F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 20 2003
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


RICHARD RODRIGUEZ,

          Plaintiff-Counter-
          Defendant-Appellant,
                                                        No. 02-1316
v.
                                                   (District of Colorado)
                                                (D.C. No. 00-B-1275 (OES))
MILLER WASTE MILLS, INC., d/b/a
RTP Company,

       Defendant-Counter-
       Claimant-Appellee.




                           ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.


                                 I. INTRODUCTION

      Richard Rodriguez, an Hispanic male over the age of forty, brought suit

against his employer, RTP Company (“RTP”), alleging discrimination based upon

age and national origin/race. The district court granted summary judgment in


      *
       This order and judgment is not binding precedent, except under the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.
favor of RTP, concluding as follows: (1) Rodriguez’s age discrimination claim

failed at both the prima facie and pretext stages of the framework established by

the Supreme Court in McDonnell Douglas Corp. v. Green, 

(1973);

and (2) Rodriguez’s national origin/race discrimination claim failed because he

failed to exhaust his administrative remedies and, in the alternative, because he

failed to create a genuine issue of material fact as to pretext. This court exercises

jurisdiction pursuant to 28 U.S.C. § 1291 and Fed. R. Civ. P. 54(b). Because

Rodriguez has not created a genuine issue of material fact as to pretext, we

affirm the district court’s grant of summary judgment to RTP on Rodriguez’s age

discrimination claim. This court vacates that portion of the district court order

granting summary judgment to RTP on Rodriguez’s national origin/race

discrimination claim and remands the matter to the district court to dismiss the

claim for lack of subject matter jurisdiction.



                                II. BACKGROUND

A. Factual Background

      RTP provides custom compounding of thermal plastics to injection molders

and original equipment manufacturers. It hired Rodriguez as a sales engineer in

1991, when Rodriguez was forty-nine years old. At that time, fifteen out of the

twenty employees in the sales organization were over the age of forty.


                                          -2-
      During his seven-year tenure with RTP, Rodriguez received numerous

written complaints from his managers regarding his failure to communicate in a

manner consistent with company policy. Specifically, Rodriguez consistently

failed to (1) submit monthly activity and trip/call reports, (2) send copies of

customer correspondence to sales management, (3) call RTP to check voicemail

messages each day, and (4) work with the regional manager when submitting

price quotes that varied from RTP’s officially listed prices. In 1995, Rodriguez

was informed that he was not meeting RTP’s “minimum standards” because of his

failure to communicate with management. He was placed on a job improvement

plan that required weekly conference calls to verify that he was following

prescribed procedures. Nevertheless, the problems persisted.

      In addition to his problems following company policy regarding

communications with sales management, there was some concern that Rodriguez

was not growing his sales territory during his first few years with RTP. In 1993,

Rodriguez received a warning regarding his sales but was not fired. Rodriguez’s

sales increased in 1994 and 1995, and from 1995 through 1997 his sales exceeded

$5,000,000. Rodriguez was one of several sales engineers who received awards

in those years for achieving sales of that level.

      In 1997, RTP again became concerned about Rodriguez’s sales. According

to RTP, Rodriguez’s sales were flat and if the largest account he served was not


                                          -3-
considered, his sales were actually declining. In response, RTP drafted a warning

letter to Rodriguez noting his flat sales and again noting his failure to comply

with RTP’s communications policies. The letter was never sent, however,

because Rodriguez’s sales picked up.

      In addition to the missteps and concerns set out above, RTP also alleges

that Rodriguez exhibited extremely poor business judgment. In 1995, Rodriguez

sent a letter to a customer mistakenly advising it that he was working on the same

plastics formula for another customer. The customer threatened legal action,

accusing RTP of divulging its confidential product information. The matter had

to be resolved by RTP’s upper management.

