                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 12 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    EDUARDO URIOSTEGUI,

                Plaintiff-Appellant,
                                                         No. 03-2147
    v.                                               (D.C. No. 02-CV-721)
                                                           (D. N.M.)
    KLINGER CONSTRUCTORS INC.,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before HENRY , MURPHY , and TYMKOVICH , 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.

         Plaintiff Eduardo Uriostegui appeals the district court’s grant of summary

judgment in favor of defendant Klinger Constructors Inc. on his claims of



*
      This order and judgment is not binding precedent, except under the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.
national origin discrimination and retaliation under Title VII, 42 U.S.C. §§ 2000e

through 2000e-17.   1
                        Mr. Uriostegui alleged that he was terminated on the basis of

his national origin and that, in response to Mr. Uriostegui’s discrimination

complaint, Klinger retaliated by giving him bad employment references after his

termination. On appeal, Mr. Uriostegui argues that the district court erred in

finding that he failed to rebut Klinger’s legitimate, non-discriminatory reason for

the termination and that he had not exhausted his administrative remedies on his

retaliation claim. We review the district court’s grant of summary judgment de

novo, applying the same standard under Fed. R. Civ. P. 56(c) as the district court.

See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance        Abuse Servs. , 165

F.3d 1321, 1326 (10th Cir. 1999).

      Having reviewed the briefs, the record, and the applicable law pursuant to

the above-mentioned standard, we conclude that the district court correctly

decided Mr. Uriostegui’s national origin claim. We therefore AFFIRM the

judgment in favor of Klinger on this Title VII claim for substantially the same

reasons stated by the district court in its Memorandum Opinion of June 6, 2003.      2




1
      Mr. Uriostegui does not appeal the district court’s ruling on his hostile
work environment claim. See Aplt. Br. at 2.
2
       The parties consented to proceed before a United States Magistrate Judge.
The Magistrate Judge’s Memorandum Opinion is therefore the final order of the
district court.

                                           -2-
       On the retaliation claim, Mr. Uriostegui failed to allege retaliation in his

EEOC complaint and the district court found that Mr. Uriostegui’s retaliation

claim was not reasonably related to his discrimination claim. Mr. Uriostegui,

therefore, failed to exhaust his administrative remedies, which is a prerequisite to

bringing suit in federal court.   See Davidson v. Am. Online, Inc.    , 337 F.3d 1179,

1183 (10th Cir. 2003).

       The district court stated that Mr. Uriostegui’s retaliation claim was not

reasonably related to his discrimination claim because “the act allegedly giving

rise to the claim did not occur until after his original claim had been dismissed by

the EEOC.” Aplt. App. at 211. This statement is not factually accurate. The act

allegedly giving rise to Mr. Uriostegui’s retaliation claim occurred before the

dismissal of the EEOC charge. Because there has been an intervening change in

the law, however, there is no reversible error.

       Previously, a plaintiff could seek judicial relief on claims not listed in the

original EEOC charge if the new claims were “like or reasonably related to the

allegations of the EEOC charge . . . ”    Martinez v. Potter , 347 F.3d 1208, 1210

(10th Cir. 2003) (quotation omitted). This court explained in        Martinez , however,

that National R.R. Passenger Corp. v. Morgan      , 536 U.S. 101 (2002) abrogated

this so-called “continuing violation doctrine” so that unexhausted claims

involving discrete employment actions are no longer viable.      Id. Instead, “each


                                            -3-
discrete incident of [discriminatory or retaliatory] treatment constitutes its own

unlawful employment practice for which administrative remedies must be

exhausted.” Id. (quotation omitted). Here, Mr. Uriostegui’s claim that Klinger

retaliated against him by giving a bad employment reference after his termination

is a discrete incident of retaliatory treatment, which required him to file a separate

EEOC claim. Because Mr. Uriostegui failed to exhaust his administrative

remedies, we AFFIRM the district court’s judgment in favor of Klinger on the

retaliation claim.



                                                     Entered for the Court



                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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