                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 30 2003
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 JOHNNY E. JONES,

               Plaintiff-Appellant,                     No. 03-3011
          v.                                             (D. Kansas)
 NEXT DAY MOTOR FREIGHT,                        (D.C. No. 02-CV-2050-JAR)
 INC.,
          Defendant-Appellee.


                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, 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). 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        This order and judgment is not binding precedent, except under the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. 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

      Johnny E. Jones filed this pro se action against Next Day Motor Freight,

Inc. (Next Day), alleging that Next Day failed to hire him on the basis of his race.

Mr. Jones asserted claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e through 2000e-17, and 42 U.S.C. § 1983. He sought to recover

compensatory and punitive damages. The district court granted summary

judgment to Next Day on both the Title VII and § 1983 claims.

      With regard to Mr. Jones’s Title VII claim, the court noted that Mr. Jones

had filed a charge of discrimination with the Equal Employment Opportunity

Commission (EEOC) on October 3, 2001 and had received a right to sue letter on

October 19, 2001. The letter informed Mr. Jones that he had ninety days from the

date of receipt to file a lawsuit. On October 27, 2001, Mr. Jones wrote a letter to

the EEOC requesting that the agency interview a Next Day employee (Ed Miller)

who had information about the hiring process. On November 5, 2001, the

EEOC’s district director sent Mr. Jones a letter declining the request to interview

Mr. Miller and again informing Mr. Jones that he had ninety days from his receipt

of the right-to-sue letter to file a lawsuit. Mr. Jones did not file this lawsuit until

February 5, 2002, 109 days after receiving the right-to-sue letter. Concluding that

the circumstances did not warrant equitable tolling of the ninety-day time




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limitations period, the district court held that Next Day was entitled to summary

judgment on Mr. Jones’s Title VII claim.

      As to the § 1983 claim, the court observed that Mr. Jones had failed to

offer any evidence or argument that Next Day was a state actor: “[Mr. Jones] does

not allege misuse of governmental power, nor does the record show that [Next

Day] was acting under color of law in failing to hire [Mr. Jones].” Rec. doc. 19,

at 6 (Order Granting Defendant’s Motion for Summary Judgment, filed Dec. 19,

2002). See generally Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000) (“To state

a cause of action under 42 U.S.C. § 1983 . . . the challenged conduct must . . .

[be] fairly attributable to the state.”) (internal quotation marks omitted).



                                  II. DISCUSSION

      On appeal, Mr. Jones challenges only the grant of summary judgment to

Next Day on his Title VII claim. Upon de novo review of the record, see

Mattioda v. White, 323 F.3d 1288, 1291 (10th Cir. 2003), we conclude for

substantially the same reasons as the district court that the grant of summary

judgment to Next Day is warranted.

      Under 42 U.S.C. § 2000e-5(f)(1), Mr. Jones had ninety days in which to file

suit after receipt of an EEOC right-to-sue letter. Witt v. Roadway Express, 136

F.3d 1424, 1429 (10th Cir. 1998). This ninety-day requirement operates like a



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statute of limitations and is thus subject to waiver, estoppel, and equitable tolling.

Jarrett v. US Sprint Communications Co., 22 F.3d 256, 259-60 (10th Cir. 1994).

“The ninety-day limit begins to run on the date the complainant actually receives

the EEOC right-to-sue notice.” Witt, 136 F.3d at 1429.

      Here, Mr. Jones stipulated that he received the right-to-sue letter on

October 19, 2001—more than ninety days before he filed this lawsuit. See Rec.

doc. 14, at 3 (Pretrial Order, filed Oct. 30, 2002). Although he received a second

letter from the EEOC on November 5, 2001, Mr. Jones also stipulated that the

second letter reminded him that he had ninety days from receipt of the right-to-

sue letter to file the lawsuit. Id. at 4. Accordingly, Mr. Jones’s complaint is

untimely.

      Moreover, “[i]n this circuit, a Title VII time limit will be tolled only if

there has been active deception of the claimant regarding procedural

requirements.” Jarrett, 22 F.3d at 260 (emphasis in original). There is no

indication of such active deception here: EEOC officials informed Mr. Jones of

the limitation period. Accordingly, equitable tolling of the ninety-day limitations

period is not warranted.




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                              III. CONCLUSION

      Accordingly, we AFFIRM the district court’s order granting summary

judgment to the defendant Next Day on Mr. Jones’s claims.




                                     Entered for the Court,



                                     Robert H. Henry
                                     Circuit Judge




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