* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 12 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SHELLEY SEALS,

Plaintiff-Appellant,

v. OIL DATA, INC., a Texas Corporation, Defendant-Appellee. No. 96-5149 (D.C. No. 95-CV-511) (N.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff Shelley Seals appeals from the district c ourt’s order granting summary judgment to defendant Oil Data, Inc. on herTitle VII claim for hostile work environment based on sexual harassment and dis missing her related pendent state laws claims. Our jurisdiction over this appe al arises under 28 U.S.C. § 1291. We review the district court’s grant of su mmary judgment de novo, applying the standards of Fed. R. Civ. P. 56(c), as did the district court. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Under Rule 56, we determine if genuine issues of material fact exist which would p reclude summary judgment and, if not, whether the moving party is entitled t o judgment as a matter of law. Id. In making this determination, we view the evidenc e and any reasonable inferences drawn therefrom in the light most favora ble to the non-moving party. Id. We review the district court’s discretionary deci sion to dismiss plaintiff’s pendent state claims for abuse of that discretion. See Baker v. Board of Regents , 991 F.2d 628, 634 (10th Cir. 1993). The district court granted defendant’s motion for s ummary judgment because it concluded that plaintiff’s Title VII cla im was time-barred. Timely filing is a prerequisite to a civil suit based on T itle VII. See Martin v. Nannie & the Newborns, Inc. , 3 F.3d 1410, 1414 (10th Cir. 1993). In Oklahoma, Title VII required plaintiff to file her charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days “afte r the alleged unlawful-3-

employment practice occurs,” see id. & n.4; 42 U.S.C. § 2000e-5(e). She filed her charge with the EEOC in November of 1994, listi ng alleged incidents occurring from the fall of 1992 to April of 1994 as support for her hostile work environment claim. In sum, those incidents involve d alleged unwelcome advances and threats by co-worker Hiep Hyunh occurr ing through late 1992, and alleged advances and assaults by co-worker Troy Mac kie. All but one of the specific incidents involving Mackie occurred in 199 2; one occurred in the spring of 1994. Unless plaintiff has demonstrated applicability of an exception to the Title VII filing prerequisite, her hostile work env ironment claim, based on incidents occurring before the relevant filing peri od (here beginning in February of 1994), is time barred. See Purrington v. University of Utah , 996 F.2d 1025, 1028 (10th Cir. 1993). Plaintiff contended that her claims should not be b arred because the incidents she alleged constitute a continuing violation of Title VII. The continuing violation theory is an equitable tolling doctrine which allows a Title VII plaintiff to bring claims based on incidents ou tside of the relevant filing period if those incidents are related to incidents within the filing period such that they create a continuing pattern of discrimination. See Mascheroni v. Board of Regents , 28 F.3d 1554, 1560 (10th Cir. 1994).1 This incident was not included in plaintiff’s alleg ations in her EEOC

charge, but appeared in plaintiff’s affidavit in support of her opposition to defendant’s summary judgment motion. On appeal, pl aintiff mischaracterizes the district court’s order when she contends the court took her to task for presenting a sham affidavit. Appellant’s Br. at 27 n.3. Defend ants did object to plaintiff’s affidavit as an attempt to create a sham factual is sue. Nonetheless, the district court, although commenting that it viewed the newly alleged incident “with suspicion,” did not conclude that the affidavit was a sham, but considered the incident in its continuing violation analysis. App ellant’s App., Vol II, tab 10, at 4-5 n.3. -4- The district court rejected plaintiff’s argument th at her allegations demonstrated a continuing violation of Title VII. On appeal, plaintiff contends that the district court erred because at least fourof the incidents she set out in support of her claim occurred during the relevant t ime period. She identifies those incidents as: 1) Mackie grabbing another empl oyee’s breast in February or March of 1994 (an incident plaintiff did not witnes s), 2) sometime afterwards, Mackie grabbing plaintiff around the waist, 1 3) Mackie’s resignation in July of 1994, and 4) an offer by defendant in October of 19 94 for plaintiff to work in its Houston office, which she declined. Appellant’s Br . at 27-28. First, we agree with the district court that the la st two incidents cannot be considered part of a continuing violation because t hey are not incidents of discrimination. See Mascheroni , 28 F.3d at 1562. As to the remaining two 1994 incidents, we must determine whether they are suffi ciently related to the alleged2 Plaintiff’s general allegation that Mackie “continu ed during 1993 to touch

me offensively when he got the chance,” Appellant’s App. Vol II, tab 8, ex. E at 337, is not specific enough to constitute alleged i ncidents of discrimination. See Purrington , 996 F.2d at 1029. -5- incidents occurring in 1992 2 that the events as a whole demonstrate a “dogged pattern” of discrimination, as differentiated from isolated or singular events. See Purrington , 996 F.2d at 1028. In making this determination i n the first instance, the district court properly applied the three-facto r analysis set out in Berry v. Board of Supervisors , 715 F.2d 971, 981 (5th Cir. 1983), and adopted bythis court in Purrington , 966 F.2d at 1028. “The Berry court found three i nquiries relevant, though not exhaustive: (1) whether the a lleged acts involve the same type of violation, (2) whether the acts are recurri ng versus isolated; and perhaps most important, (3) whether the acts have the degre e of permanence which should alert the employee to the duty to assert her rights .” Id. As to the first factor, both of the 1994 incidents can be classified as incidents of sexual harassment. Incidents which support a hostile work environment claim need not directly involve the pla intiff. See id. at 1029. However, the 1994 incidents are distant in time fro m those incidents alleged to have occurred in 1992. The passage of over one yea r between the specifically alleged incidents indicates that the discriminatory conduct was neither frequent nor continuing. Cf. West v. Philadelphia Elec. Co. , 45 F.3d 744, 755-56 (3d Cir.3 The record demonstrates that plaintiff was aware of the seriousness of the incidents in 1992 and of the need to take action to protect her rights. She filed a police report against Hyunh in October of 1992, andsought a protective order against him. She complained to her supervisor about both Hyunh and Mackie in 1992. -6- 1995) (harassing incidents occurred over more than four-year period of time, increasing in frequency and without respite). The second factor weighs against plaintiff’s argument. The third factor, the permanence of a given inciden t of discrimination, is defined in part as whether the nature of the allege d discriminatory incidents would put an employee on notice of the need to asse rt his or her rights. See Mascheroni , 28 F.3d at 1561. Looking at the various incident s alleged to have occurred outside the relevant filing period in this case, and viewing the evidence in a light most favorable to plaintiff, we conclude that plaintiff should have been aware long before the alleged events in the spring of 1994 that she should have asserted her rights. The incidents she alleges as occurring in 1992 are of a more serious nature than those alleged in 1994, includin g a death threat by Hyunh and an assault by Mackie where he allegedly put his han ds down her blouse and fondled her breasts. 3 As this court has noted: The continuing violation doctrine is premised on th e equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her ri ghts have been violated. The permanence prong of the Berry test l imits the reach of the continuing violation theory by restricting its operation to those-7-

situations underscored by its equitable foundation. That is, if an event or series of events should have alerted a rea sonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctr ine to overcome the statutory requirement of filing a charge with the E EOC with respect to that event or series of events. Martin , 3 F.3d at 1415 n.6 (citations omitted); see also Galloway v. General Motors Serv. Parts Operations , 78 F.3d 1164, 1166-67 (7th Cir. 1996) (discussing policies behind third factor); Sabree v. United Bhd . of Carpenters & Joiners Local
No. 33 , 921 F.2d 396, 402 (1st Cir. 1990) (same). Given this analysis, we agree with the district cou rt that there was no genuine issue of material fact that the 1992 claims were time-barred. Even if the 1994 incidents constituted sexual harassment, they were not closely related to the 1992 incidents such that plaintiff has demonstrateda continuing violation of Title
VII. See Purrington , 996 F.2d at 1029 (two incidents of harassment of other workers, occurring a year after harassment of plaintiff do not evidence a pattern of discrimination). We conclude the district courtproperly granted summary judgment to defendant on plaintiff’s Title VII clai m for hostile work environment. Accordingly, we also discern no abuse of discretionin the district court’s decision-8-

to dismiss plaintiff’s pendent state claims. The j udgment of the United States District Court for the Northern District of Oklahom a is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge