* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### NOV 12 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROSE FREED, Plaintiff-Appellant,

v. THE BOARD OF REGENTS OF THE UNIVERSITY OF COLORADO, acting in their official capacity, Defendant-Appellee. No. 98-1328 (District of Colorado) (D.C. No. 97-WY-2572-AJ)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK, and MURPHY , Circuit Judges.
Plaintiff-appellant Rose Freed (“Freed”) alleged vi olations of the Americans with Disabilities Act (“ADA”). See 42 U.S.C. § 12101-12213

. Freed appeals the district court’s Order Granting Defendant’s Motion to Dismiss Plaintiff’s Complaint. This court exercises jurisd iction pursuant to 28 U.S.C. § 1291 and affirms

.-2-

The parties on appeal are Freed and defendant-appel lee the Board of Regents of the University of Colorado, acting in it s official capacity (“Defendant”). Freed was and remains employed as aHousekeeping Supervisor One at the University of Colorado (“CU”). After Fr eed suffered an on-the-job knee injury on July 24, 1993, her physician permane ntly restricted Freed’s stair climbing, kneeling, and squatting. On July 31, 199 4, Freed injured her back in an off-the-job accident. This injury left her unable to work until October 16, 1994, when her treating physician released her to work fo ur hours per day. After returning to work, Freed told her supervisors she c ould not complete all the work assigned to her and stay within her medical restric tions. On October 21, 1994, she repeated her complaints to her immediate superv isor John Clark, at which time Clark sent her home. Freed was placed on leave without pay status. She used all of her vacation and sick leave benefits, and received no pay from C U after January 2, 1995. Freed consulted an attorney the same month, and herattorney began negotiations with CU for Freed’s return to work and reasonable a ccommodations for her injuries. On July 3, 1995, CU granted Freed certai n accommodations and she was reinstated to full-time status. After Freed returned to work, her attorney continue d negotiations with CU for back pay for the time Freed did not work. On O ctober 13, 1995, CU sent a1 The EEOC referred the matter to the Colorado Civil Rights Commission

for investigation, which in turn deferred its inves tigation to the State Personnel Board grievance process. Freed lost this grievance

.

2 The 300 day limitation applies in states, like Col orado, which have statutorily prohibited discrimination; in other states the time limit is 180 days. See 42 U.S.C. § 2000e-5(e). See also Martin v. Nannie & the Newborns, Inc. , 3 F.3d 1410, 1414 n.4 (10th Cir. 1993). -3- letter to Freed’s attorney offering some, but not f ull, back pay. Freed filed a complaint with the Equal Employment Opportunity Com mission (EEOC) on February 5, 1996. 1 The EEOC eventually issued Freed a right to sue l etter, and this action was filed on December 9, 1997. Freed f iled a complaint seeking wages and benefits for the period October 21, 1994, through July 3, 1995. Defendant moved to dismiss Freed’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing thatFreed did not timely file her EEOC charge. Under Title VII of the Civil Rights A ct of 1964, which is applicable to ADA actions, a lawsuit alleging discr imination must be based on discriminatory actions which occurred within 300 days of the filing of an EEOC charge. See 42 U.S.C. §§ 12117(a), 2000e-5(e). 2 Using either the date Freed was sent home from wor k, October 21, 1994, or the date she stopped receiving money from CU, Ja nuary 2, 1995, Defendants argued her February 5, 1996, EEOC charge was untime ly. Freed argued that she did not receive “official” notice of Defendant’s di scriminatory action until October 13, 1995, when CU sent her attorney a lette r denying her full back pay.3 Freed also argued below that if any of the alleged discriminatory acts

occurred within the tolling period, the court has p ower to grant back pay for two years prior to the date of filing with the EEOC. See Estate of Pitre v. Western Elec. Co., 975 F.2d 700, 704-06. (10th Cir. 1992). While Estate of Pitre does distinguish between the tolling period and a court’ s power to award back pay for two years, this distinction does not eliminate the requirement that at least one discriminatory act occur within the tolling period, a showing which had “clearly been made” in that case. Id . at 702. Moreover, Freed did not raise this argum ent on appeal, and thus the issue is waived. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -4- Using the October 1995 date, Freed’s EEOC complaintwould fall within the 300 day limit. Freed argued in the alternative that C U’s refusal to grant her reasonable accommodations for eight months was an o ngoing violation of the ADA, entitling her to a tolling of the 300 day limit. 3 The district court agreed with Defendant that Freed ’s EEOC charge was not filed within 300 days of the alleged discrimination . The district court’s order noted that under controlling Supreme Court preceden t, the trigger of the limitations period is the date the employee is noti fied of the alleged discrimination. See Delaware State College v. Ricks , 449 U.S. 250, 258 (1980). The beginning date does not change, even if the eff ects of the discrimination become more painful at a later date. See id . In this case, the district court reasoned Freed was on notice of CU’s alleged discri minatory act, that her leave was without pay, at the latest by January 2, 1995. Although Freed and CU negotiated over back pay until October 13, 1995, th e district court noted that the-5-

possibility of reversal of an adverse employment de cision through a grievance process or other administrative avenue does not tol l the running of the filing period. See id . at 261. The district court also rejected Freed’s claim of acontinuing violation, noting there was no factual basis to toll the runni ng of the limitations period. Freed did not clearly articulate her continuing vio lation theory below, but alleged that CU’s failure to grant her a reasonable accommo dation constituted “ongoing disability discrimination.” The district court cit ed controlling precedent, which states that it is not sufficient under the continui ng violations theory to allege that acts outside the filing time limit had a continuing effect within the time allowed for suit. See Masheroni v. Board of Regents of the Univ. of Cal. , 28 F.3d 1554, 1561-62 (10th Cir. 1994); Martin v. Nannie & the Newborns, Inc. , 3 F.3d 1410, 1415 (10th Cir. 1993). See also Ricks , 449 U.S. at 503-04. The district court also analyzed Freed’s argument u nder the equitable tolling doctrine, under which a plaintiff must alle ge active deception by her employer regarding procedural prerequisites for filing suit. See Masheroni , 28 F.3d at 1562. Freed’s attempt to invoke the doctri ne on appeal simply realleges that CU did not finalize its decision regarding bac k pay until October 1995. As the district court stated, the active deception req uirement requires more than acts-6-

which give rise to a false hope that a problem will be resolved internally. See id

. at 1563. Thus Freed’s claim fails under this doctr ine as well. A motion to dismiss under Federal Rules of Civil Pr ocedure 12(b)(6) must be granted when it appears that the plaintiff can p rove no set of facts in support of her claim(s) which would entitle her to relief. See Yoder v. Honeywell, Inc. , 104 F.3d 1215, 1224 (10th Cir. 1997). This court reviews de novo the district court's decision to dismiss under Rule 12(b)(6). See Ordinance 59 Ass’n v. United States Dep’t of the Interior Secretary , 163 F.3d 1150, 1152 (10th Cir. 1998). Upon examining the issues raised in the parties’ briefs and other submissions in the record, and after examining the district court’s order, this court
AFFIRMS the dismissal of Freed’s complaint for substantial ly the reasons stated in the district court order.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge