                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 27 2003
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    LINDA BEENE,

                Plaintiff-Appellant,

    v.                                                   No. 02-6020
                                                   (D.C. No. 01-CV-1114-C)
    LAWRENCE J. DELANEY, Acting                          (W.D. Okla.)
    Secretary of the Air Force,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before O’BRIEN and PORFILIO , Circuit Judges, and             KANE , ** Senior District
Judge.



         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      This order and judgment is not binding precedent, except under the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. 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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
       Plaintiff-appellant Linda Beene appeals from the district court’s order

dismissing without prejudice her discrimination and retaliation claims under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e through 2000e-17. 1 The

district court dismissed plaintiff’s claims pursuant to Fed. R. Civ. P. 12(b)(1),

concluding that it lacked subject matter jurisdiction over the claims because

plaintiff failed to exhaust her administrative remedies by contacting an Equal

Employment Opportunity (EEO) counselor within forty-five days of the alleged

act of discrimination, as required by 29 C.F.R. § 1614.105(a)(1). However,

because compliance with the forty-five day time limit in § 1614.105(a)(1) is not a

jurisdictional requirement for filing suit under Title VII, the district court erred in

dismissing plaintiff’s claims under Rule 12(b)(1). Nonetheless, we agree with the

district court that the undisputed facts show that plaintiff failed to exhaust her

administrative remedies under § 1614.105(a)(1) in a timely manner. Thus, we

conclude that defendant was entitled to summary judgment under Rule 56, and we

affirm the dismissal of plaintiff’s Title VII claims on that basis.   See MacArthur

v. San Juan County, 309 F.3d 1216, 1227 (10th Cir. 2002) (holding that, even if

district court does not conduct a proper analysis in dismissing a claim, “we are

nonetheless free to affirm the district court’s dismissal on any grounds for which


1
       Although plaintiff asserted claims in addition to her Title VII claims in her
complaint, the district court only addressed plaintiff’s Title VII claims, and
plaintiff has abandoned her other claims on appeal.

                                              -2-
there is a record sufficient to permit conclusions of law, provided the litigants

have had a fair opportunity to develop the record”).


                                         I.

       Based on the record before this court, the following facts are either

undisputed or are as alleged by plaintiff.

       In 1998, plaintiff was employed by the United States Air Force as a

GS-2005-07 Supply Technician in the Depot Supply Division at Tinker AFB. In

late summer 1998, the Air Force reorganized the Depot Supply Division. As part

of the reorganization, the Air Force advertised for promotion fifty-seven new

GS-2010–09 Inventory Management Specialist positions, and all of the positions

were to be filled by promoting present Air Force employees.

       To select qualified candidates for the new positions, the Tinker AFB

Civilian Personnel Office (CPO) prepared a certificate of employees eligible for

the promotions based on employee skill codes, position series experience, and

appraisal scores. The CPO then presented the certificate of eligible employees,

which contained the names of sixty-seven present employees who were selected as

qualified for the promotions,   to John C. Wilkey, the Acting Chief of the Depot

Supply Division, and the new positions were subsequently filled by selecting

fifty-seven individuals from the list of sixty-seven certified employees. However,

after four of the certified employees declined promotion, the list of certified

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employees was expanded to seventy-one employees. Because she was ranked on

the promotion certificate in the eighty-second position, plaintiff was not certified

as being eligible for one of the new positions, and she was therefore not selected

for one of the promotions.

      On October 19, 1998, plaintiff met with John Wilkey to discuss whether she

had a chance of being selected for a promotion to one of the new positions. The

record before this court does not contain sufficient information to determine the

precise status of the selection process as of October 19, 1998, but plaintiff claims

the actual selections were not made until after October 19, 1998, and defendant

does not dispute plaintiff’s claim. According to plaintiff, during the meeting on

October 19, 1998, Mr. Wilkey told her “that [her] position on the profile was too

low for him to ‘reach’ [her].” Aplt. App. at 25, 38.

      Plaintiff claims she was not selected for a promotion to one of the new

positions because of her sex, age, and a disability, and as retaliation for her

having filed a prior EEO complaint. Plaintiff initially contacted an EEO office to

complain about defendant’s conduct on January 6, 7, or 8, 1999, and she met with

an EEO counselor on January 12, 1999.




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                                          II.

      Defendant moved to dismiss plaintiff’s Title VII claims pursuant to

Rule 12(b)(1), arguing: (1) that plaintiff learned she was not going to be

promoted, and that she had therefore allegedly been discriminated against, during

the meeting with Mr. Wilkey on October 19, 1998; and (2) that the district court

lacked subject matter jurisdiction over plaintiff’s Title VII claims because she

failed to exhaust her administrative remedies by contacting an EEO counselor

within forty-five days of the alleged act of discrimination, as required by 29

C.F.R. § 1614.105(a)(1). In support of his motion, defendant submitted copies of

two reports from the EEO counselor, a copy of plaintiff’s administrative

complaint, and sworn declarations from Mr. Wilkey and Anthony Black, a

Personnel Staffing Specialist at Tinker AFB.

      In response to defendant’s motion to dismiss, plaintiff argued that the

district court was required to treat the motion as a motion for summary judgment

under Rule 56 because defendant was challenging the facts upon which the

court’s subject matter jurisdiction was based, and because the facts underlying the

jurisdictional issue were intertwined with the merits of her substantive claims.

The district court agreed with plaintiff’s assertions in part, concluding that it

could consider the evidentiary materials submitted by defendant under Rule




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12(b)(1), but that it was not necessary to convert the motion into a motion for

summary judgment.

      Plaintiff also claimed that the timeliness of her contact with the EEO

counselor was a disputed question of fact, and that it would be inappropriate for

the district court to resolve the disputed factual question without permitting her to

conduct discovery. In particular, plaintiff claimed that discovery could reveal

that the number of eligible employees for the new positions was increased after

October 1998. Plaintiff further claimed that discovery could reveal that the

effective date of the promotions of the employees selected for the new positions

occurred after October 1998. Assuming that discovery would reveal this

information, plaintiff claimed that her position on the promotion certificate in

October 1998 did not automatically foreclose her from being selected for one of

the promotions, and that, as a result, her discrimination claim did not accrue at

that time. Alternatively, plaintiff claimed that, under § 1614.105(a)(1), the forty-

five day time period did not begin to run until the effective date of the

promotions. Plaintiff’s counsel also submitted an affidavit to the district court

under Rule 56(f), listing the matters he claimed needed to be pursued in

discovery.




                                          -6-
                                           III.

      Under § 1614.105(a)(1), an aggrieved federal employee “must initiate

contact with a [EEO] Counselor within 45 days of the date of the matter alleged

to be discriminatory or, in the case of personnel action, within 45 days of the

effective date of the action.” 29 C.F.R. § 1614.105(a)(1).    In its order of

dismissal, the district court found that, “[b]ased on the evidentiary materials

submitted by the parties, Plaintiff was aware in October of 1998 that she was not

eligible for promotion.” Aplee. Supp. App. at 4. The court based this finding on

plaintiff’s admission that Mr. Wilkey told her at the meeting in October 1998

“that [her] position on the profile was too low for him to ‘reach’ [her].” Id.

(quotation omitted). Thus, the district court found that both the alleged

discriminatory act and the effective date of the personnel action accrued in

October 1998, and that plaintiff was therefore required to contact an EEO

counselor no later than December 15, 1998, which she failed to do. The district

court also rejected plaintiff’s request for discovery because “the evidentiary

materials submitted by Defendant make clear that a single certificate was issued

and that Plaintiff did not appear on that certificate, rendering her ineligible for

promotion.” Id. at 5.

      Although we agree with most of the district court’s analysis, we recently

confirmed that compliance with the forty-five day time limit in § 1614.105(a)(1)


                                           -7-
is not a jurisdictional requirement for filing suit under Title VII. See Sizova v.

Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324-26 (10th Cir. 2002) (citing

Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996)). As a result, the

district court should have analyzed defendant’s motion to dismiss under Rule

12(b)(6), instead of under Rule 12(b)(1). And, because evidentiary matters

outside of plaintiff’s complaint were presented to the district court, the court

should have treated defendant’s motion as a motion for summary judgment under

Rule 56. See Fed. R. Civ. P. 12(b).

      Nonetheless, we agree with the district court that, based on the undisputed

evidence in the record, the forty-five day time period in § 1614.105(a)(1) began to

run in October 1998 when Mr. Wilkey told plaintiff she was not eligible for one

of the promotions. And since plaintiff does not dispute that she then waited until

January 1999 to contact an EEO counselor, we also agree with the district court

that plaintiff’s contact with the EEO counselor occurred after the expiration of the

forty-five day time period, and that plaintiff thereby failed to exhaust her

administrative remedies in a timely manner.     2
                                                    Accordingly, we hold that defendant

was entitled to summary judgment under Rule 56.


2
       While the forty-five day time period may be tolled under § 1614.105(a)(2)
in certain circumstances, see Sizova, 282 F.3d at 1325, plaintiff has not put forth
any specific grounds for tolling in her district court or appellate briefs. Thus, we
reject her conclusory argument that the district court should have permitted a
factual record to be developed on what she refers to as the “waiver” issue.

                                          -8-
      We also agree with the district court that plaintiff was not entitled to

engage in discovery to see if she could find additional material facts regarding the

promotion selection process. Although plaintiff’s counsel’s Rule 56(f) affidavit

listed a number of matters to pursue in discovery, the affidavit was insufficient to

establish a need for discovery. First, none of the issues raised by plaintiff’s

counsel could alter the undisputed fact that plaintiff was told in October 1998 that

she was not eligible for one of the promotions. Second, there is no evidence in

the record to support plaintiff’s allegation that she may have become eligible for

one of the promotions at some point after October 1998. Instead, the undisputed

evidence submitted by defendant establishes that the list of qualified employees

was never expanded to reach the rank held by plaintiff on the promotion

certificate. As a result, the district court did not abuse its discretion in denying

plaintiff’s request for discovery.

      Finally, plaintiff contends that the discovery issue in this case is controlled

by our decision in Sizova. In Sizova, we held that, under Rule 12(b)(1), a district

court’s “refusal to grant discovery is an abuse of discretion if the denial results in

prejudice to a litigant.” Sizova, 282 F.3d at 1326. We also held that “[p]rejudice

is present where pertinent facts bearing on the question of jurisdiction are

controverted . . . or where a more satisfactory showing of the facts is necessary.”

Id. (quotation omitted). Even if the discovery issue in this case is analyzed under


                                          -9-
Sizova, the district court acted properly in refusing to grant discovery since the

pertinent facts bearing on the application of § 1614.105(a)(1) are not controverted

and there is no need for further factual development.

      Moreover, the situation in Sizova is distinguishable from the situation here.

In Sizova, there were disputed issues of fact concerning: (1) whether the plaintiff

had actual notice of the forty-five day time period in § 1614.105(a)(1); and

(2) whether the EEO counselor had properly advised the plaintiff of her rights and

responsibilities with respect to her discrimination claim. See Sizova, 282 F.3d at

1327-28. Here, by contrast, plaintiff has not raised any factual issues regarding

actual notice of the forty-five day time period or her contact with the EEO

counselor.

      We AFFIRM the dismissal of plaintiff’s complaint.


                                                     Entered for the Court


                                                     Terrence L. O’Brien
                                                     Circuit Judge




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