                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 7 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RENA LOGAN,

                Plaintiff - Appellant,
                                                          No. 02-7034
    v.                                               D.C. No. 01-CV-505-P
                                                       (E.D. Oklahoma)
    ANTHONY J. PRINCIPI, Secretary
    of Veterans Affairs,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 seeks review of the district court’s dismissal of her complaint

alleging breach of a settlement agreement reached between her and her employer,

the Department of Veterans Affairs, on behalf of the Veterans Administration

Medical Center (VAMC), in Muskogee, Oklahoma. The district court dismissed

the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P.

12(b)(1). We review the dismissal de novo,     see Hart v. Dep’t of Labor ex rel.

United States , 116 F.3d 1338, 1339 (10th Cir. 1997), and we affirm.

      Plaintiff is employed with the VAMC in its Nutrition and Food Service. In

1998, she applied for an advertised position, which was subsequently filled by a

male. She filed a formal complaint in January of 1999 and in March entered into

a settlement agreement by which VAMC agreed to provide training, help her

prepare for promotional opportunities, and to treat her fairly when she applied for

promotions.

      In May of 1999, plaintiff wrote to the EEOC, alleging a breach of the

settlement agreement. On October 13, 2000, plaintiff was notified by the

Department of Veterans Affairs of its determination that the settlement agreement

had, in fact, been breached. In addition, the VAMC was instructed to implement

a new Individual Development Plan (IDP) to include supervisory, computer, and

increased office skills as specified in the settlement agreement. The new IDP was

to be implemented within forty-five days of its decision. Plaintiff was also


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advised that this was a final agency decision and of her right to appeal the

decision to the EEOC within thirty days of her receipt of the letter.

       The new IDP plan was sent to plaintiff on October 30, 2000. It included a

proposed training schedule of forty to fifty hours, commencing November 4 and

finishing by December 30, 2000. On December 4, plaintiff’s attorney notified the

chief of the Nutrition and Food Service that plaintiff had received only a quarter

of the proposed training and that plaintiff continued to be harassed, primarily by

her co-workers. Plaintiff’s training was completed on January 14, 2001.

       In May of 2001, counsel sent a second letter complaining of plaintiff’s

continued harassment to the VA’s acting Deputy Assistant Secretary of Resolution

Management. In response, on June 6, the VA advised plaintiff that because

training had been provided, the settlement agreement had been implemented.

Counsel was further advised of the procedures for pursuing subsequent

harassment claims and acts of discrimination that violate a settlement agreement

under 29 C.F.R. § 1614, et seq. On August 2, 2001, plaintiff was sent a letter

from an EEO counselor closing a matter of informal counseling and advising

plaintiff of her right to file a formal discrimination complaint with the VA’s

Office of Resolution Management. This action was filed in federal court on

August 31.




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       Plaintiff first argues that because defendant included additional material

with its motion to dismiss, the matter should have been treated as one for

summary judgment pursuant to Fed. R. Civ. P. 56. We disagree. When a party’s

Rule 12(b)(1) motion challenges the facts on which subject matter jurisdiction

depends, a district court has wide discretion to allow affidavits and other

documents to resolve disputed jurisdictional facts, and reliance on this evidence

in addressing the motion does not generally convert the motion to one for

summary judgement.      Sizova v. Nat’l Inst. of Standards & Tech.    , 282 F.3d 1320,

1324 (10th Cir. 2002). The exception to this rule occurs when “the jurisdictional

question is intertwined with the merits of the case.”     Id. ( quotation omitted). The

focus of this inquiry is “whether resolution of the jurisdictional question requires

resolution of an aspect of the substantive claim.”      Pringle v. United States ,

208 F.3d 1220, 1223 (10th Cir. 2000) (citation omitted).

       Here, plaintiff’s primary complaint is based on an alleged breach of the

settlement agreement. This breach was ultimately recognized by the VA and a

remedial course of action proposed. Plaintiff was informed of her option to

appeal administratively if that proposed resolution was unsatisfactory. She did

not do so, and the VAMC proceeded with its training obligation. In her response

to defendant’s motion to dismiss the complaint, plaintiff accepted defendant’s

statement that training was completed in January of 2001, approximately two


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weeks beyond the proposed resolution schedule. Thus, her federal complaint

would appear to be predicated on this brief delay in accomplishing the resolution.

To the extent (which is not clear from the complaint) she might be attempting to

resurrect the original discrimination charge, she abandoned that course of action

by not further pursuing any appeal from the October 13, 2000 determination that

the VA had breached the original settlement agreement. In addition, as part of the

settlement agreement, she waived her rights to file a lawsuit based on the original

discrimination complaint.

       Exhaustion of administrative remedies is a jurisdictional prerequisite to

filing an action under Title VII.     Sizova , 282 F.3d at 1325. This is not a question

of failing to timely file an administrative charge, but rather “the failure to file an

administrative charge at all.”      Id. Federal regulations provide that a settlement

agreement is binding on the parties and that if a complainant believes a breach of

the agreement has occurred, the complainant must notify the EEO Director, in

writing, of the alleged noncompliance with the agreement. 29 C.F.R. § 1614.504.

It appears plaintiff followed this course of action in 1999 by challenging the VA’s

failure to abide by the terms of the original settlement agreement. Once the

agency admitted fault and proposed a new course of action, however, plaintiff was

offered two choices: appeal that decision and seek reinstatement of the original

discrimination complaint or accept the terms of the new agreement as governing


                                              -5-
the parties’ continuing obligations. Plaintiff chose the latter. Thus, it is the terms

of the new agreement with which we are concerned.

       Any alleged breach of the new agreement is necessarily subject to the

requirements of § 1614.504, which describes the procedure for challenging an

agency’s failure to comply with a settlement agreement. It is this exhaustion

requirement that plaintiff failed to employ. Instead, plaintiff contends that she

“regarded” the VA’s June 6 letter as a “final agency decision pursuant to

42 U.S.C. § 2000e-16(c),” triggering her right to file a complaint in federal court

within ninety days of the receipt of that letter. Aplt. Br. at 6;   see also 29 C.F.R.

§ 1614.110(b) (describing final agency actions);        id. at 1614.407 (describing

situation under which aggrieved individual may file suit). There is nothing in that

letter, however, which even approaches compliance with the requirements of a

final agency decision under § 1614.110(b).

       Moreover, by its very terms, the letter specifically advised counsel how to

proceed with new discrimination/breach of agreement claims. It further appears

that plaintiff initially started to do so by contacting the appropriate EEO office

with an informal complaint. Once that matter was closed, plaintiff had the option

of filing a formal complaint, a procedure she chose not to pursue. This case is

therefore unlike Cisneros v. ABC Rail Corp.,        217 F.3d 1299, 1305 (10th Cir.

2000), a private-sector Title VII case in which we held that Title VII’s exhaustion


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requirements are not applicable to suits seeking to enforce settlement agreements

which allege purely contractual claims, or     Hinderman v. Peters , No. 00-6380,

2001 WL 985556 (10th Cir. Aug. 17, 2001), a federal employee case in which the

plaintiff relied in part on a final agency decision that the settlement agreement

had not been breached as the basis for filing her complaint in federal court.

       To summarize, plaintiff’s first count, for discrimination under 42 U.S.C.

§ 2000e-16, was properly subject to dismissal as barred by the original settlement

agreement insofar as it attempted to renew her original discrimination claim

without appealing from the VA’s October 13, 2000 determination as to the breach

of settlement agreement. If she was attempting to raise new claims of

discrimination, she has failed to properly exhaust administrative remedies. Her

second count, for breach of contract, is also barred for failure to exhaust remedies

as provided by 29 C.F.R. § 1614.504. Finally, her third count, for negligent

and/or intentional infliction of emotional distress (which plaintiff contends is

simply a part of her Title VII claim) is likewise governed by the bar applicable to

the first count.




                                             -7-
      The judgment of the United States District Court for the Eastern District of

Oklahoma dismissing plaintiff’s complaint for lack of jurisdiction is AFFIRMED.


                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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