The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3811
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Nikolay Ivanov Nedeltchev, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Sheraton St. Louis City Center Hotel * Eastern District of Missouri.
and Suites; Joe Bryson; Gregory *
Robinson, * [UNPUBLISHED]
*
Appellees. *
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Submitted: April 28, 2009
Filed: July 1, 2009
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
In January 2007, Nikolay Nedeltchev filed a Title VII complaint against
defendants claiming he was unlawfully terminated and harassed based on his
Bulgarian national origin. In May 2007, less than two weeks after defendants moved
for judgment on the pleadings, Nedeltchev moved for leave to amend his complaint
under Federal Rule of Civil Procedure 15. In a proposed amended complaint, he
raised discrimination claims under both Title VII and 42 U.S.C. § 1981 based on his
Bulgarian national origin and his “Slavic Eastern European” race, and a state-law tort
claim. The district court later granted summary judgment for defendants, but did not
address the motion to amend. Nedeltchev timely moved to amend the court’s
judgment under Federal Rule of Civil Procedure 59(e), arguing that the court erred in
granting summary judgment for defendants and in denying leave to amend. The
district court denied the postjudgment motion and denied leave to amend. This appeal
followed, in which Nedeltchev argues that the district court erred in granting summary
judgment and in denying his motions to amend the complaint and the judgment.
After careful de novo review, see Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th
Cir. 2006), we conclude the district court properly granted summary judgment on the
Title VII claim, because it was not timely exhausted and Nedeltchev failed to show
entitlement to equitable tolling of the applicable time limit, see 42 U.S.C. § 2000e-
5(e)(1) (time limit for filing Title VII claims with Equal Employment Opportunity
Commission); T.L. ex rel. Ingram v. United States, 443 F.3d 956, 963 (8th Cir. 2006)
(party claiming equitable tolling has burden to show entitlement to it; doctrine applies
only in exceptional circumstances); United States v. Martin, 408 F.3d 1089, 1093 (8th
Cir. 2005) (ineffective assistance has not generally been considered extraordinary
circumstance for purposes of equitable tolling).1
We also conclude the district court did not abuse its discretion in declining to
modify its grant of summary judgment on the Title VII claim. See United States v.
Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (Rule 59(e) motion
cannot be used to raise arguments that could have been offered or raised prior to entry
of judgment). We conclude, however, that the court abused its discretion in denying
1
Nedeltchev’s pro se notice of appeal designated only the order denying
postjudgment relief, but in his brief he addresses the underlying order as well,
appellees address both orders in their brief, and we see no prejudice to appellees from
our review of the summary judgment order. See Greer v. St. Louis Reg’l Med. Ctr.,
258 F.3d 843, 846 (8th Cir. 2001) (rules specifying contents of NOA should not be
interpreted “strictissimi juris,” especially in dealing with pro se litigants, where
appellee shows no prejudice).
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leave to amend the complaint. See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748,
755 (8th Cir. 2006) (court reviews denial of leave to amend for abuse of discretion).
Although we agree with the court that the Title VII claim in the proposed amended
complaint still failed because it was untimely, see Popoalii v. Corr. Med. Servs., 512
F.3d 488, 497 (8th Cir. 2008) (district court may properly deny leave to amend where
amendment would be futile), for the following reasons we disagree with the court that
the proposed section 1981 claim also failed, see Marmo, 457 F.3d at 755 (court
reviews de novo conclusion that proposed amendment would have been futile).
Section 1981 prohibits intentional discrimination on the basis of race, but does
not protect against discrimination based solely on national origin. Saint Francis Coll.
v. Al-Khazraji, 481 U.S. 604, 613 (1987). Nedeltchev’s complaint, construed
liberally, alleged that defendants treated him differently because of his Slavic or
Eastern European race. He alleged that he was subjected to ridicule and name-calling,
as well as accusations of terrorism; that hotel guests also were allowed to harass him
because of his accent; that management did nothing; and that ultimately he was
terminated because he was perceived as a terrorist due to his race. At the early notice-
pleading stage, see Fed. R. Civ. P. 8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007), we believe that these allegations adequately stated section 1981 claims for a
race-based hostile work environment and termination. See Saint Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 609, 613 (1987); Zar v. S.D. Bd. of Exam’rs of Psychologists,
976 F.2d 459, 467 (8th Cir. 1992) (§ 1981 prohibits purposeful racial discrimination,
which includes discrimination solely because of ancestry or ethnic characteristics).
Whether Nedeltchev can produce sufficient evidence to make a submissible case of
race discrimination under § 1981, see, e.g., Elmahdi v. Marriott Hotel Servs., Inc., 339
F.3d 645, 653 (8th Cir. 2003), is a separate question that is not presented at this
juncture.
We also find no basis to conclude that the request to amend was unduly
delayed, that appellees would have been unduly prejudiced by allowing amendment,
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or that there was any bad faith by Nedeltchev. See Fed. R. Civ. P. 15(a)(2) (court
should freely give leave to amend pleading when justice so requires); Popoalii, 512
F.3d at 497 (court abuses its discretion when it denies motion to amend unless there
exists undue delay, bad faith, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to nonmoving party, or futility of amendment).
Accordingly, we reverse the denial of leave to amend and we remand this matter
to the district court to permit Nedeltchev to amend his complaint to bring his section
1981 claim, and also to bring his state-law claim if he wishes.2 In all other respects,
we affirm.
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2
We express no opinion on the viability of the state-law claim.
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