* This order and judgment is not binding precedent, e xcept under the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

### DEC 23 2002 

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

MARY ANN O’NEAL; BEVERLY WILKINS; BEVERLY STEWART,

Plaintiffs-Appellants,

v. TOMMY THOMPSON, Secretary of Department of Health and Human Services, Defendant-Appellee. No. 01-2237 (D.C. No. CIV-97-261-JP) (D. N.M.)

ORDER AND JUDGMENT *

Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Plaintiff Beverly Wilkins appeals the district court’s determination that it lacked jurisdiction to consider her claim of hostil e work environment sexual harassment and most of her claims of retaliation. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Ms. Wilkins als o appeals the entry of summary judgment in favor of defendant on her remai ning claims of retaliation. Plaintiffs Mary Ann O’Neal and Beverly Stewart appe al the district court’s grant of summary judgment on their claims of hostile workenvironment sexual harassment and certain of their claims of retaliati on. We affirm.

I. At all relevant times, plaintiffs were employees of the Indian Health Service, Mental Health/Social Services Program Bran ch in Headquarters West building, located in Albuquerque, New Mexico. In 1 992, Mr. Frank Canizales became a co-employee and began using sexually offen sive and threatening language. After a particularly disturbing incidenton May 26, 1993, Mr. Canizales was placed on leave. Indian Health Service managem ent took steps to make sure that, upon his return from leave, Mr. Canizales wou ld not work with plaintiffs in the Headquarters West building. On some occasions, however, he would be required to attend work-related events held in the building. On these dates, plaintiffs were generally warned of his access to t he building and allowed to take-3-

administrative leave. On March 7, 1994, however, M r. Canizales entered the building, though plaintiffs were not warned that he would be present. Plaintiff O’Neal filed a administrative complaint a lleging gender discrimination. In its final agency decision, defe ndant’s EEO office recognized allegations by Ms. O’Neal, Ms. Stewart, and others that Mr. Canizales made sexually-offensive remarks. Ms. O’Neal then timelyfiled this action in federal district court. Ms. O’Neal’s co-plaintiffs were no t as diligent. Ms. Stewart did not file an administrative complaint. Ms. Wilkins filed an administrative complaint, but did not pursue her claims in federal court until almost seven months after she received the right-to-sue letter t riggering a ninety-day period in which to file suit. Defendant filed motions to dismiss for lack of juri sdiction and for partial summary judgment. Ms. Wilkins’ hostile work enviro nment claim was dismissed for failure to timely file a judicial complaint and her retaliation claims were rejected for either failure to exhaust administrati ve remedies or failure to raise a material issue of fact. The claims that survived the motions were Ms. O’Neal’s and Ms. Stewart’s retaliation claims stemming from Mr. Canizales’ entry into their workplace on March 7, 1994, their retaliation claims concerning reassignment out of state, and Ms. O’Neal’s retaliation claims concerning loss of a supervisory title and cancellation of a training opportunity. Ms. O’Neal’s and-4-

Ms. Stewart’s retaliation claims proceeded to trial and a jury found in their favor on the claim related to Mr. Canizales’ presence in their workplace. Plaintiffs are challenging the district court’s order, not the tri al verdict.

II. We review the district court’s disposition of plain tiffs’ claims de novo.
See Painter v. Shalala , 97 F.3d 1351, 1355 (10th Cir. 1996) (dismissal fo r lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)); Sterlin v. Biomune Sys ., 154 F.3d 1191, 1194-95 (10th Cir. 1998) (dismiss al for failure to comply with applicable statute of limitations); Bullington v. United Air Lines, Inc ., 186 F.3d 1301, 1313 (10th Cir. 1999) (entry of summary judgment).

III. We turn first to Ms. Wilkins’ argument that the “si ngle filing rule” rescues her hostile environment claim. The single filing r ule provides a limited exception to the requirement of filing an administrative char ge in a discrimination matter. Where applicable, the rule permits a non-filing pla intiff to join the lawsuit of a similarly-situated litigant who had filed a charge. See Thiessen v. Gen. Elec. Capital Corp ., 267 F.3d 1095, 1110 (10th Cir. 2001), cert. denied , 122 S. Ct. 2614 (2002). “The policy behind the single filing rule is that it would be wasteful, if not vain, for numerous employees, all with the same grievance, to-5-

have to process many identical complaints with the EEOC.” Id. (quotations omitted). The Tenth Circuit has applied the rule o nly in a pattern-or-practice class action suit. See id. at 1105-06, 1109-11. Furthermore, other federal c ourts of appeals have concluded that a plaintiff who file d an individual charge may not invoke the single-filing rule. “[S]uch a plaintiff should be required to rely upon his or her own . . . charge and cannot reasonably r ely upon [an]other claimant’s charge.” Gitlitz v. Compagnie Nationale Air France , 129 F.3d 554, 558 (11th Cir. 1997). See also Anderson v. Unisys Corp. , 47 F.3d 302, 309 (8th Cir. 1995) (stating that “plaintiffs who do file administrativ e charges . . . should be bound by the statute of limitations, which is normally state d in the right-to-sue letter. . . .”). In this non-class action lawsuit, Ms. Wilkins asks us to extend the single-filing rule and allow her to predicate her j udicial claim on Ms. O’Neal’s administrative complaint, even though Ms. Wilkins h erself filed an administrative complaint with defendant’s EEO office. Under the c ircumstances of this case, we decline to do so. The district court properly d ismissed her hostile environment claim for failure to file a lawsuit within the appl icable statute of limitations. As to the dismissal of Ms. Wilkins’ retaliation cla ims for failure to exhaust administrative remedies, she argues that she had ex hausted her remedies because she had filed administrative complaints for which t he agency did not give a final agency decision within 180 days. The district court, however, conducted-6-

a carefully detailed analysis of Ms. Wilkins’ claim s, and determined that only one of Ms. Wilkins’ administrative charges, filed Octob er 3, 1997, post-dated the alleged retaliatory acts. Focusing on the October 3 claim, the court recognized that it had jurisdiction over claims concerning inc idents which took place on August 27 and October 2, 1997, and her accretion of duties claim, which accrued on or about October 1, 1997. The court addressed a nd disposed of those claims on the merits in its summary judgment ruling. As aconsequence, Ms. Wilkins’ arguments concerning the 180-day requirement are no t pertinent to the appeal of this case.

IV. In reviewing a grant of summary judgment, we apply the same legal standard used by the district court. McKnight v. Kimberly Clark Corp ., 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show that there is no genuine i ssue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this standard, “we examine th e factual record and reasonable inferences therefrom in the light most f avorable to the party opposing the motion.” McKnight , 149 F.3d at 1128 (quotation omitted).-7-

“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported mot ion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). “As to materiality, the substantive law will identify which facts are mater ial. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual di sputes that are irrelevant or unnecessary will not be counted.” Id. at 248; see also Chasteen v. UNISIA JECS Corp. , 216 F.3d 1212, 1216 (10th Cir. 2000) (“A ‘materia l fact’ is one which could have an impact on the outcome of the lawsuit, while a ‘genuine issue’ of such a material fact exists if a rational jury coul d find in favor of the non-moving party based on the evidence presented.”). Thus, “[ f]actual disputes about immaterial matters are irrelevant to a summary judgment determination.” Frank v. U.S. West, Inc. , 3 F.3d 1357, 1361 (10th Cir. 1993) (citing Anderson , 477 U.S. at 248). To contest the district court’s entry of summary ju dgment, plaintiffs largely rely on a listing of discrepancies between their rather vague version of the facts and the facts as described in defendant’s summary j udgment filings. At this point in the proceedings, plaintiffs’ approach is unavail ing. The district court carefully parsed the summary judgment record and determined that plaintiffs had presented1 In their listing of issues on appeal, plaintiffs st ate an intention to raise

a question as to whether the district court properl y applied the law of retaliation, but include no discussion of the issue. We do not address the issue because a party must support its argument with legal authority. Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992). -8- no material issue of disputed facts. After a careful review o f the record, we agree with the district court’s conclusion. Specifically, with regard to their hostile environm ent claims, Ms. O’Neal and Ms. Stewart were required to raise material iss ues of fact on whether defendant “had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the harassment.” Ford v. West , 222 F.3d 767, 776 (10th Cir. 2000) (quotations omitted). A court is to “consider the reasonableness of the employer’s response to any harassment about which it knew or should have known. . . . Plaintiff bear s the burden of presenting evidence establishing a genuine issue of fact that the employer’s response was unreasonable.” Id. (citations omitted). Here, the district court properly set out and appli ed the law of hostile work environment to the uncontested, material facts befo re it and concluded that defendant’s response was reasonably calculated to e nd any harassment towards plaintiffs and in fact achieved that goal. 1-9-

The district court’s order of dismissal and summaryjudgment is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge