Odunze v. Lake Effect et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
PROMISE N. ODUNZE,
Plaintiff,
v.
LAKE EFFECT, et al.,
Defendants.
REPORT AND RECOMMENDATION
GRANTING LAKE EFFECT’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
Judge David Barlow
Magistrate Judge Cecilia M. Romero
This matter is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) (ECF 4).
Before the court is Defendant Lake Effect’s (Lake Effect) Motion for Summary Judgment (Lake
Effect’s Motion) (ECF 38). Also before the court are the following motions filed by pro se Plaintiff
Promise N. Odunze’s (Plaintiff or Mr. Odunze): (1) Motion to Amend/Correct Memorandum in
Opposition (Motion to Amend) (ECF 64) and (2) Motion for Equitable Tolling (ECF 75)
(collectively, Plaintiff’s Motions).1 Having carefully considered the relevant filings, the court finds
that oral argument is not necessary and will decide the Motion on the basis of written memoranda.
See DUCivR 7-1(g). For the reasons set forth below, the undersigned RECOMMENDS that Lake
Effect’s Motion (ECF 38) be GRANTED and Plaintiff’s Motions (ECF 64, 75) be DENIED.
I. 	PROCEDURAL BACKGROUND
Plaintiff’s claims arise from the termination of his employment with Lake Effect where he
worked as a security guard under the supervision of Defendant Celeste Hewlett (Hewlett) (ECF 32
1 The court addresses only the motions relevant to Lake Effect’s Motion for Summary Judgment (ECF 38). Numerous
discovery motions and other motions remain pending, which the court will address separately.
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¶¶ 30–34). Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42
U.S.C. § 2000e, and the Utah Anti-Discrimination Act (UADA), Utah Code Ann. § 34A-5-106
(id. at 13–21), as well as state law claims (id. at 13–37). On August 27, 2024, Lake Effect filed a
motion to dismiss (ECF 15), which the court granted in part, dismissing Plaintiff’s claims against
Lake Effect without prejudice, and granting Plaintiff leave to file an amended complaint (ECF 24,
28).2 On March 14, 2025, Plaintiff filed his First Amended Complaint (ECF 32), which is the
operative complaint in this matter.3
On April 22, 2025, Lake Effect filed the present Motion (ECF 38) seeking summary
judgment on all of Plaintiff’s claims pursuant to Rule 56 of the Federal Rules of Civil Procedure.
After being granted five extensions of time (ECF 44, 47, 51, 53, 55), Plaintiff filed his Opposition
(ECF 56) on July 15, 2025.4 On July 29, 2025, Lake Effect filed a Reply (ECF 60) in support of
its Motion. On August 4, 2025, Plaintiff filed the Motion to Amend (ECF 64) asking the court for
leave to file a corrected Opposition to Lake Effect’s Motion. On August 18, 2025, Plaintiff also
filed the Motion for Equitable Tolling (ECF 75) arguing the deadline for filing his Complaint
should be equitably tolled. Lake Effect thereafter filed oppositions (ECF 69, 79) and Plaintiff filed
2 Hewlett also filed a motion to dismiss (ECF 17). The court dismissed Plaintiff’s Title VII and UADA claims against
Hewlett with prejudice (ECF 28). The only surviving claims against Hewlett are Plaintiff’s state law claims for assault,
battery, intentional infliction of emotional distress (IIED), and negligence as set forth in the Eleventh, Twelfth,
Thirteenth, and Fifteenth Causes of Action (ECF 32).
3 Specifically, Plaintiff’s Amended Complaint brings the following sixteen Causes of Action, the first ten of which
are against Lake Effect and the last six claims are as noted herein: (1) Racial Discrimination under Title VII; (2)
Sex/gender discrimination under Title VII; (3) Retaliation under Title VII; (4) Hostile work environment under Title
VII; (5) Racial discrimination under UADA; (6) Sex/gender discrimination under UADA; (7) Retaliation under
UADA; (8) Hostile work environment under UADA; (9) Wrongful termination under UADA; (10) Wrongful
termination under Title VII; (11) Assault and battery against Lake Effect and Hewlett; (12) IIED against Hewlett
based on assault; (13) IIED based on termination against Lake Effect and Hewlett, (14) Premise liability against Lake
Effect, (15) Negligence against Hewlett; and (16) Negligence against Lake Effect (ECF 32).
4 Plaintiff’s Opposition was filed nearly two months after the original deadline of May 20, 2025. DUCivR 7-
1(a)(4)(B)(iii) (“A response to a motion must be filed within 28 days after service of the motion.”).
