                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          May 15, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    BIJAN D ANESHVA R,

              Plaintiff-Appellant,

     v.                                                   No. 06-3242
                                                   (D.C. No. 04-CV -2212-JW L)
    GRAPHIC TECHNOLOGY, IN C.,                              (D . Kan.)

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.




          Plaintiff Bijan Daneshvar, appearing pro se, appeals from the district

court’s entry of judgment in favor of defendant Graphic Technology, Inc. (GTI),

on his claims of discrimination and retaliation under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. W e have jurisdiction

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




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                  I. Background

      M r. Daneshvar, who is Iranian, worked for GTI since 1988. 1 GTI is in the

printing business. M r. Daneshvar’s precise job title is a matter of some

contention between the parties, but the district court found that he was a “press

assistant.” See R., Vol. II, Doc. 116 at 8-9. On June 20, 2003, he filed a charge

of discrimination with the Kansas Human Rights Commission (KHRC) alleging

that GTI had paid him a lower wage than similarly situated non-Iranian

employees. On December 22, 2003, GTI suspended M r. Daneshvar with pay

based on allegations that he had sexually harassed a female coworker over the

course of several weeks. GTI investigated the allegations and terminated his

employment by letter dated January 6, 2004.

      M r. Daneshvar filed a second charge with the KHRC alleging that GTI had

retaliated against him for filing the first charge by subjecting him to a heavier

workload and suspending him. The notarization on the second charge is dated

January 6, 2004, and the charge indicates it was received by the KHRC on

January 7. It also appears that M r. Daneshvar filed an amended charge that the

KHRC received on January 21, 2004, which added the termination of his



1
       In the district court, GTI asserted that M r. Daneshvar worked for GTI since
1998. Although immaterial to our disposition, this apparent discrepancy is
perhaps due to the fact that GTI had discharged him in 1997. M r. Daneshvar
successfully challenged that discharge as retaliatory, which in turn lead to his
reinstatement in GTI’s employ by court order filed in 1998. See Daneshvar v.
Graphic Tech., Inc., 40 F. Supp. 2d 1225 (D. Kan. 1998).

                                         -2-
employment as another instance of retaliation. However, as discussed in detail

below, he never submitted a copy of the amended charge to the district court, but

has provided this court with a copy of it.

      On February 19, 2004, the Equal Employment Opportunity Commission

(EEOC) sent M r. Daneshvar a right-to-sue letter in w hich it adopted the K HRC’s

findings; although the parties have not directed us to any documentation of those

findings in the record, they apparently were adverse to M r. D aneshvar.

M r. D aneshvar then filed his pro se complaint in this action on M ay 14. On

June 25, the KHRC sent M r. Daneshvar a letter stating that it was dismissing the

second charge because the pending lawsuit w as based on the same allegations.

On A ugust 4, 2004, the EEOC issued a second right-to-sue letter adopting those

findings.

      In this action, M r. Daneshvar alleged that GTI committed numerous acts of

discrimination or retaliation in violation of Title VII. Chief among those w ere

disparate workload, disparate wage, and w rongful discharge claims. He also

listed a number of other claims, ostensibly under Title VII: failure to promote;

discriminatory promotional training and promotion; conspiracy; forgery;

obstruction of justice; perjury; witness tampering; failure to explain reasons for

suspension; failure to pay wages at time of termination; failure to enroll him in

GTI’s COBRA plan in a timely manner; and failure to enroll him in a guest

membership health plan.

                                             -3-
      GTI filed a motion for summary judgment, which the district court granted

in part, denied in part, and retained under advisement in part. The court deemed

M r. Daneshvar’s disparate workload claim abandoned and granted summary

judgment to GTI on that claim. The court dismissed the remainder of the claims

for failure to exhaust administrative remedies with two exceptions— the disparate

wage and wrongful discharge claims. The court retained the disparate w age claim

because GTI had not moved for summary judgment on it. As to the wrongful

discharge claim, the court observed that although M r. Daneshvar had filed an

administrative charge concerning his suspension, a claim he had not asserted in

his complaint, it did not appear that he had filed an administrative charge relating

to his discharge. Because it could not determine whether M r. Daneshvar had

exhausted his administrative remedies as to his wrongful discharge claim, the

court concluded that it could not address GTI’s motion for summary judgment on

the merits of that claim. The court therefore ordered the parties to submit

supplemental briefing on whether it had subject matter jurisdiction over the

wrongful discharge claim.

