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

                            FOR THE TENTH CIRCUIT                          May 6, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ELOUISE JAMES,

             Plaintiff-Appellant,

v.                                                        No. 13-6283
                                                   (D.C. No. 5:13-CV-00315-R)
JOHN McHUGH, Secretary of the Army;                       (W.D. Okla.)
U.S. DEPARTMENT OF THE ARMY,

             Respondents-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, PORFILIO and O’BRIEN, Circuit Judges.



      Elouise James appeals the district court’s grant of summary judgment in favor of

her employer on her claims of employment discrimination. The court held that

Ms. James had failed to timely exhaust her administrative remedies because she did not




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
file her formal complaint with her employing agency within the time prescribed by the

applicable regulation. We affirm.

   I.      Background

        The underlying operative facts are not in dispute. Claiming her employer, the U.S.

Department of the Army, had discriminated against her on the basis of race and age,

Ms. James initiated contact with a Counselor in the Army’s Equal Employment

Opportunity Office (EEOO). On November 30, 2012, she received a Notice of Right to

File a Formal Complaint of Discrimination after Completion of Traditional EEO

Counseling. The notice advised her of her “right to file a formal complaint of

discrimination within 15 calendar days of receipt of this notice.” Aplt. App. at 32.

Fifteen days from the day she received the Notice was December 15, 2012, which was a

Saturday, so she had until the following Monday, December 17, 2012. See 29 C.F.R.

§ 1614.604(d) (stating if a deadline falls on a weekend or holiday, it shall be extended to

the next business day). She did not file her formal complaint until December 28, 2012,

eleven days after the deadline. Consequently, on January 8, 2013, the EEOO issued a

decision dismissing her formal complaint because it was untimely. On April 3, 2013,

Ms. James filed the underlying lawsuit in federal district court, which entered summary

judgment in favor of defendants because Ms. James had not timely exhausted her

administrative remedies.




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   II.      Discussion

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

record in the light most favorable to the non-moving party. Apsley v. Boeing Co.,

691 F.3d 1184, 1194 (10th Cir. 2012). The timely filing of an administrative complaint is

a prerequisite to a civil suit, although subject to waiver, estoppel and equitable tolling.

See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174-75 (10th Cir. 1998) (discussing

time limit for filing claim with Equal Employment Opportunity Commission); see also

29 C.F.R. § 1614.604(c) (providing the time limits applicable to the subject regulations

“are subject to waiver, estoppel and equitable tolling”). Ms. James does not claim

entitlement to waiver, estoppel, or equitable tolling.

         In reading Ms. James’ appellate briefing, it appears she misses the point of the

district court’s ruling. She is correct that the EEOO decision to dismiss her formal

complaint authorized her to file suit if she did so within ninety days of the date of the

notice. There is no dispute that she filed suit within those ninety days. But it is not the

timing of that filing that results in dismissal of her claims, but rather her untimely filing

of her formal complaint with the Army, as required by 29 C.F.R. § 1614.107(a)(2). In

relevant part, that section states: “Prior to a request for a hearing in a case, the agency

shall dismiss an entire complaint . . . [t]hat fails to comply with the applicable time limits

contained in [29 C.F.R.] § 1614.106.” Section 1614.106(b) requires “[a] complaint [to

be] filed within 15 days of receipt of the notice required by § 1614.105(d), (e) or (f).” It

is undisputed that Ms. James received the notice issued under § 1614.105(d) on

November 30, 2012. She did not file her formal complaint with the Army within fifteen

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days thereafter, by December 17, 2012. Consequently, she failed to timely exhaust her

administrative remedies and the district court properly granted summary judgment to the

defendants.

       Ms. James’ remaining appellate arguments are also unavailing. Although she

points out that in the summary judgment context, all inferences and disputes of material

fact must be resolved in her favor, she has identified no disputed facts or inferences from

which she could benefit. Her general claims that allowing her to disregard the timely-

exhaustion requirement would serve the purposes of the anti-discrimination laws are

contrary to established circuit authority, see, e.g., Beaird, 145 F.3d at 1174-75, and

Supreme Court precedent, see Brown v. Gen. Servs. Admin., 425 U.S. 820, 833 (1976)

(noting that when Congress authorized federal employees to sue the federal government

for violation of the civil rights laws, it conditioned such authorization on the plaintiff’s

satisfaction of “rigorous administrative exhaustion requirements and time limitations”).

   III.    Conclusion

       The judgment of the district court is affirmed.


                                                   Entered for the Court


                                                   Mary Beck Briscoe
                                                   Chief Judge




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