                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                               MAY 3 2002
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 STACEY L. ZINKE,

          Plaintiff - Appellant,

 v.                                                         No. 01-6125
                                                     (D. C. No. 99-CV-1015-T)
 THE HONORABLE RODNEY E.                                 (W. D. Oklahoma)
 SLATER, United States Secretary
 of Transportation; DEPARTMENT OF
 TRANSPORTATION, an Agency of the
 United States Government; FEDERAL
 AVIATION ADMINISTRATION, an
 Agency of the United States Government,

           Defendants - Appellees.




                                   ORDER AND JUDGMENT*


Before EBEL and KELLY, Circuit Judges, and WINDER,** District Judge.



      Plaintiff-Appellant Stacey L. Zinke (“Zinke”) filed an action against her employer,

Defendant-Appellee the United States Secretary of Transportation (“the Secretary”), in

      *
        This order and judgment is not binding precedent, except under the doctrines of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.
      **
         The Honorable David K. Winder, United States District Judge, District of Utah,
sitting by designation.
the United States District Court for the Western District of Oklahoma. Zinke alleged

discrimination based on a hostile work environment, discrimination based on gender, and

retaliation for taking administrative action. The district court dismissed Zinke’s hostile

work environment and gender discrimination claims and granted summary judgment for

the Secretary on the claim of retaliation. Zinke appeals the judgment of the district court.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

                                     BACKGROUND

       Zinke began her association with the Federal Aviation Administration (“FAA”) as

an electronics engineer in approximately September 1989.1 From September 1989 until

March 10, 1991, Zinke worked for a private contractor, providing services to the FAA’s

engineering division. On March 10, 1991, the FAA hired Zinke as an instructor in the

FAA Academy. In February 1991, FAA engineering branch supervisor Bill Pyron made

quid pro quo sexually harassing remarks to Zinke. Specifically, Pyron told her “if she

was looking to have an affair, she didn’t have to look any further than [Pyron].” Pyron

told Zinke that she was a “smart girl and was going to go a long way in the agency.” He

said she was “going to move to a GS-14 faster than [Pyron] had ever seen anybody

move.” Zinke refused these offers and reported the incident to her various supervisors.

In March 1991, she filed an informal complaint of harassment with the FAA’s EEO



       1
        We review the evidence in the light most favorable to Zinke, the non-moving
party on summary judgment.

                                             -2-
office.2 Zinke requested that Pyron be removed from any managerial position in which he

could carry out further acts of harassment.

       Thereafter, Zinke learned that other women had experienced similar sexual

harassment from Pyron. Zinke also learned that Pyron, although removed from his

supervisory job, had been moved to a position which was still considered management

level. Dissatisfied with the resolution of her initial complaint, Zinke reopened her case

with the EEO office.

       The FAA’s engineering division manager confronted Pyron and told him that a full

investigation would be made of all complaints. Shortly thereafter, Pyron retired from the

FAA, effective April 3, 1991. The EEO office informed Zinke of the resolution and sent

her notice to file a formal complaint. Zinke never filed a formal complaint regarding the

Pyron incident.

       In 1994, FAA department AOS-200 openly bid out six or seven GS-14 level

positions. Zinke, who worked in another department but had expertise in the positions

available, bid on each position. Shortly following Zinke’s bids, the department canceled

the availability of the positions to everyone except current employees of department

AOS-200. Zinke thought the process was unfair and admitted: “I had advice from several

people that I should file a complaint, but I knew that the events in my personal life at that


       2
         Zinke’s sequence of events differs slightly from the Secretary’s, but the variance
is immaterial for purposes of this appeal. The court has accepted as accurate Zinke’s
factual recitation.

                                              -3-
time were too demanding to make it wise for me to file at that time, and I wanted to give

AOS a chance to fix it.”

       In 1995, department AOS-200 openly bid out several GS-13 level positions. Zinke

bid on many and in November 1995, she interviewed for one of the positions. Zinke

claims she was told by the interviewing panel that she was “exactly what they were

looking for.” Nonetheless, she did not get the position.

       In 1998, department AOS-200 announced two GS-14 job openings, but limited

eligible applicants to employees in the AOS division. Zinke believed that the positions

had been drawn in such a way as to exclude her from eligibility in order to retaliate

against her for having filed her 1991 EEO complaint. On October 10, 1998, Zinke filed a

formal EEO complaint alleging that department AOS-200 of the FAA discriminated

against her by “nonselection due to reprisal for reporting sexual harassment” in 1991.

The 1998 EEO complaint detailed the facts recited above, focusing exclusively on the

1991 quid pro quo harassment by Pyron and the job postings in 1994, 1995 and 1998.

       On July 16, 1999, Zinke filed a complaint in the United States District Court for

the Western District of Oklahoma against United States Secretary of Transportation. In

addition to the factual allegations set forth in her 1998 EEO complaint, Zinke’s judicial

complaint further alleged that between 1991 and 1998 she was subjected to a variety of

on-going “hostile, harassing, and retaliatory conduct.” For example, Zinke alleged that

she was referred to by FAA management as “the one who caused the demise of Bill


                                            -4-
Pyron,” and was called gender-derogatory names such as “femi-nazi” and “woman.” She

alleged that FAA personnel informed Zinke’s students to “look out for [Zinke] because

she files sexual harassment claims,” and claimed that managerial personnel

misrepresented that Zinke had an improper relationship with Pyron. Zinke also alleged

that she and her academy coworkers had less office space and older furniture than other

divisions.

       Based on these allegations, Zinke’s lawsuit set forth claims for hostile work

environment sexual harassment, gender discrimination and retaliation for filing her 1991

EEO complaint.3 The Secretary moved to dismiss Zinke’s claims of sexual harassment4

and gender discrimination, and moved for summary judgment on the claim of retaliation.

The district court granted the motion to dismiss, concluding that it lacked jurisdiction to

consider Zinke’s claims for hostile work environment harassment and gender

discrimination because Zinke failed to exhaust her administrative remedies. The district

court granted the Secretary’s motion for summary judgment as well, concluding that



       3
        Zinke’s judicial complaint contained 9 causes of action: (1) Sexual Harassment;
(2) Gender Discrimination; (3) Retaliation and Reprisal; (4) Violation of 42 U.S.C. §
1983; (5) Violation of 42 U.S.C. § 1985(3); (6) Violation of Oklahoma Anti-
Discrimination Act; (7) Breach of Contract; (8) Intentional Infliction of Emotional
Distress; and (9) Defamation and Defamation Per Se. Zinke voluntarily dismissed counts
4-9.
       4
        Although Zinke alleged in her complaint that she was subjected to both quid pro
quo sexual harassment and hostile work environment sexual harassment, she conceded in
her response to the Secretary’s motion to dismiss that the quid pro quo claim was
untimely and voluntarily dismissed it.

                                             -5-
Zinke failed to establish a prima facie case of retaliation, and even if she had met this

initial burden, she failed to demonstrate that the Secretary’s explanation for its decision

was pretextual. On appeal, Zinke argues: (1) the district court erred in concluding she

failed to exhaust her administrative remedies on the claims of hostile work environment

and gender discrimination, and (2) the district court improperly weighed factual evidence

in granting summary judgment on her claim of retaliation.

                                       DISCUSSION

I.     Exhaustion of Administrative Remedies

       Before filing suit in federal court, a federal employee is required by law to

complete a number of administrative steps. See Jones v. Runyon, 91 F.3d 1398, 1399-

1400 (10th Cir.), cert. denied, 520 U.S. 1115 (1997). Requiring exhaustion of these

remedies provides the employer with notice of the nature of the charges and an

opportunity to timely investigate and attempt to resolve the matter without judicial action.

See Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997); Seymore v. Shawver &

Sons, Inc., 111 F.3d 794, 799 (10th Cir.), cert. denied, 522 U.S. 935 (1997); Ingels v.

Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). “Exhaustion of administrative remedies

is a ‘jurisdictional prerequisite’ to suit under Title VII.” Jones v. Runyon, 91 F.3d at

1399-1400 & n.1.

       In this case, Zinke filed a formal complaint with the EEO office on October 10,

1998. She acknowledges, however, that much of the discriminatory and harassing


                                             -6-
conduct she alleges occurred outside the limitations period for the 1998 complaint. To

avoid this problem, Zinke claims that the incidents of harassment and gender

discrimination occurring between 1991 and 1998 amount to a continuing pattern and

therefore should be considered under the “continuing violation doctrine.”

       Under the continuing violation doctrine, a plaintiff may recover for incidents

which occurred outside the statutory time limit if at least one instance of the alleged

discriminatory practice occurred within the limitations period and the earlier acts are part

of a “continuing pattern of discrimination.” Martin v. Nannie and the Newborns, Inc., 3

F.3d 1410, 1415 (10th Cir. 1993). To show a continuing violation a plaintiff can either

show “(1) a series of related acts taken against a single individual, one or more of which

falls within the limitations period, or (2) the maintenance of a company-wide policy of

discrimination both before and during the limitations period.” Purrington v. Univ. of

Utah, 996 F.2d 1025, 1028 (10th Cir. 1993).

