                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 7 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JENNIFER ALEMAN,

                Plaintiff-Appellant,

    v.                                                   No. 97-6186
                                                    (D.C. No. 96-CV-1173)
    J. D. SHARP, in his official capacity                (W.D. Okla.)
    as Sheriff of Oklahoma County, State
    of Oklahoma; OKLAHOMA COUNTY
    BOARD OF COUNTY
    COMMISSIONERS,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, 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




*
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff Jennifer Aleman appeals the district court’s order granting

summary judgment to defendants J.D. Sharp, Sheriff of Oklahoma County,

Oklahoma, and the Board of County Commissioners of Oklahoma County on her

discrimination claim under Title VII of the Civil Rights Act of 1964 and her claim

under the Americans with Disabilities Act of 1990. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.


                                 I. Background

      Plaintiff was employed as a detention officer by the Oklahoma County

Sheriff from November 6, 1992, to November 3, 1995. Prior to June 1995,

plaintiff was diagnosed with endometriosis and took a period of sick leave for

treatment. Because she was advised of the difficulty of becoming pregnant if this

condition worsened, plaintiff became pregnant immediately. She alleged that

because of the pregnancy, she was having a problem performing the functions of

her job and tendered a request for light duty to her supervisor, Captain Russell

Dear, who referred her to Major Virgil Neuenschwander. Plaintiff alleges that

Major Neuenschwander told her that there was no light duty policy, and if he

accommodated her, he would have to do the same for the next pregnant employee.

Defendants assert, and plaintiff does not refute, that she was told she would have

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to see Sheriff Sharp regarding a light duty assignment. Plaintiff asserts that she

“attempted” to see the sheriff and the undersheriff. Following several lengthy

absences in September and October, 1995, plaintiff left her employment with the

Sheriff’s department alleging constructive discharge.

      On January 18, 1996, plaintiff filed a timely EEOC charge of

discrimination alleging that she was forced to resign her position because of her

employer’s refusal to accommodate her need for light duty. She alleged

discrimination under Title VII and the ADA. After the EEOC issued a right to

sue letter, plaintiff filed suit alleging that defendants discriminated against her

on the basis of her sex and because of her pregnancy. The district court granted

defendants’ motion for summary judgment, concluding that plaintiff failed to

establish a prima facie case of discrimination under Title VII and failed to

exhaust her administrative remedies on her ADA claim. Because we conclude

that the district court was correct in granting defendants judgment as a matter

of law, we affirm.


                                   II. Discussion

      Our review of summary judgment is de novo. See Jensen v. Redevelopment

Agency of Sandy City, 998 F.2d 1550, 1555 (10th Cir. 1993). Summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

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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). The party opposing

summary judgment must identify sufficient evidence that would require

submission of the case to a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986).

                                  A. Title VII Claim

      Title VII provides that

      [i]t shall be an unlawful employment practice for an employer . . . to
      fail or refuse to hire or to discharge any individual, or otherwise to
      discriminate against any individual with respect to his compensation,
      terms, conditions, or privileges of employment, because of such
      individual’s race, color, religion, sex, or national origin[.]

42 U.S.C. § 2000e-2(a)(1). In 1978, Congress added a definitional section to

Title VII, known as the Pregnancy Discrimination Act, which provides in part that

“[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited

to, because of or on the basis of pregnancy, childbirth, or related medical

conditions.” Id. at § 2000e(k).

      Proceeding under a disparate treatment theory, plaintiff may prove

disparate treatment by either direct or indirect evidence. Direct evidence of

discrimination is evidence of “an existing policy which itself constitutes

discrimination.” Ramsey v. City & County of Denver, 907 F.2d 1004, 1008

(10th Cir. 1990). Initially plaintiff argues that she established direct evidence


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of discriminatory intent through a single remark of her supervisor, Major

Neuenschwander. According to plaintiff, when she approached Major

Neuenschwander regarding a light duty assignment, he told her that he could

not assign her light duty because, if he accommodated her, he would have to

accommodate the “next pregnant woman.” Appellant’s Br. at 8. Plaintiff asserts

that this remark constituted direct evidence of discriminatory intent by the

Sheriff’s department. We do not agree.

      “[W]e have held that statements which are merely expressions of personal

opinion or bias do not constitute direct evidence of discrimination.” EEOC v.

Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir. 1996). Contrary to plaintiff’s

assertions, this single remark by a supervisor does not clearly reflect a policy

of the Sheriff’s department to discriminate against pregnant women. In fact, the

undisputed facts established that pregnant women had been given light duty in the

past. Moreover, defendants assert, and plaintiff does not refute, that she was told

she would have to make her request for light duty to the Sheriff. Plaintiff admits

that she never discussed her request for light duty with the Sheriff. There is no

evidence that Major Neuenschwander was authorized to make a decision

regarding whether light duty positions were available and if they were, whether

plaintiff would be considered qualified for the positions. At most, Major




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Neuenschwander’s remark was circumstantial evidence of discriminatory intent.

See id.

      In the alternative, plaintiff argues that the district court erred in its finding

that plaintiff had not established a prima facie case of discrimination. Again,

we disagree. If the plaintiff presents indirect evidence, the court applies the

burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-04 (1973). In a claim of discrimination based on disparate treatment,

plaintiff bears the initial burden of establishing a prima facie case in Title VII

actions. A presumption of discrimination arises once the plaintiff establishes

a prima facie case, but the defendant can rebut the presumption by producing

some evidence that it had legitimate nondiscriminatory reasons for its action.

See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981);

Sorensen v. City of Aurora, 984 F.2d 349, 352 (10th Cir. 1993). “At the summary

judgment stage, it then becomes the plaintiff’s burden to show that there is a

genuine dispute of material fact as to whether the employer’s proffered reason for

the challenged action is pretextual–i.e. unworthy of belief.” Randle v. City of

Aurora, 69 F.3d 441, 451 (10th Cir. 1995).

      In establishing a prima facie case of disparate treatment gender

discrimination, plaintiff must show: (1) she belonged to the protected class;

(2) she was adversely affected by the employer’s action; (3) she was qualified for


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the position; and (4) she was treated less favorably than her male counterparts.

See Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1380 (10th Cir. 1994).

      Although plaintiff did establish that, as a pregnant woman, she was a

member of a protected class, see 42 U.S.C. § 2000e(k), she did not establish that

she was denied a light duty position. In fact, she never requested a light duty

assignment from Sheriff Sharp, the only person authorized to make that

accommodation. Sheriff Sharp asserted in an affidavit that, prior to plaintiff’s

resignation, he did not know that she was experiencing pregnancy complications.

See Appellant’s App., Vol. I at 120. He averred that the decision to make light

duty assignments was his based on availability of such assignments. See id.

at 119. He also stated that he “would have assigned [plaintiff] to a light duty

position once [he] was able to talk to her to find out what she could or could

not do.” Id.

      In his deposition, Captain Dear asserted that, after receiving plaintiff’s

resignation letter, Sheriff Sharp asked him to call plaintiff and ask her to come in

to his office and discuss a light duty position. See id. at 130. He also testified

that all light duty requests had to go to the Sheriff for approval. See id. Plaintiff

testified that she received answering machine messages from Captain Dear and

Sheriff Sharp after she resigned asking her to call regarding working something

out. See id. at 149-50. She testified that she never returned the calls. See id.


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at 150. Finally, although plaintiff established that four non-pregnant employees

were accommodated by light duty assignments, she failed to establish that she

would not have been similarly accommodated had she discussed her need with the

Sheriff. 1

       Based on the factual record, plaintiff did not establish the essential

elements of a gender discrimination claim under Title VII. Therefore, we

determine that the district court’s determination that defendants were entitled

to judgment as a matter of law on plaintiff’s Title VII claim was correct.


                                   B. ADA Claim

       Lastly, plaintiff asserts that the district court erred in dismissing her ADA

claim for lack of subject matter jurisdiction. The district court granted defendants

summary judgment on plaintiff’s ADA claim, finding that plaintiff had failed to

exhaust her administrative remedies. The district court specifically found that

plaintiff failed to allege disability discrimination based on her endometriosis.

       Federal courts lack jurisdiction to entertain Title VII claims not first filed

with the EEOC. Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.),


1
      We note that in order to provide accommodation, the employer must have
knowledge of the need. Here, plaintiff had the duty to inform Sheriff Sharp of
her need before liability could attach for failure to accommodate. Once he was
informed, both parties had the responsibility for determining a proper
accommodation. A plaintiff cannot fail to participate in good faith for the
purpose of inflicting liability.

                                          -8-
cert. denied, 118 S. Ct. 342 (1997). This jurisdictional requirement of

administrative exhaustion applies equally to ADA claims. 42 U.S.C. § 12117(a).

A plaintiff may seek judicial relief for discrimination not described in his EEOC

charge, however, if the discrimination is reasonably related to the allegations in

the charge. Seymore, 111 F.3d at 799. If the discriminatory act occurs prior to

the EEOC filing, and the plaintiff fails to allege the act or claim in the charge,

the act or claim ordinarily will not reasonably relate to the charge. See id.

(retaliation claim). Here, petitioner only alleged discrimination based on sex

and pregnancy in her EEOC complaint. One of the purposes of the EEOC filing

requirement is “to provide notice of the alleged violation to the charged party and

to provide the Equal Employment Opportunity Commission with the opportunity

to conciliate the claim.” Id.

      Although plaintiff was obviously aware of her endometriosis prior to filing

her charge with the EEOC, in the charge she did not allege that this condition was

a disability that the Sheriff’s department had failed to accommodate. Therefore,

defendants were entitled to presume that plaintiff’s only claim was one of sex

discrimination due to her pregnancy. We conclude that plaintiff’s ADA claim

did not reasonably relate to her EEOC charge and the district court correctly

concluded that it lacked subject matter jurisdiction to decide the claim.




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

of Oklahoma is AFFIRMED.



                                                 Entered for the Court


                                                 Robert H. Henry
                                                 Circuit Judge




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