Odunze v. Lake Effect et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
PROMISE N. ODUNZE,
Plaintiff,
v.
LAKE EFFECT, et al.,
Defendants.
MEMORANDUM DECISION AND
ORDER OVERRULING PLAINTIFF’S
[184] OBJECTION, ADOPTING IN
PART AND MODIFYING IN PART [145]
REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S [38]
MOTION FOR SUMMARY
JUDGMENT, AND DENYING
PLAINTIFF’S [64] MOTION TO
AMEND AND [75] MOTION FOR
EQUITABLE TOLLING
Case No. 2:24-cv-00341-DBB-CMR
District Judge David Barlow
Before the court is Plaintiff Promise N. Odunze’s Objection1 to the magistrate judge
Report and Recommendation (“Report”)2 recommending that Defendant Lake Effect’s Motion
for Summary Judgment3 be granted and that Plaintiff’s Motion for Equitable Tolling4 and
Motion to Amend5 be denied.
BACKGROUND
This case is based on allegations by Plaintiff Promise Odunze that he was racially and
sexually discriminated against by Defendants while working as their employee.6 Mr. Odunze is
1 Plaintiff’s Objection to Report and Recommendation (“Objection”), ECF No. 184, filed March 20, 2026.
2 Report and Recommendation (“Report”), ECF No. 145, entered Feb. 6, 2026.
3 Motion for Summary Judgment (“Lake Effect MSJ”), ECF No. 38, file Apr. 22, 2025.
4 Motion for Equitable Tolling, ECF No. 75, filed Aug. 18, 2025.
5 Motion to Amend Opp’n, ECF No. 64, filed Aug. 4, 2025.
6 See generally First Amended Complaint (“Amended Complaint”), ECF No. 32, filed Mar. 14, 2025.
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proceeding pro se in this case, which was referred to Magistrate Judge Romero under 28 U.S.C.
636(b)(1)(B).7 On April 22, 2025, Defendant Lake Effect filed a Motion for Summary Judgment
on all of Plaintiff’s claims.8 In part, that Motion argued that Plaintiff’s Title VII claims should be
dismissed because he failed to file them within the statutory 90-day period set forth in 42 U.S.C.
§ 2000e-5(f)(1).9 On July 15, 2025, Mr. Odunze filed his Opposition to the Motion for Summary
Judgment.10 Shortly thereafter, he filed a motion to amend his Opposition to correct some
typographical errors and add additional analysis and argument.11 Then, on August 18, 2025, he
filed a Motion for Equitable Tolling asking the court to toll the 90-day deadline for filing suit
under Title VII.12 On Feb. 6, 2026, the magistrate judge entered the Report, which recommended
that Mr. Odunze’s Title VII claims against Lake Effect be dismissed on their merits and that the
court decline to exercise jurisdiction over the remaining state law claims.13 The Report also
recommended denial of the motions to amend and for equitable tolling.14
STATEMENT OF FACTS
On June 10, 2022, Mr. Odunze filed a Charge of Discrimination with the EEOC.15 On
January 27, 2024, the EEOC issued a Determination and Notice of Rights concluding that it
would not investigate the claims any further and granting Mr. Odunze the right to file a lawsuit
within 90 days.16 That same day, the EEOC uploaded the notice of right to sue to Mr. Odunze’s
7 See ECF No. 4.
8 MSJ 14–15.
9 Id. at 7.
10 Opposition to Motion for Summary Judgment (“Opp’n”), ECF No. 56, filed July 15, 2025.
11 Motion to Amend Opp’n 2.
12 Motion for Equitable Tolling 1.
13 Report 17–18.
14 Id.
15 Charge of Discrimination, ECF No. 38-1 at 1–2, filed Apr. 22, 2025.
16 Determination and Notice of Rights, ECF No. 38-1 at 4–7, filed Apr. 22, 2025.
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EEOC Public Portal account and sent him an email stating that a new document related to his
discrimination charge was available to download.17 Eight days later, on February 4, 2024, the
EEOC sent Mr. Odunze a second email stating “REMINDER: Important Document Available,”
informing him that “EEOC has made a decision” regarding his discrimination charge, and that
the decision document was available to review and download on his EEOC Public Portal.18
On February 16, 2024, the EEOC sent Mr. Odunze a physical letter containing the
Determination and Notice of Rights.19 Mr. Odunze opened the letter and read the Notice
sometime between February 17 and February 20, 2024.20 The Notice stated in part:
This is official notice from the EEOC of the dismissal of your charge and of your
right to sue. If you choose to file a lawsuit against the respondent(s) on this charge
under federal law in federal or state court, your lawsuit must be filed WITHIN
90 DAYS of your receipt of this notice. Receipt generally occurs on the date that
you (or your representative) view this document.21
Mr. Odunze filed this lawsuit on May 13, 2024,22 107 days after the first notice email was
sent, 99 days after the second notice email was sent, and 83–86 days after he received the notice
letter. Plaintiff has stated in a sworn declaration that the February letter was the first EEOC
communication that he observed, read, or became aware of in 2024.23
STANDARD
When resolving objections to a Report and Recommendation, the district court judge
“shall make a de novo determination of those portions of the report or specified proposed
17 EEOC Activity Log 13, 15, ECF NO. 38-1 at 13–15, filed Apr. 22, 2025; see also Jan. 27, 2024, EEOC Email,
ECF No. 184-6, filed Mar. 20, 2026.
18 EEOC Activity Log 13; see also Feb. 4, 2024, EEOC Email, ECF No. 184-7, filed Mar. 20, 2026.
19 EEOC Envelope, ECF No. 56-1 at 17, filed July 15, 2025.
20 Odunze Declaration (Opp’n) ¶ 14, ECF No, 56-1 at 5–15, filed Mar. 20, 2026.
21 Determination and Notice of Rights 4 (emphasis in original).
22 Complaint, ECF No. 1, filed May 13, 2024.
23 Odunze Declaration (Opp’n) ¶ 16.
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findings or recommendations to which objection is made.”24 The judge “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.”25
When a party objects to a magistrate judge’s ruling on a nondispositive matter, the district court
must “modify or set aside any part of the order that is clearly erroneous or is contrary to law.”26
Summary judgment is proper if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”27 A factual dispute is genuine when “there
is sufficient evidence on each side so that a rational trier of fact could resolve the issue either
way.”28 The movant “bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.”29
When viewing the record, the court “draw[s] all reasonable inferences therefrom most favorably
to the nonmovant.”30
DISCUSSION
I. Motion for Summary Judgment
Mr. Odunze makes numerous objections to the magistrate judge’s reasoning and
conclusions related to Lake Effect’s Motion for Summary Judgment.31 The court will review the
objected-to portions of the Report de novo.32 Plaintiff objects that (1) the magistrate judge did
not apply the correct legal standard at the summary judgment stage,33 (2) the Report considers
24 28 U.S.C. § 636(b)(1)(C) (2018).
25 Id.
26 Fed. R. Civ. P. 72(a).
27 Fed. R. Civ. P. 56(a).
28 Brooks v. Colo. Dep’t of Corr., 12 F.4th 1160, 1169 (10th Cir. 2021) (citation omitted).
29 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
30 Zia Shadows, L.L.C. v. City of Las Cruces, 829 F.3d 1232, 1236 (10th Cir. 2016) (citation omitted).
31 See generally Objection.
32 Fed. R. Civ. P. 72(b)(3).
33 Objection at 6–13 (Objection Nos. 1, 2, 3, 4, 5).
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inadmissible evidence,34 (3) the magistrate judge incorrectly held that the EEOC emails could
constitute notice,35 and (4) the magistrate judge misrepresented and failed to credit Plaintiff’s
sworn declaration and arguments.36
A. Evidence and Factual Disputes
In support of its Motion, Lake Effect attached several documents as exhibits, including
EEOC email logs and activity logs that Lake Effect received as part of a Freedom of Information
Act request.37 Mr. Odunze argued in his Opposition that these exhibits are “inadmissible”
because they are “filled with hearsay.”38 He makes the same argument in his Objection and
contends that the magistrate judge erred in relying on the exhibits because their reliability has
been questioned.39 Lake Effect responded that its exhibits would be admissible at trial as
administrative or agency records that could be authenticated by a record custodian.40 It also
included a signed letter from an EEOC director indicating that the logs consisted of agency
records.41
Under Rule 56 of the Federal Rules of Civil Procedure, “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence.”42 “This does not mean that evidence must be submitted ‘in a form that would be
34 Id. (Objection No. 8).
35 Id. (Objection Nos. 6, 7, 12).
36 Id. (Objection Nos. 9, 10, 11, 13, 15).
37 See Lake Effect MSJ Exhibits, ECF No. 38-1, filed April 22, 2025.
38 Opp’n 5.
39 Objection 10.
40 Reply 2–3; see also Fed. R Evid. 803(6).
41 EEOC FOIA Response8, ECF No. 38-1 at 8–10, filed April 22, 2025.
42 Fed. R. Civ. P. 56(c)(2).
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admissible at trial,’”43 only that “the content or substance of the evidence must be admissible.”44
The court finds that Lake Effect’s attached EEOC activity log and email log exhibits contain
information that would be admissible at trial as records of the EEOC’s regularly conducted
activity.45 It was not erroneous to consider them in granting the Motion for Summary Judgment.
