                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 November 30, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    STEPHEN RILEY,

                Plaintiff-Appellant,
                                                          No. 10-5038
    v.                                        (D.C. No. 4:08-CV-00195-JHP-FHM)
                                                          (N.D. Okla.)
    TULSA COUNTY JUVENILE
    BUREAU, ex rel., Tulsa County Board
    of Commissioners,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, PORFILIO and BRORBY, Senior Circuit
Judges.



         Plaintiff-Appellant Stephen Riley, proceeding pro se, appeals the district

court’s grant of summary judgment to the Tulsa County Juvenile Bureau (TCJB)

on his claims of race and age discrimination and retaliation under Title VII of the

Civil Rights Act of 1964 and the Age Discrimination in Employment Act


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(ADEA). The district court concluded that Mr. Riley failed to exhaust his

administrative remedies by filing a timely charge of discrimination with the Equal

Employment Opportunity Commission (EEOC) and that, even if his filing was

timely, his claims failed on the merits. We review the district court’s grant of

summary judgment de novo, applying the same legal standard as the district court

under Fed. R. Civ. P. 56. See Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1277

(10th Cir. 2010). “In so doing we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.”

Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1243 (10th Cir.

2010) (internal quotation marks omitted). Based upon our review, we affirm.

      Mr. Riley worked for the TCJB as a probation counselor until January 3,

2007, when the TCJB offered him the choice either to resign or be terminated.

Mr. Riley chose to resign, though he contends he did so only under duress and

was actually terminated. The TCJB does not dispute Mr. Riley’s characterization

of his resignation, so we will assume he was involuntarily discharged.

      In his complaint, Mr. Riley alleged that the TCJB discriminated against him

on the basis of his race and his age, both in connection with his discharge and on

numerous occasions dating back to May 14, 2004. He also contended that after

his discharge, the TCJB discriminated against him on January 26, 2007, in a

hearing on his claim for unemployment benefits, and it retaliated against him on

January 29, 2007, by initially rejecting his request for mileage reimbursement.

                                         -2-
      Before a plaintiff may file suit under Title VII or the ADEA, he must

exhaust his administrative remedies by filing a charge with the EEOC. See

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

Because Oklahoma is a deferral state, 1 Mr. Riley had 300 days from the date of

the alleged unlawful conduct to file his charge. See 42 U.S.C. § 2000e-5(e)(1)

(Title VII); 29 U.S.C. § 626(d)(1)(B) (ADEA).

      On November 6 or 7, 2007, Mr. Riley filed an Intake Questionnaire with

the Oklahoma Human Rights Commission (OHRC) indicating that he had been

discriminated and retaliated against on the basis of his race and color. Attached

to the OHRC questionnaire were an additional forty-eight typed pages describing

the TCJB’s unlawful conduct in detail and providing witness information.

Mr. Riley subsequently signed a Charge of Discrimination prepared by the EEOC

on December 31, 2007. In addition to his race and color, the Charge of

Discrimination included Mr. Riley’s age as a basis for the TCJB’s unlawful

conduct discrimination and retaliation. After Mr. Riley notified the EEOC of

several corrections to the Charge of Discrimination, it prepared an Amended

Charge of Discrimination, which he signed on January 24, 2008. The EEOC

issued a right to sue letter on the initial Charge of Discrimination on January 8



1
       A “deferral state” is one in which a state agency has the authority to
investigate employment discrimination claims. The Oklahoma Human Rights
Commission has such authority.

                                         -3-
and then revoked that letter and issued a new one on January 28, 2008, in light of

the Amended Charge. Both letters stated that the charge of discrimination was

not timely because Mr. Riley had waited too long after the alleged discrimination

to file it.

        Mr. Riley filed his December 31 Charge of Discrimination more than 300

days after the last wrongful action described in his complaint. The December 31

Charge therefore did not timely exhaust any of his claims. The Supreme Court

has held, however, that an intake questionnaire can constitute a charge of

discrimination under certain circumstances, see Fed. Express Corp. v. Holowecki,

552 U.S. 389, 402 (2008), and if it did constitute a charge, Mr. Riley’s Intake

Questionnaire would have timely exhausted at least some of his claims. But even

if Mr. Riley’s Intake Questionnaire did constitute a charge of discrimination, we

conclude the district court properly granted summary judgment to the TCJB.

        First, Mr. Riley did not submit the Intake Questionnaire to the OHRC

within 300 days of any of the wrongful conduct alleged in the complaint up to and

including his discharge. “Each discrete discriminatory act starts a new clock for

filing charges alleging that act. The charge, therefore, must be filed within the

. . . 300-day time period after the discrete discriminatory act occurred.” Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The only allegedly

wrongful conduct that occurred within 300 days of when Mr. Riley filed his

intake questionnaire was that which occurred on January 26 and 29, 2008, after he

                                         -4-
was terminated. Accordingly, even if the Intake Questionnaire constituted a

charge of discrimination, it did not timely exhaust Mr. Riley’s administrative

remedies on any claims except those arising out of the two post-termination

events.

      Second, even if the questionnaire constituted a charge of discrimination, it

was not sufficient to exhaust Mr. Riley’s ADEA claims because it did not allege

that the TCJB had engaged in any age discrimination or retaliation. Section 2 of

the Intake Questionnaire, entitled “Discrimination Basis,” asked Mr. Riley to

identify the basis or bases under which he was filing. He checked the categories

for race and color, but not for age. Similarly, Section 5, entitled “Retaliation

Information,” asked him to check the protected activity or activities in which he

participated and for which he was retaliated against. Again, Mr. Riley checked

only race and color, but not age. Moreover, in the forty-eight typed pages he

attached to the questionnaire, he repeatedly said that the wrongful employment

actions he described were racially motivated. Nowhere did he suggest that any of

the wrongful conduct was motivated by his age. Because his Intake Questionnaire

did not include any allegations of age discrimination or retaliation, it did not

timely exhaust his remedies on his ADEA claims.

      Finally, although the Intake Questionnaire was sufficient to timely exhaust

Mr. Riley’s Title VII claims arising out of the TCJB’s alleged wrongful conduct

on January 26 and 29, his allegations, even if true, are not actionable under

                                          -5-
Title VII. Mr. Riley alleged that the TCJB discriminated against him on

January 26, 2008, when his supervisor testified falsely at a hearing on his claim

for unemployment benefits, which caused the state to deny him benefits.

Title VII’s anti-discrimination provision makes it unlawful 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) (emphasis added). The Supreme

Court has held that the scope of the anti-discrimination provision is limited,

therefore, to employer actions “that affect employment or alter the conditions of

the workplace.” Burlington No. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62

(2006).

      Mr. Riley has not pointed to any law, and we know of none, providing that

state unemployment benefits are an element of an employee’s “compensation,

terms, conditions, or privileges of employment” within the meaning of Title VII.

Such benefits are paid “by the state out of state funds derived from taxation” and

are not made “to discharge any liability or obligation of [the employer], but to

carry out a policy of social betterment for the benefit of the entire state.” Nat’l

Labor Relations Bd. v. Gullet Gin Co., 340 U.S. 361, 364 (1951). Therefore, even

if his supervisor did interfere with his ability to obtain state unemployment

benefits by lying at the hearing, that conduct did not affect Mr. Riley’s

                                          -6-
employment or alter the conditions of his workplace, and it does not come within

the scope of Title VII’s anti-discrimination provision.

      Mr. Riley also alleged that the TCJB retaliated against him on January 29,

2008. The scope of Title VII’s anti-retaliation provision is not as limited as that

of its anti-discrimination provision. Thus, the Supreme Court has held that the

anti-retaliation provision applies to former employees, Robinson v. Shell Oil Co.,

519 U.S. 337, 346 (1997), and that it “does not confine the actions and harms it

forbids to those that are related to employment or occur at the workplace,” White,

548 U.S. at 57. Therefore, the fact that Mr. Riley’s employment with the TCJB

had ended more than three weeks before the TCJB allegedly retaliated against him

does not exclude his retaliation claim from coverage under Title VII.

      Nonetheless, the anti-retaliation provision does not protect an employee

from all retaliation, only from retaliation that produces significant harm. See id.

at 68. “[A] plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. at 68 (internal quotation marks omitted). This requirement

of “material adversity . . . separate[s] significant from trivial harms.” Id.

      Mr. Riley alleged that when he submitted a claim for mileage

reimbursement on January 29, 2008, he was told that it would not be approved

until he submitted it on the form for mileage driven outside, rather than inside,

                                          -7-
the county. Mr. Riley also alleged that he had submitted similar mileage

reimbursement requests in 2006 and the reviewing supervisor had approved them

without question. He claimed that the supervisor denied his January 29 request

because the supervisor was angry that Mr. Riley had filed an internal grievance

about his discriminatory discharge. Mr. Riley admitted, however, that as soon as

he submitted his reimbursement request on the form the supervisor asked for, his

request was approved and he was paid in full. He did not allege that he suffered

any significant harm as a result of the delay. “An employee’s decision to report

discriminatory behavior cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and that all employees

experience.” Id. The TCJB’s delay in processing Mr. Riley’s mileage

reimbursement request was not enough to dissuade a reasonable employee from

making a charge of discrimination. It was, at most, a minor annoyance that was

not actionable under Title VII.




                                        -8-
      The judgment of the district court is affirmed. Mr. Riley’s “Motion

Request to Subpoena Witnesses for Depositions or Affidavits Testimony” and his

“Motion Request to Include Additional Witness and Subpoena for Deposition or

Affidavit Testimony” are denied. And because the district court granted him

leave to proceed in forma pauperis on appeal, Mr. Riley’s request that this court

also grant him leave to do so is denied as moot.


                                                   Entered for the Court



                                                   Wade Brorby
                                                   Senior Circuit Judge




                                         -9-
