* This order and judgment is not binding precedent, e xcept under the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

### JAN 11 1999 

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

JANICE NASH,

Plaintiff-Appellant,

v. THE UNIVERSITY OF KANSAS MEDICAL CENTER,

Defendant-Appellee. No. 98-3155 (D.C. No. 97-CV-2285) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Janice Nash, appearing pro se, appeals th e district court’s dismissal of her complaint alleging that her employ er, the defendant University of Kansas Medical Center (UKMC), discriminated againsther on the basis of her race in violation of 42 U.S.C. §§ 2000e through 200 0e-17 (Title VII), unlawfully retaliated against her in violation of Title VII, a nd constructively discharged her. The district court granted summary judgment in favo r of defendant. We have jurisdiction under 28 U.S.C. § 1291 and affirm. Ms. Nash was employed by UKMC as an operating room technician from December 1990 until she resigned in June 1996. She alleged UKMC took numerous discriminatory actions against her from th e start of her employment until the spring of 1992. Specifically, Ms. Nash a lleged UKMC failed to give her raises corresponding to her satisfactory evaluation s and gave her undesirable work assignments. Ms. Nash alleges that after she compl ained of these acts of discrimination, her supervisors retaliated against her by denying her work assignment and schedule requests, refusing to let h er transfer to another department, denying her application to the UKMC nur sing school, and denying her requested sick leave. Ms. Nash also alleges a shift supervisor broke into her locker and stole some of her personal belongings inretaliation for Ms. Nash’s complaints of racial discrimination. Ms. Nash resi gned from UKMC in June-3-

1996, after her request to be relieved from a weeke nd work assignment was denied. Ms. Nash filed a claim against UKMC for racial disc rimination with the Equal Employment Opportunity Commission (EEOC) on J anuary 14, 1995. After the EEOC dismissed her claim, Ms. Nash filed her co mplaint in federal district court. In a thorough and well-reasoned order, the district court held that UKMC was entitled to judgment as a matter of law. The c ourt held that Ms. Nash was barred from asserting her Title VII claim because a ll of the alleged discriminatory and retaliatory actions, except one, occurred more than 300 days prior to the date Ms. Nash filed her EEOC claim. The only action that occurred within the 300-day limitations period was the theft of persona l items from Ms. Nash’s locker. The district court held the locker inciden t was not an adverse employment action by UKMC, nor had plaintiff presented any evi dence to support an inference that the theft was causally linked to any of Ms. Na sh’s complaints about discrimination. We review the grant of summary judgment de novo and apply the same standard as did the district court. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir.1996). Summary judgment is appropriate if ther e is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. See id. In determining whether there is a genuine issue as to any material fact, “we1 The 300-day limitation applies in those states such as Kansas that

have statutorily prohibited discrimination; otherwise, the limit is 180 days. See Martin , 3 F.3d at 1414 n. 4. -4- examine the factual record and reasonable inference s therefrom in the light most favorable to [plaintiff].” Id. (quotations omitted). Timely filing is a prerequisite to an employment di scrimination civil suit under Title VII. See Martin v. Nannie & the Newborns, Inc. , 3 F.3d 1410, 1414 (10th Cir. 1993). In Kansas, a plaintiff must file Title VII discrimination charges within 300 days after the alleged discriminatory act occurred. See 42 U.S.C. § 2000e-5(e)(1). 1 We have carefully reviewed the record and find th at the district court correctly held that, with one exception, all of the alleged discriminatory and retaliatory actions occurred prior to the 300-day l imitations period. “We have held that a Title VII plaintiff may recove r for discriminatory acts occurring prior to the statutory limitations period if at least one instance of the discriminatory practice occurs within the [300-day limitations] period and the earlier acts are ‘part of a continuing policy or pr actice that includes the act or acts within the statutory period.’” Mascheroni v. Board of Regents of the Univ. of Calif. , 28 F.3d 1554, 1561 (10th Cir. 1994) (quoting Martin , 3 F.3d at 1415). Here, the only incident alleged to have occurred wi thin the limitations period was the theft of Ms. Nash’s personal items by a shift s upervisor. We agree with the district court that Ms. Nash did not present any ev idence that the locker incident-5-

was causally linked to her protected activity underTitle VII, nor does the incident constitute an “adverse employment action” such thatit can be considered an unlawful retaliatory action under Title VII. See Sanchez v. Denver Pub. Schs. , No. 97-1120, 1998 WL 909893, at *3-4 (10th Cir. Dec . 31, 1998) (describing elements of a prima facie Title VII retaliation cla im and defining “adverse employment action”). Therefore, Ms. Nash failed to show a continuing violation that includes at least one act of discrimination orretaliation within the time allowed for suit. The district court correctly hel d that her Title VII discrimination claim, based on incidents occurring prior to the re levant filing period, is time barred. Ms. Nash complains of other incidents of a lleged retaliation which she claims occurred after the 300-day limitations perio d; however, these incidents were not presented as evidence before the district court and cannot be considered on appeal. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED for substantially the reasons set forthin the district court’s order dated April 13, 1998.

Entered for the Court

John C. Porfilio Circuit Judge