Sizova v. Nat. Institute of Stnds & Tech.

• Decision Date: 13 March 2002
• Docket Number: No. 00-1494.,00-1494.
• Citation: 282 F.3d 1320
• Parties: Natalia SIZOVA, Plaintiff-Appellant, v. NATIONAL INSTITUTE OF STANDARDS & TECHNOLOGY and Regents of the University of Colorado, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

282 F.3d 1320

Natalia SIZOVA, Plaintiff-Appellant, v. NATIONAL INSTITUTE OF STANDARDS & TECHNOLOGY and Regents of the University of Colorado, Defendants-Appellees.

No. 00-1494.

United States Court of Appeals, Tenth Circuit.

March 13, 2002.

COPYRIGHT MATERIAL OMITTED

Mark E. Rau, The Frickey Law Firm, Lakewood, Colorado (Cecilia M. Serna, P.C., Lakewood, CO, on the opening brief), for Plaintiff-Appellant.

David P. Temple, Office of University Counsel, Denver, CO, for The Regents of the University of Colorado, Defendant-Appellee.

Nina Y. Wang, Assistant United States Attorney (Richard T. Spriggs, United States Attorney, and Kathleen L. Torres, Asst. U.S. Attorney, with her on the brief), Denver, CO, for National Institute of Standards and Technology, Defendant-Appellee.

Before SEYMOUR, Circuit Judge, McKAY, Senior Circuit Judge, and MURPHY, Circuit Judge.

SEYMOUR, Circuit Judge.

Natalia Sizova brought this action under 42 U.S.C. §§ 2000e et seq. (Title VII) against the National Institute of Standards and Technology (NIST), a federal agency, and the University of Colorado. Ms. Sizova had received a fellowship administered by defendants and alleged that she was the victim of gender and pregnancy discrimination when the fellowship was terminated. The district court granted NIST's motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), holding that Ms. Sizova had failed to exhaust her administrative remedies.¹ The court granted the University's motion for summary judgment, concluding as a matter of law that the University was not Ms. Sizova's employer for purposes of liability under Title VII. Ms. Sizova appeals. We affirm in part, reverse in part, and remand for further proceedings.

I

NIST is a bureau of the United States Department of Commerce whose purpose is to "enhance the competitiveness of American industry while maintaining its traditional function as lead national laboratory for providing the measurements, calibrations and quality assurance techniques which underpin United States commerce, technological progress, improved product reliability and manufacturing processes, and public safety." 15 U.S.C. § 271(b)(1). NIST and the University were parties to an agreement establishing the Professional Research Experience Program (PREP), which awarded research fellowships to graduate and postgraduate students at the University. According to the agreement, the PREP fellows were employees of the University. NIST provided the funding to the University, which in turn paid the PREP fellows and provided their worker's compensation insurance. However, Ms. Sizova's work while a PREP fellow was performed at the NIST facility and her work was supervised by NIST employees.

Ms. Sizova is a native of Russia and received her doctoral degree in mechanical engineering from the Academy of Press in Moscow. She worked as a guest researcher for NIST in 1995 and was awarded a PREP fellowship in August 1996. Ms. Sizova alleged that she was told her fellowship would last for three years in the form of three one-year contracts. At the time she was awarded the fellowship, she was pregnant with her second child and informed defendants of that fact. Ms. Sizova began working at NIST under her fellowship in September, 1996, gave birth to her child in November, and returned to work two weeks later. On or about December 2, 1996, she was told by Dr. Christopher Fortunko of NIST, one of the scientists with whom she worked, that her fellowship would be terminated at the end of the month due to a lack of funds. Two days later she was allegedly told by the chief of her NIST division, Dr. Harry McHenry, that she was being terminated because he thought she would "not be productive having a baby." App. vol. I at 86. Although Ms. Sizova was only paid by the University for her work at NIST until December 31, 1996, she continued to work on an unpaid basis for a number of weeks thereafter.