Mr. Odunze also objects to the use of Lake Effect’s exhibits because their accuracy and
credibility is “reasonably disputed.”46 This goes to Plaintiff’s broader objection that the
magistrate judge failed to consider that a genuine factual dispute exists that precludes summary
judgment.47 In support of his Opposition to the Motion, Plaintiff attached a sworn declaration
that mixes factual statements, legal argument, and restatements of his underlying allegations.48
The Report concludes that “the undisputed evidence shows that the EEOC emailed the Notice of
Right to Sue to Plaintiff on January 27, 2024.”49 It also finds that “Plaintiff’s statement that he
did not actually view the Notice of Right to Sue in the EEOC portal until either February 17–
20th or April 21, 2024, fails to create a material dispute of fact” in part because it is based on
statements of belief.50
Plaintiff’s Declaration states in part:
I believe I received and opened the EEOC Envelope on February 17, 2024 however
I also believe it’s possible that I instead received and opened the EEOC Envelope
on the 18th, 19th or 20th of February 2024 and I know with absolute certainty the
43 Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)).
44 Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quoting Thomas v. Int’l
Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995)).
45 Fed. R Evid. 803(6).
46 Objection 10.
47 See generally id.
48 See Odunze Declaration (Opp’n).
49 Report 12.
50 Id. at 12–13.
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EEOC Envelope was received and opened by me no earlier than February 17, 2024
and no later than February 20, 2024.51
Mr. Odunze objects that this statement is based on personal knowledge rather than mere belief
and that the magistrate judge mischaracterized the statement as applying to the EEOC online
notice rather than the mailed letter.52
The Tenth Circuit has explained that “a court may rely upon affidavits stating personal
knowledge of the receipt date” when determining the receipt date of a communication.53 Personal
knowledge must be “based on the affiant’s actual perceptions or observations as opposed to
statements of mere belief.”54 In this case, the court agrees with Mr. Odunze that paragraph
fourteen of his declaration is based on personal knowledge. Though he uses the phrase “I
believe” to express uncertainty about the specific date of receipt, he unambiguously declares
based on his personal knowledge that receipt occurred within a four-day period.55 Even so, as
discussed below, the magistrate judge did not err in finding that Mr. Odunze failed to create any
material dispute of fact.
Lake Effect’s exhibits provide evidence that Mr. Odunze received emails from the EEOC
on January 27 and February 4, 2024, informing him that new documents were available to access
and download on his Portal.56 Mr. Odunze’s declaration is evidence of the date he received the
EEOC letter and that he never saw the emails prior to receiving the letter,57 but it does not
51 Odunze Declaration (Opp’n) ¶ 14.
52 Objection 10–11.
53 Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir. 2001).
54 Nuss v. Utah Orthopaedic Assocs., P.C., No. 2:09-CV-647 TS, 2011 WL 3328708, at *1 (D. Utah Aug. 2, 2011)
(quoting Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (2006)).
55 Odunze Declaration (Opp’n) ¶ 14.
56 See EEOC Activity Log 13.
57 Odunze Declaration ¶¶ 14, 16.
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include any statement that he did not receive the emails. Mr. Odunze argues that the EEOC email
logs are not credible, noting that they say documents were “added” rather than “sent” and that his
email address is redacted in the logs.58 But this argument is insufficient to rebut the EEOC
activity logs, which show that the relevant emails were sent to Mr. Odunze.59 Mr. Odunze does
not provide any evidence, or even directly state in his declaration, that he did not receive the
EEOC emails.60 To the contrary, he includes the emails as exhibits to his Objection, confirming
that they were received at his email address on the dates indicated in the EEOC email log.61
No genuine dispute of material fact exists regarding the dates on which Mr. Odunze
received his various communications from the EEOC. To the extent the magistrate judge failed
to interpret the evidence in the light most favorable to the nonmoving party,62 such error was
harmless because even accepting each factual assertion in Mr. Odunze’s declaration as true, there
is no genuine dispute that he received the emails on the indicated dates. The court further finds
that the magistrate judge applied the correct legal standard on summary judgment regarding the
application of law to these undisputed facts.
B. EEOC Email Notice
The Report concludes that receipt of the EEOC right to sue notice under 42 U.S.C.
§ 2000e-5(f)(1) occurred on January 27, 2024, when Mr. Odunze received the first EEOC notice
email.63 In his Objection, Mr. Odunze notes that courts are split as to the efficacy of EEOC
58 Id. ¶¶ 53, 54; Opp’n 19–20.
59 EEOC Activity Log 13.
60 See Fed. R. Civ. P. 56(c)(1).
61 Jan. 27, 2024, EEOC Email; Feb. 4, 2024, EEOC Email; see also Odunze Declaration (Objection) ¶ 19, ECF No.
184-1, filed Mar. 20, 2026 (stating that Mr. Odunze was able to find both emails in his inbox when he searched for
them sometime after the lawsuit was filed).
62 See Objection 7.
63 Report 12.
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emails as notice under 42 U.S.C. § 2000e-5(f)(1).64 He argues that the emails here would not
constitute adequate notice in the First Circuit and that the magistrate judge erred in failing to
apply the First Circuit test.65 He also argues that the split standards creates a genuine issue of
material fact for the jury to decide.66 As to this latter objection, Mr. Odunze is incorrect. The
application of law to undisputed facts is a question of law for the court, not a question of fact for
the jury.67 The existence of a circuit split and differing applications of the Title VII right to sue
requirement does not create a question of fact for a jury, but it does constitute a question of law
that the court must decide de novo.
The Report states that “when the EEOC emails a right-to-sue notice, receipt generally
occurs when the email reaches the inbox of the party (or that of the party’s counsel).”68 This is
accurate, but it does not fully describe the situation here. In this case, the EEOC did not email
Mr. Odunze a right to sue notice; rather, the EEOC first emailed him notice that an unspecified
document was available to view relating to his charge, and then followed up with an email
stating an “important document” was available and that “EEOC has made a decision” in his
case, along with a link to the EEOC Public Portal.69 The Tenth Circuit has not directly addressed
such a scenario. Other circuit and district courts have reached differing conclusions on various
fact patterns.
64 Objection 9.
65 Id. at 8.
66 Id. at 11.
67 Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1079 (10th Cir. 2001) (“[I]t is axiomatic
that the jury’s role is as fact-finder. Juries are not empowered to decide questions of law.”).
68 Report 11 (quoting Kandt v. City of Garden City, Kansas, No. 23-2043-DDC-TJJ, 2025 WL 859865, *4 (D. Kan.
Mar. 19, 2025).
69 EEOC Activity Log 13.; Jan. 27, 2024, EEOC Email; Feb. 4, 2024, EEOC Email.
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1. Case Law from Other Circuits
As already stated, the 90-day filing requirement arises under 42 U.S.C. § 2000e-5(f)(1).
This section provides that, if the EEOC dismisses or declines to pursue a charge, the EEOC
“shall so notify the person aggrieved and within ninety days after the giving of such notice a civil
action may be brought against the respondent named in the charge.”70
The Seventh Circuit first addressed the issue of email notice in Lax v. Mayorkas.71 In
Lax, an employee who filed an EEO charge received an email from the EEO with the subject line
“Final Action” that stated, “Attached is the Agency’s Final Action in the case.”72 The email
contained an attachment that included a Notice of Right to Sue (“NRTS”), but the employee was
unable to open the attachment until the following day.73 The court concluded that the notice was
received on the day the employee got the email, not when he opened and read the attached
NRTS.74
The Eighth Circuit found Lax to be persuasive and adopted an even broader notice
standard in McDonald v. St. Louis University.75 In McDonald, a woman filed a charge with the
EEOC.76 The EEOC sent an email to her lawyer saying that “a new document was added” to her
case and containing a link to view the document through her EEOC Public Portal.77 The EEOC
then sent a reminder email that an “important document” was available and that a decision had
70 42 U.S.C. § 2000e-5(f)(1).
71 Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021).
