F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 21 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
EJIKE J. AJALLA,
Plaintiff-Appellant, No. 03-7068
v. (E.D. Oklahoma)
THOMAS E. WHITE, Secretary of the (D.C. No. CIV-02-681-S)
Army,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
Ejike J. Ajalla alleges that the United States Army (“the Army”) racially
discriminated against him in employment in violation of Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e–2000e-17. The district court dismissed Mr.
Ajalla’s complaint for failure to timely exhaust his administrative remedies. Mr.
Ajalla now appeals the district court’s dismissal of his complaint. After
examining the briefs and appellate record, this panel has determined unanimously
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
to decide this case on the briefs without oral argument. See Fed. R. App. P.
34(a)(2). The case is therefore ordered submitted without oral argument. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Ejike J. Ajalla began working as a mechanical engineer in the Technical
Training Division of the McAlester Army Ammunition Plant (MCAAP) in
McAlester, Oklahoma on June 20, 1999. Mr. Ajalla was previously employed as a
mechanical engineer in the Maintenance Engineering Division of the United
States Army Defense Ammunition Center in Savanna, Illinois. He was reassigned
to MCAAP under a negotiated settlement agreement entered into pursuant to a
lawsuit filed by Mr. Ajalla against the Army, alleging racial discrimination in
employment in violation of Title VII.
In a letter dated March 21, 2000, Mr. Ajalla alleged that the Army was in
noncompliance with the negotiated settlement agreement. Specifically, Mr. Ajalla
contended that his new position at MCAAP was not the same type of position as
his former position in Savanna. He asserted that the MCAAP job was “not a
mechanical engineer job, but a teaching job.” Rec. vol. I, doc. 1, at 3a
(Complaint, filed Sept. 9, 2002). In response to Mr. Ajalla’s letter, the Army
issued a final agency decision dated September 20, 2001, finding that the Army
was in compliance with the settlement agreement. The letter informing Mr. Ajalla
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of the final agency decision explained that, should Mr. Ajalla wish to appeal the
decision, the appeal had to be filed with the Equal Employment Opportunity
Commission (EEOC) within thirty calendar days of receipt of the decision, as
required by 29 C.F.R. § 1614.402. 1
The Army’s Equal Employment Opportunity Compliance and Complaints
Review Agency (EEOCCRA) in Arlington, Virginia, attempted to send a letter
detailing the final agency decision to Mr. Ajalla; however, the U.S. Postal Service
was unable to deliver the letter successfully. Apparently, the EEOCCRA did not
have Mr. Ajalla’s correct mailing address. Aplt’s Br. at 2. Because of this
difficulty, the EEOCCRA asked the Equal Employment Opportunity Office at
MCAAP to deliver the letter to Mr. Ajalla. An MCAAP employee sent the letter
to Mr. Ajalla by certified mail/return receipt requested on October 16, 2001. The
letter arrived at Mr. Ajalla’s home and was signed for by his fifteen year-old son
on October 17, 2001. Mr. Ajalla was away on business when the letter arrived
and had asked his wife not to open any letters while he was gone unless they had
a Washington, D.C., return address. Since the letter containing the final agency
1
The letter also informed Mr. Ajalla that he could proceed by filing an
action in the appropriate United States District Court within ninety days of
receiving the final agency decision, should he decide not to appeal to the EEOC,
or within ninety days of receipt of the EEOC’s “final decision on appeal,” should
he decide to appeal to the EEOC. See 29 C.F.R. § 1614.407. Mr. Ajalla does not
argue that his district court complaint was timely filed.
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decision was mailed in an MCAAP envelope bearing a McAlester, Oklahoma,
return address, Mr. Ajalla’s wife did not open the letter while her husband was
away.
Mr. Ajalla did not return from his business trip until November 18, 2001.
According to Mr. Ajalla, on November 19, 2001, he spoke with an attorney at the
EEOC and an employee in the MCAAP Equal Employment Opportunity Office,
and both of them assured him that his appeal would be timely if filed that day.
