                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 20, 2010
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    LORRIE LOGSDON,

                Plaintiff–Appellant,

    v.                                                  No. 09-6296
                                                 (D.C. No. 5:08-CV-01009-C)
    TURBINES, INC.,                                     (W.D. Okla.)

                Defendant–Appellee.



                            ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



         Lorrie Logsdon sued her employer, Turbines, Inc., for employment

discrimination and retaliation. The district court granted summary judgment to

Turbines and denied Logsdon’s post-judgment motion. Logsdon appeals both

decisions, challenging only the district court’s determination that she failed to

exhaust her administrative remedies regarding her claims of wrongful termination.


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the district court’s

judgment and remand with instructions to dismiss the termination claims.

                                         I

      Logsdon began working for Turbines in 1999. On October 4, 2007,

Turbines suspended her in order to investigate allegations that she had

overstepped her authority and had acted violently toward her co-workers.

Turbines terminated her employment on October 10, 2007.

      Logsdon brought this action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), and the Age Discrimination

in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”), claiming Turbines

discriminated against her on the basis of her sex and age and retaliated against her

for engaging in protected activity. She raised six claims, three of which dealt

with the termination of her employment and three of which dealt with disciplinary

actions, demotion, and failure to promote. Only the three termination claims are

at issue in this appeal.

      Turbines moved for summary judgment, arguing that on the termination

claims, Logsdon failed to exhaust her administrative remedies, because the formal

Charge of Discrimination (“Charge”) Logsdon filed with the Equal Employment

Opportunity Commission (“EEOC”) did not identify her termination among the

“particulars” of her charge. In response, Logsdon relied on statements in a

five-page, single-spaced narrative (“Timeline”) she prepared for presentation to

                                        -2-
the EEOC. The Timeline’s sole reference to her termination read as follows:

“The day I was fired[, Turbines’ general manager] stated that it was a decision of

the corporate office to terminate my position. Because I was not a team player.

I stated that I had filed with the EEOC and that I had talked to a lawyer.”

Logsdon also noted that Turbines had addressed her discharge in a position

statement submitted to the EEOC and claimed that her discharge was the primary

subject of an EEOC mediation.

      The district court granted summary judgment to Turbines, concluding that

the termination claims failed as a matter of law because Logsdon failed to exhaust

her administrative remedies.

      Logsdon then filed a motion for a reconsideration and a new trial under

Federal Rules of Civil Procedure 59 and 60. She contended that documents she

obtained from the EEOC shortly after the district court’s judgment bolstered her

claim of exhaustion. Specifically, she pointed to a General Intake Questionnaire

she submitted to the EEOC on October 9, 2007, the day before she was fired. In

it, she checked off that she was claiming discrimination based on age, retaliation,

and equal pay. In response to a question asking her what employment event

caused her to contact the EEOC, Logsdon wrote “discipline, demotion, failure to

advance.” As a remedy, she sought a “promotion” and a “policy change.” When

asked “what happened and why you feel the incident is discriminatory,” she wrote

“see attachment.” In the post-judgment motion, she claimed the attachment was

                                         -3-
the Timeline discussed above. The district court treated the motion as a Rule 59

motion and denied it, concluding that the reference in the Timeline was summary

and therefore inadequate to put either the EEOC or Turbines on notice that she

was contesting her discharge. This appeal followed.

                                          II

      In this circuit, the exhaustion of administrative remedies remains a

jurisdictional prerequisite to bringing suit under Title VII or the ADEA. 1 Shikles

v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (ADEA); Jones

v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (Title VII). 2 “[E]ach discrete

1
       Often, whether exhaustion is jurisdictional only matters to determine if the
case is dismissed for lack of subject matter jurisdiction or instead disposed of on
summary judgment. See, e.g., McQueen ex rel. McQueen v. Colo. Springs Sch.
Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007) (explaining that “[i]f exhaustion
is a jurisdictional requirement, the district court must always dismiss if there has
been a failure to exhaust. If exhaustion is not jurisdictional, the court must
dismiss only if the issue has been properly presented for decision,” as opposed to
being waived or forfeited). The question is only dispositive when a defendant has
waived or forfeited the issue. Id. Here, Turbines failed to raise lack of
exhaustion as an affirmative defense—so if it were not jurisdictional, the
exhaustion argument would be waived. See, e.g., Jones v. Mukasey, 565 F. Supp.
2d 68, 74 (D.D.C. 2008) (“[E]xhaustion is generally considered to be an
affirmative defense falling within the scope of Fed R. Civ. P. 8(c).”).
2
      Even at the time Jones and Shikles were decided, we recognized our
approach as the minority view—most circuits considered Title VII and ADEA
exhaustion to be affirmative defenses. See Jones, 91 F.3d at 1399; cf. Shikles,
426 F.3d at 1317. And after we decided Shikles, the Supreme Court held that
“when Congress does not rank a statutory limitation on coverage as jurisdictional,
courts should treat the restriction as nonjurisdictional in character.” Arbaugh v.
Y & H Corp., 546 U.S. 500, 516 (2006). Moreover, our circuit’s view that EEOC
exhaustion is jurisdictional was undermined by the Supreme Court’s statement in
                                                                        (continued...)

                                         -4-
incident of [discriminatory or retaliatory] treatment constitutes its own unlawful

employment practice for which administrative remedies must be exhausted.”

Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (quotation omitted).

Suspension, failure to promote, and termination are three such discrete incidents.

See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002).

      The district court concluded that Logsdon failed to exhaust her

administrative remedies on her termination claims, but then granted summary

judgment to Turbines rather than dismissing those claims. Regardless, whether it

is viewed as a dismissal for lack of jurisdiction or as a grant of summary

judgment, we review the district court’s disposition, and the related denial of the

Rule 59 motion, de novo. Somoza v. Univ. of Denver, 513 F.3d 1206, 1211 (10th

Cir. 2008) (summary judgment grant reviewed de novo); McBride v. CITGO

Petroleum Corp., 281 F.3d 1099, 1104-05 (10th Cir. 2002) (dismissal for failure

to exhaust reviewed de novo); Skaggs v. Otis Elevator Co., 164 F.3d 511, 514



2
 (...continued)
Jones v. Bock that “courts typically regard exhaustion as an affirmative defense in
other contexts,” and its holding that statutory silence provides “strong evidence
that the usual practice should be followed, and the usual practice under the
Federal Rules [of Civil Procedure] is to regard exhaustion as an affirmative
defense.” 549 U.S. 199, 212 (2007).
       The Tenth Circuit is the only circuit in which EEOC exhaustion is still
considered jurisdictional. Nevertheless, “[w]e cannot overrule the judgment of
another panel of this court,” and “are bound by the precedent of prior panels
absent en banc reconsideration or a superseding contrary decision by the Supreme
Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993).

                                         -5-
(10th Cir. 1998) (Rule 59 motion denial reviewed de novo where disposition

“turns on an issue of law”).

      In determining whether a plaintiff has exhausted administrative remedies,

“our inquiry is limited to the scope of the administrative investigation that can

reasonably be expected to follow from the discriminatory acts alleged in the

administrative charge. In other words, the charge must contain facts concerning

the discriminatory and retaliatory actions underlying each claim.” Jones v.

United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). We conclude

that the EEOC cannot reasonably have been expected to investigate Logsdon’s

termination claims.

      We first consider Logsdon’s filings with the EEOC. Her sole reference to

discharge occurred in her Timeline, and was, as she concedes, “remote.” Indeed,

the description in the Timeline of her demotion, failure to promote, and

disciplinary claims was quite detailed but the reference to her discharge was

fleeting. It is entirely unclear from the Timeline that she was complaining about

her discharge to the EEOC. Moreover, as she has admitted on appeal, the

Timeline was not submitted with her October 9 General Intake Questionnaire, as

she alleged in her Rule 59 motion. Instead, it was submitted sometime after her

termination on October 10 and before the Charge was drafted by the EEOC and




                                         -6-
sent to her for review and signature. 3 Logsdon had the opportunity to review the

Charge before signing it on November 20, 2007, but she did not add the

termination claims to the Charge. Because of that failure, it was not reasonable to

expect the EEOC to investigate her discharge as discriminatory or retaliatory

based solely on the prior, “remote” reference to the discharge in the Timeline.

      Logsdon also points to Turbines’ reference to her discharge in the position

statement it submitted to the EEOC. But this offers her no assistance. Because

the termination claims were omitted from the Charge, it would not be reasonable

to expect the EEOC to investigate those claims based on the discussion of her

discharge in Turbines’ position statement.

      Finally, Logsdon argues that exhaustion is supported by the fact that the

EEOC mediated her termination claims. This argument is poorly taken.

Information revealed while the EEOC is performing its informal mediation

function cannot be revealed in subsequent proceedings, 42 U.S.C. § 2000e-5,

including those in which the EEOC performs its investigative and litigation

functions. See Am. Ctr. for Int’l Labor Solidarity v. Fed. Ins. Co., 548 F.3d 1103,

1105 (D.C. Cir. 2008). Thus, assuming the EEOC mediated Logsdon’s

termination claims, the subject matter of the mediation has no bearing on the

3
      This is the EEOC’s general practice, see Edelman v. Lynchburg College,
535 U.S. 106, 115 n.9 (2002) (noting that “[t]he general practice of EEOC staff
members is to prepare a formal charge of discrimination for the complainant to
review and to verify, once the allegations have been clarified”), and the one
Logsdon states was used here.

                                        -7-
scope of the investigation that reasonably could be expected to follow from her

Charge, which is the basis for determining exhaustion. See Jones, 502 F.3d at

1186 . As noted above, Logsdon’s Charge and related documents were inadequate

to prompt the EEOC to investigate her termination claims.

                                         III

      For the foregoing reasons, we conclude that the district court correctly

determined Logsdon failed to exhaust her administrative remedies as to her

termination claims. However, the district court erred in granting summary

judgment to Turbines on those claims, and instead should have dismissed those

claims for lack of jurisdiction. See Shikles, 426 F.3d at 1318. Accordingly, we

VACATE the district court’s judgment in favor of Turbines as to the termination

claims only, and we REMAND with instructions to DISMISS the termination

claims for lack of subject matter jurisdiction.


                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




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