Ball v. Walmart

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 10, 2026
• Docket: 25-5117
• Status: Unpublished

Opinion

Appellate Case: 25-5117 Document: 21-1 Date Filed: 04/10/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 10, 2026 _________________________________ Christopher M. Wolpert Clerk of Court EMIT BALL,

Plaintiff - Appellant,

v. No. 25-5117 (D.C. No. 4:24-CV-00615-CVE-JFJ) WALMART INC., (N.D. Okla.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

This appeal involves administrative exhaustion of a claim under

Title VII of the Civil Rights Act of 1964 and the Oklahoma Anti-

Discrimination Act. Under these statutes, an employee can sue only after

exhausting administrative remedies. Jones v. Needham, 856 F.3d 1284,

1289 (10th Cir. 2017) (Title VII); Shackelford v. Okla. Dep’t of Corr.,

* Oral argument would not help us decide the appeal, so we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 25-5117 Document: 21-1 Date Filed: 04/10/2026 Page: 2

182 P.3d 167, 168 (Okla. Civ. App. 2007) (Oklahoma Anti-Discrimination

Act). When an employee fails to timely exhaust these remedies, does the

district court err in dismissing the action? We answer no.

The plaintiff, Mr. Emit Ball, worked at a Walmart store in Tulsa. He

claims that coworkers mistreated him because

• he’s Muslim and a Cherokee and

• he complained about the mistreatment.

He eventually quit and sued Walmart under Title VII and the Oklahoma

Anti-Discrimination Act.

For the claims under Title VII, an administrative charge was due 300

days from the discriminatory act. 42 U.S.C. § 2000e-5(e)(1). The last

possible discriminatory act would have been when Mr. Ball quit (April 26,

2023), and he filed the administrative charge more than 300 days later. So

the district court properly dismissed the claim under Title VII. See Jensen

v. W. Jordan City, 968 F.3d 1187, 1203 (10th Cir. 2020) (stating that a

Title VII claim is time-barred when the claimant fails to file an

administrative charge within 300 days).

Mr. Ball argues that he waited to file the administrative charge to

protect his brother, who was continuing to work at Walmart. But Mr. Ball

2 Appellate Case: 25-5117 Document: 21-1 Date Filed: 04/10/2026 Page: 3

forfeited this argument by failing to present it in district court. See Ave.

Cap. Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016). 1

The deadline was even shorter (180 days) for exhaustion of the claim

under the Oklahoma Anti-Discrimination Act. Okla. Stat. tit. 25,

§ 1350(B). So the district court properly dismissed this claim, too.

According to Mr. Ball, he had 2 years rather than 180 days. He says,

for example, that Okla. Stat. tit. 25, § 1350(F) gives him 2 years. But the

statute doesn’t say that (or anything close). Mr. Ball also relies on an

opinion that he calls Saint Francis Hospital & Medical Center v. Doe, 411

P.3d 1073 (Okla. Civ. App. 2018). Appellant’s Opening Br. at 7 n.3, 13. But

no such opinion exists.

Mr. Ball argues in the alternative that administrative exhaustion

might have been timely if we were to recognize a continuing violation. But

the alleged violation couldn’t have continued after Mr. Ball quit. See Gray

v. Phillips Petroleum Co., 858 F.2d 610, 614 (10th Cir. 1988) (explaining

that when “the employment relationship ends . . . the reasons for allowing

employees to claim a continuing discriminatory policy are removed”). So

1 Mr. Ball says that he didn’t understand the need to preserve this argument. Though his misunderstanding is unfortunate, we must apply our procedural rules to all litigants, regardless of whether they’re pro se. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).

3 Appellate Case: 25-5117 Document: 21-1 Date Filed: 04/10/2026 Page: 4

administrative exhaustion would have been untimely even if we were to

recognize a continuing violation.

Given the failure to timely exhaust the claims, we affirm the

dismissal.

Entered for the Court

Robert E. Bacharach Circuit Judge