Gerald v. Locksley (785 F. Supp. 2d 1074, 2011)

United States District Court for the District of New Mexico 2011-05-06

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Motion to Dismiss Plaintiffs First Amended Complaint, filed December 6, 2010 (Doc. 28)(“Motion”). The Court held a hearing on January 27, 2011. The primary issues are: ©whether Plaintiff Johnathan Gerald has adequately set forth allegations to support his claims in his First Amended Complaint for Personal Injury, Race Discrimination and Deprivation of First Amendment Rights under Color of State Law, filed November 2, 2011 (Doc. 19)(“FAC”); (ii) and whether that Court should allow Gerald to amend his FAC to attempt to plead a hostile work environment claim. The Court dismisses with prejudice Gerald’s FAC. The Court grants Gerald leave to amend his FAC to attempt to plead a hostile work environment claim, based on the allegations in his EEOC Charge, filed December 6, 2010 (Doc. 23-1).

FACTUAL BACKGROUND

Locksley is the head football coach at the University of New Mexico (“UNM”). Defendant Paul Krebs is the Athletic Director at UNM. At all times relevant to FAC, UNM employed Gerald as an assistant coach responsible for working the team’s wide receivers. Gerald’s claims arise from an alleged alteration with Locksley, and UNM’s and Krebs’ subsequent response to this incident.

Gerald alleges that, after a team practice session in August of 2009, before the physical altercation between Gerald and Locksley on which Gerald bases his tort claims, Locksley physically threatened him. Gerald further alleges that, on or about September 20, 2009, during a coach’s meeting at the UNM athletic facility, Locksley choked Gerald and punched him in the face. Gerald asserts that the “attack was under the guise of a disciplinary action against the Plaintiff, who had incurred the Defendant’s displeasure for the team’s performance during a game,” and that “Locksley expressed his displeasure at what he perceived to [be Gerald’s] disobedience or insubordination.” FAC ¶¶ 15,16, at 3.

On September 20, 2009, Gerald reported the incident to UNM management and police, including Krebs. Gerald asserts that “Krebs and other UNM officials did not take appropriate measures to handle the situation.” FAC ¶ 18, at 3. Krebs encouraged Gerald “to minimize and trivialize what had occurred,” and “suggested to Plaintiff that his career would not benefit if he persisted in complaining of Locksley’s behavior and that he should desist from any further action in the matter and from making any statements in regard to the assault.” FAC ¶¶ 20-21, at 3. Gerald alleges that Krebs’ “motive and intent ... was to protect the University athletic program from criticism because of the incident, and to protect his position as Athletic Director, and the statements were discriminatory and retaliatory in nature.” FAC ¶22, at 3-4. Gerald asserts that Krebs publically denied and minimized the altercation between Locksley and Gerald, initially issuing a letter of reprimand to Locksley, without imposing further discipline. Gerald further asserts that, after a public outcry over the light response, the UNM administration suspended Locksley for ten days.

Gerald was placed on administrative leave for the remainder of the 2010 football season. Although UNM invited Gerald to return to his employment with the UNM football team the following year, he refused to do. Gerald alleges that UNM and Krebs’ discipline of Locksley was insufficient to deter further acts of violence.

On December 6, 2010, Gerald filed a charge of discrimination with the EEOC. His EEOC Charge named only UNM as the respondent. See EEOC Charge at 2. Moreover, in his EEOC Charge, Gerald did not check the box for retaliation; he checked only “race” as the basis for his claims of discrimination. EEOC Charge at 2. The narrative portion of the charge lists a number of grievances and states:

Statement of Discrimination: I was hired by the Respondent on December 19, 2008, as a Full time Football Coach. During the time of my employment my supervisor (Head Coach) has subjected me to different working term and conditions than the other White coaches, including, but not limited to, threats and intimidation of physical abuse, demeaning my decisions, and cursing me in front of my peers and students. On September 20, 2009, my supervisor physically assaulted me by choking and punching me about the face. I reported this to management and nothing was done. These conditions have made my working atmosphere hostile to which it has affected my performance of duties.

I believe that I have been discriminated against because of my Race (Black) in violation of Title VII of. the Civil Rights Act of 1964 as amended.

EEOC Charge at 2.

PROCEDURAL BACKGROUND

On July 30, 2010, Gerald filed suit against Locksley and UNM, raising claims for assault and battery, race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the New Mexico Human Rights Act, NMSA 1978, §§ 28-1-1 to -15 (“NMHRA”), and First-Amendment retaliation. Locksley and UNM filed a motion to dismiss Locksley’s original Complaint, see Defendants’ Motion to Dismiss, filed August 25, 2010 (Doc. 6), and in response, Locksley filed his FAC, which added Krebs as a Defendant and raised several additional claims — i.e., retaliation under Title VII and the NMHRA, a denial of equal protection, and breach of contract. Locksley also pursues a claim for punitive damages in Count VI of his Amended Complaint.

As to adverse employment action, Gerald asserts in the FAC that Krebs and UNM “failed to take appropriate remedial action and dissuaded and discouraged Plaintiff from persisting in his complaining and requiring remedial action.... ” FAC ¶ 42, at 7. Gerald states that “[t]he motive and intent behind Defendant Krebs’ statements to Plaintiffs [sic] was to protect the University athletic program from criticism because of the incident, and protect his position as Athletic Director.” FAC ¶ 22, at 3-4.

The Defendants withdrew their original motion to dismiss, based on Gerald’s decision to amend. See Notice of Withdrawal of Defendants’ Motion to Dismiss, filed October 28, 2010 (Doc. 17). Before the Defendants filed their second motion to dismiss, Mark Baker, the Defendants’ counsel, conferred, pursuant to D.N.M.LR-Civ. 7.1, with Gerald’s counsel, Dennis Montoya, regarding the relief requested through this Motion. Gerald opposes this motion.

The Defendants now move the Court, pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Gerald’s FAC in its entirety. The Defendants assert that the allegations in Gerald’s FAC fail to establish his claims. On December 20, 2010, Gerald filed his Response to Defendants’ Motion to Dismiss Plaintiffs First Amended Complaint. See Doc. 24. Gerald opposes the Motion, asserting that he was adequately set forth his claims. On January 25, 2011, the Defendants filed their Reply in Support of Defendants’ Motion to Dismiss Plaintiffs First Amended Complaint. See Doc. 31.

At the hearing, Gerald conceded that his constitutional claims against UNM must be dismissed under the Eleventh Amendment. See Transcript of Hearing at 76:19-77:13 (taken January 27, 2011)(Court, Montoya)(“Tr.”)

LEGAL STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1)

“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)(“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002).

On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.

Alto Eldorado Partners v. City of Santa Fe, No. CIV 08-0175 JB/ACT, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009)(Browning, J.) (citations omitted). As the United States Court of Appeals for the Fifth Circuit has stated:

[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981)(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).

When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, the court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).

LAW REGARDING RULE 12(b)(6)

Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994) (citation omitted). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Smith v. United States, 561 F.3d 1090, 1097 (10th Cir.2009); Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). A complaint challenged by a rule 12(b)(6) motion to dismiss does not need to set forth detailed factual allegations, but a plaintiffs burden to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(stating that a plaintiffs complaint must set forth more than a threadbare recital “of the elements of a cause of action, supported by mere conclusory statements”). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. at 1940.

LAW REGARDING EXHAUSTION OF ADMINISTRATIVE REMEDIES

Both Title VII and NMHRA claims must be administratively exhausted before being brought in federal court. Title VII creates a work-sharing deferral system between the EEOC and the states that have their own employment discrimination legislation. See 42 U.S.C. § 2000e-5(c), (d). In the states that possess their own employment discrimination legislation, the EEOC must generally “defer” to state or local remedies. EEOC v. Superior Temp. Servs., Inc., 56 F.3d 441, 447 (2d Cir.1995)(quoting 42 U.S.C. § 2000e-5(c), (d)). The NMHRA places New Mexico among those states that have their own employment discrimination legislation and contact agencies. See 29 C.F.R. § 1601.74 (2005). In New Mexico, a complainant can, upon meeting filing requirements, proceed with his or her grievance either through the EEOC or through the New Mexico Human Rights Division (“NMHRD”). See Mitchell-Carr v. McLendon, 127 N.M. 282, 286-87, 980 P.2d 65, 69-70 (1999). “In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Once a person elects to proceed with his or her complaint under state law, the NMHRA controls the grievance procedures for resolving the complaint. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 109, 122 S.Ct. 2061.

