                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 22 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 LORI J. TUCKER,

               Plaintiff - Appellant,

          v.                                             No. 03-1195
                                              (D. Ct. Nos. 01-N-1787(OES) &
 COLORADO DEPARTMENT OF                               02-N-1917 (OES))
 PUBLIC HEALTH AND                                        (D. Colo.)
 ENVIRONMENT,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McWILLIAMS and LUCERO, Circuit
Judges.


      Plaintiff-Appellant Lori J. Tucker filed two suits, consolidated in the

District Court, against her former employer, Defendant-Appellee Colorado

Department of Public Health and Environment (“the Department”), alleging two

retaliation claims in violation of Title VII of the Civil Rights Act of 1964. See 42

U.S.C. § 2000e et seq. The District Court granted summary judgment in favor of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
the Department, reasoning that Ms. Tucker failed to present any evidence that she

engaged in a protected activity, and a motion to dismiss, reasoning that Ms.

Tucker failed to exhaust her administrative remedies. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and AFFIRM.

                               I. BACKGROUND

      The record on appeal is far from clear. Our best attempt at deciphering this

confusing scenario follows. In August 1988, Ms. Tucker began working for the

Department as a word processor. Following a number of promotions, on August

1, 1998, Ms. Tucker assumed the position of Environmental Protection Specialist

III (“EPS III”), where she independently oversaw the Department’s biosolids

program. On August 31, 1998, Ms. Tucker received her first paycheck following

her promotion to EPS III, which she believed did not fully reflect the salary to

which she was due. Believing that the Department withheld her full raise because

of her race and sex, Ms. Tucker filed an internal grievance. After investigating

her claims, the Department determined that the evidence did not support Ms.

Tucker’s contention.

      On February 16, 1999, Ms. Tucker filed a Charge of Discrimination with

the Equal Employment Opportunity Commission (“EEOC”) alleging that, after she

filed the internal grievance, she was “denied equal wages and subjected to

different terms and conditions of employment in retaliation for filing” the


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grievance. On May 11, 2001, she requested a right-to-sue letter on this claim,

which the EEOC issued on June 11, 2001. This “wage claim” constitutes Ms.

Tucker’s first cause of action against the Department.

      As early as the fall of 2000, the Department began questioning Ms.

Tucker’s performance in the EPS III position. The Department first issued a

“corrective action” to Ms. Tucker on October 30, 2000, for handling a work

assignment in an “unprofessional, disrespectful manner.”     Beginning in March

2001, the Department began an extensive review of Ms. Tucker’s work. As a

result, it concluded that she had fabricated or mismanaged significant portions of

her work. Specifically, it determined that she had falsely claimed to have

inspected several sites and that she had not maintained, or had entirely fabricated,

records regarding her inspections of other sites. The Department then issued a

second corrective action in May 2001, citing additional examples of what her

supervisors believed to be unprofessional and uncooperative behavior.     On May 7,

2001, the Department placed Ms. Tucker on administrative leave.

      On June 8, 2001, Division Director J. David Holm met with Ms. Tucker and

her attorney to discuss the issues raised in the investigation. At this meeting, Mr.

Holm questioned Ms. Tucker extensively regarding the allegations. From what he

perceived to be evasive and confusing answers, he concluded that there were

significant problems with her work. As a result, the Department fired Ms. Tucker


                                          -3-
effective June 29, 2001. This action constitutes the basis for Ms. Tucker’s

“retaliatory discharge claim” against the Department.

      Ms. Tucker appealed her termination to the State Personnel Board. As part

of that appeal, Ms. Tucker filed a discrimination charge with the Colorado Civil

Rights Department (“CCRD”) on August 8, 2001, asking the CCRD to investigate

her then-pending claims before the State Personnel Board. On September 5,

2001, however, she withdrew her CCRD charge.

      On May 16, 2002, Ms. Tucker requested a right-to-sue letter from the

EEOC regarding her retaliatory-discharge claim. The EEOC referred this request

to the Department of Justice, which issued a right-to-sue letter on July 18, 2002.

Thereafter, Ms. Tucker filed a complaint in federal court.

      The Department moved for summary judgment on the wage claim,

contending that Ms. Tucker could not make out a prima facie case under Title

VII. Asserting that she had failed to exhaust her administrative remedies, it also

moved to dismiss her retaliatory-discharge claim for lack of jurisdiction. The

District Court granted both motions, and this appeal followed.

                                II. DISCUSSION

A.    The Wage Claim

      1.     Standard of Review

      “We review the grant of a motion for summary judgment de novo.      ” Mincin


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v. Vail Holdings, Inc. , 308 F.3d 1105, 1108 (10th Cir. 2002). “Summary

judgment is proper only if the evidence, reviewed in the light most favorable to

the party opposing the motion, demonstrates that there is no genuine issue as to

any material fact, and that the moving party is entitled to judgment as a matter of

law.” Save Palisade FruitLand v. Todd    , 279 F.3d 1204, 1209 (10th Cir. 2002).

In opposing a motion for summary judgment, “[t]he nonmoving party may not . . .

rely solely on its pleadings but must set forth specific facts showing that there is a

genuine issue for trial with regard to those dispositive matters for which it carries

the burden of proof.”   Mincin , 308 F.3d at 1108.

      2.     Merits

      On her wage claim, Ms. Tucker argues that the Department discriminated

against her in late August 1998 by refusing to give her the full promotional wage

increase that she believes was due. The District Court rejected this claim, holding

that, because Ms. Tucker had not referenced any evidence in the record to show

that she engaged in protected conduct before the alleged discrimination took

place, she failed to establish a prima facie case under Title VII.

      On appeal, Ms. Tucker contends that the District Court erred in concluding

that she failed to provide such evidence. In support of this contention, she

provides (for the first time on appeal) extensive citation to the record to show that

she engaged in protected activity before the Department allegedly denied her the


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proper wage increase.

       Her effort is too late. Even if this long list of citations establishes a

genuine issue of material fact as to whether Ms. Tucker engaged in protected

activity prior to the alleged discrimination, her attorney did not provide these

citations to the District Court. We refuse to allow him to play catch-up on appeal.

       Although we find support for this conclusion in many sources, one in

particular stands out: Rule 83(b) of the Federal Rules of Civil Procedure. It

provides:

       A judge may regulate practice in any manner consistent with federal
       law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules
       of the district. No sanction or other disadvantage may be imposed for
       noncompliance with any requirement not in federal law, federal rules,
       or the local district rules unless the alleged violator has been
       furnished in the particular case with actual notice of the requirement.
       Fed. R. Civ. P. 83(b).

Pursuant to this rule, a district judge may establish personal “standing orders”

regulating practice before his court (and subsequently punish parties for violating

those rules), so long as (1) those procedures are consistent with federal law and

the Rules of Civil Procedure; and (2) the violating party had “actual notice” of the

rule. See generally Myron J. Bromberg & Jonathan M. Korn,         Individual Judges’

Practices: An Inadvertent Subversion of the Federal Rules of Civil Procedure       , 68

S T . J OHN ’ S L. R EV . 1 (1994).

       Both requirements are satisfied here. First, in his “Practice


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Standards—Civil,” District Judge Edward W. Nottingham provides that a party

opposing summary judgment must specifically reference record material

supporting her opposition.   See D. Colo. R., Judicial Officers’ Procedures, Judge

Nottingham’s Practice Standards—Civil, at p. 11,     available at

http://www.co.uscourts.gov/judges/ewn_trial_civ.pdf (last visited July 14, 2004).

