UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

TAWANNA CREWS, 

 Plaintiff - Appellant,

v.

LLOYD J. AUSTIN, III, 

 Defendant - Appellee.

No. 22-6028

(D.C. No. 5:20-CV-00489-HE)

(W.D. Okla.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before CARSON, BALDOCK and ROSSMAN, Circuit Judges.

_________________________________

In this employment discrimination case, Tawanna Crews appeals from a district 

court order that denied her Fed. R. Civ. P. 60(b) motion to vacate the summary judgment 

entered in favor of her employer, the United States Department of Defense (DOD). 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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.

FILED

United States Court of Appeals

Tenth Circuit

September 12, 2022

Christopher M. Wolpert

Clerk of Court

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 1
2

BACKGROUND

At the times relevant to this appeal, Crews worked as a business process analyst 

for the Defense Logistics Agency (DLA), an agency within the DOD. In May 2020, she

sued the Secretary of the DOD, claiming Title VII retaliation and intentional infliction of 

emotional distress. See Crews v. Esper (“Crews I”), No. CIV-20-489-HE (W.D. Okla. 

filed May 24, 2020). In October 2020, she filed another lawsuit against the Secretary 

based on her work at the DLA, again claiming Title VII retaliation and infliction of 

emotional distress, but adding a claim for disability discrimination. See Crews v. Esper

(“Crews II”), No. CIV-20-1055-SLP (W.D. Okla. filed Oct. 19, 2020).

In November 2020, the Secretary1 moved for summary judgment in Crews I, 

arguing, among other things, that Crews had not administratively exhausted her claims. 

In particular, the Secretary pointed out that Crews had voluntarily waived her right “to 

pursue an individual administrative complaint and/or engage in the administrative process 

(either informal or formal) at this time concerning the matters at issue.” Aplt. App. at 

111; see also id. at 42-43. Twice, Crews’s counsel asked the Secretary’s counsel whether 

he would object if she requested an extension of time to respond to the motion. But 

despite counsel’s offers not to object, Crews’s counsel did not seek an extension of time 

from the district court and she never filed a response to the summary judgment motion.

1 Lloyd J. Austin, III, is the current DOD Secretary and was automatically 

substituted as a party in Crews I and II. See Fed. R. Civ. P. 25(d).

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 2
3

On January 11, 2021, the district court granted the Secretary’s motion, ruling that 

Crews had not exhausted the administrative remedies for her Title VII claim and that no

basis remained for exercising supplemental jurisdiction over her emotional distress claim. 

The district court then entered judgment for the Secretary and dismissed Crews I.

Five months later, in May 2021, the Secretary moved to dismiss Crews II for lack 

of jurisdiction and failure to state a claim. Crews opposed the motion. On July 7, 2021, 

the district court granted the Secretary’s motion as to Crews’s disability and 

emotional-distress claims but denied the motion as to her Title VII claim. In doing so, 

the district court noted that Crews II’s allegations of disability-based reprisal appeared to 

distinguish it from Crews I and that Crews I had been dismissed when Crews failed to 

respond to the Secretary’s summary judgment motion.

On January 11, 2022—exactly one year after the district court entered its judgment 

in Crews I—Crews’s counsel filed a Rule 60(b) motion to vacate that judgment. She 

challenged the district court’s administrative-exhaustion ruling and she claimed 

excusable neglect in failing to respond to the Secretary’s summary judgment motion, as 

she experienced “complications related to a COVID-19 infection that impacted 

[counsel’s] entire immediate family and negatively affected the function of counsel’s 

cardiovascular system.” Id. at 128. The Secretary opposed the motion. In reply, Crews’s 

counsel asserted she suffered “severe brain fog, shortness of breath, heart palpitations, 

and chronic pain” for “several months,” developed an irregular heartbeat, and had to care 

for her sick mother and “a terminally ill close relative” who died in late-January 2021. 

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 3
4

Id. at 140-41. In support, counsel submitted her medical records from December 2020 to 

February 2021.

The district court concluded that Crews did not file her Rule 60(b) motion in a 

reasonable time and denied it. The court explained that counsel’s medical records 

addressed only the time period ending in February 2021 and did not “justify a failure to 

take action during the succeeding nine or ten months.” Id. at 234. Further, the court 

noted that counsel’s symptoms did not prevent her from opposing the Secretary’s May 

2021 motion in Crews II. And despite the court’s observation in the July 2021 Crews II

order that summary judgment had been granted in Crews I, that observation “did not 

trigger further action . . . [a]nd there was no pursuit of relief from the [Crews I] order and 

judgment in the roughly six months [that] followed.” Id.

DISCUSSION

I. Standards of Review

We review the denial of a Rule 60(b) motion for “an abuse of discretion, keeping 

in mind that Rule 60(b) relief is extraordinary and may only be granted in exceptional 

circumstances.” Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (internal 

quotation marks omitted). Thus, “[w]e will not reverse the district court’s decision on a 

Rule 60(b) motion unless that decision is arbitrary, capricious, whimsical, or manifestly 

unreasonable.” Id. (internal quotation marks omitted).

II. Timeliness

Federal Rule of Civil Procedure 60(b)(1) allows a court to “relieve a party or its 

legal representative from a final judgment, order, or proceeding for . . . mistake, 

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 4
5

inadvertence, surprise, or excusable neglect.” Such a motion “must be made within a 

reasonable time,” but “no more than a year after the entry of the judgment or order or the 

date of the proceeding.” Fed. R. Civ. P. 60(c)(1). To be clear, “[a] motion is not timely 

merely because it has been filed within one year of the judgment.” White v. Am. Airlines, 

Inc., 915 F.2d 1414, 1425 (10th Cir. 1990). Rather, there must also be a “sufficient 

justification for the delay.” Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir. 

2005) (internal quotation marks omitted).

Crews states that her Rule 60(b) “Motion was filed within a reasonable

time,” Aplt. Br. at 9, and she argues that the district court abused its discretion by not 

determining whether her counsel’s failure in late 2020 and early 2021 to move for an 

extension of time to oppose summary judgment was excusable neglect, see Jennings v. 

Rivers, 394 F.3d 850, 856 (10th Cir. 2005) (observing that factors relevant to excusable 

neglect “include the danger of prejudice to the opposing party, the length of the delay and 

its potential impact on judicial proceedings, the reason for the delay, including whether it 

was within the reasonable control of the movant, and whether the movant acted in good 

faith” (brackets and internal quotation marks omitted)). The district court concluded that 

Crews failed to raise her excusable-neglect claim within a reasonable time. In particular, 

the district court explained that the medical records submitted by Crews’s counsel 

demonstrated health issues only as late as February 2021, and that Crews’s counsel

delayed seeking Rule 60(b) relief until January 2022 despite being reminded in July 2021 

in Crews II of the summary judgment entered in this case. Moreover, the district court 

explained that “[e]ven if counsel’s symptoms were of the ‘long haul’ variety, they did not 

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 5
6

prevent counsel from actively opposing the defendant’s motion to dismiss in [Crews II] 

in June 2021.” Aplt. App. at 234. Crews does not address the district court’s reasons for

concluding that her Rule 60(b) motion was not brought within a reasonable time.

Because Crews “has not offered sufficient justification for [her] delay, . . . we 

cannot conclude that the district court abused its discretion in denying [her Rule 60(b)] 

motion.” White, 915 F.2d at 1425.

CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Bobby R. Baldock

Circuit Judge

Appellate Case: 22-6028 Document: 010110737112 Date Filed: 09/12/2022 Page: 6