UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CRYSTAL BOND, Plaintiff - Appellant,

v. CHRISTINE WORMUTH, Secretary, U.S. Department of the Army, Defendant - Appellee. No. 22-5019 (D.C. No. 4:20-CV-00594-GKF-SH) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , KELLY , and MATHESON , Circuit Judges.

________________ _________________ Crystal Bond appeals the district court’s grant of summary judgment in favor of the U.S. Army Corps of Engineers (“Army Corps”) on her employment discrimination claims under the Rehabilitation Act, Title VI I, and 5 U.S.C. § 2302. Although the court determined that Ms. Bond failed to exhaus t her administrative remedies, it dismissed these claims on the merits. Exercising juri sdiction under 28 U.S.C. § 1291, we affirm

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 14, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 12 summary judgment for failure to exhaust administrative re medies and remand to the district court to dismiss thes e claims without prejudice.
I. BACKGROUND
A. Factual History In early 2018, Ms. Bond, a cartographer with the Army Corps, was diagnosed with post-traumatic stress disorder (“ PTSD”). Beginning in March 2018, she submitted successive applications for unpaid leave under the Family Medical Leave Act (“FMLA”). With each application, Ms. Bond attached documentation from her counselor, Lisa Cragar, who explained th at Ms. Bond’s PTSD prevented her from returning to work. 1 Ms. Bond’s supervisor, Dan Hern andez, granted each application until Ms. Bond had used the 12 weeks perm itted under the FMLA. He informed Ms. Bond that she would “be expect ed to return to work” afte r that period. Suppl. App., Vol. I at 189. During May and June, Ms. Bond made oral requests to telework. Mr. Hernandez denied these requests. While absent from work, Ms . Bond applied for Social Security disability income and work ers’ compensation. The Social Security Administration (“SSA”) eventually denied Ms. Bond’s application, explaining that

1 In Ms. Bond’s first FMLA application, Ms. Cragar certified that Ms. Bond “needs a minimum of 4 weeks off work to pr ocess her grief and tr auma.” App., Vol. I at 51-54. In her second FMLA applicat ion, Ms. Cragar stat ed that Ms. Bond had “shown some worsening symptoms of grie f, panic, and anxi ety” and recommended that she “continue work leav e for a minimum of another 6 months then re-evaluate progress at that time.” S uppl. App., Vol. I at 184-87. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 23 her condition was not severe enough to keep her from doing “simpl e, routine work.” Id . at 201. In her submission to the Office of Workers’ Compensation in the Department of Labor, Ms. Bond included Ms . Cragar’s work ca pacity evaluation, which reported that Ms. Bond could work “0” hours a week and that “alternative work locations would not improve [Ms. Bo nd’s] ability to perform work duties.” Id

. at 204. On May 25, 2018, Ms. Bond’s FMLA leave expired, but she did not return to work or respond to Mr. Hernandez’s inquiries. 2 In September, sh e wrote a letter to Mr. Hernandez stating that “based on my medical condition, symptoms, diagnosis, medications and prognosis, fo r me to return to the Ca rtographer Position at [the Army Corps] is not physically or psychol ogically possible, for the foreseeable future.” Id. at 199-200. She requested worker s’ compensation and immediate disability retirement. She attached the letter from the SSA denying her request for disability benefits.

2 Mr. Hernandez repeatedly attempted to contact Ms. Bond but received no response. In June, he notif ied her that she had not give n him a “medical provider’s prognosis” nor “any information indicati ng whether your condition has improved or resolved” and warned that “[u]nle ss you provide me medical documentation regarding your availability to return to wo rk, there appears to be no foreseeable end to your absence.” Suppl. App., Vol. I at 192-94. In September, Mr. Hernandez sent another notification informing Ms. Bond that she had been in absent without leave (“AWOL”) status for 448 hour s and warning that if she did not “return to work on a full-time and regular basis, disciplinary action may be taken, up to and including removal from federal service.” Id. at 198. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 34 Mr. Hernandez, understanding the SSA de termination to confirm that Ms. Bond could work, requested “a statement fr om your medical pr ovider indicating your ability to return to work, the likely timeframe of doing so, the type of work you are capable of performing, and whether an accommodation may be appropriate.” Id

. at 206-07. He attached the Department of Labor reasonable accommodation form. Ms. Bond responded that she could not “return to any of my past work, or, my former career,” but that she “could proba bly work something low stress, simple/routine/repetitive, lo cal, with no commute” and s uggested “stuffing envelopes from the safety of my own home.” Id. at 209. She reiterated that “I am not able to fulfill th[e] responsibiliti es” of a cartographer. Id

. When Ms. Bond returned the reasonabl e accommodation form, she wrote, “I don’t know what my options are” in the space provided to request an accommodation. Id. at 215. Ms. Cragar submitted a medical evaluation stating she could not “see or identify any accommodations that could be made to [Ms. Bond’s] current job position that could allow her to complete the mental tasks needed for the job.” Id. at 216. In January 2019, the Army Corps sent Ms. Bond a Notice of Proposed Removal for excessive absence and absence w ithout leave. Ms. Bond did not appeal the notice and confirmed that she was “unable to work.” Id. at 224-25. Her removal from the Army Corps became effective on March 15, 2019. She was given mailed notice that her health benefits would expire in 31 days. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 45 Months later, Ms. Bond contacted Duane Braxton, a human resources representative for the Army Corps, about her lapsed medical insurance. On October 25, 2019, Mr. Braxton sent an em ail to Ms. Bond explaining that her insurance had lapsed because she had not elected covera ge after being removed from service. Ms. Bond responded to that em ail on November 7, 2019, and received no further response.
B. Procedural History On December 12, 2019, Ms. Bond contact ed the EEOC of Tulsa, Oklahoma, alleging she had experi enced discrimination. 3 The Tulsa District Office dismissed Ms. Bond’s formal EEO Complaint for unt imely contact with an EEO counselor under 29 C.F.R. § 1614.107( a)(2). Ms. Bond appealed to the EEOC Office of Federal Operations, which affirmed th e dismissal for untimely EEO Counselor contact and issued a right-to- sue letter. In it s decision, the EEOC noted that although Ms. Bond claimed her inability to read her removal no tice until November 2019 was the reason for her delayed contact, its inves tigation concluded that she “was able to think, read, and communicate clearly during this period.” Suppl

. App., Vol II at 444. Ms. Bond sued the Secretary of the Army as the head of the Army Corps on November 23, 2020. She filed an ame nded complaint the next day, asserting

3 The parties dispute whether the record shows Ms. Bond initiated contact with the EEOC in December 2019 or Febr uary 2020. As the district court did, we draw all reasonable inferences in Ms. Bond’s favor on summary judgment review and use the earlier date—December 12, 2019—as the date of first contact. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 56 violations of (1) the Americans with Di sabilities Act (“ADA”), 42 U.S.C. §§ 12101 et. seq. ; (2) 5 U.S.C. § 2302 for prohibited pers onnel practices; (3) the Rehabilitation Act, 29 U.S.C § 791; (4) Title VII for unlawful discrimination based on sex or gender; and (5) 29 U.S.C. § 1140 for interf erence with protected rights. The Army Corps moved to dismiss, a nd the district court dismis sed the ADA and 29 U.S.C. § 1140 claims with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). At summary judgme nt, the district court dismissed the remainder of Ms. Bond’s claims. It held that she had fail ed to exhaust her administrative remedies and that her claims failed on the merits . The court entered judgment dismissing “the action. . . on th e merits.” App., Vol. III at 263.
II. DISCUSSION On appeal, Ms. Bond asserts the distri ct court erred in granting the Army Corps’ motion for summary judgment. 4 Ms. Bond does not adequately challenge the district court’s holding that she did not exhaust her admini strative remedies, and even had she adequately addressed this issue, she failed to initiate the administrative process in a timely manner. We affirm the district court’ s grant of summary judgment to the Army Corps on this ground.

4 Ms. Bond has not appealed the district court’s Rule 12(b)(6) dismissal order. Thus, her claims under the ADA and 29 U.S.C. § 1140 are not at issue. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 67 A. Standard of Review “We review summary judgment determin ations de novo, applying the same standard as the district court.” Smothers v. Solvay Chems., Inc ., 740 F.3d 530, 538 (10th Cir. 2014). “We view the facts in the light most favorable to the non-moving party and draw all reasonable infe rences in his or her favor.” Osborne v. Baxter Healthcare Corp ., 798 F.3d 1260, 1266 (10th Cir. 2015). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matt er of law.” Fed. R. Cir. P. 56(a). “The issue whether a plaintiff has exha usted her administra tive remedies is a legal question that we also review de novo.” Dossa v. Wynne , 529 F.3d 911, 913 (10th Cir. 2008).
B. Legal Background The Rehabilitation Act requires federa l employers to “provide reasonable accommodations to disabled employees.” Sanchez v. Vilsack , 695 F.3d 1174, 1177 (10th Cir. 2012); see 29 U.S.C. § 794. 5 Title VII prohibits an employer from “discriminat[ing] against any individual with respect to [her] co mpensation, terms,

