Cirocco v. United States Small Business Administration, The et al

Filing 26

ORDER granting 7 Motion to Dismiss. This action is DISMISSED without prejudice. By Magistrate Judge Nina Y. Wang on 2/14/2018. (Attachments: unpublished case law)(nywlc1, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01588-NYW
SUE CIROCCO,
Plaintiff,
v.
LINDA MCMAHON, in her official capacity as
Administrator of the United States Small Business Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendant Linda McMahon’s Motion to Dismiss.
[#7, filed October 10, 2017]. The Motion to Dismiss is before the court pursuant to 28 U.S.C. §
636(c) and the Order of Reference dated November 21, 2017 [#19]. The court has carefully
considered the Motion and related briefing, the entire case file, and the applicable case law, and,
for the reasons stated below, GRANTS the Motion to Dismiss.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Sue Cirocco (“Plaintiff” or “Ms. Cirocco”) initiated this lawsuit through counsel
on June 29, 2017, by filing a Complaint asserting unlawful sex discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), and for
retaliation. [#1].1 The court draws the following facts from Ms. Cirocco’s Complaint, and

1

Ms. Cirocco initially sued the United States Small Business Administration and Linda
McMahon in both her individual and official capacities. See [#1]. Plaintiff thereafter filed a
notice of voluntary dismissal as to Ms. McMahon in her individual capacity and as to the United
1

accepts them as true for the purposes of considering the Motion to Dismiss. Ms. Cirocco began
working at the United States Small Business Administration (“SBA”) in August 2009 as a
Finance Division Manager. [#1 at ¶ 9]. In December 2012, she was promoted to Finance
Director over two male colleagues, Mr. Bates and Mr. Berges, who “vocally expressed” their
displeasure, suggested the promotion was on account of gender, and “went as far to file an EEO
complaint regarding Mr. Cirocco’s selection.” 2 [Id. at ¶¶ 10-13]. In October 2013, Mr. Gribben
was hired as the Deputy Chief Financial Officer and he became Ms. Cirocco’s manager. [Id. at
¶¶ 15-16]. Ms. Cirocco alleges that Mr. Gribben and Mr. Bates began working together to her
exclusion and “outside the normal chain of command.” [Id. at ¶ 17]. At one point, Mr. Gribbon
reversed Ms. Cirocco’s performance review of Mr. Bates, [id. at ¶¶ 20-22]; he also instructed
Ms. Cirocco not to issue written discipline to Mr. Bates after Mr. Bates had been insubordinate
to her and verbally abusive toward one of his female co-workers. [Id. at ¶¶ 26, 27-28, 31-32].
Mr. Gribben also instructed Ms. Cirocco against further communicating with Mr. Bates, an
employee whom she managed. [Id. at ¶¶ 33-34].
Ms. Cirocco alleges that not only was Mr. Gribben “complicit in supporting Mr. Bates’
discriminatory behavior,” he reprimanded her for retaliating against Mr. Berges for his filing of
an EEO complaint, when in fact Mr. Berges “routinely confided in Ms. Cirocco about the stress
he experienced in filing his complaint.” [#1 at ¶¶ 35, 37-38, 40]. Ms. Cirocco asserts that Mr.
Gribben gave her a poor annual review (“FY14”) that was lower than any review she had ever
received at the SBA, and in stark contrast to her mid-year performance review that she was
“doing a fabulous job.” [Id. at ¶¶ 42-43, 49]. When Plaintiff asked Mr. Gribben about the FY14,
States Small Business Administration, leaving only Ms. McMahon in her official capacity. See
[#6].
2

