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

                             FOR THE TENTH CIRCUIT                         June 13, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JOHN PAUL JONES,

      Plaintiff - Appellant,

v.                                                         No. 16-2234
                                                (D.C. No. 1:15-CV-00594-JAP-LF)
THOMAS E. PRICE, Secretary,                                 (D. N.M.)
Department of Health and Human
Services,*

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT**
                         _________________________________

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
                  _________________________________

      John Paul Jones appeals from the district court’s grant of summary judgment

to the Secretary of the Department of Health & Human Services (HHS) on his claims

of age discrimination in violation of the Age Discrimination in Employment Act


      *
        Pursuant to Fed. R. App. P. 43(c)(2), Thomas E. Price has been substituted
for Sylvia Matthews Burwell as Secretary of the Department of Health and Human
Services.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
(ADEA), 29 U.S.C. §§ 621-634. He also challenges the district court’s denial of his

motion for protective order and sanctions. We affirm the challenged judgment and

order of the district court.

                                   BACKGROUND

       In 2009, HHS issued vacancy announcements for seven positions with the

Centers for Disease Control and Prevention (CDC). Three of the positions were for

Public Health Advisors, and four were for Health Communications Specialists. All

seven of these positions were based in the United States—six in Atlanta, Georgia,

and one in Lansing, Michigan. Each position required one year of specialized

experience at or equivalent to the GS-11 or GS-12 level, defined as experience that

had equipped the applicant to successfully perform the duties of the position.

       Mr. Jones, who was sixty-four years old at the time, submitted an online

application for each of the seven positions. Human Resources (HR) specialists

reviewed his applications for each position. Each HR specialist concluded that he

was not a qualified applicant because he lacked the required year of specialized

experience. As a result, Mr. Jones’s name was not forwarded to the selecting official

for further consideration for any of the seven positions.

       Mr. Jones filed a complaint of employment discrimination with HHS, alleging

that the non-referrals were due to age discrimination. HHS investigated and held a

hearing before an administrative law judge (ALJ). It issued a final decision finding

no discrimination. Mr. Jones appealed to the Equal Employment Opportunity

Commission (EEOC), which affirmed the HHS decision. He then filed this action.

                                           2
      Both parties moved for summary judgment. The district court denied

Mr. Jones’s motion and granted the Secretary’s. It concluded that Mr. Jones had

failed to demonstrate a genuine issue of material fact concerning whether he was

qualified for the positions, and thus failed to present a prima facie case of age

discrimination sufficient to survive summary judgment. It further concluded that

even if he could establish a prima facie case, HHS had advanced legitimate,

nondiscriminatory reasons for not hiring Mr. Jones, and he had failed to come

forward with evidence showing those reasons were pretextual.

                                    DISCUSSION

      1. Age Discrimination Claim

      We review the district court’s grant of summary judgment de novo, applying

the same legal standard as the district court. Bennett v. Windstream Commc’ns, Inc.,

792 F.3d 1261, 1265 (10th Cir. 2015). Summary judgment is appropriate only if “the

movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We construe

Mr. Jones’s pro se pleadings liberally, but do not serve as his advocate. Jordan v.

Sosa, 654 F.3d 1012, 1018 n.8 (10th Cir. 2011).

      A plaintiff may establish age discrimination under the ADEA by providing

either direct or circumstantial evidence of discrimination. See Roberts v. Int’l Bus.

Machs. Corp., 733 F.3d 1306, 1309 (10th Cir. 2013). When the plaintiff relies on

circumstantial evidence, we evaluate the claim using the burden-shifting approach



                                            3
described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this

approach,

       If a terminated employee can make a prima facie case of discrimination, the
       burden shifts to the employer to articulate a nondiscriminatory reason for
       [not hiring] the employee. If the employer can do that, the employee picks
       up the burden once more and can survive summary judgment by identifying
       evidence that could support a reasonable jury’s concluding that the
       employer’s proffered rationale is a mere pretext for discrimination.
Roberts, 733 F.3d at 1309.

       The district court concluded that Mr. Jones had failed to provide direct

evidence of discrimination. It further decided that his circumstantial-evidence case

failed the McDonnell-Douglas approach, because he failed to demonstrate he was

qualified for the positions and that HHS’s reasons for not hiring him were pretextual.

In this appeal, Mr. Jones argues that he presented direct evidence of discrimination.

He relies on testimony by Carla Boudreau, a senior hiring authority at CDC. In 2013,

she testified before the Merit Systems Protection Board in a separate proceeding

concerning Mr. Jones’s allegations that his veteran’s preference rights had been

violated in the application process for two overseas public health advisor positions,

neither of which is at issue in this case.

       In response to Mr. Jones’s questions, Ms. Boudreau stated:

       Q. Does the [World Health Organization (WHO)] impose any
       requirements on the candidates in terms of their age?
       A. Yes. The current mandatory retirement age at WHO, I believe, is either
       60 or 62.
       Q. Does the CDC comply with that requirement?
       A. Yes.

                                             4
R. at 309.

      Mr. Jones contends this is evidence that CDC maintains an illegal policy of

age discrimination. But as Ms. Boudreau explained in her declaration filed in this

case, the overseas positions she referred to were filled pursuant to an agreement

between HHS and the WHO. R. at 316. Under that agreement, “[w]hile on detail [to

the WHO], CDC personnel are on no-cost WHO contracts, and are subject to certain

WHO policies, including a mandatory retirement age, sixty-two (62).” R. at 316. By

contrast, Ms. Boudreau explained, none of the positions that Mr. Jones applied for

that are involved in this case were subject to the WHO’s rules. With regard to such

domestic positions, the CDC “does not . . . discriminate against applicants on the

basis of age for positions based in the United States.” R. at 316.

