Doris Busari-Ibe v. AGS-AECOM Company

Filing

UNPUBLISHED OPINION FILED. [12-10234 Affirmed] Judge: RHB , Judge: JLD , Judge: JEG. Mandate pull date is 02/15/2013 [12-10234]

Case: 12-10234

Document: 00512124779

Page: 1

Date Filed: 01/25/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
January 25, 2013

No. 12-10234

Lyle W. Cayce
Clerk

DORIS BUSARI-IBE,
Plaintiff-Appellant
v.
AGS-AECOM COMPANY,
Defendant-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CV-625

Before BARKSDALE, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
This is an appeal from the dismissal of a Title VII of the Civil Rights Act
of 1964 (“Title VII”) and Americans with Disabilities Act (“ADA”) complaint for
failing to timely file a charge with the Equal Employment Opportunity
Commission (“EEOC”). Doris Busari-Ibe (“Busari-Ibe”), a sixty-year-old African
American woman, was employed as a Sams-E operator by AGS-AECOM (“AGS”)
in Afghanistan and Kuwait from June 2008 until she was terminated on March
30, 2010. During her employment, she alleges she was subjected to sexual
*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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No. 12-10234
harassment, including constant exposure to sexually explicit language and
working in an office with a dartboard covered with photographs of undressed
women. She complained to supervisors. As a result, she claims AGS retaliated
against her by, inter alia, denying medical treatment for her mental disability
caused by the traumatic workplace, forcing her to miss a family member’s
funeral in the United States, and then terminating her.
After being terminated, Busari-Ibe claims AGS continued retaliating
against her by, inter alia, refusing to pay for her travel back home as required
by her employment contract. As a result, Busari-Ibe asserts that she was forced
to sneak into Dubai on the floorboard of a taxi and sell her belongings to buy a
plane ticket home. It is unclear when she returned home. She also claims AGS
retaliated against her after her employment ended by continuing to deny her
medical treatment and refusing to return all of her personal belongings.
On January 14, 2011—290 days after her termination of employment
–Busari-Ibe filed a pro se charge of discrimination jointly with the Arizona
Attorney General’s Office, Civil Rights Division, and the EEOC. In the charge,
Busari-Ibe noted that the latest date on which discrimination had occurred was
March 30, 2010, the date of her termination of employment. Busari-Ibe did not
check the box on the charge form to indicate an alleged “continuing violation”
under Title VII, though she did state that she was subjected to a hostile work
environment. Since AGS is based in Texas, Busari-Ibe’s charge was transferred
to the Dallas District Office of the EEOC and investigated by that office.
After the EEOC issued a right-to-sue letter, Busari-Ibe filed a pro se
lawsuit, claiming that she was denied a reasonable accommodation for her
disabilities in violation of the ADA, subjected to sexual harassment in violation
of Title VII, and fired in retaliation for pursuing both claims. She did not assert
a hostile work environment claim. AGS filed a Federal Rule of Civil Procedure
12(b)(6) motion to dismiss based on, inter alia, Busari-Ibe’s failure to timely
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exhaust her administrative remedy. In response, Busari-Ibe did not deny that
she filed her EEOC charge after more than 180 days had passed.1 Instead, she
responded that her charge was timely because she received a right-to-sue letter
from the EEOC. The district court granted AGS’s motion to dismiss, finding that
the 180-day, not the 300-day, statute of limitations applied and the issuance of
the right-to-sue letter did not extend the filing period.
On appeal and now represented by counsel, Busari-Ibe does not contest the
180-day statute of limitations. Instead, she argues for the first time that the
district court should have sua sponte tolled the statute of limitations based on
equitable tolling and the continuing violations doctrine. In support of her
argument she asserts that, after her termination, AGS continued to discriminate
against her and expose her to a hostile work environment.
We have consistently declined to hear arguments that were not brought
before the district court. E.g., Wagstaff v. United States Dep’t of Educ., 509 F.3d
661, 664 n.2 (5th Cir. 2007); Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999). Busari-Ibe has waived her equitable tolling and continuing
violations doctrine arguments because she failed to assert the arguments before
the district court. AFFIRMED.

1

A Title VII claimant must file charges with the EEOC within 180 days after the
alleged illegal conduct, or within 300 days if the claimant initially files with a state or local
agency with authority to grant or seek relief from such practice. See 42 U.S.C. § 2000e-5(e)(1).

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