                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    July 24, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk

                               06-60788



                            CATHY B. COOK,

                                                Plaintiff-Appellant,

                                Versus

               MISSISSIPPI DEPARTMENT OF HUMAN SERVICES

                                                 Defendant-Appellee.



            Appeal from the United States District Court
              for the Northern District of Mississippi
                         No. 1:04-CV-27-D-B


Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     The Appellant, Cathy B. Cook (“Cook”), filed a Title VII

retaliation suit against her employer, the Mississippi Department

of Human Services (“MDHS”).      The district court granted summary

judgment in favor of MDHS, explaining that Cook had not filed a

timely charge with the Equal Employment Opportunity Commission

(“EEOC”).   Finding no error, we AFFIRM.

     Cook is a white female who began her employment with MDHS in


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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1986.   In the Fall of 2000, the position of Director of MDHS for

Chickasaw County became available.             Cook maintains that although

she was more qualified for the position, the job was given to

Samuel Buchanan (“Buchanan”), who Cook asserts is a less qualified

black male.     Buchanan began his employment as County Director on

February 12, 2001.

     Aggrieved that she did not receive the promotion, on March 16,

2001, Cook filed a charge with the EEOC alleging reverse race

discrimination and stating that the alleged discrimination occurred

on February 10, 2001.         After filing the 2001 EEOC charge and

subsequent lawsuit against MDHS, Cook asserts that Buchanan (who

was now her boss) became vindictive and retaliatory towards her.

     On November 13, 2003, Cook filed a second EEOC charge alleging

retaliation.     On the EEOC charge form, Cook entered "April 2001"

and checked the box "continuing action" in the area denoting the

"date discrimination took place."                  In the detailed narrative

attached to the charge form, Cook alleged that she was forced to

work overtime without compensation for over 19 months.                   She also

complained     that   she   had   not       been   promoted   to   the    job   of

“Supervisor,” a position that had remained opened since June of

2000 and for which she had inquired about and was qualified.

     The EEOC notified Cook that it was unable to investigate her

November 13, 2003 charge because the charge was not filed within

the time limit required by law.             The EEOC explained that because



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Cook’s complaint indicated that the adverse action (the promotion

denial and the uncompensated overtime) last occurred sometime in

November 2002, Cook had 180 days following that date (approximately

April of 2003) to file her charge, which she had failed to do.1

Cook asked the EEOC to reconsider its determination, arguing that

retaliation was ongoing because the Supervisor job for which she

was qualified remained unfilled.       The EEOC declined.

     On January 23, 2004, Cook filed the instant suit against MDHS

alleging race discrimination and retaliation.       The district court

agreed with the EEOC’s conclusion that Cook’s charge of retaliation

was untimely and dismissed her suit.

     We agree that Cook’s November 2003 EEOC charge was untimely.

While Cook says the March 2001 start date for retaliation on her

charge form was a clerical error, she offers no basis to excuse the

error under principles of equitable tolling.          Further, Cook’s

argument that her retaliation was ongoing because MDHS failed to

promote her to the open Supervisor position is unavailing.        MDHS

did not seek applicants for the position and it was not filled.     As

a result, the supervisor job was never available such that Cook

could be rejected.2

     1
      See 42 U.S.C. § 2000e-5(e)(1) (Under Title VII, an
aggrieved employee has 180 days to “timely” file a charge with
the EEOC).
     2
      See Thomas v. Tex Dep’t of Criminal Justice, 220 F.3d 389,
394 & n.2 (5th Cir. 2000) (failure to promote is an adverse
employment action).


                                   3
     Because the district court correctly concluded that Cook

failed to file a timely EEOC charge, the judgment of the district

court is AFFIRMED.




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