This requirement does not conflict with federal law or any of the Rules of Civil

Procedure. Second, in a September 18, 2001, “General Case Management Order,”

Judge Nottingham admonished counsel in this case to adhere strictly to these

rules, calling special attention to the summary judgment requirements. The

September 18 order also notified counsel that they could receive copies of the

summary judgment rules from the clerk’s office and from the court’s website.     See

Fed. R. Civ. P. 83 cmt. to 1995 amendments (noting that a party has sufficient

notice of a judge’s rules if the judge enters an “order in a case specifically

adopting by reference a judge’s standing order and indicating how copies can be

obtained”). Hence, under his standing rules, Judge Nottingham could properly

refuse to consider any unsupported allegation. Therefore, the District Court did

not err in concluding that Ms. Tucker failed to establish that she engaged in

protected activity before her August 1998 wage dispute.

B.    The Retaliatory Discharge Claim

      1.     Standard of Review


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       “Exhaustion of administrative remedies is a ‘jurisdictional prerequisite’ to

suit under Title VII.”   Jones v. Runyon , 91 F.3d 1398, 1399 (10th Cir. 1996). The

burden of establishing jurisdiction rests squarely on the shoulders of the party

claiming it. Southway v. Central Bank of Nigeria      , 328 F.3d 1267, 1274 (10th Cir.

2003). We review de novo a district court’s legal conclusions regarding dismissal

for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and we review

for clear error any findings of jurisdictional facts that underlie that ruling.

Maestas v. Lujan , 351 F.3d 1001, 1013 (10th Cir. 2003).

       2.     Merits

       We next consider whether Ms. Tucker exhausted her administrative

remedies with respect to her retaliatory-discharge claim.     Her primary argument is

that, because she exhausted her administrative remedies with respect to her

August 1999 wage claim, she did not need to exhaust with respect to her 2001

discharge claim because it was “like and related to” her earlier claim. She cites to

several pre-2002 cases to support this contention. She also claims that, in any

event, she properly exhausted her administrative remedies by presenting the

matter to the State Personnel Board.

       In response, the Department seems to concede that a plaintiff need not

exhaust her administrative remedies as to claims that are “like and related” to an

earlier claim. It claims, however, that a plaintiff cannot take advantage of this


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rule unless the later discrimination occurs while the first claim is still pending

before the EEOC. The Department cites Ingels v. Thiokol Corp., 42 F.3d 616

(10th Cir. 1994), and Mosely v. Pena, 100 F.3d 1515 (10th Cir. 1996), to support

this theory. As to her second theory, the Department claims that Ms. Tucker

could only exhaust her administrative remedies with the CCRD, not the State

Personnel Board, and that because she withdrew her CCRD charges shortly after

filing them, she never exhausted as to her retaliatory-discharge claim.

              a.      Exhaustion of “Like and Related” Claims

       Prior to 2002, Tenth Circuit law allowed a party to include in a civil claim

those acts that were “like or reasonably related to the allegation of the EEOC

charge, including new acts occurring during the pendency of the charge before

the EEOC.” Ingels, 42 F.3d at 625 (emphasis added). Whatever the exact scope

of that rule was, it is no longer the law.   See National R.R. Passenger Corp. v.

Morgan , 536 U.S. 101 (2002) (holding, under Title VII, that an employee seeking

to recover for discrete acts of alleged discrimination, with respect to which he

first filed a discrimination charge with the appropriate state agency, may only

recover for those acts occurring within 300 days of the date that the employee

filed his charge with the EEOC).

       In Martinez v. Potter , 347 F.3d 1208, 1210 (10th Cir. 2003), we held that

we lacked jurisdiction over a postal employee’s allegations of discrimination


                                             -9-
because he failed to exhaust his administrative remedies as to each discrete

incident of discrimination. In    Martinez , the plaintiff filed an EEOC complaint for

alleged discriminatory acts occurring in 1999. When he filed his civil case,

however, he included alleged acts of discrimination that occurred following the

EEOC filing, including a September 2000 reprimand and his April 2000

termination. As did the District Court here, the district court in         Martinez relied

on Ingels to dismiss the postal worker’s claims as unexhausted.