“EEO complaint” refers to a complaint of discrimination filed with the Equal Employment
Opportunity Commission.
2

he said he “based his decision on ‘complaints about [her] professional conduct,’” which Plaintiff
alleges referred to her “efforts to discipline Mr. Bates for verbally berating a female employee.”
[Id. at ¶¶ 45, 47]. Ms. Cirocco lost the opportunity for a raise as a result of the FY14. [Id. at ¶
52].
Plaintiff filed her own EEO complaint in February 2015, and alleges the retaliation
continued thereafter. She was moved to a less desirable office away from her team; she received
a written reprimand for failing to treat Mr. Bates “with respect”; and she was placed under
investigation in February and March 2015. [Id. at ¶¶ 60-62]. In March, the chief financial
officer of the SBA visited the Denver office and announced that Ms. Cirocco’s staff would be
reduced by approximately 50 percent so as to comply with “best practices.” [Id. at ¶ 65]. Ms.
Cirocco alleges that, without adequate staffing and no change in the description of her position, it
was impossible to perform her job. [Id. at ¶ 72]. Ms. Cirocco thereafter took a medical leave of
absence and ultimately sought employment elsewhere.
Defendant filed the instant Motion to Dismiss on October 10, 2017, [#7], and, three days
later, counsel for Plaintiff moved to withdraw his representation. See [#8, #9]. Plaintiff has
proceeded pro se since that time. The Parties then consented to the exercise of jurisdiction by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), [#18]. On November 28, 2017,
the court held a telephonic Status Conference at which the undersigned discussed with the Parties
the Motion to Dismiss, and Ms. Cirocco represented that she had intended for certain email
correspondence, which she had sent to counsel for Defendant, to serve as her response to the
Motion. See [#22]. Accordingly, the court docketed the correspondence as Plaintiff’s Response,
see [#23], and Defendant thereafter filed a Reply, [#25]. The Motion to Dismiss is now ripe, and
the court has determined that oral argument would not materially assist in its disposition.

3

STANDARD OF REVIEW
I.

Rule 12(b)(1)
Defendant moves to dismiss the Complaint for lack of subject matter jurisdiction, arguing

that Plaintiff failed to exhaust her administrative remedies because she failed to participate in the
SBA’s investigation of her claims and the underlying administrative proceeding. See [#7].
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction.
See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23
F.3d 1576, 1580 (10th Cir. 1994)). “A court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974)
(emphasis added). As the party seeking to invoke the jurisdiction of this court, Plaintiff bears the
burden of alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985
(10th Cir. 2013) (“Since federal courts are courts of limited jurisdiction, we presume no
jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction”).
When a party’s Rule 12(b)(1) motion challenges the facts upon which subject matter is
based, “a district court may not presume the truthfulness of the complaint’s factual allegations.”
Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002) (citation and
quotations omitted). Instead, the court has “wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”
Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995). The court’s reliance on evidence outside the
pleadings in addressing such a motion does not, as a general rule, require conversion of the
motion to one for summary judgment under Rule 56. Id. (citation omitted).

4

II.

Rule 12(b)(6)
Defendant also moves to dismiss the Complaint under Federal Rule of Civil Procedure

12(b)(6), which authorizes a court to dismiss a pleading for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the
court must “accept as true all well-pleaded factual allegations … and view these allegations in
the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir.
2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However, a
plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009). Plausibility refers “to the scope of the allegations in a complaint: if they
are so general that they encompass a wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citation omitted). “The burden is on the
plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest’ that he or
she is entitled to relief.” Id. The ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the elements necessary to establish an
entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d
1149, 1160 (10th Cir. 2007).

5

III.

Pro se Litigants
Ms. Cirocco is currently proceeding pro se and filed her Response as a pro se litigant.

