Joe vs. City of Houston Fire, (5th Cir. 2000)

Text

---

1, 1997. The city argued, and the district court agreed, that this was more than 300 days after the alleged discriminatory conduc t had ended, and was therefore unt imely. Joe, on the other hand, * Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be p ublished and is not precedent except under th e limited circumst a nces set forth in 5 TH C IR .

R. 47.5.4. asserted that the discriminatory conduct continued until the Commission denied his appeal, so his complaint was timely. II. The time for filing a complaint with the EEOC “will co mmence when the employee receives unequivocal notice of his termination or when a r easonable person would know of the termination.” B urfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995); see also Delaware State College v. Ric ks , 449 U.S. 250, 261 (1980). This limitation “reflects a val ue judgment concerning the point at which t he interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Id. at 260. That Jo e received review by the Co mmission does not alter the date for beginning the filing-deadline period. In R icks , the plaint iff was a professor who had been denied tenure, had been offered a one-year “terminal contract,” which he accepted, had appealed his denial of tenure, and had been denied. I d. at 252-55. Upon filing a civil rights act ion, he found himself barred by his tardy application to the EEOC and argued that his filing period should not have begun to run until his actual date of t ermination, or at the earliest on rejection of his appeal. I d. The Court disagreed. Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the Co llege terminated other professors who also h ad been denied tenur e. . . . In sum, the only alleged discrimination o c curred SS and the filing limitations periods therefore commence d SS a t the time the tenure decisi o n was made and communicated to Ricks.

Id. at 258. Joe presents a similar situation. The ci ty discrimi nated against him, if at all, when the chief suspended him indefinit ely. For us to hold that the filing period did not commence until the Comm i ssion made its decision, we would have to find that Joe had pleaded and provided evidentiary support f or the proposition 1 t h at the Commission had reviewed his suspension in a manner different from that it employed when reviewing the indefinit e suspensions of other employees and that it had done so on account of race. Even applying the liberal standards of interpretation generally granted to pro se pleadings, 2 we see no such claim in JoeÂ’s complaint, nor any evidence to support it. The statutory peri o d in which Joe was required to file a complaint with the EEOC, therefore, began at the latest on January 3, 1996, so his March 11, 1997, complaint to the EEOC was unt imely. The law, without more, demands dismissal.

III. In certain situations, however, the doctrines of equitable estoppel and equitable tolling may apply. “Equitable tolling focuses on the plaint iff’ s excusable ignorance of the employer’s discriminatory act. Equitable estoppel, in contrast, examines the defendant’s conduct and the extent to which the plaintiff has been induced to refrain from exercising his rights.” C lark v. Resistoflex Co. , 854 F.2d 762, 769 n. 4 (5th Cir. 1988) ( quoting Felty v. Graves -Humphreys, 785 F.2d 516, 519 (4th Cir. 1986)). These doctrines primarily are the province of the district court and are applied at its discretion; we therefore review for abuse of discretion that court’s determination that these 1 Wh ile the city initially filed a motion to dismis s under F E D . R. C IV . P. 12(b)(6), the court converted that motion, sua spon te , into a motion for summary judgment under F ED . R. C IV . P. 56(c) 10 days after both parties had submitted matters outside the pleadings. 2 See, e.g., Rodriguez v. Holmes , 963 F.2d 799, 801 (5th Cir. 1992) (noting that “the allegations of a p ro se complaint . . . must be read in a liberal fashion, a n d however inartfully pleaded must be held to l ess stringent standards than formal pleadings drafted by lawye r s” (internal citations and quotations omitted)). facts do not warrant application of either doctrine. S ee Fisher v. Johnson , 174 F.3d 710, 713 (5th Cir. 1999).

Considering equitable estoppel first, we can find nothing in t he pleadings or the record to suggest that Joe was “induced to refrain from exercising his rights” by any party. We have “described the level of employer culpability required to trigger equitable estoppel in terms of a recklessness standard: The doctrine may properly be invo ked when the employee’s untimeliness in filing his charge result s from either the employer’s deliberate design to delay th e filing or actions that the employer should unmistakably have understood would result in the employee’s delay.” I d. at 769 (internal quotations and citations omitted). The record does not indicate that anything of the k ind occurred here. Joe was informed by the chief of the reasons fo r his discharge, that the letter of January 3, 1996 , o fficially enacted his suspension, and that the a v ailable appeal process worked as the appeal of a final decision rather than as the decision itself. Joe does no t allege that any representative of the city suggest ed t hat he should refrain from complaining to the EEOC or that his rights would remain intact during the pendency of his appeal; neither does he claim that the city kept relevant information from him. In Blumb erg v. HCA Management Co. , 848 F.2d 642, 645 (5th Ci r. 1988), we heard the complaint of an e mplo yee who had failed to file a t imely complaint and who argued that her employer was “estopped from invoking her failur e t o file . . . because it concealed the reason for her termination.” We held that because the pl aintiff had been “advised at the t ime of her termination that she was being discharged for cause, and she was able to evaluate the propriety of the reasons for her dismissal immediately,” her employer was not estopped from pl eading the passage of the filing period merely “by not expressly declaring that her di scharge was due to [discrimination].” I d. Such a holding, we thought, would be “t a ntamount to asserting that an employer is equitably estopped whenever it does not disclose a violation of the statut e.” I d. Similarly, the record here suggests nothing the cit y did to cause it to forfeit the benefits of the limitation period. What remains t o Joe, then, is equitable toll ing, which looks to him rather than to the city to see whether his ta rdiness can be excused. “The plaint iff has the burden of demonstrating a factual basis to tol l the period,” Blumberg , 848 F.2d at 644, and we attempt by liberal constru c tion of Joe’s pleadings to find the sort of “rare and exceptional circumstances” that will allow for equi t able tolling. F isher, 174 F.3d at 713.

Too, “a garden variety claim of excusable neglect does not support equitable tolling.” Coleman v. Johnson , 184 F.3d 398, 402 (5th Cir. 1999).

The record presents no facts that have not previously been cons i dered and dismissed by this court as insufficient excuses for failure to meet a statute of limitations. Joe proceeds p ro se and in forma pauperis , but an “argument[] that he is a ‘layman-at-law,’ a pauper without legal assistance . . . afford[s] him no defense to the absolute bar of the statute of limitations.” Kissinger v. Foti , 544 F.2 d 1257, 1258 (5th Cir. 1977). S ee also Fisher, 174 F.3d at 714 (opining that “ignorance of the law, even for a[] . . . pro se petitioner, generall y does not excuse prompt filing”). This result springs from neces sit y rather than dearth of generosity; though forgiven his failures of art, the pauper no less than the practitioner must vigorously and swiftly pursue his claim s of right lest quietude and repose, so necessary to the rule of law and ordered society, succumb to his delayed attack.

Neither does Joe benefit from a claim that third parties hindered his pursuit of justice. He included with his pleadings a copy of the complaint t hat he eventually filed with the EEOC, whi ch complaint noted that “discrimination took pl ace” from January 3, 1996, until June 5, 1996. He might have understood t his notation to work an e ndo rsement of his contention that the 300- day limitation perio d began on June 5. We note, however, that he did not file the relevant complaint unt il March 11, 1997, after the correctly calculated limitation period had ended; thus, any representation by the EEOC that discrimination had occurred until June 5, 1996 , did not come in time for Joe meaningfully to have relied on it. Meanwhile, we co uld not hear complaint SS even if Joe had made it SS that the EEOC had made more evanescent representations to him about the running of the filing period. As we have explained in the context of age-discrimination filing s with the EEOC, [i]t would be virtually impossible for the EEOC o r a defendant to rebut a plaint iff's unsupported allegation that the EEOC provided incomplete information in a telephone conversation. Allowing a plaint iff equi t ably to toll a time limitation based on incomplete information provided in a telephone conversation would create a great potential for abuse. Thus, we hold that . . . alleged in c omplete oral statements made by the EEOC to [ a complainant] during a telephone conversation will not support equitable tolling.

Conaway v. Control Data Corp. , 955 F.2d 358, 363 (5th Cir. 1992).

The central bar to any attempt to invoke the doctrine of equitable tolling, though, must be Joe’s lack of diligence. “In order for equitable tollin g t o apply, the applicant must diligently pursue his . . . relief. . . . As this court has noted, e quit y is not intended for those who sleep on their right s .” C oleman , 184 F.3d at 403. We have refused to apply t h e doctrine in cases in which the plaint iff might have stated a reasonable claim to toll a small portion of the limitations period, even when that small period would prove “outcome determinative , ” if he has not generally prosecuted hi s case di ligent ly. F isher , 174 F.3d at 715; see also Coleman , 184 F.3d at 403. Joe did not prosecute his case fo r mo re than a year after he was indefinit ely suspended or for nearly 300 days after his appeal was denied. AFFIRMED.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

m 99-20282 Summary Calendar D ARRELL J OE , Plaintiff-Appellant, VERSUS C ITY OF H OUSTON F IRE D EPARTMENT /C IVIL S ERVICE C OMMISSION , Defendant-Appellee. Appeal from the United States District Court for the Southern District of Texas (H-98-CV-134) March 1, 2000 Before SMITH, BARKSDALE, and PARKER, Circuit Judges. JERRY E. SMITH, Circuit Judge: * Darrel l Joe, once a firefighter for the City of Houston, was suspended indefini t ely for having been arrested for the purchase and use of crack cocaine, an arrest he contends to have been false. He filed a complaint with the Texas Commission o n Human Rights (“TCHR”) and the Equ al Employment Opportunity Commissi o n (“EEOC”), charging race discrimination because o t her employees who ha d committed crimes had not been suspended indefinit ely . He sued under title VII, but the district court found the acti on time barred an d dismissed. Finding no error, we affirm. I. After learning that Joe had been arrested on September 1, 1995, the fire chief held a predisciplinary meeting with him on December 6, 1995, and sometime thereafter informed him that he would be indefinit ely suspended, which is tantamount to dismissal. The chief provided Joe official notif ication of this indefinite suspension on January 3, 1996, and explained that Joe needed to appeal to the Civil Service Commission (the “Commission”) within fifteen days. Joe did so, and on June 5, 1996, t he Commission upheld the suspension. T he EEOC filing period functions as a statute of limitations, barring suits no t preceded by a timely complaint. Z ipes v. Trans World Airli nes, Inc. , 455 U.S. 385, 393-94 (1982). Joe filed complaints with the TCHR and EEOC on March

---