                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        April 25, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
RAFAEL G. HANKISHIYEV,

       Plaintiff-Appellant,

v.                                                  No. 17-4146
                                           (D.C. No. 2:15-CV-00651-JNP)
ARUP LABORATORIES; TOM                               (D. Utah)
TOPIC; DAVID ROGERS; BEA
LAYTON,

       Defendants-Appellees.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                  _________________________________

      Mr. Rafael G. Hankishiyev sued his former employer (ARUP

Laboratories) and three of its employees, invoking Title VII of the Civil

Rights Act for claims of unlawful retaliation and age discrimination. The

district court granted summary judgment to the defendants on the

retaliation claim and dismissed the age-discrimination claim for lack of

*
      The parties do not request oral argument, and it would not materially
help us to decide this appeal. As a result, we decide the appeal based on
the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
jurisdiction. The court also sanctioned Mr. Hankishiyev, requiring him to

pay ARUP’s attorney fees and costs for two depositions. We affirm.

I.   Background

     Request for Enrollment in MLT Program. Mr. Hankishiyev started

working for ARUP in September 2007. ARUP offered a program that

allowed employees to earn a Medical Laboratory Technician (MLT) degree

free of charge. Mr. Hankishiyev already had an MLT degree, but in 2012

he applied to participate in the degree program, stating on his application:

     With Arup’s discrimination policy (in reality, not by
     declaration), its supervisors, using the loop-hole instructions in
     hiring process, prefer a school students/drop-outs from the
     first-sort people over the ASCP Certificated MLT from the
     second-sort people. My goal is to study this on-line program,
     take more classes, etc, and see how many MLT diploma, ASCP
     Certifications, BSs, Evaluations for Medical Technologist,
     President Lists must the second-sort individual obtain to get
     the MLT position in the ARUP’s cast system. It will be my
     contribution to ARUP because a Patient Care is not just
     declaration; it’s the practice that goes along with other actions.

R. at 46 (emphasis in original).

     ARUP rejected the application, explaining to Mr. Hankishiyev that

because he already had an MLT degree, his participation in the program

would result in an inefficient use of ARUP’s resources and take a spot

from another employee who was eligible to participate.

     Self-Assessment. Later that year, Mr. Hankishiyev completed a self-

assessment, commenting that his top responsibility for the past year and

his goal for the coming year was “praying for management.” Id. at 63

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(internal quotation marks omitted). When questioned about the comment,

he reportedly said: “I don’t even know how to pray, so you can scratch that

off the list.” Id. (internal quotation marks omitted). ARUP concluded that

            Mr. Hankishiyev’s responses displayed a “negative attitude
             toward . . . ARUP” and

            his “anger and almost hatred toward ARUP [was] not healthy or
             acceptable.”

Id. at 64. ARUP terminated Mr. Hankishiyev’s employment in December

2012.

        EEOC Complaint. Two months later, Mr. Hankishiyev complained to

the Equal Employment Opportunity Commission (EEOC). On the EEOC

charge form, Mr. Hankishiyev checked boxes for “Title VII” and

“Retaliation,” leaving blank the boxes for “ADEA” (referring to the Age

Discrimination in Employment Act) and “Age.” Id. at 669. An EEOC

investigator “concluded that it [was] unlikely that additional investigation

would result in a finding that the law (Title VII) was violated.” Id. at 21.

Mr. Hankishiyev then brought this suit for retaliation and age

discrimination.

        Deposition Sanction. In this suit, Mr. Hankishiyev was deposed three

times because of his lack of cooperation in the first two depositions. After

Mr. Hankishiyev was deposed the first time, a magistrate judge granted

ARUP’s motion to compel cooperation in depositions because Mr.

Hankishiyev had refused to answer numerous questions, including basic
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questions like his name, age, and home address. In granting the motion, the

magistrate judge ordered Mr. Hankishiyev to (1) “directly and succinctly

answer all questions posed to him in a non-argumentative fashion,” (2)

“review and identify all exhibits presented to him and directly and

succinctly answer questions regarding such exhibits in a non-argumentative

fashion,” and (3) “otherwise comply with the Federal Rules of Civil

Procedure.” Id. at 236.

