* This order and judgment is not binding precedent, e xcept under the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

### OCT 2 1997 

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

LEE R. PHILLIPS,

Plaintiff-Appellant,

v. SHEILA E. WIDNALL, Secretary of the Air Force, in her official capacity; and DEPARTMENT OF THE AIR FORCE, Defendants-Appellees. Nos. 97-2032, 97-2089, & 97-2090 (D.C. Nos. CIV-94-1044-M, CIV-93-1540-JP, & CIV-96-1831-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ases are therefore ordered submitted without oral argument. In these appeals, we review three lawsuits filed by plaintiff Lee R. Phillips against her former employer. In each district court case, plaintiff claimed that defendants violated her rights under 29 U.S.C. § 79 1 of the Rehabilitation Act, Title VII, 42 U.S.C. §§ 2000e through 2000e-17, andNew Mexico state law. She alleged a failure to accommodate her handicap, discrimination against her on the bases of sex and age, retaliation, and a hostil e work environment. One case also alleged defendants violated the Privacy Act, 5 U.S.C. § 552a. We address each case in the order it was filed in the districtcourt.
Appeal No. 97-2089 In this case, the district court dismissed without prejudice plaintiff’s Rehabilitation Act and Title VII claims, and dispos ed of her Privacy Act claims on the merits. In an earlier appeal, plaintiff app ealed all but one of the district court’s Privacy Act rulings. This court resolved those claims after the district court certified the issues for appeal pursuant to F ed. R. Civ. P. 54(b).
See Phillips v .Widnall , No. 96-2099, 1997 WL 176394 (10th Cir. Apr. 14, 1 997). The claim retained in the district court was “plain tiff’s action for an injunction allowing her to review and copy her employment reco rds.” R. vol. 2, doc. 79 at 8 (district court’s Jan. 22, 1996 memorandum opinion and order). The district court-3-

held a hearing on November 27, 1996, and found thatplaintiff had been allowed to read and copy her employment records. See R. vol. 4, doc. 129 at 4 (district court’s Jan. 21, 1997 order of dismissal). Consequ ently, the district court dismissed the case, and denied plaintiff’s pending motions. See id. at 7. On appeal, plaintiff asserts that the district court erred in (1) dismissing her Privacy Act claims without making findings of fact and conclusions of law on whether the records maintained by defendants were c omplete, (2) denying her request for costs based on her status as a prevaili ng party, (3) refusing to recuse, and (4) failing to provide plaintiff a fair hearing . She also alleges an impropriety in the preparation and submission of an order. Plaintiff’s claims that her employment and medical records were incomplete were addressed in her prior appeal, see Phillips , 1997 WL 176394 at **2-3, so we do not address them here. We also do not address her claim that she was a prevailing party because she has advanced no argument or authority in support of this claim. See Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues.”). Plaintiff argues that the district judge was biased and prejudiced against her, and that he afforded preferential treatment to defendants. We review “the-4-

denial of a motion to recuse only for abuse of disc retion.” Weatherhead v. Globe Int’l, Inc. , 832 F.2d 1226, 1227 (10th Cir. 1987). Plaintiff’ s grounds for recusal are that the district judge made rulings adverse to her in the course of the litigation. Judicial rulings alone almost never co nstitute a valid basis for recusal based on bias or partiality. See Liteky v. United States , 510 U.S. 540, 555 (1994). Therefore, we find no abuse of discretion in the district court’s denial of the recusal motion. Plaintiff alleges she did not receive a fair hearin g. Once again, she attempts to argue that the records maintained by de fendants were incomplete, an issue not before us. To the extent plaintiff ar gues that the district judge incorrectly resolved the question of whether defend ants had permitted her to review her file, her attorney agreed with the court ’s understanding that plaintiff had reviewed the file, see R. vol. 3, Hr’g Tr. at 24, and plaintiff does not dispute that statement now. Plaintiff also complains that the district judge an d the attorney for defendants engaged in improper extrajudicial commun ication. Plaintiff’s claim is based on defense counsel’s statement that, at th e court’s request , she drafted-5-

a written order of the court’s oral ruling made at the hearing. See id. vol. 4, doc. 125 at 4. Plaintiff also claims that defense counsel misrepresented to the court that her attorney had approved the proposed o rder, when, in fact, defense counsel informed the court that plaintiff’s attorne y had notapproved it. Plaintiff has failed to demonstrate any impropriety in the di strict court’s request that counsel prepare an order, particularly where the or der conformed to the oral ruling and there is no claim that the court and cou nsel discussed the merits of the case. For the reasons set forth above, the judgment of th e district court in appeal No. 97-2089 is AFFIRMED.
Appeal No. 97-2032 As a preliminary matter, we address defendants’ obj ection to the materials attached to plaintiff’s opening brief on appeal. B ecause those materials were not presented to the district court, we do not considerthem. See Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992). Plaintiff filed this case as a consequence of the o rder in the preceding case, appeal No. 97-2089, dismissing without prejudice he r claims based on the Rehabilitation Act and Title VII on the ground thatshe had failed to exhaust administrative remedies. A different district court judge again dismissed the claims without prejudice for failure to exhaust adm inistrative remedies.-6-

