PUBLISH
UNITED STATES COURT OF APPEALS Filed 7/31/96 TENTH CIRCUIT

JANET JONES, Plaintiff-Appellant, v. MARVIN T. RUNYON, Postmaster General, United States Postal Service, Defendant-Appellee. No. 95-6130

Appeal from the United States District Court

for the W.D. Okla. (D.C. No. CV-92-1674-C)

Lewis Barber, Jr. of Barber & Marshall, Oklahoma Ci ty, Oklahoma, for PlaintiffAppellant. Lori J. Dym, Attorney, United States Postal Service , Kay Sewell, Assistant United States Attorney, Oklahoma City, Oklahoma (Vicki Mil es-LaGrange, United States Attorney, Oklahoma City, Oklahoma, R. Andrew German , with them on the briefs), for Defendant-Appellee.

Before SEYMOUR , Chief Judge, TACHA , and EBEL , Circuit Judges.

EBEL , Circuit Judge.

Plaintiff Janet Jones appeals an order of the distr ict court granting defendant’s motion to dismiss this Title VII action . The district court concluded1 Subsequent to our decision in Sampson , the Supreme Court in Zipes

v. Trans World Airlines, Inc. , 455 U.S. 385 (1982) held that a timely filing bef ore the EEOC was not jurisdictionally required to maint ain suit in the district court. 455 U.S. at 393. Several circuits have concluded that the Zipes holding should be extrapolated to include that there is no jurisdicti onal requirement for anyfiling before the EEOC, but rather that the prerequisite o f EEOC filing should be viewed merely in the nature of a condition preceden t or an affirmative defense that can be waived if it is not asserted by the def endant. See, e.g. , Temengil v. Trust Territory of Pacific Islands , 881 F.2d 647, 654 (9th Cir. 1989) (relying on Zipes and holding that “[p]ursuit of administrative reme dies is a condition precedent to a Title VII claim. The requirement, h owever, is not jurisdictional.”), cert. denied , 496 U.S. 925 (1990); Womble v. Bhangu , 864 F.2d 1212, 1213 (5th Cir. 1989) (holding that the district court erred i n concluding it lacked subject matter jurisdiction over plaintiff’s Title VII clai ms where she failed to exhaust her administrative remedies with the EEOC, and conc luding that, in light of Zipes , the district court “did no more than determine th at her Title VII claim was barred; not that the court lacked jurisdiction of i t”); Jackson v. Seaboard Coast Line R. Co. , 678 F.2d 992, 1005 (11th Cir. 1982) (“[T]he filin g of an EEOC charge is not a jurisdictional prerequisite” to a T itle VII suit in federal court.); but see Davis v. North Carolina Dep’t of Correction , 48 F.3d 134, 137-39 (4th Cir. 1995) (before a federal court may assume jurisdicti on over a claim under Title VII, a claimant must exhaust administrative procedu res); Bullard v. Sercon Corp. , 846 F.2d 463, 468 (7th Cir. 1988) (“Title VII’s req uirement that the plaintiff exhaust the administrative remedies provided by the statute is jurisdictional; that is, a court is obligated to enforce the requirementeven if the defendant has overlooked it.”); Hrivnak v. First Michigan Corp. , 617 F. Supp. 990, 991-92 (E.D. Mich. 1985) (holding that the court lacked jurisdic tion where plaintiff did not file a charge with the EEOC or pursue administrative rem edies before filing suit and distinguishing Zipes because the plaintiff there failed only to meet th e statutory time limit, a provision separate from the jurisdict ional provision). (continued...) - 2 - that it lacked jurisdiction over the action because Jones had failed to exhaust her administrative remedies. We affirm. Exhaustion of administrative remedies is a “jurisdi ctional prerequisite” to suit under Title VII. Sampson v. Civiletti , 632 F.2d 860, 862 (10th Cir. 1980). 11 (...continued)

Nevertheless, even after Zipes our court has referred to the requirement of an EEOC filing (as opposed to a mere requirement of a timelyfiling) as a jurisdictional requirement. See e.g. , Knopp v. Magaw , 9 F.3d 1478, 1479 (10th Cir. 1993) (“In the Tenth Circuit, administrative ‘ [e]xhaustion is a jurisdictional prerequisite to suit under 42 U.S.C. § 2000e-16.’”) ; Khader v. Aspin , 1 F.3d 968, 970 (10th Cir. 1993) (stating that “‘exhaustion of administrative remedies is a jurisdictional prerequisite’ to instituting a Title VII action in federal court”); Hill v. Ibarra , 954 F.2d 1516, 1522 (10th Cir. 1992) (citing Samp sonfor the proposition that “failure to exhaust administrative remedies as required by 42 U.S.C. § 2000e-16 precludes enforcement of rights c reated under Title VII”); Johnson v. Orr , 747 F.2d 1352, 1356 (10th Cir. 1984) (“The Tenth Circuit has held that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under § 2000e-16.”); Harbison v. Goldschmidt , 693 F.2d 115, 118 (10th Cir. 1982) (with respect to a Title VII action, “[t]he c onsistency as to issues or claims in the agency and the court is also an aspect of th e required exhaustion of administrative remedies which is treated as a juris dictional matter”); but see United States v. Woods , 888 F.2d 653, 654 (10th Cir. 1989) (dicta contain ed in a parenthetical characterizing Zipes as standing for the proposition that “exhaustion of administrative remedies is not [a] jurisdictiona l prerequisite to [a] Title VII suit but [is] merely [a] condition precedent subjec t to waiver and estoppel”), cert. denied , 494 U.S. 1006 (1990). Because one panel cannot overturn the decision of aprior panel, we are bound by our prior Tenth Circuit authority. In re Smith , 10 F.3d 723, 724 (10th Cir. 1993), cert. denied , 115 S. Ct. 53 (1994). In any event, the distinct ion between whether a prior EEOC filing is a jurisdicti onal requirement or a nonjurisdictional condition precedent that can be waiv ed is immaterial with respect to Jones’ underlying claim for sex discrimination. Th e defendant here, in its motion to dismiss, unequivocally asserted Jones’ failure t o assert that claim before the EEOC , and thus there was no waiver by this defendant of that defense, even if it is considered to be a non-jurisdictional defense. The district court dismissed the underlying claim for sex discrimination on this bas is, and as pointed out in the text, we find no error in that ruling. - 3 - We review de novo the district court’s dismissal of an action for lack of subject matter jurisdiction. Weiss v. United States , 889 F.2d 937, 938 (10th Cir. 1989); see also Vinieratos v. United States Dep’t of Air Force , 939 F.2d 762, 767-68 (9th- 4 -

Cir. 1991) (whether claimant has exhausted his admi nistrative remedies is a question of law reviewable de novo). Jones, as an employee of the United States Postal S ervice, filed a complaint of sex discrimination with the Postal Service on Se ptember 4, 1990. After the Postal Service rendered its “Final Agency Decision” of no discrimination, Jones appealed to the United States Equal Employment Oppo rtunity Commission (EEOC). The EEOC likewise found that Jones had notbeen subjected to unlawful discrimination. Jones then filed this action again st the Postal Service in the United States District Court for the Western Distri ct of Oklahoma. The district court found, however, that the issues raised in Jon es’ complaint had not been raised before the EEOC, and therefore had not been administratively exhausted. “[W]hen an employee seeks judicial relief for incid ents not listed in his original charge to the EEOC, the judicial complaint neverthe less may encompass any discrimination like or reasonably related to the al legations of the EEOC charge . . . .” Ingels v. Thiokol Corp. , 42 F.3d 616, 625 (10th Cir. 1994) (quotations omitted). Therefore, we examine both Jones’ origin al charge to the EEOC and her federal court complaint to determine whether th e issues she raised to the district court were both new and unrelated to her E EOC charges, thus defeating the court’s jurisdiction over her action.2 Specifically, Jones told the EEOC, “The type of har assment you have

listed is sex-female, this is incorrect . I was not discriminated against because of being female . I was discriminated against because of a relatio nship between Carl Noblit [the supervisor] and Alice Kilgore [the empl oyee with whom Noblit had a romantic relationship].” Plaintiff’s App. at 175 ( emphasis added). - 5 - In her formal EEOC complaint, Jones alleged her rig hts had been violated because another woman for whom the supervisor profe ssed love was promoted instead of her, and she alleged that the other woman had submitted to sexual advances from that supervisor. The supervisor was one of three officials having input in the promotion decision. Jones asserted sh e was discriminated against because she was denied the promotion even though sh e was qualified. Jones later notified the EEOC that she was not complaining of s exual discrimination because she was a female, but rather discrimination based o n the relationship between the supervisor and the woman who was promoted. 2The EEOC found that while Jones had included a statement in her affidavit that the supervisor made a remark to her on an unspecified date that she interpreted to be asexual advance, that allegation was not raised in her formal complaint, which conce rned only the promotion of another woman. Thus, any suggestion of personal se xual harassment was not timely raised before the EEOC and therefore it woul d not be considered. The EEOC framed Jones’ issue as being “whether [Jones] has established that she was discriminated against on the basis of sexual harass ment when she was nonselected for promotion . . . .” Plaintiff’s App. at 264.3 As discussed above, Jones’ claim before the EEOC wa s not that she

was discriminated against because of her sex, but that she was discriminated (continued...) - 6 - In the district court, Jones changed her complaint to allege that submission “to unwelcome sexual advances from supervisors was a condition precedent to promotion.” Id. at 108. Jones alleged that she had refused the se xual overtures of her supervisor, which occurred two weeks prior to the promotion interview. She concluded that she was not selected because of her refusal and because the supervisor had instead selected another woman who h ad not “openly rebut[ted]” his sexual demands. Id. at 107. She alleged the supervisor also failed to disclose information adverse to the selected woman which wou ld have prohibited her promotion if revealed. The district court granted defendant’s motion to di smiss, holding that Jones had not exhausted her administrative remedies. The court held that in the district court Jones was alleging quid pro quo sexual harass ment and the existence of a hostile work environment, issues she had not raisedto the EEOC. We agree. Jones specifically stated to the EEOC that she was not claiming she personally was subjected to sexual harassment. She, therefore , explicitly abandoned that issue and, thus, failed to exhaust it before the EE OC. Exhaustion of administrative remedies is required before a plaint iff may bring a federal action. Sampson , 632 F.2d at 862. 33 (...continued)

against “because of a relationship between [her sup ervisor] and [a co-worker].” To the extent Jones reasserts this claim on appeal, independent of her quid pro quo and hostile environment claims argued in the di strict court, we do not reach it because it was not argued before the district court . See Federal Deposit Ins. Corp. v. Bachman , 894 F.2d 1233, 1235 (10th Cir. 1990). The distri ct court found that Jones was not claiming in the district c ourt that a “romantic relationship between others in the workplace result ed in the unfair non-selection of [Jones] for a promotion.” Indeed, the district court observed that “plaintiff clarified that this was nother claim.” District Court Order at 1 (emphasis a dded); see also id. at 3. Rather, the district court concluded that J ones was alleging “quid pro quo sexual harassment and the existence o f a hostile work environment,” id. at 1, and that her allegations regarding the alleg ed romantic relationship were made only in support of these cla ims, see id. at 1-2. Jones has not objected to this characterization of her claims . Finally, we likewise do not reach Jones’ claim on appeal that the EEOC inadequately investigated her claims during its administrative review because this issue was not raised below. - 7 - Jones also alleged in the district court that defen dant retaliated against her for filing her EEOC complaint. The alleged retaliatory acts included not giving her a step increase as required by personnel polici es and practices and, ultimately, suspending her. We note that although the retaliat ion claim was not brought before the EEOC, this fact is not necessarily dispo sitive. “[A]n act committed by an employer in retaliation for the filing of an EEO C complaint is reasonably related to that complaint, obviating the need for asecond EEOC complaint.” Ingels , 42 F.3d at 625 (quotations omitted). The issue h ere, however, is whether Jones’ retaliation claim was properly before the co urt where the court had no underlying claim on the merits properly before it. In other words, may a party bring an action for retaliation which has not been exhausted before the EEOC,4 We here address only the issue as framed. If Jones ’ underlying claim

were properly before the court, the court could add ress the retaliation claim regardless of whether she prevailed on her underlyi ng claim. See Ingels , 42 F.3d at 625 n.8.

5 The principle of ancillary jurisdiction “recognizes federal courts’ jurisdiction over some matters (otherwise beyond th eir competence) that are incidental to other matters properly before them.” Kokkonen v. Guardian Life Ins. , 114 S. Ct. 1673, 1676 (1994); see also Sandlin v. Corporate Interiors Inc. , 972 F.2d 1212, 1216 (10th Cir. 1992) (ancillary jur isdiction is based on the premise that a court may exercise jurisdiction to d ecide matters incident to the disposition of a dispute properly before it even th ough it would not otherwise have jurisdiction over the matters) (citing 6 Charl es A. Wright et al., Federal Practice & Procedure § 1444 at 316-17 (2d ed. 1990)). - 8 - when the underlying Title VII violation claim simil arly was not exhausted before the EEOC and thus, even the underlying claim was no t properly before the court? 4 We answer in the negative. When a party brings a claim of retaliation in conju nction with a Title VII claim, the party asks the court to exercise ancilla ry jurisdiction 5 over the retaliation claim. See Gupta v. East Tex. State Univ. , 654 F.2d 411, 413-14 (5th Cir. 1981) (district court has ancillary jurisdicti on to hear retaliation claim growing out of earlier charge of Title VII violatio n). We have held that a court has jurisdiction over ancillary claims “so long as the court has jurisdiction of the main claim between the original parties.” King Fis her Marine Serv., Inc. v. 21st Phoenix Corp. , 893 F.2d 1155, 1158 (10th Cir.), cert. denied , 496 U.S. 912 (1990); see also First Golden Bancorporation v. Weiszmann , 942 F.2d 726, 731- 9 -

(10th Cir. 1991) (if jurisdictional prerequisites are satisfied when the suit originates, subsequent events will not defeat juris diction). Thus, a court has jurisdiction to hear an ancillaryclaim of retaliation only when the main administrative charge is properly bef ore the court. See Barrow v. New Orleans S.S. Ass’n , 932 F.2d 473, 479 (5th Cir. 1991) (because one of plaintiff’s ADEA claims was untimely and the other had not been presented first to the EEOC, claims were not properly before the co urt and retaliation charge had “no charge on which to attach itself,” therefore, c ourt had no jurisdiction over retaliation claim); Hargett v. Valley Fed. Sav. Ban k , 60 F.3d 754, 762 (11th Cir. 1995) (because underlying age discrimination claim was untimely and because plaintiff did not move to amend complaint until aft er pretrial order entered, court did not abuse its discretion in denying retaliationamendment); cf. Gottlieb v. Tulane Univ. , 809 F.2d 278, 284 (5th Cir. 1987) (because plaint iff’s initial Title VII claim was properly before the court, court had ancillary jurisdiction over retaliation claim). While an ancillary claim of re taliation “does not require that the plaintiff prevail on the underlying claim of di scrimination,” Ingels , 42 F.3d at 625 n.8, such a claim does require that the plainti ff satisfy all jurisdictional prerequisites with respect to the underlying claim of discrimination when, as here,6 The distinction between characterizing the EEOC fil ing requirement

as either jurisdictional or as a non-jurisdictional affirmative defense could have an impact on our ruling regarding Jones’ retaliatio n claim. As pointed out above, we are obligated to consider this requirement as ju risdictional by our prior precedent, and thus our analysis of Jones’ retaliat ion claim proceeded accordingly. If, however, we were to conclude thatthe filing requirement is nonjurisdictional, then the district court would have had ancillary jurisdiction to consider the non-exhausted retaliation claim. See Ingels , 42 F.3d at 625.

7 Because of our decision here, we need not reach Jon es’ claim of entitlement to a trial by jury. - 10 - the retaliation claim suffers the defect of non-exh austion and jurisdiction is sought to be maintained as ancillary jurisdiction. 6 The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED

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