      In his supplemental brief, M r. Daneshvar did not assert that he had filed a

charge with the KHRC that identified his discharge as retaliatory. Instead, he

argued that his discharge was reasonably related to his suspension such that the

January 7 charge, which alleged that his suspension was retaliatory, was sufficient

to satisfy the exhaustion requirement as to his discharge. The court rejected that

                                         -4-
argument, relying primarily on M artinez v. Potter, 347 F.3d 1208 (10th Cir.

2003), which it had discussed in its briefing order. The court concluded that

M r. Daneshvar’s discharge was a discrete employment action requiring

administrative exhaustion and finding that he had failed to exhaust. The court

therefore dismissed his wrongful discharge claim for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1).

      GTI then filed a second motion for summary judgment concerning the

remaining disparate wage claim. GTI presented evidence that one non-Iranian

press assistant who worked on the night shift received a higher rate of pay than

M r. Daneshvar because of a shift differential. GTI also presented evidence that

four other non-Iranian press assistants received higher pay because they had

accepted a demotion from higher-paying positions in order to survive a reduction

in force, and company policy was to pay such employees at the highest hourly

wage within the press assistant grade level. Concluding that M r. Daneshvar had

not presented sufficient evidence to raise a triable fact issue that GTI’s proffered

nondiscriminatory reasons were pretextual under the analytical framew ork

established by M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

district court granted summary judgment in favor of GTI on the disparate wage

claim. The court also rejected M r. Daneshvar’s argument that the affidavit of

GTI’s Vice President of Operations at the relevant time, Charlie Besch, which

GTI submitted in support of its second summary judgment motion, was

                                          -5-
inadmissible because it lacked foundation, and denied M r. Daneshvar’s motion to

strike the supporting affidavit of Jennifer Clary, GTI’s human resources manager,

and the exhibits attached to it. This appeal followed.

                                   II. Discussion

      M r. Daneshvar raises two issues on appeal in his opening brief, that the

district court erred by (i) dismissing his w rongful discharge claim for failure to

exhaust administrative remedies and (ii) considering the affidavits of M r. Besch

and M s. Clary as proper support for G TI’s second motion for summary judgment. 2

W e address each issue in turn, bearing in mind that we review M r. Daneshvar’s

pro se pleadings and other papers liberally and hold them to a less stringent

standard than those drafted by attorneys but do not act as his advocate. See Hall

v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      A. Dismissal of W rongful Discharge Claim

      “[E]xhaustion of administrative remedies is a jurisdictional prerequisite to

instituting a Title VII action in federal court.” Khader v. Aspin, 1 F.3d 968, 970

(10th Cir. 1993) (quotation omitted). Thus, a district court must dismiss an

unexhausted claim for lack of subject matter jurisdiction. See Shikles v.



2
      M r. Daneshvar raises no error in the district court’s order granting
summary judgment on his disparate workload claim and dismissing all his other
claims, except his disparate w age and wrongful discharge claims, for failure to
exhaust. Accordingly, we do not consider the court’s rulings on those issues. See
State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)
(holding that failure to raise an issue in an opening brief waives that issue).

                                         -6-
Sprint/United M gmt. Co., 426 F.3d 1304, 1318 (10th Cir. 2005) (considering

effect of failure to exhaust under Age Discrimination in Employment Act). “W e

review de novo the district court’s dismissal for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1), and review findings of jurisdictional facts, if any, for

clear error.” M aestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003).

      M r. Daneshvar contends that because his suspension and discharge

occurred close together in time, they were reasonably related and therefore he was

not required to file a separate charge concerning his discharge. W e disagree. In

M artinez, we noted that National Railroad Passenger Corp. v. M organ, 536 U.S.

101 (2002), had effected a fundamental change to the “continuing violation”

doctrine concerning unexhausted claims in Title VII actions. See Martinez,

347 F.3d at 1210. W e had previously held that “when an employee seeks judicial

relief for incidents not listed in his original charge to the EEOC, the judicial

complaint nevertheless may encompass any discrimination like or reasonably

related to the allegations of the EEOC charge, including new acts occurring

during the pendency of the charge before the EEOC.” Ingels v. Thiokol Corp.,

42 F.3d 616, 625 (10th Cir. 1994) (quotation and brackets omitted) (emphasis

added). 3 But we concluded in M artinez that M organ “abrogate[d] the continuing

violation doctrine . . . and replace[d] it with the teaching that each discrete



3
      M r. Daneshvar relied on Ingels in the district court when advancing his
“reasonably related” argument, although he has not cited to Ingels on appeal.

                                          -7-
incident of [discriminatory or retaliatory] treatment constitutes its own ‘unlawful

employment practice’ for which administrative remedies must be exhausted.”

M artinez, 347 F.3d at 1210 (citing M organ, 536 U.S. 101 at 114).

      In M organ, the Court specifically identified termination as a discrete

incident that is “easy to identify” and “separate[ly] actionable.” 536 U.S. at 114.

The Court also identified the plaintiff’s exhausted claim of wrongful suspension

as a discrete incident that was not barred by the time limitations contained in the

statute providing the exhaustion requirement. See id at 114-15. Thus, we easily

conclude that M r. Daneshvar’s suspension and discharge were separate, discrete

incidents, and that each required exhaustion. The fact that M r. Daneshvar’s

discharge occurred some two weeks after his suspension does not compel a

contrary result; the incidents remain discrete and separately actionable.

Exhaustion of each act was required in order to meet the twin purposes of the

exhaustion requirement— “to put an employer on notice of a violation prior to the

comm encement of judicial proceedings” and “to facilitate internal resolution of

the issue rather than promoting costly and time-consuming litigation.” M artinez,

347 F.3d at 1211. The charge M r. Daneshvar filed with the KHRC on January 7

concerning his suspension did not fulfill either purpose with respect to his

discharge. Rather, he was required to present his discharge claim to the KHRC

explicitly in order to exhaust his administrative remedies as to that claim.




                                         -8-
      Our conclusion that M r. Daneshvar’s January 7 charge did not exhaust his

administrative remedies as to his discharge claim, however, does not end matters

because he argues in the alternative that he filed an amended charge with the

KHRC but neglected to present it to the district court. In support of that

argument, he has attached a copy of a charge to his opening appellate brief. The

charge indicates that it was received by the KHRC on January 21, 2004, and that

it was an amendment to the January 7 charge. The amended charge adds

retaliatory discharge to the other acts M r. Daneshvar had set forth in the

January 7 charge. M r. Daneshvar contends that because of his pro se status, he

did not realize that the district court was unaw are of the amended charge. He also

has attached to his brief a copy of a letter dated August 15, 2006, and signed by

the executive director of the KHRC, indicating that a letter was sent to GTI on

January 21, 2004, notifying GTI of the amended charge.

      In response, GTI has filed a motion to strike the documents attached to

M r. Daneshvar’s opening brief as well as his argument that relies on them

because he did not present the documents or the argument to the district court.

M r. Daneshvar has not filed a response to the motion to strike. Ordinarily, we do

not consider evidence that was not before the district court when an appealed

ruling was made. See Boone v. Carlsbad Bancorporation, Inc., 972 F.2d 1545,

1549 n.1 (10th Cir. 1992). However, 28 U.S.C. § 1653 provides, in its entirety:

“Defective allegations of jurisdiction may be amended, upon terms, in the trial or

                                          -9-
appellate courts.” Thus, § 1653 is an exception to the general rule and permits

consideration of materials concerning defective jurisdictional allegations that are

presented for the first time on appeal. Accordingly, we deny GTI’s motion to

strike. 4 But as we explain, this is not an appropriate case in which to permit

amendment under § 1653.

      Section 1653 permits amendment of “incorrect statements about jurisdiction

that actually exists, and not defects in the jurisdictional facts themselves.”

