                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                         April 12, 2013

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
TYSHA J. MANNING; RICHARD NEIL
CHANEY; STEPHANIE A. TEJADA,

             Plaintiffs-Appellants,

v.                                                         No. 12-3190
                                                  (D.C. No. 2:11-CV-02010-SAC)
BLUE CROSS AND BLUE SHIELD OF                                (D. Kan.)
KANSAS CITY; EPOCH GROUP, L.C.,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      Plaintiffs Tysha J. Manning, Richard Neil Chaney, and Stephanie A. Tejada

appeal the district court’s dismissal of their race discrimination and retaliation claims

against their former employer, Epoch Group, L.C., a wholly-owned subsidiary of



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Blue Cross and Blue Shield of Kansas City (BCBS-KC). Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

                                     I. Background

      The plaintiffs allege Epoch did not hire them for internal job openings because

of Manning’s race (African American), Tejada’s race (Hispanic), and in retaliation

against each of them for engaging in protected opposition to discrimination. The

relevant facts were thoroughly described by the district court, and we only briefly

summarize them here. We view the evidence and the reasonable inferences to be

drawn from the evidence in the light most favorable to the plaintiffs, as the parties

opposing summary judgment. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir.

2004). The following facts are undisputed unless otherwise noted.

      Plaintiffs were employed by Epoch as claims examiners. Chaney filed a

disability discrimination claim in July 2009; Tejada filed a race discrimination claim

in August 2009; and Manning informally complained to Epoch manager Dawn

Sprague in August 2009 about a racial epithet she overheard.

      In October 2009, Sprague notified all Epoch employees by email that two

claims examiner jobs and one customer service job were open to all Epoch

employees. The email included a link to an online application. Chaney did not apply

for these jobs. Tejada and Manning testified they did submit online applications, but

that Sprague told them she had not received their applications. Manning did not

attempt to reapply; Tejada tried to reapply but did not attempt it again when she


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realized her reapplication did not go through. Ms. Sprague testified that Epoch never

received any application from Tejada or Manning. Epoch did not receive any

applications for the customer service position from any Epoch Employee, but

Sprague eventually offered this job to an existing Epoch employee, Amanda Teel,

even though she had not applied. Sprague filled the claims examiner jobs with the

one Epoch employee from whom she received an application and a non-Epoch

applicant. Plaintiffs were terminated as part of a reduction-in-force on February 25,

2010.1

         Plaintiffs’ complaint alleged race discrimination and retaliation in violation of

Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17; disability

discrimination and retaliation in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12131-12134; and breach of implied contract. After sua sponte

issuing a show cause order, the district court dismissed for lack of subject matter

jurisdiction all of the Title VII and ADA claims because the plaintiffs failed to

exhaust administrative remedies.2 The district court granted the plaintiffs’ request to


1
       Plaintiffs’ district court briefs did not clearly assert a discriminatory
termination claim, but the district court ruled that, in any event, plaintiffs failed to
demonstrate a prima facie case of discriminatory termination. Plaintiffs do not
challenge that ruling on appeal.
2
       Specifically, the district court dismissed Tejada and Chaney’s claims for
disability discrimination under the ADA; Tejada’s and Chaney’s claims of
disability-based retaliation under the ADA; Tejada’s and Manning’s Title VII claims
of race discrimination and race-based retaliation; and Tejada’s Title VII claim of
national origin discrimination.


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alternatively pursue their race discrimination and retaliation claims under

42 U.S.C. § 1981. It then granted summary judgment in favor of the defendants on

the remaining claims, namely, Tejada’s and Manning’s § 1981 claims of race

discrimination and all of parties’ claims of retaliation and breach of an implied

contract. Plaintiffs do not challenge the district court’s grant of summary judgment

as to the dismissal of their contract claims.

                   II. Failure to Exhaust Title VII and ADA Claims

      Plaintiffs contend the district court erred in dismissing their Title VII and

ADA claims for lack of subject matter jurisdiction. We review de novo a decision

dismissing a cause of action for lack of subject matter jurisdiction. Lucero v. Bureau

of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011).

      “Under both Title VII and the ADA, exhaustion of administrative remedies is a

prerequisite to suit.” Apsley v. Boeing Co. 691 F.3d 1184, 1210 (10th Cir. 2012).

Plaintiffs did file a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC), but “a plaintiff’s claim in federal court is generally limited by

the scope of the administrative investigation that can reasonably be expected to

follow the charge of discrimination submitted to the EEOC.” Jones v. UPS, Inc.,

502 F.3d 1176, 1186 (10th Cir. 2007) (internal quotation marks and brackets

omitted). Thus, to exhaust administrative remedies, “the charge must contain facts

concerning the discriminatory and retaliatory actions underlying each

claim[, because] each discrete incident of alleged discrimination or retaliation


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constitutes its own unlawful employment practice for which administrative remedies

must be exhausted.” Id. (internal quotation marks omitted).

      We agree with the district court that the EEOC charges on plaintiffs’ Title VII

and ADA claims were too vague to give defendants notice of the challenged conduct.

Tejada’s charge simply stated she was treated unequally and was denied employment

opportunities due to her race and national origin, retaliated against in violation of her

rights, was not offered reasonable accommodation for diabetes and her history of

carpal tunnel and blood clots. Manning’s charge simply said she was subjected to an

unwanted working environment because of her race and was retaliated against in

violation of her rights. Chaney’s charge said only that he was retaliated against and

denied employment opportunities because of disabling conditions. These charges

completely lack any factual specificity, failing even to describe the particular actions

and practices complained of, and are insufficient to meet the exhaustion requirement.

      Plaintiffs argue that the defendants did not raise this issue and, thus, the

district court erred in sua sponte challenging the sufficiency of their EEOC charge.

They are mistaken; the district court has an independent duty to examine whether it

has subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines

at any time that it lacks subject-matter jurisdiction, the court must dismiss the

action.”). Exhaustion of administrative remedies is a jurisdictional prerequisite to

suit under Title VII and the ADA. Shikles v. Sprint/United Mgmt. Co., 426 F.3d




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1304, 1317 (10th Cir. 2005) (Title VII); MacKenzie v. City & Cnty. of Denver,

414 F.3d 1266, 1274 (10th Cir. 2005) (ADA).

       Plaintiffs also contend that the factual basis for the EEOC charges would have

been discoverable upon investigation. But it is only those discrimination claims

stated in the initial EEOC charge, and those reasonably related to those claims, that

define the scope of any subsequent lawsuit. See Jones, 502 F.3d at 1186. There is

nothing in any of the plaintiffs’ EEOC charges that would have put the defendants

on notice that they were alleging that their non-hire for the job openings in October

and November 2009 was based on race discrimination or in retaliation for any

protected opposition to discrimination. We affirm the dismissal of the Title VII and

ADA claims.

                   III. Grant of Summary Judgment on Remaining Claims

       Summary judgment is appropriate if “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “We review the district court’s grant of

summary judgment de novo, applying the same standard as the district court.” Crowe

v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011). “A dispute is genuine

if there is sufficient evidence so that a rational trier of fact could resolve the issue

either way.” Id. (internal quotation marks omitted).

       Racial Discrimination Claims. The elements of a racial discrimination case

are the same under § 1981 as under Title VII. Carney v. City & Cnty. of Denver,


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534 F.3d 1269, 1273 (10th Cir. 2008). Plaintiffs Tejada and Manning sought to

present circumstantial evidence of discriminatory failure to hire under the familiar

three-step burden-shifting framework that requires them to first establish a prima

facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). To establish a prima facie discriminatory failure-to-hire claim, a

plaintiff must show that:

          (1) plaintiff belongs to a protected class; (2) plaintiff applied and
          was qualified for a job for which the employer was seeking
          applicants; (3) despite being qualified, the plaintiff was rejected; and
          (4) after plaintiff’s rejection, the position remained open and the
          employer continued to seek applicants from persons of [plaintiff’s]
          qualifications.

Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005) (internal quotation

marks omitted).

      The district court ruled that the plaintiffs knew they had not successfully

applied for any of the positions and, thus, could not establish the second element of a

prima facie case.

      Tejada and Manning argue on appeal that whether they applied for the

positions is a disputed issue of fact. We have reviewed the record and agree with the

district court that they failed to present evidence of a genuine dispute. Viewed in the

light most favorable to them, these plaintiffs did attempt to submit online

applications—indeed, Tejada tried twice—but it is undisputed that both Tejada and

Manning knew that their applications had not gone through, yet chose not to resubmit

them. Thus, the district court correctly ruled that Tejada and Manning did not apply

                                          -7-
for these job openings and, accordingly, did not establish a prima facie case of

discrimination.

      Retaliation Claims. A plaintiff bringing a retaliation claim under § 1981

“must establish that retaliation played a part in the employment decision.” Twigg v.

Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (internal quotation

marks omitted). Plaintiffs sought to rely upon the three-part McDonnell Douglas

burden-shifting framework to establish their retaliation claims.

      Under the McDonnell Douglas/indirect approach, the plaintiff must first
      make out a prima facie case of retaliation by showing (1) that [s]he
      engaged in protected opposition to discrimination, (2) that a reasonable
      employee would have found the challenged action materially adverse,
      and (3) that a causal connection existed between the protected activity
      and the materially adverse action. If the plaintiff establishes a prima
      facie case, the employer must then offer a legitimate, nonretaliatory
      reason for its decision. Finally, once the employer has satisfied this
      burden of production, the plaintiff must show that the employer’s reason
      is merely a pretext for retaliation.

Id. (citation and internal quotation marks omitted).

      The district court ruled that plaintiffs failed to show that a causal connection

existed between plaintiffs’ protected activities and defendants’ failure to offer them

any of the open positions in November 2009. Further, even assuming the plaintiffs

had established a prima facie retaliation claim, the district court ruled the defendants

had proffered legitimate nondiscriminatory reasons for not offering the jobs to the

plaintiffs, namely that they did not receive applications from any of the plaintiffs

and, although they did also not receive an application from Ms. Teel, she and the

other persons hired were more qualified than any of the plaintiffs.

                                          -8-
      Plaintiffs argue the district court erred in considering defendants’

comparable-qualifications explanation because in their motion for summary judgment

the only reason they gave was not receiving plaintiffs’ application. We are not

persuaded. Defendants’ motion for summary judgment asserted plaintiffs suffered no

materially adverse action because they did not apply for the jobs. When plaintiffs

responded that they suffered a material adverse action when Sprague offered a job to

Teel, who also had not applied, but not to them, defendants presented evidence in

their reply that Teel and the others they hired were more qualified than any of the

plaintiffs. Plaintiffs sought, and received permission, to file a surreply, but did not

do so. We conclude the district court did not abuse its discretion to consider this

additional evidence because the plaintiffs had an opportunity to file a surreply.

      Moreover, we agree with the district court, for the detailed reasons stated in its

order, that the plaintiffs failed to present any evidence that raises an inference that

defendants’ legitimate non-discriminatory explanations for its hiring decisions are

“so incoherent, weak, inconsistent, or contradictory that a rational factfinder could

conclude they are unworthy of belief.” EEOC v. C.R. England, Inc., 644 F.3d 1028,

1039 (10th Cir. 2011) (alteration and internal quotation marks omitted).

      The judgment of the district court is affirmed.

                                                 Entered for the Court


                                                 Timothy M. Tymkovich
                                                 Circuit Judge


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