Whether complainants decide to pursue their grievances with the EEOC or with the NMHRD, they must exhaust their respective regimes’ administrative remedies before seeking judicial review. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996)(“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.”); Mitchell-Carr v. McLendon, 127 N.M. at 288, 980 P.2d at 71 (“[E]xhaustion of administrative remedies is a prerequisite to suit under the NMHRA, and a failure to exhaust administrative remedies may mean that the court lacks subject-matter jurisdietion.”)(citing Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994)). Exhaustion of administrative remedies is central to Title VIPs statutory scheme, because it provides the EEOC and state deferral agencies with the first opportunity to investigate discriminatory practices, and enables them to perform their roles of obtaining voluntary compliance and of promoting conciliatory efforts. See Patterson v. McLean Credit Union, 491 U.S. 164, 180-81, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994).

1. The Exhaustion of Administrative Remedies Under the NMHRA.

The NMHRA makes it an unlawful discriminatory practice for

an employer, unless based on a bona fide occupational qualification or other statutory prohibition, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition, or, if the employer has fifty or more employees, spousal affiliation; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age; or, if the employer has fifteen or more employees, to discriminate against an employee based upon the employee’s sexual orientation or gender identity....

NMSA 1978, § 28-1-7. The NMHRA also allows individuals to bring a lawsuit in the appropriate district court after exhausting their administrative remedies. See Luboyeski v. Hill, 117 N.M. at 382, 872 P.2d at 355. The NMHRA provides:

A person aggrieved by an order of the commission may obtain a trial de novo in the district court of the county where the discriminatory practice occurred or where the respondent does business by filing a notice of appeal within ninety days from the date of service of the commission’s order.

NMSA 1978, § 28-l-13(A).

To bring an NMHRA suit in district court, a plaintiff is required to exhaust the administrative grievance process with respect to all defendants named in the district-court lawsuit. See Luboyeski v. Hill, 117 N.M. at 383, 872 P.2d at 356 (“Since [the plaintiff] has not gone through the administrative process that is prerequisite to suing the individual defendants under the Human Rights Act, we affirm the trial court’s order. dismissing those defendants.”). Accordingly, in Luboyeski v. Hill, the Supreme Court of New Mexico affirmed a trial court’s dismissal of respondents who were not named in the administrative proceeding, but who were added to the appeal to the district court. See 117 N.M. at 383, 872 P.2d at 356.

As this Court has previously acknowledged, the Supreme Court of New Mexico allows for personal liability under the NMHRA. See Duprey v. Twelfth Judicial Dist. Court, No. CIV 08-0756 JB, 2009 WL 2482170, at *7 (D.N.M. July 28, 2009)(Browning, J.). The NMHRA defines “employer” as “any person employing four or more persons and any person acting for an employer.” NMSA 1978, § 28-1 — 2(B). While acknowledging that there is generally no personal liability under Title VII, the Supreme Court of New Mexico has “rejectfed] the proposition that there can exist no individual liability under the NMHRA.” Sonntag v. Shaw, 130 N.M. 238, 243, 22 P.3d 1188, 1193 (2001). In Sonntag v. Shaw, a defendant relied on Title VII case law to argue that the owner of a corporation could not be sued as an individual under the NMHRA. See Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. Although it held that the defendant could not be held personally liable, given that the plaintiff had failed to exhaust administrative remedies, the Supreme Court of New Mexico declined to close the door on individual liability under the NMHRA. See Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193. The Supreme Court of New Mexico noted:

[T]his Court has acknowledged the possibility of individual liability for discrimination claims. Cf. Luboyeski v. Hill, 117 N.M. 380, 382, 872 P.2d 353, 355 (1994) (affirming the dismissal of individual defendants because the plaintiff failed to exhaust administrative remedies against them); Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶10, 127 N.M. 282, 980 P.2d 65 (citing Luboyeski). As Plaintiff suggests, the potential for individual liability for discrimination claims is rooted in the language of the NMHRA itself, which forbids “any person” from supporting a discriminatory practice. Section 28-1-7(1); see NMSA 1978, § 28-l-2(A) (1993) (including within its definition of “person” for purposes of the NMHRA, “one or more individuals”).

Sonntag v. Shaw, 130 N.M. at 243, 22 P.3d at 1193.

2. The Exhaustion of Administrative Remedies under Title VII.

Title VII prohibits an employer from “fail[ing] or refusing] to hire or ... discharging] any individual, or otherwise ... discriminating] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). “Under longstanding [Tenth] [C]ircuit precedent, supervisors and other employees may not be held personally liable under Title VII.” Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1083 n. 9 (10th Cir.2007). See Haynes v. Williams, 88 F.3d 898, 899 (10th Cir.1996) (“The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.”). Before commencing a Title VII 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)(l); 42 U.S.C. § 12117(a); Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 & n. 3 (10th Cir.2007)) (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 42 U.S.C. §§ 2000e-5(b), (c), (e), (f)(1); Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). “[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. Okla. 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 42 U.S.C. § 2000e — 5(e)(1); 29 C.F.R. § 1601.13 (1998); 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). 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 Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action. See Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir.2007); 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., 111 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.2005). “[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 cheeked 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. An-nett’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. jEach 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. Okla. 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 in Martinez v. Potter 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. See 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, and 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. Univ. of Kan., 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’f;] [hjowever, 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)(l)). “[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.” 536 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.” 536 U.S. 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 determinfed] what acts outside of the filing period [we]re related by type, frequency, and perpetrator. The entire range of related acts constitute^] 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 at 863. 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 (S.D.Miss.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)(“0ur 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 where an employee is aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the employer’s subjective discriminatory purpose.” Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235 (10th Cir.1999) (citation omitted).

b. Equitable Tolling Is Within the District Court’s Discretion.

The decision whether to equitably toll the limitations period rests within the district court’s sound discretion. See Purrington v. Univ. of Utah, 996 F.2d 1025, 1030 (10th Cir.1993). In Castaldo v. Denver Public Schools, 276 Fed.Appx. 839 (10th Cir.2008), the Tenth Circuit found that the district court did not abuse its discretion when it chose not to apply equitable tolling to the plaintiffs EEOC charge when the plaintiff alleged: (i) that his employer did not post notices regarding the filing of EEOC charges; (ii) that he was too incapacitated by his shoulder injuries to file an EEOC charge; and (iii) that he was proceeding pro se. See 276 Fed.Appx. at 841. The Tenth Circuit found no error in the district court’s conclusion that the failure to post EEOC notices was not a sufficient justification for equitable tolling. See 276 Fed.Appx. at 841. See also Wilkerson v. Siegfried Ins. Agency, Inc., 683 F.2d 344, 347 (10th Cir.1982)(holding that “the simple failure to post ... notices, without intent to actively mislead the plaintiff respecting the cause of action, does not extend the time within which a claimant must file his or her discrimination charge”). The district court noted that the plaintiff did not allege that his employer intended to actively deceive him by failing to post notices about filing EEOC charges. See Castaldo v. Denver Pub. Schs., 276 Fed.Appx. at 841. The Tenth Circuit also concluded that the statements in the plaintiffs EEOC charge revealed that it was not his alleged incapacity that prevented him from filing a timely charge, but rather the fact that he was unaware of his obligation to do so until he consulted an attorney. See 276 Fed.Appx. at 841. The Tenth Circuit found that “his ignorance of the filing requirement does not entitle him to equitable tolling.” 276 Fed.Appx. at 842. Finally, the Tenth Circuit upheld the district court’s finding that the plaintiffs pro-se status did not justify equitable tolling, because the plaintiff had the ability to contact an attorney but elected not to do so until well after the expiration of the filing period. See 276 Fed.Appx. at 842.

