West v. New Mexico Taxation & Revenue Department (757 F. Supp. 2d 1065, 2010)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Defendants’ Motion for Summary Judgment, filed March 26, 2010 (Doc. 54); (ii) the Plaintiffs Motion for Summary Judgment and Supporting Memorandum, filed March 26, 2010 (Doc. 56); and (iii) Plaintiffs Amended Motion for Summary Judgment Amended Motion [sic], filed June 30, 2010 (Doc. 87). The Court held a hearing on August 30, 2010. The primary issues are: whether Plaintiff Ulrike West exhausted her administrative remedies; (ii) whether West has supported her retaliation claim under the First Amendment of the United States Constitution by presenting evidence establishing that she suffered a materially adverse employment action; (iii) whether West spoke about matters of public concern; and (iv) whether West suffered a materially adverse employment action under the Americans with Disabilities Act, 42 U.S.C. §§ 12201-12213 (“ADA”). The Court grants the Defendants’ Motion for Summary Judgment in part, dismissing with prejudice all of West’s retaliation claims. Having disposed of all of West’s federal claims, the Court remands her remaining state-law claims to the Third Judicial District Court, Dona Ana County, State of New Mexico.

FACTUAL BACKGROUND

West was a Taxation and Revenue Department (“TRD”) employee. After graduating from NMSU with a degree in accounting, see Defendants’ Memorandum in Support of Motion for Summary Judgment at 1, filed March 26, 2010 (Doc. 55) (“Defendants’ Motion”), on February 8, 1999, TRD hired West as an entry-level tax auditor, and, because of her consistently suecessful performance ratings, West was promoted to Senior Tax Auditor, see, e.g., Deposition of Janice McGee at 6:1-6 (taken February 22, 2010), filed July 5, 2010 (Doc. 90-1); Defendant New Mexico Taxation and Revenue Department’s Answer to Complaint for Civil Rights Violations ¶ 4, at 2, filed July 6, 2009 (Doc. 5); Defendant Phillip Salazar’s Answer to Complaint for Civil Rights Violations ¶ 4, at 2, filed July 6, 2009 (Doc. 6). From 1999 to 2006, Janice McGee was West’s Audit Supervisor. See, e.g., McGee Depo. at 6:10-11; Plaintiffs Memorandum in Support of Her Amended Motion for Summary Judgment ¶2, at 2, filed June 30, 2010 (Doc. 88) (“Plaintiffs Motion”) (setting forth this fact); Defendants’ Response ¶ 1, at 4 (admitting this fact).

In March 2003, doctors diagnosed West with Relapsing Remitting Multiple Sclerosis (“MS”). See, e.g., Affidavit of Ulrike M. West ¶ 7, at 2 (executed June 30, 2010), filed June 30, 2010 (Doc. 88-1); Plaintiffs Motion ¶ 3, at 2; Defendants’ Motion at 1. West made no secret of her diagnosis, and her supervisors at TRD were aware of her illness. See, e.g., West Aff. 1Í 7, at 2-3; Defendants’ Motion at 1. When West was initially diagnosed with MS, she made written requests of the Defendants to be exempted from trips out of state and to use of her own vehicle when driving within the state. See McGee Depo. at 27:22-28:15; Plaintiffs Motion ¶ 4, at 2 (setting forth this fact); Defendants’ Response ¶ 1, at 4 (not specifically controverting this fact). These requests were granted within two weeks without opposition. See, e.g., McGee Depo. at 28:14-18; id. at 37:14-23; Plaintiffs Motion ¶ 5, at 2 (setting forth this fact); Defendants’ Response ¶ 1, at 4 (not specifically controverting this fact). With the accommodation of being exempted from driving out-of-state and allowed to drive her personal vehicle, West was able “to do her job well.” McGee Depo. at 29:17-20. See Plaintiffs Motion ¶ 6, at 2 (setting forth this fact); Defendants’ Response ¶ 1, at 4 (not specifically controverting this fact).

Before March of 2006, West worked as a field auditor, which required her to travel approximately six weeks a year. See Deposition of Ulrike West at 54:12-15 (taken December 9, 2009), filed March 26, 2010 (Doc. 55-1). Because, in part, of the discomfort attendant the travel expected of West and of all field auditors, she was made an Auditor Reviewer in the Audit and Compliance Division of TRD in March 2006. See, e.g., McGee Depo. at 9:6-13; Affidavit of Phillip Salazar ¶ 3, at 2 (executed March 26, 2010), filed March 26, 2010 (Doc. 55-6); West Depo. at 52:18-54:11; Defendants’ Motion at 1. West worked in Las Cruces, New Mexico, and she was the only Auditor Reviewer not based in Albuquerque. See, e.g., Salazar Aff. ¶ 3, at 2; West Aff. ¶ 16, at 4; Defendants’ Motion at 1. Heidi Chowning was West’s immediate supervisor in West’s Auditor Reviewer role from March 2006 until mid-August 2008, and Laurie Cubbins was West’s immediate supervisor from mid-August 2008 through August 2009. See, e.g., Salazar Aff. ¶ 2, at 1; Defendants’ Motion ¶ 1, at 4. Chowning was located in Albuquerque while she supervised West. See, e.g., West Depo. at 55:13-56:8; Defendants’ Motion at 2.

As a result of becoming an Auditor Reviewer, West was no longer required to travel to perform audits. See, e.g., West Depo. at 52:18-53:4; id. at 54:3-11; Defendants’ Motion at 1. Instead, she revised audits that the field auditors from TRD’s Las Cruces office performed. See, e.g., West Depo. at 52:18-53:4; Defendants’ Motion at 1. West’s only travel requirement as an Auditor Reviewer was to travel to Albuquerque once or twice a year to attend training sessions or group meetings of the Auditor Reviewers. See, e.g., Salazar Aff. ¶ 9, at 4; West Depo. at 55:13-20; Defendants’ Motion at 1-2.

1. Events Relating to West’s Previously Settled Disability Discrimination Claim.

On approximately March 13, 2007, West requested ergonomic office furniture to accommodate her MS. See, e.g., Charge of Discrimination (dated December 11, 2007), filed July 5, 2010 (Doc. 90-5); Plaintiffs Motion ¶ 12, at 3 (setting forth this fact); Defendants’ Response ¶ 2, at 4 (not specifically controverting this fact). The furniture West requested was identical to furniture that TRD provided to other employees, none of whom is believed to have made an accommodation request or to have been disabled. Plaintiffs Amended Response to Defendants’ First Set of Interrogatories No. 2, at 3, filed July 17, 2010 (Doc. 96-7) (“Plaintiffs Interrogatories Answers”); Plaintiffs Motion ¶ 11, at 5 (setting forth this fact); Defendants’ Response ¶ 2, at 4 (not specifically controverting this fact). On approximately July 3, 2007, the Defendants conducted an ergonomic study of West’s workstation. See Salazar Aff. ¶ 5, at 2. On October 3, 2007, West sent an electronic mail to Mary Keener Beresford, Director of the New Mexico Governor’s Commission of Disability, asking for clarification on the proper procedure for requesting an accommodation and expressing her frustration over the Defendants’ response to her request for furniture. See Electronic Mail from Ulrike West to Mary Keener Beresford (dated October 2, 2007), filed July 5, 2010 (Doc. 90-2); West Aff. ¶ 7, at 3. On September 12, 2007, TRD ordered West a chair. See, e.g., McGee Depo. at 92:20-22; Plaintiffs Motion ¶ 14, at 4 (setting forth this fact); Defendants’ Response ¶ 2, at 4 (not specifically controverting this fact). On November 15, 2007, West sent an electronic mail to Lynette Trujillo, Human Resources Bureau Chief, and Patricia Jauregui, Human Resources Supervisor, stating: “I hope you can understand that I am running out of patience and that I will take this to the next step if necessary.” Plaintiffs Interrogatories Answers No. 3, at 7. See Plaintiffs Motion ¶ 19, at 5 (setting forth this fact); Defendants’ Response ¶ 3, at 4-5 (not specifically controverting this fact). Jauregui was concerned about West’s complaints of discrimination. See, e.g., Jauregui Depo. at 31:25-32:1; Plaintiffs Response ¶ 3, at 8. On November 16, 2007, West sent an electronic mail to Chowning stating: “And just so you know, I do feel discriminated against; not from you personally, but from the Department.” Plaintiffs Interrogatories Answers No. 3, at 7. See Plaintiffs Motion ¶20, at 5 (setting forth this fact); Defendants’ Response ¶ 3, at 4-5 (not specifically controverting this fact).

West filed a Charge of Discrimination (453-2008-00310) with the Equal Employment Opportunity Commission (“EEOC”) on December 11, 2007, complaining that her request for ergonomic office furniture remained unfulfilled. See Doc. 90-5. TRD received the EEOC Charge at the end of December 2007. See, e.g., Plaintiffs Interrogatories Answers No. 2, at 3-4; Plaintiffs Motion ¶ 23, at 5 (setting forth this fact); Defendants’ Response ¶ 3, at 4-5 (not specifically controverting this fact). In January 2008, Chowning forgot to approve West’s request for leave, forward information to her, and to call her for meetings, which Chowning had not done previously. See, e.g., Plaintiffs Interrogatories Answers No. 2, at 3; Plaintiffs Motion ¶22, at 5 (setting forth this fact); Defendants’ Response ¶ 4, at 5 (not specifically controverting this fact). On October 2, 2008, the EEOC determined that there was reasonable cause to believe TRD discriminated against West. See, e.g., EEOC Determination at 1 (dated October 2, 2008), filed July 5, 2010 (Doc. 90-7); Plaintiffs Motion ¶ 31, at 7 (setting forth this fact); Defendants’ Response ¶ 7, at 6 (not specifically controverting this fact). After the EEOC’s conciliation efforts proved unavailing, the United States and TRD reached a settlement agreement regarding West’s failure-to-accommodate claim based on TRD not providing her ergonomic office furniture. See Settlement Agreement Between The United States of America and the New Mexico Taxation and Revenue Department under the Americans with Disabilities Act D J # 205-49-22, filed July 5, 2010 (Doc. 90-9) (“Settlement Agreement”). In accordance with the Settlement Agreement, West released all of her claims against TRD. See Settlement Agreement at 2. The substance of West’s failure-to-accommodate claim in that EEOC charge is not the subject of this suit and is not before the Court, but West argues that the Defendants retaliated against her on the basis of these prior claims. See Plaintiffs Interrogatories Answers Nos. 2-3, at 3-8.

2. Events Relating to West’s Request to Drive Her Personal Vehicle and Be Reimbursed for Milage.

In 2007, to curtail liability and to reduce costs by requiring employees use TRD’s fleet vehicles, TRD adopted a new policy prohibiting milage reimbursement for driving personal vehicles. See, e.g., McGee Depo. at 30:4-12; Salazar Aff. ¶ 8, at 3; Defendants’ Motion at 2. Even under the new policy, West could drive her personal vehicle provided that she showed a valid driver’s license, proof of insurance, and agreed not to be reimbursed for mileage. See, e.g., McGee Depo. at 30:4-12; Salazar Aff. ¶ 8, at 3; Plaintiffs Motion ¶ 7, at 3 (setting forth this fact); Defendants’ Motion at 2 (setting forth this fact).

On October 11, 2007, West made a request for an accommodation “to drive [her] private vehicle and to receive mileage reimbursement when required to travel to locations outside of Las Cruces, NM.” TRD Reasonable Accommodation Request Form at 4 (dated October 11, 2007), filed March 26, 2010 (Doc. 55-5) (“Milage Reimbursement Request”). See Affidavit of Patricia Jauregui ¶ 2, at 1 (executed March 26, 2010), filed March 26, 2010 (Doc. 55-5); Defendants’ Motion ¶2, at 4 (“On October 11, 2007 West made a request for an accommodation that she be reimbursed for mileage incurred while traveling in her personal vehicle.”); Plaintiffs Motion ¶ 16, at 4 (“Plaintiff made an ADA request for permission to drive her own vehicle on business trips”). West -wrote:

My MS mainly impairs the right side of my body, but when driving a car, it affects greatly my lower back, my neck, and my shoulders. Prolonged sitting in uncomfortable or low seats results in excruciating pain and impairing fatigue. My private vehicle was purchased to fit my body and it has appropriate adjustment functions to largely avoid pain and fatigue.

