                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 23, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT


 EMAJO MAYBERRY and CAROL A.
 CLOPTON,

               Plaintiffs - Appellants,
                                                          No. 09-3053
          v.                                 (D. Ct. No. 2:06-CV-02575-CM-DJW)
                                                            (D. Kan.)
 ENVIRONMENTAL PROTECTION
 AGENCY, Lisa P. Jackson,
 Administrator,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, EBEL, and KELLY, Circuit Judges.


      Plaintiffs-appellants Emajo Mayberry and Carol A. Clopton brought claims

against the Environmental Protection Agency (“EPA”) for reprisal,

discrimination, and hostile work environment under Title VII of the Civil Rights

Act of 1984 and the Age Discrimination in Employment Act (“ADEA”) of 1967.

The district court dismissed nearly all of plaintiffs’ claims for lack of jurisdiction

based on plaintiffs’ failure to exhaust their administrative remedies, and certified


      *
        This order and judgment is not binding precedent except under the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.
its decision as a final judgment under Fed. R. Civ. P. 54(b). We have jurisdiction

under 28 U.S.C. § 1291 and AFFIRM.

                                I. BACKGROUND

A.    Factual Background

      Ms. Clopton is a Caucasian woman over the age of forty who worked as a

Program Analyst in the EPA’s Kansas City, Kansas Regional Office from 1985

until her retirement in 2007. Ms. Mayberry is a black woman over the age of

forty who has worked as a Program Analyst in the same EPA regional office since

1971. Since 2000, both plaintiffs have been class agents in a pending

administrative class action against the EPA in which they allege claims of age and

race discrimination. All of plaintiffs’ instant Title VII and ADEA claims against

the EPA are based on alleged mistreatment they have endured because of their

prosecution of the class action case.

      The EPA filed a motion to dismiss plaintiffs’ instant claims for lack of

jurisdiction based on plaintiffs’ failure to exhaust their administrative remedies.

The district court concluded that Ms. Clopton failed to exhaust all of her claims

and dismissed them accordingly. The district court further concluded that Ms.

Mayberry failed to exhaust all of her Title VII claims and all but two of her

ADEA claims. Plaintiffs argue that the district court erred by concluding that

they did not exhaust their administrative remedies for their various claims. We

address facts relevant to each of plaintiffs’ attempts to exhaust in our analysis.

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B.    Legal Background — Procedures for Exhausting Administrative Remedies

      Before a federal employee may file a Title VII suit in district court, the

employee must exhaust her administrative remedies. 42 U.S.C. § 2000e-16(c);

see also Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.

2005). In order to exhaust her administrative remedies, an EPA employee must

make an informal charge to an Equal Employment Opportunity (“EEO”)

counselor at the EPA’s regional office within forty-five days from the date of the

alleged discriminatory act. 29 C.F.R. § 1614.105(a). The EEO counselor must

advise the employee of her rights and responsibilities, investigate the complaint,

and attempt to informally resolve the matter. See id. § 1614.105(b)(1). The EEO

counselor must then conduct a final interview with the employee within thirty

days of the date the employee contacted the EEO office. Id. § 1614.105(d). If the

matter has not been resolved, the employee is notified in writing of her right to

file a formal discrimination complaint with the EPA’s Office of Civil Rights

(“OCR”) within fifteen days of receiving the Notice of Final Interview. Id. §

1614.105(b), (d); see also id. § 1614.106(b). At that point, the employee may file

a civil action in district court within ninety days of receiving notice of final

action by the OCR or “[a]fter 180 days from the date of filing . . . [if] final action

has not been taken.” Id. § 1614.407(a), (b).

      When the complaint is based on alleged violations of the ADEA an

employee has the option of following the procedure outlined above or providing

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the head of the EPA with thirty days notice of intent to file a civil action in a

United States district court and proceeding directly to court. Id. § 1614.201(a).

                                   II. ANALYSIS

A.    Standard of Review

      We review the district court’s dismissal of a complaint for lack of

jurisdiction de novo and its findings of jurisdictional fact for clear error. See

McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104–05 (10th Cir. 2002).

“Because the jurisdiction of federal courts is limited, there is a presumption

against our jurisdiction, and the party invoking federal jurisdiction bears the

burden of proof.” Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir.

2005) (quotation omitted).

B.    Plaintiffs’ Claims and Attempts to Exhaust

      1.     Ms. Mayberry’s August 2005 and October/November 2005 Claims

      On August 18, 2005, Ms. Mayberry made an informal complaint to an EEO

counselor in which she sought relief for discriminatory and retaliatory incidents

that allegedly occurred on August 10, 2005. On November 2, 2005, Ms.

Mayberry added two additional informal complaints of discrimination for events

that allegedly occurred on October 20, 2005 and November 1, 2005. Then, on

November 23, 2005, Ms. Mayberry met with the EPA’s EEO counselor, but was

unable to informally resolve her claims. Accordingly, she signed a Notice of

Final Interview in which she acknowledged that she had fifteen days to file a

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formal discrimination complaint with the OCR based on the August 10, October

20, and November 1 events. Ms. Mayberry never filed a formal complaint.

Instead, on December 8, 2005, she included these claims in a Second Motion to

Amend The Class Complaint (“Motion to Amend”) which she and Ms. Clopton

jointly filed with the Administrative Judge (“AJ”) who was overseeing the

pending class action. The AJ denied the Motion to Amend on December 13,

concluding that the claims therein would be more appropriately decided as

individual rather than class claims.

      On appeal, Ms. Mayberry argues that she satisfied the requirement for

submitting a formal complaint by including the three claims for which she had

already made informal complaints in the Motion to Amend, and that it was the

EPA’s responsibility to process the denied Motion to Amend as a formal

complaint. This claim is plainly without merit. The regulations clearly state that

a formal complaint must be filed with the OCR within fifteen days of the

complainant’s receipt of the Notice of Final Review. See 29 C.F.R. §

1614.106(b). Furthermore, Ms. Mayberry does not provide any legal support for

her claim that a denied Motion to Amend is the equivalent of a formal complaint

to the OCR. Accordingly, the district court properly concluded that Ms.

Mayberry did not exhaust her August 2005 and October/November 2005 claims.

      Alternatively, Ms. Mayberry argues that the Notice of Final Interview she

signed on November 23, 2005 was ineffective because it was not sent to her

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attorney as required by 29 C.F.R. § 1614.605(d). 1 The district court rejected this

argument because Ms. Mayberry failed to provide the address and telephone

number of her attorney in accordance with the regulation. Ms. Mayberry now

contends that the EPA: (1) already had her attorney’s information in connection

with the class complaint; (2) did not provide space on any form for such

information; and (3) should have asked her for the information. We do not agree.

The regulation places no duty on the EPA to request or track down an attorney’s

contact information. The EPA’s duty only arises when an employee has provided

the necessary information. See 29 C.F.R. § 1614.605(d) (“after the agency has

received written notice of the name, address and telephone number of a

representative for the complainant, all official correspondence shall be with the

representative” (emphasis added)). Furthermore, the class claims were being

handled in a different office and, as found by the AJ, are not related to the claims

in this case. Therefore, Ms. Mayberry’s failure to provide the EEO counselor

with all of the requisite information foreclosed any duty on behalf of the

counselor to send the Notice of Final Interview to Ms. Mayberry’s attorney. For

      1
          The regulation provides, in pertinent part:

      Unless the complainant states otherwise in writing, after the agency
      has received written notice of the name, address and telephone
      number of a representative for the complainant, all official
      correspondence shall be with the representative with copies to the
      complainant.

29 C.F.R. § 1614.605(d).

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all of these reasons, the district court properly dismissed Ms. Mayberry’s August

2005 and October/November 2005 claims.

      2.     Plaintiffs’ Failure to Promote Claims

      In addition to Ms. Mayberry’s individual claims, plaintiffs’ December 8,

2005 Motion to Amend included claims by both Ms. Clopton and Ms. Mayberry

that they were denied a promotion for discriminatory reasons. The district court

dismissed these claims because it found that plaintiffs failed to exhaust their

administrative remedies. Specifically, plaintiffs did not make an informal failure

to promote complaint to an EEO counselor. Plaintiffs concede that they did not

meet with an EEO counselor as required for Title VII claims, nor did they file

notices of intent to sue as they might have under the ADEA. Therefore, facially

they did not exhaust their failure to promote claims. Nevertheless, plaintiffs

argue that these claims are exhausted because upon the AJ’s denial of their

Motion to Amend, the EPA was obligated to treat the failure to promote claims

therein as properly filed informal complaints. Therefore, they argue that the

EPA’s failure to address the complaints for more than 180 days provided them

with the right to sue under 29 C.F.R. § 1614.407(b).

      In support of their position, plaintiffs point to the Commission’s Handbook

for Administrative Judges and the Commission’s Management Directive.

Plaintiffs also contend that the AJ’s order itself required the EPA to act. The

district court, however, correctly noted that “the [AJ] handbook does not speak in

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terms of mandatory action.” Mayberry, 2008 WL 4304979, at *4. Furthermore,

the district court correctly noted that the AJ’s finding that “these claims would be

more appropriately addressed as individual claim[s] of retaliation by the Agency,”

did not order the EPA to take any action. Id. Finally, the Management Directive

cited by plaintiffs does not apply in this case. The Directive outlines the

procedure the EPA follows when directly presented with an amendment to a

complaint before jurisdiction has shifted to an AJ. See EEOC Management

Directive 110. Therefore, the district court correctly found that plaintiffs failed to

exhaust their administrative remedies and properly dismissed plaintiffs’ failure to

promote claims.

      3.     Ms. Mayberry’s May 2006 Claim

      On July 12, 2006, plaintiffs’ counsel sent a letter to the OCR in which he

inquired about the claims raised in the December 8, 2005 Motion to Amend and

raised a new claim on Ms. Mayberry’s behalf based on events that occurred in

May 2006. The OCR construed the July 12 letter as a formal complaint for Ms.

Mayberry’s August 2005 and October/November 2005 claims. Accordingly, the

OCR dismissed the formal complaint as untimely.

      Ms. Mayberry never filed an informal complaint with regard to her May

2006 claim. Nevertheless, on appeal, she argues that the July 12, 2006 letter

should be treated as a timely-filed informal complaint which the EPA was

required to process. This argument, however, ignores the regulatory scheme in

                                         -8-
place requiring an employee to contact the EPA’s regional EEO office and obtain

counseling before contacting the OCR. See 29 C.F.R. § 1614.105(b), (d).

Furthermore, this is not a situation in which the employee was not aware of the

proper procedure for filing a complaint. Indeed, Ms. Mayberry had already been

through the process. Because Ms. Mayberry failed to make an informal complaint

to an EEO counselor, her May 2006 claim was not administratively exhausted and

it was properly dismissed by the district court.

      4.     Ms. Mayberry’s October/November 2006 Claims

      On November 26, 2006, Ms. Mayberry properly submitted to an EEO

counselor informal complaints for events that allegedly occurred in October and

November 2006. On January 10, 2007, she received a Notice of Final Interview

which advised her that she was required to file a formal complaint with the OCR

within 15 days. Ms. Mayberry never filed a formal complaint, but instead filed a

Notice of Intent to Sue Under the ADEA. Accordingly, she did not exhaust her

October/November 2006 Title VII claims and the district court properly dismissed

them. On the other hand, the district court properly retained her ADEA claims

based on her timely filing of a Notice of Intent to Sue.

      Although she concedes that she failed to exhaust her Title VII claims, Ms.

Mayberry contends that the ADEA’s alternative exhaustion process should be

applied to Title VII claims. That is not, however, the way Congress chose to draft

Title VII. See Shikles, 426 F.3d at 1314 (noting that the Supreme Court “has

                                         -9-
rejected attempts to read requirements into Title VII, like the ADEA, beyond

those expressly provided by Congress”) (citations omitted). Therefore, Ms.

Mayberry’s Notice of Intent to Sue did not exhaust her October/November 2006

Title VII claims, and the district court properly dismissed them.

      5.     Ms. Mayberry’s February/March 2007 Claims

      On April 2, 2007, Ms. Mayberry properly made an informal complaint to an

EEO counselor based on events that allegedly occurred in February and March

2007. When the EEO counselor contacted her regarding this informal complaint,

she informed him that she was not pursuing the administrative process but

intended to proceed directly to court under the ADEA. Therefore, she did not

exhaust her February/March 2007 Title VII claims and the district court properly

dismissed them. Conversely, her notice to the EEO counselor that she intended to

sue under the ADEA exhausted her February/March 2007 ADEA claims and the

district court properly retained those claims.

      6.     Ms. Mayberry’s Hostile Work Environment Claims

      Finally, Ms. Mayberry appears to argue that her hostile work environment

claims from late 2006 and early 2007 did not require additional exhaustion

because of the continuing nature of such claims. This circuit has not decided

whether hostile work environment claims must be independently exhausted or

whether the prior exhaustion of reasonably related claims is sufficient. See

Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003) (stating that Nat’l

                                        - 10 -
RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002), teaches that each discrete

incident of discrimination must be exhausted, but noting that the rule may not be

applicable to hostile work environment claims). We need not do so today,

however, because Ms. Mayberry has not exhausted any claims to which these later

hostile work environment claims might reasonably relate. Therefore, her

argument necessarily fails and the district court properly dismissed all of her Title

VII hostile work environment claims.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM the ruling of the district court.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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