                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 19 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    YVONNE M. SCHMIDT,

                Plaintiff-Appellant,

    v.                                                   No. 99-2338
                                                  (D.C. No. CIV-98-1562-JC)
    U S WEST COMMUNICATIONS,                              (D. N.M.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , KELLY , and LUCERO , Circuit Judges.




         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.

         Plaintiff Yvonne M. Schmidt appeals the district court’s grant of summary

judgment in favor of defendant U S West Communications (U S West) on her


*
      This order and judgment is not binding precedent, except under the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.
accommodation and retaliation claims under the Americans with Disabilities Act,

42 U.S.C. §§ 12101-12213 (ADA). We affirm.

      Plaintiff has been employed by U S West (and its predecessor) since 1971.

She has for many years been treated for depression and panic attacks. In 1993,

1996, and 1997, plaintiff filed charges against U S West with the Equal

Employment Opportunity Commission (EEOC). The 1993 charge alleged

discrimination based on race, sex, and disability. This charge was settled in 1995.

The 1996 charge alleged discrimination and retaliation in the form of harassment.

This charge was dismissed and a right to sue letter was issued in September 1996.

Neither of these charges forms the basis for this lawsuit.

      The 1997 EEOC charge alleged that plaintiff had been subjected to

retaliation for filing her previous charges and that she “was refused proper health

care in violation of The Americans With Disabilities Act of 1990.” Appellant’s

App. at 35. The basis of plaintiff’s charge was that the contracted administrator

for U S West’s health care plan, United HealthCare Insurance Company, had

dropped her mental health provider, Dr. Cohen, from its list of approved

providers. Plaintiff was informed that she could receive mental health services

from another approved provider, but that if she wished to continue treatment with

Dr. Cohen she would be required to pay for his services herself.




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       On December 22, 1998, plaintiff brought this action against U S West in

the federal district court, alleging that she had been denied medical services in

retaliation for filing the previous charges, and that she had been denied

accommodation based on U S West’s failure to provide her with assistance for

training programs and its failure to provide her a coach or tutor. On October 28,

1999, the district court granted summary judgment in favor of U S West, finding

that plaintiff failed to exhaust her administrative remedies in connection with the

failure to accommodate claim, and that she failed to make a prima facie case of

retaliation because she had not been subjected to an adverse employment action.

       We review a grant of summary judgment de novo, applying the same legal

standard as that used by the district court.     Charter Canyon Treatment Ctr. v. Pool

Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary judgment is proper if “there

is no genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “Applying this standard, we

examine the factual record and reasonable inferences drawn therefrom in a light

most favorable to the nonmoving party.”         Anderson v. Coors Brewing Co. , 181

F.3d 1171, 1175 (10th Cir. 1999).

       A plaintiff must exhaust her claims before the EEOC as a prerequisite to

federal court jurisdiction over such claims. Martin v. Nannie & the Newborns,

Inc., 3 F.3d 1410, 1416 n.7 (10th Cir. 1993). Plaintiff’s 1997 charge to the EEOC


                                               -3-
did not allege that U S West failed to offer assistance for training programs or to

provide a coach or tutor. It did not allege that U S West failed to accommodate

her disability in any way, or that any such accommodation was necessary to

permit her to perform her job. The district court was correct, therefore, in

dismissing her accommodation claim. 1

       The district court was also correct in granting summary judgment in favor

of U S West on the retaliation claim. To make a prima facie case of retaliation,

plaintiff was required to show that she engaged in a protected activity, that

U S West subjected her to a temporally proximate adverse employment action,

and that there was a causal connection between the protected activity and the

adverse employment action.       Anderson , 181 F.3d at 1178. An adverse

employment action “constitutes a significant change in employment status, such

as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.”

Burlington Indus., Inc. v. Ellerth   , 524 U.S. 742, 761 (1998).




1
       Even if we were to read the EEOC charge as containing an allegation that
the removal of Dr. Cohen from the provider list was a failure to accommodate
plaintiff’s disability, so as to provide us with jurisdiction over an ADA
accommodation claim, the claim would fail because plaintiff does not allege she
cannot perform the essential functions of her job without such accommodation.
See Anderson , 181 F.3d at 1175.

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      Plaintiff has not directed our attention to any evidence of an adverse

employment action taken by U S West in retaliation for her filing of EEOC

complaints.   2
                  The undisputed evidence shows the decision to remove Dr. Cohen

from the list was made by the United    HealthCare Insurance Company, and not by

U S West.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




2
       In fact, plaintiff’s appellate brief does not cite to any evidence at all,
referring us only to counsel’s allegations in plaintiff’s summary judgment
response brief. Although we have elected to decide plaintiff’s appeal on its
merits, we caution counsel that we could as easily have denied the appeal based
on the inadequacy of the brief submitted.     See Gross v. Burggraf Constr. Co. , 53
F.3d 1531, 1546 (10th Cir. 1995) (declining to consider unsubstantiated
allegations of discrimination when brief did not cite to summary judgment
evidence in record); Thomas v. Wichita Coca-Cola Bottling Co.       , 968 F.2d 1022,
1024-25 (10th Cir. 1992) (refusing to search record for evidence of disputed issue
of fact, stating that “the nonmovant must do more than refer to allegations of
counsel contained in a brief”).

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