Newman-G reen, Inc. v. Alfonzo-Larrain, 490 U .S. 826, 831 (1989). That is,

§ 1653 does not “empow er federal courts to amend a complaint so as to produce

jurisdiction where none actually existed before.” Id. The purpose of § 1653 is

“to avoid dismissals on technical grounds.” Brennan v. Univ. of Kan., 451 F.2d

1287, 1289 (10th Cir. 1971). “A n application under § 1653 is . . . addressed to

the discretion of the court, and usually the section is to be construed liberally to

permit the action to be maintained if it is at all possible to determine from the

record that jurisdiction does in fact exist.” John Birch Soc’y v. NBC, 377 F.2d

194, 198-99 (2d Cir. 1967).




4
       In its motion to strike, GTI also requests that we strike M r. Daneshvar’s
entire opening brief for its wholesale failure to comply with the requirements of
Fed. R. App. P. 28 and 32, in particular its failure to provide a table of contents, a
table of authorities, a statement of facts with appropriate record citations, a
jurisdictional statement, a statement of the applicable standards of review, and a
certificate of compliance with the type-volume requirements. W e deny the
motion as to this request as w ell.

                                         -10-
      W e have applied § 1653 on a number of occasions, usually to permit

amendment of defective allegations of diversity or federal-question jurisdiction.

See, e.g., Penteco Corp. Ltd. P’Ship— 1985A v. Union Gas Sys., Inc., 929 F.2d

1519, 1523 (10th Cir. 1991) (remanding for fact-finding on diversity of

citizenship); Martinez v. U .S. O lympic Comm., 802 F.2d 1275, 1280 (10th Cir.

1986) (treating complaint as amended by allegations made during oral argument

in district court concerning federal cause of action); Lopez v. Denver & Rio

Grande W. R.R., 277 F.2d 830, 832 (10th Cir. 1960) (granting motion to amend

notice of removal to properly allege diversity). Other circuits have permitted

amendment on appeal also to remedy defective allegations of standing. See, e.g.,

Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach,

469 F.3d 129, 132 (D.C. Cir. 2006).

      This case does not present the typical § 1653 consideration— whether there

have been sufficient allegations concerning a proper statutory basis for

jurisdiction or whether a party has standing. 5 But as we noted above, exhaustion

5
        Indeed, the only case we have uncovered that considered § 1653 in
connection with a right-to-sue letter is Gooding v. Warner-Lam bert Co., 744 F.2d
354 (3d Cir. 1984). In Gooding, the court cited § 1653 as additional authority for
its holding that the district court abused its discretion by not granting the plaintiff
leave to amend her complaint in order to allege the existence of a right-to-sue
letter issued after the complaint was filed. See id. at 358-59. The district court
had denied the motion to amend based on its view that issuance of the letter was a
jurisdictional prerequisite, a position that the Third Circuit rejected, see id.
at 358. The important distinction for our purposes is not that the Third Circuit
does not share this circuit’s view of the jurisdictional significance of the
                                                                         (continued...)

                                         -11-
of administrative remedies is a jurisdictional prerequisite to a Title VII suit in this

circuit, not merely a condition precedent. See Khader, 1 F.3d at 970. Allegations

of exhaustion, then, concern jurisdictional facts. Treated as a motion to amend

his complaint, M r. Daneshvar’s submission of his amended charge to this court is

therefore proper under § 1653 because it is an attempt to correct his earlier

“statements about jurisdiction that actually exists,” not an attempt to remedy

“defects in the jurisdictional facts themselves.” Newman-Green, Inc., 490 U.S.

at 831.

      Nonetheless, we conclude that this is not an appropriate case to exercise

our discretion under § 1653 and permit amendment on appeal. Permitting

appellate amendment of pleadings to satisfy jurisdictional requirements

“represents a narrow, case-specific, exception to our general rules of pleading.”

Sac & Fox N ation v. C uom o, 193 F.3d 1162, 1167 (10th Cir. 1999). Furthermore,

§ 1653 “presupposes that the parties, not suspecting a jurisdictional difficulty, had

no reasonable opportunity to cure it before the appeal.” Sarnoff v. Am. Home

Prods. Corp., 798 F.2d 1075, 1079 (7th Cir. 1986) (superseded on other grounds

as recognized in Hart v. Schering-Plough Corp., 253 F.3d 272, 274 (7th Cir.

2001)). Thus, “where a party has had an opportunity to seek to amend its



5
 (...continued)
right-to-sue letter, see Khader, 1 F.3d at 970, but that the plaintiff in Gooding had
presented the letter to the district court and sought leave to amend, whereas here
M r. Daneshvar did not.

