                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      January 4, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    ELIZA BETH JEN KINS,

             Plaintiff-Appellant,

    v.                                                  No. 05-2007
                                              (D.C. No. CIV-03-522-ACT/W DS)
    EDUCATIONAL CREDIT                                    (D . N.M .)
    M A N A G EM EN T C OR PO RA TION,

             Defendant-Appellee.



                            OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         Plaintiff Elizabeth Jenkins sued her former employer, Educational Credit

M anagement Corporation (ECM C), alleging that her supervisor retaliated against

her for complaining of unlaw ful discrimination. She sought damages under Title

VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment

Act (ADEA). The district court dismissed the Title VII claim on the grounds that


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Jenkins failed to exhaust her administrative remedies, and ECM C prevailed in the

trial of the ADEA claim. 1 Jenkins now appeals the district court’s dismissal of

her Title VII claim and its entry of judgment on her ADEA claim in favor of

ECMC. W e take jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

      The relevant facts are discussed below in the context of each issue raised

on appeal.

I. Dism issal of the Title VII Claim

      ECM C fired Jenkins in February 2002. On June 26, 2002, she filed a

charge of discrimination against ECM C with the New M exico Human Rights

Division and the Equal Employment O pportunity Commission (EEOC Charge).

In the EEOC Charge, Jenkins checked boxes to indicate that her complaint

stemm ed from age discrimination and retaliation. She described the particulars of

her claim as follows:

      I. STATEM ENT OF HARM : I was hired on [sic] September 2000.
      On February 4, 2002 I was terminated in retaliation for having
      opposed a discriminatory act based on age discrimination.




1
       Jenkins also brought a claim under the Americans W ith Disabilities Act
(ADA). Shortly after ECM C filed its motion to dismiss, however, she consented
to a dismissal of both her Title VII and ADA claims. Later, she moved to vacate
the order of dismissal with respect to her Title VII claim, arguing that she
consented to its dismissal in error. Accordingly, the parties completed briefing,
and the district court adjudicated ECM C’s motion to dismiss, which by then was
limited to the Title VII claim.

                                        -2-
      II. RESPO NDENT’S REASO N FO R ADVERSE ACTION: I was
      told that I was being terminated because I did not get along with my
      manager and because I didn’t support her.

      III. STA TEM EN T O F D ISCRIM INATION: I BELIEVE I HAVE
      BEEN DISCRIM INATED AGAINST BECAUSE OF my age 45 and
      retaliated against, IN V IO LATION OF THE AGE
      DISCRIM INA TION IN EM PLOYM ENT A CT AND THE N EW
      M EXICO HU M AN RIGH TS ACT.

Aplt. App. at 45. The EEOC Charge did not include any facts relating to

discrimination prohibited by Title VII. 2 Nonetheless, the Notice of Charge of

Discrimination that the State sent to ECM C stated that Jenkins had filed a charge

under Title VII, the ADEA, and the New M exico Human Rights Act. After

investigating Jenkins’s complaint, the State found insufficient evidence to

conclude that she had been discriminated against on the basis of age. It therefore

dismissed her complaint with prejudice. On M arch 14, 2003, the EEOC adopted

the State’s findings and issued a right-to-sue letter.

      Jenkins filed her complaint in this action on M ay 2, 2003. On September 9,

2003, ECM C filed a partial motion to dismiss the Title VII claim under

Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. ECM C argued

that the district court lacked subject-matter jurisdiction over the Title VII claim

because Jenkins had failed to exhaust her administrative remedies. It reasoned




2
       Title VII makes it unlawful for an employer to discharge or otherwise
discriminate against any individual based on race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a)(1).

                                          -3-
that Jenkins’s EEOC Charge was not sufficient to meet the exhaustion

requirement because the charge did not include any factual allegations relating to

illegal discrimination under Title VII.

