                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          May 4, 2006
                          FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

    SALVATORE GIOVE,

             Plaintiff-Appellant,

    v.                                                 No. 05-1469
                                            (D.C. No. 04-CV-1567-WYD-CBS)
    UNITED STATES DEPARTMENT                            (D. Colo.)
    OF TRANSPORTATION,

             Defendant-Appellee,

    and

    NATIONAL AIR TRAFFIC
    CONTROLLERS ASSOCIATION,

             Defendant.


                          ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and BRORBY, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      Plaintiff Salvatore Giove appeals from the order of the district court

granting summary judgment to defendant United States Department of

Transportation on his claims of harassment, hostile work environment, disparate

treatment, and termination on the basis of national origin. 1 Our jurisdiction arises

under 28 U.S.C. § 1291, and, after applying the same legal standard as the district

court when ruling on a motion for summary judgment, Simms v. Okla. ex rel.

Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999), we affirm.

Background

      Mr. Giove is a naturalized American citizen of Italian heritage. After

several years as an employee of the Federal Aviation Administration (FAA),

Mr. Giove was fired from his job as an air traffic controller on the grounds that he

had lied to an FAA investigator, created a disturbance to FAA personnel and

operations, and misused government property, information, and records.

Mr. Giove’s conduct occurred in connection with his decision to provide certain

documents and information to the plaintiffs’ counsel in a pending lawsuit arising

out of the crash of a charter flight near Grand Junction, Colorado. That suit and

the present matter were both heard by the same federal district court judge.



1
       Defendant National Air Traffic Controllers Association was dismissed from
the district court action early on and did not participate in this appeal.

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      Mr. Giove’s termination became final on September 4, 1998. Later that

month, on September 29, 1998, Mr. Giove filed a grievance through his union, the

National Air Traffic Controllers Association, pursuant to the applicable collective

bargaining agreement (CBA). The CBA specifically provided that, in matters

relating to alleged discriminatory practices, an aggrieved employee had the option

to proceed through the established grievance procedure or to utilize any other

procedure available in law or regulation, but not both. This provision of the CBA

mirrors a similar provision in 5 U.S.C. § 7172(d), which requires an employee in

Mr. Giove’s position to elect between pursuing a grievance or filing an EEO

complaint.

      Mr. Giove’s grievance was denied by an arbitrator, and that denial was

affirmed in Giove v. Department of Transportation, 230 F.3d 1333, 1343-44

(Fed. Cir. 2000) (finding arbitrator’s rejection of Giove’s claims under the

Whistleblower Protection Act to be in accordance with law and supported by

substantial evidence and “affirm[ing] the arbitrator’s decision to uphold the

removal of Giove”).

      On November 18, 1998, while his grievance was proceeding, Mr. Giove

filed a written EEO complaint with the FAA. The complaint stated that

Mr. Giove’s termination had been the result of illegal discrimination against him




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on the basis of his Italian origin. R. Doc. 94, Attach. A2. An attached statement

described various occurrences which Mr. Giove viewed as discriminatory.

      The FAA dismissed the EEO complaint, finding that Mr. Giove had elected

to proceed via the grievance procedure on his discriminatory termination claim,

and that any claims based on other acts were untimely. The EEOC denied both

Mr. Giove’s appeal and his motion for reconsideration. Mr. Giove then filed his

complaint in federal district court.

District Court Proceeding

      When Mr. Giove realized that the same district judge who had presided

over the suit regarding the Grand Junction charter crash would preside in this

matter, he filed a motion to recuse. In that motion, he alleged that he had

corresponded with the judge relative to the disposition in the previous case and

that the judge “ha[d] knowledge of issues indirectly related to my removal from

the Federal Aviation Administration concerning alleged misconduct.” Id.

Doc. 11. Mr. Giove expressed the opinion that it was inconceivable the judge

“could remain objective and impartial throughout the trial and eventually express

an unbiased Order and Opinion.” Id. In response to this motion, the judge

ordered Mr. Giove to submit evidence to support it, which Mr. Giove refused to

do. The court then denied the motion to recuse. Id. Doc. 37.




                                         -4-
      On September 16, 2005, the district court granted defendant’s motion for

summary judgment finding that (1) all claims except the discriminatory

termination claim were unexhausted; (2) the discriminatory termination claim was

barred because Mr. Giove had previously elected to proceed via the CBA

grievance process; and (3) Mr. Giove’s claim of pretext was moot. Mr. Giove

takes exception to all of these conclusions and the court’s refusal to recuse.

Analysis

      Recusal

      As mentioned above, Mr. Giove’s basis for his motion to recuse was his

belief that, because of correspondence between him and the judge relative to a

former lawsuit, the judge would be unable to preside fairly over his employment

action. Mr. Giove, however, refused to provide the court with copies of the

alleged correspondence, arguing that the court should already have access to those

documents from the previous suit.

      The court, however, had no obligation to retain this extra-judicial

correspondence. Furthermore, Mr. Giove’s refusal to provide the relevant

documents left his motion for recusal unsupported. 2 But even if the relevant



2
      In his reply brief, Mr. Giove relies on his pro se status to excuse his
shortcomings with regard to the recusal motion. Mr. Giove’s pro se status,
however, does not exempt him from complying with the applicable rules of
procedure. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

                                         -5-
evidence had been submitted, recusal was still inappropriate. Any knowledge the

judge presumably acquired through prior judicial proceedings cannot be the basis

for recusal absent a showing of “deep-seated favoritism or antagonism that would

make fair judgment impossible,” which Mr. Giove does not make. Liteky v.

