Jones v. Runyon

• Decision Date: 31 July 1996
• Docket Number: No. 95-6130,95-6130
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 775, 68 Empl. Prac. Dec. P 44,219 Janet JONES, Plaintiff-Appellant, v. Marvin T. RUNYON, Postmaster General, United States Postal Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1398

91 F.3d 1398

71 Fair Empl.Prac.Cas. (BNA) 775,

68 Empl. Prac. Dec. P 44,219

Janet JONES, Plaintiff-Appellant, v. Marvin T. RUNYON, Postmaster General, United States Postal

Service, Defendant-Appellee.

No. 95-6130.

United States Court of Appeals, Tenth Circuit.

July 31, 1996.

Lewis Barber, Jr. of Barber & Marshall, Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Lori J. Dym, Attorney, United States Postal Service, Kay Sewell, Assistant United States Attorney, Oklahoma City, Oklahoma (Vicki Miles-LaGrange, United States Attorney, Oklahoma City, Oklahoma, R. Andrew German, with them on the briefs), for Defendant-Appellee.

Before SEYMOUR, Chief Judge, TACHA, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff Janet Jones appeals an order of the district court granting defendant's motion to dismiss this Title VII action. The district court concluded that it lacked jurisdiction over the action because Jones had failed to exhaust her administrative remedies. We affirm.

Exhaustion of administrative remedies is a "jurisdictional prerequisite" to suit under Title VII. Sampson v. Civiletti, 632 F.2d 860, 862 (10th Cir.1980). ¹ We review de novo the district court's dismissal of an action for lack of subject matter jurisdiction. Weiss v. United States, 889 F.2d 937, 938 (10th Cir.1989); see also Vinieratos v. United States Dep't of Air Force, 939 F.2d 762, 767-68 (9th Cir.1991) (whether claimant has exhausted his administrative remedies is a question of law reviewable de novo).

Jones, as an employee of the United States Postal Service, filed a complaint of sex discrimination with the Postal Service on September 4, 1990. After the Postal Service rendered its "Final Agency Decision" of no discrimination, Jones appealed to the United States Equal Employment Opportunity Commission (EEOC). The EEOC likewise found that Jones had not been subjected to unlawful discrimination. Jones then filed this action against the Postal Service in the United States District Court for the Western District of Oklahoma. The district court found, however, that the issues raised in Jones' complaint had not been raised before the EEOC, and therefore had not been administratively exhausted. "[W]hen 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...." Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994) (quotations omitted). Therefore, we examine both Jones' original charge to the EEOC and her federal court complaint to determine whether the issues she raised to the district court were both new and unrelated to her EEOC charges, thus defeating the court's jurisdiction over her action.

In her formal EEOC complaint, Jones alleged her rights had been violated because another woman for whom the supervisor professed love was promoted instead of her, and she alleged that the other woman had submitted to sexual advances from that supervisor. The supervisor was one of three officials having input in the promotion decision. Jones asserted she was discriminated against because she was denied the promotion even though she was qualified. Jones later notified the EEOC that she was not complaining of sexual discrimination because she was a female, but rather discrimination based on the relationship between the supervisor and the woman who was promoted. ² The EEOC found that while Jones had included a statement in her affidavit that the supervisor made a remark to her on an unspecified date that she interpreted to be a sexual advance, that allegation was not raised in her formal complaint, which concerned only the promotion of another woman. Thus, any suggestion of personal sexual harassment was not timely raised before the EEOC and therefore it would not be considered. The EEOC framed Jones' issue as being "whether [Jones] has established that she was discriminated against on the basis of sexual harassment when she was nonselected for promotion...." Plaintiff's App. at 264.

In the district court, Jones changed her complaint to allege that submission "to unwelcome sexual advances from supervisors was a condition precedent to promotion." Id. at 108. Jones alleged that she had refused the sexual overtures of her supervisor, which occurred two weeks prior to the promotion interview. She concluded that she was not selected because of her refusal and because the supervisor had instead selected another woman who had not "openly rebut[ted]" his sexual demands. Id. at 107. She alleged the supervisor also failed to disclose information adverse to the selected woman which would have prohibited her promotion if revealed.

The district court granted defendant's motion to dismiss, holding that Jones had not exhausted her administrative remedies. The court held that in the district court Jones was alleging quid pro quo sexual harassment and the existence of a hostile work environment, issues she had not raised to the EEOC. We agree. Jones specifically stated to the EEOC that she was not claiming she personally was subjected to sexual harassment. She, therefore, explicitly abandoned that issue and, thus, failed to exhaust it before the EEOC. Exhaustion of administrative remedies is required before a plaintiff may bring a federal action. Sampson, 632 F.2d at 862. ³

Jones also alleged in the district court that defendant retaliated against her for filing her EEOC complaint. The alleged retaliatory acts included not giving her a step increase as required by personnel policies and practices and, ultimately, suspending her. We note that although the retaliation claim was not brought before the EEOC, this fact is not necessarily dispositive. "[A]n act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint." Ingels, 42 F.3d at 625 (quotations omitted). The issue here, however, is whether Jones' retaliation claim was properly before the court where the court had no underlying claim on the merits properly before it. In other words, may a party bring an action for retaliation which has not been exhausted before the EEOC, when the underlying Title VII violation claim similarly was not exhausted before the EEOC and thus, even the underlying claim was not properly before the court? ⁴ We answer in the negative.

When a party brings a claim of retaliation in conjunction with a Title VII claim, the party asks the court to exercise ancillary jurisdiction ⁵ over the retaliation claim. See Gupta v. East Tex. State Univ., 654 F.2d 411, 413-14 (5th Cir.1981) (district court has ancillary jurisdiction to hear retaliation claim growing out of earlier charge of Title VII violation). We have held that a court has jurisdiction over ancillary claims "so long as the court has jurisdiction of the main claim between the original parties." King Fisher Marine Serv., Inc. v. 21st Phoenix Corp., 893 F.2d 1155, 1158 (10th Cir.), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990); see also First Golden Bancorporation v. Weiszmann, 942 F.2d 726, 731 (10th Cir.1991) (if jurisdictional prerequisites are satisfied when the suit originates, subsequent events will not defeat jurisdiction).

Thus, a court has jurisdiction to hear an ancillary claim of retaliation only when the main administrative charge is properly before the court. See Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5th Cir.1991) (because one of plaintiff's ADEA claims was untimely and the other had not been presented first to the EEOC, claims were not properly before the court and retaliation charge had "no charge on which to attach itself," therefore, court had no jurisdiction over retaliation claim); Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 762 (11th Cir.1995) (because underlying age discrimination claim was untimely and because plaintiff did not move to amend complaint until after pretrial order entered, court did not abuse its discretion in denying retaliation amendment); cf. Gottlieb v. Tulane Univ., 809 F.2d 278, 284 (5th Cir.1987) (because plaintiff's initial Title VII claim was properly before the court, court had ancillary jurisdiction over retaliation claim). While an ancillary claim of retaliation "does not require that the plaintiff prevail on the underlying claim of discrimination," Ingels, 42 F.3d at 625 n. 8, such a claim does require that the plaintiff satisfy all jurisdictional prerequisites with respect to the underlying claim of discrimination when, as here, the retaliation claim suffers the defect of non-exhaustion and jurisdiction is sought to be maintained as ancillary jurisdiction. ⁶

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. ⁷

1 Subsequent to our decision in Sampson, the Supreme Court in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) held that a timely filing before the EEOC was not jurisdictionally required to maintain suit in the district court. 455 U.S. at 393, 102 S.Ct. at 1132. Several circuits have concluded that the Zipes holding should be extrapolated to include that there is no jurisdictional requirement for any filing before the EEOC, but rather that the prerequisite of EEOC filing should be viewed merely in the nature of a condition precedent or an affirmative defense that can be waived if it is not asserted by the defendant. See, e.g., Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647, 654 (9th Cir.1989) (relying on Zipes and holding that "[p]ursuit of administrative remedies is a condition precedent to a Title VII claim. The requirement, however, is not jurisdictional."), cert. denied, 496 U.S. 925, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990); Womble v. Bhangu, 864 F.2d 1212, 1213 (5th Cir.1989) (holding that the district court erred in concluding it lacked...