UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

TYSHA J. MANNING; RICHARD NEIL CHANEY; STEPHANI E A. TEJADA, Plaintiffs-Appellants,

v. BLUE CROSS AND BLUE SHIELD OF KANSAS CITY; EPOCH GROUP, L.C., Defendants-Appellees. No. 12-3190 (D.C. No. 2:11-CV-02010-SAC) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, HOLLOWAY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

Plaintiffs Tysha J. Manning, Richard Neil Chaney, and Stephanie A. Tejada appeal the district court’s di smissal of their race discrimi nation and retaliation claims against their former employer, Epoch Group , L.C., a wholly-owned subsidiary of

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - Blue Cross and Blue Shield of Kansas City (BCBS-KC) . Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Background The plaintiffs allege Epoc h did not hire them for in ternal job openings because of Manning’s race (African Am erican), Tejada’s race (H ispanic), and in retaliation against each of them for engaging in prot ected opposition to discrimination. The relevant facts were thoroughly described by the district court, and we only briefly summarize them here. We view the evid ence and the reasonable inferences to be drawn from the evidence in the light most favorable to the plaintiffs, as the parties opposing summary judgment. Stover v. Martinez , 382 F.3d 1064, 1070 (10th Cir. 2004). The following facts are un disputed unless otherwise noted. Plaintiffs were employed by Epoch as claims exam iners. Chaney filed a disability discrimination clai m in July 2009; Tejada file d a race discrimination claim in August 2009; and Manning informally complained to Epoch manager Dawn Sprague in August 2009 about a racial epithet she overheard. In October 2009, Sprague notified al l Epoch employees by email that two claims examiner jobs a nd one customer service j ob were open to all Epoch employees. The email included a link to an online application. Chaney did not apply for these jobs. Tejada and Manning testified they did subm it online applications, but that Sprague told them she had not recei ved their applications . Manning did not attempt to reapply; Tejada tried to rea pply but did not attempt it again when she- 3 - realized her reapplication did not go through. Ms. Sprague testified that Epoch never received any application from Tejada or Manning. Epoch did not receive any applications for the customer servi ce position from any Epoch Employee, but Sprague eventually offered this job to an existing Epoch employee, Amanda Teel, even though she had not applied. Sprague filled the claims exam iner jobs with the one Epoch employee from whom she rece ived an application and a non-Epoch applicant. Plaintiffs were terminated as part of a re duction-in-force on February 25,
2010. 1 Plaintiffs’ complaint alleged race discri mination and retaliati on in violation of Title VII of the Civil Rights Act, 42 U. S.C. §§ 2000e to 2000e-17; disability discrimination and retaliation in violation of the Ameri cans with Disa bilities Act (ADA), 42 U.S.C. §§ 12131- 12134; and breach of im plied contract. After sua sponte issuing a show cause order, the district court dismissed for lack of subject matter jurisdiction all of the Title VII and ADA claims becaus e the plainti ffs failed to exhaust administrative remedies. 2 The district court grante d the plaintiffs’ request to

1 Plaintiffs’ district c ourt briefs did not clearly assert a discriminatory termination claim, but the dist rict court ruled that, in any event, plaintiffs failed to demonstrate a prima facie case of discrimi natory termination. Plaintiffs do not challenge that ruling on appeal.
2 Specifically, the district court dism issed Tejada and Chaney’s claims for disability discrimination under the ADA; Tejada’s and Chaney’s claims of disability-based retaliation under the ADA; Tejada’s and Manning’ s Title VII claims of race discrimination and r ace-based retaliation; and Te jada’s Title VII claim of national origin discrimination.- 4 - alternatively pursue their race discri mination and retaliation claims under 42 U.S.C. § 1981. It then granted summ ary judgment in favor of the defendants on the remaining claims, namely, Tejada ’s and Manning’s § 1981 claims of race discrimination and all of par ties’ claims of retaliati on and breach of an implied contract. Plaintiffs do not challenge the district court’s grant of summary judgment as to the dismissal of their contract claims. II. Failure to Exhaust Title VII and ADA Claims Plaintiffs contend the di strict court erred in dism issing their Title VII and ADA claims for lack of subject matter jurisdiction. We review de novo a decision dismissing a cause of action for lack of subject matter jurisdiction. Lucero v. Bureau of Collection Recovery, Inc ., 639 F.3d 1239, 1242 (10th Cir. 2011). “Under both Title VII and the ADA, exhaus tion of administrative remedies is a prerequisite to suit.” Apsley v. Boeing Co . 691 F.3d 1184, 1210 (10th Cir. 2012). Plaintiffs did file a charge of discrimi nation with the Equal Employment Opportunity Commission (EEOC), but “a plaintiff’s claim in federal court is generally limited by the scope of the administra tive investigation that can reasonably be expected to follow the charge of discrimina tion submitted to the EEOC.” Jones v. UPS, Inc ., 502 F.3d 1176, 1186 (10th Cir. 2007) (internal quot ation marks and brackets omitted). Thus, to exhaust administrative remedies, “the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim[, because] each discre te incident of alleged di scrimination or retaliation- 5 - constitutes its own unlawful employment practice for whic h administrative remedies must be exhausted.” Id . (internal quotation marks omitted). We agree with the district court that the EEOC charges on plaintiffs’ Title VII and ADA claims were too vague to give defendants notice of the challenged conduct. Tejada’s charge simply stated she was treated unequally and was denied employment opportunities due to her race and national orig in, retaliated against in violation of her rights, was not offered reasonable accomm odation for diabetes and her history of carpal tunnel and blood clots. Manning’s charge simply said she was subjected to an unwanted working environment because of her race and wa s retaliated against in violation of her rights. Chan ey’s charge said only that he was retaliated against and denied employment opportunities because of disabling conditions. These charges completely lack any factual sp ecificity, failing even to desc ribe the particular actions and practices complained of, and are insuffi cient to meet the e xhaustion requirement. Plaintiffs argue that the defendants di d not raise this i ssue and, thus, the district court erred in sua sponte challenging the sufficiency of their EEOC charge. They are mistaken; the distri ct court has an independent duty to examine whether it has subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks s ubject-matter jurisdiction, the court must dismiss the action.”). Exhaustion of admi nistrative remedies is a jurisdictional prerequisite to suit under Title VII and the ADA. Shikles v. Sprint/United Mgmt. Co ., 426 F.3d- 6 - 1304, 1317 (10th Cir. 2005) (Title VII); MacKenzie v. City & Cnty. of Denver , 414 F.3d 1266, 1274 (10t h Cir. 2005) (ADA). Plaintiffs also contend th at the factual basis for th e EEOC charges would have been discoverable upon investigation. Bu t it is only those discrimination claims stated in the initial EEOC charge, and thos e reasonably related to those claims, that define the scope of any subsequent lawsuit. See Jones , 502 F.3d at 1186. There is nothing in any of the plaintiffs’ EEOC ch arges that would have put the defendants on notice that they were alleging that thei r non-hire for the job openings in October and November 2009 was based on race disc rimination or in retaliation for any protected opposition to discrimination. We affirm the dismissal of the Title VII and ADA claims. III. Grant of Summary J udgment on Remaining Claims Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). “We review th e district court’s grant of summary judgment de novo, applying the same standard as the district court.” Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could re solve the issue either way.” Id. (internal quotation marks omitted). Racial Discrimination Claims . The elements of a ra cial discrimination case are the same under § 1981 as under Title VII. Carney v. City & Cnty. of Denver ,- 7 - 534 F.3d 1269, 1273 (10th Cir. 2008). Plaintiffs Tejada and Manning sought to present circumstantial evidence of discriminatory failure to hire under the familiar three-step burden-shifting fra mework that requires them to first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). To establish a prima facie discriminatory failure -to-hire claim, a plaintiff must show that: (1) plaintiff belongs to a protected class; (2) plaintiff applied and was qualified for a job for wh ich the employer was seeking applicants; (3) despite being qualifie d, the plaintiff was rejected; and (4) after plaintiff’s rejection, the position remained open and the employer continued to seek applican ts from persons of [plaintiff’s] qualifications. Garrison v. Gambro, Inc ., 428 F.3d 933, 937 (10th Ci r. 2005) (internal quotation marks omitted). The district court ruled that the plai ntiffs knew they had not successfully applied for any of the positions and, thus, could not establ ish the second element of a prima facie case. Tejada and Manning argue on appeal that whether they applied for the positions is a disputed issue of fact. We have reviewed th e record and agree with the district court that they failed to present ev idence of a genuine dispute. Viewed in the light most favorable to th em, these plaintiffs did attempt to submit online applications—indeed, Tejada tried twice—but it is undisput ed that both Tejada and Manning knew that their app lications had not gone through, yet chose not to resubmit them. Thus, the district c ourt correctly ruled that Teja da and Manning did not apply- 8 - for these job openings and, accordingly, did not establish a prima facie case of discrimination. Retaliation Claims . A plaintiff bringing a retaliation claim under § 1981 “must establish that retali ation played a part in the employment decision.” Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 998 (10th Ci r. 2011) (internal quotation marks omitted). Plaintiffs s ought to rely upon the three-part McDonnell Douglas burden-shifting framework to estab lish their retalia tion claims. Under the McDonnell Douglas /indirect approach, the plaintiff must first make out a prima facie case of re taliation by showing (1) that [s]he engaged in protected op position to discrimination, (2) that a reasonable employee would have found the challe nged action materially adverse, and (3) that a causal co nnection existed between the protected activity and the materially adverse action. If the plaintiff es tablishes a prima facie case, the employer must then offer a legitimate, nonretaliatory reason for its decision. Finally, on ce the employer has satisfied this burden of production, the plaintiff must show th at the employer’s reason is merely a pretext for retaliation. Id . (citation and internal quotation marks omitted). The district court ruled that plaintiffs failed to show that a causal connection existed between plaintiffs’ protected activit ies and defendants’ fa ilure to offer them any of the open positions in November 2009. Further, even assu ming the plaintiffs had established a prima facie retaliation claim, the distri ct court ruled the defendants had proffered legitimate nondiscriminatory reasons for not offering the jobs to the plaintiffs, namely that they did not receive applications from any of the plaintiffs and, although they did also not receive an application from Ms. Teel, she and the other persons hired were more qualified than a ny of the plaintiffs.- 9 - Plaintiffs argue the district cour t erred in considering defendants’ comparable-qualifications explanation becau se in their motion for summary judgment the only reason they gave was not receivi ng plaintiffs’ application. We are not persuaded. Defendants’ mo tion for summary judgment asse rted plaintiffs suffered no materially adverse action because they did not apply for the jobs. When plaintiffs responded that they suffered a material adverse action when Sprague offered a job to Teel, who also had not applied, but not to them, defendants presented evidence in their reply that Teel and th e others they hired were mo re qualified than any of the plaintiffs. Plaintiffs sought, and received permission, to file a surreply, but did not do so. We conclude the dist rict court did not abuse its discretion to consider this additional evidence because th e plaintiffs had an opport unity to file a surreply. Moreover, we agree with the district court, for the deta iled reasons st ated in its order, that the plaintiffs failed to presen t any evidence that rais es an inference that defendants’ legitimate non-discriminatory explanations for its hiring decisions are “so incoherent, weak, inconsis tent, or contradictory that a rational factfinder could conclude they are unw orthy of belief.” EEOC v. C.R. England, Inc ., 644 F.3d 1028, 1039 (10th Cir. 2011) (alteration and in ternal quotation marks omitted). The judgment of the dist rict court is affirmed. Entered for the Court
Timothy M. Tymkovich Circuit Judge