                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       January 9, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DENNY BENTON,

             Plaintiff-Appellant,

v.                                                        No. 13-1179
                                             (D.C. No. 1:12-CV-00336-CMA-KMT)
TOWN OF SOUTH FORK AND                                     (D. Colo.)
POLICE DEPARTMENT, individually;
RANDY HERRERA, former police
chief; JAMES CHAVEZ, current police
chief,

             Defendants-Appellees,

AT TIMES ACTING TOWN
MANAGER AND CLERK SHARON
FAIRCHILD; FORMER TOWN
MANAGER TODD WRIGHT; FORMER
MAYOR LARRY HEERSINK;
COLORADO STATE PATROL
DISPATCH ALAMOSA, COLORADO;
POLICE OFFICER PAM STEWART;
TOWN MANAGER BILL MATTHEWS;
TRUSTEE GROVER HAWETHORNE,

             Defendants.


                            ORDER AND JUDGMENT*
*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
BACHARACH, Circuit Judge.


      Denny Benton appeals pro se from the district court’s judgment dismissing his

amended complaint for failure to state a claim on which relief could be granted.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    Background

      The following facts are gleaned from Mr. Benton’s pro se amended complaint,

which we liberally construe. See Firstenberg v. City of Santa Fe, 696 F.3d 1018,

1024 (10th Cir. 2012).

      A.     Mr. Benton’s Employment with the Town of South Fork

      Mr. Benton was a police officer with the Town of South Fork, Colorado (Town

or South Fork), until he resigned on September 23, 2009. Shortly before that date,

the Town had hired Randy Herrera as the new Chief of Police. Mr. Benton says that

he faced a hostile work environment as soon as Chief Herrera arrived. The Chief

hardly spoke to him, left him out of the loop on pending cases, told him that a man

his age should be looking for another career, and threatened to ruin his career. He

also treated Mr. Benton differently than two Hispanic police officers. The Chief

assigned these officers extra work hours not offered to Mr. Benton and promoted

Officer Chavez even though Mr. Benton had more seniority.



                                         -2-
       On September 8, 2009, Chief Herrera notified Mr. Benton that he was

investigating a traffic stop that Mr. Benton had conducted fifteen months earlier (the

Zelenok traffic stop). Mr. Benton protested that he had not received any write-up

when the previous Chief of Police reviewed that traffic stop. Unbeknownst to

Mr. Benton, Mr. Zelenok had filed a civil rights action against the Town and

Mr. Benton.

       Mr. Benton tried to resign from his position with South Fork on September 11,

but Mayor Heersink and Town Manager Wright talked him out of it. When

Mr. Benton met with Chief Herrera on September 13 regarding the internal

investigation into the Zelenok traffic stop, the Chief told him that two Town Trustees

wanted him fired. After that meeting, Chief Herrera continued to harass Mr. Benton

regarding the Zelenok traffic stop and also threatened him with future write-ups.

Mr. Benton tried to resign from his position again on September 13, but Mayor

Heersink and Town Manager Wright talked him out of it once more. On each of the

days that Mr. Benton attempted to resign, he reported for his work shift less than one

hour late.

       On September 22, 2009, Mr. Benton met with Chief Herrera and Town

Manager Wright. The Chief told Mr. Benton they were going to try to have him fired

at the next Town Board meeting. They also presented him with a write-up dated

September 21 that Mr. Benton claims was false. Among other things, it said that

Mr. Benton had been on leave without excuse on September 11 and 13. Mr. Benton


                                         -3-
protested, indicating that he had reported late for work on those days because he had

been speaking with Chief Herrera’s supervisors about his intent to resign. According

to Mr. Benton, the write-up was also false because Town policy only required that

action if an employee has had three tardies. Chief Herrera also informed Mr. Benton

that he was opening an investigation regarding another traffic stop (the Elgin traffic

stop). He told Mr. Benton if he did not resign, that investigation would go in his

personnel file. But Chief Herrera and Town Manager Wright then promised

Mr. Benton that if he resigned, the existing false write-ups and the additional,

threatened false write-ups would not go in his personnel file.

