govinfo:USCOURTS-gand-1_25-cv-00606-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
MUTWAKIL ELHAG, 
Plaintiff, 
 
Civil Action No.  
1:25-cv-00606-SDG-RGV v.  
DELTA AIR LINES, INC., 
Defendant. 
 
 
OPINION AND ORDER 
This matter is before the Court on the  Non-Final Report and 
Recommendation (R&R) and Order of United States Magistrate  Judge Russell G. 
Vineyard [ECF 23], which recommend s that the motion to dismiss filed by 
Defendant Delta Air Lines, Inc.  [ECF 15] be denied as moot , and orders that the 
motion for leave to file a second amended complaint be granted in part and denied 
in part  [ECF 21]. Plaintiff Mutwakil Elhag filed o ne o bjection. After careful 
consideration, Elhag’s objection is OVERRULED, and the R&R is ADOPTED  in 
its entirety. 
I. Applicable Legal Standard 
A party challenging a R&R issued by a United States magistrate judge must 
file written objections that specifically identify the portions of the proposed 
findings and recommendations to which an objection is made and must assert a 
specific basis for the objection. United States v. Schultz, 565 F.3d 1353, 1361 (11th 
Cir. 2009). The district court must “make a de novo determination of those portions 
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of the report or specified proposed findings or recommendations to which 
objection is made.” 28 U.S.C. § 636(b)(1); Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ. 
of Ga., 896 F.2d 507, 512 (11th Cir. 1990).  
Absent objection, the district court “may accept, reject, or modify, in whole 
or in part, the findings or recommendations made by the magistrate judge,” 
28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no clear error on the 
face of the record. Fed. R. Civ. P. 72(b). The district court has broad discretion in 
reviewing a magistrate judge’s R&R. In addressing objections, it may consider an 
argument that was never presented to the magistrate judge, and it may also decline 
to consider a party’s argument that was not first presented to the magistrate judge. 
Williams v. McNeil, 557 F.3d 1287, 1290– 92 (11th Cir. 2009). Further, “‘[f]rivolous, 
conclusive, or general objections need not be considered by the district court. ’” 
Schultz, 565 F.3d at 1361 (quoting Marsden v. Moore , 847 F.2d 1536, 1548 (11th  Cir. 
1988)). 
II. Discussion 
The factual and procedural background of this case are fully set out in the 
R&R.
1 In his objection, Elhag argues that the R&R’s analysis misapplies equitable 
principles in denying him leave to amend. 2 Notably, nowhere in his motion to 
 
1  ECF 23, at 2–7. 
2  ECF 28, at 1 –3. 
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amend did Elhag argue for equitable tolling. However, Elhag did raise an 
equitable tolling argument in response to Delta’s motion to dismiss the FAC. 3 
There, Elhag acknowledged that his right-to-sue letter was dated on November 6, 
2024 and received by him on November 8, but that he did not file his original 
complaint until February 7, 2025, 4 one day after the statute of limitations period 
had run. See Guyette v. Charter Communications, Inc., 403 F. Supp. 3d 1349, 1361  
(N.D. Ga. 2019) (citing Kerr v. McDonald’s Corp., 427 F.3d 947, 951 (11th Cir. 2005)) 
(“The ninety days starts to run when a plaintiff has notice that the EEOC dismissed 
the charge, which is typically when the plaintiff receives the right to sue letter. ”). 
Elhag explained that he was delayed by two weeks in filing the complaint because 
it took the EEOC two weeks to respond to him after he emailed them to ask for a 
copy of his right -to-sue letter,
5 seemingly because he lost the first one  that he 
received.  
 
3  ECF 18, at 6–12. 
4  Id. at 10. 
5  Id. at 9; ECF 18-1, ¶ 5 (“January 14, 2025, I emailed the EEOC to track down my 
right-to-sue letter. I did not get a response until January 28, 2025, and lost two 
valuable weeks.”). Generally, “when considering a Rule 12(b)(6) motion to 
dismiss for failure to exhaust administrative remedies, . . . it is proper for a 
judge to consider facts outside of the pleadings and to resolve factual disputes 
so long as the factual disputes do not decide the merits and the parties have 
sufficient opportunity to develop a record.” Chavez v. Credit Nation Auto Sales, 
Inc., 966 F. Supp. 2d 1335, 1345 (N.D. Ga. 2013) (citations and internal marks 
omitted). 
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Undersigned agrees with the R&R’s conclusion that “Elhag’s ‘allegations 
foreclose a finding of diligence’” and that Elhag “failed to establish that ‘some 
extraordinary circumstance prevented timely filing.’” 6 While undersigned is 
sympathetic to Elhag’s “extraordinary math error” in calculating his last day to 
file his complaint,  it does not rise to the level of “extraordinary circumstances” 
beyond the plaintiff’s control that would warrant equitable tolling. See generally 
Scott v. Piedmont Columbus Reg’l Hosp., 806 F. App’x 954, 955 (11th Cir. 2020) (citing 
Bryant v. U.S. Dep’t of Agric., 967 F.2d 501, 504 (11th Cir. 1992)) (“[T]he principle of 
equitable tolling does not extend to what is at best a garden variety claim of 
excusable neglect.”). Moreover, the EEOC’s purported delay in sending Elhag a 
copy of his right -to-sue letter fails to establish extraordinary circumstances. 
Elhag’s allegations do not show that the EEOC put him in a position where he 
could not sign and submit his complaint in a timely manner. In fact, the EEOC sent 
Elhag a copy of the right -to-sue letter more than a week before the statute of 
limitations ran.
7 
Elhag points to Weathers v. Houston Methodist Hosp., 116 F.4th 324 (5th Cir. 
2024), in which the Fifth Circuit found equitable tolling warranted where the 
EEOC canceled the plaintiff’s interview date, rescheduled her interview for the 
 
6  ECF 23, at 16 (internal citations omitted). 
7  ECF 18-1, ¶ 5. 
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last day that she could timely file her EEOC charge, and then delayed sending her 
a copy of the charge for her signature, such that she was not able to file her charge 
on time. Whereas the EEOC’s actions prohibited Weathers from being able to file 
her EEOC  charge, here, the EEOC responded to Elhag before the statute -of-
limitations for filing his complaint had expired. 
 Elhag has not alleged extraordinary circumstances beyond his control that 
were “unavoidable even with diligence.” Scott, 806 F. App’x at 955 (citing Arce v. 
Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006)). Accordingly, Elhag’s objection is 
overruled. 
III. Conclusion 
Elhag’s objection to the R&R [ECF 28] is OVERRULED, and undersigned 
ADOPTS the R&R [ECF 23] as the Order of this Court. Elhag’s motion for leave to 
file his second amended complaint [ECF 21] is GRANTED in part and DENIED 
in part; it is GRANTED with respect to his § 1981 race discrimination claim but 
DENIED with respect to his claims under Title VII and the ADEA. As such, Delta’s 
motion to dismiss the FAC [ECF 15] is DENIED as MOOT. Elhag is ORDERED 
to file his second amended complaint, asserting only the claim on which he is 
authorized to proceed, within fourteen days of this Order. 
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The Clerk is DIRECTED to re-submit this case to Judge Vineyard for further 
proceedings. 
SO ORDERED this 31st day of March, 2026. 
 
 
  Steven D. Grimberg 
United States District Judge 
 
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