                                          -12-
pleadings in the district court, it is not appropriate for that party belatedly to seek

leave to amend on appeal pursuant to . . . § 1653.” M ills v. M aine, 118 F.3d 37,

53 (1st Cir. 1997).

      In Sac & Fox Nation, we declined to construe an appellate brief as an

amendment under § 1653 because the jurisdictional argument that was raised in

the brief w as not presented in the district court as part of the plaintiffs’ response

to a motion to dismiss for lack of subject matter jurisdiction. See 193 F.3d

at 1167. W e distinguished M artinez v. United States Olympic Committee, where

we permitted amendment on appeal, on the ground that the appellant there had

identified the specific federal cause of action on which jurisdiction was based

during oral argument in the district court whereas the appellants in Sac & Fox

Nation had not presented their appellate theory in the district court. See id.

Other circuits have denied leave to amend on appeal under § 1653 because the

appellants had failed in the district court to correct a jurisdictional defect raised

in a motion to dismiss. See Dubach v. Weitzel, 135 F.3d 590, 593 (8th Cir. 1998);

M ills, 118 F.3d at 53-54; Sarnoff, 798 F.2d at 1079; John Birch Soc’y, 377 F.2d

at 197, 199; Joy v. Hague, 175 F.2d 395, 396 (1st Cir. 1949). As the First Circuit

stated in Joy, an appellant who has not corrected a jurisdictional problem w hen

invited by the district court to do so may not avail himself of § 1653 on appeal:

      Though appellants complain that the lower court erred in its
      conclusion that it had no jurisdiction, on the face of the record, the
      decision was correct,— indeed, unavoidable and mandatory upon the

                                          -13-
      part of the court. Appellants now seek to have us declare this correct
      judgment erroneous, not because of anything the trial court did, but
      because of something which they now seek to inject into the record
      and which was never before that court. There is no error in the
      record; if error is to appear it will have arisen after the cause has left
      the trial tribunal because we allow appellants to make a record of
      facts which they refused to make in the trial court. In other words,
      appellants, having refused to amend as the District Court invited
      them to do, thereby knowingly acquiescing in the proposed action of
      the court and tacitly consenting that it might enter the only order
      proper on the face of the record, come to this court asking leave to
      do what they failed to do below and attempt to create an error upon
      the part of the trial court because of matter never before that court.

Id. (citation omitted).

      As in the cited cases refusing to permit amendment under § 1653,

M r. Daneshvar had his opportunity to correct the jurisdictional problem in the

district court and he failed to do so. Although none of those cases involved a

pro se plaintiff, M r. Daneshvar cannot escape their reach based on his pro se

status. He was sophisticated enough to file his other charges in support of his

complaint. His rationale for failing to present the amended charge to the district

court— that he did not know the district court was unaware of it— defies logic and

credulity. The district court ordered supplemental briefs on exhaustion because it

did not know “whether a claim for his discharge ha[d] been the subject of a

charge of discrimination.” R., Doc. 99 at 4. The court’s statement, and the order

for additional briefing itself, clearly show that the court was unaware of the

amended charge. Furthermore, the court directly pointed M r. Daneshvar to

M artinez v. Potter, see id. at 3-4, which specifically undermined the very

                                         -14-
argument he chose to advance in the district court— that he did not need to file a

separate charge because his discharge was reasonably related to his

suspension— and the case on which he relied, Ingels. He made this argument with

the full knowledge that he in fact had filed an amended charge specifically

identifying his discharge as retaliatory. By choosing to rely on this argument

rather than presenting the amended charge to the district court, even as an

alternate basis for finding exhaustion, he manufactured the error of which he now

complains. Under the circumstances, we will not allow him to correct the

jurisdictional flaw in his case on appeal.

      In sum, M r. Daneshvar’s suspension and termination were discrete

incidents each of which required explicit exhaustion of administrative remedies.