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reply memoranda (ECF 74, 81) relating to Plaintiff’s Motions, all of which the court has
considered.
II. 	FACTUAL BACKGROUND5
On June 10, 2022, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) against Lake Effect (Charge of Discrimination) (Def. Mot., Ex.
A). The EEOC issued Plaintiff a letter stating that the EEOC had concluded its investigation and
that EEOC management found that “they did not believe that additional investigation will result
in our finding a violation” (Closure Notice) (Def. Mot., Ex. B).
On January 27, 2024, EEOC issued Plaintiff a Determination and Notice of Rights (Notice
of Right to Sue or NRTS) (Def. Mot., Ex. C). The Notice of Right to Sue stated that, under federal
law, Plaintiff was entitled to file a lawsuit against Lake Effect, provided “[his] lawsuit must be
filed WITHIN 90 DAYS of [his] receipt of this notice” (id.). The Notice of Right to Sue noted
that receipt “generally occurs on the date that [he] (or [his] representative) view[s] this document”
and that failure to file within the 90-day period would lead to forfeiture of his right to sue (id.).
The EEOC also sent a copy of the Notice of Right to Sue to Lake Effect’s representative (id.).
In response to a Freedom of Information Act (FOIA) request by Lake Effect, the EEOC
provided activity logs, email logs, copies of correspondence, and other information (Def. Mot.,
Ex. D).6 Redactions to such information include the personal email address of Plaintiff as the
charging party under (b)(7)(C) of FOIA, 5 U.S.C. § 552 (id.).
5 The following facts are either undisputed or portrayed in the light most favorable to Plaintiff. Unless otherwise noted,
the facts are drawn from Lake Effect’s Motion (ECF 38), Plaintiff’s Opposition (ECF 56), and Lake Effect’s Reply
(ECF 60).
6 Plaintiff argues in his Opposition that these EEOC documents are inadmissible and should not be considered on
summary judgment (ECF 56 at 14). However, district courts in the Tenth Circuit have previously taken judicial notice
of EEOC charging documents as administrative records. See, e.g., Villarreal v. Walmart, Inc., 2021 WL 1022701, at
*5 (D. Colo. Mar. 17, 2021); see also Pinnock v. Teletech Government Solutions, LLC, 2025 WL 2095346, at *5 (D.
Colo. Apr. 17, 2025) (taking judicial notice of an EEOC activity log as its accuracy was not subject to reasonable
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The EEOC’s Email Log reflects that on January 27, 2024, the EEOC sent an email to
Plaintiff alerting him that a new document was available to download from the EEOC portal
associated with his Charge of Discrimination (Def. Mot., Ex. E). The EEOC Email Log also
reflects that on February 4, 2024, the EEOC sent a reminder email to Plaintiff that an important
document was available for Plaintiff to download (id.).
The EEOC’s Activity Log reflects that the Notice of Right to Sue (referred to as the
“Closure Notice/NRTS” in the Activity Log) was released on January 27, 2024 (Def. Mot., Ex. F
at 7). The Activity Log reflects that the EEOC sent an email to Plaintiff on that day that a new
document was available for download (id.). The Activity Log reflects that on February 4, 2024,
the EEOC sent a reminder email to Plaintiff that the Closure Notice/NRTS was available for
download (id.).
Plaintiff also received an envelope from the EEOC postmarked February 16, 2024
containing the Notice of Right to Sue (EEOC Envelope) (Pl. Opp., Ex. 2). The Activity Log also
reflects that Plaintiff downloaded the Closure Notice/NRTS on April 21, 2024 (Def. Mot., Ex. F).
Plaintiff filed his Complaint in this case on May 13, 2024, which was 107 days after the EEOC
issued the January 27, 2024 Notice of Right to Sue, or 17 days after the 90-day period which was
April 26, 2024 (ECF 1).
III. 	LEGAL STANDARDS
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P 56(a). “For there to be a ‘genuine’ dispute of fact, there must be more than a mere scintilla
dispute). The court therefore takes judicial notice of the EEOC documents in Exhibits A through F to Lake Effect’s
Motion (ECF 38-1 at 1–15).
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of evidence; to avoid summary judgment, the evidence must be such that a reasonable jury could
return a verdict for the nonmoving party.” Aubrey v. Koppes, 975 F.3d 995, 1004 (10th Cir. 2020)
(quoting Rocky Mountain Prestress, LLC v. Liberty Mut. Fire Ins. Co., 960 F.3d 1255, 1259 (10th
Cir. 2020)). “This court draws all reasonable inference in favor of the nonmoving party.” Ortiz v.