Accordingly, the court engages in a liberal review of the Response and holds it to a less stringent
standard than if it were drafted by an attorney. See, e.g., Trackwell v. United States Gov’t, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, the court does not afford the
Complaint the same level of review, because an attorney drafted and filed that pleading.
Ultimately, regardless of the standard of review applied, the court will not act as an advocate for
a pro se litigant, and will not assume that a plaintiff can prove facts that she has not alleged or
that a defendant has violated laws in ways that a plaintiff has not alleged. See Gallagher v.
Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (“[Court’s] role is not to act as [pro se litigant’s]
advocate”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“the court will
not construct arguments or theories for the plaintiff in the absence of any discussion of those
issues”) (internal citation omitted).
ANALYSIS
Title VII prohibits discrimination against any individual “with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” Harris v. Forklift Sys, Inc., 510 U.S. 17, 21 (1993)
(citing 42 U.S.C. § 2000e–2(a)(1)); Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.
2012); James v. James, 129 F. Supp. 3d 1212, 1221 (D. Colo. 2015). Title VII also makes it
unlawful to retaliate against an employee for opposing practices made unlawful by that statute.
See Hansen v. SkyWest Airlines, 844 F.3d 914, 92425 (10th Cir. 2016) (citing 42 U.S.C. §
2000e3(a)). The Equal Employment Opportunity Commission (“EEOC”) is vested with the
authority to enforce § 2000e–16(a). See 42 U.S.C. § 2000e–16(b).

6

The governing regulations require that an employee first attempt to resolve the matter by
filing an informal complaint that triggers counseling with an EEOC Counselor, 29 C.F.R. §
1614.105(a), and, if an informal resolution is not reached, the employee must then file a formal
complaint for a decision by an ALJ. See id. §§ 1614.105(d), 1614.106. Thereafter, the employee
may file a civil action in federal district court within 90 days of receiving notice of final agency
action on the employee’s formal complaint by the ALJ, or after 180 days from the filing of the
complaint if no final action has been taken by that time. 29 C.F.R. § 1614.407(a)-(b); 42 U.S.C.
§ 2000e–16(c) (stating more specifically that after 180 days from the filing of the formal
complaint, the complainant may file a civil action if aggrieved by the final disposition of his
complaint or by the failure to take final action on his complaint). “Although § 2000e–
16(c) permits an employee to file suit in federal court alleging a violation of § 2000e–16(a),”
federal employees must exhaust their administrative remedies before filing suit under Title VII.
Id. at § 2000e-16(c). Requiring a Title VII claimant to exhaust administrative remedies serves
the purpose of “giv[ing] the agency the information it needs to investigate and resolve the
dispute between the employee and the employer.” Khader v. Aspin, 1 F.3d 968, 971 (10th Cir.
1993) (citation omitted). Historically, the United States Court of Appeals for the Tenth Circuit
(“Tenth Circuit”) has 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. See,
e.g., Jones v. Runyon, 91 F.3d 1398, 1399 & n.1 (10th Cir. 1996).
Defendant argues that Plaintiff’s claims for sex discrimination and retaliation fail because
she did not exhaust her administrative remedies. Specifically, after filing the EEO Complaint in
February 2015, Plaintiff “failed to participate in its adjudication and ultimately abandoned her
administrative claims”; and Plaintiff “never pursued any administrative remedies,” with respect

7

to the retaliation claim. [#7 at 1]. Defendant further argues that Plaintiff’s Complaint is subject
to dismissal under Federal Rule of Civil Procedure 12(b)(6) because she alleges only in
conclusory terms that she exhausted her administrative remedies. [Id. at 2]. In support of these
arguments, Defendant attaches to her Motion the declaration of William L. Gery, an attorney in
the SBA’s Office of General Counsel, [#7-1], to which the following exhibits are attached: Ms.
Cirocco’s EEO Complaint, [#7-2]; a letter from the SBA Office of Diversity, Inclusion and Civil
Rights, [#7-3]; a copy of the EEO investigator’s Memorandum to File regarding the EEO
Complaint, [#7-4]; and an order of dismissal issued by the Administrative Law Judge (“ALJ”)
assigned to the matter, [#7-5].
I.