The tem poral proximity of those two actions did not render them one discrete

incident for purposes of exhaustion. M r. Daneshvar may not amend his defective

allegations of jurisdiction under § 1653 by submitting to this court, for the first

time in this litigation, a copy of his amended charge evidencing that he presented

his w rongful discharge claim to the KHRC because he was given a reasonable

opportunity to present it to the district court. Based on the record before it, the

district court did not clearly err in its factual finding that M r. Daneshvar had not

exhausted his administrative remedies as to his w rongful discharge claim, and it

properly dismissed the claim for lack of subject matter jurisdiction.




                                          -15-
         B. Support for GTI’s Second Summary Judgm ent M otion

         In its memorandum and order granting summary judgment to GTI on the

disparate wage claim, the district court assumed that M r. Daneshvar had

established a prima facie case of discrimination under M cDonnell Douglas. The

court relied on the affidavits of M r. Besch, GTI’s Vice President of Operations at

the relevant time, and M s. Clary, GTI’s human resources manager, in finding that

GTI had met its burden to proffer a legitimate, nondiscriminatory reason why it

paid five non-Iranian press assistants more than M r. Daneshvar at the time he

filed his disparate-wage administrative charge in June 2003. In finding that

M r. Daneshvar had not shown pretext, the court rejected his argument that he was

not a press assistant and therefore not similarly situated to the comparator

employees. The court also rejected his procedural challenges to the Besch and

Clary affidavits.

         In his opening brief on appeal, M r. Daneshvar renews his challenges to the

district court’s reliance on the affidavits. W e review the district court’s

evidentiary rulings at the summary judgment stage for abuse of discretion. See

Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.

2006).

         W e need not address the issues M r. Daneshvar takes with the Besch

affidavit because that affidavit w as not integral to the district court’s disposition.

M s. Clary’s affidavit, while not a model of clarity, set forth legitimate,

                                          -16-
nondiscriminatory reasons that GTI paid the five non-Iranian press assistants

more than M r. Daneshvar. Specifically, when employees accept a transfer or

demotion to a lower-graded position within the company to avoid a layoff,

M s. Clary stated that it was GTI’s policy to attempt to pay them at the highest

level of pay within the lower-graded position. This policy accounted for the

higher wages paid to four of the other press assistants. She also stated that the

fifth press assistant was paid a higher w age due to a night-shift differential.

      M r. Daneshvar did not contest the accuracy of the information set forth in

the Clary affidavit, challenge the evidentiary admissibility of the documents

attached to it, or make any showing that GTI’s nondiscriminatory reasons were

pretextual. He only moved to strike the affidavit on the ground that it was

impermissibly attached to GTI’s reply brief, an argument he repeats on appeal,

and one that we reject. “Rule 56 neither authorizes nor forbids a reply brief.”

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). But “if the

court relies on new materials or argument in a reply brief, it may not forbid the

nonmovant from responding to these new materials.” Id. at 1165. This rule

applies to new materials submitted in support of a legal argument that has already

been made. See Doeble v. Sprint/United M gmt. Co., 342 F.3d 1117, 1139 n.13

(10th Cir. 2003).

      The district court relied on the Clary affidavit and the attached exhibits.

The evidence contained in those materials concerning the five non-Iranian press

                                          -17-
assistants was in further support of arguments made in GTI’s opening brief.

Because the district court did not prohibit M r. Daneshvar from responding to the

Clary affidavit, but in fact considered his motion to strike the affidavit, the

district court’s reliance on the Clary affidavit was proper, and the court did not

abuse its discretion in denying the motion to strike it. 6

                                   III. Conclusion

      The judgment of the district court is AFFIRM ED. M r. Daneshvar’s

opening brief, treated as a motion to amend pursuant to 28 U.S.C. § 1653, is

denied. GTI’s motion to strike is denied as moot.


                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




6
       In his reply brief, M r. Daneshvar asserts for the first time on appeal that
because he was a production assistant, not a press assistant, he was compared to a
category of employees w ith whom he was not similarly situated. In contrast to
the Clary affidavit submitted with GTI’s summary judgment reply brief, which
presented further evidence in support of an argument made in GTI’s opening
brief, M r. Daneshvar’s appellate reply brief raises a new issue— an alternate
ground for reversing the district court’s decision. “This court does not ordinarily
review issues raised for the first time in a reply brief.” Stump v. Gates, 211 F.3d
527, 533 (10th Cir. 2000). Accordingly, M r. Daneshvar has waived this issue.

                                          -18-
