FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 13, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
KEVIN W. ROSS,
Plaintiff - Appellant,
v. No. 20-3210
(D.C. No. 5:19-CV-04115-DDC-GEB)
STAFFMARK GROUP; THE COLEMAN (D. Kan.)
COMPANY,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BRISCOE, and BACHARACH, Circuit Judges.
_________________________________
The district court dismissed as untimely Kevin W. Ross’s pro se Title VII
action against The Coleman Company (Coleman). It also denied his motions to
equitably toll the 90-day period for filing his action, for leave to amend, and for the
appointment of counsel. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I
Ross worked for Coleman from September 24 to December 3, 2018. He filed a
charge against Coleman with the Equal Employment Opportunity Commission
(EEOC) on August 9, 2019, alleging discrimination based upon his race, color, and
national origin. The EEOC issued a right-to-sue letter on August 19, 2019. Ross
filed this pro se Title VII action against Coleman on December 2, 2019.1
Coleman moved to dismiss Ross’s action under Federal Rule of Civil
Procedure 12(b)(6), arguing it was untimely because Ross did not file suit within
90 days of his receipt of the EEOC’s right-to-sue letter, as required by 42 U.S.C.
§ 2000e-5(f)(1). In addition to responding to Coleman’s motion, Ross moved to
equitably toll the 90-day filing period, for leave to amend his complaint, and for the
appointment of counsel. The district court presumed that Ross had received the
right-to-sue letter no later than August 24, 2019, five days after it was mailed on
August 19. It therefore held that his window to file suit expired on November 22,
2019, and his Title VII action, filed on December 2, 2019, was untimely.
Ross did not dispute that his action was untimely. He instead presented the
district court with two different theories why the 90-day period for filing his action
should be equitably tolled. First, in response to Coleman’s motion to dismiss he
argued that the EEOC had incorrectly advised him in December 2018 that “he had
1
Ross also sued Staffmark Group, the agency through which he obtained
employment with Coleman. The district court dismissed without prejudice all claims
against Staffmark Group when Ross failed to serve that entity with the complaint.
2
one year from the date of the incident to file a lawsuit in Federal Court.” R. at 55.
Then, in a separate motion asking the district court to equitably toll the statute of
limitations, he changed tack and asserted that he failed to file a timely action because
his financial burdens caused him mental distress and exacerbated his mental
disability.
The district court declined to equitably extend the deadline to file Ross’s
action. It held that the EEOC’s incorrect advice did not justify tolling because he had
not been intentionally and actively misled and his reliance on that advice was not
reasonable in light of the clear guidance regarding the filing deadline in the
right-to-sue letter. And in ruling on Ross’s motion to toll, the court accepted his
“description of his personal difficulties,” R. at 107, but held that his financial and
mental-health challenges also did not call for equitable tolling because: (1) his
assertions about his mental health were conclusory; (2) he did not allege that he had
been adjudged mentally incompetent or institutionalized; and (3) he did not show that
his mental impairment actually caused the late filing of his Title VII action.
Regarding causation, the court noted that he managed to file his complaint by “the
deadline as he understood it” based upon the EEOC’s alleged incorrect advice. Id. at
109. It held that Ross failed to allege the exceptional circumstances necessary for
equitable tolling.
The district court also denied Ross’s motion to amend his complaint, holding
amendment would be futile because he did not allege any new facts that would
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plausibly render his claims timely. Finally, the court denied his motion to appoint
counsel, holding that his time-barred claims were not sufficiently meritorious.
II
We review the district court’s dismissal order de novo. See Hernandez v.
Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (“We review de novo
the dismissal of an action under Rule 12(b)(6) based on the statute of limitations.”
(internal quotation marks omitted)). “Although timeliness is an affirmative defense,
if the allegations show that relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim.” Chance v. Zinke,
898 F.3d 1025, 1034 (10th Cir. 2018) (citation, brackets, ellipsis, and internal
quotation marks omitted). “[W]hether to grant equitable tolling is a discretionary
matter for the district court.” Id. Consequently, we will not disturb the district
court’s decision unless we have “a definite and firm conviction that [it] made a clear
error of judgment or exceeded the bounds of permissible choice in the
circumstances.” United States v. Weidner, 437 F.3d 1023, 1042 (10th Cir. 2006)
(internal quotation marks omitted); see also id. (“An abuse of discretion occurs when
the district court’s decision is arbitrary, capricious, or whimsical, or results in a
manifestly unreasonable judgment.” (internal quotation marks omitted)).
We likewise review for an abuse of discretion the district court’s denial of
Ross’s motion for leave to amend his complaint. See Cohen v. Longshore, 621 F.3d
1311, 1314 (10th Cir. 2010). When, as here, the district court denies leave to amend
based on futility, “our review for abuse of discretion includes de novo review of the
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legal basis for the finding of futility.” Id. (internal quotation marks omitted). “We
thus consider de novo whether it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing him an opportunity to amend his complaint
would be futile.” Id. at 1314-15 (internal quotation marks omitted).
Finally, we review the district court’s denial of Ross’s motion to appoint
counsel for an abuse of discretion. See Hill v. SmithKline Beecham Corp., 393 F.3d
1111, 1115 (10th Cir. 2004). “Only in those extreme cases where the lack of counsel
results in fundamental unfairness will the district court’s decision be overturned.” Id.
(internal quotation marks omitted).
Because Ross is proceeding pro se, we liberally construe his complaint and
appeal brief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (complaint);
Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998) (brief). But we do not act as
his advocate. See Hall, 935 F.2d at 1110.
Ross has forfeited appellate review by failing to develop any argument in his
appeal brief challenging the district court’s reasoning in (1) declining to apply
equitable tolling and dismissing his complaint as untimely, (2) denying leave to
amend, and (3) denying his motion to appoint counsel. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening
brief generally forfeits appellate consideration of that issue.”). We will nonetheless
explain why affirmance is required.
5
A.
Section 2000e-5(f)(1) “is clear. The party aggrieved may bring suit within
ninety days after the giving of notice by the EEOC.” Noe v. Ward, 754 F.2d 890, 892
(10th Cir. 1985). The 90-day period is triggered by the plaintiff’s receipt of the
right-to-sue letter. See id. In ruling on Coleman’s motion to dismiss under
Rule 12(b)(6), the district court appropriately considered the right-to-sue letter that
Coleman attached as an exhibit to its motion because Ross referenced it in his
complaint, the parties did not dispute its authenticity, and it was central to Ross’s
claim. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). Nor
did the court err in presuming that Ross received the right-to-sue letter no later than
five days after it was mailed. See Lozano v. Ashcroft, 258 F.3d 1160, 1164-65
(10th Cir. 2001) (approving a presumption of receipt either three or five days after
mailing “whenever the actual receipt date is unknown or disputed,” id. at 1165).
Thus, Ross’s action filed more than 90 days after he received the right-to-sue letter
was clearly untimely.
Ross is correct that the 90-day period for filing a Title VII action is subject to
equitable tolling. See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267
(10th Cir. 1996). But we narrowly construe that exception. See id. And the district
court did not abuse its discretion in holding that Ross failed to allege exceptional
circumstances that would justify tolling. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002) (“[I]f a plaintiff is actively misled, or has in some extraordinary way
been prevented from asserting his or her rights, we will permit tolling of the
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limitations period.” (internal quotation marks omitted)); Biester, 77 F.3d at 1268
(holding plaintiff’s claimed mental incapacity did not amount to exceptional
circumstances justifying equitable tolling because he had not been adjudged
incompetent or institutionalized and he was capable of pursuing his claim despite his
mental condition).
Thus, the district court did not err in granting Coleman’s motion to dismiss
and denying Ross’s motion to toll. And because Ross failed to allege any fact that
would make his complaint timely, the district court did not err in denying his motion
to amend. See Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir.
2001) (“A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal for any reason . . . .”). Nor did it err in denying Ross’s motion to
appoint counsel because his time-barred claims were not sufficiently meritorious.
See Hill, 393 F.3d at 1115 (“The burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel.” (internal
quotation marks omitted)).
B.
For the first time on appeal, Ross contends that equitable tolling was justified
by his arrest on November 19, 2019, and his incarceration until November 23, which
he says prevented him from filing an action within the 90-day filing period that ended
on November 22. He argues the district court failed to consider this “most crucial
factor.” Aplt. Br. at 2. But he never raised this issue in the district court, and he
does not argue plain error on appeal. We therefore treat his new argument as
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effectively waived. See Havens v. Colo. Dep’t of Corrs., 897 F.3d 1250, 1259-61
(10th Cir. 2018).2
III
The district court’s judgment is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
2
In any event, Ross likely could not demonstrate plain error. The
equitable-tolling determination was ultimately reserved to the district court’s
discretion. And as noted by Coleman, Ross’s four-day incarceration did not prevent
him from filing his Title VII action at some other point during the 90-day window for
doing so.
8