                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 5 2003
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    TOD N. ROCKEFELLER, former
    Environmental Scientist, Wipp Site
    Team, Carlsbad Area Office, United
    States Department of Energy,

                  Plaintiff - Appellant,
                                                         No. 02-2117
    v.                                              D.C. No. CIV-01-399-JP
                                                       (D. New Mexico)
    SPENCER ABRAHAM, in his official
    capacity as Secretary, United States
    Department of Energy,

                  Defendant - Appellee.


                               ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
      Tod N. Rockefeller, proceeding pro se, appeals the district court’s order

granting summary judgment in favor of his former employer, the United States

Department of Energy (Department), on each of the claims in his complaint.

Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

      Rockefeller was employed by the Department as an environmental

specialist. The Department terminated Rockefeller in December 1997 for poor

performance. In his complaint in this case,         1
                                                        Rockefeller asserted four claims

against the Department. First, he claimed the Department violated Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e,             et seq ., by retaliating against

him for making public comments about alleged safety violations at the

Department. According to Rockefeller, employees of the Department retaliated

against him by making harassing phone calls to his home and by blacklisting him

from other employment opportunities with the federal government. Second,

Rockefeller claimed the Department violated the whistle-blower provisions of the

Toxic Substances Control Act (TSCA), the Safe Drinking Water Act (SDWA),

and the Comprehensive Environmental Response, Compensation, and Liability



1
      In a prior case, Rockefeller alleged that the Department wrongfully
terminated him because he was disabled and in retaliation for engaging in
protected Title VII and whistle-blowing activities. The district court entered
summary judgment in favor of the Department, and we affirmed in     Rockefeller v.
Abraham , Nos. 01-2054 & 00-2480, 2001 WL 1434623 (10th Cir. Nov. 15, 2001)
(unpublished), cert. denied , 535 U.S. 932 (2002).

                                              -2-
Act (CERCLA), by blacklisting him from other federal employment opportunities.

Third, Rockefeller claimed the Department failed to process his underlying equal

employment opportunity complaint in accordance with the governing federal

regulations, see 29 C.F.R. § 1614.101, et seq . Fourth, Rockefeller claimed the

Department violated his rights under the First, Fifth, and Fourteenth Amendments

to the United States Constitution.

       The district court concluded that the Department was entitled to summary

judgment on each of Rockefeller’s claims. With respect to his Title VII

retaliation claim, the district court granted summary judgment because:

(1) Rockefeller failed to set forth any specific evidence linking the Department

to the alleged phone calls or blacklisting; and (2) even if the Department could be

linked to the phone calls, the calls did not rise to the level of an adverse

employment action since the callers never identified themselves or said anything

about Rockefeller’s activities vis-a-vis the Department. To support the latter

determination, the district court relied on our decision in   Anderson v. Coors

Brewing Co. , 181 F.3d 1171, 1178-79 (10th Cir. 1999) (holding that harassing

phone calls did not constitute adverse employment action where callers did not

identify themselves or mention plaintiff’s EEOC claim and where plaintiff

presented no evidence that calls were placed by any of defendant’s employees

with decision-making authority or that management condoned activity).


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       With respect to Rockefeller’s claims under the whistle-blower provisions of

TSCA, SDWA, and CERCLA, the district court determined that the Department

was entitled to summary judgment because Rockefeller was required under each

Act to first exhaust his administrative remedies with the Secretary of Labor, and

Rockefeller conceded during oral argument before the district court that he had

never filed an administrative complaint addressing his present whistle-blowing

claims. In order to provide Rockefeller with an opportunity to exhaust his

administrative remedies, the district court dismissed the whistle-blower claims

without prejudice.

       With respect to Rockefeller’s claim that the Department failed to process

his administrative complaint in accordance with the governing federal regulations,

the district court determined that the Department was entitled to summary

judgment because “a violation of a federal regulation governing the handling of

[Rockefeller’s] EEOC complaint does not create an independent cause of action

under Title VII.” R., Doc. 58 at 4. To support this determination, the district

court relied on our decision in   Scheerer v. Rose State College   , 950 F.2d 661, 663

(10th Cir. 1991) (holding that there is no private cause of action against Equal

Employment Opportunity Commission for misprocessing of discrimination claims

asserted against private employer), and the Seventh Circuit’s decision in     Jordan v.

Summers , 205 F.3d 337, 342 (7th Cir. 2000) (holding that federal employee could


                                            -4-
not assert claim under Title VII against equal employment opportunity division of

the federal agency that employed her for misprocessing of discrimination and

retaliation claims).

      Finally, with respect to his claimed constitutional violations, the district

court determined that the Department was entitled to summary judgment because:

(1) Title VII preempts constitutional claims by federal employees regarding

retaliatory discrimination; (2) to the extent Rockefeller was alleging due process

violations aside from discrimination, he failed to demonstrate that a genuine issue

of material fact was in dispute; and (3) to the extent Rockefeller was alleging a

First Amendment retaliation claim based on his public comments about potential

safety violations at the Department, the claim was preempted by the federal

whistle-blower statutes. However, because it concluded that his First Amendment

claims are closely related to his statutory whistle-blower claims, the court

dismissed the First Amendment claims without prejudice.

      “We review a district court order granting summary judgment de novo.”

Camfield v. City of Okla. City , 248 F.3d 1214, 1224 (10th Cir. 2001). Summary

judgment is proper when “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show 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). “When applying this


                                          -5-
standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.”       Camfield , 248 F.3d at 1224

(quotation omitted). Because he is appearing pro se, we also interpret

Rockefeller’s pleadings generously.     Belhomme v. Widnall, 127 F.3d 1214, 1216

(10th Cir. 1997).

       We agree with the district court’s analysis. Accordingly, we affirm the

entry of summary judgment in favor of the Department for substantially the same

reasons set forth in the memorandum opinion and order entered by the district

court on March 21, 2002. In addition, we reject Rockefeller’s claim that the

district court erred in granting summary judgment without permitting him to

engage in additional discovery. Under Fed. R. Civ. P. 56(f), Rockefeller was

required to file an affidavit in response to the Department’s motion for summary

judgment explaining to the district court why additional discovery was necessary

before the court could rule on the motion.      See Price ex rel. Price v. W. Res., Inc.   ,

232 F.3d 779, 783-84 (10th Cir. 2000). While Rockefeller referred to Rule 56(f)

in his opposition to the Department’s motion for summary judgment,            see R.,

Doc. 38 at 1, he failed to file an affidavit in compliance with Rule 56(f), and he

failed to explain to the district court why additional discovery was necessary.

Moreover, Rockefeller had almost five months to conduct discovery under the




                                             -6-
district court’s pretrial schedule, and, except for serving four requests for

production of documents, he conducted no discovery.     2



      The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.


                                                      Entered for the Court


                                                      Robert H. Henry
                                                      Circuit Judge




2
       On March 20, 2002, one day before the district judge entered his order
granting the Department’s summary judgment motion, the magistrate judge
granted a motion to compel filed by Rockefeller and directed the Department to
produce certain phone records.     See R., Doc. 55. Apparently, the magistrate judge
granted Rockefeller’s motion to compel because certain phone numbers he
provided to the court matched phone numbers called by an employee of the
Department during the relevant time periods.      See id. at 2. However, even if the
phone calls were in fact made by an employee of the Department, Rockefeller
failed to allege sufficient facts to establish that the calls constituted an adverse
employment action. As a result, the district judge’s entry of summary judgment
was proper, regardless of the magistrate judge’s ruling on Rockefeller’s motion to
compel. Further, Rockefeller’s claim that the Department admitted certain
matters by not responding to requests for admission he served on it in February
2002 is without merit since the discovery cut-off was in January 2002.

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