State of the Law
As an initial matter, the court considers whether Plaintiff’s failure to participate in the

EEOC investigation and proceeding before the ALJ implicates its jurisdiction. The court has an
independent obligation to consider its own subject matter jurisdiction, and, conversely, whether
an issue is actually one of jurisdiction. See Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct.
1235, 1240, 1244, 163 L.Ed.2d 1097 (2006); Image Software, Inc. v. Reynolds & Reynolds Co.,
459 F.3d 1044, 1048 (10th Cir. 2006). In arguing that the court lacks subject matter jurisdiction
as a result of Plaintiff’s failure to participate in the EEOC process, Defendant relies heavily on
an unpublished case from the Tenth Circuit, Douglas v. Norton, 167 F. App’x 698 (10th Cir.
2006), which in turn relies upon Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993). See [#7 at
5]. Curiously, Defendant omits any mention or discussion of the ambiguity in the law as
reflected in more recent, published decisions.3

3

Cf. Colo. RPC 3.3 (“(a) A lawyer shall not knowingly:… (2) fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel.”).
8

In Khader, the court stated that exhaustion is satisfied by a “[g]ood faith effort by the
employee to cooperate with the agency and the EEOC and to provide all relevant, available
information”; and advised that, conversely, “when a complainant refuses or fails to provide the
agency information sufficient to evaluate the merits of the claim, he or she cannot be deemed to
have exhausted administrative remedies.” Khader, 1 F.3d at 971 (finding plaintiff’s “angry
refusal to resubmit the requested materials,” which the agency received but ultimately lost,
contradicted any argument of good faith effort to comply with administrative procedures)
(citation and internal quotation marks omitted). Courts within the Tenth Circuit have routinely
cited to Khader to find that a claimant who begins an administrative procedure but abandons it to
file suit in federal court fails to exhaust her administrative remedies, and accordingly, is
jurisdictionally barred from suit. See, e.g., Laughter v. Gallup Indian Medical Center, 425 F.
App’x 683, 686 (10th Cir. 2011) (“Abandoning a complaint of discrimination filed with an
employing agency prior to the agency’s final action on the complaint constitutes a failure to
exhaust”) (citing Khader, 1 F.3d at 971).
In 2005, the Tenth Circuit reaffirmed its position, within the context of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., that a complainant’s
failure to cooperate in the EEO’s investigation of his charge constituted a failure to exhaust
administrative remedies that deprived the district court of subject matter jurisdiction. Shikles v.
Sprint/United Management Co., 426 F.3d 1304 (10th Cir. 2005). The court stated that “when 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. In turn, the Shikles court concluded that the failure to exhaust administrative

9

remedies was a jurisdictional bar to suit. In so holding, the court relied on precedent from two
other Circuits and several federal district courts. Id. at 1312 (citing Rann v. Chao, 346 F.3d 192,
196 (D.C. Cir. 2003) (dismissing case for lack of jurisdiction, finding that plaintiff was not only
uncooperative, the agency had dismissed the administrative complaint due to the lack of
cooperation) (further citations omitted). In its discussion, the court acknowledged both the
EEOC’s amicus curie brief that an employee’s failure to cooperate with the EEOC during the
administrative process does not preclude him from later proceeding against his employer in
court, id. at 1315-16, and the Supreme Court’s guidance that courts not read into Title VII and
the ADEA “procedural prerequisites to suit that are not expressly provided in the text of the
statute.” See id. at 1314.
The Seventh Circuit disagreed with Shikles the following year, and observed that the
statutory language contained no requirements to filing suit other than timely filing an EEOC
charge and timely filing suit following the right to sue letter:
There is...no basis in the language of Title VII for that position. The Tenth Circuit
acknowledged the Supreme Court’s “admonition that no requirements beyond
those in the statute should be imposed” ... but it imposed them anyway. So the
Tenth Circuit’s gloss on Title VII is confessedly adventurous, and this will
distress originalists. It is also in severe tension with the Supreme Court’s recent
observation, concerning the “exhaustion” provisions in both Title VII and the Age
Discrimination in Employment Act, that “neither of these provisions makes
reference to the concept of exhaustion, and neither is in any sense an exhaustion
provision.” Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2390, 165 L.Ed.2d
368 (2006). Title VII imposes procedural requirements as a precondition to
bringing a suit in federal court that is an original proceeding rather than one to
review agency action. Doe satisfied all those requirements. Title VII does not
incorporate anything like the full apparatus of exhaustion, an apparatus designed
as we have noted for cases in which judicial review of an adjudication or a rule is
sought.