Norton, 254 F.3d 889, 893 (10th Cir. 2001).
“The court may not grant summary judgment . . . unless the moving party has met its initial
burden of production and demonstrated its entitlement to judgment as a matter of law.” See Cooper
v. Monetary Inc., 2:12cv506 DAK, 2014 WL 1350274, at *1 (D. Utah Mar. 28, 2014) (citing Reed
v. Nellcor Puritan Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002)). “When, as in this case, the
moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by
identifying ‘a lack of evidence for the nonmovant on an essential element of the nonmovant's
claim.’” Ortiz, 254 F.3d at 893 (quoting Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th
Cir. 1998)). And “once the movant points out an absence of proof on an essential element of the
nonmovant's case, the burden shifts to the nonmovant to provide evidence to the contrary.” Hall
v. Bellmon, 935 F.2d 1106, 1111 n.5 (10th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322–
23 (1986)).
Because Plaintiff is proceeding pro se, the court construes his pleadings liberally and holds
them to a less stringent standard than formal pleadings drafted by lawyers. See Hall, 935 F.2d at
1110. However, “[t]his liberal treatment is not without limits, and ‘this court has repeatedly
insisted that pro se parties follow the same rules of procedure that govern other litigants.’” Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting Garrett v. Selby, Connor, Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005)).
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IV. 	DISCUSSION
A. 	Plaintiff’s Motions
1. 	Motion to Amend
Plaintiff asks the court for leave to file an amended opposition to Lake Effect’s Motion
(ECF 64). In the Motion to Amend, Plaintiff argues that Federal Rules of Civil Procedure 6, 15,
and 56(d) permit amendment of his Opposition (id. at 1). Lake Effect opposes the Motion to
Amend on the grounds that these rules are inapplicable and there is no authority to support such a
request (ECF 69). In Reply, Plaintiff cites to cases from outside of the Tenth Circuit allowing
amendment of oppositions and reiterates the arguments in the Motion to Amend (ECF 74). The
court agrees with Lake Effect that Plaintiff has failed to provide sufficient authority to support his
request for leave to submit an amended opposition.
As noted by Lake Effect, Rule 6 governs extensions of time, and Plaintiff had ample time
to prepare his Opposition to Lake Effect’s Motion after receiving five extensions of time totaling
nearly two months (ECF 69 at 3). See Fed. R. Civ. P. 6(b) (“When an act may or must be done
within a specified time, the court may, for good cause, extend the time[.]”). Plaintiff has not
provided any authority to support his position that Rule 6 contemplates requests for additional time
where, as here, there is not a pending response or reply deadline because briefing on Lake Effect’s
Motion is already complete (ECF 38, 56, 60).
Lake Effect correctly notes that Rule 15 is also not applicable to Plaintiff’s request because
this rule governs amendment of pleadings, and “[m]otions and other papers are not pleadings”
(ECF 69 at 3 (quoting Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203
(D.N.M. 2005))). See Fed. R. Civ. P 15(a)(2) (“[A] party may amend its pleading only with the
opposing party’s written consent or the court’s leave.”). Under Rule 7, the only pleadings allowed
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are complaints and answers. See Fed. R. Civ. P 7(a). Plaintiff’s operative pleading in this case is
the First Amended Complaint (ECF 35). Plaintiff’s Opposition (ECF 56) is a memorandum in
opposition filed in response to a Rule 56 motion and therefore does not constitute a pleading under
Rule 7 or Rule 15.
The court also agrees with Lake Effect that Rule 56(d) does not apply to requests for
additional briefing, but rather, requests for additional discovery (ECF 69 at 3). See Fed. R. Civ. P.
56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue any other
appropriate order.”). Plaintiff’s Motion to Amend does not adequately address the standard under
Rule 56(d) or provide sufficient specific reasons why Plaintiff was unable to provide facts essential
to his Opposition (ECF 56) at the time that it was filed. Rather than requesting additional discovery
to add new facts and arguments, Plaintiff appears to request the opportunity to amend existing
facts and arguments in the Opposition. Plaintiff has not provided authority to support Rule 56(d)
as a basis to revise the existing briefing on a Rule 56 motion that is fully briefed.
Finally, given that briefing on Lake Effect’s Motion is complete, the court agrees that
Plaintiff’s Motion to Amend is more properly characterized as a motion for leave to file a sur-reply
(ECF 69 at 4). Local Rule 7-1 makes clear that “[u]nless ordered otherwise, the court will not
consider additional memoranda,” DUCivR 7-1(a)(9), and that “[t]his rule and DUCivR 56-1 apply
to motions for summary judgment and related memoranda,” DUCivR 7-1(h); see also DUCivR
56-1 (“A motion for summary judgment, response, and reply must comply with DUCiv7-1 in
addition to the requirements in this rule.”). A court may nonetheless permit a sur-reply if it finds
it will assist in the court in determining the outcome of the motion by providing a more complete
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understanding of both parties’ arguments. See Sorenson v. Riffo, No. 2:06-cv-749-TS, 2008 WL
2966785, at *3 (D. Utah July 30, 2008).
Here, Plaintiff asks for leave to amend his opposition to “add additional details, to add
facts, elaborate on case law (or clarify it, to clarify/correct sentences/arguments (or further
elaborate on them)” (ECF 64 at 2). Review of the proposed amended opposition reveals that the
primary changes to the Opposition are to lengthen the fact and argument sections (ECF 64-1 at
18–19, 29–31, 34–35) to rebut arguments in Lake Effect’s Reply. As explained above, Plaintiff
does not provide an adequate explanation of why the facts, cases, and argument that Plaintiff seeks
to add could not have been included in his Opposition. Despite Plaintiff’s pro se status, he is still
obligated to follow the rules and procedures of this court. See Kay, 500 F.3d at 1218. Further, the
court does not find that the additional information provided in the proposed amended opposition
will assist the court in making its determination as Plaintiff primarily relies on caselaw from other
circuits that are not controlling and the case law that is cited from the Tenth Circuit and others that
were available to Plaintiff prior to the July 15, 2025 opposition. For these reasons, the undersigned
RECOMMENDS that the court DENY Plaintiff’s Motion to Amend (ECF 64) and declines to
consider the contents of the proposed amended opposition.
2. 	Motion for Equitable Tolling
Nearly one month after briefing was complete on Lake Effect’s Motion (ECF 38, 56, 60),
Plaintiff filed the present Motion for Equitable Tolling (ECF 75) asking the court to equitably toll
the 90-day filing deadline to file suit under Title VII after receiving the Notice of Right to Sue. In
support of this Motion, Plaintiff cites to and incorporates by reference the exhibits to his responses
(ECF 19, 21, 56) to Lake Effect’s prior motion to dismiss (ECF 15) and current Motion for
Summary Judgment (ECF 38). The entirety of the Motion for Equitable Tolling consists of case
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law and arguments relevant to, and ostensibly in response to, Lake Effect’s Motion, which seeks
summary judgment on Plaintiff’s claims under Title VII (First through Fourth and Tenth Causes
of Action) on the ground that Plaintiff’s Complaint is untimely (ECF 38).
Plaintiff has provided no authority to support his entitlement to additional briefing beyond
that which is permitted under Rule 56. Much like the Motion to Amend, Plaintiff’s Motion for
Equitable Tolling appears to be a request for a sur-reply, but once again, Plaintiff has failed to give
any reason why the additional caselaw and arguments could not have been included in his initial
Opposition (ECF 56) to Lake Effect’s Motion (ECF 38). Nonetheless, Lake Effect did not object
on procedural grounds to the Motion for Equitable Tolling, and instead, took the opportunity to
provide additional caselaw and argument in an Opposition (ECF 79), and Plaintiff likewise
thereafter filed a Reply (ECF 81). In light of this, and having considered the parties’ respective
arguments, the court finds that this additional briefing will assist the court in determining Lake
Effect’s Motion and will therefore consider it as part of its analysis of Plaintiff’s Title VII claim
below. However, as addressed below, because the court finds the standard is not met, the
undersigned RECOMMENDS that Plaintiff’s Motion for Equitable Tolling (ECF 75) be DENIED.
B. 	Lake Effect’s Motion for Summary Judgment
1. 	Title VII Claims
a. 	Timeliness
Lake Effect seeks summary judgment on Plaintiff’s First, Second, Third, Fourth, and Tenth
Causes of Action (Title VII Claims) for racial discrimination, sex/gender discrimination,
retaliation, hostile work environment, and wrongful termination under Title VII as untimely (ECF
38 at 7–11). Specifically, Lake Effect argues that Plaintiff’s Title VII Claims are time-barred as a
matter of law because the undisputed facts show that the EEOC sent the Notice of Right to Sue to
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Plaintiff via email on January 27, 2024, and it is irrelevant whether Plaintiff reviewed it because
courts have found the 90-day period starts when the claimant (or his attorney) receives the Notice
of Right to Sue (id. at 10–11). Plaintiff argues in his Opposition that his Complaint was timely
because the EEOC sent the Notice of Right to Sue to Plaintiff via physical mail on February 16,
2024, and that “[u]nseen EEOC emails aren’t notice” (ECF 56 at 21–31).7 In Reply, Lake Effect
notes that recent decisions confirm that the relevant date is the date of electronic notification of
the right-to-sue letter (ECF 60 at 4 (citing Pinnock v. Teletech Government Solutions, LLC, 2025
WL 2095346, at *6 (D. Colo. Apr. 17, 2025))).
Title VII provides that “within ninety days after the giving of [the EEOC’s right to sue
letter] a civil action may be brought against the respondent named in the charge.” 42 U.S.C. §
2000e-5(f)(1). Thus, “[a] Title VII plaintiff must file her lawsuit within 90 days of receiving her
right-to-sue notice from the EEOC.” Brown v. Spring Creek Healthcare, No. 2:23-cv-00436-DBB-
JCB, 2023 WL 8455416, at *2 (D. Utah Dec. 6, 2023) (quoting Fulbright v. Water Sys. Eng’g,
Inc., No. 21-2191-DDC-TJJ, 2021 WL 5161756, at *5 (D. Kan. Nov. 5, 2021)). “While the 90-
day rule is not a jurisdictional predicate, in the absence of a recognized equitable consideration,
the court cannot extend the limitations period by even one day.” Landrum v. Wakefield & Assocs.,
Inc., No. 08-CV-0283-CVE-PJC, 2009 WL 523104, at *3 (N.D. Okla. Mar. 2, 2009) (quoting
Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)); see also Merrill v.
7 The court notes that Plaintiff makes numerous baseless and hyperbolic assertions that Lake Effect’s Motion includes
statements that are “fictional, erroneous, errant, mischaracterizing, misleading, biased, contradictory, duplicitous, self-
serving and not credible” (ECF 56 at 5–6), “false” (id. at 15, 21), “bad faith,” “meritless,” “dishonest[],” and
“nonsensical” (id. at 29). The court has previously admonished Plaintiff for using this type of inflammatory language
(ECF 124). Plaintiff’s is again reminded that continued use of this language in his filings may result in sanctions.
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Cintas Corp., 941 F. Supp. 1040, 1045 (D. Kan. 1996) (dismissing claim as untimely where the
plaintiff filed her lawsuit 91 days after she received her right to sue from EEOC).8
Courts have held 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).” See, e.g.,
Kandt v. City of Garden City, Kansas, No. 23-2043-DDC-TJJ, 2025 WL 859865, *4 (D. Kan. Mar.
19, 2025); Pinnock, 2025 WL 2095346, at *6 (“Where notification of an NRTS is sent via email,
the ninety-day period begins to run when the email arrives in the recipient’s email inbox, not when
the recipient opens the email or views the NRTS document.”); Cerroni v. Smith’s Food & Drug
Centers, Inc., No. 2:23-cv-00005-JCB, 2023 WL 3467466, at *1 (D. Utah May 15, 2023) (holding
that the time to file suit begins running “when the notice of availability of the [right to sue notice]
on the EEOC Public Portal was electronically sent” to plaintiff’s counsel).9 “When the date a
plaintiff received a right-to-sue notice is unknown or disputed, courts have presumed receipt.”
Kandt, 2025 WL 859865, at *5 (citing Panicker v. Compass Group U.S.A. Inc., 712 F. App’x 784,
788 (10th Cir. 2017)). However, “a party may rebut any presumption of receipt by demonstrating
when it actually received a right-to-sue notice” through “‘affidavits stating personal knowledge of
8 “Historically, the EEOC sent [Notices of Right to Sue] through the United States Postal Service and therefore,
because the 90-day deadline was triggered upon the plaintiff’s receipt of the [Notice of the Right to Sue], ascertaining
a plaintiff’s exact deadline was difficult.” Tabor v. Great Western Buildings, No. 24-cv-01774-KAS, 2025 WL
2781263, *2 (D. Colo. Sept. 29, 2025) (citing Mosley v. Pena, 100 F.3d 1515, 1518 (10th Cir. 1996)). “By 2020, the
EEOC transmitted its [Notices of Right to Sue] to claimants via email.” Id. (citing 29 C.F.R. § 1601.3(b) (explaining
that with regard to EEOC regulations, “the terms file, serve, submit, receive, transmit, present, send, issue, and notify
shall include all forms of digital transmission.”)).
