FILED
United States Court of Appeals
Tenth Circuit
February 23, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
EMAJO MAYBERRY and CAROL A.
CLOPTON,
Plaintiffs - Appellants,
No. 09-3053
v. (D. Ct. No. 2:06-CV-02575-CM-DJW)
(D. Kan.)
ENVIRONMENTAL PROTECTION
AGENCY, Lisa P. Jackson,
Administrator,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before TACHA, EBEL, and KELLY, Circuit Judges.
Plaintiffs-appellants Emajo Mayberry and Carol A. Clopton brought claims
against the Environmental Protection Agency (“EPA”) for reprisal,
discrimination, and hostile work environment under Title VII of the Civil Rights
Act of 1984 and the Age Discrimination in Employment Act (“ADEA”) of 1967.
The district court dismissed nearly all of plaintiffs’ claims for lack of jurisdiction
based on plaintiffs’ failure to exhaust their administrative remedies, and certified
*
This order and judgment is not binding precedent except under the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.
its decision as a final judgment under Fed. R. Civ. P. 54(b). We have jurisdiction
under 28 U.S.C. § 1291 and AFFIRM.
I. BACKGROUND
A. Factual Background
Ms. Clopton is a Caucasian woman over the age of forty who worked as a
Program Analyst in the EPA’s Kansas City, Kansas Regional Office from 1985
until her retirement in 2007. Ms. Mayberry is a black woman over the age of
forty who has worked as a Program Analyst in the same EPA regional office since
1971. Since 2000, both plaintiffs have been class agents in a pending
administrative class action against the EPA in which they allege claims of age and
race discrimination. All of plaintiffs’ instant Title VII and ADEA claims against
the EPA are based on alleged mistreatment they have endured because of their
prosecution of the class action case.
The EPA filed a motion to dismiss plaintiffs’ instant claims for lack of
jurisdiction based on plaintiffs’ failure to exhaust their administrative remedies.
The district court concluded that Ms. Clopton failed to exhaust all of her claims
and dismissed them accordingly. The district court further concluded that Ms.
Mayberry failed to exhaust all of her Title VII claims and all but two of her
ADEA claims. Plaintiffs argue that the district court erred by concluding that
they did not exhaust their administrative remedies for their various claims. We
address facts relevant to each of plaintiffs’ attempts to exhaust in our analysis.
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B. Legal Background — Procedures for Exhausting Administrative Remedies
Before a federal employee may file a Title VII suit in district court, the
employee must exhaust her administrative remedies. 42 U.S.C. § 2000e-16(c);
see also Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
2005). In order to exhaust her administrative remedies, an EPA employee must
make an informal charge to an Equal Employment Opportunity (“EEO”)
counselor at the EPA’s regional office within forty-five days from the date of the
alleged discriminatory act. 29 C.F.R. § 1614.105(a). The EEO counselor must
advise the employee of her rights and responsibilities, investigate the complaint,
and attempt to informally resolve the matter. See id. § 1614.105(b)(1). The EEO
counselor must then conduct a final interview with the employee within thirty
days of the date the employee contacted the EEO office. Id. § 1614.105(d). If the
matter has not been resolved, the employee is notified in writing of her right to
file a formal discrimination complaint with the EPA’s Office of Civil Rights
(“OCR”) within fifteen days of receiving the Notice of Final Interview. Id. §
1614.105(b), (d); see also id. § 1614.106(b). At that point, the employee may file
a civil action in district court within ninety days of receiving notice of final
action by the OCR or “[a]fter 180 days from the date of filing . . . [if] final action
has not been taken.” Id. § 1614.407(a), (b).
When the complaint is based on alleged violations of the ADEA an
employee has the option of following the procedure outlined above or providing
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the head of the EPA with thirty days notice of intent to file a civil action in a
United States district court and proceeding directly to court. Id. § 1614.201(a).
II. ANALYSIS
A. Standard of Review
We review the district court’s dismissal of a complaint for lack of
jurisdiction de novo and its findings of jurisdictional fact for clear error. See
McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104–05 (10th Cir. 2002).
“Because the jurisdiction of federal courts is limited, there is a presumption
against our jurisdiction, and the party invoking federal jurisdiction bears the
burden of proof.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir.
2005) (quotation omitted).
B. Plaintiffs’ Claims and Attempts to Exhaust
1. Ms. Mayberry’s August 2005 and October/November 2005 Claims
On August 18, 2005, Ms. Mayberry made an informal complaint to an EEO
counselor in which she sought relief for discriminatory and retaliatory incidents
that allegedly occurred on August 10, 2005. On November 2, 2005, Ms.
Mayberry added two additional informal complaints of discrimination for events
that allegedly occurred on October 20, 2005 and November 1, 2005. Then, on
November 23, 2005, Ms. Mayberry met with the EPA’s EEO counselor, but was
unable to informally resolve her claims. Accordingly, she signed a Notice of
Final Interview in which she acknowledged that she had fifteen days to file a
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formal discrimination complaint with the OCR based on the August 10, October
20, and November 1 events. Ms. Mayberry never filed a formal complaint.
Instead, on December 8, 2005, she included these claims in a Second Motion to
Amend The Class Complaint (“Motion to Amend”) which she and Ms. Clopton
jointly filed with the Administrative Judge (“AJ”) who was overseeing the
pending class action. The AJ denied the Motion to Amend on December 13,
concluding that the claims therein would be more appropriately decided as
individual rather than class claims.
On appeal, Ms. Mayberry argues that she satisfied the requirement for
submitting a formal complaint by including the three claims for which she had
already made informal complaints in the Motion to Amend, and that it was the
EPA’s responsibility to process the denied Motion to Amend as a formal
complaint. This claim is plainly without merit. The regulations clearly state that
a formal complaint must be filed with the OCR within fifteen days of the
complainant’s receipt of the Notice of Final Review. See 29 C.F.R. §
1614.106(b). Furthermore, Ms. Mayberry does not provide any legal support for
her claim that a denied Motion to Amend is the equivalent of a formal complaint
to the OCR. Accordingly, the district court properly concluded that Ms.
Mayberry did not exhaust her August 2005 and October/November 2005 claims.
Alternatively, Ms. Mayberry argues that the Notice of Final Interview she
signed on November 23, 2005 was ineffective because it was not sent to her
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attorney as required by 29 C.F.R. § 1614.605(d). 1 The district court rejected this
argument because Ms. Mayberry failed to provide the address and telephone
number of her attorney in accordance with the regulation. Ms. Mayberry now
contends that the EPA: (1) already had her attorney’s information in connection
with the class complaint; (2) did not provide space on any form for such
information; and (3) should have asked her for the information. We do not agree.
The regulation places no duty on the EPA to request or track down an attorney’s
contact information. The EPA’s duty only arises when an employee has provided
the necessary information. See 29 C.F.R. § 1614.605(d) (“after the agency has
received written notice of the name, address and telephone number of a
representative for the complainant, all official correspondence shall be with the
representative” (emphasis added)). Furthermore, the class claims were being
handled in a different office and, as found by the AJ, are not related to the claims
in this case. Therefore, Ms. Mayberry’s failure to provide the EEO counselor
with all of the requisite information foreclosed any duty on behalf of the
counselor to send the Notice of Final Interview to Ms. Mayberry’s attorney. For
1
The regulation provides, in pertinent part:
Unless the complainant states otherwise in writing, after the agency
has received written notice of the name, address and telephone
number of a representative for the complainant, all official
correspondence shall be with the representative with copies to the
complainant.
29 C.F.R. § 1614.605(d).
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all of these reasons, the district court properly dismissed Ms. Mayberry’s August
2005 and October/November 2005 claims.
2. Plaintiffs’ Failure to Promote Claims
In addition to Ms. Mayberry’s individual claims, plaintiffs’ December 8,
2005 Motion to Amend included claims by both Ms. Clopton and Ms. Mayberry
that they were denied a promotion for discriminatory reasons. The district court
dismissed these claims because it found that plaintiffs failed to exhaust their
administrative remedies. Specifically, plaintiffs did not make an informal failure
to promote complaint to an EEO counselor. Plaintiffs concede that they did not
meet with an EEO counselor as required for Title VII claims, nor did they file
notices of intent to sue as they might have under the ADEA. Therefore, facially
they did not exhaust their failure to promote claims. Nevertheless, plaintiffs
argue that these claims are exhausted because upon the AJ’s denial of their
Motion to Amend, the EPA was obligated to treat the failure to promote claims
therein as properly filed informal complaints. Therefore, they argue that the
EPA’s failure to address the complaints for more than 180 days provided them
with the right to sue under 29 C.F.R. § 1614.407(b).
In support of their position, plaintiffs point to the Commission’s Handbook
for Administrative Judges and the Commission’s Management Directive.
Plaintiffs also contend that the AJ’s order itself required the EPA to act. The
district court, however, correctly noted that “the [AJ] handbook does not speak in
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terms of mandatory action.” Mayberry, 2008 WL 4304979, at *4. Furthermore,
the district court correctly noted that the AJ’s finding that “these claims would be
more appropriately addressed as individual claim[s] of retaliation by the Agency,”
did not order the EPA to take any action. Id. Finally, the Management Directive
cited by plaintiffs does not apply in this case. The Directive outlines the
procedure the EPA follows when directly presented with an amendment to a
complaint before jurisdiction has shifted to an AJ. See EEOC Management
Directive 110. Therefore, the district court correctly found that plaintiffs failed to
exhaust their administrative remedies and properly dismissed plaintiffs’ failure to
promote claims.
3. Ms. Mayberry’s May 2006 Claim
On July 12, 2006, plaintiffs’ counsel sent a letter to the OCR in which he
inquired about the claims raised in the December 8, 2005 Motion to Amend and
raised a new claim on Ms. Mayberry’s behalf based on events that occurred in
May 2006. The OCR construed the July 12 letter as a formal complaint for Ms.
Mayberry’s August 2005 and October/November 2005 claims. Accordingly, the
OCR dismissed the formal complaint as untimely.
Ms. Mayberry never filed an informal complaint with regard to her May
2006 claim. Nevertheless, on appeal, she argues that the July 12, 2006 letter
should be treated as a timely-filed informal complaint which the EPA was
required to process. This argument, however, ignores the regulatory scheme in
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place requiring an employee to contact the EPA’s regional EEO office and obtain
counseling before contacting the OCR. See 29 C.F.R. § 1614.105(b), (d).
Furthermore, this is not a situation in which the employee was not aware of the
proper procedure for filing a complaint. Indeed, Ms. Mayberry had already been
through the process. Because Ms. Mayberry failed to make an informal complaint
to an EEO counselor, her May 2006 claim was not administratively exhausted and
it was properly dismissed by the district court.
4. Ms. Mayberry’s October/November 2006 Claims
On November 26, 2006, Ms. Mayberry properly submitted to an EEO
counselor informal complaints for events that allegedly occurred in October and
November 2006. On January 10, 2007, she received a Notice of Final Interview
which advised her that she was required to file a formal complaint with the OCR
within 15 days. Ms. Mayberry never filed a formal complaint, but instead filed a
Notice of Intent to Sue Under the ADEA. Accordingly, she did not exhaust her
October/November 2006 Title VII claims and the district court properly dismissed
them. On the other hand, the district court properly retained her ADEA claims
based on her timely filing of a Notice of Intent to Sue.
Although she concedes that she failed to exhaust her Title VII claims, Ms.
Mayberry contends that the ADEA’s alternative exhaustion process should be
applied to Title VII claims. That is not, however, the way Congress chose to draft
Title VII. See Shikles, 426 F.3d at 1314 (noting that the Supreme Court “has
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rejected attempts to read requirements into Title VII, like the ADEA, beyond
those expressly provided by Congress”) (citations omitted). Therefore, Ms.
Mayberry’s Notice of Intent to Sue did not exhaust her October/November 2006
Title VII claims, and the district court properly dismissed them.
5. Ms. Mayberry’s February/March 2007 Claims
On April 2, 2007, Ms. Mayberry properly made an informal complaint to an
EEO counselor based on events that allegedly occurred in February and March
2007. When the EEO counselor contacted her regarding this informal complaint,
she informed him that she was not pursuing the administrative process but
intended to proceed directly to court under the ADEA. Therefore, she did not
exhaust her February/March 2007 Title VII claims and the district court properly
dismissed them. Conversely, her notice to the EEO counselor that she intended to
sue under the ADEA exhausted her February/March 2007 ADEA claims and the
district court properly retained those claims.
6. Ms. Mayberry’s Hostile Work Environment Claims
Finally, Ms. Mayberry appears to argue that her hostile work environment
claims from late 2006 and early 2007 did not require additional exhaustion
because of the continuing nature of such claims. This circuit has not decided
whether hostile work environment claims must be independently exhausted or
whether the prior exhaustion of reasonably related claims is sufficient. See
Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003) (stating that Nat’l
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RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002), teaches that each discrete
incident of discrimination must be exhausted, but noting that the rule may not be
applicable to hostile work environment claims). We need not do so today,
however, because Ms. Mayberry has not exhausted any claims to which these later
hostile work environment claims might reasonably relate. Therefore, her
argument necessarily fails and the district court properly dismissed all of her Title
VII hostile work environment claims.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the ruling of the district court.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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