      After a second deposition, the magistrate judge determined that Mr.

Hankishiyev had violated the order “by making excessive objections,

refusing to directly answer questions and failing to properly review and

identify exhibits presented to him.” Id. at 422. With this determination, the

magistrate judge ordered Mr. Hankishiyev to pay the reasonable expenses

and attorney fees related to the second deposition, to cooperate with

counsel for ARUP at a third deposition, and to pay the reasonable expenses

and attorney fees related to the third deposition. Ultimately, the court

ordered Mr. Hankishiyev to pay ARUP $8,723.09 for the second and third

depositions.

      Proceedings in District Court. The district court granted summary

judgment to ARUP on the retaliation claim, reasoning that Mr. Hankishiyev

had not shown protected opposition to discrimination or causation between

his termination and a protected activity. In addition, the court dismissed

the age-discrimination claim without prejudice, reasoning that Mr.

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Hankishiyev’s failure to exhaust this claim precluded subject-matter

jurisdiction.

      Appellate Arguments. On appeal, Mr. Hankishiyev argues that

           the district court erred by concluding that he had failed to make
            a prima facie showing of retaliation,

           he properly exhausted his age-discrimination claim or should
            not have had to exhaust administrative remedies because ARUP
            had caused him psychological distress, and

           the magistrate judge erred in requiring Mr. Hankishiyev to pay
            for his second and third depositions.

II.   Summary Judgment on the Retaliation Claim

      On the summary-judgment ruling, we engage in de novo review. See

Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th

Cir. 2008). Summary judgment is appropriate only if there is no genuine

dispute as to a material fact and ARUP is entitled to judgment as a matter

of law. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013). We

view the evidence in the light most favorable to Mr. Hankishiyev and draw

all reasonable inferences in his favor. Id.

      To satisfy this standard on the retaliation claim, Mr. Hankishiyev

needed to “demonstrate (1) that he [had] engaged in protected opposition

to discrimination, (2) that a reasonable employee would have found the

challenged action materially adverse, and (3) that a causal connection

existed between the protected activity and the materially adverse action.”



                                       5
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202

(10th Cir. 2006) (footnote omitted).

      Mr. Hankishiyev argues that he engaged in protected opposition to

age discrimination, relying on his application for the MLT degree program.

On his application, Mr. Hankishiyev wrote that ARUP had a

“discrimination policy” based on a preference for “school students/drop-

outs.” R. at 46. But “generalized employment complaints” do not amount to

protected opposition to discrimination. Hinds v. Sprint/United Mgmt. Co.,

523 F.3d 1187, 1202 (10th Cir. 2008). “Although no magic words are

required, to qualify as protected opposition the employee must convey to

the employer his or her concern that the employer has engaged in a

practice made unlawful by the ADEA.” Id. at 1203.

      The allegations in Mr. Hankishiyev’s MLT application do not suggest

protected opposition to discrimination based on age. Nor has Mr.

Hankishiyev shown that any of his statements could entail protected

activity.

      Moreover, “[u]nless an employer knows that an employee is engaging

in protected activity, it cannot retaliate against that employee because of

the protected conduct, as required by statute.” Jones v. United Parcel

Serv., Inc., 502 F.3d 1176, 1195 (10th Cir. 2007) (emphasis in original).

Mr. Hankishiyev does not identify any evidence that ARUP



                                       6
           interpreted his comments as protected opposition to
            discrimination or

           retaliated for a protected activity.

Thus, Mr. Hankishiyev has not presented evidence of a causal connection

between his alleged protected activity and the termination. See Hinds v.

Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).

       We agree with the district court that Mr. Hankishiyev failed to

establish the first and third elements of a prima facie case for retaliation.

Therefore, we uphold the award of summary judgment on this claim.