       On appeal, the postal employee argued that he did not need to exhaust the

later claims because they were “like or reasonably related” to the earlier claims

made in his EEOC filing. Pointing to the Supreme Court’s decision in             Morgan ,

536 U.S. 101 (2002), we disagreed, holding that “each discrete incident of

[discrimination] constitutes its own ‘unlawful employment practice’ for which

administrative remedies must be exhausted.”          Martinez , 347 F.3d at 1210. We

reasoned that this rule supports the policies of Title VII in that it “put[s] an

employer on notice of a violation prior to the commencement of judicial

proceedings . . . . [and it] facilitate[s] internal resolution of the issue rather than

promoting costly and time-consuming litigation.”        1
                                                            Id. at 1211.


       1
         The Supreme Court has specifically noted that this rule does not apply to
claims of hostile environment because, by definition, such claims are based on a
string of incidents rather than separate acts. See Davidson v. America Online,
Inc., 337 F.3d 1179, 1185 (10th Cir. 2003) (discussing Morgan). Ms. Tucker
                                                                     (continued...)

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       Although the District Court did not rely on     Martinez in rendering its

decision, we may affirm on any grounds supported by the record.         United States v.

Lang , 364 F.3d 1210, 1222 (10th Cir. 2004). As such, under        Martinez , Ms.

Tucker’s “like and related” claim must fail. It is clear that Ms. Tucker’s 1999 pay

dispute and her 2001 discharge claim are “discrete incidents” of employment

discrimination. Thus, she must fully exhaust her administrative remedies as to

each claim.

              b.     CCRD

       We next address whether, in the absence of her “like and related” argument,

Ms. Tucker carried her burden to show that she exhausted her administrative

remedies for the retaliatory-discharge claim. We hold that she has not.

       Section 706(c) of Title VII provides that, in cases alleging discrimination

involving a state, a claimant may not file a charge of discrimination with the

EEOC unless she has first filed a claim with an appropriate state agency and

given that agency at least sixty days to attempt to resolve the matter (unless the

state agency dismisses the claim earlier).      See 42 U.S.C. § 2000e-5(c);   see also

EEOC v. Commercial Office Prod. Co.          , 486 U.S. 107, 110-11 (1988). The

plaintiff can only satisfy this sixty-day waiting period by filing with a state




       (...continued)
       1

does not make a hostile environment claim.

                                             - 11 -
agency designated by the EEOC as a deferral agency.        See 2 Arthur Larson & Lex

K. Larson, Employment Discrimination        § 48.12(a)(1), at 9A-23 (1992). Further,

if the plaintiff dismisses her complaint pending before the state deferral agency

prior to the expiration of the sixty-day waiting period, she has failed to exhaust

the requirements of § 706(c).     See Zugay v. Progressive Care, S.C.   , 180 F.3d 901,

903 (7th Cir. 1999); cf. also Khadir v. Aspin , 1 F.3d 968, 971 (10th Cir. 1993)

(holding that, in a Title VII case involving a federal employer, a complainant has

not exhausted her administrative remedies if she “abandons . . . her claim before

the agency has reached a determination”).

       Colorado has two § 706 deferral agencies. First, the EEOC has certified

the CCRD as an appropriate deferral agency for all discrimination claims.       See 29

C.F.R. § 1601.74. Second, the State Personnel Board is an appropriate deferral

agency as to all claims except those arising under § 704(a) of Title VII

(retaliatory-discharge claims).    Id. n.4. As to such claims, the State Personnel

Board acts only as a “Notice Agency.”      Id.

       In applying this body of law, we glean the following. First, Ms. Tucker

could not satisfy the sixty-day waiting period by pursuing her case before the

State Personnel Board because it is merely a “Notice Agency” as to § 704(a)

claims. Second, Ms. Tucker did not satisfy the sixty-day waiting period with the

CCRD—the only available deferral agency for her § 704(a) claim—because she


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dismissed her claim before the CCRD less than one month after filing. As such,

the District Court correctly concluded that Ms. Tucker failed to exhaust her

administrative remedies.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM the judgment of the District Court.

                                      ENTERED FOR THE COURT,


                                      Deanell Reece Tacha
                                      Chief Circuit Judge




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