Cirocco v. McMahon ( 2019 )

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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