      The district court concluded that “[s]ince the WHO guidelines do not apply to

CDC positions in the United States . . . Ms. Boudreau’s testimony is not direct

evidence of HHS’s discrimination in this case.” R. at 378. We agree. It takes a

large leap to get from an assertion that the CDC follows age-based guidelines in

filling overseas positions governed by its agreement with the WHO to a conclusion

that CDC failed to hire Mr. Jones for domestic positions because of his age. “And

. . . that leap necessarily means it isn’t direct evidence of discrimination.” Roberts,

733 F.3d at 1309.

      But Mr. Jones contends the district court misunderstood his argument, because

his claims involving the overseas positions “were before the EEOC as well as the

District Court.” Aplt. Reply Br. at 3. He urges us to grant relief due to the CDC’s

                                            5
failure to hire him for the overseas positions. See, e.g., Aplt. Opening Br. at 5-6.

But we cannot do that. This case is not about the overseas positions. The domestic

positions were the only positions the EEOC specifically considered in its final

decision in this case.1 The EEOC listed those seven positions as the subject of

Mr. Jones’s formal EEO complaint to the HHS, the resolution of which triggered his

right to EEOC review. R. at 34. Although Mr. Jones mentioned the overseas

positions in his district-court complaint, he cited the EEOC’s decision—which

involved only the seven domestic positions—to prove that he had “previously sought

informal or formal [relief] from the appropriate administrative officials regarding the

acts complained of” in his complaint. R. at 12. And during his deposition taken in

this case, Mr. Jones acknowledged that the claims before the ALJ, involving the

seven positions for which he applied but was not referred, were the claims before the

district court. See R. at 178 (depo p. 44).2


      1
              The EEOC noted Mr. Jones’s contention “that he has not been selected
for any position although he has applied for over 90 positions with [HHS] and is
entitled to veterans’ preference.” R. at 35. But its decision was limited to the seven
domestic CDC positions at issue in this case. See R. at 37-38 (discussing HHS’s
rationale for not hiring Mr. Jones for each of the seven positions).
      2
              Notwithstanding the filing of the district court record, see 10th Cir. R.
10.2(C), Mr. Jones has filed his own appellate appendix. The appendix includes
documents that were not presented to the district court, which we therefore decline to
consider. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir. 2008)
(“We generally limit our review on appeal to the record that was before the district
court when it made its decision.”). It also includes additional arguments that
Mr. Jones has attempted to incorporate by reference into his opening brief. We reject
this attempt to circumvent the briefing requirements of Fed. R. App. P. 28(a)(8)(A),
which requires that the appellant’s arguments be made in his brief. Cf. also Wardell
                                                                              (continued)
                                               6
      In sum, the only issue before us is whether HHS violated the ADEA by failing

to consider and/or hire Mr. Jones for the seven domestic CDC positions presented in

his complaint. Mr. Jones has failed to establish, either with direct or circumstantial

evidence, such a violation. The district court therefore properly granted summary

judgment for the Secretary.

      2. Denial of Motion for Protective Order and Sanctions

      Dissatisfied by the way he was treated by an Assistant United States Attorney

during his deposition in this case, Mr. Jones filed a “Motion Charging Egregious

Rule 30 Violations during Deposition Process and Request for Court Protection and

Sanctions.” R. at 119-44. The district court denied the motion, reasoning that (1) the

time to object to the defense counsel’s conduct during the deposition had passed, and

the district court had already granted summary judgment, so the motion for a

protective order was moot; (2) defense counsel’s conduct did not violate Rule 30; and

(3) sanctions under the district court’s inherent authority were inappropriate because

counsel did not conduct the deposition in bad faith or in such a manner as to

unreasonably annoy, embarrass or oppress Mr. Jones. “The district court has broad

v. Duncan, 470 F.3d 954, 963-64 (10th Cir. 2006) (disapproving incorporation of
pleadings from the record into appellate brief, noting that appellant’s pro se status
does not exempt him from complying with rules); 10th Cir. R. 28.4 (disapproving
incorporation by reference of lower court or agency briefs or pleadings). In any
event, much of this additional argument seems to concern whether certain witnesses
were credible, an issue that is not relevant to our review. See Helget v. City of Hays,
844 F.3d 1216, 1223 n.3 (10th Cir. 2017) (noting that attacks on credibility of
movant’s witnesses is insufficient to avoid summary judgment; instead, party
opposing summary judgment must present admissible, affirmative evidence to
demonstrate existence of material factual issue).

                                           7
discretion over the control of discovery, and we will not set aside discovery rulings

absent an abuse of that discretion.” SEC v. Merrill Scott & Assocs., Ltd., 600 F.3d

1262, 1271 (10th Cir. 2010) (internal quotation marks omitted). Having carefully

reviewed his arguments and the district court’s decision, we have determined that

Mr. Jones has failed to demonstrate that the district court abused its discretion by

denying his motion for protective order and sanctions. Accordingly, we affirm the

denial of his motion.

                                   CONCLUSION

      The district court’s judgment and order denying a protective order and

sanctions are affirmed. Mr. Jones’s motion and supplement, filed in this court, for a

protective order and sanctions, is denied.



                                                 Entered for the Court
                                                 Per Curiam




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