                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES CO URT O F APPEALS
                                                                  October 10, 2007
                                                    Elisabeth A. Shumaker
                         FO R TH E TENTH CIRCUIT        Clerk of Court



    QUINCY GERALD KEELER,

                Plaintiff-Appellant,

    v.                                                   No. 07-3055
                                                  (D.C. No. 06-CV-1062-JTM )
    CEREAL FO OD PRO CESSORS,                              (D . Kan.)

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, A ND ER SO N, and BALDOCK , Circuit Judges.




         Quincy Gerald Keeler appeals pro se from the district court’s dismissal of

his discrimination claims under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e-2 and 2000e-3. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm in part and reverse in part.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     Background

      M r. Keeler began work as a temporary employee for Cereal Food

Processors (CFP) in February 2003. He became a full-time employee in June

2003 and continued to work for CFP until he was terminated in December 2004.

M r. Keeler filed four charges of discrimination with the Kansas H uman Rights

Commission and the Equal Employment Opportunity Commission (EEOC) related

to his employment with CFP. He filed his First Charge in February 2004,

claiming that CFP discriminated against him based on his race (African

American) and his age (twenty-six years old at the time), in temporarily laying

him off in December 2003, while retaining an older, Caucasian employee with

less seniority. He alleged that he filed a grievance with CFP management

concerning his layoff and that CFP subsequently forced him to perform dangerous

work in retaliation for having openly opposed CFP’s discriminatory acts and

practices. He later amended his First Charge to add a claim of retaliation for

complaining to CFP management about incidents of sexual harassment.

      M r. Keeler filed his Second Charge in August 2004, claiming that CFP

accused him of making threats of violence, placed him on a paid leave of absence,

and required him to see a psychiatrist. He alleged discrimination by CFP based

on a perceived disability and in retaliation for filing his First Charge. In

November 2004 he filed his Third Charge, again alleging retaliation by CFP based

upon his filing of the First Charge. He claimed that on specified dates in

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February, July, August, and September, 2004, CFP criticized his job performance

and reprimanded him for his attendance, in retaliation for his discrimination

complaint.

      The EEOC issued a right-to-sue letter on M r. Keeler’s Second Charge on

October 19, 2004, but he did not file a lawsuit within ninety days of his receipt of

that letter. See 42 U.S.C. § 2000e-5(f)(1) (providing civil action may be brought

within ninety days of notice of right to sue by EEOC). CFP terminated M r.

Keeler’s employment in December 2004. Several months later, on April 26,

2005, the EEO C issued right-to-sue letters on his First and Third Charges. He

filed his Fourth Charge in June 2005, alleging that he was terminated by CFP on

December 17, 2004, in retaliation for having filed his Third Charge.

      M r. Keeler filed his First Action in district court on July 25, 2005, alleging

race discrimination and retaliation in violation of Title VII. In his complaint he

identified CFP’s discriminatory conduct as his termination, his layoff in

December 2003, and retaliation. He alleged that CFP retaliated against him for

his complaints about the layoff and sexual harassment, and he attached a lengthy

letter further detailing his allegations. The district court dismissed the First

Action on September 13, 2005, after M r. Keeler failed to specify his expenses in

support of his Application for Leave to File Action W ithout Payment of Fees,

Costs, or Security. He did not appeal that dismissal.




                                          -3-
      The EEOC issued a right-to-sue letter on M r. Keeler’s Fourth Charge on

December 19, 2005, and he filed this action in district court on M arch 16, 2006.

His complaints in this action and his First Action are substantially identical. CFP

moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), arguing that

this action should be dismissed as time-barred because M r. Keeler failed to file it

within ninety days of receiving the applicable right-to-sue letters, or alternatively

that certain claims should be dismissed for failure to exhaust administrative

remedies.

      The district court granted CFP’s motion. It initially held that all of the

claims alleged in M r. Keeler’s First, Second, and Third Charges were time-barred

because he failed to file this action within ninety days of his receipt of any of the

right-to-sue letters on those charges. Although he had filed the First Action

within ninety days of the A pril 26, 2004, right-to-sue letters on his First and Third

Charges, the district court held that its dismissal of that case without prejudice

did not toll the statutory filing deadline under Title VII. See Brown v. Hartshorne

Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991) (Brown II) (“Courts

have specifically held that the filing of a complaint that is dismissed without

prejudice does not toll the statutory filing period of Title VII.”) M r. Keeler does

not identify any error in this portion of the district court’s ruling and we therefore

affirm the dismissal of his claims alleged in his First, Second, and Third Charges

as untimely.

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      The district court further concluded that M r. Keeler’s claim of retaliatory

termination was time-barred because it was encompassed by his Third Charge:

      [P]laintiff’s claim of retaliation based on his 2004 termination should
      also be dismissed, since the plaintiff treated this claim as part of his
      first lawsuit and, therefore, failed to file this lawsuit within 90 days
      of receiving a Notice of Rights. The plaintiff included precisely the
      same allegation in his first lawsuit, which was filed seven months
      after he was terminated from Cereal Food, and one month after he
      filed his fourth administrative charge. The plaintiff’s allegation of
      termination was encompassed by his third charge. See Brown [v.
      Hartshorne Pub. Sch. Dist. No. 1], 864 F.2d [680] at 682 (10th Cir.
      1988) (Title VII claims may “encompass any discrimination like or
      reasonably related to the allegations of the EEOC charge, including
      new acts occurring during the pendency of the charge before the
      EEOC”). Here, the plaintiff used his third administrative charge as
      the basis for raising precisely the claim of retaliatory termination
      now in issue.

R., Vol. II, Doc. 23 at 4. M r. Keeler challenges this ruling on appeal, contending

that the district court erred in dismissing his termination claim because he filed

this action within ninety days of receiving the right-to-sue letter on his Fourth

Charge.

                                     Discussion

      W e review de novo a district court’s ruling on a motion for judgment on the

pleadings under Rule 12(c). Nelson v. State Farm M ut. Auto. Ins. Co., 419 F.3d

1117, 1119 (10th Cir. 2005). The district court determined that M r. Keeler’s

retaliatory termination claim was untimely under the ninety-day time period for

filing an action pursuant to § 2000e-5(f)(1), which is “in the nature of a statute of

limitations.” Biester v. M idwest Health Servs., Inc., 77 F.3d 1264, 1267

                                          -5-
(10th Cir. 1996). W hether a district court properly applied a statute of limitations

is a question of law we review de novo. Nelson, 419 F.3d at 1119.

      In dismissing M r. Keeler’s termination claim as time-barred, the district

court emphasized his inclusion of that claim in his First A ction. W hile

acknowledging that M r. Keeler had filed his Fourth Charge alleging retaliatory

termination only a month before he filed the First Action, the court nonetheless

concluded it was administratively exhausted because it was encompassed by his

Third Charge. For this proposition, the court relied on Brown v. Hartshorne

Public School District No. 1 (Brown I), 864 F.2d 680, 682 (10th Cir. 1988), which

held that “w hen an employee seeks judicial relief for incidents not listed in his

original charge to the EEOC, the judicial complaint nevertheless may encompass

any discrimination like or reasonably related to the allegations of the EEOC

charge, including new acts occurring during the pendency of the charge.”

Id. at 682 (quotation and brackets omitted). Therefore, the district court

concluded that M r. Keeler’s termination claim was untimely because he failed to

file it within ninety days of his receipt of the right-to-sue letter on his Third

Charge.

      W e respectfully disagree. Under M artinez v. Potter, 347 F.3d 1208

(10th Cir. 2003), the district court’s reliance on Brown I is misplaced. As we

recognized in M artinez, the Supreme Court in National Railroad Passenger Corp.

v. M organ, 536 U.S. 101 (2002), “effected fundamental changes to the doctrine

                                           -6-
allowing administratively unexhausted claims in Title VII actions.” 347 F.3d at

1210. In M artinez, the plaintiff sought to litigate claims of retaliatory treatment

that he never included in a formal charge. Id. The district court granted the

defendant’s summary judgment motion, reasoning that the plaintiff had failed to

exhaust administrative remedies with respect to the additional claims “because

they were not like or reasonably related to the allegations in [his formal charge].”

Id.