Milage Reimbursement Request at 4. On October 18, 2007, Trujillo sent a letter to Dr. Teresa Gomez, West’s health care provider, asking Dr. Gomez to complete an Americans with Disabilities Act (“ADA”) Physician’s Statement form. See, e.g., Letter from Lynette Trujillo to Teresa Gomez at 6 (dated October 18, 2007), filed March 26, 2010 (Doc. 55-5); Jauregui Aff. ¶ 3, at 1.

On January 31, 2008, Dr. Gomez returned the ADA Physician’s Statement with facially contradictory information, stating that West could not travel long distances with or without accommodation, but that she could travel long distances. See, e.g., Jauregui Aff. ¶4, at 2; West Depo. at 176:6-8; Defendant’s Motion ¶ 3, at 4. In response to the prompt, “[l]ist the essential job function(s) the employee/applicant is unable to perform, with or without a reasonable accommodation,” Dr. Gomez wrote, “[tjraveling long distances.” Completed ADA Physician’s Statement at 10, filed March 26, 2010 (Doc. 55-5). In response to the next prompt, “[l]ist the essential job function(s) the employee/applicant is able to perform with a reasonable accommodation, and for each function you list, specify the accommodation(s) you recommend to enable the employee/applicant to perform the function,” Dr. Gomez wrote “[tjraveling long distances — patient may use her personal vehicle.” Completed ADA Physician’s Statement at 10.

One day later, on February 1, 2008, TRD wrote to Dr. Gomez, copying West, seeking clarification of the contradictory information in the ADA Physician’s Statement. See, e.g., Letter from Patricia Jauregui to Teresa Gomez at 12 (dated February 1, 2008), filed March 26, 2010 (Doc. 55-5); Jauregui Aff. ¶ 5, at 2; Plaintiffs Motion ¶ 24, at 6 (setting forth this fact). The letter stated: “Your statement indicates that [West] can not travel long distances. It goes on further to say that she can travel long distances using her own vehicle. Can you provide clarification to your statement?” Letter from Patricia Jauregui to Teresa Gomez at 12.

Having received no further information from Dr. Gomez or West, on March 10, 2008, TRD contacted West and informed her that her physician had not yet responded and that TRD would attempt to contact her doctor’s office again. See, e.g., Jauregui Aff. ¶ 7, at 2; Defendants’ Motion ¶ 4, at 4. TRD left three separate messages for Dr. Gomez on March 10, March 14, and March 25, 2008. See, e.g., Jauregui Aff. ¶ 7, at 2; Defendants’ Motion ¶ 4, at 4. TRD then sent West a letter on March 27, 2008, asking her to provide supplemental clarifying information regarding her milage reimbursement request by April 8, 2008. See, e.g., Letter from Patricia Jauregui to Ulrike West at 13 (dated March 27, 2008), filed March 26, 2010 (Doc. 55-5); Jauregui Aff. ¶ 8, at 2; Plaintiffs Motion ¶ 25, at 6. On April 2, 2008 West provided supplemental clarifying information from her medical provider, stating:

Ms. Ulrike M. West is able to travel long distance in a vehicle which is able to provide accommodations for her disabilities. She also needs to be able to take stretch breaks at regular intervals. Recommendations for reasonable accommodations are as follows:

a) Use of personal vehicle (GMC Suburban — Regency Conversion), which is equipped with electronically fully adjustable bucket front seats; adjustable distance, heights, angle, backrest, and lumbar support; which provides Ms. West the necessary support for her legs and her spine to reduce the exacerbation of her symptoms. The vehicle also has the correct heights to allow Ms. West to enter and exit the vehicle with the least amount of effort and pain. Or

b) Ensure the availability of a properly equipped State vehicle of the correct heights with electronic adjustability function as described for her personal vehicle under a). Or

c) Provide a comfortable vehicle and a driver for Ms. West for long distance travel.

Additional Clarification to the ADA Physician’s Statement for Ulrike M. West Requested by the Human Resources Bureau of the New Mexico Taxation and Revenue Department in a Letter Dated March 27, 2008, at 15 (dated April 2, 2008), filed March 26, 2010 (Doc. 55-5) (“Additional Clarification”). See Defendants’ Motion ¶ 4, at 4.

Thus, through no fault on the part of TRD, the additional clarifying information TRD sought from West’s health care provider was not ascertained until April 2, 2008. Defendants’ Motion ¶ 4, at 4. On April 3, 2008, West filed her Charge of Discrimination (453-2008-00868) with the EEOC in which she alleged, in part, that the Defendants had harassed and retaliated against her on March 27, 2008, because of her earlier charge of discrimination (453-2008-00310). See Charge of Discrimination (dated April 3, 2008), filed July 5, 2007 (Doc. 90-2) (“EEOC Charge”); Plaintiffs Motion ¶ 26, at 6 (setting forth this fact); Defendants’ Response ¶ (not specifically controverting this fact).

On April 8, 2008, Jauregui wrote to West:

It appears as though traveling is sporadic and may only happen once or twice a year. Therefore, the accommodation should be handled through your supervisor on a case by case basis depending on the situation either by allowing you to take your private vehicle or by allowing you to ride with someone to the destination. Both of these were recommendations made by your physician.

Letter from Patricia Jauregui to Ulrike West at 16 (dated April 8, 2008), filed March 26, 2010 (Doc. 55-5). See, e.g., Jauregui Aff. ¶¶ 12-13, at 3; Salazar Aff. ¶ 9, 3-4; West Depo. at 108:4-7. McGee testified that, in her opinion, she does not believe the amount of travel required of an employee makes a difference in whether they are granted an accommodation. See, e.g., McGee Depo. at 5-10; Plaintiffs Motion ¶ 11, at 3 (setting forth this fact); Defendants’ Response ¶ 1, at 4 (not specifically controverting this fact).

West did not miss any work related travel while the Defendants were awaiting the additional information from West’s physician. See, e.g., Salazar Aff. ¶ 10, at 4; Defendants’ Answers to Plaintiffs First Set of Interrogatories and Requests for Production No. 3, at 4, filed July 17, 2010 (Doe. 96-6); Defendants’ Response ¶ 5, at 6. After TRD informed West that they would review her travel requests on a ease-by-case basis, West did not travel again before leaving TRD. See Defendant’s Reply ¶ 5, at 3.

3. Events Relating to West’s Request for a Part-Time Schedule.

In July 2008, West made another request for an accommodation. On July 29, 2008, West requested that her permanent full-time position be converted to a permanent, part-time position, and that she work only five hours a day for five days a week. See, e.g., TRD Reasonable Accommodation Request/Medical Release Form at 1 (dated July 24, 2008), filed July 30, 2010 (Doc. 99-1) (“Part-Time Schedule Request”); Salazar Aff. ¶ 11, at 4; Defendants’ Motion ¶ 6, at 5. She requested that she be given additional leave without pay of twenty hours per week for an “undetermined length of time, due to [her] inability to perform [her] job duties for longer than 20 hours per week.” Part-Time Schedule Request at 1. See, e.g., Defendants’ Motion ¶ 6, at 5 (setting forth this fact); Plaintiffs Response ¶ 6, at 6 (admitting this fact). She explained that she could “only work as a tax audit reviewer for an absolute maximum of five hours per day with a Monday through Thursday schedule.” Part-Time Schedule Request at 1. See, e.g., Plaintiffs Motion ¶ 28, at 6 (setting forth this fact); Defendants’ Response ¶ 6, at 6 (not specifically controverting this fact). West requested that TRD provide this schedule until she was “rehabilitated for another job or until [she] resigned] from this position, whichever c[ame] first.” Part-Time Schedule Request at 2. At the time that West made her second request, she had been permitted to work a twenty-hour week, part-time schedule for approximately six months on orders from her worker’s compensation medical provider after filing a workers compensation claim on October 25, 2007. See Complaint ¶ 20, at 4 (setting forth this fact); Defendants’ Motion ¶ 7, at 5 (setting forth this fact).

West’s request for a part-time schedule went to the Director of the Audit and Compliance Division, Philip Salazar, for determination. After Salazar received West’s request to have her position converted to a permanent part-time position, he considered the operational needs of the Agency for Auditor Reviewers to review the audits that field auditors prepare. See, e.g., Salazar Aff. ¶¶ 11-13, at 4; Defendants’ Motion ¶ 8, at 5. Salazar could not justify converting a full-time permanent position to a permanent part-time position because of the operational needs of the agency for a full-time Auditor Reviewer. See, e.g., Salazar Aff. ¶¶ 11 -13, at 4; Defendants’ Motion ¶ 8, at 5. He decided that TRD could not afford to lose a full-time position by granting her request. See, e.g., Salazar Aff. ¶¶ 11-13, at 4; Defendants’ Motion ¶8, at 5. Salazar concluded that granting West’s request would place an undue burden upon the remaining Auditor Reviewers and, in the financial climate that TRD faced in 2009, it would be very difficult to recover a full-time Auditor Reviewer position if TRD were to relinquish West’s full-time position to permanent part-time status. See, e.g., Salazar Aff. ¶¶ 12-13, at 4; Defendants’ Motion ¶ 8, at 5.

Salazar wrote West on September 15, 2008, informing her that her requested part-time schedule “does not result in [her] being able to perform the essential functions of the job and is therefore denied as an accommodation,” but offering her a temporary three-month part-time schedule, at the end of which West’s part-time status might be renewed depending on “critical operational needs of the department and information provided by [West] through [her] physician regarding [her] continued need to be on an abbreviated schedule.” Letter from Salazar to West at 12 (dated September 15, 2008). See, e.g., Salazar Aff. ¶ 16, at 4; West Depo. at 108-118; Defendants’ Motion ¶ 9, at 5 (setting forth this fact); Plaintiffs Response ¶ 9, at 6 (admitting this fact); Plaintiffs Motion ¶ 29, at 7 (setting forth this fact).

Within three weeks of being notified of Salazar’s decision, West’s treating physician determined that she could no longer hold gainful employment. See Physician Form (October 6, 2008), filed March 26, 2010 (Doc. 55-4). On October 8, 2008, her treating physician, who wrote that her MS condition precluded “gainful employment,” advised West not to work at all. Physician Form. She left work after that note and never returned. See Defendants’ Motion ¶ 11, at 6 (setting forth this fact); Plaintiffs Response ¶ 11, at 7 (admitting West “became unable to work in the foreseeable future”).

PROCEDURAL BACKGROUND

West filed her Complaint in the Third Judicial District Court, Dona Ana County, New Mexico as No. CV-2009-834 on April 2, 2009. See Complaint for Civil Rights Violations, Exhibit to Notice of Removal, filed June 26, 2009 (Doc. 1) (“Complaint”). West completed service of process on the Defendants on June 15, 2009, and on June 26, 2009 the Defendants removed the case to the United States District Court for the District of New Mexico. See Notice of Removal, filed June 26, 2009 (Doc. 1).

West’s Complaint raises several claims. In Count I, West alleges that TRD retaliated against her, in violation of the ADA, for having filed a charge of discrimination against TRD with the EEOC. In Count II, West brings a hostile work environment claim under the ADA, contending that the alleged “retaliation adversely affected the terms, conditions and privileges of employment enjoyed by Plaintiff.” Complaint ¶ 35, at 6. Count III, West’s First Amendment claim, brought under 42 U.S.C. § 1983, is three lines long. It states: “Defendants treated Plaintiff less favorably as stated herein in retaliation for Plaintiffs free expression of opposition to discrimination in violation of 42 U.S.C. § 1983, First Amendment to the U.S. Constitution and the Public Policy of the State of New Mexico.” Complaint ¶ 38, at 7. In Claims TV to VII, West seeks damages for negligent supervision, breach of implied contact, breach of implied covenant of good faith and fair dealing, and for promissory estoppel.