United States, 510 U.S. 540, 555 (1994).

      Exhaustion

      In the district court, Mr. Giove addressed this issue in one paragraph

entitled, “Plaintiff May Maintain His Title VII Claim Based on His Termination.”

R. Doc. 98 at 3. The ensuing argument laid out the legal requirements for

administrative exhaustion and concluded, “[d]efendant therefore contends that

plaintiff’s claim of discriminatory termination is not barred . . . .” Id. at 4.

On appeal, Mr. Giove advances arguments ranging from evidence establishing the

date he first contacted an EEO counselor, to arguments presumably added to

bolster some unarticulated claim for estoppel or for equitable tolling. See

Opening Br. at 9-14. Because Mr. Giove failed to advance any of these

arguments to the district court, we will not consider them for the first time on

appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc.,

100 F.3d 792, 798-99 (10th Cir.) amended on other grounds, 103 F.3d 80

(10th Cir. 1996).

      5 U.S.C. § 7121(d)


                                           -6-
      As an employee of the FAA, Mr. Giove was covered under both the Civil

Service Reform Act of 1978 and the agency’s CBA with his union, the latter of

which permitted covered employees to file grievances alleging unlawful

discrimination. Mr. Giove’s appeal rights, therefore, are governed by 5 U.S.C.

§ 7121(d), which provides, inter alia, that “[a]n aggrieved employee affected by a

prohibited personnel practice [including discrimination based on national origin]

which also falls under the coverage of the negotiated grievance procedure may

raise the matter under a statutory procedure or the negotiated procedure, but not

both.” (emphasis added). In other words, while Mr. Giove could technically file a

grievance with his union and also file an EEO complaint, as he did here, he could

not expect to be successful in pursuing both remedies.

      The district court determined that Mr. Giove was barred from bringing this

discriminatory termination action because he had previously filed a grievance

involving the same matter under the CBA. Mr. Giove insists this suit does not

involve the same “matter” that had been considered in his grievance proceeding.

We disagree and affirm the district court.

      As mentioned above, in his grievance proceeding, Mr. Giove did not base

his challenge on illegal discrimination, arguing instead that the actions he took

which eventually led to his termination were protected under the Whistleblower

Protection Act. Mr. Giove argues that, because the present action alleges illegal


                                         -7-
termination as a result of national-origin bias, it involves a different “matter” than

the grievance proceeding and should be allowed to go forward unhindered by

§ 7121(d).

      Mr. Giove construes the term “matter” too narrowly. Because both the

grievance proceeding and this case involve the termination of his employment

with the FAA, they both involve the same “matter” for purposes of the statute.

In Bonner v. Merit Systems Protection Board, 781 F.2d 202, 204-05 (Fed. Cir.

1986), the court interpreted the term “matter” to refer to the underlying

government action which precipitated the complaint. Bonner was followed in

Macy v. Dalton, 853 F. Supp. 350, 353 (E.D. Cal. 1994), where the court

concluded that “the ‘matter’ to which § 7121(d) refers is not plaintiffs’

discrimination claim, but rather is plaintiffs’ termination . . . .” The fact that

Mr. Giove advanced a different legal theory in his EEO complaint from the one

relied upon in his grievance does not insulate him from the operation of

§ 7121(d). See Rosell v. Wood, 357 F. Supp. 2d 123, 130 (D.D.C. 2004).

      This reading is supported by the relevant regulation, which provides:

      An aggrieved employee who files a grievance with an agency whose
      negotiated agreement permits the acceptance of grievances which allege
      discrimination may not thereafter file a complaint on the same matter . . .
      irrespective of whether the agency has informed the individual of the need
      to elect or of whether the grievance has raised an issue of discrimination.




                                           -8-
29 C.F.R. § 1614.301(a) (emphasis added). This regulation also disposes of

Mr. Giove’s contention that, because he contacted an EEO counselor well before

he filed his formal complaint, the EEO complaint came first and should be

allowed to proceed. “An election to proceed [with the statutory EEO procedure]

is indicated only by the filing of a written complaint.” Id.; see also Rosell,

357 F. Supp. 2d at 130. Mr. Giove does not dispute that his formal written EEO

complaint was not filed until after the initiation of his grievance procedure.




                                          -9-
      Other matters

      Mr. Giove makes no argument in support of his claim that the district court

erroneously denied his motion to amend his complaint. We therefore do not

address this point. See Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir.

1992) (holding that a party must support its argument with legal authority).

Additionally, the motion to amend was denied by the magistrate judge, and

Mr. Giove filed no objections to that determination in the district court, thereby

waiving further consideration on appeal. See Ayala v. United States, 980 F.2d

1342, 1352 (10th Cir. 1992). Because Mr. Giove’s complaint was properly

dismissed, it is unnecessary to address his arguments regarding pretext and an

increase in the amount of damages. The motion to this court relative to that latter

matter is DENIED.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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