                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 23 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    PAULA A. SMITH,

                Plaintiff - Appellant,

    v.                                                  No. 01-3293
                                                  D.C. No. 00-CV-2286-KHV
    JOHNSON COUNTY BOARD OF                              (D. Kansas)
    COUNTY COMMISSIONERS;
    JOHNSON COUNTY
    DEVELOPMENTAL SUPPORTS,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY , BALDOCK , and LUCERO , 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 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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff-appellant Paula A. Smith appeals the district court’s summary

judgment in favor of her former employer on her claims that her employer

retaliated against her for exercising her rights under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. §§ 621-634. Defendants do not appeal the

order denying their counterclaim. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

                                     Background

      We find it unnecessary to review here all the facts leading to this suit so we

recite only those facts pertinent to our decision. While employed by Johnson

County Developmental Supports, an agency of the Board of County

Commissioners of Johnson County, Kansas, Ms. Smith filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC), and

on April 2, 1998, she filed a federal lawsuit based on the charge, assigned case

number 98-2152-KHV. During discovery, defendants learned that Ms. Smith had

possession of work-related documents that may have been confidential. An

investigation ensued and Ms. Smith was placed on administrative leave.

      On March 11, 1999, she filed a charge with the EEOC alleging that her

employer retaliated against her in violation of the ADEA and Title VII   1
                                                                             by placing

her on administrative leave. The EEOC investigated and pursued a settlement,


1
      This appeal does not involve the merits of Ms. Smith’s Title VII claims.

                                           -2-
which was initially successful. The parties reached a mediated settlement on

June 8, 1999, which included Ms. Smith’s resignation as of December 31, 1999,

but Ms. Smith changed her mind about settling and sought to pursue the litigation

in case number 98-2152-KHV. On January 20, 2000, she amended her retaliation

charge to allege that her termination as of December 31, 1999, violated the ADEA

(“amended charge”). Case number 98-2152-KHV was ultimately terminated on

March 31, 2000. Ms. Smith filed this case on June 27, 2000. Additional facts

will be provided as they become relevant to our analysis.

                                    Discussion

      We review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). We look to the

applicable substantive law when evaluating whether a fact is material. Revell v.

Hoffman, 309 F.3d 1228, 1232 (10th Cir. 2002). “To determine whether a dispute

is genuine, we must consider whether a ‘reasonable jury could return a verdict for

the nonmoving party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.




                                        -3-
242, 248 (1986)). Applying these standards, we determine that Ms. Smith cannot

establish a genuine issue for trial.

                                 Statute of Limitations

       “To bring a valid claim under the ADEA, a plaintiff must file a charge of

discrimination with the EEOC . . . .”   Bennett v. Quark, Inc. , 258 F.3d 1220, 1225

(10th Cir. 2001). After the EEOC terminates its proceedings, a plaintiff has

ninety days from the date of receipt of the EEOC right-to-sue notice in which to

bring a civil suit. 29 U.S.C. § 626(e). The filing deadline is subject to equitable

tolling. Bennett , 258 F.3d at 1225.

       Defendants contend that this suit is barred by the statute of limitations

because it was filed more than ninety days after the EEOC issued a letter dated

January 21, 2000, which they maintain was the right-to-sue notice on the amended

charge. If so, the filing deadline was April 25. Therefore, they claim, because

this suit was filed on June 27, 2000, it was too late. Ms. Smith, on the other

hand, relies on a right-to-sue notice issued on March 30, 2000, which, if

applicable to the amended charge, makes the filing of this suit timely.

       Ms. Smith filed her amended charge on January 20, 2000. On January 21,

2000, the EEOC sent a letter to her stating:

              Under the ADEA, EEOC is only required to attempt settlement
       of the claim under the provisions set forth by Section 7 (d) of the
       ADEA. Such attempt to settle was offered by EEOC through its
       mediation program. This letter is to notify you that EEOC has

                                           -4-
      decided not to pursue this matter further under ADEA.     Should you
      wish to file [a] lawsuit under ADEA you will have ninety (90) days
      from receipt of this notice to do so.   Please note that the ADEA
      does not require a Charging Party to receive a Notice of Right to
      Sue in order to file a lawsuit.

Aplt. App. at 43 (italics added).

      Ms. Smith relies on a letter from the EEOC dated March 30, 2000, as the

right-to-sue notice on her amended charge. That letter was prompted by a request

from her attorney dated March 29, 2000, stating:

            Your letter dated January 25, 2000 addressed Ms. Smith’s
      ADEA claim, stating that she had 90 days to sue on that claim.   You
      did not address her Title VII claim. Although the court has ruled that
      claim was settled, we intend to appeal that determination, and we
      request that you issue a right-to-sue letter on that claim also.

Aplee. Supp. App. at 140 (italics added).

      The EEOC Area Director responded on March 30, 2000, as follows:

            This is written in response to your letter of March 29, 2000,
      wherein you requested a Notice of Rights . . . . After further
      deliberations regarding your request, I have determined that it is
      appropriate to honor same. I do so because of your attempt to amend
      said charge to include additional Title VII issues which were not
      subject to the mediation process or subsequent agreement.

Id. at 142.

      We reject Ms. Smith’s argument that the March 30 letter pertained to the

ADEA amended charge. Both the EEOC’s letter and the letter from her attorney

requesting a right-to-sue determination referred only to the Title VII claim. She

asserts that because the boilerplate on the EEOC notice referred to “Title VII, the

                                        -5-
Americans with Disabilities Act, and/or the Age Discrimination in Employment

Act,” as well as the Equal Pay Act, Aplt. App. at 44, the notice applied to the

amended charge, even though her claims invoked only Title VII and the ADEA.

We conclude that no reasonable juror would find that Ms. Smith relied on the

boilerplate language instead of the personalized information contained in the

accompanying letter quoted above.      See Bullington v. United Air Lines, Inc.   , 186

F.3d 1301, 1322 (10th Cir. 1999) (affirming summary judgment because no

reasonable juror could find facts as plaintiff alleged).

       We conclude that the January 21 letter was the right-to-sue notice for the

amended charge and that Ms. Smith had exhausted her administrative remedies as

of that date. Administrative exhaustion in discrimination cases serves two

purposes: “(1) to give notice of the alleged violation to the charged party; and

(2) to give the EEOC an opportunity to conciliate the claim.”     Ingels v. Thiokol

Corp. , 42 F.3d 616, 625 (10th Cir. 1994) (addressing Title VII claim). When the

EEOC processed the first retaliation claim, the purposes of administrative

exhaustion were fulfilled. Requiring a renewed administrative proceeding on the

amended charge “would not achieve any purpose and would simply prolong and

perhaps bifurcate the judicial proceeding.”         Id.

       Ms. Smith argues, as a matter of law, that the January 21 letter cannot serve

as the right-to-sue letter for the amended charge filed on January 20, because


                                              -6-
29 U.S.C. § 626(d) requires a claimant to wait to file suit until sixty days have

elapsed after the charge was filed with the EEOC. Therefore, she claims, if she

had filed suit as soon as the EEOC authorized her to (on January 21), the court

would not have had jurisdiction because sixty days would not have elapsed after

her charge was filed on January 20.

      We need not, and do not, determine whether a claimant may file suit sooner

than sixty days after the discrimination charge was filed with the EEOC. We

conclude that the amended charge was properly before the district court under

these circumstances where (1) the EEOC discharged fully its functions of notice

and conciliation on the initial retaliation charge, (2) the charge at issue was an

amendment to the initial retaliation charge, and (3) the lawsuit actually was filed

more than sixty days after the amended charge was filed. Consequently,

Ms. Smith’s lawsuit filed June 27, 2000 was untimely and dismissal was correct

unless she is entitled to equitable tolling.

                                   Equitable Tolling

      Ms. Smith alleges that she is entitled to equitable tolling of the filing date

because defendants encouraged her to delay filing suit until settlement

negotiations were completed. In April and May of 2000, the parties engaged in

settlement negotiations. On April 19, 2000, defendants’ attorney wrote to

Ms. Smith’s counsel that defendants “will not raise the statute of limitations as it


                                           -7-
relates to the 90 day period within which to file suit so long as the suit is filed no

later than May 1, 2000. That will give us time to work on a settlement.” Aplt.

App. at 60. The next day, defense counsel wrote that his clients would meet the

following Monday to discuss a settlement offer.       Id. at 61. An offer was made on

April 25 and withdrawn on June 13, 2000.         Id. at 62-63. Ms. Smith maintains that

she was entitled to equitable tolling of the filing deadline until June 13 based on

defendants’ representations. She does not appeal the adverse ruling on her claim

that the EEOC lulled her into inaction.

       The deadline for filing a discrimination charge may be equitably tolled,

under appropriate circumstances.     Bennett , 258 F.3d at 1225. Equitable tolling

applies “when a plaintiff’s unawareness of [her] ability to bring a claim–either

unawareness of the facts necessary to support a discrimination charge or

unawareness of [her] legal rights–is due to defendant’s misconduct.”       Bennett v.

Coors Brewing Co. , 189 F.3d 1221, 1235 (10th Cir. 1999) (quotation omitted).        If

the employee alleges her former employer caused her to delay filing, “[t]he

limitations period will not be tolled unless an employee’s failure to timely file

results from either a deliberate design by the employer or actions that the

employer should unmistakably have understood would cause the employee to

delay filing [her] charge.”   Hulsey v. Kmart, Inc. , 43 F.3d 555, 557 (10th Cir.

1994) (quotations omitted). “The decision whether to equitably toll the


                                           -8-
limitations period rests within the sound discretion of the district court.”      Bennett ,

258 F.3d at 1226.

       Here, it is undisputed that defendants induced Ms. Smith to forbear filing

suit until May 1, 2000, to permit them to submit a settlement offer. In fact, a

settlement offer was made prior to May 1, on April 25. Nothing in the record

supports Ms. Smith’s position that defendants’ actions were designed to lull her

into believing she could delay filing her suit later than May 1 or until settlement

negotiations were completed, particularly since there was no date upon which the

negotiations would necessarily conclude. We agree with the district court that

Ms. Smith’s claims were not tolled forever. Accordingly, the district court did

not abuse its discretion in denying plaintiff’s claim of equitable tolling.

       The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                          Entered for the Court



                                                          Bobby R. Baldock
                                                          Circuit Judge




                                              -9-