      In ruling on the motion, the district court allowed ECM C to submit

evidence of Jenkins’s failure to exhaust. In addition to the EEOC Charge, the

court considered other documents generated during the State’s investigation and

concluded that Jenkins had not filed an administrative charge of discrimination

under Title VII. The court declined to read into the EEOC Charge a complaint of

Title VII discrimination because it found that “Plaintiff’s Charge contain[ed] no

factual allegations concerning race, color, religion, sex, or national origin.” Id.

at 119-20. It further found that the allegations in the EEOC Charge were not

reasonably related to any Title VII claim. Since we have held that exhaustion of

administrative remedies is a jurisdictional prerequisite to filing a Title VII

lawsuit, Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996), the court

concluded that it lacked jurisdiction over Jenkins’s Title VII claim and dismissed

the claim with prejudice.

      Jenkins raises two challenges to the district court’s decision. First, she

argues that she did, in fact, exhaust her administrative remedies. Because the

Title VII box was checked on the Notice of Charge of Discrimination that the

State sent to ECM C, she argues that her former employer was on notice that she

intended to pursue a Title VII claim, and that this satisfied the exhaustion

                                          -4-
requirement. Second, she argues that the district court erred in considering

matters beyond the pleadings. She claims that the court’s consideration of

documents attached to ECM C’s reply brief impermissibly converted ECM C’s

motion into a Rule 56 motion for summary judgment without giving her an

opportunity to submit rebuttal evidence. These challenges raise legal questions,

which we review de novo. Grynberg v. Koch Gateway Pipeline Co., 390 F.3d

1276, 1279 (10th Cir. 2004).

      W e turn first to Jenkins’s contention that the district court impermissibly

converted ECM C’s motion to dismiss into a motion for summary judgment. This

argument was squarely rejected in Davis ex rel. Davis v. United States, 343 F.3d

1282, 1294 (10th Cir. 2003). There, the district court dismissed plaintiffs’ claims

on jurisdictional grounds because the plaintiffs had failed to exhaust remedies

provided by the Bureau of Indian Affairs. 343 F.3d at 1294. In reaching its

decision, the district court considered information beyond the allegations of the

complaint, which the plaintiffs argued was not permissible under Rule 12(b)(1).

W e disagreed, explaining that it is appropriate, particularly in the exhaustion

context, for a district court to consider evidence beyond the pleadings in resolving

a challenge to subject-matter jurisdiction. Davis, 343 F.3d at 1296.

      W hen a party challenges the allegations supporting subject-matter
      jurisdiction, the court has wide discretion to allow affidavits, other
      documents, and a limited evidentiary hearing to resolve disputed
      jurisdictional facts. In such instances, a court’s reference to



                                          -5-
      evidence outside the pleadings does not convert the motion to
      dismiss to a Rule 56 motion for summary judgment.

Id. (quotation, citation, and brackets omitted). It is clear in this case that the

district court construed ECM C’s motion under Rule 12(b)(1) rather than Rule 56.

The court cited Rule 12(b)(1) and explained that “‘[e]xhaustion of administrative

remedies is a ‘jurisdictional prerequisite’ to suit under Title VII.’” Aplt. App.

at 118 (quoting Jones 91 F.3d at 1399). Indeed, it would have been improper for

the court to enter judgment under Rule 56 based on lack of subject-matter

jurisdiction. Shikles, 426 F.3d at 1317-18. Under Davis, the district court did not

convert the motion into a Rule 56 motion by considering evidence beyond the

pleadings. M oreover, because Jenkins first agreed to, and then moved to

withdraw, the stipulated dismissal of her Title VII claim, she had over a year to

respond to ECM C’s motion. Thus, even if the district court had construed the

motion pursuant to Rule 56, Jenkins cannot credibly claim that she was robbed of

the opportunity to gather and present evidence in support of her exhaustion

argument. Accordingly, we see no procedural errors or prejudice with respect to

Jenkins in the district court’s disposition of the motion.

      W e also agree with the district court’s ultimate conclusion that Jenkins

failed to exhaust her administrative remedies with respect to the Title VII claim.

Jenkins has not pointed to a single factual allegation in any of the State’s

investigative documents that concerns discrimination prohibited by Title VII. The



                                           -6-
EEOC Charge that she filed mentions only age discrimination and retaliation in

violation of the ADEA. The Title VII box was checked in the notice that ECMC

received, but that document was clearly based on, and was meant to be read

alongside, the EEOC Charge itself. As the district court intimated, it was not

unreasonable to assume that an agency employee simply checked the Title VII

box in error. ECM C also submitted additional documentation demonstrating that

the focus of the State’s investigation was solely age discrimination. Based on our

review of the record, there is simply no evidence that Jenkins complained of any

discrimination prohibited by Title VII in any forum. Even at this juncture in the

case, we are mystified as to the factual underpinnings of this elusive Title VII

claim. In short, Jenkins has advanced no colorable argument that would justify

reinstating her Title VII claim. The district court’s order dismissing that claim is

therefore affirmed.

II. The ADEA Claim

      A. Jenkins’s M otion for Judgment as a M atter of Law

      Jenkins’s ADEA claim was tried to a jury in D ecember 2004. At the close

of evidence, her attorney made an oral motion for judgment as a matter of law,

formerly referred to as a motion for directed verdict, on the issue of Jenkins’s

prima facie case. The transcript of that motion reads as follow s:

      At this time, the plaintiff would like to make a motion for a limited
      directed verdict with respect to the plaintiff’s prima facie case. I
      think it has been clearly established and, in fact, is admitted by the

                                         -7-
      defense, that Liz Jenkins made protected disclosures that she opposed
      discrimination in the workplace. And it is certainly not contested
      that she was fired.

             She has therefore established her prima facie case, and the
      entirety of the issues to be tried to the jury have to do with the
      defense of a neutral nondiscriminatory reason. W e’d ask that the
      Court therefore give an instruction that the prima facie case has been
      satisfied.

Aplt. App. at 637. The district court denied the motion, and Jenkins claims that

its ruling was in error.

      “W e review the denial of a motion for a directed verdict de novo, applying

the same standards used by the district court.” Youren v. Tintic Sch. Dist.,

343 F.3d 1296, 1301-02 (10th Cir. 2003) (quotation omitted). To obtain a

directed verdict, a party must show that “the evidence, viewed in the light most

favorable to the nonmoving party, points but one way and is susceptible to no

reasonable inferences supporting the non-moving party.” Id. (quotation omitted).

      Jenkins claims that it was error to deny her request for a directed verdict

because she clearly made out her prima facie case. This argument is a

non-starter. Aside from the fact that her motion was actually a request for a jury

instruction rather than a motion for directed verdict, Jenkins overlooks a more

fundamental flaw. In a discrimination lawsuit, the jury does not apply the

                      3
M cDonnell Douglas         framework in arriving at its verdict. U.S. Postal Serv. Bd.




3
      M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

                                             -8-
of Governors v. Aikens, 460 U.S. 711,715 (1983). “Rather, the issue before the

jury is ‘discrimination vel non.’” Abuan v. Level 3 Commc’ns., Inc., 353 F.3d

1158, 1169 (10th Cir. 2003) (citing Aikens, 460 U.S. at 715). Evidently, the

district court agreed with Jenkins that she satisfied her prima facie case under

M cDonnell Douglas, for it permitted her to go to trial on her ADEA claim. That

is all she was entitled to. After a full trial on the merits, the district court

correctly left to the jury “the single overarching issue whether [Jenkins] adduced

sufficient evidence to warrant [its] determination that adverse employment action

was taken against [her].” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,

1226 (10th Cir. 2000). As w as its prerogative, the jury answ ered that question in

the negative, and now Jenkins seeks improperly to blame the district court for the

jury’s decision. But the court committed no error in denying her Rule 50(a)

motion. 4




4
       ECM C argues that Jenkins w aived her challenge to the district court’s
ruling by failing to renew her motion for judgment as a matter of law after entry
of judgment as provided under Federal Rule of Civil Procedure 50(b). It contends
that the Supreme Court’s recent decision in Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 126 S. Ct. 980 (2006), abrogates Cummings v. GM Corp., 365
F.3d 944, 951 n.1 (10th Cir. 2004), in which this court held that a party need not
renew a Rule 50(a) motion after judgment in order to preserve an issue for appeal.
W hile we find Unitherm ’s affect on the continued vitality of Cummings to be an
interesting question, we leave it for another day and another case. W hether
preserved or not, Jenkins has no legitimate challenge to the court’s denial of her
Rule 50(a) motion.