The parties filed cross motions for summary judgment. The Defendants move the Court, under rule 56 of the Federal Rules of Civil Procedure, for an order entering summary judgment on behalf of the Defendants and dismissing the Complaint with prejudice. The Defendants filed contemporaneously with their March 26, 2010 motion for summary judgment a memorandum in support of this motion. The Defendants also seek their costs of suit. The Defendants argue that West cannot establish a case of retaliation under the ADA, because her requests for accommodations were granted and she was not subjected to an adverse employment action, and because she cannot show a causal connection between her filing a charge of discrimination and the Defendants’ responses to her requests for accommodations. The Defendants also argue that West’s FirsWAmendment retaliation claim fails, because she cannot show that her disability discrimination complaints were speech made pursuant to her official duties or was a matter of public concern, and that Salazar enjoys qualified immunity.

In response to the Defendants’ Motion for Summary Judgment, West argues that genuine issues of material fact exist and that she is, therefore, entitled to a trial on all of her claims. Response to Defendants’ Motion for Summary Judgment Memorandum, filed July 16, 2010 (Doc. 94) (“Plaintiffs Response”). On July 30, 2010, the Defendants filed their Reply. The Defendants maintain that West has failed to identify a material disputed fact precluding summary judgment, and that the Defendants are entitled to entry of summary judgment in their favor and dismissal of West’s Complaint.

In West’s Amended Motion for Summary Judgment, she asserts that summary judgment is proper on all of her claims because of the absence of disputed material facts. She argues that Defendants’ delay in responding to her request for mileage reimbursement was unjustified and shows their explanation was pretextual, and the Defendants offered different justifications for their response to West’s request for a part-time schedule, also showing pretext. West further argues that filing a complaint with a party not in her chain of command is not speech pursuant to her official duties, that the Defendants’ discrimination against her is a matter of public concern, and that Salazar was indifferent to her clearly established constitutional rights. The Defendants responded to West’s motion for summary judgment by largely restating the arguments made in their motion. See Defendant New Mexico Taxation & Revenue Department’s Response in Opposition to Plaintiffs Amended Motion for Summary Judgment and Memorandum of Law in Support Thereof, filed July 23, 2010 (Doc. 97) (“Defendants’ Response”). West replied, resting on her earlier arguments, but submitting additional exhibits. See Plaintiffs Reply in Support of Her Amended Motion for Summary Judgment, filed August 9, 2010 (Doc. 101).

At the August 30, 2010 hearing, the Defendants argued that West failed to exhaust her administrative remedies for her hostile work environment claim. See Tr. at 11: 18-21 (Maynes). The Court allowed the parties to file supplemental briefing on the matter. On October 14, 2010, West filed a Letter/Reply, arguing that: (i) her hostile work environment claim was administratively exhausted because her hostile work environment claim related to the events in her EEOC Charge; and (ii) that the Defendants’ waived this argument. West invited the Court to apply a heightened tangible employment action standard to her retaliation claims. See Plaintiffs Supplementary Letter/Reply, filed October 14, 2010 (Doc. 110) (“Plaintiffs Letter/Reply”). On October 20, 2010, The Defendants filed a Letter/Reply arguing: (i) that West failed to exhaust her administrative remedies, because the EEOC Charge did not include a hostile work environment claim in name or substance; (ii) that West invoked an abrogated standard; and (iii) that West could not show a tangible employment action.

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”) (internal quotes omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” FecLR.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING EXHAUSTION OF ADMINISTRATIVE REMEDIES

“[T]he ADA requires a plaintiff to exhaust her administrative remedies before filing suit.” Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir.2007). “The exhaustion of administrative remedies is a jurisdictional prerequisite to instituting an action in federal court.” Showalter v. Weinstein, 233 Fed.Appx. 803, 804 (10th Cir.2007) (citing Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir.1997); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996)). The failure to exhaust administrative remedies in a timely fashion, however, is not jurisdictional, although it may bar a plaintiff from bringing his or her claims in federal court. See Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th Cir.2002) (noting that “a failure to timely file an administrative charge ... is not jurisdictional, [but that] a failure to file an administrative charge at all ... is a jurisdictional bar”). Failing to exhaust administrative remedies does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

1. Title VII Precedent Applies to ADA Cases.

The ADA incorporates Title VII’s EEOC enforcement procedures. See 42 U.S.C. § 12117(a); Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 n. 4 (10th Cir.2007) (“Because the ADA’s anti-retaliation provision, 42 U.S.C. § 12203(a), contains essentially the same language as Title VII’s provision, 42 U.S.C. § 2000e-3(a), [Title VII precedent] applies in the ADA context as well.”). Similarly, “[t]he Rehabilitation Act expressly incorporates and adopts the employment discrimination standards contained in Title I of the Americans with Disabilities Act.” Detterline v. Salazar, 320 Fed.Appx. 853, 856 (10th Cir.2009). Because of this relationship, “decisions under both Acts apply interchangeably to our analysis.” Detterline v. Salazar, 320 Fed.Appx. at 856 (quoting Vidacak v. Potter, 81 Fed.Appx. 721, 723 (10th Cir.2003)).

2. The 300-Day Filing Time Limit.

Before commencing an ADA action in federal court in a state with an agency empowered to investigate employment discrimination, like the New Mexico Department of Labor, Human Rights Division, “a plaintiff first must exhaust administrative remedies by filing a charge of discrimination with the EEOC within 300 days of the allegedly unlawful employment practice.” Castaldo v. Denver Public Sch., 276 Fed.Appx. 839, 841 (10th Cir.2008) (citing 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a); Proctor v. United Parcel Serv., 502 F.3d at 1206 & n. 3 (explaining filing times in deferral states, which are those states that have “an agency empowered to investigate employment discrimination”)). To exhaust administrative remedies, an individual claimant must: (i) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge; and (ii) receive notice of the right to sue. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999); 42 U.S.C. §§ 2000e-5(b), (c), (e), (f)(1). “[A] plaintiff normally may not bring a[n] ... action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d at 1321.

