Brown v. Kempthorne , 190 F. App'x 590 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 23, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M A RILO U BR OWN ,
Plaintiff-Appellant, No. 05-6392
v. (W .D. Oklahoma)
DIRK KEM PTHORNE, * Secretary of
the United States Department of the (D.C. No. CIV-05-211-R)
Interior,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On February 22, 2005, M arilou Brown filed suit in federal district court,
*
Pursuant to Fed. R. App. P. 43(c)(2), Dirk Kempthorne, Gale A . Norton’s
successor, has been automatically substituted as a party to this appeal.
**
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
alleging that her former employer, the United States Fish and W ildlife Service
(“USFW S”), discriminated against her in violation of Title VII of the Civil Rights
Act of 1964. See 42 U.S.C. § 2000e-16(c). The district court granted U SFW S’s
motion to dismiss the suit with prejudice after it concluded the complaint was not
timely or subject to equitable tolling. The court later denied her motion to
reconsider. M s. Brown, proceeding pro se, appeals the dismissal of her
complaint. W e exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
“A federal employee who claims that he was the victim of illegal
employment discrimination may bring a claim in district court under Title VII.”
Belhomme v. Widnall, 127 F.3d 1214, 1216 (10th Cir. 1997). “A s a prerequisite
to his suit, the federal employee must file an administrative complaint concerning
his allegations, and he may not bring his suit more than ninety days after
receiving a final decision from either his employing agency or from the [Equal
Employment Opportunity Commission (‘EEOC’)].” Id.; see 42 U.S.C. § 2000e-
16(c) (explaining the requirement for filing a civil action within 90 days).
M s. Brown worked as a federal law enforcement officer for the USFW S
from June 1995 until her termination in August 1998. She contends that several
USFW S supervisors discriminated against her on the basis of gender. She filed
an administrative complaint detailing her allegations. In late 2001, she received a
final agency decision dismissing the charge. On December 10, 2001, M s. Brow n
filed a timely complaint raising her Title VII claim in federal district court in
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Nevada. In April 2002, that case was transferred to federal district court in
Oklahoma. On June 26, 2002, M s. Brown filed another complaint in federal
district court in Oklahoma based on the same allegations; the cases were
consolidated. On February 23, 2004, both parties signed a Stipulation of
Dismissal of the cases without prejudice. On February 22, 2005, M s. Brown re-
filed her complaint, which is the subject of this appeal.
A fter a careful review of the parties’ briefs and the record on appeal, we
affirm the dismissal of M s. Brown’s suit for substantially the same reasons as set
forth in the district court’s order. The statute of limitations barred M s. Brow n’s
re-filed complaint, which was clearly not filed within 90 days of her receipt of the
final agency decision. “[T]he filing of a complaint that is dismissed without
prejudice does not toll the statutory filing period of Title VII.” Brown v.
Hartshorne Pub. Sch. Dist. No. 1, 926 F.2d 959, 961 (10th Cir. 1991). W e also
agree with the court that equitable tolling is not warranted. M s. Brown has
presented no evidence to support her assertion that she was misled to believe her
case would be timely if re-filed within one year. Finally, M s. Brown cannot rely
on Oklahoma’s savings statute, Okla. Stat. tit. 12, § 100, to avoid the 90-day
statute of limitations. The state’s savings statute is not applicable to federal
claims. Brown, 926 F.2d at 961.
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Accordingly, we AFFIRM the district court.
Entered for the Court,
Robert H. Henry
Circuit Judge
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