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Azim v. Tortoise Capital Advisors, LLC

United States Court of Appeals, Tenth Circuit

December 20, 2017

ARSHAD AZIM, Plaintiff - Appellant,

         (D.C. No. 2:13-CV-02267-DDC) (D. Kan.)

          Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.


         Appellant Arshad Azim has filed a rehearing petition in this case. The rehearing petition is granted in part to correct the order and judgment filed on November 24, 2017 to remove Fambran Enterprises from the caption and body of the order and judgment. The rehearing petition is otherwise denied. Because the panel's decision to partially grant rehearing resulted in only non-substantive changes to the order and judgment that do not affect the outcome of this appeal, Appellant may not file a second or successive rehearing petition. See 10th Cir. R. 40.3.

         The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the petition seeking rehearing en banc is denied pursuant to Fed. R. App. P. 35.


          Mary Beck Briscoe Circuit Judge

         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, and Mariner Holdings, LLC in this employment law dispute. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


         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.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 ...

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