“[E]xhaustion of administrative remedies is a juris dictional prerequisite to instituting a Title VII action in federal court.” Khader v. Aspin , 1 F.3d 968, 970 (10th Cir. 1993) (quotation omitted). We review de novo the question of this court’s subject matter jurisdiction. See id. at 971. Plaintiff filed an Equal Employment Opportunity (EE O) complaint against defendants in 1988 which was settled in 1990. Ther eafter, plaintiff alleged that defendants breached the agreement, and she filed a formal request to enforce it. The matter proceeded to the Equal Employment Opport unity Commission (EEOC), who remanded to defendants’ EEO office on O ctober 1, 1993. The EEOC ruled that plaintiff’s complaints should be br ought as new claims, rather than as a claim to enforce the prior agreement. On remand, defendants sought to hold a “final interview” with plaintiff, pursuant t o 29 C.F.R. § 1614.105(d), but she declined to attend on two occasions. In additi on to her attempts to enforce the 1990 agreement, plaintiff’s amended complaint a lleged that she had filed several formal discrimination complaints against de fendants during the period from September, 1992 through March, 1994. The district court concluded that plaintiff had aba ndoned her claims in the administrative process. The order of dismissal ind icates that the district court’s conclusion was based on plaintiff’s failure to meetwith defendants’ EEO counselor following the October 1, 1993 remand fromthe EEOC. The district-7-

court also held that, as a federal employee, plaint iff was required to permit the administrative process to reach a conclusion. The district court’s order leaves unclear two quest ions necessary to the resolution of plaintiff’s duty to exhaust administr ative remedies: (1) whether her refusal to meet with defendants’ EEO agency personn el hindered or obstructed the agency’s ability to process her claims, and (2) whe ther the EEO agency had failed to resolve her discrimination complaints within the time set forth in 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.408(b), thereby permitting her to file her federal court lawsuit. To fulfill her obligation to exhaust administrative remedies, a plaintiff is required to give a “‘[g]ood faith effort . . . to c ooperate with the agency and the EEOC and to provide all relevant, available information. . . .’” Khader , 1 F.3d at 971 (quoting Wade v. Secretary of Army , 796 F.2d 1369, 1377 (11th Cir. 1986)). In Khader , the plaintiff prevented the EEO agency from compl eting its task because she refused to comply with a reasonabl e request for additional information. See id. at 970-71; see also Vinieratos v. United States Dep’t of Air Force ex rel. Aldridge , 939 F.2d 762, 769 (9th Cir. 1991) (Plaintiff “did not merely abandon the EEO process[; h]e also obstructe d that process.”). Here, defendants do not claim that plaintiff’s refu sal to attend the “final interview” obstructed the administrative process. To the contrary, defendants-8-

argued to the district court that mailing the infor mation to her completed the process. See R. vol. I, doc. 17 at 12. Therefore, we remand to the district court for a determination of whether plaintiff thwarted t he EEO process. If her refusal to meet with defendants’ EEO counselor obstructed t he administrative process, then the district court is free to hold that plaint iff failed to exhaust administrative remedies as to those discrimination complaints. If , on the other hand, plaintiff did not obstruct the administrative process, then h er failure to meet with defendants’ EEO counselor cannot be the reason for concluding that she failed to exhaust administrative remedies. The district court also may examine whether plaintiff met other requirements to exhaust adminis trative remedies, such as filing the necessary documents within the applicable time limits. But see Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982) (“[F]iling a timely char ge of discrimination with the EEOC is not a jurisdictiona l prerequisite to suit in federal court, but a requirement that, like a statute of li mitations, is subject to waiver, estoppel, and equitable tolling.”). We also remand for a determination of whether plain tiff filed her federal lawsuit under the authority of 42 U.S.C. § 2000e-16 (c) and 29 C.F.R. § 1614.408(b), which permit a federal employee to p roceed in federal court if the EEO agency has not issued a final decision after 18 0 days. In her amended complaint, plaintiff alleged that defendants contin ued to discriminate against her-9-

on the basis of her handicap and in retaliation forher previous EEO complaints. She averred that she filed formal complaints with t he defendant’s EEO agency, but the agency did not finally resolve those compla ints until after 180 days had elapsed, thereby permitting her to proceed in feder al court. On remand, the district court should determine whether plaintiff m et the requirements of 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.408(b) . If so, she was not required to wait longer for the agency to issue a final deci sion before filing a federal court lawsuit. Although we find no abuse of discretion in the dist rict court’s denial of plaintiff’s second request to amend her complaint, see Creamer v. Laidlaw Transit, Inc. , 86 F.3d 167, 171 (10th Cir.), cert. denied , 117 S. Ct. 437 (1996), the district court is free to entertain an amended complaint on remand if it would be helpful to the court. The district court’s dism issal order in appeal No. 97-2032 is VACATED and REMANDED for further proceedings con sistent with this order and judgment.-10- Appeal No. 97-2090 After her complaint was dismissed without prejudice for the second time, plaintiff filed a third lawsuit, again raising her employment discrimination claims. The district court dismissed the complaint pursuantto the doctrine of res judicata, concluding that the claims had been raised and deci ded in the two prior cases. As a result of the remand in appeal No. 97-2032, th e doctrine of res judicata is not applicable to the district court’s order in thi s appeal. See Franklin Sav. Ass’n v. Office of Thrift Supervision , 35 F.3d 1466, 1469 (10th Cir. 1994). Accordingly, the district court’s judgment is VACAT ED.

Conclusion The judgment in appeal No. 97-2089 is AFFIRMED. Th e judgment in appeal No. 97-2032 is VACATED, and the cause is REMANDED for further proceedings as directed in this order and judgment. The judgment in appeal No. 97-2090 is VACATED. The mandates shall issue f orthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge