                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      April 30, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court



    DEBORAH SHOW ALTER,

                Plaintiff-Appellant,

    v.                                                   No. 05-1247
                                              (D.C. No. 03-CV -1704-LTB /OES)
    ALLEN W EINSTEIN, * Archivist of                      (D . Colo.)
    the United States, National Archives
    and Records Administration,

                Defendant-Appellee.



                            OR D ER AND JUDGM ENT **


Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.


         Deborah Showalter sued her former employer, John W . Carlin, Archivist of

the United States, National Archives and Records Administration (NARA), under

Title VII of the Civil Rights Act and under the Rehabilitation Act, alleging



*
      Pursuant to Fed. R. App. P. 43(c)(2), Allen W einstein is substituted for
John W . Carlin as appellee in this action.
**
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(1) race and/or sex discrimination, (2) disability discrimination, (3) retaliation,

and (4) w hat she calls “‘Protected Class Plus’ D iscrimination,” Aplt. A pp., Vol. I

at 17. The district court granted NARA’s Fed. R. Civ. P. 12(b)(1) motion to

dismiss claims one, two, four, and that portion of claim three that did not pertain

to retaliatory termination, concluding that it lacked subject matter jurisdiction

over the claims because M s. Show alter failed to exhaust her administrative

remedies. M s. Showalter’s retaliatory termination claim proceeded to trial.

A jury returned a verdict in NARA’s favor. On appeal, M s. Show alter contends

the district court erroneously concluded that she failed to exhaust her

administrative remedies and abandoned part of her retaliation claim, and that it

erroneously prohibited her from using certain evidence of retaliatory conduct at

trial. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

                                   BACKGROUND

      The exhaustion of administrative remedies is a jurisdictional prerequisite to

instituting an action in federal court under both the Rehabilitation Act and

Title VII. Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir. 1997)

(Rehabilitation Act); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996)

(Title VII); see also Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320,

1325 (10th Cir. 2002) (noting that “a failure to timely file an administrative

charge . . . is not jurisdictional, [but that] a failure to file an administrative charge

at all . . . is a jurisdictional bar”). Federal employees alleging discrimination or

                                           -2-
retaliation prohibited by Title VII or the Rehabilitation Act must comply with

specific administrative complaint procedures in order to exhaust their

administrative remedies. See generally 29 C.F.R. pt. 1614. 1 W ith this backdrop,

we turn to an abbreviated recitation of the facts.

      M s. Showalter w as employed as a GS-11 Team Lead for NARA’s

Accession and Disposition (A& D) Branch from October 2001 until M ay 2002,

when NARA terminated her employment. During this time period she w as a

probationary employee under 5 C.F.R. § 315.801. See id. § 315.803 (instructing

agency to terminate a probationary employee who fails to demonstrate her

qualifications during the probationary period).




1
       The applicable regulations, as relevant to this appeal, require an aggrieved
employee to consult an EEO counselor before filing a formal complaint “in order
to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). The aggrieved
employee must initiate this consultation “within 45 days” of the alleged
discriminatory action or “within 45 days of the effective date of [a personnel]
action.” Id. § 1614.105(a)(1). During the initial counseling session, counselors
must, among other things, advise an aggrieved employee “that only the claims
raised in pre[-]complaint counseling (or issues or claims like or related to issues
or claims raised in pre-complaint counseling) may be alleged in a subsequent
complaint filed with the agency.” Id. § 1614.105(b)(1).

       If the matter is not resolved informally, the counselor must inform the
aggrieved employee, in the Notice of Final Interview, that she may file a formal
complaint against the agency that allegedly discriminated against her, but that she
must do so “within 15 days of” receiving the Notice. Id. § 1614.105(d); see also
id. § 1614.106 (a) and (b). The aggrieved employee “may amend [her] complaint
at any time prior to the conclusion of the investigation,” but only to “include
issues or claims like or related to those raised in the [formal] complaint.” Id.
§ 1614.106(d).

                                         -3-
      From M arch 4 though M arch 6, 2002, M s. Show alter, her supervisor, and

another employee participated in an internal office mediation with a professional

facilitator. M s. Show alter alleges that tensions among the three increased after

the mediation. Indeed, on M ay 3, she e-mailed an EEO counselor “concerning the

situation” at work, Aplt. App., Vol. I at 116, and on M ay 9, she had an initial

telephone interview with the counselor. On M ay 15, NARA issued a letter to

M s. Show alter advising her that it was terminating her employment on

M ay 29, 2002, for unsatisfactory performance during her probationary period. O n

M ay 20, she spoke with the counselor again, relaying NARA’s decision to

terminate her and her belief that she was being fired as a result of her contact

with the EEO counselor.

      On June 4, the counselor issued a Notice of Final Interview/Right to File a

Formal Complaint of Discrimination, stating that M s. Show alter alleged she was

discriminated against based on “Reprisal.” Id., Vol. I at 71. In a counseling

report issued shortly thereafter, the counselor stated: “M s. Showalter is filing this

complaint under the bases [sic] of Reprisal.” Id., Vol. I at 66.

      On June 24, M s. Show alter filed a timely formal EEO complaint. On the

face of the complaint she checked the box next to “Reprisal” but did not check

any of the other seven boxes (race, color, religion, sex, national origin, age, or

disability). Id., Vol. I at 74. She also identified one day of discrimination:

M ay 15, 2002, the day she received NARA’s termination letter. M s. Show alter

                                          -4-
attached to her complaint a letter and a lengthy statement, explaining that her

formal complaint of discrimination was based on “reprisal for participation in

protected EEO activity.” Id., Vol. I at 75.

       On July 12, M s. Showalter submitted a one-sentence letter to NA RA ’s EEO

office stating: “I would like to amend my complaint . . . to include as additional

bases of discrimination my disability (Crohn’s disease); my gender (female);

[and] my race (white, Caucasian).” Id., Vol. I at 124. On November 5, the

EEO counselor spoke to M s. Showalter concerning her July 12 letter. On

November 12, NARA received another letter from M s. Show alter, a three-page

addendum in reference to her July 12 request to amend her formal complaint, in

which she suggested that she had presented claims of disability, sex, and race

discrimination from the outset of the administrative process. On November 20,

the EEO counselor issued an amended counseling report, stating:

       On Tuesday, November 5, 2002, I spoke with the complainant in
       regards to her amended complaint [(letter of July 12)]. For the
       record, it should be noted [that,] to the best of my recollection[,] the
       issues M s. Show alter is alleging took place were not discussed
       during the initial counseling period.

Id., Vol. I at 126.

       On January 3, 2003, NARA sent M s. Show alter’s counsel an acceptance

letter indicating it had identified and accepted two issues for investigation:

(1) whether M s. Show alter was subjected to a hostile work environment based on

her disability, sex, and/or race, and (2) whether she was terminated based on

                                           -5-
reprisal for contacting an EEO counselor on M ay 3, 2002. The agency dismissed

for failure to state a claim M s. Show alter’s hostile work environment claim based

on reprisal and her constructive discharge claim. The acceptance letter ended:

“If the issues and bases identified for acceptance are not stated correctly, please

advise this office w ithin seven (7) calendar days after you receive this letter.”

Id., Vol. I at 135. M s. Showalter did not object to or otherwise respond to

NARA’s acceptance letter.

      M s. Show alter subsequently sought a hearing before an Administrative Law

Judge. But before a hearing was held or a final decision issued, she filed this

case in federal court. In granting NARA’s Rule 12(b)(1) motion as to claims one,

two, four, and that portion of claim three that did not pertain to retaliatory

termination, the district court held that M s. Show alter’s formal EEO complaint

asserted only one claim— reprisal, and that the lengthy statement accompanying

her formal complaint was simply an explanation of the details leading up to her

termination. The court noted that the EEO counselor characterized

M s. Showalter’s July 12 attempted amendment “as a claim for hostile work

environment,” id., Vol. II at 281, and held that it did not relate back to her

original formal complaint because her race, gender, and disability discrimination




                                          -6-
claims were not like or related to her original reprisal claim. The court

elaborated, stating that even if it were to read her July 12 attempted amendment

      as asserting a new wrongful-termination claim based on race, sex,
      and disability discrimination, rather than a hostile w ork environment,
      such amendment would not relate back. W hen an amendment
      advances a new theory of recovery, the amendment is not “like or
      related to” the original claim, regardless [of] whether it is based on
      incidents described in the original claim.

Id., Vol. II at 281-82 (citing Simms v. Okla. ex rel. Dep’t of M ental Health &

Substance Abuse Servs., 165 F.3d 1321, 1325 (10th Cir. 1999)).

