David McDowell v. Tankinetics, Inc., No. 12-3441 (8th Cir. 2013)

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Court Description: Civil case - Employment discrimination. The district court did not err in dismissing the action as untimely as plaintiff did not file suit within the applicable limitations period. [ May 17, 2013

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3441 ___________________________ David H. McDowell lllllllllllllllllllll Plaintiff - Appellant v. Tankinetics, Inc.; William K. Angle; Strand Composite Engineering & Construction, LLC; St. Clair P. Guess, III; William F. Schwarz; Robert W. McManus lllllllllllllllllllll Defendants - Appellees ____________ Appeal from United States District Court for the Western District of Arkansas - Harrison ____________ Submitted: May 16, 2013 Filed: May 20, 2013 [Unpublished] ____________ Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges. ____________ PER CURIAM. David McDowell appeals the district court s1 dismissal of his employmentdiscrimination action as untimely. We agree with the court that the complaint is untimely, because (1) it was filed well in excess of the applicable limitations period, see 29 U.S.C. ยง 626(e); Hallgren v. United States Dep t of Energy, 331 F.3d 588, 589 (8th Cir. 2003) (failure to file suit within 90 days of receiving notice of final agency action renders employment-discrimination action untimely); (2) the prior state court suit, which was removed to federal court and dismissed without prejudice, does not save the instant suit from a dismissal for untimeliness, see Gerhardson v. Gopher News. Co., 698 F.3d 1052, 1056 (8th Cir. 2012); and (3) McDowell failed to demonstrate that he was entitled to equitable tolling, see Hallgren, 331 F.3d at 590. The judgment is affirmed. See 8th Cir. R. 47B. ______________________________ 1 The Honorable P.K. Holmes, III, Chief Judge, United States District Court for the Western District of Arkansas. -2-

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