                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 12 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHELLEY SEALS,

                Plaintiff-Appellant,

    v.                                                   No. 96-5149
                                                     (D.C. No. 95-CV-511)
    OIL DATA, INC., a Texas                              (N.D. Okla.)
    Corporation,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before ANDERSON, KELLY, and LUCERO, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Shelley Seals appeals from the district court’s order granting

summary judgment to defendant Oil Data, Inc. on her Title VII claim for hostile

work environment based on sexual harassment and dismissing her related pendent

state laws claims. Our jurisdiction over this appeal arises under 28 U.S.C.

§ 1291. We review the district court’s grant of summary judgment de novo,

applying the standards of Fed. R. Civ. P. 56(c), as did the district court. See Kaul

v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Under Rule 56, we determine if

genuine issues of material fact exist which would preclude summary judgment

and, if not, whether the moving party is entitled to judgment as a matter of law.

Id. In making this determination, we view the evidence and any reasonable

inferences drawn therefrom in the light most favorable to the non-moving party.

Id. We review the district court’s discretionary decision to dismiss plaintiff’s

pendent state claims for abuse of that discretion. See Baker v. Board of Regents,

991 F.2d 628, 634 (10th Cir. 1993).

      The district court granted defendant’s motion for summary judgment

because it concluded that plaintiff’s Title VII claim was time-barred. Timely

filing is a prerequisite to a civil suit based on Title VII. See Martin v. Nannie &

the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993). In Oklahoma, Title VII

required plaintiff to file her charge of discrimination with the Equal Employment

Opportunity Commission (EEOC) within 300 days “after the alleged unlawful


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employment practice occurs,” see id. & n.4; 42 U.S.C. § 2000e-5(e). She filed

her charge with the EEOC in November of 1994, listing alleged incidents

occurring from the fall of 1992 to April of 1994 as support for her hostile work

environment claim. In sum, those incidents involved alleged unwelcome

advances and threats by co-worker Hiep Hyunh occurring through late 1992, and

alleged advances and assaults by co-worker Troy Mackie. All but one of the

specific incidents involving Mackie occurred in 1992; one occurred in the spring

of 1994. Unless plaintiff has demonstrated applicability of an exception to the

Title VII filing prerequisite, her hostile work environment claim, based on

incidents occurring before the relevant filing period (here beginning in February

of 1994), is time barred. See Purrington v. University of Utah, 996 F.2d 1025,

1028 (10th Cir. 1993).

      Plaintiff contended that her claims should not be barred because the

incidents she alleged constitute a continuing violation of Title VII. The

continuing violation theory is an equitable tolling doctrine which allows a Title

VII plaintiff to bring claims based on incidents outside of the relevant filing

period if those incidents are related to incidents within the filing period such that

they create a continuing pattern of discrimination. See Mascheroni v. Board of

Regents, 28 F.3d 1554, 1560 (10th Cir. 1994).




                                          -3-
      The district court rejected plaintiff’s argument that her allegations

demonstrated a continuing violation of Title VII. On appeal, plaintiff contends

that the district court erred because at least four of the incidents she set out in

support of her claim occurred during the relevant time period. She identifies

those incidents as: 1) Mackie grabbing another employee’s breast in February or

March of 1994 (an incident plaintiff did not witness), 2) sometime afterwards,

Mackie grabbing plaintiff around the waist, 1 3) Mackie’s resignation in July of

1994, and 4) an offer by defendant in October of 1994 for plaintiff to work in its

Houston office, which she declined. Appellant’s Br. at 27-28.

      First, we agree with the district court that the last two incidents cannot be

considered part of a continuing violation because they are not incidents of

discrimination. See Mascheroni, 28 F.3d at 1562. As to the remaining two 1994

incidents, we must determine whether they are sufficiently related to the alleged




1
       This incident was not included in plaintiff’s allegations in her EEOC
charge, but appeared in plaintiff’s affidavit in support of her opposition to
defendant’s summary judgment motion. On appeal, plaintiff mischaracterizes the
district court’s order when she contends the court took her to task for presenting a
sham affidavit. Appellant’s Br. at 27 n.3. Defendants did object to plaintiff’s
affidavit as an attempt to create a sham factual issue. Nonetheless, the district
court, although commenting that it viewed the newly alleged incident “with
suspicion,” did not conclude that the affidavit was a sham, but considered the
incident in its continuing violation analysis. Appellant’s App., Vol II, tab 10, at
4-5 n.3.

