                                                                                FILED
                                                                    United States Court of Appeals
                                     PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                    September 25, 2018

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

DIANE SMITH,

      Plaintiff - Appellant,

v.                                                         No. 17-8055

CHEYENNE RETIREMENT
INVESTORS L.P., d/b/a Pointe Frontier
Retirement Community,

      Defendant - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                          (D.C. No. 2:16-CV-00184-NDF)
                       _________________________________

Bernard Q. Phelan, Cheyenne, Wyoming, for Plaintiff-Appellant.

Khale J. Lenhart, Hirst Applegate, LLP, Cheyenne, Wyoming, for Defendant-Appellee.

                         _________________________________

Before MATHESON, EBEL, and EID, Circuit Judges.
                  _________________________________

EBEL, Circuit Judge.
                         _________________________________

      Plaintiff Diane Smith, a former employee of the Pointe Frontier assisted living

facility in Cheyenne, Wyoming, brings this suit under Title VII of the Civil Rights

Act of 1964 alleging that she was unlawfully terminated by Pointe Frontier in 2014 in
retaliation for filing a complaint with the United States Equal Employment

Opportunity Commission (“EEOC”) in 2012. Finding that Ms. Smith had failed to

exhaust her administrative remedies, the district court dismissed her claim for lack of

subject matter jurisdiction, and, in the alternative, found that there was no genuine

issue of material fact and granted summary judgment for Defendant. We now

AFFIRM the district court’s decision that Plaintiff failed to exhaust her

administrative remedies, and REMAND with instructions to VACATE the order and

dismiss the suit without prejudice.

                               I.     BACKGROUND

      In 2012, Ms. Smith, then a food server at the Pointe Frontier assisted living

facility, filed a complaint with the EEOC alleging that she had been harassed and

intimidated by her supervisors and denied promotions and advancements all on the

basis of her age and race, and in retaliation for previous discrimination complaints.

(“2012 EEOC Charge”). The EEOC dismissed this charge in 2013, finding that

“there was no reasonable cause to conclude that [Pointe Frontier] engaged in

discriminatory acts detrimental to [Ms. Smith].” Aplt. App. at 106. On November

12, 2013, the EEOC issued a right-to-sue letter, giving her ninety days to file the

claims alleged in the 2012 EEOC Charge in federal or state court. Ms. Smith did not

pursue her 2012 claims in federal or state court, and her “window” to sue closed on

February 10, 2014.

      In early 2014, roughly the same time this window closed, Pointe Frontier hired

Rayland Hepner, a shift leader whose responsibilities included overseeing Ms.

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Smith’s work. According to Ms. Smith, Mr. Hepner immediately began to “harass”

her, by subjecting her to enhanced scrutiny compared to her colleagues. Id. at 202–

04. Ms. Smith had previously served as a shift leader herself, and she testified that

“the stuff that he was doing to me, I sure wasn’t told to do it to nobody, and never did

it to anybody.” Id. at 204. Because this treatment began immediately after Mr.

Hepner started, when there was “nothing he could have known about [Ms. Smith,]”

id. at 202, Ms. Smith testified that she believed he “had been instructed” to treat her

that way because she had filed the 2012 EEOC Charge, id.; see also id. at 203 (“He

wouldn’t – he wouldn’t have had no other reason to – to my knowledge. I didn’t

know him. He was a new person.”).

      On April 7, 2014, Ms. Smith called the Pointe Frontier employee hotline to

complain about the harassment she was receiving at Mr. Hepner’s hands. Id. at 118–

19. According to the log of the call, Ms. Smith detailed that she had been “harassed

on a daily basis” for the past five weeks, and in addition to Mr. Hepner she also

named James Oliver, the facility’s general manager, and several other administrators

as the perpetrators of this harassment. Id. at 118. She did so because she did “not

understand who is instructing [Mr. Hepner] to behave in this manner, as previous

shift leaders have not used the same methods in handling employees.” Id. at 119.

Two weeks later, on April 21, 2014, Ms. Smith was called into Mr. Oliver’s office,

and her employment was terminated.

      Ms. Smith responded to her termination by filing a second Charge of

discrimination with the EEOC. (“2014 EEOC Charge”). In the 2014 EEOC Charge,

                                           3
Ms. Smith alleged that she was “subjected to disparate treatment and a hostile work

environment and was fired from [her] server position after [she] complained.” Id. at

129. In the section of the 2014 EEOC Charge entitled “DISCRIMINATION BASED

ON,” Ms. Smith checked the boxes for “RACE,” “AGE,” and “RETALIATION.” Id.

She elaborated by saying that she believed she had been “discriminated against based

on my race/color (black) and age (56), and that I was retaliated against for

complaining against [sic] discriminatory treatment[.]” Id.

      Importantly for our current purposes, the 2014 EEOC Charge does refer back

to the events of 2012. Id. at 129–30 (“Previous examples of disparate/discriminatory

treatment occurred in September 2012 when demoted from being a shift leader.”).

While this sentence references the treatment that precipitated the 2012 EEOC Charge,

it does not reference the 2012 EEOC Charge itself. Ms. Smith then elaborates in

much greater detail about the complaints she made to management about Mr. Hepner

in early 2014. Id. at 130 (“I complained to manager James Oliver on March 28, 2014

about Rayland’s discriminatory treatment and how badly he talked to me . . . . He

dismissed my complaints and tried to convince me that Rayland is a good guy.”).

Ms. Smith further notes that, on the basis of this conversation, she was “looked upon

as a trouble maker for complaining.” Id.

      Finally, Ms. Smith concluded the 2014 EEOC Charge by alleging that “the real

reason [she] was fired is because [she] complained against [Mr. Hepner’s]

discriminatory treatment.” Id. At no point does the 2014 EEOC Charge reference



                                           4
the 2012 EEOC Charge, and indeed, Mr. Hepner was not hired and did not become

her supervisor until 2014.

      In responding to the 2014 EEOC Charge, however, Pointe Frontier did

reference Ms. Smith’s earlier EEOC action. Pointe Frontier explained to the EEOC

that this is “Ms. Smith’s second EEO charge,” and that previously “the EEOC

decided in favor of Pointe Frontier.” Id. at 135. Pointe Frontier went on to explain

that Ms. Smith appealed the EEOC determination, but “after Pointe Frontier incurred

thousands of dollars in legal fees to fight the appeal, Ms. Smith failed to complete her

part in the appeal so the hearing officer granted a motion for default.” Id. On April

4, 2016, the EEOC determined that, on the basis of the 2014 EEOC Charge, it was

“unable to conclude that the information obtained establishes violations of the

statutes,” and provided Ms. Smith notice of her right to sue. Id. at 132.

      Ms. Smith subsequently filed this lawsuit. In her brief Complaint, Ms. Smith

alleged that her termination was “pretextual and in retaliation for filing the previous

charge of discrimination in 2012.” Id. at 7; see also id. (“The termination of the

plaintiff by the defendant was motivated by the plaintiff’s filing of a charge of

discrimination with the [EEOC.]”). As evidence, Ms. Smith cited the facility’s

decision to reference the 2012 EEOC Charge in responding to the 2014 EEOC

Charge. Ms. Smith’s allegation that she was fired in retaliation for filing the 2012

EEOC Charge is the only ground for relief listed in the Complaint.

      Pointe Frontier moved to dismiss for lack of subject matter jurisdiction, or, in

the alternative, for summary judgment. As to the former, Defendant argued that Ms.

                                           5
Smith had failed to exhaust her administrative remedies because the claim pled in her

Complaint is not the same as what she pled in the 2014 EEOC Charge. Ms. Smith

opposed both motions.

      After holding a hearing on the motions, the district court granted the motion to

dismiss for lack of subject matter jurisdiction, and, in the alternative, granted

Defendant’s motion for summary judgment. Ms. Smith timely appealed. Exercising

appellate jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s order

of dismissal on the ground that Ms. Smith failed to exhaust her administrative

remedies.

                                 II.    DISCUSSION

      As a threshold matter, the district court treated Defendant’s failure-to-exhaust

argument as challenging the court’s subject matter jurisdiction, in accord with several

Tenth Circuit cases establishing the exhaustion requirement as such. Aplt. App. 240

(citing Chung v. El Paso Sch. Dist. #11, 659 F. App’x 953, 957 (10th Cir. 2016)

(unpublished); E.E.O.C. v. JBS USA, LLC, 794 F. Supp. 2d 1188, 1199 (D. Colo.

2011)); see also MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir.

2005) (“In the tenth circuit, a plaintiff must exhaust her claims before the EEOC as a

prerequisite to federal court jurisdiction over her ADA claims.”); Jones v. Runyon,

91 F.3d 1398, 1399 (10th Cir. 1996) (“Exhaustion of administrative remedies is a

jurisdictional prerequisite to suit under Title VII”) (internal quotation marks

omitted).



                                            6
       At the time the district court issued its opinion, these cases were still good law

in the Tenth Circuit, although we had taken note of our status as the only circuit still

to treat EEOC exhaustion as a jurisdictional requirement instead of an affirmative

defense, see, e.g., Logsdon v. Turbines, Inc., 399 F. App’x 376, 378 n.2 (10th Cir.

2010) (unpublished), and we had begun to remove the jurisdictional label in

analogous situations, see, e.g., Gad v. Kan. State Univ., 787 F.3d 1032, 1036 (10th

Cir. 2017) (determining that verification of an EEOC Charge was not jurisdictional).

Earlier this year, after the district court had issued its opinion in this case, a panel of

this court gained authorization from all active judges to overrule our prior holding

that failure to exhaust in the EEOC context was a jurisdictional requirement. Lincoln

v. BNSF Rwy., — F.3d —, 2018 WL 3945875, *8 (10th Cir. Aug. 17, 2018) (citing

United States v. Meyers, 200 F.3d 715, 721 (10th Cir. 2000) (holding that one panel

“may overrule a point of law established by a prior panel after obtaining

authorization from all active judges on the court”)). Accordingly, the current state of

the law in the Tenth Circuit is that “a plaintiff’s failure to file an EEOC charge

regarding a discrete employment incident merely permits the employer to raise an

affirmative defense of failure to exhaust but does not bar a federal court from

assuming jurisdiction over a claim.” Id.

       In most cases, including this one, this distinction between a jurisdictional

requirement and an affirmative defense is immaterial. “The characterization is

important . . . only when the defendant has waived or forfeited the issue[,]” because

if exhaustion is not jurisdictional, “the court must dismiss only if the issue has been

                                             7
properly presented for decision.” McQueen ex rel. McQueen v. Colo. Springs Sch.

Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007). Here, Pointe Frontier pled failure

to exhaust as an affirmative defense in its Answer, and in its motion it affirmatively

raised the issue of exhaustion for the district court’s consideration. Therefore, even

though the district court’s stated rationale for dismissal—lack of subject matter

jurisdiction—is no longer viable in light of Lincoln, if we agree that Ms. Smith failed

to exhaust her administrative remedies we may affirm the district court on alternative

grounds. See, e.g., Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1178

n.4 (10th Cir. 2007) (affirming dismissal on alternative grounds).

      We review the district court’s legal determination that a plaintiff has failed to

exhaust her administrative remedies de novo. Thomas v. Parker, 609 F.3d 1114,

1117 (10th Cir. 2010).1 Here, while it is uncontested that Ms. Smith did file the 2014

EEOC charge, thereby facially satisfying her duty to exhaust, Pointe Frontier argues

that the claim she alleges in this lawsuit—unlawful retaliation for filing the 2012




      1
         Some of our precedents, decided under a jurisdictional scheme, suggest that
exhaustion of administrative remedies is a jurisdictional fact reviewed for clear error.
See, e.g., McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
That holds true, however, when the question at the heart of the exhaustion issue
involves historical facts such as whether the plaintiff sufficiently cooperated with the
administrative process, see, e.g., id. at 1106–07, or whether an EEOC charge was
ever filed, see, e.g., Alcivar v. Wynne, 268 F. App’x 749, 755 (10th Cir. 2008)
(unpublished). Where, as here, the issue does not depend on historical facts, but
rather on the interpretation of the scope of an EEOC charge from the face of the
charge itself, such interpretation is best viewed as a legal issue reviewed de novo.
See Reese Expl., Inc. v. Williams Nat. Gas Co., 983 F.2d 1514, 1518 (10th Cir. 1993)
(“Interpreting written documents is a question of law subject to de novo review.”).
                                           8
EEOC Charge—was not presented to the administrative agency as part of her 2014

EEOC Charge.