      That evening Mr. Benton prepared a written grievance against Chief Herrera

and the Town, which he intended to present to the Town Trustees. He had also

decided to resign from his position with the Town because he could not continue to

work under Chief Herrera. He intended to seek another police officer job, and he had

already started the application process with the City of Delta, Colorado. He claims

that his decision to resign was nonetheless made under duress due to the hostile work

environment at South Fork and the Chief’s threats to ruin his career.

      On September 23, Mr. Benton submitted his resignation at the Town Hall.

During his exit interview, he provided Mayor Heersink with his written grievance,

but the Mayor did not agree to submit it to the Town Board of Trustees. Instead, the

Mayor stated it would go in Mr. Benton’s personnel file and would make him look

like a whiner. As Mr. Benton was leaving the Town Hall, Chief Herrera told him that


                                          -4-
the investigation regarding the Zelenok traffic stop no longer existed. Mr. Benton

alleges that Town Manager Wright directed the Chief to “squash” that investigation.

      B.     Events Following Mr. Benton’s Resignation

      Mr. Benton applied for a position with the Leadville, Colorado, police

department. He tested for that position in October 2009, but he was not offered a job.

Delta also showed interest in Mr. Benton’s job application, and in late November

2009 he completed and passed the testing for a position. He was told that Delta was

doing a background check, and he signed a release allowing South Fork to review his

personnel file. But after Delta reviewed his file, Mr. Benton was not offered the job.

He received a letter from Delta dated January 27, 2010, informing him that he had

not been selected for hire and that Delta was continuing its search to fill the position.

      In late October or early November 2009, Mr. Benton first learned that he was

named as a defendant in the Zelenok litigation, although he was not served with the

complaint until December 2009. On April 30, 2010, his defense counsel in that case

informed Mr. Benton that he had received from Chief Herrera a write-up prepared by

Officer Chavez regarding the Elgin traffic stop. Mr. Benton was surprised because,

while he had been threatened with false write-ups during his September 22, 2009,

meeting with the Chief, he had never seen or signed this write-up.

      Mr. Benton learned that Chief Herrera would be leaving his job with South

Fork in late December 2010. In early January 2011, he requested a copy of his

personnel file. When he reviewed his file at the Town Hall on January 14, 2011, he


                                          -5-
discovered that former Chief Herrera and new Chief Chavez had put three false

write-ups in his file. His immediate reaction was, “[N]o wonder I can’t get a job you

guys can’t do this to me.” R., Vol. 1 at 62.

       Mr. Benton did not initially realize the legal importance of the false write-ups.

He finally sent a written claim to the Town on July 14, 2011. On July 18, he filed a

charge of discrimination against the Town with the Colorado Civil Rights Division

and the EEOC (EEOC charge). He stated:

       At the time of my separation from [South Fork], I informed the
       town Mayor about my concerns of discrimination toward me based
       on age and national origin/ancestry. . . . On or about January 17,
       2011, I discovered that the Respondent was providing false
       information to prospective employers therefore[] impeding my gainful
       employment. . . . It is my belief that I was discriminated against in
       retaliation for engaging in protected activity.

Id. at 72.

       In December 2011, Mr. Benton again asked to view and obtain copies of his

personnel file and other records from South Fork. When he went to the Town Hall

on January 17, 2012, Chief Chavez said he was not allowed to view the Zelenok file

and refused to provide copies of the Town’s policies and procedures. Town Manager

Matthew ordered Mr. Benton to leave, and he and Chief Chavez threatened to arrest

him. Chief Chavez pushed Mr. Benton as he was moving toward the door.

       Around the same time, Mr. Benton also submitted a written request to the

Colorado State Patrol Dispatch in Alamosa, Colorado, for copies of records related to

the Zelenok and Elgin traffic stops. Officer Stewart provided Mr. Benton with some,


                                          -6-
but not all, of the information he sought. Mr. Benton thought Officer Stewart was

trying to tip him off that someone was keeping the information from him. Officer

Stewart ultimately told Mr. Benton she would send him the records, but he never

received them.

      C.     Mr. Benton’s Lawsuit

      Mr. Benton filed a pro se complaint against defendants on February 8, 2012,

which he later amended. All but one defendant moved to dismiss the amended

complaint under Fed. R. Civ. P. 12(b)(1) and (6).1 Defendants also filed motions to

stay the proceedings pending the court’s ruling on the motions to dismiss. The

district court granted the motions to stay and referred the motions to dismiss to a

magistrate judge, who issued a report and recommendation (R&R). The magistrate

judge construed the amended complaint as asserting the following claims:

(1) retaliation against Mr. Benton based on his being named as a defendant in the

Zelenok lawsuit, in violation of the Fourteenth Amendment; (2) age discrimination in

violation of the Age Discrimination in Employment Act (ADEA); (3) race

discrimination in violation of Title VII; (4) failure to release State Patrol records; and

(5) state-law tort and breach-of-contract claims.

      The R&R construed Mr. Benton’s Fourteenth Amendment claim as an attempt

to allege retaliation based on his exercise of his First Amendment right of access to


1
      Town Manager Matthews moved to quash the service that the Town Attorney
had accepted on his behalf.


                                          -7-
the courts. It recommended dismissal of this claim because Mr. Benton failed to

allege any relevant protected activity. The magistrate judge determined that

Mr. Benton’s Title VII and ADEA claims were all time-barred because (1) he failed

to file his charge of discrimination within 300 days of September 23, 2009—the day

that he resigned his employment with South Fork, and (2) he failed to demonstrate

grounds supporting equitable tolling or estoppel. The magistrate judge also

recommended dismissal of Mr. Benton’s claim regarding the State Patrol’s failure to

release records. Finally, the magistrate judge recommended against exercising

jurisdiction over Mr. Benton’s remaining state law claims.

      Mr. Benton retained counsel, who filed objections to the R&R. His objections

raised only three issues: (1) that the magistrate judge failed to consider three claims

Mr. Benton had filed, namely supervisory harassment, retaliation, and constructive

discharge; (2) that Mr. Benton had alleged protected activity in support of his

retaliation claims, specifically his complaints of discrimination to Mayor Heersink in

September 2009; and (3) that Mr. Benton’s claims were not untimely under the

doctrines of equitable tolling and estoppel. Mr. Benton’s counsel also filed a Notice

of Voluntary Dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i), dismissing without

prejudice Mr. Benton’s claims against most of the defendants. After noting that the

only remaining defendants were the Town, its police department, Chief Herrera, and

Officer Chavez, the court reviewed the R&R de novo and adopted it.




                                          -8-
II.    Standards of Review

       “We review de novo the dismissal of an action under Rule 12(b)(6) based on

the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.

2010). “We review the district court’s refusal to apply equitable tolling for an abuse

of discretion.” Id. “We [also] review for an abuse of discretion the district court’s

refusal to hold an evidentiary hearing on equitable relief.” Davoll v. Webb, 194 F.3d

1116, 1139-40 (10th Cir. 1999).

       Although we liberally construe Mr. Benton’s pro se amended complaint, we do

not act as his advocate, we rely on his own statement of his causes of action, and we

will not rewrite his complaint to include claims he failed to present. See Firstenberg,

696 F.3d at 1024. We also liberally construe Mr. Benton’s pro se appellate filings.

See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

III.   Discussion

       Mr. Benton primarily challenges the district court’s denial of equitable tolling

and estoppel to extend the deadline to file his EEOC charge. We first address his

contentions of error in several other determinations by the district court.

       A.    The District Court’s Failure to Grant Default Judgments

       Mr. Benton first claims that, because none of the defendants filed timely

responses to his amended complaint, the district court erred by not granting default

judgments against them. Mr. Benton appears to be confused by the district court

clerk’s certificate of service dated May 8, 2012, which indicated only that the clerk


                                          -9-
had mailed service-of-process forms to the U.S. Marshal’s Service for effecting

service upon the defendants.2 After the defendants were served, they filed timely

responses, either by the original deadline or after being granted an extension of time.

