                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 22 2003
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    JANE T. GUEVARA,

                Plaintiff - Appellant,

    v.                                                  No. 03-2056
                                               (D.C. No. CIV-01-823 WJ/LCS)
    BEST WESTERN STEVENS INN,                         (D. New Mexico)
    INCORPORATED,

                Defendant - Appellee.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.



         Jane T. Guevara, appearing pro se, appeals from a grant of summary

judgment in favor of her former employer, Best Western Stevens Inn, Inc., (“Best

Western”) on claims of age and national-origin discrimination and retaliation

brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634.


*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
She also appeals the district court’s denial of her motion for relief from judgment

under Fed. R. Civ. P. 60(b),     alleging fraud upon the court . Reviewing the grant of

summary judgment de novo,        Harvey Barnett, Inc. v. Shidler   , 338 F.3d 1125, 1128

(10th Cir. 2003), and the denial of the Rule 60(b) motion for abuse of discretion,

Plotner v. AT & T Corp. , 224 F.3d 1161, 1174 (10th Cir. 2000), we affirm.


                                             I

       Guevara was the evening head waitress at the Best Western in Carlsbad,

New Mexico. In July 2000, she filed a charge of age and national-origin

discrimination with the Equal Employment Opportunity Commission (EEOC),

alleging that she had been harassed daily since May 1974 and disciplined for

situations that were not her responsibility or fault. On December 27, 2000, the

EEOC issued a right-to-sue letter, which notified Guevara of the ninety-day

statutory period to file suit.

       On November 20, 2000, Best Western placed Guevara on administrative

leave with pay, and on December 31, 2000, terminated her employment. As

grounds for termination, Best Western stated that Guevara continually violated

supervisors’ instructions and created problems with other employees, as

evidenced by a string of written warnings. After her termination, Guevara filed a

second EEOC charge, this time alleging retaliation for filing the first EEOC



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charge. The EEOC’s right-to-sue letter, containing the notice of suit rights, was

mailed on April 19, 2001.

      On July 18, 2001, Guevara filed a complaint in federal court alleging

discrimination on the basis of age and national origin and retaliation, and Best

Western moved for summary judgment. In ruling on the motion, the district court

concluded that: (1) only Guevara’s retaliation claim was timely-filed; and

(2) Guevara failed to establish a prima facie case of retaliation. Moreover,

although the district court concluded that Guevara’s discrimination claims were

time-barred, it nonetheless examined them within the scope of her retaliation

claim and found them to be without merit. The court therefore granted summary

judgment to Best Western and subsequently denied Guevera’s motion for relief

from judgment. This appeal followed.


                                         II

      We turn first to the question of whether Guevara’s claims of employment

discrimination, as distinct from retaliation, are time-barred. Unless a Title VII or

ADEA plaintiff files suit within ninety days of receiving a right-to-sue letter from

the EEOC, she is foreclosed from bringing suit on the allegations made in her

EEOC claim.    42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e). Because Guevara

filed suit 203 days from the mailing date of the right-to-sue letter on her

discrimination charge and asserts no reasons for extended delays or equitable

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tolling, we conclude that Guevara’s discrimination claims are untimely and do not

consider them on appeal.

       As to the retaliation claim, Guevara met the ninety-day deadline.

Accordingly, we measure Guevara’s claim against the appropriate summary-

judgment standards. To establish a prima facie case of retaliation, Guevara must

show that: (1) she engaged in protected activity under Title VII or the ADEA; (2)

she subsequently suffered an adverse employment action; and (3) there was a

causal connection between the protected activity and the adverse employment

action. Wells v. Colo. Dep’t of Transp.    , 325 F.3d 1205, 1213 (10th Cir. 2003).

       Having filed an EEOC charge and having been discharged, Guevara easily

meets the first two steps to establish a prima facie case. However, she fails to

show a causal connection between her filing of the EEOC charge and her

termination. “A causal connection is established where the plaintiff presents

evidence sufficient to raise the inference that her protected activity was the likely

reason for the adverse action.”   Corneveaux v. CUNA Mut. Ins. Group       , 76 F.3d

1498, 1507 (10th Cir. 1996) (quotation omitted).

       In evaluating the causal-connection element of a prima facie retaliation

claim, we consider the employer’s proffered reasons for its actions, see    Wells ,

325 F.3d at 1217–18, as well as the timing of the adverse action. “[T]he closer”

the date of a plaintiff's termination “to the protected activity, the more likely it


                                            -4-
will support a showing of causation.”       Anderson v. Coors Brewing Co. , 181 F.3d

1171, 1179 (10th Cir. 1999). For instance, a one and one-half month period

between a protected activity and an adverse action may, by itself, establish

causation. Id. However, a three-month period, standing alone, is insufficient.            Id.

       The almost five-month gap between Guevara’s filing of her first EEOC

charge and her termination, without more, cannot support an inference of

causation. See id. Furthermore, Best Western’s treatment of Guevara did not

change between her initial EEOC charge and her termination. After the filing of

the charge, Best Western continued to counsel Guevara about changing her

behavior through written disciplinary actions. These warnings demonstrate both

the consistency of Best Western’s actions and the legitimate reasons for

Guevara’s discharge. (Appellee’s Supp. App. at 51–96.) Because Guevara has

failed to raise any genuine issues of material fact linking the filing of her EEOC

claim to her termination, we affirm the district court’s grant of summary judgment

to Best Western.

       Finally, we address Guevara’s claim that the district court abused its

discretion when it denied her motion for relief from judgment under

Fed. R. Civ. P. 60(b). We will reverse a district court’s denial of a Rule 60(b)

motion “only if we find a complete absence of a reasonable basis and are certain

that the district court’s decision is wrong.”         Plotner , 224 F.3d at 1174 (quotations


                                                -5-
omitted). We find no suggestion that the district court abused its discretion in

denying Guevara’s Rule 60(b) motion. We specifically note that Guevara’s

numerous allegations of fraud have no support in the record. Further, there is no

error in the district court’s ruling on the Rule 60(b) motion before the filing of a

reply brief. See Walter v. Morton , 33 F.3d 1240, 1244 (10th Cir. 1994).

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.



                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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