III.   Dismissal of the Discrimination Claim

       We also review de novo the district court’s dismissal of the age-

discrimination claim for lack of subject-matter jurisdiction. Radil v.

Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). “The party

invoking federal jurisdiction bears the burden of establishing such

jurisdiction as a threshold matter.” Id. For jurisdiction over the age-

discrimination claim, Mr. Hankishiyev had to exhaust the EEOC’s

available administrative remedies. Shikles v. Sprint/United Mgmt. Co., 426

F.3d 1304, 1306 (10th Cir. 2005).

       Mr. Hankishiyev contends that the district court erred in concluding

that he had failed to exhaust available administrative remedies on the age-

discrimination claim. He concedes that he failed to check the charge form’s

box for ADEA and age discrimination, and courts generally look to the


                                       7
charge form to determine whether administrative remedies have been

exhausted. Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017). Thus,

Mr. Hankishiyev’s failure to check the ADEA/age-discrimination box on

the charge form would generally preclude jurisdiction.

      Mr. Hankishiyev contends that his deficient charge form was cured

by his EEOC intake questionnaire, where he raised the age-discrimination

claim. We reject this contention.

      In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), the

Supreme Court held that a filing other than a formal charge, such as a

questionnaire, may be considered as a charge if the filing contains the

required information and can reasonably be interpreted as a request for

agency action. Fed. Express Corp., 552 U.S. at 402. But in Federal

Express Corp., the claimant had filed only a questionnaire; thus, the

Supreme Court did not address a situation where a claimant files both a

formal charge and questionnaire.

      Because Mr. Hankishiyev filed a formal charge claiming only

retaliation, not age discrimination, we decline to read allegations from the

questionnaire into the charge itself. To do so would undermine the policies

requiring exhaustion. See Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th

Cir. 1994) (Administrative exhaustion in discrimination cases “(1) . . .

give[s] notice of the alleged violation to the charged party; and (2) . . .

give[s] the EEOC an opportunity to conciliate the claim.”), abrogated on

                                       8
other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101

(2002); see also Green v. JP Morgan Chase Bank Nat’l Ass’n, 501 F.

App’x 727, 731 (10th Cir. 2012) (unpublished) (concluding that the

statutory scheme would be defeated if we were to find exhaustion based on

inclusion of a claim in the intake questionnaire when the claim is omitted

in a subsequent formal charge). 1 Focusing on the charge form, we conclude

that Mr. Hankishiyev did not exhaust his age-discrimination claim.

      Mr. Hankishiyev urges us to allow pursuit of the claim anyway

because of the distress caused by ARUP. But “[s]ubject-matter jurisdiction

involves a court’s authority to hear a given type of case, and may not be

waived.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.

2004) (internal citation omitted). As a result, the district court correctly

dismissed the age-discrimination claim based on the absence of subject-

matter jurisdiction.

IV.   Imposition of the Discovery Sanction

      Magistrate judges enjoy the authority to enter discovery rulings. See

28 U.S.C. § 636(b)(1)(A). But such rulings are not directly appealable to

this court. See S.E.C. v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1269

(10th Cir. 2010). Before appealing to our court, the aggrieved party must

properly file an objection, obtaining review by the district judge. Id. A


1
      Green is not precedential, but its analysis of Federal Express Corp.
is persuasive.
                                       9
party has fourteen days to object to a nondispositive ruling by a magistrate

judge and “may not assign as error a defect in the [magistrate judge’s]

order not timely objected to.” Fed. R. Civ. P. 72(a).

     The magistrate ordered sanctions on November 3, 2016, and Mr.

Hankishiyev waited 27 days to object. Lack of a properly filed objection

precludes our review. See Merrill, 600 F.3d at 1269.

V.   Conclusion

     The district court did not err in granting ARUP’s motion for

summary judgment on the retaliation claim, dismissing Mr. Hankishiyev’s

claim for age discrimination, and imposing discovery sanctions on Mr.

Hankishiyev. We affirm.


                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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