FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 18, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 DARRYL KINNEY,

               Plaintiff-Appellant,                      No. 12-3205
          v.                                             (D. of Kan.)
 BLUE DOT SERVICES OF KANSAS,                (D.C. No. 11-CV-04151-KHV-KGS)
 and TERRY McCORT,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Darryl Kinney sued his employer, Blue Dot Services, and his supervisor,

Terry McCort, 1 claiming he was fired (1) on the basis of his race (African

American), and (2) in retaliation for reporting Blue Dot’s supposed Clean Air Act


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Some documents in the record spell this name as “McCart.” It is not clear
which spelling is correct. For consistency with the district court’s caption, we
will stay with “McCort.”
violations to the EPA. Kinney therefore alleged claims for violation of Title VII,

the Clean Air Act’s whistleblower protections, and a Kansas whistleblower

protection statute. Kinney also asserted the common law tort of wrongful

discharge.

      The district court dismissed Kinney’s complaint, finding it lacked subject

matter jurisdiction over the federal claims and refusing to exercise supplemental

jurisdiction over his state-law claims. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                I. Background

      In June 2011, Kinney began working for Blue Dot, a company in Topeka,

Kansas, that services air conditioning units. He claims that soon after he was

hired, he observed his supervisor (McCort) and perhaps others handling Freon in

a way that supposedly violates the Clean Air Act. Kinney refused to participate

in these alleged violations. He says he reported Blue Dot’s actions to the EPA on

July 9, 2011. Soon after, a Blue Dot employee saw that report (apparently a copy

of it was sitting in Kinney’s work truck) and Kinney was fired on July 21, 2011.

      Kinney received no explanation for his termination. He claims he later

learned through an OSHA representative that Blue Dot explained Kinney’s

termination as a matter of poor work performance. Kinney asserts, to the

contrary, that Blue Dot often sent him out to fix the poor workmanship of other



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employees, including at least one employee who is “not a minority” and who

remains employed at Blue Dot. R., Vol. 1, at 5.

      In August 2011, Kinney filed an EEOC discrimination charge against Blue

Dot, claiming race discrimination. In October 2011, he filed the present suit in

the District of Kansas. Blue Dot moved to dismiss and the district court granted

that motion. This appeal timely followed.

                                    II. Analysis

      A. Title VII

      Title VII plaintiffs must clear three procedural hurdles before bringing suit

in federal court: (1) file a discrimination charge with the EEOC, (2) receive a

right-to-sue letter from the EEOC, and (3) file suit within ninety days of receiving

the letter. See 42 U.S.C. § 2000e-5(e)(1), (f)(1). We have consistently described

these requirements as jurisdictional prerequisites. See, e.g., Apsley v. Boeing Co.,

, 1210 (10th Cir. 2012); Shikles v. Sprint/United Mgmt. Co., 

, 1317 (10th Cir. 2005). The district court dismissed Kinney’s Title VII

claim for failure to meet these prerequisites. We review de novo a decision

dismissing a cause of action for lack of subject matter jurisdiction. Lucero v.

Bureau of Collection Recovery, Inc., 

, 1242 (10th Cir. 2011).

      No one disputes that Kinney filed an EEOC charge. But neither his

complaint nor any of his other filings in the district court or in this court reveal

whether he received a right-to-sue letter. Title VII requires the EEOC to issue a

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right-to-sue letter within 180 days of receiving the discrimination charge, see 42

U.S.C. § 2000e-5(f)(1), and that 180-day window expired in February 2012. We

might therefore assume that Kinney possesses a right-to-sue letter at this

point—or could get one if he asked, see 29 C.F.R. § 1601.28(a)(1) (establishing

procedures for requesting a right-to-sue letter when 180 days have expired). But

this court may not assume that a plaintiff can establish subject matter jurisdiction;

it is the plaintiff’s burden to prove it. Kokkonen v. Guardian Life Ins. Co. of Am.,

, 377 (1994). Kinney has failed to plead anything regarding the

existence of a right-to-sue letter and therefore has not met his burden.

      In sum, the district court correctly dismissed his Title VII claim for lack of

subject matter jurisdiction. 2

      B. Clean Air Act

      Employers may not discharge employees for complaining to the EPA about

the employer’s potential Clean Air Act violations. 42 U.S.C. § 7622(a). Kinney

attempted to state a claim under this statute and the district court dismissed for

lack of subject matter jurisdiction.

      In his pro se brief on appeal, Kinney’s argument on this issue is unclear.

For our purposes, we will assume he intended to challenge the district court’s

decision, which we review de novo. See 

.


      2
        We also note that Kinney cannot sue McCort, an individual, for Title VII
violations. Sauers v. Salt Lake Cnty., 

, 1125 (10th Cir. 1993).

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      Although the Clean Air Act provides whistleblower protections, it also

requires the whistleblower to first complain to the Secretary of Labor, and if

unsatisfied with the Secretary’s decision, petition for review in a circuit court of

appeals—not a district court. See 42 U.S.C. § 7622(b)(1), (b)(2)(A), (c)(1),

(c)(2). Given this statutory structure, the district court appropriately dismissed

Kinney’s Clean Air Act claim for lack of subject matter jurisdiction.

      C. State-Law Claims

      “The district court[] may decline to exercise supplemental jurisdiction over

[state law claims that could not be brought under diversity jurisdiction] if * * *

the district court has dismissed all claims over which it has original jurisdiction.”

28 U.S.C. § 1367(c)(3). “We review the district court’s decision to decline

supplemental jurisdiction for abuse of discretion.” Exum v. U.S. Olympic Comm.,

, 1139 (10th Cir. 2004).

      The district court did not abuse its discretion when it declined to exercise

supplemental jurisdiction over Kinney’s state-law whistleblowing and wrongful

discharge claims. Rather, “[w]hen all federal claims have been dismissed, the

court may, and usually should, decline to exercise jurisdiction over any remaining

state claims.” Smith v. City of Enid ex rel. Enid City Comm’n, 

,

1156 (10th Cir. 1998). We see no reason why the district court should have

deviated in this instance from the general practice.




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      D. Motion to Supplement the Record

      Before the district court ruled on the motion to dismiss, Kinney moved the

district court to “supplement [the] record with exhibits to support plaintiff[’]s

claim.” R., Vol. 1, at 130. The district court denied this motion as moot and

Kinney does not challenge that decision here. We note, however, that Kinney’s

proposed supplemental material entirely comprises potential evidence of Blue

Dot’s wrongdoing. It does not bear on subject matter jurisdiction.

                                 III. Conclusion

      For the reasons stated, we AFFIRM.

                                       ENTERED FOR THE COURT


                                       Timothy M. Tymkovich
                                       Circuit Judge




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