                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 19, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                             FOR THE TENTH CIRCUIT


    TOMMY E. FULCHER; GLENDELL
    HENDERSON; JESSE L. HILL, JR.;
    CORNELIUS HULUM; PRESTON M.
    JAMES; MICHAEL JOHNSON;
    KENNETH KIMBLE; VERNON K.                           No. 09-3301
    LANE; KEVIN LEE; DANA                     (D.C. No. 2:06-CV-02095-EFM)
    MCELRATH; WANDA GIVENS;                              (D. Kan.)
    COURTNEY N. PIERCE; CLAUDIA
    ROACH; ALEXIS O. ROBINSON;
    O'DELL THOMAS; CARLOS
    WALKER; AL G. WARD; RHONDA
    WASH; BOBBY WILEY,

                 Plaintiffs-Appellants,

    v.

    CITY OF WICHITA; NORMAN
    WILLIAMS, individually and in his
    official capacity as Chief of Police,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT *




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



      Plaintiffs are nineteen African-American current and former police officers

with the City of Wichita Police Department. In 2006 they sued the department

and Police Chief Norman Williams, claiming they were discriminated against

because of their race in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. Only one of the

plaintiffs, Glendell Henderson, exhausted his Title VII claims by first filing a

charge of discrimination with the Equal Employment Opportunity Commission

(EEOC). The defendants sought dismissal of the other plaintiffs’ Title VII claims

on this basis, arguing lack of jurisdiction. The district court allowed those claims

to proceed, however, cautioning the co-plaintiffs that their Title VII claims would

not survive summary judgment unless they could show they were entitled to

“piggyback” on Mr. Henderson’s EEOC complaint. Ultimately, the court

concluded that piggybacking was not available because Mr. Henderson’s EEOC

complaint was itself untimely. It therefore dismissed the co-plaintiffs’ Title VII

claims for lack of jurisdiction and awarded the defendants summary judgment

with respect to the remaining claims on the merits. We exercise jurisdiction

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




                                         -2-
                                          I.

      Mr. Henderson is a longtime employee of the Wichita Police Department.

On November 22, 2005, he filed a charge of discrimination with the EEOC,

accusing the department of discriminating against him and other minorities. In

the charge, he described the particulars of the discrimination as follows:

      I. The City of Wichita has systematically discriminated against me
      and other Minorities. The discrimination is due to the policies and
      procedures implemented and advanced by The City of Wichita which
      ha[ve] a disparate impact upon Minorities. I am an African
      American officer. I am qualified for my position.

      II. I have continued to be subjected to a hostile work environment. I
      seek to represent a class of similarly situated individuals (minority
      officers) who have been discriminated against. . . .

      III. I have been subjected to retaliation for complaining about racial
      discrimination [i]n the Wichita Police Department. This started
      around June of 2004.

      IV. Minorities have also been subjected to less pay and promotions.
      This discrimination has affected all terms and conditions of
      employment for all minorities.

      V. In the last 4 months I and several other Minority supervisors have
      been accused of not possessing the proper managerial skills based on
      an unofficial survey. Other similarly situated Caucasian officers
      were not subjected to any queries about their managerial [skills.]

Aplee. Supp. App. at 57. Upon receiving a right-to-sue letter, Mr. Henderson

filed this action in the district court on March 15, 2006, joined by the eighteen

other plaintiffs, each of whom claimed to have satisfied the exhaustion

requirement by virtue of Mr. Henderson’s EEOC complaint.


                                         -3-
      In rejecting the defendants’ jurisdictional argument as to the co-plaintiffs’

Title VII claims, the district court relied on our opinion in Foster v. Ruhrpumpen,

Inc., 365 F.3d 1191 (10th Cir. 2004). In that case, we explained that it is useless

in discrimination lawsuits to require each co-plaintiff to file his own EEOC

charge when the employer is already on notice of the additional claims. Id. at

1197. Under those circumstances, we recognized an exception to the individual

filing requirement known alternatively as the “single filing rule” or

“piggybacking.” Id. This exception allows a plaintiff to join an individual

discrimination lawsuit so long as his “unexhausted claims stem from the same

conduct as the filed charges,” and “the named plaintiff filed a timely

administrative charge.” Id. at 1198. Thus, while the co-plaintiffs’ Title VII

claims were not subject to dismissal at the pleadings stage, those plaintiffs still

had to demonstrate the required similarity between their claims and those

included in a timely filed EEOC charge.