72 Id. at 1180–81.
73 Id.
74 Id. at 1182–83.
75 McDonald v. St. Louis Univ., 109 F.4th 1068, 1071 (8th Cir. 2024).
76 Id.
77 Id. at 1070.
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been reached on her charge.78 The lawyer did not access the NRTS letter on the EEOC Public
Portal because he had lost his password to log in, and he eventually requested and received an
emailed version.79 The court held that the woman received notice on the date the first email was
sent even though her lawyer did not access the actual letter until later.80
The Seventh Circuit again addressed the issue in Kinder v. Marion County Prosecutor’s
Office.81 There, an attorney received an EEOC email stating that a new document had been
added to the EEOC Portal related to his client’s charge.82 The EEOC sent a follow-up email
stating that the “charge was closed” and noting that the NRTS could be viewed in the portal.83
Due to technical difficulties accessing the portal, the attorney did not view the actual NRTS letter
until a month after the second email.84 The court concluded that, at a minimum, the employee
received notice via her attorney when he got the second email informing him that the NRTS was
available.85 The court declined to decide whether it would follow McDonald in holding that the
first letter describing only a “new document” also qualified as notice.86
The First Circuit took a different path in Garcia-Gesualdo v. Honeywell Aerospace of
Puerto Rico, Inc.87 In Garcia, a woman filed a charge with the EEOC, and the EEOC issued a
NRTS letter.88 The EEOC sent the woman’s attorney an email that noted “a new document” had
78 Id.
79 Id.
80 Id. at 1071.
81 Kinder v. Marion Cnty. Prosecutor’s Off., 132 F.4th 1005, 1009 (7th Cir. 2025).
82 Id.at 1007.
83 Id.
84 Id.
85 Id. at 1009.
86 Id.
87 Garcia-Gesualdo v. Honeywell Aerospace of Puerto Rico, Inc., 135 F.4th 10, 18 (1st Cir. 2025).
88 Id. at 13.
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been added to the charge and included a hyperlink to the EEOC online portal.89 A reminder
email stating that the EEOC had made a decision regarding the charge was later sent as well.90
The attorney was unable to access the portal due to technical difficulties and did not see the
NRTS letter until he was sent a PDF copy.91 The First Circuit declined to follow McDonald,
holding instead that “in order for an email that does not attach the right-to-sue letter itself to
provide notice, it must ‘indicate without ambiguity’ that the EEOC has reached a final decision
and that the claimant has ninety days to bring suit if they so wish.”92 It explained that notice of
an unspecified EEOC decision is insufficient because it would unnecessarily burden claimants by
“requiring them to immediately follow a link, log into the online portal, and download a
document without having received any indication as to the nature or import of the newly
available document.”93
Later, the Ninth Circuit in Asuncion v. Hegseth considered the holdings in Lax,
McDonald, Kinder, and Garcia when faced with a similar situation.94 It agreed with the First
Circuit that an email with a link to a NRTS can only provide sufficient notice if the email itself
“also provide[s] information with respect to the link that would satisfy the notice requirement.”95
The court determined that the 90-day limitation period does not begin until a claimant can
“realistically be held responsible for having access” to the NRTS letter.96
89 Id.
90 Id. at 13–14.
91 Id. at 14.
92 Id. at 18 (quoting 4 Larson on Employment Discrimination § 74.04[8] (2d ed. 2019)).
93 Id.
94 Asuncion v. Hegseth, 150 F.4th 1252, 1259 (9th Cir. 2025).
95 Id.
96 Id.
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Finally, though no appellate decisions addressing the question have been issued in their
circuits, district courts in the Fourth, Fifth, and Sixth Circuits have followed the McDonald
court’s conclusion that the 90-day period begins when a claimant receives an EEOC email
informing them that a document is available to download.97
2. Mr. Odunze’s EEOC Emails
Other district courts within the Tenth Circuit have concluded that EEOC emails
informing claimants that new documents are available to download, along with links to reach
NRTS letters, qualify as notice under 42 U.S.C. § 2000e-5(f)(1).98 In this case, the magistrate
judge concluded that the EEOC emails constituted notice from the EEOC and started the 90-day
period for Plaintiff to file a lawsuit.99 Mr. Odunze objects that the standard adopted by the First
and Ninth Circuits in Garcia and Asuncion is correct and should be applied to his claims.100
The court concludes that the McDonald approach is most applicable to the facts of Mr.
Odunze’s case. In light of modern technology, there generally is little reason to distinguish
between an email that includes an attached NRTS letter and an email that includes a link to a
NRTS letter or instructions to access such a document. In both instances, access to the letter is
readily available to the claimant from just a simple series of clicks. Additionally, Mr. Odunze’s
97 See, e.g., Alfredo v. MBM Fabricating Co. Inc., No. 23-CV-10526, 2024 WL 1334305, at *3 (E.D. Mich. Mar. 28,
2024), reconsideration denied, No. 23-CV-10526, 2025 WL 77239 (E.D. Mich. Jan. 10, 2025), reconsideration
denied, No. 23-CV-10526, 2025 WL 1143256 (E.D. Mich. Apr. 16, 2025) (holding that “transmission of a
communication to an electronic portal, coupled with notice that the portal contains a communication, is sufficient to
constitute “receipt” in the computer age.”); Patton v. Bodacious Bar & Q, No. CV 22-6040, 2024 WL 3330615, at
*2 (W.D. La. July 8, 2024) (same); Shields v. Verizon Maryland, LLC, No. 1:23-CV-02932-JMC, 2024 WL
1050996, at *10 (D. Md. Mar. 11, 2024), appeal dismissed, No. 24-1317, 2024 WL 4531487 (4th Cir. May 17,
2024) (same).
98 See Bautista v. Charles Schwab & Co., No. 23-CV-01779-RMR-KAS, 2025 WL 2576504, at *3 (D. Colo. Sept. 4,
2025); Cerroni v. Smith's Food & Drug Centers, Inc., No. 2:23-CV-00005-JCB, 2023 WL 3467466, at *2 (D. Utah
May 15, 2023).
99 Report 12.
100 Objection 8.
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situation is factually distinct from those considered by the First and Ninth Circuits. In Garcia and
Asuncion, the claimants who received the EEOC emails were unable to access the links to the
NRTS letters for reasons beyond their control.101 In such a scenario, it may make sense to
analyze the sufficiency of the email itself to determine whether notice was sufficient because the
claimant has no other way to access the agency’s decision.102
In contrast, Mr. Odunze never argued that he was unable to access his portal from the
links provided, and he has not offered any evidence to that effect. He only states that he did not
see the emails when they arrived.103 Thus, the EEOC emails provided notice to Mr. Odunze that
documents related to his charge had been made available and provided him with easy access to
those documents.104 The second email even directly stated that the EEOC had reached a decision
on his charge and urged him to log into his EEOC Public Portal to view that decision.105 To find
that these emails did not start the 90-day period would be akin to saying that a claimant who
receives a NRTS letter in an envelope with an EEOC return address can indefinitely postpone the
90-day filing period by simply failing or refusing to open the letter.106
The Tenth Circuit has said that “a Title VII ‘plaintiff should be required to assume some
minimum responsibility himself for an orderly and expeditious resolution of his dispute.’”107 It is
not unnecessarily burdensome to require a plaintiff who files a discrimination charge to promptly
101 Garcia, 135 F.4th at 13–14; Asuncion, 150 F. 4th at 1255.
102 But see McDonald, 109 F.4th at 1071–72 (explaining that the claimant’s attorney lost the EEOC password and
failed to diligently seek access to the Portal or the NRTS letter).
103 Odunze Declaration (Opp’n) ¶ 16.
104 Jan. 27, 2024, EEOC Email; Feb. 4, 2024, EEOC Email.
105 Feb. 4, 2024, EEOC Email.
106 See McNaney v. Sampson & Morris Grp., Inc., No. 2:21-CV-1809, 2022 WL 1017388, at *4 (W.D. Pa. Apr. 5,
2022) (“Counsel’s failure to open the link and actually read the document does not toll the commencement of the
period, just as it would not if he simply failed to open mail delivered in the traditional manner.”).
107 Panicker v. Compass Grp. U.S.A. Inc., 712 F. App’x 784, 788 (10th Cir. 2017) (unpublished).
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access important documentation related to that charge when he is made aware of it. Because the
evidence shows that Mr. Odunze had notice of and access to the Determination and Notice of
Rights on January 27, 2024, that is the date the 90-day period began under 42 U.S.C. § 2000e-
5(f)(1). Mr. Odunze did not file his lawsuit until May 13, 2024,108 107 days after the first notice
email was received. Thus, the Report’s conclusion that Mr. Odunze’s Title VII claims are
untimely as a matter of law and should be dismissed is correct.
C. State Law Claims
After recommending that Mr. Odunze’s Title VII claims be dismissed, the Report further
recommends that the court decline to continue exercising supplemental jurisdiction over
Plaintiff’s remaining state law claims.109 Mr. Odunze objects that the magistrate judge failed to
properly consider relevant factors of judicial economy, convenience, and fairness.110
When “all claims over which it has original jurisdiction” have been dismissed, a district
court may decline to exercise supplemental jurisdiction over the remaining claims.111 The
Supreme Court has stated that, if “federal claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”112 Similarly,
the Tenth Circuit has held that “[w]hen all federal claims have been dismissed, the court may,
and usually should, decline to exercise jurisdiction over any remaining state claims.”113
However, while “notions of comity and federalism demand that a state court try its own
lawsuits,” a district court may exercise its discretion to retain state law claims when, “given the
108 Complaint, ECF No. 1, filed May 13, 2024.
109 Report 17–18.
110 Objection 13.
111 28 U.S.C.A. § 1367(c).
112 United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
113 Smith v. City of Enid By & Through Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998).
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nature and extent of pretrial proceedings, judicial economy, convenience, and fairness would be
served by retaining jurisdiction.”114
The Report correctly noted that district courts should usually decline to exercise
supplemental jurisdiction when only state claims remain.115 The factors set out by the Tenth
Circuit support dismissal in this case. Mr. Odunze’s claims have been pending for less than two
years.116 Much of that time has been spent briefing Defendant’s Motion for Summary Judgment
and engaging in various discovery disputes.117 There is no indication that the parties are close to
trial or that the discovery they have already completed will not be usable in state court
proceedings. Furthermore, it is not unfair to the parties to require Mr. Odunze’s state law claims
to be litigated in state court. And by statute,118 Plaintiff would have 30 days from a dismissal
here to refile in state court. Thus, the court agrees that it will decline to exercise supplemental
jurisdiction over the remaining state claims, which will be dismissed without prejudice.
II. Motion for Equitable Tolling
The Report also denies Mr. Odunze’s Motion for Equitable Tolling, concluding that he
failed to present any evidence that the EEOC made false representations to him that caused his
filing delay.119 Mr. Odunze objects that the magistrate judge misapplied the Tenth Circuit’s
equitable tolling standards and that his time should be tolled because he relied on language in the
114 Thatcher Enters. v. Cache Cnty. Corp., 902 F.2d 1472, 1478 (10th Cir. 1990).
115 Report 17.
116 See generally Docket.
117 Id.
118 28 U.S.C.A. § 1367(d).
119 Report 15–16.
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mailed notice stating that “[r]eceipt generally occurs on the date that you (or your representative)
view this document.”120
“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.”121 “Generally, equitable tolling requires a litigant to
establish two elements: ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.’”122 Additionally, in the Tenth Circuit “a Title VII
time limit will be tolled only if there has been active deception of the claimant regarding
procedural requirements.”123 Thus, equitable tolling may be appropriate when a plaintiff is
“lulled into inaction” by a federal agency, is “actively misled,” or is prevented from asserting his
or her rights “in some extraordinary way.”124 “This is a high bar to overcome.”125
Here, the court does not need to decide if the language that Mr. Odunze points to in the
notice rises to the level of “active deception”126 because he was not sufficiently diligent in
pursuing his rights prior to receiving the letter. The Tenth Circuit has held that a plaintiff’s own
120 Objection 12.
121 Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
122 Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008) (quoting Lawrence v. Florida, 549 U.S. 327, 127 (2007)).
123 Jarrett v. US Sprint Commc’ns Co., 22 F.3d 256, 260 (10th Cir. 1994) (emphasis in original).
124 Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996).
125 Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 988 (10th Cir. 2021).
126 The EEOC’s language in the notice regarding when receipt “generally” occurs is somewhat unhelpful. On the one
hand, for claimants who are diligently checking their email and mail, the statement may be accurate in that receipt
and review may often occur on the same day. On the other hand, for claimants who are not diligent about attending
to their email or mail, the statement about viewing the statement being related to receipt is incorrect. However, the
qualifying phrase that receipt only “generally” occurs by viewing the letter—as opposed to “always” or other
categorical language—along with other language in the notice implying that receipt could be linked to the arrival of
a letter or email, could be enough to make the statement fall short of being “active deception.” See Determination
and Notice of Rights 4, 6 (stating that receipt “generally” occurs on the date the document is viewed and referring to
“email or envelope” as potential records of receipt).
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failure to open a NRTS letter from the EEOC is not grounds for equitable tolling.127 Plaintiff
knew that he had filed a charge with the EEOC, earlier provided the EEOC with his email
address, and received two separate emails from the EEOC informing him that a decision had
been reached and that his 90-day period to sue was running.128 Mr. Odunze received those
emails,129 but he declares that he failed to read them because, as he puts it, his email inbox is
“inundated” with spam emails and is organized “oddly.”130 This created a multi-week delay after
the 90 days began to run before Mr. Odunze saw the physical EEOC letter.131 A cluttered email
inbox is not an “extraordinary” circumstance that would prevent an otherwise diligent plaintiff
from asserting his rights. Neither is “odd” organization within the email account. Additionally,
elsewhere Mr. Odunze states that he “did not at all access or enter [his] personal email
account . . . in any manner in the period of January 27, 2024 through February 17, 2024,”
suggesting that the issue was simply failure to check his email.132 If Mr. Odunze had opened the
EEOC email when it first arrived, there would have been no misconception regarding the 90-day
deadline. The magistrate judge did not err in holding that equitable tolling is not warranted in
this case.
127 Ajalla v. White, 81 F. App’x 715, 719 (10th Cir. 2003) (unpublished) (“We have previously held that a plaintiff’s
personal decision as to when to open his mail is not grounds for equitable tolling.”); see also Million v. Frank, 47
F.3d 385, 389 (10th Cir. 1995) (“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. . . . Had plaintiff acted diligently, he could
have filed his action in a timely manner.”).
128 Jan. 27, 2024, EEOC Email; Feb. 4, 2024, EEOC Email.
129 Id.
130 Odunze Declaration (Objection) ¶ 19. The court further notes that Mr. Odunze variably describes when he first
saw these emails as on or after April 21, 2024 (Opp’n Declaration ¶ 57), “sometime after this lawsuit was filed” (the
suit was filed in May 13, 2024) (Objection Declaration ¶ 19), and on August 29, 2024 after defense counsel sent
them to him (Odunze’s Proposed Amended Opp’n 15, ECF No. 64-1 at 4–45, filed Aug. 4, 2025).
131 Odunze Declaration (Opp’n) ¶ 14.
132 Odunze’s Proposed Amended Opp’n 15.
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III. Motion to Amend
Next, the Report denies Mr. Odunze’s Motion to Amend his Opposition to the Motion for
Summary Judgment.133 The magistrate judge noted that Mr. Odunze had already received almost
two months of extensions to file his Opposition and that the proposed amendments primarily
lengthened the fact and argument sections to rebut Defendant’s Reply.134 The magistrate judge
thus considered the Motion as a request to file a sur-reply and denied it after finding that the
additional information therein would not be helpful to the court.135 Mr. Odunze objects that this
was error but does not explain why.136 As a ruling on a non-dispositive motion, the court reviews
this conclusion for clear error.137 Having done so, the court finds none.
IV. Other Objections
Finally, Mr. Odunze objects that the Report fails to address Defendant’s lack of an
appendix for the Motion for Summary Judgment and that it improperly ruled on three motions at
once.138 These objections are without merit. While Lake Effect’s Motion for Summary Judgment
failed to include an appendix as required by DUCivR 56-1(e),139 Mr. Odunze never raised or
objected to its absence in his Opposition.140 It is not error for the magistrate judge to decline to
address sua sponte a minor procedural defect. Further, Mr. Odunze fails to point to any rule or
case law supporting his contention that a magistrate judge may not rule on separate but related
133 Report 8.
134 Id. at 6, 8.
135 Id.at 6–7.
136 Objection 12.
137 Fed. R. Civ. P. 72(a).
138 Objection 12–13.
139 DUCivR 56-1(e).
140 See Opp’n.
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motions in a single report and recommendation.141 Accordingly, all of Mr. Odunze’s objections
are overruled.
ORDER
Plaintiff’s [184] Objection is OVERRULED. The [145] Report and Recommendation is
ADOPTED IN PART and MODIFIED IN PART. Defendant’s [38] Motion for Summary
Judgment is GRANTED. Plaintiff’s [75] Plaintiff’s Motion for Equitable Tolling and [64]
Motion to Amend are DENIED.
Signed March 30, 2026.
BY THE COURT
________________________________________
David Barlow
United States District Judge
141 Objection 13.
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