      In 1997, Rodriguez drove a company car without using seat belts, parked in

a customer’s no-parking zone, and entered through the customer’s back door

without signing in as a visitor. Rodriguez then walked through the customer’s

production area without wearing safety glasses. According to Rodriguez, the

customer never complained directly to RTP. He further asserts that he had

permission to enter through the back door and the safety glasses requirement was

a change in the customer’s policy. Nevertheless, Rodriguez’s supervisor, who

had accompanied Rodriguez on the visit, was “uncomfortable with the trip.”

      In 1998, Rodriguez was involved in an incident of poor judgment that RTP

claims was the “straw that broke the camel’s back.” A potential customer, Harold


                                         -4-
Beecroft, asked service representatives at RTP’s headquarters to provide him with

some product samples. Based on his prior dealings with Beecroft, 1 Rodriguez

believed that Beecroft would drain RTP’s resources by requesting free samples

without placing an order. Although no one had complained about Beecroft’s

request for samples, Rodriguez wrote a letter to two RTP employees, dated

October 26, 1998, instructing them not to work with Beecroft or provide samples

to him. In the memo, Rodriguez stated that Beecroft “will extract all information

from RTP and tax our internal resources for his personal gain without benefit to

RTP.” Rodriguez also accused Beecroft of giving RTP’s product formulation to

RTP’s principal competitor. Rodriguez then faxed a copy of the memo directly to

Beecroft.

      Twelve hours later, Beecroft responded by threatening legal action against

RTP if it persisted in accusing him of giving RTP’s formula to the competitor.

Beecroft’s response was much stronger than Rodriguez expected. Rodriguez then

sent a follow-up memo to Beecroft without first notifying his supervisor.


      1
        Rodriguez was apparently familiar with Beecroft through Rodriguez’s
independent company, Rodco Systems, which had provided engineering services
to Beecroft in connection with the construction of a molding tool needed for the
use of the RTP plastic materials. In his brief on appeal, Rodriguez asserts that he
was aware “Mr. Beecroft’s company was in debt and couldn’t pay its bills.” The
record reveals that RTP has filed a counter-claim against Rodriguez for
improperly soliciting business opportunities belonging to RTP. This court
nevertheless has jurisdiction because the district court entered a Rule 54(b)
certification.

                                        -5-
Rodriguez’s follow-up memo chided Beecroft for being uncommunicative and

continued to insist that Beecroft would tax RTP’s internal support structure.

      Soon after the Beecroft incident, Rodriguez was fired. He was informed of

his termination during two telephone calls. According to Rodriguez, he was first

told that he was terminated for failing to send copies of the Beecroft memos to his

supervisors. After Rodriguez told his manager that he had mailed copies to him,

he alleges he was told that he was terminated because the company was “cutting

back.” RTP denies that Rodriguez was told that the company was cutting back

and, instead, asserts that its stated reasons for the dismissal have consistently

related to Rodriguez’s failure to follow company policy concerning

communication with supervisors, not selling as much product as managers

expected, and poor judgment. The written letter of termination sent to Rodriguez

by RTP one week later indicates as follows: “You have not been singled out but

were dismissed for a variety of reasons, including unsatisfactory job and sales

performance, unprofessional behavior towards a number of people including

internal, customers and suppliers, and failure to follow directions given to you by

your Manager, etc.” A thirty-six-year-old white male replaced Rodriguez.

      After his termination, Rodriguez filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). On the intake form,

Rodriguez alleged age and national origin/race discrimination. However, the


                                          -6-
charge prepared by the EEOC staff person identified the charge as only age

discrimination. Rodriguez subsequently indicated to the EEOC in a letter that he

wanted the charge to include a national origin/race claim. In a responsive letter,

Wendy Reiner, an Investigator with the EEOC, indicated as follows:

      [I]t is important that you know that when you amend your charge to
      include National Origin/Hispanic as a basis, the issues you raise will
      be limited to those that occurred within 300 days of the date you
      originally filed the charge. I have calculated this time frame to be
      October 22, 1998 through August 18, 1999. Thus, any incidents that
      occurred prior to October 22, 1998, cannot be included as they are
      untimely under our 300 day statute of limitations. To this end,
      enclosed please find a copy of your letter on which I have indicated
      what further information I will need in order to draft the amended
      charge.
              ....
              Again, thank you for your continuing cooperation. If you
      could provide the requested information on or before March 6, 2000,
      I would greatly appreciate it. The data may be faxed to me if
      necessary . . . . Further, if you have any questions or concerns,
      please feel free to call me . . . .