9 Courts outside the Tenth Circuit have also found that the 90-day period begins to run when the notice of right to sue
is sent via email. See, e.g., Paniconi v. Abington Hosp.-Jefferson Health, 604 F. Supp. 3d 290, 293 (E.D. Pa. 2022)
(finding that because the 90-day period began to run when the EEOC's email reached plaintiff's counsel's inbox, “it is
irrelevant when [p]laintiff's counsel actually followed the link to access the EEOC portal” to view or download
information); McNaney v. Sampson & Morris Grp., Inc., No. 2:21-cv-1809, 2022 WL 1017388, at *4 (W.D. Pa. Apr.
5, 2022) (finding that “[c]ounsel'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”);
Moses v. Home Depot Inc., No. 16-2400 (MAS) (DEA), 2017 WL 2784710, at *6 (D.N.J. June 27, 2017) (finding that
“the date the e-mail message was received [containing the notice of right to sue] in [p]laintiff's inbox, is the date of
receipt”).
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the receipt date’ or other admissible evidence.” Id. (quoting Lozano v. Ashcroft, 258 F.3d 1160,
1164 (10th Cir. 2001)).
In this case, Lake Effect argues that the 90-day period began to run on January 27, 2024
because the undisputed facts show that the EEOC first emailed its Notice of Right to Sue to
Plaintiff on that date (Def. Mot., Ex. E & F). The court agrees. Because the undisputed evidence
shows that the EEOC emailed the Notice of Right to Sue to Plaintiff on January 27, 2024, this is
the date that the court presumes Plaintiff received the Notice of Right to Sue and that the 90-day
period began to run for Plaintiff to file his Complaint. In his Opposition, Plaintiff appears to
attempt to dispute this presumption primarily by pointing to statements in his Declaration that are
contradictory, 	including 	the 	following: 	“I 	did 	not 	receive 	any 	version 	of 	the 	alleged
correspondence the MSJ submits . . . until on or after April 21, 2024” (Pl. Opp., Ex. 1 ¶ 57).
Plaintiff also points to the EEOC Envelope (Pl. Opp., Ex. 2) and the following statement in his
Declaration: “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 18 th , 19th ,
or 20 th of February and I know with absolute certainty the EEOC Envelope was received and
opened by me no earlier than February 17, 2024 and no later than February 2024” (Pl. Opp., Ex. 1
¶ 14). As explained below, 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.
First, Rule 56(c)(4) provides in relevant part that “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge[.]” Fed. R. Civ. P. 56(c)(4).
“Personal knowledge means the affiant’s testimony is based on the affiant’s actual perceptions or
observations as opposed to ‘statements of mere belief.’” Nuss v. Utah Orthopaedic Assocs., P.C.,
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No. 2:09-CV-647 TS, 2011 WL 3328708, at *1 (D. Utah Aug. 2, 2011) (quoting Argo v. Blue
Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006)). “[A]t the summary
judgment stage, ‘statements of mere belief’ in an affidavit must be disregarded.” Argo, 452 F.3d
at 1200 (quoting Tavery v. United States, 32 F.3d 1423, 1427 n.4 (10th Cir. 1994))). As such, the
court finds that Plaintiff’s vague, inconclusive and contradictory statements of mere belief in his
Declaration about the possible date or date range when he received the EEOC Envelope are
insufficient to create a dispute of fact.
Second, the court notes that the “Response to Statement of Undisputed Material Facts”
contained in Plaintiff’s Opposition (ECF 56 at 14–21) is procedurally deficient. Federal Rule of
Civil Procedure 56 provides stringent requirements for supporting factual assertions: “A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1). Local Civil Rule 56-1 similarly
requires that a response to a motion for summary judgment “provid[e] a concise statement
explaining why [a] fact is disputed or immaterial.” DUCivR 56-1(c)(3). Plaintiff instead states
purported disputed facts interspersed with conclusory legal argument in his response to Lake
Effect’s statement of undisputed material facts (ECF 56 at 14–21). Due to Plaintiff’s failure to
comply with the procedural requirements set forth in Local Rule 56-1, the court declines to sift
through Plaintiff’s Opposition to discern whether there are any disputes of material fact. See Munoz
v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 n.6 (10th Cir. 2000) (declining to “search the
record in an effort to determine whether there exists dormant evidence which might require
submission of the case to a jury” (quoting Thomas v. Wichita Coca–Cola Bottling Co., 968 F.2d
1022, 1025 (10th Cir. 1992))).
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For these reasons, the court concludes that Lake Effect has demonstrated that Plaintiff’s
Complaint is untimely as a matter of law because the undisputed facts show that the EEOC sent
the Notice of Right to Sue to Plaintiff via email on January 27, 2024, yet Plaintiff did not file his
Complaint in this case until 17 days beyond the 90-day time limit under Title VII. The court will
next address whether Plaintiff has demonstrated that the 90-day filing deadline should be equitably
tolled under the circumstances of this case.
b. 	Equitable Tolling
Plaintiff asks the court to equitably toll the 90-day filing deadline under Title VII (ECF
75). “Compliance with the filing requirements of Title VII is not a jurisdictional prerequisite, rather
it is a condition precedent to suit that functions like a statute of limitations and is subject to waiver,
estoppel, and equitable tolling.” Brown, 2023 WL 8455416, at *2 (quoting Million v. Frank, 47
F.3d 385, 389 (10th Cir. 1995)). The Tenth Circuit has taken “a strict view of what necessitates
equitable tolling.” See Jarrett v. US Sprint Commc'ns Co., 22 F.3d 256, 260–61 (10th Cir. 1994);
see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (noting that equitable
doctrines such as tolling or estoppel “are to be applied sparingly”). “In this circuit, a Title VII time
limit will be tolled only if there has been active deception of the claimant regarding procedural
requirements.” Id. (citing Scheerer v. Rose State College, 950 F.2d 661, 664 (10th Cir. 1991), cert.
denied, 505 U.S. 1205 (1992)). Thus, equitable tolling does not apply unless for example, “(1) the
plaintiff was actively deceived or misled; (2) the plaintiff’s past employer, state or federal agency,
or the court lulled the plaintiff into inaction; or (3) something extraordinary stopped the plaintiff
from asserting her rights.” Kandt, 2025 WL 859865, at *7 (citing Biester v. Midwest Health Serv.,
Inc., No. CIV.A. 94-2034-GTV, 1994 WL 541827, at *3 (D. Kan. Sept. 23, 1994), aff'd sub nom.
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Biester v. Midwest Health Servs., Inc., 77 F.3d 1264 (10th Cir. 1996))).10 “Moreover, to benefit
from equitable tolling, the aggrieved party must have acted diligently.” Id. (citing Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
Here, Plaintiff argues that the 90-day deadline should be equitably tolled because “it wasn’t
unreasonable for pro se Mr. Odunze to rely on [the Notice of Right to Sue’s] Operative Language
to mean his viewing it on February 17, 2024 (the same day he received the EEOC Envelope that
contained it) meant he had 90-days from February 17, 2024 to file his lawsuit” (ECF 75 at 8). The
“Operative Language” that Plaintiff refers to from the Notice of Right to Sue states as follows:
“[Y]our 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. You should keep a record
of the date you received this notice” (id. at 1–2; see also Def. Mot., Ex. C).
Defendant opposes equitable tolling on the ground that Plaintiff failed to submit evidence
that the EEOC intentionally misled him and therefore has not shown “the extraordinary
circumstances necessary to justify equitable tolling under established Tenth Circuit precedent”
(ECF 79 at 9–10 (quoting Biester, 77 F.3d at 1267)). Indeed, courts have consistently denied
equitable tolling where the plaintiff “was not actively misled or lulled into inaction” and that there
had been no “false representation by any court, agency, or putative defendant.” See, e.g., Johnson
v. United States Postal Serv., 861 F.2d 1475, 1481 (10th Cir. 1988), cert. denied, 493 U.S. 811
(1989); see also Scheerer, 950 F.2d at 664 (affirming district court denial of equitable tolling based
upon the findings of no active deception or false representation directed at the plaintiff). Plaintiff’s
10 See, e.g., Martinez v. Orr, 738 F.2d 1107, 1112 (10th Cir. 1984) (concluding plaintiff was “misled and lulled into
inaction” when EEOC's right-to-sue notice didn't inform him that requesting reconsideration of his charge would
forfeit his ability to sue in federal court); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.
1983) (deciding diligent, pro se plaintiff entitled to tolling after relying on instructions from court clerk suggesting
that his deadline to sue depended on how long it took him to get counsel).
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misinterpretation of the Operative Language in the Notice of Right to Sue is not sufficient to show
that he was actively misled by the EEOC. Plaintiff presents no other evidence showing that the
EEOC or any other agency made any false representations to him that caused the 17-day delay in
his filing of the Complaint in this matter. “A plaintiff must ‘assume some minimum responsibility
. . . for an orderly and expeditious resolution of his dispute.’” Kandt, 2025 WL 859865, at *8
(quoting Panicker, 712 F. App’x at 788).
Moreover, as discussed above, the court is unable to accept the February deadlines,
including February 17 (or the April 21 deadline) as credible given the contradictory and vague
statements on these dates. However, even assuming these dates were credible, the time period to
file had not expired as of February 17, 2024 (i.e., the January 27, 2024, Notice of Right to Sue
deadline was April 26, 2024). There is nothing in the record explaining why Plaintiff could not
have timely filed the Complaint either in February 2024 when he claims to have received the
Notice of Right to Sue by mail, on April 21, 2024 when he claims to have viewed it on the EEOC
portal, or at any other point before the 90-day deadline. Plaintiff has therefore failed to show the
extraordinary circumstances to justify equitable tolling of the 90-day filing deadline under Title
VII. See Biester, 77 F.3d at 1267.
In summary, the court concludes that Plaintiff’s Title VII Claims are untimely as a matter
of law because there is no genuine dispute of material fact that Plaintiff’s Complaint was filed 107
days after Plaintiff’s receipt of the Notice of Right to Sue on January 27, 2024, and Plaintiff has
failed 	to 	demonstrate 	grounds 	for 	equitable 	tolling. 	Accordingly, 	the 	undersigned
RECOMMENDS that the court GRANT Lake Effect’s Motion for Summary Judgment (ECF 38)
as to Plaintiff’s Title VII Claims and enter judgment in favor of Lake Effect on Plaintiff’s First,
Second, Third, Fourth, and Tenth Causes of Action.
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2. 	State Law Claims
Lake Effect seeks “summary dismissal” of Plaintiff’s Fifth through Ninth Causes of Action
for racial discrimination, sex/gender discrimination, retaliation, hostile work environment, and
wrongful termination under the UADA as well as Plaintiff’s Eleventh through Sixteenth Causes
of Actions for assault and battery, intentional infliction of emotional distress, and negligence under
Utah law (ECF 38 at 11–14). Lake Effect argues there is no private right of action under the UADA
(id. at 11–12), and Plaintiff’s claims under Utah common law are preempted by the UADA (id. at
13–14). The court does not reach the merits of Plaintiff’s claims under the UADA or Utah law
because, as explained below, the court declines to exercise supplemental jurisdiction over
Plaintiff’s state law claims.
“Pursuant to 28 U.S.C. § 1367(a), federal courts may exercise supplemental jurisdiction
over claims outside their original jurisdiction if those claims are part of the same Article III case
or controversy as claims over which the court has original jurisdiction.” Brock v. Herbert, No.
2:09-cv-1118, 2012 WL 1029355, at *2 (D. Utah Mar. 26, 2012). Even so, “[u]nder 28 U.S.C. §
1367(c)(3), a district court may decline to exercise supplemental jurisdiction if the district court
has dismissed all claims over which it has original jurisdiction. When all federal claims have been
dismissed, the court may, and usually should, decline to exercise jurisdiction over any remaining
state claims.” Miller v. Fluent Home, LLC, No. 2:20-cv-00641-HCN-JCB, 2021 WL 8086367, at
*5 (D. Utah Mar. 18, 2021) (quoting Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.
2011)).
For the reasons above, the undersigned recommends that the court grant summary
judgment to Defendant on Plaintiff’s federal Title VII Claims. Because Plaintiff’s remaining
claims are based on state law, the undersigned recommends that the court decline to exercise
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supplemental jurisdiction over those claims. See Bauchman ex rel. Bauchman v. W. High Sch., 132
F.3d 542, 549 (10th Cir. 1997) (“If federal claims are dismissed before trial, leaving only issues
of state law, ‘the federal court should decline the exercise of jurisdiction by dismissing the case
without prejudice.’” (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988))).
Accordingly, the undersigned RECOMMENDS that the court GRANT Lake Effect’s Motion for
Summary Judgment (ECF 38) as to Plaintiff’s state law claims and DISMISS Plaintiff’s Fifth
through Ninth, and Eleventh through Sixteenth Causes of Action without prejudice.
II. 	RECOMMENDATION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that Lake Effect’s Motion
for Summary Judgment (ECF 38) be GRANTED, judgment be entered in favor of Lake Effect on
Plaintiff’s Title VII Claims, and Plaintiff’s state law claims be DISMISSED without prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff’s Motion to Amend (ECF 64) and
Motion for Equitable Tolling (ECF 75) be DENIED.
III. 	NOTICE
Copies of the foregoing Report and Recommendation are being sent to all parties who are
hereby notified of their right to object. Within fourteen (14) days of being served with a copy,
any party may serve and file written objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Failure to object may constitute a waiver of objections upon subsequent review.
DATED this 6 February 2026.
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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