Scott v. The Boeing Company

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 16 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DONNA N. SCOTT,
Plaintiff - Appellant, No. 01-3339
D.C. No. 01-CV-4057-DES
v. (D. Kansas)
THE BOEING COMPANY,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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 res judicata, collateral estoppel, and law of the case. 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.
I. BACKGROUND
On May, 18, 2001, Donna N. Scott, proceeding pro se, filed this action
alleging that the Boeing Company had denied her promotions, pay upgrades, and
accommodations and had ultimately terminated her employment on the basis of a
medical condition (diabetes) and her race (African-American). Ms. Scott asserted
violations of the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12101 et
seq., and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.A. §
2000e et seq. The district court granted Boeing’s motion to dismiss Ms. Scott’s
complaint because she had failed to file this lawsuit within ninety days of
receiving a notice of right to sue.
II. DISCUSSION
The district court’s dismissal of Ms. Scott’s complaint on statute of
limitations grounds involves a legal question. We therefore review the dismissal
de novo. Sterlin v. Biomune Sys. , 154 F.3d 1191, 1194-95 (10th Cir. 1998).
Upon review of the record, we agree with the district court that Ms. Scott’s claims
under Title VII and the ADA are untimely.
Both Title VII and the ADA require a plaintiff to file an action within
ninety days of the issuance of a right to sue letter. See 42 U.S.C. § 2000e-5(f)(1)
(Title VII); 42 U.S.C. § 12117(a) (ADA); Brown v. Hartshorne Pub. Sch. Dist. ,
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926 F.2d 959, 961 (10th Cir. 1991) (affirming dismissal of Title VII claim
because the plaintiff failed to file a complaint within ninety days of receiving a
right to sue letter). Here, Ms. Scott received a notice of right to sue on April 17,
1999, nearly two years before she filed the instant case.
As the district court noted, Ms. Scott did file two previous lawsuits
asserting the same claims. She filed the first of these lawsuits on July 13, 1999
(within ninety days of receiving the notice of right to sue). Ms. Scott never
served the defendant in that case, and the court dismissed it without prejudice on
January 21, 2000. Ms. Scott filed a second lawsuit on July 21, 2000. However,
Ms. Scott also did not serve the defendant in the second case, and the court
dismissed it without prejudice on February 6, 2001.
This circuit has held “that the filing of a complaint that is dismissed
without prejudice does not toll the statutory filing period of Title VII.” Brown ,
926 F.2d at 961. We reasoned that “as a general rule, a voluntary dismissal
without prejudice leaves the parties as though the action had never been brought.”
Id. Other courts have applied this rule to ADA claims, see Chico-Velez v. Roche
Prods., Inc. , 139 F.3d 56, 59 (1st Cir. 1998) (holding that “the dismissal without
prejudice of [the plaintiff’s] first action doomed his ADA claim because the
ninety-day filing period had run”).
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As the district court observed, application of this rule here renders Ms.
Scott’s complaint in the instant case untimely. She filed her complaint in the
instant case on May 18, 2001, nearly two years after she received the right to sue
letter.
Moreover, even if the ninety-day period were tolled during the pendency of
Ms. Scott’s prior lawsuits, the instant action would still not be timely. More than
ninety days elapsed between (1) the dismissal of Ms. Scott’s first case (on January
21, 2000) and the filing of the second case (on July 21, 2000), and (2) the
dismissal of the second case (on February 6, 2001) and the filing of the instant
action (on May 18, 2001).
We also reject Ms. Scott’s argument that the ninety-day limitation period
was subject to equitable tolling under the facts of this case. Generally, equitable
tolling is warranted only if the circumstances of the case “rise to the level of
active deception which might invoke the powers of equity.” Cottrell v.
Newspaper Agency Corp ., 590 F.2d 836, 838-39 (10th Cir. 1979). Thus,
equitable tolling may be appropriate when the 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) (internal quotation marks omitted),
or if the plaintiff is “actively misled” or “has in some extraordinary way been
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prevented from asserting his or her rights.” Id. (internal quotation marks
omitted).
Here, Ms. Scott has failed to establish that such circumstances are present.
In her appellate brief she argues only that the dismissal of the first two cases was
“due to [her] lack of know-how in getting a party served,” Aplt’s Br. at 8, and
that, because the dismissal of the first two cases for lack of service led to the
running of the limitations period, that period should be equitably tolled.
Unfortunately for Ms. Scott, such a lack of knowledge is insufficient to establish
equitable tolling under our precedent. See Gatewood v. Railroad Retirement Bd. ,
88 F.3d 886, 890 (10th Cir. 1996) (“[W]e are aware of no authority . . . which
suggests that ignorance of the law should warrant equitable tolling of a statute of
limitations.”).
CONCLUSION
Accordingly, we AFFIRM the district court’s order dismissing Ms. Scott’s
complaint.
Entered for the Court,
Robert H. Henry
Circuit Judge
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