                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 18, 2008
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    JIHAD AL-ALI,

                Plaintiff-Appellant,

    v.                                                   No. 07-4056
                                                  (D.C. No. 2:04-CV-547-DS)
    SALT LAKE COMMUNITY                                    (D. Utah)
    COLLEGE,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, EBEL, and MURPHY, Circuit Judges.



         Jihad Al-Ali appeals pro se from the district court’s grant of summary

judgment in favor of Salt Lake Community College (SLCC) on his claims of

discrimination based on race, color, and national origin, and retaliation in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1)

and 2000e-3(a). 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 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                     Background

      Mr. Al-Ali worked as a part-time adjunct professor at SLCC, reporting to

Dr. Merrill, a Division Chair. He taught classes at SLCC during eight terms

beginning in the Spring term of 1999. He signed a new contract with SLCC for

each term. In each of these contracts, in his initial application, and in a form he

signed following his faculty orientation, Mr. Al-Ali acknowledged that he had no

expectation of continued employment at SLCC beyond the current term governed

by each agreement. See R., Vol. III, Doc. 120, Exs. 1, 3 & 4.

      Mr. Al-Ali last taught at SLCC during the Summer term in 2001. On

June 20, 2001, only a few days into that term, he had an altercation with a student

in one of his classes. The next day Dr. Merrill informed him that he was relieved

of his teaching duties for the remainder of the term. When he asked for an

explanation, Dr. Merrill told him that two students had lodged complaints against

him. Mr. Al-Ali claims that he attempted to tell his side of the story, but

Dr. Merrill refused to listen, stating, “I hire and fire as I wish.” Id., Vol. IV, Doc.

135, Ex. 18 at 27 (emphasis omitted). Dr. Merrill then allegedly told Mr. Al-Ali,

“[M]aybe you are burned out and it could be good if you take [a] break for the

remain[der] of the summer, and you will have your schedule as usual in the

coming fall.” Id. (emphasis omitted). It is undisputed that SLCC did not pay

Mr. Al-Ali for the remainder of that term and that he never again taught at SLCC.




                                          -2-
      Mr. Al-Ali asked Dr. Merrill to write him a letter of recommendation in

connection with positions he was applying for outside of SLCC. Dr. Merrill

provided him with a letter dated August 20, 2001, stating, “I highly recommend

[Mr. Al-Ali] to you for your faculty position.” Id., Ex. 15.

      Mr. Al-Ali claims that he also tried to obtain further teaching positions at

SLCC, but the record is not entirely clear in this regard. With respect to the Fall

term in 2001, the record reflects that he asked Dr. Merrill on September 19, 2001,

why he did not receive a teaching position for that term, and that Dr. Merrill

responded it was because he did not make the assignments. 1 Mr. Al-Ali applied

for state unemployment benefits two days later, “hoping to provoke some official

position [from SLCC] contrary to what [he] had been told in September.” Id.,

Vol. III, Doc. 120, Ex. 10, ¶ 11. SLCC did not respond to his request for

benefits. The state ultimately denied his application because he represented that

he had voluntarily quit his job at SLCC in order to find a full-time job.

      Mr. Al-Ali received memos from SLCC addressed to Adjunct Faculty in

September and October, 2001. These memos advised him how to apply in writing

for teaching positions for the Spring term in 2002. The record does not contain a

written application by Mr. Al-Ali for that term, but there is evidence that he



1
      In his affidavit, Mr. Al-Ali lists the date of this conversation with
Dr. Merrill as September 19, 2002, but based on the context it is clear it occurred
in 2001.

                                         -3-
verbally inquired about a teaching assignment in mid-January 2002, after the

semester had begun. He also contacted Dr. Merrill in the middle of that month to

complain that the people to whom Dr. Merrill had referred him had failed to

return his phone calls. It is undisputed that Mr. Al-Ali last applied for a teaching

position in November 2002 and that SLCC denied his application on

November 17.

      Mr. Al-Ali states that, after his contact with Dr. Merrill in January 2002,

“[f]rom that point on, and for two semesters, I felt as though I got the run-around

treatment by both Dr. Merrill . . . and others who would send me back and fo[]rth

blaming each other.” Id., ¶ 13. But it was not until March 2003 that he “became

frustrated and had it with the lies and decided to approach things differently.”

Id., ¶ 15. Two months later, he informed Dr. Merrill that he was going to submit

a complaint to Dr. Merrill’s supervisor about how he was being treated. A few

days later, he received a letter from SLCC regarding an audit of campus keys.

Mr. Al-Ali interpreted this letter as a request to return his keys, “signifying for

the first time [he] may be permanently discharged.” Id., ¶ 18.

      In early June 2003, he raised his concerns with Dr. Richardson, Vice

President of Academic Affairs at SLCC. On June 14, he met with both

Dr. Richardson and Dr. Merrill, “to find out why [he] no longer was getting

teaching assignments. Dr. Merrill explained that it was because he had been

‘fired!’” Id., ¶ 22. Mr. Al-Ali asserts that this is the first time he had ever been

                                          -4-
told he was fired. In response, he made allegations of discrimination and

Dr. Richardson referred him to SLCC’s Office of Equal Employment Opportunity

(EEO Office).

      Mr. Al-Ali met with the EEO director on June 17, 2003. A month later,

unhappy with the progress of the investigation, he complained to Mr. Morgan, the

president of SLCC. He met with Mr. Morgan and Dr. Richardson on August 11

and again reviewed his grievances. That same day, he submitted a written

complaint to the EEO Office, alleging discrimination and harassment based upon

his race, religion, and national origin, in connection with his termination and

SLCC’s refusals to hire him. He received a letter from SLCC, dated September

24, 2003, informing him that his complaint was untimely because it was not filed

within thirty days from the last date of his alleged harm.

      Mr. Al-Ali then filed a charge with the Utah Anti-Discrimination and Labor

Division and the Equal Employment Opportunity Commission (EEOC) on

November 4, 2003, alleging discrimination based on race, religion, national

origin, and retaliation. He described the discrimination as follows:

      I was hired as an adjunct faculty, which means I was a part time
      employee, paid hourly with no benefits. I taught to 2001, and then
      September 11th happened at the World Trade Towers. After that I
      was treated as if I didn’t exist, and others refused to talk to me. I
      applied four times for a full time position, while I was teaching, only
      to be bypassed and have the positions given to others based on their
      race and religion. Because I am not white I have no rights and after
      9-11-01 this event gave some people a free pass to overlook all my
      concerns. I was a victim of witness tampering, conspiracy,

                                         -5-
      obstruction of justice, and finally I was told I had been terminated on
      or about June 14, 2003.

Id., Ex. 11. He also claimed retaliation for reporting the problems to

Dr. Richardson. He received a right-to-sue letter dated March 16, 2004, and he

filed this action on June 14, 2004.

      Both parties filed motions for summary judgment. Mr. Al-Ali argued that

he was entitled to summary judgment on all of his claims because SLCC was

negligent in handling his discrimination complaint. In its motion, SLCC

contended that his claims were untimely under the applicable statute of

limitations, or alternatively, that he failed to show any material facts in dispute.

On February 23, 2007, the district court denied Mr. Al-Ali’s motion and granted

SLCC’s motion as to all claims. It concluded that his claims of discrimination

and disparate treatment related to his termination, SLCC’s refusals to hire, and

the alleged hostile work environment were untimely. Alternatively, the court held

that SLCC was entitled to summary judgment because Mr. Al-Ali failed to

produce any evidence that SLCC’s reasons for terminating and refusing to hire

him were pretextual. The court also concluded that he produced no evidence of

actionable conduct amounting to a hostile work environment. Finally, it held that

he offered no evidence of a causal connection between his report of




                                          -6-
discrimination to Dr. Richardson and any subsequent retaliatory adverse

employment action. Mr. Al-Ali filed a timely notice of appeal. 2

       In his appeal briefs he appears to raise the following issues: (1) the district

court erred in holding that his claims were untimely and in failing to grant his

request to equitably toll the applicable statute of limitations; (2) the district court

erred in granting summary judgment based upon an absence of material facts in

dispute. 3

                                Statute of Limitations

       The district court held that Mr. Al-Ali’s claims related to his termination,

the refusals to hire, and the alleged hostile work environment were barred by the

applicable statute of limitations. We review de novo a district court’s grant of

summary judgment in a Title VII case based upon the statute of limitations. See

Boyer v. Cordant Technologies, Inc., 316 F.3d 1137, 1138 (10th Cir. 2003).

       An employee wishing to challenge an employment practice under
       Title VII must first file a charge of discrimination with the EEOC.