To be timely, a plaintiff must file the charge with the EEOC within 180 days or with a state agency within 300 days of the complained-of conduct. See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d at 1327; Gunnell v. Utah Valley St. Coll, 152 F.3d 1253, 1260 n. 3 (10th Cir.1998); 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.13 (1998). Once an individual receives notice of the right to sue, he or she has ninety days in which to file suit. See 42 U.S.C. § 2000e — 5(f)(1).

3. The Exhaustion of Administrative Remedies Is a Jurisdictional Requirement.

In the United States Court of Appeals of the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to filing an ADA action. See Jones v. United Parcel Serv., Inc., 502 F.3d at 1183; Alcivar v. Wynne, 268 Fed.Appx. 749, 753 (10th Cir.2008) (“The Tenth Circuit has consistently held that ‘exhaustion ... is a jurisdictional prerequisite to suit under Title VII — not merely a condition precedent to suit.’ ”) (quoting Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005)); Ransom v. U.S. Postal Service, 170 Fed.Appx. 525, 527 & n. 2 (10th Cir.2006) (“[A] claimant under the Rehabilitation Act ... is required to present her claims to the appropriate EEO agency before filing suit.”) (citing 5 U.S.C. § 7702(a)(2); Wells v. Shalala, 228 F.3d 1137, 1142-43 (10th Cir.2000)); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996) (“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.”); Romero v. Union Pac. R.R., 615 F.2d 1303, 1303 (10th Cir.1980).

Without such a filing, federal courts lack subject-matter jurisdiction to entertain discrimination claims under that statutes, and a rule 12(b)(1) motion to dismiss is procedurally proper. See Seymore v. Shawver & Sons, Inc., Ill F.3d 794, 799 (10th Cir.1997); Carmody v. SCI Colo. Funeral Servs., Inc., 76 F.Supp.2d 1101, 1103-04 (D.Colo.1999). When a defendant brings a motion to dismiss for lack of subject-matter jurisdiction under rule 12(b)(1) based on a plaintiffs failure to exhaust administrative remedies in a timely manner, a court “analyze[s] th[e] case under 12(b)(6) of the Federal Rules of Civil Procedure,” unless a court considers materials outside the complaint, in which case “it should ... treat[ ] [the] motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.” Douglas v. Norton, 167 Fed. Appx. 698, 704-05 (10th Cir.2006).

a. The Scope of the EEOC Charge.

“A plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). ‘We liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. “This more lenient pleading standard contemplates the fact that administrative charges of unlawful employment practices are regularly filled out by employees who do not have the benefit of counsel.” Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 667 (10th Cir.2004). “[T]he charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186. “The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box.” Jones v. United Parcel Serv., Inc., 502 F.3d at 1186 (citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir.1998)). “The presumption may be rebutted, however, if the text of the charge clearly sets forth the basis of the claim.” Jones v. United Parcel Service, Inc., 502 F.3d at 1186.

Liberally construing EEOC complaints requires courts to look beyond the formalities of the complaint form. The Tenth Circuit held in Jones v. United Parcel Service, Inc. that, while Jones checked “no” to the questions, “[d]o you believe that the employer regarded you as disabled?” and “did you advise you employer that you required an accommodation?”, Jones’ allegations that UPS interfered with a medical evaluation to ensure Jones was not released to return to work, that UPS did not permit Jones to return to work despite releases from two doctors, and that Jones checked a box for retaliation, should have triggered an administrative investigation into whether UPS discriminated against Jones because he was disabled and whether UPS retaliated against him. 502 F.3d at 1182, 1186-87. Because Jones checked “no” in response to the question whether he advised his employer he needed accommodation and because the text of the charge did not contain facts that would prompt an investigation of such a claim, the Tenth Circuit held that Jones did not exhaust his administrative remedies with respect to his failure-to-accommodate claim. 502 F.3d at 1187.

In Duncan v. Manager Department of Safety, 397 F.3d 1300 (10th Cir.2005), a former police officer filed an EEOC charge against the city on April 14, 1998 and checked the box for retaliation. See 397 F.3d at 1314. The officer alleged a series of acts before the date the EEOC charge was filed that were supposedly in retaliation for her use of the complaint process. See 397 F.3d at 1314. The Tenth Circuit held that none of the actions the officer alleged in her EEOC charge were sufficient to support a retaliation claim. See 397 F.3d at 1314. The Tenth Circuit noted that her allegation in her complaint that in August of 1998 — months after filing her EEOC complaint — she was transferred to the police academy in retaliation for filing her original EEOC charge was severe enough to support a retaliation claim. See 397 F.3d at 1314. The Tenth Circuit noted, however, that, because the officer did not file an additional EEOC charge alleging that specific retaliatory act, she did not exhaust her administrative remedies and thus the district court correctly dismissed her claim for retaliation. See 397 F.3d at 1314.

In Annett v. University of Kansas, 371 F.3d 1233 (10th Cir.2004), the Tenth Circuit declined to consider Annett’s contention that receiving the position of adjunct lecturer versus adjunct professor constituted a retaliation action, because she failed to exhaust her administrative remedies. See id. at 1238. The Tenth Circuit considered Annett’s charge of discrimination filed September 6, 2000 and her “complaint narrative” submitted on May 31, 2000, and found no reference to a distinction between “lecturer” and “professor” as probative of discrimination or retaliation. 371 F.3d at 1238. Annett’s complaint stated: “I was given an Adjunct faculty position, but no Principal Investigator status, which prevents me from obtaining grants.” 371 F.3d at 1238. Annett’s complaint narrative stated: “My own position as an Adjunct Faculty member at KU was downgraded to prevent me from submitting grants that could act as an alternative source of income.” 371 F.3d at 1238. The Tenth Circuit held that it could not conclude “that this sentence represents the distinction between being appointed an adjunct lecturer versus an adjunct professor in 1999 or 2000.” 371 F.3d at 1238. Furthermore, the Tenth Circuit noted that it “lack[ed] jurisdiction to review Title VII claims that are not part of a timely-filed EEOC charge,” including actions that occurred after the charge was filed. 371 F.3d at 1238 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799).