      The court also rejected M s. Show alter’s suggestion that her July 12

attempted amendment was a new initial counseling contact, noting the

inconsistency between this suggestion and the fact that she had “repeatedly

asserted that she discussed all her claims with the EEO counselor during the

initial counseling period.” Aplt. App., Vol. II at 282. “[E]ven if she had not

discussed all her claims before” filing her formal complaint on June 24, stated the

court, “she would have [had] to participate in EEO counseling on the new claims

before asserting them in a second EEO complaint.” Id. Thus, reasoned the court,

even if M s. Show alter’s July 12 attempted amendment was really a new initial

contact, she would have had to file a second complaint after counseling— which

she did not do— despite being represented by counsel at the time the EEO

counselor advised her in the second (November 5, 2002) Notice of Final Interview

that she had a “right to file a new complaint within 15 days.” Id., Vol. II at 283.



                                         -7-
       The court next held that M s. Showalter’s failure to object to NARA’s

acceptance letter effectively abandoned any other issues she might wish to raise,

opining that she had “failed to exhaust her administrative remedies with respect to

those abandoned claims.” Id.

       Finally, the court rejected M s. Show alter’s argument that NARA was

barred from raising a failure-to-exhaust defense because it had accepted and

investigated M s. Show alter’s claims for hostile work environment based on sex,

race, and disability. As to these claims the court held:

       Plaintiff completely failed to exhaust her remedies because her
       July 12, 2002 amendment did not relate back and cannot be
       considered a new complaint. Therefore, her failure to exhaust is a
       jurisdictional defect that cannot be waived. Jones v. Runyon, 91 F.3d
       1398, 1399 n.1 (10th Cir. 1996); Simms, 165 F.3d at 1327.

Id., Vol. II at 284.

       After a trial on M s. Showalter’s retaliatory termination claim, the jury

concluded that NARA “did not terminate Plaintiff in retaliation for her

M ay 3, 2002 EEO complaint.” Id., Vol. II at 444. The district court subsequently

entered final judgment on the jury verdict and, at the same time, finalized the

dismissal of claims one, two, four, and that portion of claim three that did not

pertain to retaliatory termination. This timely appeal followed. 2



2
      M s. Show alter has waived any challenge to the district court’s dismissal of
her so-called “protected class plus” claim by failing to address it in her opening
appellate brief. See State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7
(10th Cir. 1994).

                                          -8-
                                   D ISC USSIO N

I.    Exhaustion of Adm inistrative Remedies

      M s. Show alter first asserts that the district court erroneously concluded that

she did not exhaust her administrative remedies for claims one, two, four, and that

portion of claim three that did not pertain to retaliatory termination. In particular,

she alleges: (A) “the proper inquiry in exhaustion cases is whether the agency

received adequate notice of the claims,” Aplt. Opening Br. at 8, and (B) the

processing of a private-sector complaint is so different from the processing of a

federal-sector complaint that it was erroneous for the district court to rely on

private-sector case law in a federal-sector case, see id. at 20-25.

      “W e review de novo the district court’s dismissal for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1), and review [any] findings of jurisdictional

facts . . . for clear error.” M aestas v. Lujan, 351 F.3d 1001, 1013

(10th Cir. 2003). As previously mentioned, the exhaustion of administrative

remedies is a jurisdictional prerequisite to instituting an action in federal court

under both the Rehabilitation Act and Title VII. Woodman, 132 F.3d at 1341;

Jones, 91 F.3d at 1399. And, it is “the plaintiff’s burden . . . to establish the

court’s subject matter jurisdiction by a preponderance of the evidence.”

Southway v. Cent. Bank of Nig., 328 F.3d 1267, 1274 (10th Cir. 2003).




                                          -9-
      A.     Notice

      M s. Showalter asserts that she exhausted each of her claims because NARA

“had timely notice of each of [her] claims.” Aplt. Opening Br. at 6. In support of

her “notice” argument, M s. Showalter relies on dicta from Richardson v. Frank,

975 F.2d 1433 (10th Cir. 1991), a federal-sector Title VII case with readily

distinguishable facts. 3 Specifically, M s. Showalter asserts that “‘Title VII is

remedial legislation to be construed liberally rather than technically.’” A plt.

Opening Br. at 8 (quoting Richardson, 975 F.2d at 1436). She continues, “‘The

procedural requirements of Title VII should not be allow ed to become so

formidable and inflexible as to preclude the aggrieved employee from receiving

relief from employment discrimination.’” Id. (quoting Richardson, 975 F.2d

at 1436). W hat M s. Show alter overlooks is the context in which this court made

the foregoing statements— they were made while the court considered the

then-applicable thirty-day time limit within which an aggrieved employee was

required to bring his or her claim “‘to the attention’ of an EEO counselor,”

Richardson, 975 F.2d at 1436 (quoting 29 C.F.R. § 1613.214(a)(1)(i)).

Specifically, the court in Richardson observed that plaintiff’s untimely filing was



3
      Richardson involved an aggrieved employee’s untimely contact with an
EEO counselor that may have been the result of misinformation provided by his
employer, 975 F.2d at 1435, whereas the instant case concerns an aggrieved
employee’s complete failure— with regard to claims one, two, four, and that
portion of claim three that did not pertain to retaliatory discharge— to file an
administrative charge at all.

                                         -10-
not a jurisdictional bar, acknowledged that his circumstances may warrant

equitable tolling of the applicable time limitations, and rejected the district

court’s construction of “bring to the attention of” to mean “file.” 975 F.2d at

1435-36. The court then made the statements upon which M s. Show alter relies

and held that whether plaintiff’s circumstances w arranted equitable tolling was a

factual determination that prevented the grant of summary judgment. Id.

at 1436-37. Accordingly, the court reversed and remanded. Id. at 1437. Read in

context, then, that portion of Richardson relied upon by M s. Show alter does not

support a holding that she exhausted claims one, two, four, and that portion of

claim three that did not pertain to retaliatory discharge because her former

employer had timely notice of each of those claims. To accept M s. Showalter’s

position, that notice is all it takes to satisfy the requirements of exhaustion, would

be tantamount to ignoring the applicable regulatory framew ork.

      B.     Private-Sector Employees Versus Federal-Sector Employees

      M s. Show alter next argues that the district court erroneously relied on

Gunnell v. Utah Valley State College, a private-sector Title VII and FM LA case,

for its statement that checking only one box on an administrative complaint

creates a presumption that a plaintiff “was not asserting claims represented by

boxes not checked.” 152 F.3d 1253, 1260 (10th Cir. 1998). She asserts that the

district court’s reliance on Gunnell was misplaced because “[t]he requirements for

federal sector complaint processing are very different from the minimal

                                          -11-
requirements in the private sector.” Aplt. Opening Br. at 20. M s. Show alter does

not, however, point to any authority to support her position that Gunnell is

inapposite. In fact, this court has observed in dicta that “the requirements placed

on federal and private sector employees are in essence quite similar.” Shikles v.

Sprint/United M gmt. Co., 426 F.3d 1304, 1311 (10th Cir. 2005).

      M s. Show alter also takes issue with the district court’s reliance on a

private-sector Title VII case, Simms, 165 F.3d 1321, to hold that her July 12

attem pted amendment did not relate back to her original complaint. In her view ,

Simms’s interpretation of 29 C.F.R. § 1601.12(b), the private-sector regulation

concerning amendments to administrative complaints, Simms, 165 F.3d

at 1326-27, is inapplicable in interpreting 29 C.F.R. § 1614.106(d), the analogous

federal-sector regulation concerning amendments to administrative complaints,

see Aplt. Opening Br. at 25-26. But M s. Show alter does not point to any

authority in her opening appellate brief to support her position. Instead, she cites

tw o cases, Conkle v. Potter, 352 F.3d 1333, 1335-36 (10th Cir. 2003), and Jones

v. Runyon, 32 F.3d 1454, 1457 (10th Cir. 1994), and states the obvious: that

federal-sector employees are subject to different regulations than private-sector

employees, Aplt. Opening Br. at 25. But this statement is not enough to make her

point. In her reply brief M s. Show alter briefly develops her position, asserting

that the court in Conkle “identified 29 C.F.R. § 1614 . . . , and then noted that the

application of case law analyzing a private sector employee’s claim is

                                         -12-
inappropriate when considering the processing requirements for a federal

employee.” Aplt. Reply Br. at 6. Conkle did say as much, 352 F.3d at 1336, but

in the unique context of the effect that a timely-filed request for EEOC

reconsideration has upon a plaintiff’s time limit for filing a federal action— an

area where the law treats federal-sector employees differently than private-sector

employees. Compare id. (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d

244, 246 (3d Cir. 1999), for its holding “that a federal employee’s timely filed

request for reconsideration tolls the 90-day deadline for filing suit in federal

court”) with M cCray v. Corry M fg. Co., 61 F.3d 224, 229 (3d Cir. 1995) (holding

that a private-sector employee’s request for reconsideration does not toll the

90-day deadline). Ultimately then, M s. Show alter offers no compelling reason

why the district court should not have applied Simms, and we see none.