       To prove a series of related acts, a plaintiff must show the acts rise to the level of a

“dogged pattern” of discrimination as distinguished from “isolated and sporadic

outbreaks.” Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987). To

determine whether the alleged incidents of discrimination constitute a continuing

violation or are discrete unrelated acts, we employ a three-factor inquiry:

       “(i) subject matter–whether the violations constitute the same type of
       discrimination; (ii) frequency; and (iii) permanence–whether the nature of the
       violations should trigger an employee’s awareness of the need to assert her rights
       and whether the consequences of the act would continue even in the absence of a

                                              -7-
       continuing intent to discriminate.”

Mascheroni v. Board of Regents of the Univ. of Cal., 28 F.3d 1554, 1561 (10th Cir. 1994)

(quoting Martin, 3 F.3d at 1415).

       The district court considered these factors and determined that the issues giving

rise to Zinke’s hostile work environment and gender discrimination claims had not been

included in her 1998 EEO complaint. The district court further concluded that even if

Zinke’s 1998 EEO complaint had included the allegations of harassing and discriminatory

conduct, the instances were isolated and did not amount to a continuing violation.

Accordingly, the district court concluded that Zinke’s hostile work environment and

gender discrimination claims were barred for failure to exhaust administrative remedies,

and dismissed these claims for lack of jurisdiction. We review de novo the district court’s

dismissal for lack of subject matter jurisdiction. Painter v. Shalala, 97 F.3d 1351, 1355

(10th Cir. 1996); Jones v. Runyon, 91 F.3d at 1400; Cooper v. American Auto. Ins. Co.,

978 F.2d 602, 611 n.7 (10th Cir. 1992).5


       5
        On appeal, Zinke states that the district court “apparently treated the FAA’s
motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 56” because it
“considered evidentiary materials outside the pleadings, such as Zinke’s 1998 EEO
complaint.” Appellant’s Br. at 10. The Secretary brought its motion to dismiss under
Rule 12(b)(1), seeking dismissal based on a lack of jurisdiction, and the district court
consistently referred to and characterized the motion as such. “Unlike the strict
limitations under 12(b)(6) against considering matters outside the complaint, a 12(b)(1)
motion is considered a ‘speaking motion’ and can include references to evidence
extraneous to the complaint without converting it to a Rule 56 motion.” Wheeler v.
Hurdman, 825 F.2d 257, 259 n.5 (10th Cir.), cert. denied, 484 U.S. 986 (1987). See, e.g.,
Jones v. Runyon, 91 F.3d at 1400 (providing that in order to determine whether charges

                                             -8-
        We agree with the district court’s conclusion that application of the continuing

violation doctrine is inappropriate given these facts. First, the violations alleged in

Zinke’s judicial complaint to support her hostile work environment and gender

discrimination claims are not the same as those alleged in the 1998 EEO charge nor are

they reasonably related to the allegations in the 1998 charge. See Ingels, 42 F.3d at 625

(“[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 . . . .”); Runyon, 91 F.3d at

1400.

        In 1998, Zinke clearly indicated “reprisal” as the exclusive basis for her EEO

complaint. In Block 6, “Check Below Why You Believe You Were Discriminated

Against,” Zinke marked only “Reprisal,” followed by the statement “Non-selection due to

reprisal for reporting sexual harassment.” Although her failure to mark the box for sex

discrimination is not dispositive, it “creates a presumption that she was not asserting

claims represented by boxes not checked.” Gunnell v. Utah Valley State College, 152

F.3d 1253, 1260 (10th Cir. 1998); see also Williams v. Little Rock Mun. Water Works, 21


should be dismissed for lack of subject matter jurisdiction “we examine both [Plaintiff’s]
original charge to the EEOC and her federal court complaint to determine whether the
issues raised to the district court were both new and unrelated to her EEOC charges, thus
defeating the court’s jurisdiction over her action”). Accordingly, we decline to conclude
that the Secretary’s motion to dismiss for lack of jurisdiction had been converted to a
motion for summary judgment.



                                             -9-
F.3d 218, 223 (8th Cir. 1994) (providing employee’s EEOC charge, which mentioned

filing previous racial discrimination charge, reasonably read as alleging only retaliation

claim, particularly in light of employee’s failure to check box for racial discrimination).

Zinke fails to rebut the presumption that she was not asserting additional claims because

her factual description of the reprisal claim completely omits any reference to hostile

work environment or gender discrimination issues. In Block 7, “Explain How You

Believe You Were Discriminated Against,” Zinke described in detail what she believed

was the FAA’s failure to hire her in retaliation for filing the 1991 complaint of quid pro

quo sexual harassment. See Gunnell, 152 F.3d at 1260 (concluding that plaintiff failed to

rebut the presumption that she was not asserting sex discrimination claim, caused by her

failure to mark appropriate box, because “reasonable reader would understand that her

mention of sex discrimination” was merely an “explanation leading up to the gist of her

complaint of retaliation”). There is nothing in the 1998 EEO complaint to put the

Secretary on notice of any hostile work environment or gender discrimination claims. In

fact, the only reference to any kind of harassment in the 1998 complaint was to the 1991

charge of quid pro quo harassment as the “protected activity” element of Zinke’s reprisal

claim. Thus, we conclude Zinke’s hostile work environment and gender discrimination

claims are not the same type of discrimination nor do they reasonably relate to her 1998

EEO charge and the district court correctly determined it lacked subject matter

jurisdiction over these claims. See Jones v. Denver Post Corp., 203 F.3d 748, 755 (10th


                                            -10-
Cir. 2000); Aramburu v. The Boeing Co., 112 F.3d 1398, 1409-10 (10th Cir. 1997);

Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483, 488 (10th Cir. 1991).

       Moreover, to the extent Zinke’s argument on appeal can be construed as claiming

that the 1994 and 1995 incidents described in her 1998 EEO complaint show a continuing

violation of reprisal, this argument also fails.6 The continuing violation doctrine “‘is

premised on the equitable notion that the statute of limitations should not begin to run

until a reasonable person would be aware that his or her rights have been violated.’”

Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1311 (10th Cir. 1999) (quoting

Martin, 3 F.3d at 1415 n.6). Thus, a continuing violation claim will likely fail if the

plaintiff knew, or through the exercise of reasonable diligence would have known, she

was being discriminated against at the time the earlier events occurred. See id. By her

own admission, Zinke was aware of the alleged reprisal as early as 1994. She had a duty

to assert her rights at that time and cannot rely on a continuing violation theory to avoid

the statutory bar. Bullington, 186 F.3d at 1311.

II.    Sufficiency of the Evidence on Retaliation Claim

       To establish a prima facie case of retaliation, a plaintiff must prove: “(1) she



       6
        The district court noted that “at best, the 1998 complaint asserted a continuing
course of reprisal, not a continuing course of gender discrimination or sexual
harassment.” The district court concluded, however, that Zinke’s 1998 EEO complaint
also failed to allege a continuing violation of reprisal because Zinke admitted in the 1998
EEO complaint that she was advised after the 1994 occurrence that she should file a
complaint.

                                            -11-
engaged in a protected activity; (2) the defendant took adverse action against her; and (3)

a causal connection existed between the protected activity and the adverse employment

activity. See Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir. 1994);

Purrington v. University of Utah, 996 F.2d 1025, 1033 (10th Cir. 1993). If plaintiff

establishes a prima facie case, the burden of production shifts, and the defendant must

articulate a legitimate, nondiscriminatory reason for the adverse action. “Once defendant

has dispelled the inference of retaliation by establishing a legitimate reason, ‘the plaintiff

may still prevail if she demonstrates the articulated reason was a mere pretext for

discrimination.’” Purrington, 996 F.2d at 1033 (quoting Anderson v. Phillips Petroleum

Co., 861 F.2d 631, 634 (10th Cir. 1988)); see also Goodwin v. General Motors Corp., 275

F.3d 1005, 1012 (10th Cir. 2002) (providing at summary judgment stage, once defendant

has offered a facially non-discriminatory reason for its employment decision, plaintiff has

the burden to show there is a genuine dispute of material fact, as to whether the employer

acted with discriminatory motive or intent or its proffered reason for the challenged

activity is pretextual - i.e., unworthy of belief).

       The district court granted summary judgment in favor of the Secretary because it

concluded that Zinke failed to establish a prima facie case of retaliation. Specifically, the

court determined that Zinke failed to show a causal connection between filing the 1991

EEO complaint and the FAA’s decision to limit the applicants for two GS-14 positions to

employees in the AOS division–a division that did not include Zinke. The district court


                                               -12-
further concluded that even assuming Zinke could successfully establish a prima facie

case, she failed to provide evidence that the Secretary’s legitimate, nondiscriminatory

explanation for its employment decision–budgetary restraints7–was pretextual. Zinke

argues that the district court ignored and improperly weighed factual evidence and

therefore erred in granting summary judgment in favor of the Secretary. We review the

grant or denial of a motion for summary judgment de novo, applying the same legal

standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Wolf v. Prudential Ins.