In Godwin v. Southwest Research Institute, the Tenth Circuit held that the district court did not abuse its discretion in refusing to employ equitable tolling when the plaintiff misaddressed his EEOC submission, which arrived forty-four days after the time limit had expired. See 237 Fed-Appx. at 307-08. In Baker v. Perfection Hy-Test, No. 95-6091, 1996 WL 1162 (10th Cir. Jan. 2, 1996), the Tenth Circuit held that there was no active deception sufficient to toll the 300-day deadline where the plant manager of the plaintiffs employer told the plaintiff, after his demotion, that “restructuring was happening ‘all over the country,’ that plaintiff ‘couldn’t sue,’ [and] that he might try but he ‘wouldn’t get to first base.’ ” 1996 WL 1162, at *2. The Tenth Circuit found that the statements “at most expressed an opinion concerning plaintiffs likelihood of success.” 1996 WL 1162, at *7.

LAW REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CASES

“Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 825, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)(citing 42 U.S.C. §§ 2000e-2, 2000e-3). “Title VII of the Civil Rights Act of 1964 prohibits an employer from failing or refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Farley v. Leavitt, No. CIV 05-1219 JB/LFC, 2007 WL 6364329, at *6 (D.N.M. Dec. 31, 2007)(Browning, J.)(quoting 42 U.S.C. § 2000e-2(a)(l))(internal quotes and alterations omitted). With the 1972 amendments to the statute, Title VII’s protections apply to federal employees as well as to employees of private concerns. See Brown v. Gen. Servs. Admin., 425 U.S. at 825-26, 96 S.Ct. 1961 (citing 42 U.S.C. § 2000e(b)).

[Although the plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A, 534 U.S. 506, 510-15, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), a civil rights plaintiff retains the burden of alleging facts sufficient to state a claim entitling her to relief.

Harman v. Unisys Corp., 356 Fed.Appx. 638, 640 (D.C.Cir.2009) (citing Jordan v. Alternative Res. Corp., 458 F.3d 332, 346-47 (4th Cir.2006). See Prince-Garrison v. Maryland Dep’t of Health and Mental Hygiene, 317 Fed.Appx. 351, 353 (4th Cir.2009)) (“A civil rights plaintiff need not plead facts that constitute a prima facie case under the framework of McDonnell Douglas Corp. v. Green ... in order to survive a motion to dismiss. Nevertheless, the plaintiff retains the burden to allege facts sufficient to state all the elements of her claim.” (citations omitted)). See also Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990) (“McDonnell Douglas inferences provide assistance to a judge as he addresses motions to dismiss, for summary judgment, and for directed verdict”).

1. Law on Claims for Hostile Work Environment.

“To establish a prima facie case of hostile work environment harassment, a plaintiff must show that ‘under the totality of circumstances [ (i) ] the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and [ (ii) ] the harassment was racial or stemmed from racial animus.’ ” Bloomer v. United Parcel Serv., Inc., 94 Fed.Appx. 820, 825 (10th Cir.2004)(quoting Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir.1998)). See Carter v. Mineta, 125 Fed.Appx. 231, 238 (10th Cir.2005); Mitchell v. City and County of Denver, 112 Fed.Appx. 662, 671 (10th Cir.2004). To establish a hostile-work environment claim, “a plaintiff must show that a rational jury could find that 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 at 1341 (internal citations and quotations omitted). “A discriminatory and abusive environment must affect the employee’s work environment so substantially as to make it intolerable for her to continue.” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir.1996)(holding that a work environment did not contain “pervasive” harassment when the plaintiff made general allegations of frequent “sexual slurs” and the only specific incident cited to involved a co-worker grabbing the plaintiff).

“The mere utterance of a statement which ‘engenders offensive feelings in an employee’ would not affect the conditions of employment to a sufficiently] significant degree to violate Title VIL’ ” Gross v. Burggraf Construction Co., 53 F.3d 1531, 1537 (10th Cir.1995)(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)(alteration in the original)). A plaintiff must allege more than “ ‘a few isolated incidents of racial enmity’ or ‘sporadic racial slurs.’ ” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005)(quoting Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994)(internal citation omitted)). “Instead, ‘there must be a steady barrage of opprobrious racial comments.’ ” Chavez v. Mexico, 397 F.3d at 832 (quoting Bolden v. PRC, Inc., 43 F.3d at 551).

The Tenth Circuit has stated that “[pervasiveness and severity are independent and equal grounds” upon which a plaintiff may establish this element of a hostile environment claim. Witt v. Roadway Express, 136 F.3d at 1432 (addressing a hostile environment claim under 42 U.S.C. § 1981). See also Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir.1997) (citing Durham v. Xerox Corp., 18 F.3d 836, 838-39 (10th Cir.1994), for the proposition that “standards and burdens under § 1981 are the same as those under Title VII”). Moreover, the plaintiff must demonstrate that the work environment was objectively and subjectively offensive, but need “not demonstrate psychological harm, nor is she required to show that her work suffered as a result of the harassment.” Walker v. United Parcel Service of Am., 76 Fed.Appx. 881, 885 (10th Cir.2003). In addition to all the circumstances, relevant considerations to determine if an environment is objectively hostile include: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)(quoting Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367)(inter-nal citations and quotations omitted).

2. Disparate-Treatment Race Discrimination.

In Martinez v. United States Department of Energy, 170 Fed.Appx. 517 (10th Cir.2006), the Tenth Circuit explained: “To prevail on a disparate treatment claim under Title VII of the Civil Rights Act, the employee must show the employer intentionally discriminated against him for a reason prohibited by the statute.” 170 Fed.Appx. at 521 (internal citations and quotations omitted). To establish a prima-facie case of discrimination, a plaintiff must demonstrate that: (i) she is a member of a protected class; (ii) she suffered an adverse-employment action, and (iii) similarly situated employees were treated differently. See Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005); Velasquez v. Frontier Med. Inc., 375 F.Supp.2d 1253, 1271 (D.N.M.2005)(Browning, J.).

3. Title VII Retaliation.

To establish a prima-facie case of retaliation, a plaintiff must show: “([i]) that he [or she] engaged in protected opposition to discrimination, ([ii]) that a reasonable employee would have found the challenged action materially adverse, and ( [in]) that a causal connection existed between the protected activity and the materially adverse action.” Proctor v. United Parcel Serv., 502 F.3d at 1208 (quoting Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d at 1202).

4. Materially Adverse Employment Action.

The Tenth Circuit liberally defines what constitutes an adverse employment action. See Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir.1998). As the Tenth Circuit has stated:

Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach; examining the unique factors relevant to the situation at hand. Nevertheless, we will not consider a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.

Sanchez v. Denver Pub. Schs., 164 F.3d at 532 (internal quotation marks and citations omitted). See Proctor v. United Parcel Serv., 502 F.3d at 1208. An adverse action “is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir.2010)(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68, 126 S.Ct. 2405)(internal quotation marks omitted). “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. at 68, 126 S.Ct. 2405 (“We speak of material adversity because we believe it is important to separate significant from trivial harms.”). “We construe the phrase ‘adverse employment action’ liberally and do not limit it to ‘monetary losses in the form of wages or benefits.’ ” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d at 1133 (quoting Annett v. Univ. of Kan., 371 F.3d at 1239). Acts that carry “a significant risk of humiliation, damage to, reputation, and a concomitant harm to future employment prospects” may be considered adverse actions, although “a mere inconvenience or an alteration of job responsibilities will not suffice.” Annett v. Univ. of Kan., 371 F.3d at 1239 (internal quotation marks and citation omitted).

In Anderson v. Clovis Municipal Schools, 265 Fed.Appx. 699 (10th Cir.2008), the Tenth Circuit, in an unpublished opinion, addressed the requirement of an adverse employment action in the context of a disparate-treatment claim where an employee, who had been placed on a growth plan, alleged other harsh treatment and a written reprimand in support of his claim that he suffered a hostile work environment. Relying on Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir.1999), Anderson argued that the growth plan and formal reprimand rose to the level of an adverse employment action under the law of the Tenth Circuit. In discussing Anderson v. Clovis Municipal Schools’ reliance on Schuler v. City of Boulder, the Tenth Circuit stated: “While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions ... would form the basis of a discrimination suit.” MacKenzie v. City and County of Denver, 414 F.3d 1266, 1279 (10th Cir.2005). See Heno v. Sprint/United Mgnt. Co., 208 F.3d 847, 857 (10th Cir.2000)(explaining that Title VII only prescribes discriminatory conduct that “alters the employee’s compensation, terms, conditions, or privileges of employment, or adversely affects his [or her] status as an employee.”)(quotations omitted). “Only acts