                                           -4-
incidents occurring in 1992 2 that the events as a whole demonstrate a “dogged

pattern” of discrimination, as differentiated from isolated or singular events. See

Purrington, 996 F.2d at 1028. In making this determination in the first instance,

the district court properly applied the three-factor analysis set out in Berry v.

Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983), and adopted by this

court in Purrington, 966 F.2d at 1028. “The Berry court found three inquiries

relevant, though not exhaustive: (1) whether the alleged acts involve the same

type of violation, (2) whether the acts are recurring versus isolated; and perhaps

most important, (3) whether the acts have the degree of permanence which should

alert the employee to the duty to assert her rights.” Id.

      As to the first factor, both of the 1994 incidents can be classified as

incidents of sexual harassment. Incidents which support a hostile work

environment claim need not directly involve the plaintiff. See id. at 1029.

However, the 1994 incidents are distant in time from those incidents alleged to

have occurred in 1992. The passage of over one year between the specifically

alleged incidents indicates that the discriminatory conduct was neither frequent

nor continuing. Cf. West v. Philadelphia Elec. Co., 45 F.3d 744, 755-56 (3d Cir.



2
       Plaintiff’s general allegation that Mackie “continued during 1993 to touch
me offensively when he got the chance,” Appellant’s App. Vol II, tab 8, ex. E at
337, is not specific enough to constitute alleged incidents of discrimination. See
Purrington, 996 F.2d at 1029.

                                          -5-
1995) (harassing incidents occurred over more than four-year period of time,

increasing in frequency and without respite). The second factor weighs against

plaintiff’s argument.

      The third factor, the permanence of a given incident of discrimination, is

defined in part as whether the nature of the alleged discriminatory incidents

would put an employee on notice of the need to assert his or her rights. See

Mascheroni, 28 F.3d at 1561. Looking at the various incidents alleged to have

occurred outside the relevant filing period in this case, and viewing the evidence

in a light most favorable to plaintiff, we conclude that plaintiff should have been

aware long before the alleged events in the spring of 1994 that she should have

asserted her rights. The incidents she alleges as occurring in 1992 are of a more

serious nature than those alleged in 1994, including a death threat by Hyunh and

an assault by Mackie where he allegedly put his hands down her blouse and

fondled her breasts. 3 As this court has noted:

      The continuing violation doctrine is premised on the equitable notion
      that the statute of limitations should not begin to run until a
      reasonable person would be aware that his or her rights have been
      violated. The permanence prong of the Berry test limits the reach of
      the continuing violation theory by restricting its operation to those


3
      The record demonstrates that plaintiff was aware of the seriousness of the
incidents in 1992 and of the need to take action to protect her rights. She filed a
police report against Hyunh in October of 1992, and sought a protective order
against him. She complained to her supervisor about both Hyunh and Mackie in
1992.

                                         -6-
      situations underscored by its equitable foundation. That is, if an
      event or series of events should have alerted a reasonable person to
      act to assert his or her rights at the time of the violation, the victim
      cannot later rely on the continuing violation doctrine to overcome the
      statutory requirement of filing a charge with the EEOC with respect
      to that event or series of events.

Martin, 3 F.3d at 1415 n.6 (citations omitted); see also Galloway v. General

Motors Serv. Parts Operations, 78 F.3d 1164, 1166-67 (7th Cir. 1996) (discussing

policies behind third factor); Sabree v. United Bhd. of Carpenters & Joiners Local

No. 33, 921 F.2d 396, 402 (1st Cir. 1990) (same).

      Given this analysis, we agree with the district court that there was no

genuine issue of material fact that the 1992 claims were time-barred. Even if the

1994 incidents constituted sexual harassment, they were not closely related to the

1992 incidents such that plaintiff has demonstrated a continuing violation of Title

VII. See Purrington, 996 F.2d at 1029 (two incidents of harassment of other

workers, occurring a year after harassment of plaintiff do not evidence a pattern

of discrimination). We conclude the district court properly granted summary

judgment to defendant on plaintiff’s Title VII claim for hostile work environment.

Accordingly, we also discern no abuse of discretion in the district court’s decision




                                         -7-
to dismiss plaintiff’s pendent state claims. The judgment of the United States

District Court for the Northern District of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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