Co. of America, 50 F.3d 793, 796 (10th Cir. 1995). Under Rule 56(c), summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(c). In applying the summary judgment standard, we must examine the factual record

and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf,

50 F.3d at 796.

       Reviewing the issue de novo, we agree with the district court that even assuming

Zinke met her burden of showing a prima facie case of retaliation, she has failed to




       The Secretary’s proffered reason for Zinke’s failure to be considered for either of
       7

the GS-14 positions in 1998 was that the FAA was operating under a hiring freeze, due to
budgetary constraints, which precluded AOS from creating any new manpower positions.
Because there were a sufficient number of qualified candidates for the two positions
within AOS, the FAA decided to fill the jobs by promoting current AOS employees.
Zinke was not in the AOS division and was therefore ineligible to apply.

                                             -13-
present evidence sufficient for a jury to conclude that the Secretary’s legitimate, non-

discriminatory reason for limiting eligible applicants to employees outside Zinke’s

division was pretextual.8 Zinke offered no proof that a budgetary constraint did not exist,

nor did she show that employees outside of AOS were considered for the positions in

question. Rather, Zinke based her pretext argument on the following: (1) that Mike

Michaud, the FAA manager responsible for writing job postings, “knew who he and the

FAA had in mind when writing a job description;” (2) that management advised a co-

worker to distance himself from Zinke if he wished to be promoted; and (3) that

management told her after the 1995 jobs were canceled that the reason she did not get

hired was retaliation for filing her 1991 EEO complaint. Even assuming these allegations

are true, they nonetheless fail to demonstrate a genuine issue of fact as to whether the

Secretary’s employment decision in 1998 was pretextual.

       First, review of Mark Michaud’s actual testimony reveals only that when Michaud

is drafting position descriptions, he “pretty much knows who’s out there that fits the

technical requirements” for those positions. Appellant’s App. at 247. There is nothing in

this testimony which is inconsistent with the Secretary’s proffered reason for its action,

and we fail to see in this any evidence of pretext. Similarly, Zinke’s claim that someone

in management suggested to a friend of one of her co-workers that he should distance



       8
        On appeal, both parties focused their arguments primarily on the issue of pretext
rather than causation.

                                            -14-
himself from Zinke if he wanted to be promoted is also ineffectual. We have previously

characterized such statements as “stray remarks,” insufficient to create a genuine issue of

fact for a jury. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir.)

(concluding that isolated, ambiguous and/or abstract remarks may be too abstract to

support an inference of age discrimination), cert. denied, 531 U.S. 876 (2000); see also

Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (“Isolated

comments, unrelated to the challenged action, are insufficient to show discriminatory

animus in termination decisions.”). This applies with particular force here, given that the

admissibility of the remark is doubtful, as it constitutes at least double hearsay,9 and the

remark itself is of questionable relevance on the issue of the Secretary’s proffered

rationale for its business decision. Finally, we agree with the district court’s conclusion

that Zinke’s testimony that a supervisor, who she believes was Robert Pace, told her that

she did not receive a promotion in 1995 because of her protected activity, does not create

a fact question as to whether, three years later, the Secretary retaliated against her when it

limited the applicants for two GS-14 positions to a group of employees that did not

include the plaintiff.

       Accordingly, we conclude that Zinke has failed to adduce sufficient evidence for a


       9
        Zinke described the incident as follows: “A co-worker of mine, Larry Gage, also
put in for an in-grade to AOS, and never hearing back, he queried a friend of his who
works in AOS. His friend, Stan Bradley, said John Dietrich, manager of AOS-230, gave
this unofficial advice to my co-worker, that `... if he ever wanted to get picked up by
AOS, he would have to disassociate himself from me.’” Appellant’s App. at 52.

                                             -15-
reasonable trier of fact to infer that the Secretary’s decision to limit the pool of applicants

to current employees of division AOS was pretextual. The district court’s decision to

grant summary judgment in the Secretary’s favor on Zinke’s retaliation claim was thus

proper.

       The district court’s dismissal for lack of jurisdiction of Zinke’s claims of hostile

work environment and gender discrimination and its grant of summary judgment in favor

of the Secretary on the retaliation claim is AFFIRMED.

                                            ENTERED FOR THE COURT



                                            David K. Winder
                                            District Court Judge




                                             -16-