Ms. Sizova's efforts to exhaust her administrative remedies are the subject of some dispute between the parties. The regulations governing complaints of employment discrimination against federal agencies require that prior to filing a formal complaint, an aggrieved person must file an informal complaint with the EEO counselor of the employer agency within forty-five days of the alleged act of discrimination or of the effective date of the challenged personnel action. See 29 C.F.R. § 1614.105(a)(1) (2001). Ms. Sizova sent a letter to Dr. McHenry dated December 9, 1996, expressing her dismay over their previous conversation and his belief that her productivity would be affected by her motherhood. App. vol. I at 86. The record also contains an affidavit by Ms. Sizova in which she recounted her attempt to file an informal complaint. Id. at 89-90. She stated that on an unspecified date after her employment was terminated she contacted Robin Wolf, an EEO specialist with the NIST office, informing her that she wanted to file an informal complaint. Ms. Wolf said she would get back to Ms. Sizova. After Ms. Wolf spoke with her supervisor, she allegedly told Ms. Sizova she could not file an informal EEO complaint with NIST because she was a post-doctoral fellow. At a subsequent evidentiary hearing, although Ms. Wolf denied refusing outright to accept the complaint, she testified she told Ms. Sizova the forty-five day period for filing an informal complaint with NIST had passed and directed Ms. Sizova to pursue her administrative remedies as a University employee against the University. It is undisputed that Ms. Sizova filed virtually identical administrative charges of discrimination with the EEOC against both NIST and the University on May 23, 1997. The charge against NIST was dismissed on June 11 1997, by the EEOC on the ground that it was without jurisdiction over a claim against a federal agency.

II

NIST moved for dismissal under Fed.R.Civ.P. 12(b)(1), alleging that Ms. Sizova failed to exhaust her administrative remedies and that the court therefore lacked subject matter jurisdiction over the Title VII claim against NIST. The district court held a hearing on the matter and granted NIST's motion. In so doing, the court found that Ms. Sizova was required to contact an EEO counselor within forty-five days of February 10, 1997, or by March 27, 1997. The court found that Ms. Sizova had been notified of the forty-five day limit by posters prominently displayed in her place of employment at NIST and that she had failed to satisfy any of the grounds provided by the applicable regulation for extending this time limit. On appeal, Ms. Sizova challenges the procedure used by the district court, and the court's conclusion that the posters gave her notice under the circumstances.

We turn first to the procedure employed by the district court. Ms. Sizova makes several challenges to the manner in which the district court dealt with NIST's motion to dismiss. She contends the court erred in failing to properly convert the motion to one for summary judgment for two reasons: the jurisdictional question, if any, was intertwined with the merits of her claim; and the exhaustion issue did not present a question of subject matter jurisdiction. She also maintains the court erred in ruling on the motion without giving notice that an evidentiary hearing would be held and without allowing discovery on the matter. We address these contentions in order.

When, as here, a party's Rule 12(b)(1) motion challenges the facts upon which subject matter jurisdiction depends, "a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995) (citations omitted). Reliance on evidence outside the pleadings in addressing such a motion does not, as a general rule, convert the motion to one for summary judgment under Fed.R.Civ.P. 56. Id. We have recognized an exception to this general rule, where "the jurisdictional question is intertwined with the merits of the case." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987); see also Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir.2000); United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 (10th Cir.1996). We have stated that subject matter jurisdiction and the merits are considered to be intertwined "[w]hen subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case." Wheeler, 825 F.2d at 259; see also Pringle, 208 F.3d at 1223.

Ms. Sizova argues that subject matter jurisdiction and the merits are intertwined in this case and that she should have been given the procedural protections of Rule 56 before the district court converted the motion to one for summary judgment. She bases her argument on the fact that NIST moved for dismissal under Title VII, the same statute under which she asserts her cause of action. "Under Wheeler, however, the focus of the inquiry is not merely on whether the merits and the jurisdictional issue arise under the same statute. Rather, the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim." Pringle, 208 F.3d at 1223. Here, the jurisdictional issue is whether Ms. Sizova has exhausted her administrative remedies, a matter that is simply not an aspect of her substantive claim of discrimination.²

Nonetheless, the fact that NIST's alleged lack of subject matter jurisdiction is not intertwined with the merits of Ms. Sizova's claim does not resolve her alternative argument that the exhaustion issue in this case simply does not present a question of subject matter jurisdiction at all. This is not an uncomplicated matter. We have held that the exhaustion of administrative remedies is a jurisdictional...