FILED
United States Court of Appeals
Tenth Circuit
May 13, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ANJANA A. DOSSA,
Plaintiff-Appellant,
v. No. 07-3284
MICHAEL W. WYNNE, Secretary,
Department of Air Force,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 06-cv-01263-JTM-DWB)
Submitted on the briefs: *
Anjana A. Dossa, Pro Se.
Eric F. Melgren, United States Attorney, Connie R. DeArmond, Assistant United
States Attorney, Wichita, Kansas, for Defendant-Appellee.
Before MURPHY, McKAY, and GORSUCH, Circuit Judges.
McKAY, Circuit Judge.
*
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.
Anjana A. Dossa was discharged from her civilian position at McConnell
Air Force Base. She appealed the decision to the Merit System Protection Board
(MSPB) and received a hearing before an administrative judge (AJ) on her claims
of wrongful discharge, gender and national-origin discrimination, and retaliation
for filing an earlier discrimination charge. The AJ denied her claims. Her
appeals to the MSPB and then to the Equal Employment Opportunity Commission
(EEOC) were unsuccessful, so Ms. Dossa filed suit in federal district court. After
the district court determined that Ms. Dossa had failed to exhaust her
administrative remedies on her gender and national-origin discrimination claims,
it dismissed her retaliation claim for lack of jurisdiction over that type of claim
alone. 1 The court later denied Ms. Dossa’s request for reconsideration. She
appeals. We reverse the district court’s ruling that Ms. Dossa failed to exhaust
her administrative remedies, and we hold that the court had jurisdiction over her
retaliation claim. Consequently, we remand for further proceedings.
1
To the extent Ms. Dossa challenged the agency termination action, the
district court did not resolve it. Ms. Dossa does not raise this as an issue on
appeal, so we do not address it. See Bronson v. Swensen, 500 F.3d 1099, 1105
(10th Cir. 2007) (declining to address cursory claim unsupported by analysis and
case law).
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Background
Ms. Dossa was employed in a civilian position as an Engineering Flight
Commander at McConnell Air Force Base. In April 2003, she received a poor
performance evaluation. In July, she filed a discrimination charge based on her
Indian national origin. Due to her continuing performance problems, she was
placed on a performance improvement plan (PIP). When she failed to meet the
requirements of the PIP, she was discharged on June 18, 2004.
The AJ held a two-day hearing. Ms. Dossa’s supervisors testified about her
job performance, and her direct supervisor stated that the decision to discharge
her was based only on her performance, not on her gender or national origin.
Ms. Dossa’s witness, a member of her former staff, testified about her work
pressures. Ms. Dossa also testified. She described her difficult employment
situation during the relevant period, including a lack of support from her
superiors; a group of subordinates who were inexperienced, uncooperative, and
disrespectful; a heavy work load; inadequate or no overtime pay; inadequate or no
leave time; and a belief that her performance was being sabotaged. She asserted
that her supervisors made her employment situation difficult due to discrimination
based on her gender and national origin. The AJ held that she had “simply
presented no evidence in support of [those] claims.” Aplee. Supp. App. at 63.
The AJ also determined that Ms. Dossa had failed to carry her burden to
demonstrate that she was discharged in retaliation for her prior EEO activity. In
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denying her appeals, neither the MSPB nor the EEOC provided additional
analysis.
The district court granted defendant’s motion to dismiss for lack of
jurisdiction, concluding that Ms. Dossa had failed to exhaust her administrative
remedies with respect to her discrimination claims. The court further held that it
had no jurisdiction over a retaliation claim standing alone, so it dismissed that
claim. Ms. Dossa sought reconsideration, which the district court denied.
On appeal, Ms. Dossa challenges the district court’s ruling that she
presented no evidence to support her gender and national-origin discrimination
claims and therefore failed to exhaust her administrative remedies. She also
appeals the district court’s order holding that it lacked jurisdiction over her claim
of retaliation based on protected activity. Finally, she seeks review of the order
denying reconsideration.
Legal Framework
“We review the district court’s order dismissing the case for lack of subject
matter jurisdiction de novo.” Lindstrom v. United States, 510 F.3d 1191, 1193
(10th Cir. 2007). The issue whether a plaintiff has exhausted her administrative
remedies is a legal question that we also review de novo. Harms v. IRS, 321 F.3d
1001, 1009 (10th Cir. 2003).
Federal employees, like employees of private concerns, must exhaust the
applicable administrative remedies before seeking judicial review. Coffman v.
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Glickman, 328 F.3d 619, 624 (10th Cir. 2003). A federal employee may exhaust
administrative remedies either by filing a complaint with the EEO department of
the employing agency or by proceeding to the MSPB. Id. “If the employee
chooses to appeal to the MSPB . . . [he or she] will have a hearing at which he or
she must raise his or her claims of discrimination and present evidence in support
of those claims in order to exhaust the administrative remedy.” Id.. 2
Discrimination Claims - Failure to Exhaust
Ms. Dossa testified at length at the AJ hearing about the reasons she was
unable to meet the requirements of the PIP, alleging that the PIP was created to
ensure her failure so her employer could discharge her because of her gender and
national origin. She asserted that she spoke with an accent and her subordinates
used that as an excuse not to understand her. In her supporting documents she
related her belief that her subordinates’ criticism of her management style was
really a cultural difference. She also claimed that a rumor was spread that she
treated others like a bossy, rich Indian would treat the poor. Aplt. App. at 67-69,
73. In addition, Ms. Dossa proffered the names of two other employees, both
males, who she contends were treated more favorably than she, and she maintains
that their more favorable treatment establishes discrimination.
2
As noted above, after the MSPB denied review, Ms. Dossa appealed to the
EEOC, which she was not required to do to exhaust administrative remedies. See
Harms, 321 F.3d at 1009 n.3 (citing 29 C.F.R. §§1614.303, 1614.310).
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In Coffman, this court explained the difference between a waiver or
abandonment of claims and the situation where a plaintiff presents evidence of
discrimination and affirmatively litigates a claim but ultimately loses on the
merits. Coffman, 328 F.3d at 623-25. There, the plaintiff described “events and
motivations for the agency’s [employment] decision” to contradict the employer’s
witnesses’ testimony. Id. at 625. He also called three witnesses on his own
behalf. Id. Moreover, the AJ considered the conflicting evidence, weighed
credibility, found facts, and reached legal conclusions. Id. Therefore, without
deciding the merits of the employee’s claims, we rejected the employer’s
argument that the federal employee had failed to exhaust his administrative
remedies. Id. at 625.
Similarly, Ms. Dossa presented evidence about her working conditions and
the reasons for her claim that she was discriminated against due to gender and
national origin. Although the AJ in Ms. Dossa’s case concluded that she had
presented no evidence of discrimination, Aplee. Supp. App. at 63, our discussion
above demonstrates that Ms. Dossa did present some evidence of discrimination.
The AJ was free to find it insufficient, but he was not free to equate insufficiency
of evidence with abandonment or waiver. See Coffman, 328 F.3d at 625. Unlike
a claimant who failed to comply with the exhaustion requirements, such as
cooperating with the investigating agency, see McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1106 (10th Cir. 2002), Ms. Dossa’s pursuit of her
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discrimination claims throughout the administrative process constituted
exhaustion.
Because Ms. Dossa exhausted her administrative remedies, the district court
erred in dismissing her discrimination claims. Therefore, we remand for the
district court to consider them. On remand, Ms. Dossa is entitled to “a de novo
‘civil action’ equivalent to that enjoyed by private-sector employees” on these
claims. Chandler v. Roudebush, 425 U.S. 840, 863 (1976); accord Blondo v.
Bailar, 548 F.2d 301, 304 (10th Cir. 1977). “Prior administrative findings made
with respect to an employment discrimination claim may, of course, be admitted
as evidence at a federal-sector trial de novo.” Chandler, 425 U.S. at 863 n.39.
Retaliation Claim - Jurisdiction
After it dismissed the discrimination claims, the district court concluded
that it had no jurisdiction over Ms. Dossa’s retaliation claim alone. Even though
we have held that the discrimination claims were dismissed in error, thus
removing the rationale for finding no jurisdiction over the retaliation claim, the
question could arise on remand. Accordingly, we determine the court’s
jurisdiction over the retaliation claim.
In finding a failure of jurisdiction, the district court reasoned that because
the statute authorizing its jurisdiction over a federal employee’s mixed case,
5 U.S.C. § 7703(b)(2), applies to discrimination cases filed under 42 U.S.C.
§ 2000e-16(c), and because retaliation claims are covered by a different statute,
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42 U.S.C. § 2000e-3, the statutes did not confer jurisdiction over the retaliation
claim. Upon examination of the relevant law, however, we conclude that the
district court had jurisdiction over the retaliation claim.
The district court correctly noted that § 7703(b)(2) authorizes a federal
employee to file suit under § 2000e-16(c) for discrimination referred to in
§ 2000e-16(a), based on race, color, religion, sex, or national origin. 3
Subsection (c) further states that an employee may file a civil action “as provided
in section 2000e-5 of this title.” 42 U.S.C. § 2000e-16(c). Pursuant to § 2000e-5,
an employee shall not be reinstated if she was discharged “for any reason other
than discrimination on account of race, color, religion, sex, or national origin or
in violation of section 2000e-3(a) of this title.” 42 U.S.C. § 2000e-5(g)(2)(A)
(emphasis added). In turn, § 2000e-3(a) prohibits discrimination against an
employee for opposing a discriminatory employment practice or because she
made a charge of discrimination. 42 U.S.C. § 2000e-3(a). Therefore, Title VII
includes retaliation claims and § 7703(b)(2) authorizes judicial review of them.
Other authorities support this view. Circuit courts, including this one, have
addressed the merits of retaliation claims asserted by federal employees in similar
contexts. In Williams v. Rice, 983 F.2d 177, 180-81 (10th Cir. 1993), after
dismissing the plaintiff’s discrimination claim for failure to exhaust
3
Section 7703(b)(2) also authorizes judicial review of discrimination claims
based on the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 633a(c), and the Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b).
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administrative remedies, this court affirmed the district court’s determination that
he had not established a prima facie case of retaliation. The Williams court did
not address specifically its jurisdiction over the retaliation claim, but regarded the
plaintiff’s retaliation claim as a discrimination claim under Title VII. Id. at 179.
Similarly, the Eleventh Circuit affirmed a district court’s determination that
a federal-employee plaintiff failed to establish a prima facie case of Title VII
retaliatory discharge. Doyal v. Marsh, 777 F.2d 1526, 1533-35 (11th Cir. 1985).
The District of Columbia Circuit analyzed whether a federal-employee plaintiff
had waived his Title VII claim and noted that “retaliation under § 2000e-3(a) is
explicitly characterized as a discrimination claim.” Smith v. Horner, 846 F.2d
1521, 1524 (D.C. Cir. 1988).
In addition, the applicable section of the Code of Federal Regulations states
that the general policy of the United States Government prohibits employment
discrimination “because of race, color, religion, sex, national origin, age or
handicap,” or for “opposing any practice made unlawful by [T]itle VII,” the
ADEA, the Equal Pay Act, or the Rehabilitation Act. 29 C.F.R. § 1614.101(a),
(b).
Finally, nothing in the legislative history of the legislation authorizing
judicial review of federal employees’ discrimination claims indicates that
Congress intended to exclude retaliation claims. Both the Senate and House
Reports refer to “discrimination” generally, and the Senate Report specifies the
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anti-discrimination law as Title VII. S. Rep. No. 95-969, at 56-57 (1978); H.R.
Rep. No. 95-1717, at 140 (1978) (Conf. Rep.).
Accordingly, we hold that the district court erred in concluding that it
lacked jurisdiction over Ms. Dossa’s retaliation claim. On remand, the district
court should consider this claim, as well, granting Ms. Dossa a de novo civil
action. Chandler, 425 U.S. at 863.
Denial of Reconsideration
Given our decision to remand Ms. Dossa’s claims for consideration of the
merits, we need not address her challenge to the order denying reconsideration.
Conclusion
We REVERSE the district court’s judgment dismissing the discrimination
claims for failure to exhaust administrative remedies and dismissing the
retaliation claim for lack of jurisdiction, and we REMAND for further
proceedings consistent with this opinion.
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