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

                                FOR THE TENTH CIRCUIT                        April 15, 2019
                            _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
    SUE CIROCCO,

          Plaintiff - Appellant,

    v.                                                         No. 18-1096
                                                     (D.C. No. 1:17-CV-01588-NYW)
    LINDA MCMAHON, in her official                              (D. Colo.)
    capacity as Administrator of the United
    States Small Business Administration,

          Defendant - Appellee.
                         _________________________________

                                ORDER AND JUDGMENT*
                            _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

         In this employment-discrimination case, Sue Cirocco appeals from a district court

order that dismissed her complaint against the United States Small Business

Administration (SBA) for lack of subject-matter jurisdiction. Exercising appellate

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s decision that

Ms. Cirocco failed to exhaust her administrative remedies but remand with instructions to



*
  After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
the district court to vacate its order in its entirety and to dismiss the case without

prejudice based on the affirmative defense of failure to exhaust administrative remedies,

rather than for lack of subject-matter jurisdiction.

                                       BACKGROUND

       Ms. Cirocco began working for the SBA in 2009 as a Finance Division Manager

in the Denver, Colorado office. In December 2012, she was promoted to Finance

Director over two male employees, Rory Berges and James Bates, both of whom

subsequently filed complaints with the Equal Employment Opportunity Commission

(“EEO complaints”).

       Roughly eleven months after her promotion, Timothy Gribben became

Ms. Cirocco’s supervisor. According to Ms. Cirocco, Gribben excluded her from

meetings with Bates and reversed the performance ratings she had set for him. Gribben

also allegedly instructed Ms. Cirocco not to discipline Bates for being verbally abusive

with a female coworker, and Gribben unnecessarily reprimanded Ms. Cirocco for

retaliating against Berges. Further, Gribben allowed Bates to obtain training, but he

would not approve Ms. Cirocco’s request to travel to an educational conference.

       For Ms. Cirocco’s 2014 annual review, Gribben gave her a “3 [out] of 5” score

due to complaints about her conduct. Aplt. App. at 9. Ms. Cirocco alleges that the score

“was not established in fact,” id., and was inconsistent with a prior female supervisor’s

opinion that she was “doing a fabulous job,” id. at 10 (internal quotation marks omitted).

       In February 2015, Ms. Cirocco filed an EEO complaint. Therein, she complained

she suffered (1) discrimination when Gribben gave her a 3 performance score, and

                                               2
(2) retaliation when Gribben “overturned the 4 rating [she] had given” Bates and instead

“increased [his] rating to a 5.” Id. at 37. The SBA Office of Diversity, Inclusion and

Civil Rights accepted for investigation whether her own performance rating was the

product of sex discrimination. But it dismissed her challenge to the alteration of Bates’

score because she had not “suffered a direct, personal deprivation at the hands of the

employer on a basis covered by EEO statues [sic].” Id. at 45.

       Ms. Cirocco alleged that after filing her EEO complaint, the SBA retaliated

against her by conducting “an extensive investigation,” moving her office, and reducing

her staff “to comply with ‘best practices.’” Id. at 11. She further claimed that by April

2015, “the stress and anxiety . . . became unmanageable,” requiring her to take a leave of

absence and seek employment elsewhere. Id. at 12.

       EEO Investigator Ralph Gay began investigating Ms. Cirocco’s case in May 2015.

On May 28, he emailed Ms. Cirocco, introducing himself and asking to schedule an

interview in the presence of a court reporter. Ms. Cirocco replied that she wished to

pursue her EEO complaint, but she could not be interviewed until she had “recovered

enough.” Id. at 50. Over the next several months, Gay repeatedly attempted to schedule

an interview with Ms. Cirocco. She declined, however, claiming it would be too

intimidating and stressful.1 Gay ultimately “conclude[d] the investigation without [her]

input.” Id. at 48.


1
  Gay had the following communications with Ms. Cirocco in an attempt to interview
her. On July 9, 2015, Gay emailed Ms. Cirocco, asking if she was “ready to pursue
this matter.” Id. at 50. Ms. Cirocco offered to schedule a time for the interview the
following week. But the next week, on July 13, when Gay suggested available times
                                             3
       After Gay issued a report, Ms. Cirocco requested a hearing in November 2015

before an administrative law judge (ALJ). On February 6, 2017, the parties appeared

telephonically before an ALJ, who directed the initiation of discovery, with a completion

date of May 12, 2017, on the single issue accepted for review—Ms. Cirocco’s 2014

performance score. The SBA’s counsel served discovery requests on Ms. Cirocco’s

counsel. But after Ms. Cirocco’s counsel failed to respond or serve any discovery

requests, the SBA, on June 16, 2017, moved for a decision.

       Instead of responding to the SBA’s motion, Ms. Cirocco’s counsel filed a

complaint in federal district court on June 29, 2017, asserting Title VII sex-discrimination

and retaliation claims. Because of the pending federal case, the ALJ dismissed

Ms. Cirocco’s administrative case.

       In federal court, the SBA moved to dismiss Ms. Cirocco’s complaint for lack of

subject matter jurisdiction and failure to state a claim, arguing that Ms. Cirocco’s


for the interview, Ms. Cirocco responded that she was uncomfortable “going through
the intimidation of having a court reporter present.” Id. at 49. Gay offered to
postpone the interview until she was “cleared by [her] doctor to return to work.” Id.
On August 1, Gay emailed Ms. Cirocco again, asking if there had been any change in
her status. She replied, no. On August 2, Gay asked if her doctor would approve a
telephonic deposition. She replied that she would ask at her next appointment, on
August 11. On August 17, having heard nothing from Ms. Cirocco, Gay emailed her
and asked if her doctor had cleared her for an interview. She answered that she
“could participate in the investigation if it does not create too much stress.” Id. at 48.
On August 20, Gay proposed conducting the interview on August 24, and he
“assure[d] [her] that the interview w[ould] not be confrontational” and would give
her the “opportunity to state for the record the discrimination that [she] . . . endured
relating to [her] performance rating.” Id. On August 24, Ms. Cirocco responded,
stating, “[I]t is too stressful to be deposed” and “[m]y physician did not clear me for
this.” Id. Gay responded that he would respect her wish not to be interviewed.

                                             4
discrimination and retaliation claims were unexhausted. Specifically, as to Ms. Cirocco’s

discrimination claim, the SBA asserted that “she failed to participate in [her EEO

complaint’s] adjudication and [she] ultimately abandoned” it. Id. at 17. With respect to

her retaliation claim, the SBA maintained that she simply “never pursued any

administrative remedies” regarding retaliation. Id.

       Ms. Cirocco’s counsel withdrew. In a two-page, pro se response to the motion to

dismiss, Ms. Cirocco discussed the working conditions she considered discriminatory and

retaliatory. In regard to exhaustion, she stated that her former counsel advised her to file

a case in federal court because the SBA’s counsel had not “acted in good faith with him.”

Id. at 57.

       The district court granted the SBA’s motion to dismiss, concluding that

Ms. Cirocco failed to exhaust (1) her discrimination claim by not cooperating in the

administrative proceedings; and (2) her retaliation claim by not administratively

contesting the SBA’s dismissal of her original claim and not filing a new EEO complaint

for the separate allegations raised in her federal court complaint. The district court

viewed the failure to exhaust as a jurisdictional defect, given this court’s then-existing

case law. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)

(stating that “[u]nlike many other circuits, we have held that a plaintiff’s exhaustion of

his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII—

not merely a condition precedent to suit”).

       Ms. Cirocco appeals, represented by new counsel.



                                              5
                                       DISCUSSION
                             I. Lincoln v. BNSF Railway Co.

       After Ms. Cirocco filed her opening brief, this court overruled the view stated in

Shikles and other employment-discrimination cases that failure to exhaust is a

jurisdictional defect. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018)

(“[T]he full court now holds that a plaintiff’s failure to file an EEOC charge regarding a

discrete employment incident merely permits the employer to raise an affirmative defense

of failure to exhaust but does not bar a federal court from assuming jurisdiction over a

claim.”). Because the SBA also asserted exhaustion as a basis for dismissal under Rule

12(b)(6), we “treat [its] argument . . . as having raised an affirmative defense of failure to

exhaust,” Payan v. United Parcel Serv., 905 F.3d 1162, 1169 (10th Cir. 2018) (brackets

and internal quotation marks omitted).2


2
  The SBA argues that Lincoln does not disturb the jurisdictional nature of exhaustion
for federal employees, like Ms. Cirocco. The SBA notes that Lincoln did not involve
a federal employee wielding Title VII to pierce the federal government’s sovereign
immunity. True, but when this court in Lincoln declared that it “is no longer correct”
to view exhaustion as a jurisdictional prerequisite, this court expressly cited as an
example a Title VII case involving a federal employee, Sampson v. Civiletti, 632 F.2d
860, 862 (10th Cir. 1980). See Lincoln, 900 F.3d at 1185. Moreover, this circuit is
not alone in treating exhaustion as an affirmative defense in federal employment
cases. See, e.g., Niskey v. Kelly, 859 F.3d 1, 7 (D.C. Cir.) (noting that while “federal
employees [must] exhaust discrimination claims,” “administrative exhaustion
requirements are not jurisdictional”), cert. denied sub nom. Niskey v. Duke, 138 S. Ct.
427 (2017); McFarland v. Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (stating that
“[i]n permitting federal employees to sue under Title VII, Congress conditioned the
government’s waiver of sovereign immunity upon a plaintiff’s satisfaction of
rigorous administrative exhaustion requirements and time limitations,” which “are
not jurisdictional prerequisites” (internal quotation marks omitted)). But see
Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) (“A federal employee
must pursue and exhaust her administrative remedies as a jurisdictional prerequisite
to filing a Title VII action.”).
                                              6
       Although failure to exhaust is now an affirmative defense, it may be raised in a

motion to dismiss when the grounds for the defense appear on the face of the complaint.

See Jones v. Bock, 549 U.S. 199, 215 (2007). But “when a defendant’s motion to dismiss

raises an affirmative defense that is not apparent on the face of the pleadings and outside

matter is presented and accepted, federal courts will generally treat the motion as if it

were one for summary judgment.” Weise v. Casper, 507 F.3d 1260, 1267 (10th Cir.

2007) (internal quotation marks omitted).3

       Here, the district court considered matters beyond Ms. Cirocco’s complaint in

determining she had not exhausted her administrative remedies. The district court

properly did so at the time under our pre-Lincoln case law without converting to

summary judgment. See Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225

(10th Cir. 2001) (observing that a district court generally “has wide discretion to allow

affidavits, other documents, and a limited evidentiary hearing to resolve disputed

jurisdictional facts” without converting a motion to dismiss into a motion for summary

judgment (internal quotation marks omitted)).

       While conversion to summary judgment would now be necessary given that

exhaustion is no longer jurisdictional, see, e.g., Brooks v. Midwest Heart Grp., 655 F.3d

796, 798 (8th Cir. 2011), we need not remand for summary judgment proceedings.

Ms. Cirocco was aware of the SBA’s exhaustion arguments and supporting evidence,



3
 Plaintiffs have no obligation to plead against affirmative defenses. See Jones,
549 U.S. at 216.

                                              7
and, after a telephonic conference with the district court, she submitted argument and

evidence in opposition to dismissal. Thus, Ms. Cirocco’s response would have been no

different had the district court predicted the outcome in Lincoln and converted the SBA’s

motion to dismiss into a motion for summary judgment.

       We thus proceed to consider the SBA’s exhaustion defense under the standards of

summary judgment, affirming the district court’s ruling if “there is no genuine dispute as

to any material fact and [the SBA] is entitled to judgment as a matter of law,”

Fed. R. Civ. P. 56(a). See Lamb v. Rizzo, 391 F.3d 1133, 1137 n.3 (10th Cir. 2004)

(employing summary-judgment standard where district court had tacitly converted

defendant’s motion to dismiss into motion for summary judgment and plaintiff had “not

only failed to object to the exhibits attached to [the defendant’s] motion to dismiss,

but . . . also filed his own exhibits in response”); see also 5C Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1366, 178 (3d ed. 2004) (observing

that “the appellate court is not bound by the particular designation that the district court

places upon its disposition of the case,” and that “whenever outside matters are presented

to and not excluded by the [district] court, the motion will be considered by the appellate

court as one for summary judgment even though the district court designates it a motion

to dismiss”).

                                     II. Exhaustion
                                  A. Sex-Discrimination

       “The requirement that a Title VII claimant exhaust administrative remedies serves

the purpose of giving the agency the information it needs to investigate and resolve the


                                              8
dispute between the employee and the employer.” Khader v. Aspin, 1 F.3d 968, 971

(10th Cir. 1993) (brackets and internal quotation marks omitted), abrogated on other

grounds by Lincoln, 900 F.3d at 1185. Thus, an employee must make a “[g]ood faith

effort . . . to cooperate with the agency and the EEOC and to provide all relevant,

available information.” Id. (internal quotation marks omitted).

       Ms. Cirocco argues that the district court erred by dismissing her discrimination

claim on a failure-to-cooperate theory because the SBA did not invoke its regulatory

authority to dismiss her EEO complaint on that basis. Cf. Doak v. Johnson, 798 F.3d

1096, 1105 (D.C. Cir. 2015) (stating that where an “agency [i]s able to take final action

on the merits of [the employee’s administrative] complaint, her suit cannot be barred” for

failing to cooperate (brackets and internal quotation marks omitted)). But once

Ms. Cirocco requested a hearing before an ALJ, rather than seek a decision from the

agency, the SBA could not have dismissed her EEO complaint via its regulatory

authority. See 29 C.F.R. § 1614.107(a)(7) (“Prior to a request for a hearing in a case,

the agency shall dismiss an entire complaint . . . [w]here the agency has provided the

complainant with a written request to provide relevant information or otherwise proceed

with the complaint, and the complainant has failed to respond . . . .” (emphasis added));

29 C.F.R. § 1614.109(a) (“Upon appointment, the administrative judge shall assume full

responsibility for the adjudication of the complaint[.]”).

       Ms. Cirocco also complains that the SBA sought a decision from the ALJ without

raising her lack of cooperation. She has attached to her opening appellate brief a copy of

the SBA’s June 2017 motion, and she contends that the SBA argued for a dismissal on

                                              9
the merits of her discrimination claim (despite pointing out Ms. Cirocco’s refusal to be

interviewed and failure to respond to discovery requests). The SBA’s motion was not,

however, in the record before the district court. We generally do not consider materials

not presented to the district court. United States v. Kennedy, 225 F.3d 1187, 1191

(10th Cir. 2000). And while we have “discretion to take judicial notice of publicly-filed

records in our court and certain other courts concerning matters that bear directly upon

the disposition of the case at hand,” United States v. Ahidley, 486 F.3d 1184, 1192 n.5

(10th Cir. 2007), we decline to do so here because Ms. Cirocco made no effort in the

district court to present the argument she now makes on appeal. Instead, we conclude

that Ms. Cirocco forfeited her argument by not raising it in the district court, and she has

now waived it by not seeking its consideration under the plain-error standard of review.

See, e.g., Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1259 (10th Cir. 2018)

(concluding that plaintiff had forfeited a sovereign-immunity argument “by failing to

raise [it] before the district court, and he ha[d] effectively waived the argument on appeal

by not arguing under the rubric of plain error”); Bronson v. Swensen, 500 F.3d 1099,

1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not

raised, or are inadequately presented, in an appellant’s opening brief.”).

       Next, Ms. Cirocco argues that a failure to cooperate cannot be based on her filing

suit rather than completing the hearing process before the ALJ. She notes that the labor

regulations for federal sector employment authorize an employee “to file a civil action in

an appropriate United States District Court . . . [a]fter 180 days from the date of filing

[her] complaint if an appeal has not been filed and final action has not been taken.”

                                             10
29 C.F.R. § 1614.407(b). That 180-day period expired here in August 2015, and

Ms. Cirocco maintains she was free to abandon the administrative process at any time

thereafter. But the district court did not fault Ms. Cirocco merely for filing a federal

court complaint. Rather, the district court concluded that Ms. Cirocco “failed to

participate both in Mr. Gay’s investigation and the proceedings before the ALJ.” Aplt.

App. at 98. In any event, Ms. Cirocco did not raise this argument in the district court,

and she has not argued in her opening brief for its consideration under the plain-error

standard. The argument is, therefore, waived.

       We now turn to whether Ms. Cirocco demonstrated cooperation during the

administrative proceedings so as to exhaust her administrative remedies. “[W]hen a

complainant refuses or fails to provide the agency information sufficient to evaluate the

merits of the claim, he or she has not exhausted his or her administrative remedies.”

Shikles, 426 F.3d at 1310 (internal quotation marks omitted), abrogated on other grounds

by Lincoln, 900 F.3d at 1185. “[W]hen a plaintiff’s non-cooperation effectively prevents

the EEOC’s investigation and conclusion efforts such that the EEOC proceeding

essentially becomes a sham or meaningless proceeding[,] . . . a charging party’s non-

cooperation will amount to a failure to exhaust administrative remedies.” Id. at 1311.

       It is undisputed that Ms. Cirocco declined Gay’s multiple requests for an

interview. Failing to make oneself available for an interview during the agency’s

investigatory process is indicative of non-exhaustion. See id. at 1312 (citing Green v.

Heidelberg U.S.A., 854 F. Supp. 511, 513 (N.D. Ohio 1994), which dismissed an

employee’s age-discrimination case based on his failure to respond to the EEOC’s efforts

                                             11
to interview him regarding his allegations). In the district court, Ms. Cirocco offered no

explanation of her refusals to be interviewed.

       As for Ms. Cirocco’s actions in the administrative process before the ALJ, it is

undisputed that she did not respond to the SBA’s discovery requests or submit evidence

or argument in opposition to the SBA’s motion for a decision. Similar conduct has been

equated with a “fail[ure] to cooperate in the administrative process and abandon[ment]

[of the employee’s] disability discrimination claim.” Houser v. Shulkin, 264 F. Supp. 3d

17, 22 (D.D.C. 2017), aff’d, No. 17-5218, 2018 WL 1896527 (D.C. Cir. Apr. 3, 2018)

(per curiam). While Ms. Cirocco attempted to explain her lack of participation in that

process by citing her former counsel’s accusation of bad faith against SBA attorneys, she

also suggested that she may have “received poor counsel or [ ]his statement is not true.”

Aplt. App. at 57.4

       Given the limited record before this court and the dearth of preserved exhaustion

arguments, we agree with the district court that Ms. Cirocco failed to cooperate in the

administrative proceedings and thereby did not exhaust the administrative remedies on

her discrimination claim.




4
  Ms. Cirocco included with her district court response brief partially completed Rule
11 documents prepared by her former counsel. Those documents stated that the
parties had agreed to a limited stay of discovery to pursue settlement; however, the
documents do not account for Ms. Cirocco’s lack of participation throughout the
entirety of her time before the ALJ. And she did not offer any clarity regarding the
information in these documents when the parties appeared for a telephonic status
conference on the motion to dismiss.

                                            12
                                      B. Retaliation

       Ms. Cirocco’s EEO complaint, filed in February 2015, claimed that Gribben’s

alteration of Bates’ performance rating was in retaliation for her compliance with the

Federal Managers Financial Integrity Act. That law was enacted “to require ongoing

evaluations and reports on the adequacy of the systems of internal accounting and

administrative control of each executive agency.” Pub. L. No. 97–255, 96 Stat. 814

(1982). The SBA concluded as part of its administrative-processing function that

Gribben’s alteration was not actionable retaliation. See Piercy v. Maketa, 480 F.3d 1192,

1198 (10th Cir. 2007) (noting that a prima facie case of retaliation requires that the

employee “engaged in protected opposition to discrimination”).

       In the district court, Ms. Cirocco’s retaliation claim changed direction. She

referenced her own 2014 performance rating, her inability to obtain travel approval, and

“additional retaliation stemming from her . . . EEO complaint.” Aplt. App. at 11.5 In her

response to the SBA’s motion to dismiss for lack of exhaustion, she focused on incidents

that occurred “[a]fter filing [her] [EEO] complaint.” Id. at 57.

       The district court concluded that Ms. Cirocco failed to exhaust the retaliation

claim presented in her EEO complaint because she did not administratively contest its

dismissal. As for other instances of retaliation, the district court determined she had not

exhausted them in any EEO complaint.



5
 Gribben’s alteration of Bates’ performance rating appeared only among
Ms. Cirocco’s allegations of discrimination.

                                             13
         We pursue a slightly different approach. Specifically, the retaliation claim

Ms. Cirocco designated in her EEO complaint was simply not the retaliation claim she

pursued in the district court. And she cannot exhaust the latter by asserting that it

“reasonably relate[s]” to the former. Eisenhour v. Weber Cty., 744 F.3d 1220, 1227

(10th Cir. 2014); see also Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003)

(stating that “a Title VII plaintiff [must] exhaust administrative remedies for each

individual discriminatory or retaliatory act,” and she may not “rel[y] upon a continuing

violation theory”).6 In short, Ms. Cirocco failed to exhaust her district court retaliation

claim.

                                        CONCLUSION

         We AFFIRM the district court’s decision that Ms. Cirocco failed to exhaust

administrative remedies but REMAND with instructions to the court to VACATE its

order in its entirety dismissing for lack of jurisdiction and to dismiss without prejudice

based on the SBA’s affirmative defense of failure to exhaust. See Smith v. Cheyenne Ret.

Inv’rs. L.P., 904 F.3d 1159, 1161, 1166-67 (10th Cir. 2018).


                                               Entered for the Court


                                               Jerome A. Holmes
                                               Circuit Judge


6
 Ms. Cirocco argues that the retaliation claim she presented in the district court did
not have to be separately exhausted because it was part of “the same retaliatory
hostile-work-environment claim” she presented in her EEO complaint. Aplt.
Opening Br. at 43. That argument is waived, as she did not present it in the district
court and has not pursued plain-error review.
                                              14
