* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 31 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RAYMOND CHARLES PERSIK,

Plaintiff-Appellant,

v. MANPOWER INC.,

Defendant-Appellee. No. 03-1116 (D.C. No. 02-WM-1703 (MJW))

(D. Colo.)

ORDER AND JUDGMENT *

Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Raymond Charles Persik appeals from the district co urt’s dismissal of his employment discrimination complaint, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We affirm.

FACTS In his complaint, Persik alleges that the defendant , Manpower Inc. (Manpower), unlawfully discriminated against him ba sed on his sex, religion, and his “Religious/Political Pro Life view.” R., D oc. 1 at 2. Manpower is a temporary agency that places employees with emplo yers who contract for temporary labor. It employed Persik as a temporaryemployee. Persik asserts that the first incident of discrimin ation occurred on March 27, 2000, during a job assignment arranged by the M anpower office in Boulder, Colorado. He alleges that a Manpower representativ e contacted him and asked if he was experiencing emotional problems. R., Doc . 1 at 3. On April 24, 2000, Persik was prematurely released from a Manpower ass ignment through the Boulder office at the University of Colorado. He a lleges that this termination occurred due to discrimination rather than the reas on given, his failure to follow directions. Persik claims he was unable to obtain employment th rough Manpower during the summer of 2000. Id. , Attach. 1 at 1 (Charge of Discrimination). Apparently, he is referring only to the Boulder bra nch office, for on July 5, 2000,1 Persik also alleges retaliation by “an unknown party” on December 22,

2000. R., Doc. 1 at 5. Not only is this alleged i ncident outside the 300-day window, it fails to state a claim for relief becaus e there is no indication in the complaint that this unknown party had anything to d o with Manpower. -3- Persik states he again worked for Manpower at an as signment arranged by the Louisville, Colorado branch office and “had an excellent assignment.” Id. at 2. In December 2000, Persik also worked out of the Manpower office in Carlisle, Pennsylvania. He alleges no discriminatory incident in this assignment. The last incident of discrimination purportedly took place o n July 27, 2001, when Persik received a letter from Manpower’s corporate headquarters, indicating that it stood by the decision reached by the Boulder branch offic e in April 24, 2000 to terminate his employment. Id. 1 Persik filed a charge of discrimination complaining of these practices with the Equal Employment Opportunity Commission (EEOC) on January 22, 2002. Id. at 2. The district court dismissed Persik’s compl aint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), because his complaint showed that his EEOC charge had not been timely filed. A Title VII plaintiff must file a charge with the EEOC within 300 days “after the alleged un lawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). A claim is time-barred if the charge is not filed within this time limit. Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 109 (2002). Discrete discriminatory acts, such as those Persik alleges here,-4-

“occur” on the day they “happen.” Id. at 110. “Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113. The only alleged act of discrimination that occurre d within 300 days of the date on which Persik filed his EEOC charge was the July 27, 2001 letter from Manpower’s headquarters. The district court c oncluded that this letter merely ratified Persik’s earlier termination, and t herefore did not re-start the 300-day clock.

STANDARD OF REVIEW We review the district court’s dismissal de novo. Oxendine v. Kaplan , 241 F.3d 1272, 1275 (10th Cir. 2001). We construe the allegations of Persik’s pro se complaint liberally, upholding the dismissal only if it is obvious that he cannot prevail on the facts as alleged and that it would be futile to allow him to amend his complaint. Id. Persik’s pro se complaint was submitted on a standard form and contains very few supporting factual allegations or details. He attached a large number of documents as exhibits to his complaint, however, which spell out the nature of the alleged discriminatory incidents. These bec ame part of the complaint for purposes of the district court’s determination of M anpower’s motion to dismiss, see id., and consequently are included in our review of the order of dismissal.-5- ANALYSIS Our review is complicated by the fact that Persik d id not file a response to Manpower’s motion to dismiss. The district court noted Persik’s failure to respond, and after analyzing the timeliness issue, deemed Persik’s lack of response a concession of Manpower’s arguments. R., Doc. 15 at 4. We recently outlined the procedures to be followed when a pro s e litigant fails to comply with local rules requiring a response to a motion to dismiss his complaint. Issa v. Comp USA , No. 03-4024, 2003 WL 23010402 (10th Cir. Dec. 24, 2003). A district court may not grant a 12(b)(6) dismissal based solely on the plaintiff’s failure to respond. Id. , slip op. at 5. Instead, it “must still examine t he allegations in the plaintiff’s complaint and determ ine whether the plaintiff has stated a claim upon which relief can be granted.” Id. at 5-6. We are satisfied that the district court’s order in this case satisfies these procedural requirements. Prior to deeming Persik’s lack of response a concession of Manpower’s motion to dismiss, the district courtstated the following conclusions concerning the issues raised in the mot ion:

Plaintiff learned of his termination on or before April 24, 2000. He failed to file a charge with the EEOC wit hin three hundred days of this date. The July 26, 2001 letter inform ing plaintiff that Manpower would not reverse its April 24, 2000 decis ion to terminate him did not constitute a fresh act of discriminatio n for purposes of the EEOC filing.-6-