      Although we agreed with its result, we parted company with the district

court on its reasoning in M artinez: “M organ abrogates the continuing violation

doctrine as previously applied to claims of discriminatory or retaliatory actions by

employers, and replaces it with the teaching that each discrete incident of such

treatment constitutes its own unlawful employment practice for which

administrative remedies must be exhausted.” Id. (quotation omitted). In M organ

the Supreme Court observed that “[d]iscrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire are easy to identify,” and it held that

a charge could only encompass discrete, discriminatory acts that occurred within

the statutory time period for filing a charge. 536 U.S. at 114. The Court reversed

the court of appeals’ holding, which relied upon the continuing violation doctrine

to bring prior discrete acts within a later-filed charge. Id.

      In M artinez, we applied the rule stated in M organ “to discrete claims based

on incidents occurring after the filing of [a formal charge].” 347 F.3d at 1210-11

                                           -7-
(emphasis in original). Thus, we recognized that the “continuing violation

theory,” as applied in Brown I and the other prior decisions we cited, was no

longer applicable to claims regarding discrete acts. See id. at 1210-11. 1

      W e conclude, therefore, that the district court erred in its determination that

M r. Keeler’s Third Charge encompassed his retaliatory termination claim because

it was like or reasonably related to the allegations in that charge. Under

M artinez, M r. Keeler’s Third Charge could not encompass his later-occurring,

discrete claim regarding his termination; instead, he was required to file a

separate charge with respect to that claim. See id. He fulfilled that requirement

by filing his Fourth Charge. But at the time he filed his First Action, he had not

fully exhausted his administrative remedies with respect to that charge because he

had not yet received a right-to-sue letter from the EEOC, nor had the 180-day

waiting period under § 2000e-5(f)(1) expired. See EEOC v. W.H. Braum, Inc.,

347 F.3d 1192, 1200 (10th Cir. 2003) (“The EEOC has exclusive jurisdiction over

a claim during the 180 days following the filing of a charge . . . . During this time

an individual employee may not bring suit in federal court.”); cf. Stone v. Dep’t of

Aviation, 453 F.3d 1271, 1276-77 (10th Cir. 2006) (holding ADA claim had not

“matured” and was subject to dismissal prior to receipt of right-to-sue letter).

1
       W e recognized in M artinez that this holding does not apply to hostile work
environment claims. See 347 F.3d at 1211. But, as in M artinez, that type of
claim is not before us in this case. See id. Although M r. Keeler’s charges alleged
what could be characterized as “an ongoing pattern of retaliation,” id., he did not
file any charge alleging that he was subject to a hostile w ork environment.

                                         -8-
M r. Keeler’s termination claim did not become ripe for filing until after the

dismissal of the First Action, when he received his right-to-sue letter on his

Fourth Charge. He filed this action within ninety days of receiving that letter.

Accordingly, the district court erred in dismissing his termination claim as

untimely.

      CFP contends that our holding in M artinez does not apply in this case

because M r. Keeler represented to the district court in his First Action that he had

exhausted his administrative remedies. Thus, CFP argues that M r. Keeler should

not now be permitted to assert his own non-compliance with the exhaustion

requirement in his First Action as a basis to save his termination claim in this

action from being time-barred. But the exhaustion requirement is “a

jurisdictional prerequisite to suit under Title VII–not merely a condition

precedent to suit.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317

(10th Cir. 2005). Therefore, had the district court not dismissed M r. Keeler’s

First Action on procedural grounds, his retaliatory termination claim in that action

would nevertheless have been subject to dismissal for lack of subject-matter

jurisdiction, regardless of any representation he made about exhaustion of

administrative remedies. See Mosley v. Pena, 100 F.3d 1515, 1517, 1519

(10th Cir. 1996) (affirming dismissal of “prematurely filed” complaint for failure

to exhaust administrative remedies). Just as M r. Keeler’s representations could

not make his otherwise-premature claim ripe for filing, we decline to hold that

                                          -9-
they preclude him from litigating his termination claim once his administrative

remedies were exhausted.

                                    Conclusion

      The district court’s dismissal of M r. Keeler’s retaliatory termination claim

alleged in his Fourth Charge is REVERSED and REM ANDED for further

proceedings consistent with this order and judgment. This district court’s

dism issal of M r. K eeler’s other claims is AFFIRMED.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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