                                            -9-
B. Sufficiency of the Evidence

       In another unusual argument, Jenkins – the plaintiff – claims that

insufficient evidence supported the jury’s verdict, in particular its finding that she

did not engage in activity protected by the ADEA. Jenkins failed to raise this

argument in the district court. She did not raise the issue in her motion for

directed verdict at the close of evidence, and she did not make any post-verdict

motions. Consequently, as she has waived any appellate challenge to the

sufficiency of the evidence, we need not address the merits of her argument.

Davoll v. Webb, 194 F.3d 1116, 1136 (10th Cir. 1999) (“A failure to move for a

directed verdict on a particular issue will bar appellate review of that issue.”) For

the sake of Jenkins’s counsel, however, we reiterate that “[t]he ultimate burden of

persuading the trier of fact that the defendant intentionally discriminated against

the plaintiff remains at all times with the plaintiff.” Texas D ep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981). Accordingly, any failure of proof

redounded to the benefit of ECM C, not Jenkins.

       C. Challenged Jury Instruction

       Finally, Jenkins argues that the district court gave an erroneous jury

instruction regarding what constitutes protected activity in the context of a

retaliation claim under the ADEA. And she asserts additional error in the district

court’s refusal to give a curative instruction. The court instructed the jury as

follow s:

                                         -10-
      In order for an informal complaint by plaintiff to a superior to be
      considered protected activity, plaintiff must prove by a
      preponderance of the evidence that, one, she subjectively believed, in
      good faith, that defendant subjected other employees to unlawful
      discrimination; and two, her belief was objectively reasonable in
      light of the facts.

Aplt. App. at 643 (emphasis added). Jenkins contends that this w as tantamount to

instructing the jury that she had to prove the underlying discrimination in order to

show retaliation, which is not required under the ADEA. ECM C counters that

Jenkins w aived any objections to the jury instruction by failing to lodge a timely

objection in the district court.

      In order to comply with Federal Rule of Civil Procedure 51, which

establishes the procedure for objecting to a jury instruction, “a party must both

proffer an instruction and make a timely objection to the refusal to give a

requested instruction.” Abuan, 353 F.3d at 1172. The record before us indicates

that Jenkins did neither. To the contrary, her counsel explicitly agreed to the

exact jury instruction quoted above, first telling the court “I think it’ll work, Your

Honor,” Aplt. App. at 497, and later reaffirming that “Plaintiff [had] no

objections” to the instructions that the court intended to give the jury, id. at 632.

      During closing arguments, Jenkins’s counsel objected to ECM C’s

characterization of her burden of proof on the retaliation claim and told the court,

“I think it’s appropriate to ask for a curative instruction.” Id. at 690. He never

proffered such an instruction, however. M oreover, Jenkins never objected to the



                                          -11-
instruction that was actually given, and she cannot rely on the fact that it differed

from the proposed jury instruction that she originally submitted to the court. “A

party does not satisfy the requirements for Rule 51 by merely submitting to the

court a proposed instruction that differs from the instruction ultimately given to

the jury.” Abuan, 353 F.3d at 1172 (quotation omitted). There being no record of

any timely objection to the challenged jury instruction, we simply review it for

plain error. Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1227 (10th Cir.

2001).

         Jenkins is correct, of course, that “[a] meritorious retaliation claim will

stand even if the underlying discrimination claim fails.” Sanchez v. Denver Pub.

Schs., 164 F.3d 527, 533 (10th Cir. 1998). But we are not convinced that the

court’s instruction was to the contrary. Jenkins objects to the part of the

instruction that required her to show that it was objectively reasonable for her to

believe that discrimination occurred. Contrary to her assertion, this was not the

same as requiring her to prove that discrimination in fact did occur. Under plain

error review, “[w]e may only reverse in an exceptional circumstance, where the

error was patently erroneous and prejudicial and where fundamental injustice

would otherwise occur.” Abuan, 353 F.3d at 1173. Jenkins hasn’t shown patent

error, prejudice, or anything close to fundamental injustice. W e therefore reject

her request for a new trial based on the retaliation jury instruction.




                                            -12-
The judgment of the district court is AFFIRMED.

                                          Entered for the Court



                                          Paul J. Kelly, Jr.
                                          Circuit Judge




                               -13-