R., Doc. 15 at 4. The district court sufficiently analyzed the reason s that Persik’s complaint fails to state a claim. Upon de novo review, we fu rther conclude that the district court’s analysis of the timeliness issue was correc t. The limitations period for filing an EEOC charge begins running when the emplo yee is notified of the employment decision. Del. State Coll. v. Ricks , 449 U.S. 250, 259 (1980). “[T]he pendency of a grievance, or some other metho d of collateral review of an employment decision, does not toll the running o f the limitations periods.” Id. at 261. Persik, however, raises three arguments d esigned to show that different dates apply to the start of the 300-day p eriod, or to the date his charge was filed. 1. Effect of March 22, 2001 conversation In his complaint, Persik admits that he was dismiss ed on April 24, 2000. He claims, however, that he did not have notice of two essential facts until much later: (1) that the dismissal had been effectuated by Manpower (rather than the University of Colorado); and (2) that the dismissal meant the Boulder, Colorado Manpower office would no longer consider him for te mporary assignments at other job sites. He claims he was not aware of these fa cts until he spoke with a staffing specialist in the Boulder Manpower offic e, on March 22, 2001. See R., Doc. 1, Attach. 1 at 1 (Charge of Discriminati on) (“On or about March 22,-7-

2001, I was told by one of the [Manpower] Staffing Specialists that the company had intended to release me on April 24, 2000.”). There is no indication that Persik was unaware of t he essential facts surrounding his claim at the time he was released f rom employment in April 2000. Even if we were to use this March 22, 2001 conversation as the notification date, however, it also was outside the 300-day window andPersik’s charge was still untimely. We therefore reject this argument. 2. Effect of July 26, 2001 letter Persik contends that the July 26, 2001 letter he re ceived from Manpower’s corporate headquarters should be used as the final date of discrimination. He argues that the April 2000 decision was not fina l because he was permitted to accept assignments from Manpower branches in other locations between his April 2000 termination and the time the July 2001 letter was issued. Aplt. Opening Br. at 17. The mere fact that Persik continued working for Manpower at other branches, however, did not extend his time to file a charge. “Mere continuity of employment, without more, is insufficient to prolon g the life of a cause of action for employment discrimination.” Ricks , 449 U.S. at 257. Nor can we accept Persik’s argument that Manpower’s letter of July 26, 2001 was a new act of discrimination because, unlik e the earlier decision, it cut off his opportunities to obtain assignments from all branches of Manpower.-8-

Nothing in the July 26, 2001 letter states that Per sik may not seek employment with Manpower in other locations besides the Boulde r branch. Persik’s complaint itself does not allege that the letter prevented hi m from seeking employment with other branches of Manpower. Persik’s letter to Manpower dated July 3, 2001, which prompted the letter of July 26, 2001, is addr essed solely to a supervisor at the Boulder branch, and refers to resolution of “employment discrimination that occurred through your office of [Manpower].” R., Doc. 1, Attach. 15 at 1 (Lett er of July 3, 2001) (emphasis added). Persik further stated in this letter that he believed it was not necessary to provide him with aletter of permission to work at other Manpower offices in the future. Id. at 3. 3. Effect of EEOC questionnaire Finally, Persik argues that we should use the date of his EEOC questionnaire, rather than the EEOC charge, to calc ulate the 300-day period, because he eventually filed a proper charge. If th e date of the questionnaire were used as the filing date, Persik’s EEOC filing wouldbe timely. A defective charge filed during the 300-day period may be amended outs ide the period to cure technical defects or omissions. See 29 C.F.R. § 1601.12(b); Edelman v. Lynchburg Coll. , 535 U.S. 106, 109, 110 n.2 (2002). This relation -back principle, however, applies only where the earlier filing actu ally operates as a charge.-9-

Cf. id. at 118-19 (reserving issue of whether plaintiff an d EEOC intended letter filed within 300-day period to be treated as charge ). Here, the questionnaire warned Persik, in two diffe rent places, in capital letters, that “COMPLETING THIS QUESTIONNAIRE DOES N OT CONSTITUTE THE FILING OF A CHARGE.” R., Doc. 1, Attach. 3 at 1, 7. Persik’s March 2, 2001 correspondence with the EEOC indicates that he did not believe that the questionnaire he had previously co mpleted was intended to operate as a charge. Id. , Attach. 6 (letter of March 2, 2001). He reaffirm s this position in his reply brief on appeal. Aplt. Reply Br. at 8. Under the circumstances, the charge he eventually filed did n ot relate back to the date of the questionnaire.

CONCLUSION The district court correctly concluded in this case that Persik did not file an EEOC charge within 300 days of the last discrete ac t of discrimination alleged in his complaint. It therefore properly dismissed his complaint for failure to state a claim. The judgment of the district court is AFF IRMED.

Entered for the Court
Bobby R. Baldock Circuit Judge