United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2007
Charles R. Fulbruge III
Clerk
06-60788
CATHY B. COOK,
Plaintiff-Appellant,
Versus
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
No. 1:04-CV-27-D-B
Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
The Appellant, Cathy B. Cook (“Cook”), filed a Title VII
retaliation suit against her employer, the Mississippi Department
of Human Services (“MDHS”). The district court granted summary
judgment in favor of MDHS, explaining that Cook had not filed a
timely charge with the Equal Employment Opportunity Commission
(“EEOC”). Finding no error, we AFFIRM.
Cook is a white female who began her employment with MDHS in
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
1986. In the Fall of 2000, the position of Director of MDHS for
Chickasaw County became available. Cook maintains that although
she was more qualified for the position, the job was given to
Samuel Buchanan (“Buchanan”), who Cook asserts is a less qualified
black male. Buchanan began his employment as County Director on
February 12, 2001.
Aggrieved that she did not receive the promotion, on March 16,
2001, Cook filed a charge with the EEOC alleging reverse race
discrimination and stating that the alleged discrimination occurred
on February 10, 2001. After filing the 2001 EEOC charge and
subsequent lawsuit against MDHS, Cook asserts that Buchanan (who
was now her boss) became vindictive and retaliatory towards her.
On November 13, 2003, Cook filed a second EEOC charge alleging
retaliation. On the EEOC charge form, Cook entered "April 2001"
and checked the box "continuing action" in the area denoting the
"date discrimination took place." In the detailed narrative
attached to the charge form, Cook alleged that she was forced to
work overtime without compensation for over 19 months. She also
complained that she had not been promoted to the job of
“Supervisor,” a position that had remained opened since June of
2000 and for which she had inquired about and was qualified.
The EEOC notified Cook that it was unable to investigate her
November 13, 2003 charge because the charge was not filed within
the time limit required by law. The EEOC explained that because
2
Cook’s complaint indicated that the adverse action (the promotion
denial and the uncompensated overtime) last occurred sometime in
November 2002, Cook had 180 days following that date (approximately
April of 2003) to file her charge, which she had failed to do.1
Cook asked the EEOC to reconsider its determination, arguing that
retaliation was ongoing because the Supervisor job for which she
was qualified remained unfilled. The EEOC declined.
On January 23, 2004, Cook filed the instant suit against MDHS
alleging race discrimination and retaliation. The district court
agreed with the EEOC’s conclusion that Cook’s charge of retaliation
was untimely and dismissed her suit.
We agree that Cook’s November 2003 EEOC charge was untimely.
While Cook says the March 2001 start date for retaliation on her
charge form was a clerical error, she offers no basis to excuse the
error under principles of equitable tolling. Further, Cook’s
argument that her retaliation was ongoing because MDHS failed to
promote her to the open Supervisor position is unavailing. MDHS
did not seek applicants for the position and it was not filled. As
a result, the supervisor job was never available such that Cook
could be rejected.2
1
See 42 U.S.C. § 2000e-5(e)(1) (Under Title VII, an
aggrieved employee has 180 days to “timely” file a charge with
the EEOC).
2
See Thomas v. Tex Dep’t of Criminal Justice, 220 F.3d 389,
394 & n.2 (5th Cir. 2000) (failure to promote is an adverse
employment action).
3
Because the district court correctly concluded that Cook
failed to file a timely EEOC charge, the judgment of the district
court is AFFIRMED.
4