Aple’s Br. at 11; Rec. vol. I, doc. 26, at 2 (Plaintiff’s Response to Defendant’s
Motion to Dismiss, filed Apr. 18, 2003). Mr. Ajalla wrote a letter to the EEOC
appealing the Army’s final agency decision on November 19, 2001, thirty-three
days after he received the decision by certified mail. 2 The EEOC dismissed Mr.
Ajalla’s complaint as untimely.
2
Mr. Ajalla’s letter of November 19, 2001 stated only:
This is to bring to your attention that the decision sited [sic]
above was mailed to my residential address by Certified Mail-Return
Receipt Requested on October 16, 2001. The said letter arrived at my
residence on the following day, October 17, 2001 and was signed for by
my fifteen-year (15) old son, Uche Ajalla.
I was out of town when the said letter arrived. Upon my return
on November 18, 2001 I read the letter and found the 30-day [sic] had
elapsed.
I am therefore requesting that you accept my Notice of
Appeal/Petition as timely.
Rec. vol. I, doc. 22, Attach. 3 (Defendant’s Motion to Dismiss, filed Feb. 25, 2003).
While it is not clear that this letter constitutes sufficient notice of appeal, it will be
treated as such for purposes of this action.
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Mr. Ajalla then filed a pro se complaint in the United States District Court
for the Eastern District of Oklahoma. The district court granted the Army’s
motion to dismiss on March 26, 2003, finding that Mr. Ajalla failed to timely
exhaust his administrative remedies. The court subsequently granted Mr. Ajalla’s
motion for reconsideration because the case number on the Army’s motion to
dismiss was incorrect, leading Mr. Ajalla to believe that he did not need to file a
response to the Army’s motion. After considering Mr. Ajalla’s response to the
motion and the Army’s reply, the district court dismissed the complaint on May
16, 2003, adopting its March 26 order.
II. DISCUSSION
On appeal, Mr. Ajalla challenges the grant of the Army’s motion to dismiss
his Title VII claim. “We review the district court’s ruling as to defendant’s
motion to dismiss de novo.” Steele v. United States, 19 F.3d 531, 532 (10th Cir.
1994). However, “[b]ecause the application of equitable doctrines rests in the
sound discretion of the district court, its decision [regarding equitable tolling]
will not be disturbed on appeal absent a showing of abuse of discretion.” United
States v. Clymore, 245 F.3d 1195, 1198 (10th Cir. 2001). Since Mr. Ajalla is
proceeding pro se, we liberally construe his filings. See Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curiam). Upon review of the record, we conclude for
substantially the same reasons as the district court that the grant of the Army’s
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motion to dismiss is warranted.
Under 29 C.F.R. § 1614.402(a), Mr. Ajalla had thirty days in which to file
an appeal with the EEOC after receipt of the Army’s final agency decision. Mr.
Ajalla does not dispute that the letter notifying him of the Army’s final agency
decision arrived at his house and was signed for by his son on October 17, 2001,
thirty-three days before he appealed the decision to the EEOC. Rec. vol. I, doc.
28, at 2 n.2 (Dist Ct. Order, filed May 16, 2003). In Million v. Frank, we held
that receipt of a right to sue letter by a member of the plaintiff’s household at the
plaintiff’s address “constitutes receipt sufficient to start the running of the time
period for filing a discrimination action.” 47 F.3d 385, 388 (10th Cir. 1995).
Furthermore, Oklahoma law regarding service of process provides that
“[a]cceptance or refusal of service by mail by a person who is fifteen (15) years
of age or older who resides at the defendant’s dwelling house or usual place of
abode shall constitute acceptance or refusal by the party addressed.” O KLA . S TAT .
12, § 2004(C)(2)(c). Thus, Mr. Ajalla effectively received the letter on October
17, 2001, and the period for filing the appeal began to run as of that day, unless
Mr. Ajalla can establish grounds for equitable tolling of the time limit.
The thirty-day time limit established by 29 C.F.R. § 1614.402(a) “is not a
jurisdictional requirement, but rather is subject to waiver, estoppel, and equitable
tolling.” See Harms v. Internal Revenue Serv., 321 F.3d 1001, 1006 (10th Cir.
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2003) (addressing equitable tolling of a time limit set forth in 29 C.F.R. §
1614.407(a), a related regulation). Mr. Ajalla argues that he is entitled to
equitable tolling of the time limit because: 1) the Army deliberately deceived him
by sending the final agency decision in an envelope bearing an MCAAP return
address; and 2) he was misled by two different individuals on November 19,
2001, an employee in the Equal Employment Opportunity Office at MCAAP and
an attorney at the EEOC, both of whom told him his appeal would be accepted as
timely if filed on November 19, 2001.
“In this circuit, a Title VII time limit will be tolled only if there has been
active deception of the claimant regarding procedural requirements.” Jarret v. US
Sprint Communications Co., 22 F.3d 256, 260 (10th Cir. 1994). “For instance,
equitable tolling may be appropriate where a plaintiff has been ‘lulled into
inaction by her past employer, state or federal agencies, or the courts.’” Martinez
v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (quoting Carlile v. South Routt Sch.
Dist. RE 3-J, 652 F.2d 981, 986 (10th Cir. 1981)). The fact that the Army sent
the final agency decision letter in an envelope with an MCAAP return address
does not constitute “active deception,” nor was Mr. Ajalla “lulled into inaction”
by the Army. There is no indication that the MCAAP return address was intended
to mislead Mr. Ajalla; rather, as the district court noted, “it appears Defendant
was diligently attempting to serve the Final Decision on Plaintiff after initial
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efforts by the Army’s Arlington, Virginia, office proved unsuccessful.” Rec. vol
I, doc. 28, at 3.
Mr. Ajalla argues that “[t]he Agency, being fully aware that the case could
be litigated could have given my correct mailing address to the Department of the
Army to mail its final decision directly to me.” Aplt’s Br. at 2. While it is true
that the EEOCCRA could have attempted to obtain Mr. Ajalla’s correct address,
we agree with the district court’s finding that the Army’s “utilization of its local
office was a reasonable means of service.” Rec. vol. I, doc. 28, at 3. The Army
had no way of knowing that Mr. Ajalla had directed his wife not to open any mail
without a Washington, D.C., return address. We have previously held that a
plaintiff’s personal decision as to when to open his mail is not grounds for
equitable tolling. See Million, 47 F.3d at 389 (“The doctrine of equitable tolling
cannot be applied simply because the plaintiff chose to examine his mail on a
weekly basis rather than as it arrived.”) (internal citation omitted). Similarly, Mr.
Ajalla’s decision to tell his wife not to open mail in his absence does not meet the
standard for equitable tolling.
Mr. Ajalla’s second argument in favor of equitable tolling also fails. He
contends that in telephone conversations on November 19, 2001, employees of the
EEOC and the Equal Employment Opportunity Office at MCAAP told him that his
appeal would be treated as timely if filed on November 19, 2001. The two
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individuals denied making any such statements in their affidavits. See Rec. vol. I,
doc. 27, Ex. A, B (Defendant’s Reply to Plaintiff’s Response to Defendant’s
Motion to Dismiss, filed Apr. 29, 2003). However, whether these two
individuals actually represented to Mr. Ajalla that his appeal would be timely if
filed on November 19, 2001, has no effect on the outcome of this action. As aptly
put by the district court,
[g]iven the receipt date of October 17, 2001, Plaintiff’s appeal of the
Army’s Final Decision was due November 16, 2001; consequently, any
representations made by Army employees on November 19, 2001, are
irrelevant with respect to the application of equitable tolling as Plaintiff
could not have been actively deceived into not acting by virtue of
representations made after the running of the limitations period.
Rec. vol. I, doc. 28, at 4.
Accordingly, the district court’s grant of the Army’s motion to
dismiss Mr. Ajalla’s complaint is AFFIRMED.
Entered for the Court,
Robert H. Henry,
Circuit Judge
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