The record does not contain any further correspondence between Rodriguez and

Reiner and no amended charge raising national origin/race discrimination was

ever filed.

B. Procedural Background

      The district court utilized the now-familiar burden shifting scheme from

McDonnell Douglas Corp. v. Green, 

(1973), to evaluate Rodriguez’s

claims of age and national origin/race discrimination. With respect to the age

discrimination claim, the district court concluded that Rodriguez failed to

                                         -7-
establish a prima facie case of age discrimination because “no reasonable juror

could conclude that an employee who sent such a letter [i.e., the Beecroft letter]

to a potential customer without management approval in the circumstances

present here was performing his job in a satisfactory way.” In the alternative, the

court concluded that Rodriguez had failed to show that RTP’s decision to fire him

after he sent the Beecroft letter was a pretext for age discrimination. With respect

to the nation origin claim, the court concluded that Rodriguez failed to file the

requisite charge with the EEOC and dismissed the claim for failure to exhaust

administrative remedies. In the alternative, the district court concluded that the

national origin/race claim failed because Rodriguez could not show RTP’s

decision to terminate him in response to the Beecroft letter was pretextual.



                         III. STANDARD OF REVIEW

      This court reviews de novo the district court’s grant of summary judgment,

viewing the record in the light most favorable to the party opposing summary

judgment. McKnight v. Kimberly Clark Corp., 

, 1128 (10th Cir.

1998). Summary judgment is appropriate if there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Celotex

Corp. v. Catrett, 

, 322 (1986); Fed. R. Civ. P. 56(c). This court

looks to the applicable substantive law when evaluating whether a fact is material.


                                         -8-
Revell v. Hoffman, 

, 1232 (10th Cir. 2002). “To determine whether

a dispute is genuine, we must consider whether a ‘reasonable jury could return a

verdict for the nonmoving party.’” 

v. Liberty Lobby, Inc.,

, 248 (1986)).



                                  IV. ANALYSIS

A. Age Discrimination Claim

      The three-step analytical framework established by the Supreme Court in

McDonnell Douglas applies to age discrimination claims. Garrett v. Hewlett-

Packard Co., 

, 1216 (10th Cir. 2002). Under the first step, a

plaintiff must prove a prima facie case of discrimination. 

the plaintiff

carries his burden of establishing a prima facie case, the burden shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for its employment

action. 

defendant does so, the burden shifts back to the plaintiff to

show that his age “was a determinative factor in the defendant’s employment

decision, or show that the defendant’s explanation for its action was merely

pretext.” 

establish a prima facie case of age discrimination, a plaintiff must
show that: (1) he is within the protected age group, (2) he was doing satisfactory
work, (3) he was discharged, and (4) his position was filled by a younger person.
Cone v. Longmont United Hosp. Ass’n, 

, 529 (10th Cir. 1994).

                                         -9-
      The district court concluded that Rodriguez had failed to establish either a

prima facie case or that RTP’s stated reasons for the termination were pretextual.

With regard to the question of pretext, the district court concluded as follows:

              Mr. Rodriguez argues that during the last years of his
      employment RTP had established a pattern of hiring younger
      employees who were compensated less than the older RTP
      employees. As an example, Mr. Rodriguez argues that Scott Carrell,
      who replaced Mr. Rodriguez, was hired at the same $50,000 salary
      but instead of receiving a commission structure, which amounted to
      approximately $100,000 of additional income, Mr. Carrell was only
      guaranteed a $20,000 annual bonus. However, the evidence indicates
      that Mr. Carrell was initially hired for a different position than Mr.
      Rodriguez. Mr. Carrell was hired as a National Accounts Manager,
      while Mr. Rodriguez was a sales engineer. Moreover, Mr. Carrell
      was hired at a base salary of $60,000. Additionally, after Mr.
      Rodriguez was terminated and Mr. Carrell took over the sales
      engineer duties, he received the typical sales engineer structure for
      commissions in addition to his $60,000 base. Therefore, Mr. Carrell
      actually had the opportunity to receive more compensation than Mr.
      Rodriguez.
              Next, Mr. Rodriguez argues that RTP’s proffered reason is
      purely pretextual because similarly situated younger employees were
      not terminated. RTP argues that the younger individuals identified
      by Mr. Rodriguez were not similarly situated. I agree with RTP.
              Mr. Rodriguez argues that similarly situated younger
      employees were treated more favorably because they were not
      terminated. Mr. Rodriguez discusses employees who had serious
      traffic incidents, who did not turn in monthly reports in a timely
      manner, and those who failed to make their budgets. However, he
      failed to identify any younger employee who displayed poor business
      judgment similar to when he sent an inappropriate memo to a
      potential customer which resulted in the customer threatening
      litigation. Therefore, Mr. Rodriguez has failed to present evidence
      that RTP’s proffered reason for his termination was a pretext for age
      discrimination. . . .

Dist. Ct. Order at 10-11 (record citations omitted).

                                         -10-
      Upon de novo review of the district court’s order and the entire appellate

record, as well as a thorough consideration of the parties’ briefs and contentions

on appeal, this court affirms the district court’s grant of summary judgment in

favor of RTP for substantially those reasons set out by the district court in

concluding that Rodriguez failed to create a genuine issue of fact as to pretext.

The extensive and contemporaneous written record of Rodriguez’s difficulties in

communicating effectively, including the Beecroft incident; Rodriguez’s failure to

identify a single younger employee with a similarly extensive history of

communications problems or with an incident of the magnitude of the Beecroft

memo who was treated more favorably than was Rodriguez; and the absence of

any evidence of a pattern of adverse treatment of workers over the age of forty

leads this court to conclude that no reasonable juror could conclude that RTP’s

stated reasons for terminating Rodriguez were pretextual.

B.    National Origin Discrimination Claim

      Rodriguez argues that the district court erred when it dismissed his national

origin/race discrimination claim for failure to exhaust administrative remedies.

He asserts his claim was properly presented to the EEOC because he checked the

appropriate box on the EEOC intake questionnaire and that the claim was not

included in the formal charge because of an error committed by the EEOC. He

further alleges that although he attempted to amend the charge by filing a written


                                         -11-
request including the specifics of this discrimination claim, the EEOC never

informed him that he was required to file an additional formal charge. Rodriguez

thus argues that he did all he could have reasonably done to bring a formal charge

of national origin/race discrimination and that the EEOC had the opportunity to

investigate the claim. In the alternative, he appears to argue that his national

origin/race discrimination claim is reasonably related to his age discrimination

claim because both claims arise from his termination.

      “Exhaustion of administrative remedies is a ‘jurisdictional prerequisite’ to

suit under Title VII.” Jones v. Runyon, 

, 1399 (10th Cir. 1996).

Whether a plaintiff has exhausted administrative remedies is a question of law

reviewed de novo. See 

(citing Vinieratos v. United States Dep’t of Air

Force, 

, 767-78 (9th Cir. 1991)).

      To exhaust administrative remedies, a claimant must first file a charge with

the EEOC. Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance

Abuse Servs., 

, 1326 (10th Cir. 1999). It is uncontested that

Rodriguez’s formal charge does not include an explicit claim of national

origin/race discrimination. In this circuit, however, “[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.” Ingels v. Thiokol


                                         -12-
Corp., 

, 625 (10th Cir. 1994) (quotation omitted). Although

Rodriguez alludes to this standard in his brief, he has not cited a single case

indicating that a national origin/race discrimination claim is like or reasonably

related to a claim of age discrimination. In fact, the case law reveals that the

opposite is true. See, e.g., Pejic v. Hughes Helicopters, Inc., 

, 675

(9th Cir. 1988) (holding that plaintiff’s age discrimination claim was barred by

failure to add it to an EEOC charge of national origin/race discrimination); Castro

v. United States, 

, 403 (1st Cir. 1985) (holding that plaintiff’s claim

of national origin/race discrimination was barred where only age discrimination

claims were raised in agency proceedings).

      Rodriguez misrelies on Sickinger v. Mega Systems, Inc., 

(D. Ind. 1996), for the proposition that the inclusion of a national origin/race

discrimination claim in his intake questionnaire is sufficient to exhaust his claim.

In Sickinger, the court held that a retaliatory discharge claim set out in an intake

questionnaire which was “like or reasonably related” to the underlying claims of

sex discrimination and harassment was sufficiently exhausted because “the EEOC

affirmatively misled the Plaintiff into believing she had properly filed her

retaliatory termination claim.” 

158. The record in this case, however,

belies Rodriguez’s assertion that a representative of the EEOC somehow led him

astray as to the filing of his national origin/race discrimination claim. As set out


                                         -13-
above, after Rodriguez received a copy of the formal charge, he sent a letter to the

EEOC investigator, Wendy Reiner, asking that she “amend [his] charge to include

national origin as a basis of discrimination.” Reiner immediately responded to

Rodriguez’s letter by noting that she could not draft an amended charge until she

received additional information from Rodriguez. Attached to Reiner’s letter was

Rodriguez’s request to amend the charge, upon which Reiner had made numerous

notations regarding the additional information she would need to draft the

amended charge. The record does not contain any indication that Rodriguez ever

responded to Reiner’s letter. In light of the record, Rodriguez’s assertion on

appeal that he was never informed of the need to file an additional formal charge

to pursue a claim of national origin/race discrimination rings particularly hollow.

Upon de novo review, we conclude that the district court was correct in ruling

that Rodriguez failed to exhaust his national origin/race discrimination claim.

      In light of Rodriguez’s failure to exhaust his national origin/race

discrimination claim, the district court erred in granting summary judgment in

favor of RTP, instead of dismissing the claim for lack of subject matter

jurisdiction. Although the Supreme Court has held that the failure to file a timely

charge with the EEOC does not deprive the courts of jurisdiction, Zipes v. Trans

World Airlines, Inc. Independent Federation of Flight Attendants, 

393 (1982), this court has concluded that the actual filing of a charge, whether


                                        -14-
timely or not, is a jurisdictional prerequisite. 

n.1.

Accordingly, while a district court may maintain jurisdiction over a Title VII

claim that arises from an untimely filed charge, it may not maintain jurisdiction

over a Title VII claim for which a charge has not been filed. 

court is bound by the prior precedent of the Tenth Circuit, filing a charge with the

EEOC is a jurisdictional prerequisite to filing a Title VII action in federal court.

In re Smith, 

, 724 (10th Cir. 1993); 

-02.

Because the district court lacked jurisdiction over Rodriguez’s national

origin/race discrimination claim, we must remand the matter to the district court

so that it may vacate its grant of summary judgment in favor of RTP and dismiss

the claim for lack of jurisdiction.



                                   V. CONCLUSION

       For those reasons set out above, this court   affirms the district court’s grant

of summary judgment to RTP on Rodriguez’s age discrimination claim. Because,

however, Rodriguez’s failure to file a charge of national origin/race

discrimination with the EEOC deprived the district court of subject matter

jurisdiction, this court   remands that portion of the district court order granting

summary judgment to RTP on Rodriguez’s national origin/race discrimination




                                            -15-
claim to the district court so that it can vacate its grant of summary judgment in

favor of RTP and to dismiss the claim for lack of jurisdiction.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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