II.   R etaliation C laim

      M s. Show alter next asserts that the district court erroneously concluded that

she had abandoned parts of her retaliation claim. Specifically, as far as we

can discern, she challenges the district court’s: (A) conclusion, in its order

granting NARA’s Rule 12(b)(1) motion, that she had abandoned the

hostile-work-environment part of her retaliation claim, and (B) evidentiary ruling,

at trial, “prohibiting the jury from considering evidence of the parties’ conduct

prior to M ay 3, 2002,” Aplt. Opening Br. at 31, evidence that would have

supported her retaliatory termination claim at trial, see id.

                                         -13-
      As previously mentioned, we review de novo the district court’s

Rule 12(b)(1) dismissal for lack of subject matter jurisdiction. M aestas, 351 F.3d

at 1013. “W e are generally reluctant to overturn evidentiary rulings of the trial

court. W e review such rulings only to determine if the trial court abused its

discretion in limiting the scope of the evidence presented.” M essina v. Kroblin

Transp. Sys., Inc., 903 F.2d 1306, 1310 (10th Cir. 1990).

      A.     Abandonm ent Issue W aived

      NARA’s January 3 acceptance letter dismissed for failure to state a claim

M s. Show alter’s hostile work environment claim based on reprisal because, at the

time she alleged she was subjected to a hostile work environment, she had not

engaged in any prior EEO activity. Aplt. App., Vol. I at 134-35 (citing 29 C.F.R.

§ 1614.107(a)(1)). M s. Showalter did not object to this dismissal. See id., Vol. I

at 137.

      In its Rule 12(b)(1) motion, NARA contended that M s. Show alter had

failed to object to the agency’s definition of the issues, thereby abandoning all

issues other than those that the agency accepted for investigation. Id., Vol. I

at 38. The district court, noting that M s. Showalter failed to respond to NARA’s

argument, agreed with NARA and held that she “ha[d] failed to exhaust her

administrative remedies with respect to those abandoned claims.” Id., Vol. II

at 283.




                                         -14-
      On appeal, M s. Showalter complains that the acceptance letter only

instructed her to object if she disagreed with the issues and bases identified for

acceptance, arguing that the letter was “absolutely silent about what would

happen to the dismissed . . . issues.” Aplt. Opening Br. at 32. But M s. Show alter

waived this issue by failing to raise it before the district court. Walker v. M ather

(In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). And, in any event, the record

shows that M s. Showalter w as notified (before receiving the acceptance letter)

that if part of her complaint was dismissed, the dismissal would be considered a

final decision on that portion of the complaint dismissed, and that she would be

notified of any dismissal in writing and advised of her right to appeal. Aplt.

App., Vol. I at 123.

      B.     Evidentiary R uling

      Lastly, M s. Showalter contends that even if the district court properly

dismissed her hostile work environment claim based on reprisal, it erred by

“prohibit[ing]” her “from using evidence of retaliatory conduct and her

complaints prior to M ay 3, 2002 to support her retaliatory termination claim.”

Aplt. Opening Br. at 33. The transcript of the court’s ruling on the scope of the

trial evidence, however, belies M s. Showalter’s argument. M s. Showalter’s

counsel urged the court to recognize that “performance sessions and all

the . . . activity” prior to M ay 3 was admissible evidence. Aplt. App., Vol. II

at 479: 8-9. The court responded, in part, “I agree with you, . . . but I think the

                                          -15-
evidence, if it comes in, must be subject to a limiting instruction.” Id. at 479:

10-12. In fact, the record evidence shows that M s. Show alter’s complaints prior

to M ay 3, 2002, w ere admitted (albeit subject to a limiting instruction 4 ), and we

therefore see no reversible error on this point.

                                   C ON CLU SIO N

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Terrence L. O’Brien
                                                      Circuit Judge




4
      The limiting instruction provided:

                            JURY INSTRUCTIO N NO . 8

             You have heard evidence that Plaintiff made complaints of
      discrimination between October 2001 and April 2002, participated in
      a “facilitation” organized by Defendant in M arch 2002, and warned
      her managers in April that she might file an EEO complaint in the
      future. The Court has determined that these activities do not
      constitute protected activity. That evidence was admitted for the
      limited purpose to show why Plaintiff contacted the EEO on
      M ay 3, 2002 and you may not consider it for any other purpose. You
      are instructed that it is only Plaintiff’s M ay 3, 2002 EEO contact that
      serves as a basis for Plaintiff’s retaliation claim.

Aplt. A pp., Vol. II at 432.

                                          -16-
