* This order and judgment is not binding precedent, e xcept under the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

### MAY 25 2004 

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

JOHN HALL,

Plaintiff-Appellant,

v. UNITED PARCEL SERVICE, INC.,

Defendant-Appellee. No. 03-7077 (D.C. No. 03-CV-130-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE , 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.1 Since commencing this action, Mr. Hall obtained counsel who represented

him after he filed the complaint and continues to d o so on appeal.

2 Defendant also sought attorney’s fees. The distric t court denied that part of the motion. Defendant does not appeal that determi nation. -2- Plaintiff, John Hall, appeals from an order of the district court granting defendant’s motion to dismiss this action brought p ursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. We affirm. Mr. Hall was terminated from his employment with de fendant in 1999. He filed a charge of discrimination with the Oklahoma Human Rights Commission and, subsequently, received his right-to-sue letterMarch 23, 2001. On June 18, 2001, he filed a timely suit in district court withthe aid of counsel. Approximately six months later, Mr. Hall, again act ing through counsel, filed a motion to dismiss his case without prejudice. The motion was granted and the case was dismissed on January 23, 2002. Almost oneyear later, Mr. Hall, acting
pro se, 1 filed this suit in district court. Defendant filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Defendant asserted that Mr. Hall’s claim was “doubly time-barred” because he had not timely filed his ch arge with the Oklahoma Human Rights Commission and because he had not timely filed this suit. 2Aplt. App. at 7. The district court made no finding regarding the timeliness of the filing of the EEOC charge, but concluded the lawsui t was untimely filed. In-3-

reaching that conclusion, the district court reject ed Mr. Hall's contention that the statute of limitations was tolled following the dis missal of his initial suit. On appeal, Mr. Hall argues that the s tatute of limitations should be tolled considering the societal reasons underlying the pas sage of the ADA and related civil rights legislation. He also contends that he was not sleeping on his rights and that attorney misconduct justifies equitable to lling. “We review de novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a cla im upon which relief can be granted.” Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir. 2002), cert. denied , 538 U.S. 999 (2003). We review “the district court ’s decision not to apply equitable tolling for an abuse of discretion.” Harms v. IRS , 321 F.3d 1001, 1006 (10th Cir.), cert. denied , 124 S. Ct. 159 (2003). A plaintiff must initiate litigation on an ADA clai m within ninety days from the date he receives a “right to sue” letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (providing filing deadlines for Tit le VII claims); 42 U.S.C. § 12117(a) (specifically adopting Title VII filing deadlines for ADA claims). “These timing requirements are prerequisites to a civil suit.” Croy v. Cobe Labs.,
Inc. , 345 F.3d 1199, 1202 (10th Cir. 2003). Mr. Hall a grees that he did not comply with these requirements. However, he conten ds that these requirements should be tolled in his case because his counsel gave him erroneous advice when-4-

counsel told him he could timely refile his action within one year of the date his first case was dismissed. Generally, “a voluntary dismissal without prejudice leaves the parties as though the action had never been brought.” Brown v. Hartshorne Pub. Sch. Dist.
No. 1 , 926 F.2d 959, 961 (10th Cir. 1991). However, in the absence of a statute to the contrary, the statute of limitations is not tolled during the pendency of the dismissed action. Id. “The requirement that a plaintiff file a timely c ivil action after the disposition of an individual EEO complaint is not a jurisdictional requirement, but rather is subject to . . . equitable tolling.” Harms , 321 F.3d at 1006. The time limit for filing a complaint after receipt of an EEO right-to-sue notice “will be tolled only upon a showing of activ e deception where, for example, the plaintiff has been actively misled or lulled into inaction by her past employer, state or federal agencies, or the courts .” Simons v. Southwest Petro-Chem, Inc. , 28 F.3d 1029, 1031 (10th Cir. 1994) (emphasis add ed) (quotations omitted). “[T]he propriety of equitabl e tolling must necessarily be determined on a case-by-case basis.” Johnson v. United States Postal Serv. , 861 F.2d 1475, 1481 (10th Cir. 1988) (quotation omitted ). Mr. Hall alleges that he failed to file his second ADA action promptly because he was actively misled by his counsel. We note, however, that Mr. Hall received a right-to-sue letter from the EEOC. This letter contained, in bold print,-5-

the warning that he had to file any lawsuit within ninety days of the receipt of the letter, Aplee. Supp. App. at 102, thus alerting him that t imeliness was critical to preserving his claim. Moreover, it was Mr. Hall’s own attorney who gave him incorrect information, not his employer, an agency, or the court. “Mere attorney negligence does not justify equitable tolling.” Steed v. Head , 219 F.3d 1298, 1300 (11th Cir. 2000); see also Irwin v. Dep’t of Veterans Affairs , 498 U.S. 89, 96 (1990) (principles of equitable tolling do not e xtend to “a garden variety claim of excusable neglect”). The district court did notabuse its discretion in determining that the principles of equitable tollin g did not apply here. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge