                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 11 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JANICE NASH,

                Plaintiff-Appellant,

    v.                                                   No. 98-3155
                                                    (D.C. No. 97-CV-2285)
    THE UNIVERSITY OF KANSAS                               (D. Kan.)
    MEDICAL CENTER,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.




         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.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Janice Nash, appearing pro se, appeals the district court’s

dismissal of her complaint alleging that her employer, the defendant University of

Kansas Medical Center (UKMC), discriminated against her on the basis of her

race in violation of 42 U.S.C. §§ 2000e through 2000e-17 (Title VII), unlawfully

retaliated against her in violation of Title VII, and constructively discharged her.

The district court granted summary judgment in favor of defendant. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Ms. Nash was employed by UKMC as an operating room technician from

December 1990 until she resigned in June 1996. She alleged UKMC took

numerous discriminatory actions against her from the start of her employment

until the spring of 1992. Specifically, Ms. Nash alleged UKMC failed to give her

raises corresponding to her satisfactory evaluations and gave her undesirable work

assignments. Ms. Nash alleges that after she complained of these acts of

discrimination, her supervisors retaliated against her by denying her work

assignment and schedule requests, refusing to let her transfer to another

department, denying her application to the UKMC nursing school, and denying

her requested sick leave. Ms. Nash also alleges a shift supervisor broke into her

locker and stole some of her personal belongings in retaliation for Ms. Nash’s

complaints of racial discrimination. Ms. Nash resigned from UKMC in June




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1996, after her request to be relieved from a weekend work assignment was

denied.

       Ms. Nash filed a claim against UKMC for racial discrimination with the

Equal Employment Opportunity Commission (EEOC) on January 14, 1995. After

the EEOC dismissed her claim, Ms. Nash filed her complaint in federal district

court. In a thorough and well-reasoned order, the district court held that UKMC

was entitled to judgment as a matter of law. The court held that Ms. Nash was

barred from asserting her Title VII claim because all of the alleged discriminatory

and retaliatory actions, except one, occurred more than 300 days prior to the date

Ms. Nash filed her EEOC claim. The only action that occurred within the

300-day limitations period was the theft of personal items from Ms. Nash’s

locker. The district court held the locker incident was not an adverse employment

action by UKMC, nor had plaintiff presented any evidence to support an inference

that the theft was causally linked to any of Ms. Nash’s complaints about

discrimination.

       We review the grant of summary judgment de novo and apply the same

standard as did the district court.   See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th

Cir.1996). Summary judgment is appropriate if there is no genuine issue as to any

material fact and the defendant is entitled to judgment as a matter of law.   See id.

In determining whether there is a genuine issue as to any material fact, “we


                                            -3-
examine the factual record and reasonable inferences therefrom in the light most

favorable to [plaintiff].”    Id. (quotations omitted).

       Timely filing is a prerequisite to an employment discrimination civil suit

under Title VII.   See Martin v. Nannie & the Newborns, Inc.     , 3 F.3d 1410, 1414

(10th Cir. 1993). In Kansas, a plaintiff must file Title VII discrimination charges

within 300 days after the alleged discriminatory act occurred.     See 42 U.S.C.

§ 2000e-5(e)(1).   1
                       We have carefully reviewed the record and find that the district

court correctly held that, with one exception, all of the alleged discriminatory and

retaliatory actions occurred prior to the 300-day limitations period.

       “We have held that a Title VII plaintiff may recover for discriminatory acts

occurring prior to the statutory limitations period if at least one instance of the

discriminatory practice occurs within the [300-day limitations] period and the

earlier acts are ‘part of a continuing policy or practice that includes the act or acts

within the statutory period.’”     Mascheroni v. Board of Regents of the Univ. of

Calif. , 28 F.3d 1554, 1561 (10th Cir. 1994) (quoting     Martin , 3 F.3d at 1415).

Here, the only incident alleged to have occurred within the limitations period was

the theft of Ms. Nash’s personal items by a shift supervisor. We agree with the

district court that Ms. Nash did not present any evidence that the locker incident


1
       The 300-day limitation applies in those states such as Kansas that
have statutorily prohibited discrimination; otherwise, the limit is 180 days.      See
Martin , 3 F.3d at 1414 n. 4.

                                             -4-
was causally linked to her protected activity under Title VII, nor does the incident

constitute an “adverse employment action” such that it can be considered an

unlawful retaliatory action under Title VII.         See Sanchez v. Denver Pub. Schs. ,

No. 97-1120, 1998 WL 909893, at *3-4 (10th Cir. Dec. 31, 1998) (describing

elements of a prima facie Title VII retaliation claim and defining “adverse

employment action”). Therefore, Ms. Nash failed to show a continuing violation

that includes at least one act of discrimination or retaliation within the time

allowed for suit. The district court correctly held that her Title VII discrimination

claim, based on incidents occurring prior to the relevant filing period, is time

barred. Ms. Nash complains of other incidents of alleged retaliation which she

claims occurred after the 300-day limitations period; however, these incidents

were not presented as evidence before the district court and cannot be considered

on appeal.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED for substantially the reasons set forth in the district court’s order

dated April 13, 1998.



                                                           Entered for the Court



                                                           John C. Porfilio
                                                           Circuit Judge

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