F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            NOV 21 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 EJIKE J. AJALLA,

               Plaintiff-Appellant,                     No. 03-7068
          v.                                          (E.D. Oklahoma)
 THOMAS E. WHITE, Secretary of the                (D.C. No. CIV-02-681-S)
 Army,

               Defendant-Appellee.



                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.



      Ejike J. Ajalla alleges that the United States Army (“the Army”) racially

discriminated against him in employment in violation of Title VII of the Civil

Rights Act, 42 U.S.C. §§ 2000e–2000e-17. The district court dismissed Mr.

Ajalla’s complaint for failure to timely exhaust his administrative remedies. Mr.

Ajalla now appeals the district court’s dismissal of his complaint. After

examining the briefs and appellate record, this panel has determined unanimously



      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
to decide this case on the briefs without oral argument. See Fed. R. App. P.

34(a)(2). The case is therefore ordered submitted without oral argument. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                I. BACKGROUND

      Ejike J. Ajalla began working as a mechanical engineer in the Technical

Training Division of the McAlester Army Ammunition Plant (MCAAP) in

McAlester, Oklahoma on June 20, 1999. Mr. Ajalla was previously employed as a

mechanical engineer in the Maintenance Engineering Division of the United

States Army Defense Ammunition Center in Savanna, Illinois. He was reassigned

to MCAAP under a negotiated settlement agreement entered into pursuant to a

lawsuit filed by Mr. Ajalla against the Army, alleging racial discrimination in

employment in violation of Title VII.

      In a letter dated March 21, 2000, Mr. Ajalla alleged that the Army was in

noncompliance with the negotiated settlement agreement. Specifically, Mr. Ajalla

contended that his new position at MCAAP was not the same type of position as

his former position in Savanna. He asserted that the MCAAP job was “not a

mechanical engineer job, but a teaching job.” Rec. vol. I, doc. 1, at 3a

(Complaint, filed Sept. 9, 2002). In response to Mr. Ajalla’s letter, the Army

issued a final agency decision dated September 20, 2001, finding that the Army

was in compliance with the settlement agreement. The letter informing Mr. Ajalla


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of the final agency decision explained that, should Mr. Ajalla wish to appeal the

decision, the appeal had to be filed with the Equal Employment Opportunity

Commission (EEOC) within thirty calendar days of receipt of the decision, as

required by 29 C.F.R. § 1614.402. 1

      The Army’s Equal Employment Opportunity Compliance and Complaints

Review Agency (EEOCCRA) in Arlington, Virginia, attempted to send a letter

detailing the final agency decision to Mr. Ajalla; however, the U.S. Postal Service

was unable to deliver the letter successfully. Apparently, the EEOCCRA did not

have Mr. Ajalla’s correct mailing address. Aplt’s Br. at 2. Because of this

difficulty, the EEOCCRA asked the Equal Employment Opportunity Office at

MCAAP to deliver the letter to Mr. Ajalla. An MCAAP employee sent the letter

to Mr. Ajalla by certified mail/return receipt requested on October 16, 2001. The

letter arrived at Mr. Ajalla’s home and was signed for by his fifteen year-old son

on October 17, 2001. Mr. Ajalla was away on business when the letter arrived

and had asked his wife not to open any letters while he was gone unless they had

a Washington, D.C., return address. Since the letter containing the final agency



      1
        The letter also informed Mr. Ajalla that he could proceed by filing an
action in the appropriate United States District Court within ninety days of
receiving the final agency decision, should he decide not to appeal to the EEOC,
or within ninety days of receipt of the EEOC’s “final decision on appeal,” should
he decide to appeal to the EEOC. See 29 C.F.R. § 1614.407. Mr. Ajalla does not
argue that his district court complaint was timely filed.

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decision was mailed in an MCAAP envelope bearing a McAlester, Oklahoma,

return address, Mr. Ajalla’s wife did not open the letter while her husband was

away.

        Mr. Ajalla did not return from his business trip until November 18, 2001.

According to Mr. Ajalla, on November 19, 2001, he spoke with an attorney at the

EEOC and an employee in the MCAAP Equal Employment Opportunity Office,

and both of them assured him that his appeal would be timely if filed that day.