5 The Rehabilitation Act incorporates th e ADA definition of “disability” as “a physical or mental impairme nt that substantially limits one or more major life activities.” 29 U.S.C. § 705(9)(B) (referri ng to 42 U.S.C. § 12102(1)(A)). The Army Corps does not dispute, for pur poses of this appeal, that Ms. Bond is disabled within the meaning of the statute. See, e.g., Aplee. Br. at 18. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 78 conditions, or privileges of employment, becau se of such individual’s race, color, religion, sex, or national origin .” 42 U.S.C. § 2000e-2(a)(1). Both the Rehabilitation Act and Title VII require a cl aimant to “comply with specific administrative complain t procedures in order to exhaust their administrative remedies” before bringing a discrimi nation claim in federal court. Hickey v.
Brennan , 969 F.3d 1113, 1118 (10th Cir. 2020) (quotations omitted); see also Green
v. Brennan , 578 U.S. 547, 550 (2016). Federal employees must “initiate contact” with an EEO counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). Althoug h the “regulatory exhaustion requirement is not a jurisdicti onal prerequisite,” it is a “claims-processing rule that the employer may raise as an affirmative defense.” Hickey , 969 F.3d at 1118

. This defense is “subject to waiver, estoppel, and equitable tolling,” see Lincoln v. BNSF Ry. Co ., 900 F.3d 1166, 1183 (10th Cir. 2018), but a “court must enforce this exhaustion requirement if the employer properly raises it,” Hickey , 969 F.3d at 1118. Section 2302 of Title 5 prohibits th e federal government from implementing personnel practices that discriminate agai nst employees on the basis of protected statuses. 5 U.S.C. § 2302(b)(1). When a personnel action is suff iciently serious, like removal or demotion, and the employee alleges the acti on constituted discrimination prohibited by another federal statute, the employee’s claim is c onsidered a “mixed
case.” See Kloeckner v. Solis , 568 U.S. 41, 44 (2012). A federal employee with a mixed case has the choice to initiate a comp laint either with (1 ) the agency’s EEO office or (2) the Merit System s Protection Board (“MSPB”). See 29 C.F.R. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 89 § 1614.302(b). Because an employee may not pursue a mi xed case in two forums, “[w]hichever is filed first shall be consider ed an election to pro ceed in that forum” and the employee must exhaust administrati ve remedies consistent with the forum’s timeliness constraints. See Jones v. U.S. Dep’t of Just ., 111 F. Supp. 3d 25, 31 (D.D.C. 2015) (quotations omitted); see also 29 C.F.R. §§ 1614.302(c)(1), 1614.105(a)(1).
C. Analysis The Army Corps asserted fa ilure to exhaust as an af firmative defense. Dist. Ct. Doc. 11 at 7-13. The district court found that Ms . Bond did not exhaust her administrative remedies because she failed to contact the EEOC within 45 days of a qualifying act of discrimination. 6 We affirm the district court’s grant of summary judgment for the Army Corps on this ground.
Waiver Ms. Bond has not adequately appealed th e district court’s determination that she failed to exhaust her admi nistrative remedies. Although she states in the “issues presented” section of her opening brief th at her contact with the EEOC was timely,

see Aplt. Br. at 10, she does not develop this argument. In her “statement of the case” section, she identifies November 7, 2019—the date sh e sent her final email to

6 Ms. Bond brought her mixed case und er 5 U.S.C. § 2302 to the EEOC rather than the MSPB. In choosing that fo rum, she is bound to the EEOC’s 45-day limitations period for all her claims. See Jones , 111 F. Supp. 3d at 31 (“A plaintiff may file a mixed-case complain t with his agency’s EEO o ffice or with MSPB, but not both.”). Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 910 Mr. Braxton—as the “most recent adverse action by the Agency,” but she proffers no authority to support her theory that an email she sent can constitut e discrimination on the part of her employer. Aplt. Br. at 20. The Army Corps contends that Ms . Bond has “arguably abandon[ed]” her exhaustion argument. Aplee. Br. at 23 n.4. We agree. Her omission of an exhaustion argument in her openi ng brief waives the issue. See Utah Env’t Cong. v. Bosworth , 439 F.3d 1184, 1194 n.2 (10th Cir. 2006) (“An issu e mentioned in a brief on appeal, but not addressed, is waived. ”). Because “issues designated for review are lost if they are not actually argued in the party’s brief,” Muscogee (Creek) Nation v.
Pruitt , 669 F.3d 1159, 1166 (10th Cir. 2012) (quotations omitted), she must do more than merely list exhaustion as an i ssue on appeal. She did not do more, so she has waived the issue of whether her contact with the EEOC was timely.
Failure to Contact an EEO Counselor Within 45 Days Even if Ms. Bond had presented an ade quate exhaustion argument, we hold, like the district court, that her contact with the EEOC was untimely. Ms. Bond cannot identify “an adverse employment action” su ch as “firing” or a “decision causing a significant change in benefits ” that occurred within 45 da ys of her contact with the
EEOC. See Hiatt v. Colo. Seminary , 858 F.3d 1307, 1316 (10th Cir. 2017) (quotations and alterations omitted). The only event within 45 days of Ms . Bond’s contact with the EEOC on December 12, 2019, was the November 7, 2019 email she sent to Mr. Braxton Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 1011 inquiring about her health insurance. Bu t this email was not a qualifying adverse employment action. First, Ms. Bond’s lapse in medical insurance was not an independent discriminatory act but a cons equence of her termination, 7 and a challenge on December 12, 2019, to Ms. Bond’s Marc h 15, 2019 terminati on of employment would have been untimely. See Del. State Coll. v. Ricks , 449 U.S. 250, 258 (1980) (quotations omitted) (The “proper focus is upon the time of the discriminatory acts , not upon the time at which the consequences of the acts became most painful.”). Second, Ms. Bond’s own email on Novemb er 7, 2019, cannot constitute an “adverse employment action” or a “decision causing a signi ficant change in benefits” because it was her act, not the Army Corps’. Hiatt , 858 F.3d at 1316. As the district court explained, “the releva nt action is that of the em ployer, not the employee.” Suppl. App., Vol. II at 514. Because Ms. Bond fails to identify any adverse em ployment action within 45 days of her contact with the EEOC, the dist rict court correctly determined that she failed to properly exhaust her administra tive remedies, warranting dismissal of her claims. Nor is Ms. Bond en titled to equitable tolling ba sed on her argument that her “continuing symptoms affect ed her ability to timely r eceive her mail and to make timely responses.” Aplt. Br. at 21. Equitable tolling a pplies when an employee is

7 As noted above, when Ms. Bond was fired on March 15, 2019, she was given notice that her medical insuranc e would expire 31 days later. Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 1112 “lulled into inaction by her past employe r” or “actively misl ed,” not when the employee simply “failed to exercise due d iligence in preserving h[er] legal rights.” Moneoya v. Chao , 296 F.3d 952, 957-58 (10th Cir. 2002) (quotations omitted). Nothing in the record sugge sts that Ms. Bond was “activ ely misled” or otherwise prevented from making timely contact with the EEOC. On the contrary, Ms. Bond pursued disability retirement and workers’ compensation be nefits, and she applied for Social Security benefits while her sympto ms persisted. Afte r her termination and before contacting the EEOC, she corresponded with Mr. Braxton. The district court concluded that estoppel wa s inappropriate because Ms . Bond was “capable of pursuing [her] own claim.” Suppl. App., Vol. II at 516 (quoting Biester v. Midwest Health Servs., Inc ., 77 F.3d 1264, 1269 (10th Cir. 1996)). We agree.
III. CONCLUSION We affirm summary judgment for the Army Corps on the ground that Ms. Bond failed to exhaust her administrative remedies. In addition to addressing the exhaustion issue, the district court ultimately granted su mmary judgment in favor of the Army Corps by determining that Ms. Bond ’s claims lacked me rit. “Because we express no opinion on the merits of [the Army Corps’] motion for summary judgment” and address only the exhaustion is sue, and because “dismissal based on a failure to exhaust administ rative remedies should be without prejudice,” Smith v. Cheyenne Ret. Invs. L.P ., 904 F.3d 1159, 1166 (10th Ci r. 2018) (quotations omitted), 8

8 Although exhaustion is no longer a jurisdictiona l requirement, we still dismiss unexhausted claims without prejudice. See Smith , 904 F.3d at 1166; see also Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 1213 we remand to the district c ourt with instructions to re vise its summary judgment order to dismiss Ms. Bond’s claims at issu e here without prejudi ce and to revise the judgment accordingly.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge

Joritz v. Univ. of Kan. , No. 20-3234, 2022 WL 817968, at *3 (10th Cir. Mar. 18, 2022) (“A dismissal [for failur e to exhaust] is ordinarily without prejudice,” and this is “true whether or not the failure to exhaust is considered jurisdictional.”); Cirocco v. McMahon , 768 F. App’x 854, 855 (10th Cir. 2019) (“[W]e affirm the district court’s decision that [plain tiff] failed to exhaust her administrative remedies but remand with instructions. . . to dismis s the case without prejudice based on the affirmative defense of failure to exhaust ad ministrative remedies, ra ther than for lack of subject-matter jurisdiction.”). Appellate Case: 22-5019 Document: 010110782912 Date Filed: 12/14/2022 Page: 13