                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            MAR 20 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JAMAL BARZANJI,

                  Plaintiff-Appellant,

    v.                                                    No. 00-1205
                                                       (D.C. No. 00-M-75)
    SEALY MATTRESS                                         (D. Colo.)
    MANUFACTURING COMPANY;
    STEVE HILL; CHARLY; MARIO
    PIRIA,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Jamal Baranji appeals the district court’s summary judgment

dismissing his discrimination complaint on the ground that he failed to file an

administrative charge within three hundred days of the alleged acts of

discrimination. We affirm.

      Plaintiff was employed by the Sealy Mattress Company from September 25,

1997, until June 10, 1998. During this time he suffered a back injury for which

he was treated conservatively and was advised to restrict his lifting and hours.

Sealy contested plaintiff’s workers’ compensation and disability claims on the

ground that the injury was not work related. On June 10, 1998, Sealy informed

plaintiff that it did not have any work available to fit his medical restrictions, and

that he should notify them when he was released for unrestricted work. Plaintiff

has not worked for Sealy since then. On February 12, 1999, plaintiff and Sealy

entered into an agreement settling his workers’ compensation claim.

      On May 5, 1999, plaintiff filled out an “intake questionnaire” with the

Equal Employment Opportunity Commission (EEOC), in which he claimed the

following acts constituted discrimination based on his national origin and

disability: being given less hours and a lower wage than other assemblers;

reassignment to a janitorial position in October 1997 because of his difficulty

with English; failing to accommodate his medical condition; contesting his

applications for workers’ compensation and disability benefits; and terminating


                                          -2-
him on June 10, 1998. Across the top of the questionnaire, in bold lettering, the

form stated: “COMPLETING THIS QUESTIONNAIRE DOES NOT

CONSTITUTE THE FILING OF A CHARGE.” R. I., doc. 19, Questionnaire

attached to Notice of Appeal.

      On September 9, 1999, plaintiff filed a formal charge with the EEOC, in

which he alleged discrimination based on the following: despite his additional

bulging disks, the February 1999 workers’ compensation settlement stated that he

could not reopen his claim; he was informed on June 10, 1998 that he could no

longer perform his job due to his medical restrictions; between September 9, 1997

and June 10, 1998, he was told he did not speak English well; during the same

time frame, he was paid less than employees who were hired later and his

coworkers made fun of him; and he was not placed on light duty after his doctor

released him on May 19, 1998.     Id. , doc. 16, ex. A. On October 6, 1999, the

EEOC dismissed the charge as untimely because it was not filed withing three

hundred days of the alleged discrimination.         Id. , ex. B.

      On January 6, 2000, plaintiff filed a discrimination action in the district

court, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. § 2000e through § 2000e-17, and the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101 through § 12221. His complaint, as amended on

February 11, 2000, alleged the following discriminatory acts: giving other


                                              -3-
assemblers more hours and paying them more; assigning him to a janitorial

position; playing a joke on him with a paper stuck to his back; contesting his

workers’ compensation and short term disability claims; failing to accommodate

his work restrictions; discharging him as of June 10, 1998 based on his disability;

and ignoring an August 1998 report that he could perform light duty.       Id. , doc. 5.

The district court dismissed the complaint based on plaintiff’s failure to file his

administrative charge within three hundred days of the alleged discrimination.

       On appeal, plaintiff argues that the district court erred because (1) the

May 5, 1999 intake questionnaire was within three hundred days of the

discrimination; and (2) the discrimination continued until the settlement of his

workers’ compensation claim on February 12, 1999. We review de novo the

district court’s decision granting summary judgment and apply the same legal

standards as the district court.   Robbins v. Jefferson County Sch. Dist. R-1    , 186

F.3d 1253, 1258 (10th Cir. 1999)    . Summary judgment is appropriate when a

record demonstrates that “there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). We view the factual record and inferences therefrom in the light most

favorable to the nonmoving party.      Robbins , 186 F.3d at 1258.

       Both Title VII and the ADA limit the time within which a plaintiff must file

an administrative charge of discrimination with the EEOC.        See 42 U.S.C.


                                            -4-
§ 2000e-5(e)(1) (permitting claimants to seek relief for adverse actions occurring

no more than three hundred days before the filing of an EEOC complaint so long

as the plaintiff filed a state agency complaint as well);     Id. , § 12117(a)

(incorporating by reference Title VII procedures into ADA actions). A plaintiff

may not bring a lawsuit based upon claims that were not part of a timely-filed

EEOC charge.

       In this case, plaintiff filed charges with both the EEOC and the Colorado

Civil Rights Division on September 9, 1999. The discriminatory acts alleged in

this charge, with one exception, occurred before June 10, 1998, and thus fell well

beyond the three hundred-day limit. As for plaintiff’s allegation that Sealy

discriminated against him on February 12, 1999, by seeking a clause in the

workers’ compensation settlement agreement precluding the reopening of his

claim, this is not the type of “adverse employment action” necessary to support a

discrimination claim.    See Sanchez v. Denver Pub. Schs. , 164 F.3d 527, 531 (10th

Cir. 1998). In any event, plaintiff has not alleged this particular act in his

discrimination complaint.     See Amended Complaint, R. I, doc. 5.

       Plaintiff argues that his EEOC intake questionnaire, filed May 5, 1999, can

suffice as a discrimination charge. Courts are split on whether such an informal

questionnaire can be deemed a timely filing when it is later verified by a formal

charge. Compare Shempert v. Harwick Chem. Corp.             , 151 F.3d 793, 796-98 (8th


                                              -5-
Cir. 1998) (rejecting claim that a verified charge filed after the deadline related

back to convert an intake questionnaire into a timely charge),    and Park v. Howard

Univ. , 71 F.3d 904, 908-09 (D.C. Cir. 1995) (holding pre-complaint intake

questionnaire could not be deemed a valid charge),      with Philbin v. General Elec.

Capital Auto Lease, Inc. , 929 F.2d 321, 322 (7th Cir. 1991) (holding subsequently

verified charge related back to date intake questionnaire was filed to satisfy

statute), and Casavantes v. California State Univ., Sacramento    , 732 F.2d 1441,

1442-43 (9th Cir. 1984) (same). We need not decide this issue, however, because

the May 5, 1999 questionnaire was also filed more than three hundred days after

plaintiff’s June 10, 1998 separation from work and was therefore untimely.

       Finally, plaintiff argues that his charge was timely because the

discrimination continued until his workers’ compensation case was settled on

February 12, 1999. This was not the first date, though, that plaintiff learned that

Sealy would contest his workers’ compensation claim and would not provide him

with light employment. The Supreme Court has held that the trigger of the

limitations period in which to file an EEOC charge is the date an employee first

learns of the alleged discrimination, even if the effects of the discrimination

become more painful at a later date.    Delaware State College v. Ricks   , 449 U.S.

250, 258 (1980); see Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir. 1994)

(holding discrimination claim accrues on the date an employee is notified of


                                            -6-
adverse employment decision). Here, plaintiff is simply alleging that acts

occurring outside the filing period had a continuing effect within the time allowed

for suit. This is insufficient to demonstrate a timely claim under the “continuing

violation theory.”   Martin v. Nannie & the Newborns, Inc.   , 3 F.3d 1410, 1415

(10th Cir. 1993). As plaintiff learned of the underlying acts more than three

hundred days before filing either his intake questionnaire or his formal charge,

the district court correctly dismissed his discrimination complaint for failure to

exhaust his remedies by filing a timely administrative charge with the EEOC.

       Plaintiff’s motion to supplement the record with documents that were not

presented to the district court is DENIED, and the judgment of the United States

District Court for the District of Colorado is AFFIRMED. The mandate shall

issue forthwith.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




                                          -7-