Previously, we would proceed to examine whether the alleged employment action, provided it occurred after the filing of the EEOC charge, was “like or reasonably related to the allegations of the EEOC charge.” However, our recent holding in Martinez v. Potter, has foreclosed this line of inquiry. In Martinez, we abrogated the continuing violation exception to our jurisdictional requirements to allege a claim of retaliation and held that “unexhausted claims involving discrete employment actions are no longer viable.” In so doing, we relied on National R.R. Passenger Corp. v. Morgan, which concluded that each discrete retaliatory action constitutes its own unlawful employment practice for which administrative remedies must be exhausted, and we applied Morgan to incidents occurring after an employee’s filing of an EEO complaint, and we applied Morgan to incidents occurring after an employee’s filing of an EEO complaint.

Annett v. Univ. of Kansas, 371 F.3d at 1238 (internal quotations and citations omitted). Thus, the Tenth Circuit dismissed Annett’s claim for failure to exhaust administrative remedies.

b. Each Discrete Incident Must be Exhausted.

Before 2002, under the “continuing violation” theory, the Tenth Circuit recognized a limited exception to the exhaustion requirement “when the unexhausted claim is for discrimination like or reasonably related to the allegations of the EEOC charge.” Simms v. Oklahoma ex rel. Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d at 1327 (internal citations and quotations omitted). The Tenth Circuit “construed the ‘reasonably related’ exception to include most retaliatory acts subsequent to an EEOC filing.” 165 F.3d at 1327 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799). In Martinez v. Potter, 347 F.3d 1208 (2003), however, the Tenth Circuit noted that the “Supreme Court’s recent pronouncement in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), has effected fundamental changes to the doctrine allowing administratively unexhausted claims in Title VII actions.” 347 F.3d at 1210. The Tenth Circuit’s “decisions have unambiguously recognized Morgan as rejecting application of the ‘continuing violation’ theory.” Martinez v. Potter, 347 F.3d at 1211 (citing Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir.2003)). The Tenth Circuit stated:

We agree with the government that such unexhausted claims involving discrete employment actions are no longer viable. Morgan abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with the teaching that each discrete incident of such treatment constitutes its own unlawful employment practice for which administrative remedies must be exhausted.

347 F.3d at 1210 (internal citations and quotations omitted).

Thus, under National Railroad Passenger Corp. v. Morgan, each discrete act of discrimination must be administratively exhausted. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114, 122 S.Ct. 2061 (internal citations and quotations omitted). In National Railroad Passenger Corp. v. Morgan, this rule applied to bar a plaintiff from suing on claims for which no administrative remedy had been sought when those incidents of which the plaintiff complained occurred more than 300 days before the filing of the plaintiffs EEO complaint. See Martinez v. Potter, 347 F.3d at 1210. “The rule is equally applicable, however, to discrete claims based on incidents occurring after the filing of Plaintiffs EEO complaint.” Martinez v. Potter, 347 F.3d at 1210-11. The Tenth Circuit has stated: “Our decisions have unambiguously recognized Morgan as rejecting application of the continuing violation theory.” Martinez v. Potter, 347 F.3d at 1211 (internal quotations omitted).

In Jones v. United Parcel Service, the Tenth Circuit explained how the requirement that plaintiffs must exhaust each discrete claims works in conjunction with courts liberally construing EEOC charges. 502 F.3d at 1186.

The next step in determining whether a plaintiff has exhausted her administrative remedies is to determine the scope of the allegations raised in the EEOC charge because “[a] plaintiffs claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” .... We emphasize, however, that our inquiry is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge. In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim; this follows from the rule that “each discrete incident” of alleged discrimination of retaliation “constitutes its own ‘unlawful employment practice’ for which administrative remedies must be exhausted.”

Jones v. United Parcel Service, 502 F.3d at 1186 (citations omitted).

This Court has previously held that these principles demand that an act which occurs subsequent to the filing of the formal EEOC charge would not be included in the scope of the administrative investigation and would constitute its own “unlawful employment practice for which administrative remedies must be exhausted.” Farley v. Leavitt, NO. CIV 05-1219 JB/LFC, 2007 WL 6364329, at *14 (D.N.M. Dec. 31, 2007) (Browning, J.) (quoting Jones v. United Parcel Serv., Inc., 502 F.3d at 1186) (internal quotation marks omitted). Tenth Circuit holdings support this conclusion. See Duncan v. Manager Department of Safety, 397 F.3d at 1314 (affirming dismissal of retaliation claim postdating plaintiffs EEO complaint, stating: “Ms. Duncan did not file an additional EEOC charge alleging the retaliatory act however, and this failure to exhaust her administrative remedies is fatal to her claim”); Annett v. University of Kansas, 371 F.3d at 1238 (“Previously, we would proceed to examine whether the alleged employment action, provided it occurred after the filing of the EEOC charge, was ‘like or reasonably related to the allegations of the EEOC charge!;] [h]owever, our recent holding in Martinez v. Potter, has foreclosed this line of inquiry.”),

c. A Plaintiff Must Exhaust at Least One Related Act that Is the Basis of a Hostile Work Environment Claim.

A different rule applies to hostile environment claims, for which “the continuing violation doctrine remains viable.” Semsroth v. City of Wichita, 304 Fed.Appx. 707, 722 (10th Cir.2008). An employer creates a hostile work environment when “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (quotations omitted). Under National Railroad Passenger Corp. v. Morgan, a series of events that constitute a hostile environment claim are considered one unlawful action. See West v. Norton, 376 F.Supp.2d 1105, 1129 (D.N.M.2004) (Browning, J.). “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115, 122 S.Ct. 2061 (internal citations and quotations omitted). An “unlawful employment practice” that constitutes a hostile work environment thus cannot be said to occur on any particular day, but rather occurs over a series of days or years. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Accordingly, so long as one of the incidents included within the claim of hostile environment occurred within the prescribed time limit, other conduct that occurred outside of the proscribed time period, but contributing to the hostile work environment, is not time barred. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 105, 122 S.Ct. 2061 (holding “that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period”); West v. Norton, 376 F.Supp.2d at 1129.

In National Railroad Passenger Corp. v. Morgan, the Supreme Court of the United States provided three factors courts may consider to determine if “a series of separate acts ... collectively constitute one ‘unlawful employment practice.’” 536 U.S. at 117, 122 S.Ct. 2061 (quoting 42 U.S.C. § 2000e-5(e)(1)). “[A] series of alleged events comprises the same hostile environment where ‘the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.’ ” Duncan v. Manager, Dep’t of Safety, City & Co. of Denver, 397 F.3d at 1309 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 120, 122 S.Ct. 2061) (“Morgan advises looking at the type of these acts, the frequency of the acts, and the perpetrator of the acts.”).

In National Railroad Passenger Corp. v. Morgan, the Supreme Court addressed whether an EEOC charge alleging the plaintiff was “consistently harassed and disciplined more harshly than other employees on account of his race” was part of the same hostile work environment claim as “evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets.” 586 U.S. at 105, 120, 122 S.Ct. 2061. While expressly declining to make a judgment on the merits of the plaintiffs claims, the Supreme Court found it could not say that these were “not part of the same actionable hostile environment claim.” Id. at 121, 122 S.Ct. 2061.

In Duncan v. Manager, Dep’t of Safety, City & Co. of Denver, the Tenth Circuit addressed a plaintiffs hostile environment claim alleging “three groups of acts that plausibly took place during the filing period: (1) the harassing statements by Sgt. Andrews; (2) the spreading of rumors by Lt. Leone; and (3) the anonymous magazine article placed in her box and the theft of a notebook by an unknown perpetrator.” 397 F.3d at 1309. The Tenth Circuit “ex-amin[ed] the acts in the filing period and determined] what acts outside of the filing period [we]re related by type, frequency, and perpetrator. The entire range of related acts constituted the hostile work environment underlying Ms. Duncan’s claim.” 397 F.3d at 1309. The Tenth Circuit found:

The alleged actions of Sgt. Andrews and Lt. Leone began after Ms. Duncan returned to District Four in late 1996 and continued into the filing period. These acts are related by type, frequency, and perpetrator, thus all these acts, including those before the beginning of the filing period, are within the scope of Ms. Duncan’s hostile work environment claim. The alleged hostile actions that occurred before Ms. Duncan returned to District Four, however, are not part of the same hostile work environment as those alleged during the filing period. The acts she alleges immediately prior to her return are an anonymous letter threatening physical violence and Chief Michaud’s adjustment of her score on the sergeant’s exam. While these acts may have a temporal relation to the behavior of Sgt. Andrews and Lt. Leone, they are of a different character, they took place while Ms. Duncan was on a different assignment, and they were not perpetrated by the same people. Even if we draw all inferences in Ms. Duncan’s favor, we do not think a rational jury could conclude that any of the allegations before her return to District Four are part of the same hostile work environment as those acts alleged during the filing period.

Duncan v. Manager, Dep’t of Safety, City & Co. of Denver, 397 F.3d at 1309.

4. Time Requirements for Exhausting Administrative Remedies Are Not Jurisdictional.

While failure to exhaust administrative remedies is a jurisdictional bar to suit, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” 455 U.S. at 393, 102 S.Ct. 1127. See DeWalt v. Meredith Corp., 288 Fed.Appx. 484, 490 (10th Cir.2008) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. at 393, 102 S.Ct. 1127; Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174-75 (10th Cir.1998)). The Tenth Circuit treats a plaintiffs failure to timely exhaust administrative remedies not “as a jurisdictional issue, [but] rather ... as an affirmative defense to be raised by [defendants].” DeWalt v. Meredith Corp., 288 Fed.Appx. at 490.

Though not jurisdictional, the time limit is not an arbitrary barrier. It is designed to give an agency timely notice of potentially illegal conduct, to discover and correct its own errors, and possibly to conciliate the claim. See Sampson v. Civiletti, 632 F.2d 860, 863 (10th Cir.1980). An employee who fails to comply with the limitation period is barred from seeking judicial relief in federal court, absent a defense of equitable tolling. See Davis v. United States Postal Serv., 142 F.3d at 1339; Wilson v. West, 962 F.Supp. 939, 944 (1997).

a. Exceptions of Equitable Tolling Are Narrowly Construed.

“Equitable exceptions, however, have been narrowly construed.” Harms v. I.R.S., 321 F.3d 1001, 1006 (10th Cir.2003). See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.2002) (stating that “federal courts have typically extended equitable relief only sparingly”). The Tenth Circuit “has generally recognized equitable tolling of Title VII periods of limitation only if circumstances rise to the level of active deception which might invoke the powers of equity to toll the limitations period.” Montoya v. Chao, 296 F.3d at 957. See Godwin v. Sw. Research Inst., 237 Fed.Appx. 306, 307 (10th Cir.2007) (“Our precedent requires that an ADEA plaintiff demonstrate ‘active deception’ on the part of an employer, the EEOC, or the court.”); Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1269 n. 2 (10th Cir.1996) (noting in a Title VII case that “extraordinary circumstances” are “necessary to justify equitable tolling under established Tenth Circuit precedent.”). “Equitable tolling may be appropriate where a plaintiff has been lulled into inaction by an employer’s ‘deliberate design ... or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.’ ” Al-Ali v. Salt Lake Cmty. Coll., 269 Fed-Appx. 842, 847 (10th Cir.2008) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). Equitable tolling “is not warranted