10

Doe v. Oberweis Dairy, 456 F.3d 704, 710 (7th Cir. 2006). See also Mohamed v. 1st Class
Staffing, LLC, --- F. Supp. 3d ----, 2017 WL 6383611, at *10-11 (S.D. Ohio Dec. 14, 2017)
(discussing Shikles and Oberweis and applying the rationale articulated in Oberweis).
Almost ten years later, in 2015, the Tenth Circuit determined that Title VII’s verification
requirement that a claimant verify the charges against an employer is not a jurisdictional
requirement, but rather a non-jurisdictional condition precedent to suit that can be waived. Gad
v. Kansas State University, 787 F.3d 1032 (10th Cir. 2015). In so holding, the court relied on a
series of Supreme Court decisions, beginning with Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), in which the Court determined that the statutory
time limit for filing EEOC charges was subject to waiver and estoppel, and culminating
with United States v. Kwai Fun Wong, --- U.S. ----, 135 S.Ct. 1625, 1632, 191 L.Ed.2d 533
(2015), in which the Supreme Court advised that “procedural rules ... cabin a court’s power only
if Congress has ‘clearly state[d]’ as much.” Id. at 1037-40. From these cases the Gad court
distilled a key principle that “a Title VII statutory requirement’s classification as jurisdictional or
non-jurisdictional turns in large part on whether it is located in Title VII’s jurisdictional
subsection—42 U.S.C. § 2000e–5(f)(3).” Id. at 1038.
The Gad court cast doubt on the Khader and Shikles holdings that failure to exhaust
administrative remedies is a jurisdictional issue. However, Gad addressed only Title VII’s
verification requirement; and while the court observed that “the subsequent development of the
law underscores the limited force our earlier cases retain today,” it did not expressly overturn
Shikles. Id. at 1040. See Wickware v. Manville, 676 F. App’x 753, 767 & n.4 (10th Cir. 2017)
(acknowledging on review of an order of summary judgment that “Gad raises the question of
whether the district court’s jurisdictional rationale here remains legally viable,” but stating that

11

“even if exhaustion is not jurisdictional, it is a condition precedent to suit”); Hung Thai Pham v.
James, 630 F. App’x 735, 738 (10th Cir. 2015) (reviewing Rule 12(b)(1) dismissal of Title VII
complaint and declining to address whether exhaustion of administrative remedies is
jurisdictional on basis that defendant had “not waived or forfeited the issue,” noting that the
court may affirm dismissal “on a rationale different from the district court’s”); Arabalo v. City of
Denver, 625 F. App’x 851, 859-60 (10th Cir. 2015) (declining to decide the impact of Gad on
the Circuit’s “earlier decisions concluding we lacked subject-matter jurisdiction for other failures
to meet Title VII’s requirements,” agreeing that plaintiff was required to first assert certain
allegations to the EEOC as a condition precedent to suit, if not a jurisdictional prerequisite).
Since Gad, at least two of our sister courts have recognized the tension within the
applicable Circuit law. See Moreno v. Kansas City Steak Company, LLC, No. 17-cv-02029DDC-KGS, 2017 WL 2985748, at *3 (D. Kan. July 13, 2017); Dolin v. ThyssenKrupp Elevator
Corporation, 2:16-cv-00529-MCA-GBW, 2017 WL 1551990, at *3-4 (D.N.M. Mar. 31, 2017)
(putting aside the jurisdictional question and dismissing claim for plaintiff’s failure to assert it in
the EEOC charge). Like the Moreno court, while mindful of the questionable status of Shikles as
good law, “[t]his court is bound by the published Tenth Circuit decisions unless they have been
overruled by the Tenth Circuit sitting en banc or superseded by a contrary Supreme Court
decision.” Moreno, 2017 WL 2985748, at *3 (citations omitted). See, e.g., In re Smith, 10 F.3d
723, 724 (10th Cir. 1993) (citing United States v. Spedalieri, 910 F.2d 707, 710 n.3 (10th Cir.
1990) (a three-judge panel cannot overrule circuit precedent)) (further citation omitted).
Accordingly, despite its hesitation given the subsequent development of Supreme Court case
law, the court applies here the rule of law as stated in Shikles and Khader, and finds under a Rule

12

12(b)(1) standard of review that Plaintiff’s failure to cooperate in the EEOC investigation and
subsequent proceedings divests the court of subject matter jurisdiction.
II.

Application
A. Title VII Claim
The record before the court demonstrates that Ms. Cirocco filed the EEO Complaint on

February 3, 2015. [#7-2]. In the EEO Complaint, Ms. Cirocco alleged that in December 2014
Mr. Gribben discriminated against her in the FY14 performance on account of her sex, and
retaliated against her for “her efforts to comply with the Federal Managers’ Financial Integrity
Act of 1982 (FMFIA) and the ‘Standards for Internal Control in the Federal Government.’” [Id.
at 5, 6].

On February 26, 2015, the SBA issued to Plaintiff a Notice of Partial

Acceptance/Dismissal (the “Notice”). [#7-3]. The Notice explained that the SBA had accepted
for investigation a single issue: “Whether Complainant was discriminated against on the basis of
sex (Female), when on December 10, 2014, she learned that her FY2014 performance rating of
three (3) was submitted as a final rating to OHRS.” [Id. at 2]. The Notice also explained that
Plaintiff’s claim for retaliation was dismissed because Plaintiff had “failed to identify a specific
harm to a term, condition, or privilege of your employment where you suffered a direct, personal
deprivation at the hands of the employer on a basis covered by EEO statutes.” [Id. at 5].
The EEO assigned investigation of Ms. Cirocco’s claim to Ralph Gay, who contacted Ms.
Cirocco on May 28, 2015. [#7-4 at 2]. Mr. Gay wrote in a memorandum to file that Ms. Cirocco
advised she had taken leave pursuant to the Family Medical Leave Act and was not physically
well enough to participate in an interview. [Id.] Mr. Gay subsequently corresponded with Ms.
Cirocco on several occasions in an effort to schedule an interview, and wrote that Ms. Cirocco
ultimately informed him on August 24, 2015, that “it would be too stressful to be deposed and