Aple’s Br. at 11; Rec. vol. I, doc. 26, at 2 (Plaintiff’s Response to Defendant’s

Motion to Dismiss, filed Apr. 18, 2003). Mr. Ajalla wrote a letter to the EEOC

appealing the Army’s final agency decision on November 19, 2001, thirty-three

days after he received the decision by certified mail. 2 The EEOC dismissed Mr.

Ajalla’s complaint as untimely.



        2
         Mr. Ajalla’s letter of November 19, 2001 stated only:
              This is to bring to your attention that the decision sited [sic]
       above was mailed to my residential address by Certified Mail-Return
       Receipt Requested on October 16, 2001. The said letter arrived at my
       residence on the following day, October 17, 2001 and was signed for by
       my fifteen-year (15) old son, Uche Ajalla.
              I was out of town when the said letter arrived. Upon my return
       on November 18, 2001 I read the letter and found the 30-day [sic] had
       elapsed.
              I am therefore requesting that you accept my Notice of
       Appeal/Petition as timely.
Rec. vol. I, doc. 22, Attach. 3 (Defendant’s Motion to Dismiss, filed Feb. 25, 2003).
While it is not clear that this letter constitutes sufficient notice of appeal, it will be
treated as such for purposes of this action.

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      Mr. Ajalla then filed a pro se complaint in the United States District Court

for the Eastern District of Oklahoma. The district court granted the Army’s

motion to dismiss on March 26, 2003, finding that Mr. Ajalla failed to timely

exhaust his administrative remedies. The court subsequently granted Mr. Ajalla’s

motion for reconsideration because the case number on the Army’s motion to

dismiss was incorrect, leading Mr. Ajalla to believe that he did not need to file a

response to the Army’s motion. After considering Mr. Ajalla’s response to the

motion and the Army’s reply, the district court dismissed the complaint on May

16, 2003, adopting its March 26 order.

                                  II. DISCUSSION

      On appeal, Mr. Ajalla challenges the grant of the Army’s motion to dismiss

his Title VII claim. “We review the district court’s ruling as to defendant’s

motion to dismiss de novo.” Steele v. United States, 

, 532 (10th Cir.

1994). However, “[b]ecause the application of equitable doctrines rests in the

sound discretion of the district court, its decision [regarding equitable tolling]

will not be disturbed on appeal absent a showing of abuse of discretion.” United

States v. Clymore, 

, 1198 (10th Cir. 2001). Since Mr. Ajalla is

proceeding pro se, we liberally construe his filings. See Haines v. Kerner, 

, 520 (1972) (per curiam). Upon review of the record, we conclude for

substantially the same reasons as the district court that the grant of the Army’s


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motion to dismiss is warranted.

      Under 29 C.F.R. § 1614.402(a), Mr. Ajalla had thirty days in which to file

an appeal with the EEOC after receipt of the Army’s final agency decision. Mr.

Ajalla does not dispute that the letter notifying him of the Army’s final agency

decision arrived at his house and was signed for by his son on October 17, 2001,

thirty-three days before he appealed the decision to the EEOC. Rec. vol. I, doc.

28, at 2 n.2 (Dist Ct. Order, filed May 16, 2003). In Million v. Frank, we held

that receipt of a right to sue letter by a member of the plaintiff’s household at the

plaintiff’s address “constitutes receipt sufficient to start the running of the time

period for filing a discrimination action.” 

, 388 (10th Cir. 1995).

Furthermore, Oklahoma law regarding service of process provides that

“[a]cceptance or refusal of service by mail by a person who is fifteen (15) years

of age or older who resides at the defendant’s dwelling house or usual place of

abode shall constitute acceptance or refusal by the party addressed.” O KLA . S TAT .

12, § 2004(C)(2)(c). Thus, Mr. Ajalla effectively received the letter on October

17, 2001, and the period for filing the appeal began to run as of that day, unless

Mr. Ajalla can establish grounds for equitable tolling of the time limit.

      The thirty-day time limit established by 29 C.F.R. § 1614.402(a) “is not a

jurisdictional requirement, but rather is subject to waiver, estoppel, and equitable

tolling.” See Harms v. Internal Revenue Serv., 

, 1006 (10th Cir.


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2003) (addressing equitable tolling of a time limit set forth in 29 C.F.R. §

1614.407(a), a related regulation). Mr. Ajalla argues that he is entitled to

equitable tolling of the time limit because: 1) the Army deliberately deceived him

by sending the final agency decision in an envelope bearing an MCAAP return

address; and 2) he was misled by two different individuals on November 19,

2001, an employee in the Equal Employment Opportunity Office at MCAAP and

an attorney at the EEOC, both of whom told him his appeal would be accepted as

timely if filed on November 19, 2001.

      “In this circuit, a Title VII time limit will be tolled only if there has been

active deception of the claimant regarding procedural requirements.” Jarret v. US

Sprint Communications Co., 

, 260 (10th Cir. 1994). “For instance,

equitable tolling may be appropriate where a plaintiff has been ‘lulled into

inaction by her past employer, state or federal agencies, or the courts.’” Martinez

v. Orr, 

, 1110 (10th Cir. 1984) (quoting Carlile v. South Routt Sch.

Dist. RE 3-J, 

, 986 (10th Cir. 1981)). The fact that the Army sent

the final agency decision letter in an envelope with an MCAAP return address

does not constitute “active deception,” nor was Mr. Ajalla “lulled into inaction”

by the Army. There is no indication that the MCAAP return address was intended

to mislead Mr. Ajalla; rather, as the district court noted, “it appears Defendant

was diligently attempting to serve the Final Decision on Plaintiff after initial


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efforts by the Army’s Arlington, Virginia, office proved unsuccessful.” Rec. vol

I, doc. 28, at 3.

       Mr. Ajalla argues that “[t]he Agency, being fully aware that the case could

be litigated could have given my correct mailing address to the Department of the

Army to mail its final decision directly to me.” Aplt’s Br. at 2. While it is true

that the EEOCCRA could have attempted to obtain Mr. Ajalla’s correct address,

we agree with the district court’s finding that the Army’s “utilization of its local

office was a reasonable means of service.” Rec. vol. I, doc. 28, at 3. The Army

had no way of knowing that Mr. Ajalla had directed his wife not to open any mail

without a Washington, D.C., return address. We have previously held that a

plaintiff’s personal decision as to when to open his mail is not grounds for

equitable tolling. See 

(“The doctrine of equitable tolling

cannot be applied simply because the plaintiff chose to examine his mail on a

weekly basis rather than as it arrived.”) (internal citation omitted). Similarly, Mr.

Ajalla’s decision to tell his wife not to open mail in his absence does not meet the

standard for equitable tolling.

       Mr. Ajalla’s second argument in favor of equitable tolling also fails. He

contends that in telephone conversations on November 19, 2001, employees of the

EEOC and the Equal Employment Opportunity Office at MCAAP told him that his

appeal would be treated as timely if filed on November 19, 2001. The two


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individuals denied making any such statements in their affidavits. See Rec. vol. I,

doc. 27, Ex. A, B (Defendant’s Reply to Plaintiff’s Response to Defendant’s

Motion to Dismiss, filed Apr. 29, 2003). However, whether these two

individuals actually represented to Mr. Ajalla that his appeal would be timely if

filed on November 19, 2001, has no effect on the outcome of this action. As aptly

put by the district court,

       [g]iven the receipt date of October 17, 2001, Plaintiff’s appeal of the
       Army’s Final Decision was due November 16, 2001; consequently, any
       representations made by Army employees on November 19, 2001, are
       irrelevant with respect to the application of equitable tolling as Plaintiff
       could not have been actively deceived into not acting by virtue of
       representations made after the running of the limitations period.

Rec. vol. I, doc. 28, at 4.

       Accordingly, the district court’s grant of the Army’s motion to

dismiss Mr. Ajalla’s complaint is AFFIRMED.


                                                 Entered for the Court,



                                                 Robert H. Henry,
                                                 Circuit Judge




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