Benton has not shown any basis for the district court to grant default judgments.

      B.     The District Court’s Failure to Schedule a Discovery Conference

      Mr. Benton also complains that the district court failed to schedule a discovery

conference under Fed. R. Civ. P. 26(f). But the court had granted the defendants’

motions to stay the proceedings pending its determination of the motions to dismiss.

Mr. Benton fails to show that the district court abused its discretion in granting the

motions to stay. See United States v. One Parcel of Real Property, 128 F.3d 1386,

1397 (10th Cir. 1997) (holding district court did not abuse its discretion in refusing to

allow requested discovery).

      C.     The District Court’s Failure to Set Aside Mr. Benton’s Voluntary
             Dismissal of Certain Defendants

      Mr. Benton next contends that the district court erred in failing to set aside his

voluntary dismissal of his claims against defendants Fairchild, Wright, Heersink,

Matthews, Hawethorne, Stewart, and the Colorado State Patrol Dispatch Alamosa,

Colorado. After the district court entered its final judgment, Mr. Benton filed a

pro se motion arguing that his counsel had filed the Notice of Voluntary Dismissal
2
      This certificate of service and the returns of service regarding the defendants
were not included in the record on appeal forwarded by the district court in this case.
But we take judicial notice of these documents on the district court’s docket. See
United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).


                                         - 10 -
without his knowledge or consent. The district court denied the motion on the

ground that it would not consider Mr. Benton’s pro se motion when his counsel had

not withdrawn from representing him. See D.C.COLO.LCivR 11.1(a) (eff. Dec. 1,

2012) (providing that “[o]nly pro se individual parties and members of this court’s

bar may appear or sign pleadings, motions, or other papers.”). Mr. Benton identifies

no error in the district court’s disposition of his motion.

       D.     The District Court’s Failure to Consider Claims Asserted by
              Mr. Benton

       Mr. Benton also argues that the district court misread his amended complaint

and failed to consider several of the claims that he asserted. In his objections to the

R&R, Mr. Benton argued that the magistrate judge did not address his claims

asserting supervisory harassment, retaliation, and constructive discharge. The district

court rejected this assertion, noting that the magistrate judge had explicitly

considered Mr. Benton’s retaliation claim. The court further held that Mr. Benton’s

bald assertion that he had “filed” claims for supervisory harassment and constructive

discharge was insufficient to avoid dismissal when he failed to set forth the legal

framework for these claims or develop any argument as to why the facts he alleged

would plausibly entitle him to relief.

       As to these latter two claims, Mr. Benton’s appeal argument lacks the same

factual and legal support. Moreover, the district court’s analysis of the timeliness of

his age and race discrimination claims applies as well to his claims of supervisory

harassment and constructive discharge. But we agree with Mr. Benton that the

                                          - 11 -
district court failed to address his Title VII and ADEA retaliation claims. However,

as explained, infra, we decline to remand for consideration of these claims because

his retaliation claims are also untimely.

      E.     Mr. Benton’s Contention that his Claims are Timely Under the
             Doctrines of Equitable Tolling and Equitable Estoppel

      Mr. Benton’s final contention is that his Title VII and ADEA claims are not

time-barred because the deadline for filing his discrimination charge was extended

under the doctrines of equitable tolling and equitable estoppel. He also maintains

that the district court should have held an evidentiary hearing on these issues.

“While the statute of limitations is an affirmative defense, when the dates given in

the complaint make clear that the right sued upon has been extinguished, the plaintiff

has the burden of establishing a factual basis for tolling the statute.” Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). Therefore, a

statute of limitations question may be appropriately resolved on a motion to dismiss.

Id. We agree with the district court that, based on Mr. Benton’s allegations in his

amended complaint, neither of these equitable doctrines applies. We also conclude

that the district court did not abuse its discretion in denying Mr. Benton’s request for

an evidentiary hearing.




                                            - 12 -
              1.     Timeframe for Filing an EEOC Charge

       “In states with a state agency that has authority over employment

discrimination claims, including [Colorado3], employees have up to 300 days to file

an EEOC charge if they first file a charge with the state agency. A claim not filed

within these statutory limits is time barred.” Daniels v. United Parcel Serv., Inc.,

701 F.3d 620, 628 (10th Cir. 2012) (citing 42 U.S.C. § 2000e-5(e)(1) (Title VII) and

29 U.S.C. §626(d) (ADEA)) (citation omitted). Compliance with the 300-day filing

requirement “is a condition precedent to suit that functions like a statute of

limitations and is subject to waiver, estoppel, and equitable tolling.” Tademy v.

Union Pac. Corp., 614 F.3d 1132, 1150 (10th Cir. 2008) (internal quotation mark

omitted); see also Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1226 n.13

(10th Cir. 2006) (noting equitable tolling and estoppel may apply to deadlines

applicable to ADEA claims), overruled on other grounds by Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53 (2006).

              2.     Grounds for Applying Equitable Tolling and Equitable
                     Estoppel

       Equitable tolling “is appropriate only where the circumstances of the case rise

to the level of active deception . . . where a plaintiff is lulled into inaction by [his]

past employer, state or federal agencies, or the courts.” Hulsey v. Kmart, Inc.,

43 F.3d 555, 557 (10th Cir. 1994) (internal quotation marks omitted). Equitable
3
       See 29 C.F.R. § 1601.80 (identifying the Colorado Civil Rights Division as
such a state agency).


                                           - 13 -
tolling will not apply “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 his charge.” Id. (internal

quotation marks omitted). Similarly, “it is generally accepted that when an employer

misleads an employee regarding a cause of action, equitable estoppel may be

invoked.” Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1427

(10th Cir. 1984). “Courts may evaluate whether it would be proper to apply such

doctrines, although they are to be applied sparingly.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002).

             3.     The District Court’s Determinations Regarding Accrual of
                    Mr. Benton’s Claims and Application of Equitable Tolling
                    and Estoppel

      The magistrate judge concluded that Mr. Benton’s Title VII and ADEA claims

all accrued no later than the date of his resignation from South Fork on September

23, 2009; therefore, his discrimination charge filed on July 18, 2011, was untimely.

The magistrate judge further found that Mr. Benton had not established any grounds

supporting equitable tolling or estoppel. In his objections to the R&R, Mr. Benton

contended that equitable tolling applied because defendants had withheld his South

Fork personnel file, making it difficult for him to find the documents necessary to

bring his claim. He argued that equitable estoppel also applied because defendants

misled him to believe that his personnel file would not be tarnished.




                                         - 14 -
      The district court rejected these contentions and also denied Mr. Benton’s

request for an evidentiary hearing on the issues of equitable tolling and estoppel. We

agree with the district court that, to the extent Mr. Benton’s Title VII and ADEA

claims had accrued as of his date of resignation, he has not alleged any active

deception by defendants that delayed the filing of his discrimination charge, nor does

he claim that defendants misled him regarding these causes of action. His allegations

show that he was fully aware of the bases for his race- and age-discrimination claims

(and his claims of supervisory harassment and constructive discharge) at the time he

resigned his employment. And he has not demonstrated that, by withholding the

contents of his personnel file, defendants in any way lulled him into inaction, or that

defendants’ promise of an untarnished personnel file misled him in any way

regarding those claims.

             4.     Timeliness of Mr. Benton’s Title VII and ADEA Retaliation
                    Claims

      The district court erred in applying the same analysis to Mr. Benton’s

retaliation claims. First, the court construed those claims too narrowly. The

magistrate judge concluded that he only alleged retaliation by defendants related to

Mr. Benton being named as a defendant in the Zelenok case. But Mr. Benton

objected to that characterization of his claims, arguing that the R&R ignored his

allegations of protected activity based on his complaints to Chief Herrera’s

supervisor about discrimination. “Title VII makes it an unlawful employment

practice for an employer ‘to discriminate against any of [its] employees . . . because

                                         - 15 -
[the employee] has opposed any practice made an unlawful employment practice by

this subchapter.’” Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir.

2005) (quoting 42 U.S.C. § 2000e-3(a)); see also 29 U.S.C. § 623(d) (providing for

anti-retaliation claim under ADEA). And such “protected opposition to

discrimination” includes “complaining informally to supervisors.” Medina, 413 F.3d

at 1135-36. As to defendants’ alleged retaliation, Mr. Benson claims that Chief

Herrera and Officer Chavez put false write-ups in his personnel file. In his EEOC

charge, which he attached to his amended complaint, Mr. Benton claimed that

defendants provided false information to prospective employers. He stated, “It is my

belief that I was discriminated against in retaliation for engaging in protected

activity.” R., Vol. 1 at 72. Despite Mr. Benton’s objection and the allegations of

protected activity and retaliation in his amended complaint, the district court did not

alter the magistrate judge’s narrow construction of his retaliation claims.

      The district court also erred in adopting the magistrate judge’s determination

that all of Mr. Benton’s Title VII and ADEA claims accrued on or before his date of

resignation “because, thereafter, the Town of South Fork was no longer [his]

employer.” R., Vol. 1 at 950. Contrary to the district court’s reasoning, “Title VII

permits former employees to bring . . . retaliation actions against their former

employers.” Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996); see

also Robinson v. Shell Oil Co., 519 U.S. 337, 339-40, 346 (1997) (holding former

employee could bring claim under § 2000e-3(a) alleging that former employer gave


                                         - 16 -
out a negative employment reference in retaliation for his having filed an EEOC

charge); Passer v. Am. Chem. Soc’y, 935 F.2d 322, 330-31 (D.C. Cir. 1991)

(permitting former employees to bring claims under anti-retaliation provision in

ADEA “as long as the alleged discrimination is related to or arises out of the

employment relationship” (internal quotation mark omitted)). Mr. Benton’s amended

complaint alleges that the retaliation occurred after his resignation from South Fork.

Therefore, not all of his Title VII and ADEA claims had accrued at that time.

                    a.    Accrual of Mr. Benton’s Retaliation Claims

      “[E]ach retaliatory adverse employment decision constitutes a separate

actionable unlawful employment practice [and Mr. Benton] can only file a charge to

cover discrete acts that occurred within [300 days of his filing].” Morgan, 536 U.S.

at 114 (internal quotation marks omitted). In the employment context,

      a claim accrues when the disputed employment practice . . . is first
      announced to the plaintiff. Sometimes, of course, an adverse
      employment decision isn’t announced and the employee doesn’t learn of
      it until much later—and in those circumstances courts revert to asking
      when the plaintiff did or a reasonable employee would have known of
      the employer’s decision. But in all events, and consistent with the
      general federal rule, an employee who discovers, or should have
      discovered, the injury (the adverse employment decision) need not be
      aware of the unlawful discriminatory intent behind that act for the
      limitations clock to start ticking.

Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011) (citations

omitted). Here, defendants did not “announce” their decision to put false write-ups

in Mr. Benton’s South Fork personnel file and provide that false information to

prospective employers. He asserts that he had no knowledge of defendants’

                                         - 17 -
retaliation until he reviewed his personnel file on January 14, 2011. But his

allegations show that he discovered or should have discovered his injury before that

date.

        Mr. Benton’s allegations indicate that, before he took steps to review his South

Fork personnel file on January 14, 2011, he had deduced that Chief Herrera was

ruining his name and preventing him from obtaining employment. R., Vol. 1 at 62.

He does not specify when he reached that conclusion. But he alleges that he applied

for a job with the Town of Delta in the fall of 2009 and passed the testing for that

position. He knew that Delta’s next step was a background check and that Delta had

reviewed his South Fork personnel file. He learned in January 2010 that Delta would

not hire him, and he specifically alleges a connection between his failure to get that

job and Delta’s review of his personnel file. Arguably, Delta’s rejection letter should

have alerted Mr. Benton to a problem with his personnel file. But additional

allegations show that by April 30, 2010, Mr. Benton knew or should have known of

his injury. On that date he learned that Officer Chavez had prepared a false write-up

regarding the Elgin traffic stop. He alleges being surprised that this write-up existed

because he had been threatened with false write-ups in September 2009, yet he had

never seen this false write-up. R., Vol. 1 at 59-60. Based on these allegations, we

conclude that Mr. Benton’s retaliation claims accrued no later than April 30, 2010.

Therefore, he was required to file his EEOC charge within the next 300 days, by no

later than February 24, 2011. Of course, if the false information was provided to


                                          - 18 -
another potential employer at a future date, this would “constitut[e] a separate

actionable unlawful employment practice,” see Morgan, 536 U.S. at 114, and the

period for filing a claim would begin to run anew from the time the employee knew

or should have known of it.

                    b.     Application of Equitable Tolling and Estoppel to
                           Mr. Benton’s Retaliation Claims

      Because the district court did not address Mr. Benton’s Title VII and ADEA

retaliation claims, it did not consider whether they were timely or whether to exercise

its discretion to apply equitable tolling or estoppel to extend his deadline for filing

his EEOC charge. As an appellate court, we are limited in our “authority to fashion

[our] own rationale for a decision entrusted in the first instance to the discretion of

the district court.” Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003). Thus,

we would ordinarily remand to allow the district court to make a determination on

equitable tolling and estoppel in the first instance. See Beaird v. Seagate Tech., Inc.,

145 F.3d 1159, 1174-75 (10th Cir. 1998). But we need not do so here because we

can say, as a matter of law, that the district court would have abused its discretion by

applying either equitable doctrine in this case. See Ashby, 331 F.3d at 1151.

      Mr. Benton argues that equitable tolling and estoppel apply because he had no

knowledge of the false write-ups until he reviewed his South Fork personnel file.4


4
      Mr. Benton now disclaims the assertion he made in his objections to the R&R
(through his former counsel) that defendants delayed the filing of his EEOC charge
by withholding his personnel file and releasing it only in scattered versions. He
                                                                            (continued)
                                         - 19 -
He also maintains that in September 2009 defendants falsely led him to believe that

his personnel file would not contain any false write-ups if he agreed to resign from

his position with the Town. But for this promise, he claims that he would have filed

his discrimination charge sooner than July 18, 2011.

      Mr. Benton’s allegations do not establish grounds for tolling the 300-day time

period for filing his EEOC charge. After he learned of the false write-up prepared by

Officer Chavez on April 30, 2010, he waited eight months to obtain a copy of his

personnel file. He then delayed an additional six months to file his EEOC charge.

He does not allege any acts by defendants during this time period that caused his

delay, that lulled him into inaction, or that misled him about his claims. He says only

that he did not realize how legally important the false write-ups were. R., Vol. 1

at 63. Mr. Benton’s allegations fail to demonstrate grounds for applying equitable

tolling or equitable estoppel to extend the 300-day deadline for filing his EEOC

charge on his retaliation claims.

             5.     District Court’s Denial of an Evidentiary Hearing on
                    Equitable Tolling and Estoppel Issues

      We also reject Mr. Benton’s contention that the district was required to

conduct an evidentiary hearing to determine whether equitable tolling or estoppel

apply in this case. In his objections to the R&R, Mr. Benton cited Beaird, 145 F.3d

at 1174-75, for this proposition. We decline to read Beaird as requiring a district

acknowledges that, upon his initial request, he obtained a complete copy of that file
on January 14, 2011.


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court to hold an evidentiary hearing in every case where equitable tolling or estoppel

is asserted. In this case those issues arose in the context of motions to dismiss under

Rule 12(b)(6). Accordingly, the district court made its determination based solely on

the allegations in Mr. Benton’s amended complaint, as do we. He does not explain

how an evidentiary hearing could alter the conclusion that he failed to allege any

grounds for applying equitable tolling or estoppel. He simply has not “alleged

enough facts to warrant . . . an evidentiary hearing to determine whether he is entitled

to [that relief].” Fleming v. Evans, 481 F.3d 1249, 1256-57 (10th Cir. 2007).

IV.   Conclusion

      The judgment of the district court is affirmed. Mr. Benton’s pending motions

are denied.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Senior Circuit Judge




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