13

that her doctor had not cleared her to be deposed.” [Id.] Mr. Gay thereafter “conclude[d] the
investigation without [Plaintiff’s] input,” [id. at 3], and, after the Report of Investigation was
issued, the parties sought a hearing before the ALJ. [#7-1 at ¶ 11].
On February 6, 2017, the ALJ held a telephonic conference in which Plaintiff and her
counsel participated, as did Mr. Gery. [#7-1 at ¶ 12]. The ALJ issued an order identifying the
single claim, stated above, and directing the parties to initiate discovery within twenty days and
complete discovery by May 12, 2017. [Id. at ¶¶ 13-14]. Mr. Gery thereafter sent initial
discovery requests to Plaintiff’s counsel; the SBA did not receive Plaintiff’s responses and
Plaintiff never served discovery on the SBA. [Id. at ¶¶ 15, 17-18]. On June 16, 2017, Mr. Gery
filed a Motion for Decision Without a Hearing, to which Plaintiff failed to respond. [Id. at ¶¶ 19,
20]. On June 29, 2017, Plaintiff initiated this action, and filed with the EEOC a Notice of
Commencement of Civil Suit. [Id. at ¶ 22]. On July 7, 2017, the ALJ issued an order dismissing
Plaintiff’s case before the EEOC on the grounds that Plaintiff had filed this lawsuit. [Id. at ¶ 23;
#7-5]. Based on this record, the court finds that Ms. Cirocco failed to cooperate with the EEOC
investigation, and thus failed to exhaust her administrative remedies.
The court notes that Ms. Cirocco filed a pro se Response, in which she references her
former counsel’s efforts to negotiate with opposing counsel and asserts a number of allegations
that relate to the merits of her claims. See [#23]. In relevant part, Ms. Cirocco states that her
“former attorney advised me to file my case in federal court after discussions with SBA
attorneys,” and that her attorney “did not believe the SBA attorney’s acted in good faith with him
[sic].” [Id. at 2]. Ms. Cirocco also details the retaliation she allegedly endured after she filed her
EEO Complaint. Finally, she represents that she is “out resourced at this point,” that her
“attorney has said it could cost up to $100k to pursue this case,” and “[s]ince I am only looking

14

to be made whole with the time I was forced to take in medical leave and I would like to retire
soon, I simply cannot proceed with this expense.” [Id. at 3]. Notably, however, Ms. Cirocco
does not address Defendant’s contention that she failed to participate both in Mr. Gay’s
investigation and the proceedings before the ALJ. As a pro se litigant, Ms. Cirocco is entitled to
a liberal construction of her Response; however, the court is not tasked with articulating the
pertinent arguments on her behalf. Neither legal training nor expertise is required for Plaintiff to
describe her version of events with respect to what transpired during the EEOC investigation and
before the ALJ.4 For these reasons, I find Plaintiff fails to demonstrate the court has subject
matter jurisdiction over her Title VII claim.5

4

Plaintiff attaches a copy of a Rule 11 Letter that her former attorney drafted. See [#23-2]. The
Letter is addressed to Defendant’s counsel and alleges several violations of Federal Rule of Civil
Procedure 11, including that Mr. Gery’s declaration “intentionally misleads the court and was
made in bad faith,” that Plaintiff’s former counsel and Mr. Gery “attempted in good-faith to
engage in constructive conversation starting in February 2017 to resolve Ms. Cirocco’s case,”
and that, as part of those efforts, “the parties stayed discovery among other deadlines in the EEO
process.” [Id. at 1]. Plaintiff’s former counsel also wrote that he had sent a separate email to
Defense counsel, on October 11, 2017, “detailing more facts with regard to Mr. Gery’s bad-faith
affidavit.” [Id.] In its Reply, Defendant contends that “Plaintiff has not complied with the ‘safe
harbor’ provision of Fed. R. Civ. P. 11(c)(2)— which requires that a motion for sanctions must
be served, but not filed or presented to the court until 21 days after service,” and thus the
allegations asserted in the Letter are not properly before the Court; Defendant additionally
contends, “[i]n any event, it is wholly without merit.” [#25 at 2 n.1]. If true, the allegations in
the Letter would suggest that Plaintiff’s participation in phases of the EEO proceeding ceased as
a result of her attorney’s agreement with SBA representatives and their efforts at reaching a
resolution, and, at a minimum, creates an issue as to whether Ms. Cirocco failed to cooperate
during the EEOC process, which is not properly resolved at the motion to dismiss phase.
However, Plaintiff fails to provide any account of what occurred prior to filing her lawsuit, and,
therefore, Defendant’s assertion that Plaintiff did not participate in the EEOC investigation
remains uncontroverted.
5

In so finding, the court must dismiss the action; it cannot then assume jurisdiction exists and
address Defendant’s Rule 12(b)(6) argument in the alternative. See Colorado Outfitters Ass’n v.
Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016).
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B. Retaliation Claim
Ms. Cirocco’s claim for retaliation claim similarly fails for lack of jurisdiction because it
was not included in the underlying EEOC proceedings. Administrative remedies generally must
be exhausted as to each discrete instance of discrimination or retaliation. Foster v. Ruhrpumpen,
Inc., 365 F.3d 1191, 1194–95 (10th Cir. 2004). It is undisputed that the SBA accepted only the
Title VII claim for investigation: “Whether Complainant was discriminated against on the basis
of sex (Female), when on December 10, 2014, she learned that her FY2014 performance rating
of three (3) was submitted as a final rating to OHRS.” [#7-3 at 2]. The SBA explained in the
Notice that Plaintiff’s claim for retaliation was dismissed because Plaintiff had “failed to identify
a specific harm to a term, condition, or privilege of your employment where you suffered a
direct, personal deprivation at the hands of the employer on a basis covered by EEO statutes.”
[Id. at 5]. The governing regulations permit the agency to dismiss some but not all of the claims
in a complaint, and advise that such a determination “is reviewable by an administrative judge if
a hearing is requested on the remainder of the complaint, but is not appealable until final action
is taken on the remainder of the complaint.” 29 C.F.R. § 1614.107(b). See id. at §§ 1614.401(a),
1614.402 (“a complainant may appeal an agency’s final action or dismissal of a complaint,” and
any such appeal must be filed “within 30 days of receipt of the dismissal, final action or
decision”). See also id. at § 1614.407(c)(d) (providing that a complainant may file an action in
federal court within 90 days of receipt of Commission’s final decision on appeal, or after 180
days from the date of filing an appeal with the Commission if there has been no final decision by
the Commission). Plaintiff does not allege that she sought review of the SBA’s decision from
the ALJ or further appealed the ALJ’s dismissal of the action; accordingly, Plaintiff cannot
pursue that retaliation claim in federal court.

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Additionally, in her Response, Plaintiff discusses the particulars of the retaliation she
experienced after she filed her EEO Complaint. See [#23 at 2-3]. However, federal courts lack
jurisdiction over Title VII claims that were not previously covered in a claim presented to the
EEOC, and Plaintiff does not allege that she filed either a supplement to her EEO Complaint or a
new EEO Complaint raising the allegations of retaliation that occurred subsequent to the filing of
her initial Complaint.

See Eisenhour v. Weber Cty., 744 F.3d 1220, 1227 (10th Cir.

2014) (“federal courts lack jurisdiction over incidents occurring after the filing of an EEOC
claim unless the plaintiff files a new EEOC claim or otherwise amends her original EEOC claim
to add the new incidents”) (citing 29 C.F.R. § 1601.12(b)). Each act of retaliation must be
separately exhausted, even when acts that post-date the EEO complaint reasonably relate to
others presented to the EEOC. Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003)
(noting this policy was particularly important where plaintiff claimed an ongoing pattern of
retaliation, as Ms. Cirocco claims here). Additionally, to the extent the retaliation claim is
ancillary to the Title VII claim, the court has jurisdiction to hear it only when the main
administrative charge is properly before the court. Jones v. Runyon, 91 F.3d at 1402 (citing
Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5th Cir. 1991) (“because one of plaintiff's
ADEA claims was untimely and the other had not been presented first to the EEOC, claims were
not properly before the court and retaliation charge had ‘no charge on which to attach itself,’
therefore, court had no jurisdiction over retaliation claim”). For these reasons, the court lacks
subject matter jurisdiction over Plaintiff’s retaliation claim.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that:
(1)

Defendant Linda McMahon’s Motion to Dismiss [#7] is GRANTED; and

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(2)

This action is DISMISSED without prejudice.

DATED: February 14, 2018

BY THE COURT:

s/Nina Y. Wang__________
United States Magistrate Judge

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