      By the time the court entered its pre-trial order in November 2008,

plaintiffs had narrowed their case to three theories of recovery:

(1) discriminatory discipline in violation of Title VII; (2) discriminatory

promotion in violation of Title VII; and (3) discrimination in the making and

enforcement of their employment contracts in violation of § 1981 through




                                          -4-
application of § 1983. 1 As we will explain, the district court ultimately rejected

each of these theories because it concluded the plaintiffs’ claims were either

time-barred or unsupported by evidence of discrimination, or both.

             A. Discriminatory Discipline

      Plaintiffs argued in support of their discriminatory discipline claim that

they were routinely disciplined more harshly than similarly situated Caucasians.

The district court rejected this claim as a matter of law because it concluded that

Mr. Henderson had failed to include it in his EEOC charge, and therefore the

claim was not exhausted. The court recognized that Mr. Henderson’s EEOC

charge described the discrimination in general terms, stating, for example, that the

city “systematically discriminated” against him and other minorities. Aplee.

Supp. App. at 57. But it pointed out that in addition to this general language, the


1
       At summary judgment, the district court properly limited the plaintiffs to
those claims included in the pre-trial order. See Cortez v. Wal-Mart Stores, Inc.,
460 F.3d 1268, 1276-77 (10th Cir. 2005) (holding that claims, issues, or theories
of damages omitted from the pretrial order are waived). Consequently, to the
extent that the EEOC charge referenced other claims, including retaliation and
hostile work environment claims, those claims did not become part of the
plaintiffs’ case. The district court construed Mr. Henderson’s complaint about the
criticism of his managerial skills as a disparate treatment claim under Title VII
and allowed him to pursue that claim along with the other Title VII theories.
Ultimately, however, the court determined he had failed to establish a prima facie
case with respect to this claim because he could not point to any adverse
employment action stemming from the comments about his management skills.
See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005) (“To make
out a prima facie case of discrimination, . . . Plaintiffs must demonstrate (1)
membership in a protected class, (2) adverse employment action, and (3) disparate
treatment among similarly situated employees.” (emphasis added)).

                                         -5-
charge included specifics about the alleged discrimination; it cited “retaliation,” a

“hostile work environment,” and “less pay and promotions” for minorities. Id.

Because the charge specified certain types of discrimination, but not

discrimination as to disciplinary matters, the court concluded that the charge was

insufficient to give notice of a discriminatory discipline claim. See generally

Foster, 365 F.3d at 1195 (explaining that the EEOC charge must be sufficiently

precise as to the challenged practices).

      Alternatively, the court concluded that any claim of discriminatory

discipline was time-barred; based on undisputed evidence, Mr. Henderson’s last

discipline occurred in 2004, well before the 300-day filing period applicable to

his EEOC charge. See 42 U.S.C. § 2000e-5(e)(1) (setting forth 300-day

limitations period); Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S. 101, 110 (2002)

(noting a claim is time-barred if it is not filed within the limits of

§ 2000e-5(e)(1)). Thus, to the extent a discriminatory discipline claim could be

read into Mr. Henderson’s EEOC charge, the district court ruled that it was not

properly before the EEOC. It ineluctably followed, reasoned the court, that the

charge could not support piggybacking with respect to the discriminatory

discipline claims of Mr. Henderson’s co-plaintiffs.

             B. Discriminatory Promotion

      Unlike his discriminatory discipline claim, the district court concluded that

Mr. Henderson’s EEOC charge did include a claim of discrimination with respect

                                           -6-
to the department’s promotion practices. Mr. Henderson testified that he brought

this claim due to his lieutenant’s decision to begin rotating the responsibilities of

the Acting Watch Commander, which previously had been a title given to the

senior sergeant on duty. Mr. Henderson claimed that the decision to rotate this

position coincided with his ascendance to senior sergeant, and thus he was

deprived of the opportunity to take on the Acting Watch Commander duties on a

more permanent basis.

      The district court concluded this claim failed as a matter of law. First, the

court noted that it was undisputed that the temporary responsibilities of Acting

Watch Commander were not related to officer promotion status. Therefore, as a

matter of law, the court reasoned that the decision to begin rotating those

responsibilities could not support a discriminatory failure-to-promote claim.

Second, as with the discriminatory discipline claim, the court held that any claim

based on this incident was time-barred, as it was undisputed that Mr. Henderson

achieved senior sergeant status sometime before May 2003. Accordingly, any

injury that he may have suffered as result of the switch to the rotation system

necessarily occurred well before the 300 days preceding his November 2005

EEOC charge.

      Again, the court explained that Mr. Henderson’s untimeliness with respect

to his EEOC charge prevented his co-plaintiffs from piggybacking on that charge

to establish subject matter jurisdiction over their own discriminatory failure-to-

                                          -7-
promote claims. And, in any event, the court held the piggyback exception was

not appropriate with respect to the discriminatory failure-to-promote claims, as

each such claim arose under a unique set of circumstances. See Foster, 365 F.3d

at 1197 (explaining that the exception applies to “individual claims arising out of

similar discriminatory treatment in the same time frame”).

             C. Sections 1981 & 1983

      Addressing the §§ 1981 and 1983 claims, the district court explained that

the elements of a discrimination lawsuit are the same whether it is brought under

those sections or Title VII. See Aplee. Supp. App. at 16 (citing Carney v. City &

County of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008)). In each case, first the

plaintiff has the burden to establish a prima facie case of discrimination, which

requires him to show (1) membership in a protected class; (2) adverse

employment action; and (3) disparate treatment among similarly situated

employees. Furthermore, if the plaintiff seeks liability against a municipality, he

must also show that “the City’s officials acted pursuant to a custom or policy of

discriminatory employment practices.” Carney, 534 F.3d at 1273 (internal

quotation marks omitted).

      The district court rejected the claims against the city as a matter of law,

concluding plaintiffs had failed to identify any custom or policy of discriminatory

employment practices. The court acknowledged that plaintiffs had accused the

department of engaging in “excessive subjectivity” with respect to promotions

                                         -8-
and discipline, Aplee. Supp. App. at 17 (internal quotation marks omitted), but it

held there was no evidence to support this contention. Finally, the court awarded

summary judgment to Chief Williams because he was not alleged to have

personally participated in any discriminatory act or practice as required under

§ 1983, and because there was no evidence that Chief Williams had the ability to

deprive plaintiffs of their contractual rights in violation of § 1981.

                                          II.

      We review the district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party, in this case, the

plaintiffs. Carney, 534 F.3d at 1273. We will affirm if the evidence before the

district court revealed “no genuine issue as to any material fact and that the

movant [was] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2).

      On appeal, plaintiffs argue generally that Mr. Henderson’s EEOC charge

was timely as to his Title VII claims and that the charge should be construed

liberally to include theories of discrimination asserted in his federal action. In

our view, the district court squarely addressed the plaintiffs’ arguments in its

thorough memorandum and order, which we have summarized above. As we

cannot improve upon its persuasive reasoning, we affirm the district court’s

decision for substantially the same reasons expressed therein.

      Finally, we dismiss as moot defendants’ motion to dismiss for failure of

prosecution. Although we acknowledge the defendants’ understandable

                                          -9-
frustration in dealing with an adversary’s repeated violations of our rules, it

appears that defendants suffered no material harm as a result of plaintiffs’

transgressions, in that plaintiffs ultimately submitted a docketing statement free

of defects. Nonetheless, we admonish plaintiffs’ counsel to comply with the

Rules of Appellate Procedure in future filings with this court.

                                         III.

      The judgment of the district court is AFFIRMED, and defendants’ Motion

For Dismissal For Failure to Prosecute is DENIED.


                                                     Entered for the Court



                                                     Jerome A. Holmes
                                                     Circuit Judge




                                         -10-
