-Galvan’s attempt to bring two separate lawsuits

imposed a burden on the court. Accordingly, the court granted UPS’s motion to

dismiss.

      Mr. Juarez-Galvan challenges the district court’s determination that he was

required to include in Juarez-Galvan I his discrimination and other claims. He


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asserts that he was not able to seek leave to amend the complaint in Juarez-Galvan I

because the acts of discrimination and retaliation at issue here occurred after he filed

his EEOC charge for the failure-to-promote claim alleged in Juarez-Galvan I. He

points out that the right-to-sue letter in this case was issued January 23, 2013, after

the summary judgment briefing was closed in Juarez-Galvan I.

             The rule against claim-splitting requires a plaintiff to assert all of
      [his] causes of action arising from a common set of facts in one
      lawsuit. . . . We review for abuse of discretion when a district court’s
      dismissal for claim-splitting was premised in significant measure on the
      ability of the district court to manage its own docket, and will reverse
      the district court only if we find its judgment exceeded the bounds of
      the rationally available choices given the facts and the applicable law in
      the case at hand.

Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011) (citations and internal

quotation marks omitted).

      Although Mr. Juarez-Galvan argues that he could not have amended his

complaint in Juarez-Galvan I to include the claims brought here, he does not address

the district court’s discussion and authorities stating that (1) he could have requested

a stay of Juarez-Galvan I to allow him to exhaust administrative remedies for his

discrimination and other claims, or (2) he could have requested a right-to-sue letter

from the EEOC in order to receive it earlier. Nor does he explain why he could not

have adopted the other strategies the court discussed to avoid claim-splitting where

claims arose or matured at different times.

      We have carefully reviewed the parties’ appellate materials, the record

on appeal, and the relevant legal authority. We cannot improve upon the district

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court’s well-reasoned analysis. In addition, we do not find that the judgment

exceeded the bounds of the rationally available choices. Therefore, we affirm the

judgment for substantially the same reasons stated in the district court’s order dated

January 8, 2014.

                                               Entered for the Court


                                               John C. Porfilio
                                               Circuit Judge




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