      The exhaustion rule derives from two principal purposes: “1) to give notice of

the alleged violation to the charged party; and 2) to give the EEOC an opportunity to

conciliate the claim, which effectuates Title VII’s goal of securing voluntary

compliance.” Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994), abrogated

on other grounds by Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003). To advance

these purposes, after a plaintiff receives a notice of her right to sue from the EEOC,

that plaintiff’s claim in court “is generally limited by the scope of the administrative

investigation that can reasonably be expected to follow the charge of discrimination

submitted to the EEOC.” MacKenzie, 414 at 1274. While we “liberally construe”

the plaintiff’s allegations in the EEOC charge, “the charge must contain facts

concerning the discriminatory and retaliatory actions underlying each claim[.]”

Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis added). The

ultimate question is whether “the conduct alleged [in the lawsuit] would fall within

the scope of an EEOC investigation which would reasonably grow out of the charges

actually made [in the EEOC charge].” Martin v. Nannie & Newborns, Inc., 3 F.3d

1410, 1416 n.7 (10th Cir. 1993) overruled on other grounds as recognized by

Davidson v. America Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003).

      While the 2014 EEOC Charge does allege retaliation, it is clear from the text

of that charge that it does not encompass retaliation for having filed the 2012 EEOC

Charge, which is the Title VII violation Ms. Smith now alleges in federal court. The

                                            9
first line of the 2014 EEOC Charge alleges that Ms. Smith was “subjected to

disparate treatment and a hostile work environment and was fired from my Server

position after I complained.” Aplt. App. at 129. While this alone would perhaps be

sufficient to suggest the “complaint” referenced was the 2012 EEOC Charge, Ms.

Smith spends the rest of the 2014 EEOC Charge making clear this is not the case.

Ms. Smith elaborates that she “complained to manager James Oliver on March 28,

2014 about [Hepner’s] discriminatory treatment,” and that while nothing happened as

a result of this complaint she “was looked upon as a trouble maker for complaining.”

Id. at 130. While this “complaint” to the General Manager is described in detail in

the 2014 EEOC Charge, the 2014 EEOC Charge makes only a passing reference to

the events that precipitated the 2012 EEOC Charge, and in fact never mentions that a

charge was filed in 2012. Finally, the 2014 EEOC Charge concludes by saying “the

real reason I was fired is because I complained against [sic] Rayland’s discriminatory

treatment.” Id. (emphasis added). Given that Rayland Hepner was not hired at

Pointe Frontier until 2014, that line alone makes clear that the 2014 EEOC Charge

does not encompass the claims Ms. Smith now brings, namely that she was fired for

filing the earlier 2012 EEOC Charge.

      Recognizing that the 2014 EEOC Charge, on its face, does not reference the

2012 EEOC Charge, Ms. Smith urges us to consider Pointe Frontier’s response,

which does, in passing, mention the 2012 EEOC Charge. In responding to Ms.

Smith’s 2014 EEOC Charge, Pointe Frontier alerted the EEOC that this was “Ms.

Smith’s second EEO Charge . . . against Pointe Frontier[,]” and that the EEOC had

                                         10
previously “decided in favor of Pointe Frontier[.]” Aplt. App. at 135. Pointe

Frontier also referenced the case number of the 2012 EEOC Charge.

      This argument has a certain appeal. After all, the test is whether the claim Ms.

Smith now brings in federal court was within the scope of the administrative

investigation that would “reasonably be expected to follow from the discriminatory

acts alleged in the administrative charge.” Jones, 502 F.3d at 1186 (emphasis in

original). One might expect, given the reference to the 2012 EEOC Charge in Pointe

Frontier’s response, that the EEOC investigation into the allegations contained in the

2014 EEOC Charge would have included inquiry into the 2012 EEOC Charge, and

whether any of the adverse employment actions Ms. Smith suffered can be traced

back to her decision to file that complaint with the EEOC.

      But we have consistently held, time and again, that the reasonable and likely

scope of the investigation is determined by the allegations contained in the Charge

itself, rather than in the Charge and any responsive documents. See, e.g., Id., 502

F.3d at 1186 (“[O]ur 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.”) (second emphasis added); MacKenzie, 414

F.3d at 1274 (“A plaintiff’s claim in federal court is generally limited by the scope of

the administrative investigation that can reasonably be expected to follow the charge

of discrimination submitted to the EEOC.”) (emphasis added); Logsdon, 399 Fed.

Appx. at 379 (refusing to enlarge the reasonable scope of EEOC investigation to



                                           11
include adverse employment actions not referenced in charge but referenced in

response).

      And there is good reason for this requirement. After all, the twin purposes of

the exhaustion requirement would be ill-served if an employer’s response could

expand the scope of the EEOC inquiry. See Ingels, 42 F.3d at 625 (stating purpose of

limiting the court action to matters reasonably noticed in the EEOC claim was (1) to

give employer notice of alleged violation and (2) to give EEOC opportunity to

conciliate the claim). As to notice, that purpose militates explicitly in favor of using

the Charge itself to establish the scope of the investigation so the employer knows

exactly what allegations to defend itself against. And as to the second purpose, if we

were to hold that a defendant’s response to an EEOC Charge could expand the scope

of that Charge, we would be incentivizing employers to respond to such charges in as

bland and general a manner as possible. The goal for employers would be to avoid

any language that could be used to expand the employee’s claim beyond the face of

the Charge itself, which would hinder the EEOC’s ability to gather and collect

enough detailed information to conciliate the claim.2

      Because EEOC Charges are traditionally filed by non-attorneys, we have

repeatedly emphasized that the Charges should be “liberally construe[d]” at all levels

of their review. See, e.g., Jones, 502 F.3d at 1186; MacKenzie, 414 F.3d at 1274;

Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004). We stress that

      2
        What claims the EEOC might reasonably be on notice of is, of course, fact
specific, and our ruling here is necessarily cabined by the allegations in this 2014
EEOC charge.
                                           12
principle again here, and have applied it to the 2014 EEOC Charge before us. But

even construed liberally, the 2014 EEOC Charges raises two claims for relief: (1) that

Ms. Smith was repeatedly intimidated and harassed by Rayland Hepner on the basis

of her age and race, and (2) that she was fired for complaining about this treatment to

management. Aplt. App. at 130 (“I believe I was singled out by Rayland because of

my race/color and age and that he and other members of management plotted to fire

me for complaining.”). No matter how liberally we may construe these two grounds

for relief, they do not include Ms. Smith’s claim in this lawsuit that her termination

“was motivated by [her] filing [in 2012] of a charge of discrimination with the

[EEOC].” Id. at 7.

      Accordingly, because Ms. Smith’s claim was not within the scope of her 2014

EEOC Charge, we AFFIRM the district court’s decision to dismiss the complaint.

However, because the district court continued on to consider Pointe Frontier’s motion

for summary judgment in the alternative—holding that summary judgment was

appropriate—it ultimately dismissed Ms. Smith’s claim with prejudice. “Ordinarily,

a dismissal based on a failure to exhaust administrative remedies should be without

prejudice.” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (emphasis in

original). Because we express no opinion on the merits of Pointe Frontier’s motion

for summary judgment, and without considering the timeliness of any subsequent

EEOC Charges Ms. Smith might file, her complaint should be dismissed without

prejudice to filing a second such complaint in the future should she be able to exhaust

her administrative remedies and plead a timely complaint.

                                          13
      Therefore we REMAND to the district court with instructions to VACATE its

previous order in its entirety and DISMISS the complaint without prejudice. Cf.

United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950) (holding that when a

claim becomes moot while a case is pending on appeal the proper disposition is to

vacate the judgment of the lower court and remand with instructions to dismiss).




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