2
      Mr. Al-Ali filed a notice appealing the district court’s orders dated
August 1, 2006, and February 23, 2007. The district court entered its summary
judgment order on February 23, 2007. There is no order in the district court
docket entered on August 1, 2006.
3
       Although we construe Mr. Al-Ali’s pro se appellate filings liberally, we
admit some difficulty in apprehending his arguments on appeal. He addresses
numerous issues not relevant to the district court’s summary judgment ruling. He
also attaches documents not included in the record below, which we do not
consider on appeal. Nonetheless, we “have tried to discern the kernel of the
issues [he] wishes to present on appeal.” de Silva v. Pitts, 481 F.3d 1279, 1283
n.4 (10th Cir. 2007).

                                          -7-
      Because Title VII seeks to avoid the pressing of stale claims, it
      requires aggrieved persons to file any such charge within certain
      specified periods after the allegedly unlawful conduct occurred. If
      the employee does not submit a timely EEOC charge, he or she may
      not proceed to court.

Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007) (citations and

quotations omitted). Mr. Al-Ali was required to file his charge of discrimination

“within three hundred days after the alleged unlawful employment practice

occurred.” 42 U.S.C. § 2000e-5(e)(1). “The filing is a prerequisite to a civil suit

under Title VII and a claim is time-barred if it is not filed within these time

limits.” Davidson v. Am. Online, Inc. 337 F.3d 1179, 1183 (10th Cir. 2003).

      SLCC’s termination of Mr. Al-Ali and its subsequent refusals to hire him

were discrete acts of discrimination. See id. at 1184. Therefore, despite his

allegation that these acts were all related, he was required to “file a charge of

discrimination within the appropriate limitations period as to each such discrete

act of discrimination that occurred.” Id. He was also required to file a charge

within three hundred days of the occurrence of any act contributing to the alleged

hostile work environment. See Boyer, 316 F.3d at 1140 (“In order for the charge

to be timely, the employee need only file a charge within . . . 300 days of any act

that is part of the hostile work environment.”) (quotation omitted).

      Mr. Al-Ali filed his discrimination charge on November 4, 2003.

Therefore, his claims are limited to discriminatory acts that occurred within three

hundred days before that date–that is, on or after January 8, 2003. There is no

                                          -8-
evidence in the record that he applied for and was denied a teaching position with

SLCC at any time after November 17, 2002. Therefore, no refusal to hire

occurred within the three-hundred-day limitations period. We agree with the

district court that he failed to file a timely charge with respect to SLCC’s refusals

to hire him.

      Mr. Al-Ali’s termination also did not occur within the three-hundred-day

limitations period. On June 21, 2001, more than two years before he filed his

discrimination charge, he was notified of his removal from his Summer term

classes. He appears to make two contentions on appeal: first, that he was not

terminated on that date, and second, that if he was, he was not aware of his

termination until almost two years later. 4 As to the first issue, we conclude that

the material facts are not in dispute. The record shows that he was employed by

SLCC to teach on a term-by-term basis. The contract he signed for the Summer

term in 2001 provided expressly that he had “no expectation of continued

ADJUNCT teaching or other employment at the COLLEGE beyond the term

governed by this agreement.” R., Vol. III, Doc. 120, Ex. 3. There is no dispute

that he was informed on June 21, 2001, that he would not be teaching the




4
      We address the latter contention infra, in the context of Mr. Al-Ali’s
equitable tolling argument.

                                          -9-
remainder of that semester. Therefore, the district court did not err in concluding

that Mr. Al-Ali was terminated from his employment at that time. 5

      The district court also reasoned that his hostile work environment claim

necessarily accrued no later than his termination date. We agree. Any alleged

hostile work environment to which Mr. Al-Ali was subjected would have ended

with the termination of his employment. Cf. Holmes v. Utah, Dep’t of Workforce

Servs., 483 F.3d 1057, 1063-64 (10th Cir. 2007) (affirming summary judgment on

hostile work environment claim where, during the three-hundred-day filing

period, employee no longer worked in office where earlier harassment allegedly

occurred).

      Accordingly, we find no error in the district court’s conclusion that

Mr. Al-Ali’s claims related to his termination, SLCC’s refusals to hire, and the

alleged hostile work environment were time-barred because of his failure to file a

charge of discrimination within three hundred days of the allegedly

discriminatory acts. Therefore, summary judgment on these claims was proper,

unless the statute of limitations was subject to equitable tolling.



5
      The district court concluded that Mr. Al-Ali’s date of termination was
June 20, 2001, which was his last day of teaching. But he was not notified of his
termination until the following day. See Gray v. Phillips Petroleum Co., 858 F.2d
610, 613 (10th Cir. 1988) (holding period for filing discrimination charge begins
on date employee is notified of adverse employment decision). The difference of
one day does not affect our analysis of whether his charge of discrimination was
timely.

                                         -10-
                                  Equitable Tolling

      Mr. Al-Ali contends that the district court erred in declining to equitably

toll the three-hundred-day limitations period. “This Circuit has generally

recognized equitable tolling of Title VII periods of limitation only if

circumstances rise to the level of active deception which might invoke the powers

of equity to toll the limitations period.” Montoya v. Chao, 296 F.3d 952, 957

(10th Cir. 2002) (quotation omitted). Equitable tolling may be appropriate where

a plaintiff has been lulled into inaction by an employer’s “deliberate design . . . or

actions that the employer should unmistakably have understood would cause the

employee to delay filing his charge.” Hulsey v. Kmart, Inc., 43 F.3d 555, 557

(10th Cir. 1994). But “federal courts have typically extended equitable relief only

sparingly,” Montoya, 296 F.3d at 957 (quotation omitted), narrowly construing

the exceptions, Harms v. IRS, 321 F.3d 1001, 1006 (10th Cir. 2003).

      “We review a district court’s decision whether to equitably toll a period of

limitation for abuse of discretion.” Montoya, 296 F.3d at 957. “An abuse of

discretion occurs when the district court bases its ruling on an erroneous

conclusion of law or relies on clearly erroneous fact findings.” Kiowa Indian

Tribe of Okla. v. Hoover, 150 F.3d 1163, 1165 (10th Cir. 1998). “Under the

abuse of discretion standard[] a trial court’s decision will not be disturbed unless

the appellate court has a definite and firm conviction that the lower court made a




                                         -11-
clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994).

      Mr. Al-Ali contends that SLCC actively deceived him into believing he had

not been terminated in June 2001. He argues that the district court should have

tolled the time period for filing his charge of discrimination until the date he

learned he had been fired. He claims that Dr. Merrill revealed that fact to him

nearly two years later, in a meeting with Dr. Richardson on June 14, 2003. We

have affirmed a district court’s tolling of the three-hundred-day period to file a

discrimination charge where an employer actively misled an employee with

regard to whether he had been terminated. In Donovan v. Hahner, Foreman &

Harness, Inc., 736 F.2d 1421, 1427 (10th Cir. 1984), the trial court found that the

defendant employer deliberately concealed the fact that the plaintiff had been

discharged, rather than laid off. The trial court also found that, based upon the

employer’s representations, the plaintiff had a reasonable, good faith belief he

had only been laid off. Id. We concluded that the district court’s findings were

not clearly erroneous and therefore we found no abuse of discretion in its tolling

of the limitations period. Id. at 1428.

      Here, Mr. Al-Ali contends that the following actions by SLCC deceived

him into believing he had not been terminated and therefore lulled him into

inaction: (1) Dr. Merrill told him on June 21, 2001, that he should take the

summer off, but that he would have a teaching position again in the fall;

                                          -12-
(2) SLCC never gave him written notification of his termination; (3) SLCC

failed to respond to his unemployment application, in which he stated he had

voluntarily quit; (4) SLCC continued to send him memos about subsequent

teaching opportunities addressed to Adjunct Faculty; and (5) SLCC failed to ask

him to return his campus keys until after he complained to Dr. Merrill’s

supervisor.

      The district court found that, according to his contract, Mr. Al-Ali’s

employment with SLCC only extended through the Summer term in 2001, that he

was relieved of his teaching duties just a few days into that term, and that he was

never offered a new contract. The court also noted that, despite Dr. Merrill’s

alleged promise of a new position for the Fall term in 2001, Mr. Al-Ali was on

notice as of the beginning of that term that he had not been offered any position.

The court concluded that “[t]here was simply no basis for him to conclude that his

employment had not come to an end, for whatever reason, or that somehow he

remained employed with SLCC.” R., Vol. IV, Doc. 139 at 11. Because

Mr. Al-Ali has not shown that the district court’s findings are clearly erroneous,

we hold that the court did not abuse its discretion in denying his request to

equitably toll the three-hundred-day period for filing his discrimination charge.

                                     Retaliation

      The district court granted summary judgment in favor of SLCC on

Mr. Al-Ali’s retaliation claim, holding that he failed to establish a causal

                                         -13-
connection between any protected activity and a subsequent adverse employment

action. Because he does not address that ruling in his opening briefs on appeal,

we hold that he has waived consideration of that issue on appeal. See State Farm

Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

      The judgment of the district court is AFFIRMED. Mr. Al-Ali’s request to

proceed in forma pauperis in this appeal is granted.


                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




                                        -14-
