                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS                October 30, 2008
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court


    DELLA LOWBER,

                Plaintiff-Appellant,

    v.                                                  No. 08-6070
                                                (D.C. No. 5:07-CV-00713-M)
    CITY OF NEW CORDELL,                               (W.D. Okla.)
    a municipal corporation,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.



         Della Lowber appeals from the district court’s grant of summary judgment

in favor of the City of New Cordell (“City”) on her claim of sex discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further

proceedings in the district court.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                       * * *

       Ms. Lowber’s discrimination claim stems from the City’s failure to hire her

as its animal-control officer in July 2005. She had previously held that job from

1990 until the position was eliminated by the City in 2004 for budgetary reasons.

When the City opened a new animal-control position in 2005, Ms. Lowber applied

for the job but was not hired. She filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) claiming gender discrimination based upon

the City’s hiring of a lesser-qualified-male applicant. She later filed this action in

district court.

       In January 2008, Ms. Lowber claimed for the first time that she had refused

a sexual proposition by the City’s mayor. At her deposition she testified that she

met privately with the mayor in 2005 regarding the new animal-control position.

She claimed that during that meeting he put his hands on top of hers, telling her,

“Della, I can assure you you can get your job back.” R., Doc. 25, Ex. 1 at 39.

She interpreted this statement as suggesting that he would hire her in exchange

for sexual favors. She drew her hands away and said, “[N]o, thank you, I will get

it back on my own.” Id. Ms. Lowber testified that she told no one about this

exchange with the mayor until two weeks before her deposition.

       The City moved for summary judgment, contending that Ms. Lowber could

not show that the City’s proffered reasons for not hiring her were a pretext for

discrimination. The City also argued that she had failed to exhaust her

                                          -2-
administrative remedies with respect to a sexual-harassment claim based upon her

refusal of the mayor’s alleged sexual proposition. 1 The district court granted the

City’s motion, holding that she failed to exhaust her administrative remedies

because she did not include her allegation regarding the mayor’s sexual

misconduct in her EEOC charge. Ms. Lowber contends that the district court

erred in holding that her gender-discrimination claim based upon the City’s hiring

of a lesser-qualified male was not administratively exhausted.

                                       * * *

      “We review the district court’s grant of summary judgment de novo.”

Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment

is appropriate “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“In conducting our analysis, we view all of the facts in the light most favorable to

the non-movant and draw all reasonable inferences from the record in favor of the

non-moving party.” Young, 468 F.3d at 1249.




1
      Neither the district court nor Ms. Lowber explicitly refer to her allegation
regarding the sexual proposition as supporting a claim for sexual harassment, but
we note that “[q]uid pro quo harassment occurs when submission to sexual
conduct is made a condition of concrete employment benefits.” Hicks v. Gates
Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987).

                                         -3-
      In her EEOC charge, Ms. Lowber claimed that the City discriminated

against her based on her gender by hiring a lesser-qualified male for the

animal-control-officer position. She first raised a claim of quid pro quo sexual

harassment during her deposition, which was taken in January 2008–two and a

half years after the alleged proposition occurred. The City argued in its

summary-judgment motion that Ms. Lowber’s allegation regarding the sexual

proposition was wholly unrelated to the claim she made in her EEOC charge and

therefore she did not administratively exhaust any sexual-harassment claim with

the EEOC before she filed her action. In its ruling on the motion, the district

court attributed to Ms. Lowber the statement that “her refusal of defendant’s

sexual advances is the reason she was not hired,” R., Doc. 34 at 1, and held that,

because her EEOC charge failed to include that allegation, she had not exhausted

her administrative remedies as to any sex-discrimination claim. 2

      On appeal, Ms. Lowber does not contend that she exhausted her

administrative remedies with respect to a discrete claim of quid pro quo sexual


2
       In reaching its holding, the district court cited Seymore v. Shawver & Sons,
Inc., 111 F.3d 794, 799 (10th Cir. 1997), for the proposition that a judicial
complaint “may encompass any discrimination like or reasonably related to the
allegations of the [EEOC] charge.” R., Doc. 34 at 3. We note that proposition,
often called the “continuing violation” theory, was rejected by the Supreme Court
with respect to discrete discriminatory acts in National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002). See Martinez v. Potter, 347 F.3d 1208, 1210-11
(10th Cir. 2003). Under Martinez, “a claimant must file a charge within the
appropriate limitations period as to each such discrete act that occurred.” Id. at
1211 (quotation and ellipses omitted).

                                         -4-
harassment. But she asserts that the district court erred (1) in construing her

claim to be based solely on her refusal of the alleged sexual advance, and (2) in

failing to consider the gender-discrimination claim that she did set forth in her

EEOC charge. We agree. Ms. Lowber never characterized her testimony

regarding the alleged sexual proposition as supplanting her claim that the City

discriminated against her by hiring a lesser-qualified male. She presented the

latter claim in her EEOC charge and the district court erred in dismissing it as

unexhausted along with her quid pro quo sexual-harassment claim.

      The City argues that the district court’s holding should be upheld because

Ms. Lowber failed to act in good faith when she withheld her allegation of the

sexual proposition from her EEOC charge. But the cases the City relies on are

inapposite. In Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1307

(10th Cir. 2005), the EEOC dismissed the plaintiff’s charge after he cancelled

three interviews and failed to provide further information. We held that dismissal

of his complaint for lack of jurisdiction was proper because he failed to cooperate

with the EEOC in order to exhaust his administrative remedies. Id. at 1318; see

also Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993) (presenting similar facts

constituting failure to cooperate with the EEOC). Here there is no question that

Ms. Lowber sufficiently cooperated with the EEOC with respect to her

gender-discrimination claim based upon the hiring of a lesser-qualified male. As

we stated in Shikles, “we expect that it will be rare for a charging party’s

                                          -5-
non-cooperation to be a basis for the defendant to challenge the court’s

jurisdiction.” 426 F.3d at 1311-12. This is not that rare case.

      The City urges this Court to affirm the district court’s grant of summary

judgment on an alternative ground, namely that Ms. Lowber failed to show

material facts in dispute regarding whether the City’s proffered reasons for hiring

someone other than her were pretextual. Although the City raised this issue in its

summary-judgment motion, the district court did not rule on it. Rather than

examining and resolving the merits of the City’s contentions, we remand to the

district court to address them in the first instance. See Evers v. Regents of Univ.

of Colo., 509 F.3d 1304, 1310 (10th Cir. 2007).

                                       * * *

      The district court’s grant of summary judgment in favor of the City of New

Cordell is reversed and remanded.


                                                    Entered for the Court



                                                    Neil M. Gorsuch
                                                    Circuit Judge




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