Howard v. Intown Suites Management, 11th Cir. Amicus brief Filed July 3, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________________________________ No. 06-12270-AA ____________________________________________________ ALEX HOWARD, Plaintiff-Appellant, v. INTOWN SUITES MANAGEMENT, INC., et al. Defendants-Appellees. _________________________________________________________________ On Appeal from the United States District Court for the Northern District of Georgia __________________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT AND REVERSAL __________________________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS ` Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731(w); (202) 663-7090 (fax) CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record for the EEOC, amicus curiae in support of plaintiff-appellant, certifies that the following listed persons and parties have an interest in the outcome of this case: Baverman, Alan J., United States Magistrate Judge Bliss, Charles Richardson, attorney for plaintiff-appellant Howard Briscoe, Jamenda, attorney for defendants-appellees InTown Suites Bruner, Paula R., attorney for amicus EEOC Buckley, Edward Daniel III, attorney for plaintiff-appellant Howard Cassazza, Lauren O., attorney for defendants-appellees InTown Suites Chanda, Sudwiti, attorney for defendants-appellees InTown Suites Davis, Lorraine C., Acting Associate General Counsel of amicus EEOC Dominguez, Cari M., Chair of amicus EEOC Doneff, Andrea, attorney for plaintiff-appellant Howard Drummond, Alex S., attorney for defendants-appellees InTown Suites Earp, Naomi C., Vice Chair of amicus EEOC Enloe, Christopher S., attorney for defendants-appellees InTown Suites Equal Employment Opportunity Commission, amicus Garcia, Monica L., attorney for plaintiff-appellant Howard Griffin, Christine M., Commissioner of amicus EEOC Heyman, Gregory T., attorney for defendants-appellees InTown Suites Howard, Alex, plaintiff-appellant InTown Suites Airport, Inc., defendant-appellee InTown Suites Albermarle Road, LLC, defendant-appellee InTown Suites Albuquerque, L.P., defendant-appellee InTown Suites Arlington, L.P., defendant-appellee InTown Suites Management, Inc., defendant-appellee Ishimaru, Stuart J., Commissioner of amicus EEOC Jones, Michael D., attorney for defendants-appellees InTown Suites Klapper, Antony B., attorney for defendants-appellees InTown Suites Klein, Daniel M., attorney for plaintiff-appellant Howard Lee, James L., Deputy General Counsel of amicus EEOC Martin, Corey, plaintiff Messika, Galia, attorney for defendants-appellees InTown Suites Meyers, John F., attorney for defendants-appellees InTown Suites Miles, William Patrick Jr., attorney for defendants-appellees InTown Suites Mulliken, Suzanne J., attorney for defendants-appellees InTown Suites Selendy, Jennifer, attorney for defendants-appellees InTown Suites Shea, Daniel M., attorney for defendants-appellees InTown Suites Silverman, Leslie E., Commissioner of amicus EEOC Smylie, Sallie G., attorney for defendants-appellees InTown Suites Staes, Steven Michael, attorney for defendants-appellees InTown Suites Thrash, the Honorable Thomas W., United States District Court Judge Wheeler, Carolyn L., Assistant General Counsel for amicus EEOC ________________________________ PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . C-1 TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 1 1 Statement of the Facts. . . . . . . . . . . . . . . . . . 1 2. Magistrate and District Court Decisions . . . . . . . . . 5 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF THE STANDARD OF REVIEW . . . . . . . . . . . . . . . . 7 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE DISTRICT COURT ABUSED ITS DISCRETION IN GRANTING SUMMARY JUDGMENT TO INTOWN ON THE GROUND THAT HOWARD'S CHARGE WAS UNTIMELY. . . . . . . . . . . . . . . . . . . . 8 1. The Limitations Period for Filing A Charge Commences When A Plaintiff Has Actual or Constructive Notice of the Discriminatory Act. . . . 10 2. Under the Proper Standard for Equitable Tolling, Howard's Charge Should be Deemed Timely. . . . . . . . . . . . . . . . . . . . . . . . . . 15 3. The Extraordinary Circumstances of this Case Counsel Against Summary Judgment on Timeliness Grounds. . . . . . . . . . . . . . . . . . . 25 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE ADDENDUM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Arce v. Garcia, 400 F.3d 1340 (11th Cir. 2005), vacated, 434 F.3d 1254 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) . . . . . . . . . . . . . . . . 7, 13, 15 Bailey v. Glover, 21 Wall. 342 (1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 104 S.Ct. 1723 (1984). . . . . . . . . . . . . . . . . . . 12, 13 Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . 10, 14, 18 Calhoun v. Alabama Alcoholic Beverage Control Bd., 705 F.2d 422 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . 5, 13, 22 Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . 28 Drew v. Dep't of Corrections, 297 F.3d 1278 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 7, 9 EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817 (1981). . . . . . . . . . . . . . . . . . . . . . 28 Holton v. City of Thomasville School Dist., 425 F.3d 1325 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . 27 Howard v. InTown Suites Mgmt., Inc., 2006 WL 739168 (N.D. Ga. Mar. 17, 2006) . . . . . . . . . . . . . . . . . passim Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716 (1975). . . . . . . . . . . . . . . . . . . . . . 24 Jones v. Dillard's, Inc., 331 F.3d 1259 (11th Cir. 2004). . . . . . . . . . . . . . . . 15, 19, 20, 21, 26 Jones v. Robinson Prop. Group, L.P., 427 F.3d 987 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 16 Justice v. United States, 6 F.3d 1474 (11th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . 27 KMS Rest. Corp. v. Wendy's Int'l, Inc., 361 F.3d 1321 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . 26 Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 8 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773 (1991). . . . . . . . . . . . . . . . . . . . 11, 12 Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . 25 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061 (2002). . . . . . . . . . . . . . . . . 8, 9, 11, 12 Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . 13, 26, 28 Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 25 Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . 14 Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . 9, 18 TRW Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441 (2001) . . . . . . . . . . . . . . . . . . . . . . 12 United States v. Beggerly, 524 U.S. 38, 118 S.Ct. 1862 (1998) . . . . . . . . . . . . . . . . . . . . . . 12 Williams v. North Florida Reg. Med. Ctr., Inc., 164 Fed.Appx. 896 (11th Cir. Jan. 26, 2006) (unpublished) . . . . . . . . . . 23 Zipes v. TWA, 455 U.S. 385, 102 S.Ct. 127 (1982) . . . . . . . . . . . . . . . . . . . . . . 9 STATUTORY PROVISIONS AND SECONDARY AUTHORITY Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 42 U.S.C. § 2000e-5(e)(1) 24 Enforcement Guidance on Threshold Issues, EEOC Compliance Manual § 2-IV.D(1) 17, 18 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the agency charged with the interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and other federal anti-discrimination statutes. This appeal raises an important issue regarding the standard for determining timeliness of a charge in a case where the plaintiff lacked reason to suspect he was a victim of discrimination until well after his non-selection. Because this issue is important to the enforcement of Title VII and other federal employment discrimination laws, the Commission offers its views to the Court. STATEMENT OF THE CASE 1. Statement of the Facts According to several InTown managers, Chief Operating Officer ("COO") Cheryl Vickers verbally and consistently expressed her desire that no African Americans be hired as Property Managers. Regional Manager Lief Hartkopf testified that in 1999, Vickers told him, "'African Americans were not a good image behind our front counters or running the hotels, so I was not to hire African- Americans.'" R.154, Mag. Report and Rec. ("Mag. Rep.") at 6 (internal citation omitted). When he asked why he could not hire a qualified Black applicant, Vickers responded that "InTown's bankers did not want African-Americans behind the counter." Id. Area Manager Diane Cantu testified that sometime in 2000, Vickers told her that InTown needed to "upgrade [its] image because our [financial] backers were prejudiced." Id. at 6-7. Richard Rydin, who served as an Area and District Manager from 1999 to January 2001, stated that it was understood "'if, you know, it was a black applicant, that, you know, again, it probably wasn't going to go any farther than my initial interview.'" Id. at 7 (internal cite omitted). And Regional Manager Rick Fee, who served from 2000 to 2003, averred that in October 2000, Vickers directed him not to hire African- Americans for any management positions without her consent, and not to hire Blacks as Property Managers. Id. In January or February 2001, Alex Howard, an African American, applied for a Property Manager position with InTown after reading an ad in the newspaper. Mag. Rep. at 2. Howard had substantial work experience that would have qualified him for the position. Id. at 2-3 n.3. After reviewing his application, Area Manager Diane Cantu scheduled Howard to interview for two vacant positions; one in Piedmont and the other in Stone Mountain on February 2, 2001. Id. at 3; R.104-3, DSJ Mot., Ex. 1-Howard Dep. at 11.<1> Howard met with Cantu at the Piedmont site, but the interview took place in a bar area of a restaurant and lasted approximately 35-40 minutes. R.104-3, DSJ Mot., Ex. 1-Howard Dep. at 12; R.104-4, DSJ Mot., Ex. 2-Howard Dep. at 23-24. During the interview, Howard recalls that Cantu "gave me the indication that I would be called back again[.]" Id.; R.104-4, DSJ Mot., Ex. 2-Howard Dep. at 42. Although Cantu does not recall interviewing Howard, she testified that, during her tenure with InTown's Georgia office, she always gave African American candidates a shorter interview so as not to "waste their time" or "give them hope" because she "'knew they didn't have a chance.'"<2> Mag. Rep. at 4 (quoting Cantu Dep. at 29). She would also inform COO Vickers, the final decisionmaker, if the applicant was a minority because she knew this was expected of her. Id. at 5. By January 2001, she no longer sent Vickers the applications of "minority candidates because she was afraid she would lose her job as Vickers told her that 'we had to upgrade our image . . . because our backers were prejudiced.'" Id. After Howard's interview, InTown never called him for a second interview and Howard was not hired as a Property Manager. Mag. Rep. at 6. Howard never called to inquire about the status of his application. Id. When he saw a newspaper ad for a similar job with InTown, he wondered why the selectee did not work out. Id. But he never suspected he was a victim of discrimination. Id. Rather, he continued to apply for Property Manager positions at similar companies, none of which granted him an interview. R.104-3, DSJ Mot., Ex. 1-Howard Dep. at 18-19. In March 2001, Vickers hired a White male for the Piedmont property based on the recommendation of an assistant to David Vickers. Mag. Rep. at 6. Howard was not informed of this selection. In August 2003, a "locator" employed by Cantu's attorney contacted Howard, asked if he had applied for a position with InTown, and provided him with the attorney's phone number. Id. at 8. In October 2003, Cantu's lawyer called Howard and asked if he would be a witness in Cantu's lawsuit against InTown. Id. The lawyer also cryptically mentioned to Howard that he may have a "lawsuit" because InTown had engaged in discriminatory hiring practices. Id. Howard secured counsel who researched the matter and informed Howard of InTown's discriminatory hiring practices. Id. Howard filed an EEOC charge on November 25, 2003. Id. 3. Magistrate and District Court Decisions On March 17, 2004, Howard filed a lawsuit against InTown, alleging race discrimination in hiring in violation of Title VII and 42 U.S.C. § 1981. InTown moved for summary judgment, arguing that Howard had insufficient evidence to support a finding of discrimination. In its reply brief, InTown belatedly asserted that summary judgment should be granted because Howard's charge was untimely.<3> The magistrate filed a 64-page report, recommending that InTown's motion be denied. Relying on this Court's analysis in Calhoun v. Alabama Alcoholic Beverage Control Bd., 705 F.2d 422 (11th Cir. 1983), the magistrate stated that Howard's Title VII and section 1981 discrimination claims were entitled to equitable tolling because "[t]he facts to support Plaintiff's cause of action became apparent when Plaintiff was informed of InTown's discriminatory practices sometime in October 2003 or November 2003. * * * Prior to this time, there were insufficient facts to support a discrimination claim." Mag. Rep. at 21; also see id. at 22-23. The magistrate further ruled that Howard's direct, statistical, and circumstantial evidence created genuine issues of material fact "as to whether InTown's reasons were pretext and whether InTown was ultimately motivated by discriminatory animus in rejecting Plaintiff." Id. at 61; also see id. at 35-62. After reviewing InTown's objections to the magistrate's report, the district court adopted the magistrate's report on the merits of Howard's discrimination claims, but concluded that the claims were time-barred. Dec. at *2-*3. The court acknowledged that Calhoun "can be read as authority for tolling the statute of limitations until the potential plaintiff is or should be aware of evidence of discrimination," id. at *1, but on considering other Eleventh Circuit cases cited by InTown, the court concluded that equitable tolling also requires some misleading conduct by the defendant to allow the statutory period to lapse. Id. at *2. The court reasoned that, since InTown did nothing to mislead Howard and "Plaintiff could have easily discovered the wrong by calling the Defendant and asking if the person who was hired was of a different race," Howard's failure to act for two years constituted a lack of due diligence. Id. Thus, the court ruled that equitable tolling was not appropriate. Id. STATEMENT OF THE ISSUE Whether the district court abused its discretion in holding that plaintiff's charge was untimely where the plaintiff reasonably lacked sufficient information to suspect he was a victim of race discrimination within 180 days after defendant failed to hire him. STATEMENT OF THE STANDARD OF REVIEW Review of a district court's decision to deny equitable tolling is for abuse of discretion. Arce v. Garcia, 434 F.3d 1254, 1260 (11th Cir. 2006). A district court has abused its discretion if it misapplies the law in reaching its decision or bases its decision on findings of fact that are clearly erroneous. Id. "This standard requires us to affirm a district court's findings of fact unless the record lacks substantial evidence to support that determination." Drew v. Dep't of Corrections, 297 F.3d 1278, 1283 (11th Cir. 2002). Because it is an exception to the statute of limitations rule, the burden is on the plaintiff to show that he is entitled to the extraordinary remedy of equitable tolling. Arce, 434 F.3d at 1261 However, InTown, as the movant, retains the ultimate burden of showing that there are no genuine issues of material fact to be resolved by a jury. SUMMARY OF THE ARGUMENT In Georgia, because there is no state equivalent to the EEOC, the Title VII limitations period is 180 days. In this case, the district court ruled that Alex Howard's 2003 charge was untimely and that the doctrine of equitable tolling did not apply because Howard failed to exercise due diligence when he did not call InTown and request the race of the selectee and when he failed to show that InTown engaged in misconduct, such as deliberate concealment. Because "[e]ach case turns on its own facts," Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002), and these facts are compelling, this Court should apply the principles underlying the discovery rule and the equitable tolling doctrine to find Howard's charge timely. Specifically, this Court should conclude that the district court abused its discretion in granting summary judgment because: (1) the court improperly required the plaintiff to establish employer misconduct in addition to showing he reasonably had no knowledge of the wrongdoing; (2) the plaintiff filed a charge as soon as he knew or should have known he was a victim of discrimination; and (3) the extraordinary circumstances of this case weigh against its termination on timeliness grounds. Alternatively, this Court should conclude that summary judgment was inappropriate because Howard produced sufficient tolling evidence to create a triable issue on the timeliness of his charge. ARGUMENT THE DISTRICT COURT ABUSED ITS DISCRETION IN GRANTING SUMMARY JUDGMENT TO INTOWN ON THE GROUND THAT HOWARD'S CHARGE WAS UNTIMELY The Supreme Court addressed in National Railroad Passenger Corp. v. Morgan, "whether, and under what circumstances, a Title VII plaintiff may file suit on events that fall outside [the timely-filing] period." 536 U.S. 101, 105, 122 S.Ct. 2061, 2068 (2002). In so doing, it clarified that the charge-filing period of 180 or 300 days begins to run when an "unlawful employment practice has occurred." Id. at 109, 122 S.Ct. at 2070. An unlawful employment practice includes discrete acts such as "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 113, 122 S.Ct. at 2072. The Court therefore concluded that each discriminatory or retaliatory discrete act "starts a new clock for filing charges alleging that act." Id. at 113-114, 122 S.Ct. at 2072-73. If a charge challenging discriminatory discrete acts is not filed within the appropriate limitations period, the plaintiff generally will lose his ability to recover for it. Id. at 113, 122 S.Ct. at 2072. Because the filing of a timely charge is not a jurisdictional prerequisite to suit in a federal court, Zipes v. TWA, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982), the Court also reaffirmed its view that the "time period for filing a charge is subject to equitable doctrines such as tolling or estoppel." Morgan, 536 U.S. at 113, 122 S.Ct. at 2072. Under this Court's precedent, equitable tolling is extraordinary and to be applied sparingly. Drew, 297 F.3d at 1286. It is, nonetheless, "appropriate when a [party] untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Stated differently, equitable tolling is appropriate "where the defendant misleads the plaintiff . . . or when the plaintiff has no reasonable way of discovering the wrong perpetrated against [him], as is the case here." Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155 (11th Cir. 2005). Moreover, "'a plaintiff who invokes equitable tolling to suspend the statute of limitations must [act] within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information.'" Id. at 1155-56 (internal citation omitted). 1. The Limitations Period for Filing a Charge Commences When a Plaintiff Has Actual or Constructive Notice of the Discriminatory Act In this case, Howard argued that he is entitled to have the charge-filing period tolled because he had no knowledge that InTown's refusal to hire him was motivated by his race. In rejecting Howard's argument that equitable tolling should apply until he had evidence of discrimination, the district court decided that this Court's observation that "'courts usually require some affirmative misconduct, such as deliberate concealment,'" Dec. at *2 (quoting Cabello, 402 F.3d at 1155), indicated that employer misconduct is a prerequisite to equitable tolling. Id. It then concluded that since "[d]efendants did nothing to mislead the Plaintiff" and Howard did nothing for two years, equitable tolling was not warranted. The district court's articulation of the equitable tolling standard is incorrect because controlling law does not require employer misconduct and because the district court misinterpreted Cabello. The prevailing view in this Circuit is that a Title VII charge should be deemed timely where, as here, it is filed promptly upon discovery of the discrimination. In the statute of limitations context, the Supreme Court expressly noted that "there may be circumstances where it will be difficult to determine when the time period should begin to run." Morgan, 536 U.S. at 114 n.7, 122 S.Ct. at 2073 n.7. An issue raised by such circumstances, the Court stated, is "whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered." Id. This "discovery rule," Justice O'Connor added, translates into a standard that essentially bars "recovery based on discrete actions that occurred more than 180 or 300 days after the employee had, or should have had, notice of the discriminatory act." Id. at 124, 122 S.Ct. at 2078 (O'Connor, J., concurring in part, dissenting in part). This discovery rule, notably, is consistent with the historical underpinnings of the equitable tolling doctrine -- namely that "'where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.'" Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363, 111 S.Ct. 2773, 2782 (1991) (quoting Bailey v. Glover, 21 Wall. 342, 348 (1875)). Accordingly, because Supreme Court case law suggests that knowledge of the discriminatory act starts the limitations period, Morgan, 536 U.S. at 124, 122 S.Ct. at 2078 (O'Connor, J., concurring in part, dissenting in part), and the purpose of the equitable tolling doctrine is to excuse delayed filings when such knowledge does not exist even if there is no misconduct by a third party, Lampf, 501 U.S. at 363, 111 S.Ct. at 2782, read in tandem, the discovery rule appropriately is the governing standard for equitable tolling.<4> Cf. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725 (1984) (per curiam) (rejecting equitable tolling because "[t]his is not a case in which a claimant has received inadequate notice" or where "affirmative misconduct on the part of a defendant lulled the plaintiff into inaction"); accord United States v. Beggerly, 524 U.S. 38, 48, 118 S.Ct. 1862, 1868 (1998) (holding in non-Title VII case that a statute of limitations that will not begin to run until the plaintiff "'knew or should have known of the claim of the United States,'" has already "effectively allowed for equitable tolling").<5> This Court's equitable tolling cases also apply the discovery rule. In 1983, this Court stated that for equitable tolling purposes, "'the statute does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.'" Calhoun, 705 F.2d at 425 (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 1026 (5th Cir. 1975)). Since then, the Court has consistently reaffirmed this standard. See, e.g., Arce, 434 F.3d 1262-63 (listing instances when equitable tolling may be appropriate, including where a "'claimant has received inadequate notice'"); cf. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993) ("equitable tolling would be inappropriate if [plaintiffs] were aware that Buckeye was violating their right to be free of racial discrimination in their employment"). As is obvious, nothing in this rule articulated by this Court or the Supreme Court requires defendant or employer misconduct. In addition, contrary to the district court's analysis, Cabello offers no support for the district court's rule that employer misconduct also must be proven to invoke the equitable tolling doctrine. First, in Cabello, this Court clearly stated that equitable tolling is appropriate "where the defendant misleads the plaintiff . . . or when the plaintiff has no reasonable way of discovering the wrong perpetrated against [him.]" 402 F.3d at 1155 (emphasis added). This statement makes clear that a showing of employer misconduct is not a mandatory element of tolling. Second, although this Court observed in Cabello that "'courts usually require some affirmative misconduct, such as deliberate concealment,'" to equitably toll the statute of limitations, Id. at 1155 (quoting Arce v. Garcia, 400 F.3d 1340, 1349 (11th Cir. 2005)), this observation does not translate into a prerequisite to equitable tolling. Indeed, this Court relied on a decision which noted that employer misconduct is not required. Arce, 400 F.3d at 1348 n.5 ("[w]e recognize that defendant misconduct is not formally or always required for the application of equitable tolling"), vacated on other grounds, 434 F.3d 1254 (11th Cir. 2006). Lastly, as earlier stated, an employer misconduct requirement is entirely inconsistent with controlling precedent. As this Court has observed, "there are many types of extraordinary circumstances" that justify equitable tolling, Id. at 1347, but "'[t]he essence of the doctrine of equitable tolling of a statute of limitations is that a statute of limitations does not run against a plaintiff who is unaware of his cause of action.'" Id. at 1349 (internal citation omitted). Thus, the district court's summary judgment should be reversed because it applied an incorrect legal standard in deciding to terminate the case. 2. Under the Proper Standard for Equitable Tolling, Howard's Charge Should be Deemed Timely "[U]nder equitable modification, the applicable limitations period d[oes] not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his . . . rights." Jones v. Dillard's, Inc., 331 F.3d 1259, 1264 (11th Cir. 2004). In other words, the plaintiff must not only know of the allegedly discriminatory act itself (here, the failure to hire) but must know or be charged with knowledge of sufficient facts to support a conclusion that the employer's facially neutral decision was actually motivated by unlawful discrimination. Id. at 1265. In determining whether Howard knew or should have been aware that he was a victim of discrimination, the law requires that a court consider only the facts occurring 180 days after his non-selection (which in this case is March to September 2001). In 2001, Howard only knew that he applied for a Property Manager job with InTown, received a 35-40 minute interview in February, did not receive a call for a second interview, and ultimately was not hired. Howard did not know who was hired or the race of the selectee; nor was he given a reason why he was not hired. In fact, he was not even informed that a decision had been made. Further, since his interview was conducted in a bar where only he and Cantu were present, Howard also did not have an opportunity to observe the absence of African American employees working for InTown.<6> Consequently, nothing in this set of facts would convey or even create a suspicion that race was an issue, that InTown had a policy that prohibited the hiring of African Americans as Property Managers, or that InTown failed to hire him because of his race. Thus, Howard reasonably lacked knowledge of any facts that would trigger the filing of a Title VII charge in 2001. See Enforcement Guidance on Threshold Issues, EEOC Compliance Manual § 2-IV.D(1) at 2-80 (recognizing that "[n]o reason to suspect discrimination at the time of the disputed event" is a ground for equitable tolling). In addition, there is no evidence that indicates Howard should have known that he was a victim of discrimination. Indeed, InTown knew that it had no intention of hiring African Americans as Property Managers yet Cantu interviewed Howard, an African American, for two Property Manager positions, even though he only expressed an interest in one site. In addition, Howard's interview lasted nearly 40 minutes despite that Cantu normally limited her interviews of minority candidates to 15 minutes so she would not "waste their time" or "give them hope." Mag. Rep. at 4-5. Further, Howard testified that Cantu led him to believe that he would receive a call back when she knew, by her own admission, that he had no "chance" of being hired. Mag. Rep. at 4 (quoting Cantu Dep. at 29). Next, the discriminatory policy was verbal not written. It was known only to those executive managers who directly participated in the hiring process. Cantu did not reveal the discriminatory policy's existence to Howard, even though she knew he would be a victim of its enforcement. And, Cantu did not inform Howard that she had no intention of passing his resume on to COO Vickers because of his race and her fear for her job. Id. at 5. In sum, these facts reveal that there was no reason for Howard to believe that he had been subjected to anything but a fair and nondiscriminatory process. Discovery of InTown's discriminatory hiring practices was beyond Howard's control, even had he made inquiries regarding the circumstances of his nonselection. See Sandvik, 177 F.3d at 1271 (equitable tolling is appropriate where circumstances "are both beyond [plaintiff's] control and unavoidable even with diligence"). As a result, because Howard filed a charge within two months of learning that he was a victim of discrimination, the filing of Howard's 2003 charge should be deemed timely. See Cabello, 402 F.3d at 1155- 56 ("'a plaintiff who invokes equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information'") (internal citation omitted).<7> The district court's contrary ruling that Howard failed to exercise due diligence is flawed. The district court acknowledged that Howard lacked any actual knowledge of discrimination within the limitations period, but it ruled that Howard should not be excused from timely filing a charge because he failed to exercise due diligence by not requesting the race of the selectee. Dec. at *2. This conclusion is untenable. Without some suspicion of discrimination, it is highly unlikely that Howard or any other reasonably prudent job applicant would call an employer and request the race of the selectee for every job he fails to obtain. Nor is it reasonable to assume that an employer will always release such information. Furthermore, even if Howard had obtained such information and learned that InTown had selected a White male, this knowledge is insufficient to establish that discrimination has occurred or to provide notice that one is a victim of discrimination. In other words, while information that the selectee is of a different racial group than the plaintiff may be sufficient to support a prima facie case, Jones, 331 F.3d at 1265 n.3 (setting out elements of a prima facie case), standing alone it is clearly inadequate to establish unlawful discrimination. In fact, this Court stated in Jones that "'a discharged employee's mere suspicion of age discrimination, unsupported by personal knowledge of discrimination will not constitute pretext,'" and therefore cannot preclude equitable tolling. Id. at 1265 (internal citation omitted). Jones makes clear that the precedent in this Circuit supports tolling of the limitations period until Howard had knowledge of facts suggesting discrimination and that this involves more than mere knowledge of the race of the successful applicant in a hiring case. In Jones, the plaintiff did not file her ADEA charge until almost 270 days after she was told her position was being abolished. The plaintiff was told in May 1999 that her position as an assistant area sales manager (AASM) was being eliminated for financial reasons and that the new store owner had no intention of ever employing persons to serve in that managerial capacity again. Jones, 331 F.3d at 1261. Yet, in June 1999, a month after she retired, plaintiff learned that the store would be hiring two new AASMs. In typewritten notes to herself, plaintiff recorded her reaction as believing she had been "lied to" and deciding that she would file a lawsuit based on age and wage discrimination "[a]s soon as I find out there are two new AASM[s] in place." Id. In October 1999, the company hired a younger person to be an AASM and plaintiff learned about it in November 1999. In deciding that the plaintiff was entitled to equitable tolling of her February 2000 EEOC charge, this Court ruled first that the plaintiff had no reason to suspect that she was a victim of discrimination at the time she left the job in May 1999 because all she was aware of were poor sales and that the AASM jobs, including her own, were eliminated for financial reasons, a legitimate nondiscriminatory justification for the position dissolution. Id. at 1265. The Court further rejected defendant's argument that she should have filed a charge in June 1999 when she learned that AASMs would be hired, especially since her note made clear that she suspected age discrimination. This Court reasoned that this evidence was insufficient to establish pretext for discrimination since knowledge that someone would be hired was not equivalent to knowledge of the company's intent to hire a younger employee. Id. at 1265-66. In short, the Court concluded that the plaintiff did not have sufficient evidence to support her age discrimination claim until November 1999, when she learned that the younger employee was hired. Id. at 1266. The Court's analysis makes clear that the age of the selected AASM was a critical piece of information confirming a suspicion provoked by the earlier misrepresentation that the plaintiff's job was being eliminated. In this case, Howard had no knowledge of either a reason to justify his nonselection, or the race of the selectee to trigger the filing of a charge. Similarly, in Calhoun, the Black plaintiffs, who filed a §1983 race discrimination suit after learning that the state licensing board and county commission awarded a liquor license to a white couple for the same location they had their liquor applications denied three times, had more than knowledge of the race of the selectees. See generally Calhoun, 705 F.2d 422. According to the Calhouns, they had been told their license applications had been denied because residents in the area near the social club signed a petition opposing the granting of liquor licenses. Id. at 424. In their view, they had no reason to believe that this justification was a pretext for race discrimination until defendants granted the white couple's application despite the neighborhood's opposition. Id. This Court agreed, and reinstated the Calhoun's complaint. Id. at 425. This Court's rationale in both Jones and Calhoun clearly supports equitable tolling in the instant case. In those cases, equitable tolling applied because the plaintiffs filed their charges immediately upon learning facts that revealed they were victims of discrimination and those facts included more than mere knowledge of the age or race of the successful candidate. Applying those rulings here, it should follow that an applicant, such as Howard, who had no information about the company's discriminatory policy, who had been given no explanation for his non- selection, and who possessed no suspicion of discrimination, would not be expected to conclude that he is a victim of race discrimination had he learned that the selectee is of a different race. Therefore, Howard should not be charged with lack of diligence in acquiring awareness of sufficient evidence to trigger the filing of a discrimination charge in 2001. On a separate matter, the Commission takes issue with the district court's statement that to permit Title VII plaintiffs like Howard to wait until sufficient evidence emerges to support their discrimination claims would impose a hardship on the EEOC. Dec. at *2. The district court correctly observes that the EEOC would prefer to find itself investigating events "within the last six months" of the discriminatory act. Id. However, the district court's concern that applying equitable tolling in a case such as this would cause a precipitous influx of untimely charges that would unduly burden the EEOC, is unfounded. The timeliness principle applicable to this case is a longstanding one and there is no reason to believe, and certainly no evidence has been adduced to show, that the Commission's inventory of charges has increased because of it. Accordingly, the Commission simply does not believe that permitting Title VII plaintiffs to pursue claims such as this where the evidence is so compelling and was unknown or unavailable to them until the limitations period had passed would "open the flood gates to reversals and remands allowing the 'grand reservoir' of litigation to overflow." Williams v. North Florida Reg. Med. Ctr., Inc., 164 Fed.Appx. 896, *899 (11th Cir. Jan. 26, 2006) (unpublished).<8> Indeed, given the difficulty of amassing evidence of discrimination in the hiring context, allowing the filing of charges upon discovery of such compelling evidence of discriminatory animus strikes an appropriate balance between the policy consideration underlying the limitations provision in 42 U.S.C. § 2000e-5(e)(1), i.e., to discourage the filing of stale claims, and general enforcement of the goals underlying Title VII. Moreover, limitations provisions are "designed to assure fairness to defendants by preventing the revival of stale claims in which the defense is hampered by lost evidence, faded memories, and disappearing witnesses, and to avoid unfair surprise." Johnson v. Railway Express Agency, 421 U.S. 454, 473, 95 S.Ct. 1716, 1726 (1975) (Marshall, J., concurring). These concerns, however, are not implicated where a defendant has knowingly implemented a discriminatory hiring policy and concealed its existence from job applicants. 3. The Extraordinary Circumstances of this Case Counsel Against Summary Judgment on Equitable Tolling Grounds Finally, the district court clearly did not balance the equities fairly as to both parties because this case presents extraordinary circumstances that compel application of the "rare" exception of equitable tolling. Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir. 2005) ("[i]t is in the nature of equity to entertain case-specific factors that may counsel in favor of tolling"). As the district court observed, this is a "strong case" of race discrimination, Dec. at *2. The record contains statistical evidence that demonstrates a significant disparity in InTown's hiring of Black applicants from which discrimination could be inferred. Mag. Rep. at 9-13, 52-58. It has "rare" direct evidence derived from the testimony of executive managers that InTown had a policy prohibiting the hiring of African Americans as managers in general and Property Managers in particular.<9> Id. at 35-45. The testimony also established that InTown enforced its discriminatory policy. Id. at 38-40. One manager revealed that she feared loss of her job or other retaliation if she failed to obey, id. at 38, and she testified that she in fact discriminated against Howard pursuant to this hiring policy when he applied for a job with InTown. Id. at 38, 60-61. The case also contains concrete circumstantial evidence that this discriminatory policy was enforced at several of InTown's properties. Id. at 39-41, 60. Given this extraordinary proof of discrimination, this case should not be terminated on technical grounds. To affirm summary judgment based on an alleged discriminator's belated timeliness defense would inexcusably perpetrate an injustice on an innocent victim of institutionalized discrimination, despite his efforts to act prudently and expeditiously once he became aware his civil rights had been violated.<10> Such an outcome does not advance Title VII's goals of eradicating racial discrimination in the workplace. Moreover, a reversal would be consistent with this Court's edict that "'no person may take advantage of his own wrong,'" Jones, 331 F.3d at 1264 (quoting Reeb, 516 F.2d at 930), as well as its precedent that equitable tolling is appropriate where "employers seek to avoid liability by observing the letter of the law, while truly ignoring its spirit." Id. Lastly, despite substantial and persuasive record evidence that InTown Suites discriminated against Howard and other Black applicants in hiring, the district court's grant of summary judgment has added insult to injury by requiring Howard to pay $11,286.97 in costs to InTown. This outcome constitutes a fundamental miscarriage of justice. See Justice v. United States, 6 F.3d 1474, 1475 (11th Cir.1993) ("The doctrine of equitable tolling abates the harsh operation of the statute of limitations under certain circumstances in which barring a plaintiff's potentially meritorious action would be unjust."). Although the awarding of costs falls within the discretionary power of the district court, this power is not unfettered. Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1355 (11th Cir. 2005) (a district court exercises discretion in deciding whether to award costs to a prevailing party, but "such discretion is not unfettered"). InTown has been awarded costs in this case solely because its belated statute of limitations argument was fortuitously entertained, rather than deemed waived. Had Howard's evidence seen the light of day, he would likely have prevailed on the merits of his discrimination claim. Accordingly, we urge this Court to reverse the district court's equitable tolling ruling "to prevent an injustice" and to "effectuat[e] the broad remedial purposes of [Title VII]," Reeb, 516 F.2d at 927, such that InTown is precluded from financially benefiting from its wrongdoing and Howard is not penalized for attempting to act as a "private attorney[] general in enforcing the provisions of Title VII." EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602, 101 S.Ct. 817, 824 (1981). Alternatively, if the district court's judgment is affirmed, this Court should at a minimum vacate the costs award. The district court erred in granting summary judgment in this "strong case" of racial discrimination. Equitable tolling should apply because the record is clear that Howard lacked any knowledge of InTown's unlawful employment practices to trigger the filing of an EEOC charge in 2001. Alternatively, the tolling evidence raises triable issues of fact for a jury. Cf. Cocke v. Merrill Lynch & Co., Inc., 817 F.2d 1559, 1561-62 (11th Cir. 1987) (vacating summary judgment in ADEA case because triable fact existed where, "[a]lthough plaintiff was suspicious that the reason he had not been relocated prior to receiving notice of termination was because of his age, he may well have been justified in waiting before resolving that suspicion into a fact he should act upon during the time the employer made a good faith effort to relocate him"). CONCLUSION The Commission urges this Court to reverse the district court's summary judgment in favor of InTown and to remand the case for trial. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) July 3, 2006 CERTIFICATE OF COMPLIANCE Pursuant to 11th Cir. R. 28-1(m) and Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 6,894 words. 2. The brief was prepared in proportionally spaced typeface using Microsoft Word 2003, Times Roman, 14 point. 3. At the Court's request, the undersigned has uploaded an electronic PDF version of the brief to the Court's website. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. Paula R. Bruner CERTIFICATE OF SERVICE This is to certify that on July 3, 2006, two copies of the foregoing brief along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: Edward D. Buckley, Esq. Buckley & Klein 1180 West Peachtree Street Suite 1100, Atlantic Center Plaza Atlanta, Georgia 30309 Alex S. Drummond, Esq. Seyfarth Shaw 1545 Peachtree Street, N.E. One Peachtree Pointe, Suite 700 Atlanta, Georgia 30309-2401 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 July 3, 2006 ADDENDUM 1. District Court Decision 2. Unpublished Decision: Williams v. North Florida Regional Medical Center, Inc., 164 Fed.Appx. 896 (11th Cir. Jan. 26, 2006) 3. Excerpts of EEOC Enforcement Guidance on Threshold Issues Pages 2-80 to 2-83 DISTRICT COURT DECISION UNPUBLISHED DECISION EEOC ENFORCEMENT GUIDANCE ON THRESHOLD ISSUES EXCERPTS ***************************************************************************** <> <1> “DSJ Mot.” refers to InTown’s Summary Judgment Motion. InTown attached several exhibits to its motion. Hence, the first number is the docket entry number and the second number is the attachment number. The page references for the exhibits are to the original page of the document. <2> Interviews ranged from 10 minutes to 1 hour. Mag. Rep. at 4. <3> Although InTown raised the timeliness argument for the first time in its reply, the magistrate permitted Howard to file a sur-reply rather than treating the defense as waived. Mag. Rep. at 16. <4> In TRW Inc. v. Andrews, the Supreme Court stated that application of the discovery rule is appropriate “‘where the cry for [such a] rule is loudest”’ and when the statute is “‘silent on the issue’ of when the statute of limitations begins to run.” 534 U.S. 19, 27, 122 S.Ct. 441, 447 (2001) (internal citation omitted). Title VII governs employment discrimination, an area of law that “cries out for the application of a discovery rule.” Employment discrimination, especially in the hiring context, is difficult to prove because the discriminatory animus can be easily concealed or the unlawful bias is unconscious. In addition, as the majority and concurring opinions in Morgan evinced, Title VII is not clear on the issue of when the statute of limitations actually begins to run. Accordingly, application of the discovery rule is particularly appropriate in the employment discrimination context. <5> In Baldwin County, the Supreme Court observed that there was no basis for the application of the doctrine of equitable tolling to plaintiff’s untimely-filed lawsuit because she knew from the language of her right to sue notice that she had 90 days after its receipt to file a lawsuit. 466 U.S. at 148, 104 S.Ct. at 1724. Instead of filing a lawsuit, plaintiff mailed the right-to-sue notice to the court and requested appointment of counsel. The magistrate ordered plaintiff to complete motion forms to request counsel and reminded her that she had to file a complaint within the 90-day period. Id. At some point, the district court informed her that “to be safe, you should file the petition on or before the ninetieth day after the day of the letter from the EEOC informing you of your right to sue.” Id. at 151, 104 S.Ct. at 1725. The Supreme Court held that, in light of these “reminders,” this “is not a case in which a claimant has received inadequate notice.” Id. <6> Cf. Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 990 (5th Cir. 2005) (reversing summary judgment in favor of employer where an African American plaintiff who unsuccessfully sought permanent employment as a poker dealer with a casino inquired whether his non-hire was due to racism after “he observed that there were no African-Americans working at the Horseshoe as poker dealers at that time”). <7> The Threshold Issues section of the EEOC’s Compliance Manual offers the following example of when equitable tolling applies: Example 1 - On March 15, 1997, CP, an African-American man, was notified by Respondent that he was not hired for an entry-level accountant position. In February 1998, more than 300 days later, CP learned that the selectee, a white woman, was substantially less qualified for the position than CP. CP filed a charge of race and sex discrimination on March 15, 1998. The charge would be treated as timely because he filed promptly after acquiring information that led him to suspect discrimination. EEOC Compliance Man. § 2-IV.D(1) at 2-82. This example wholly supports the Commission’s position in this case because Howard did not learn that his race was an issue in the employment decision or whether the selectee was less qualified and of a different race until well beyond the date of his non-selection. Thus, the district court should have treated his charge as timely since he filed a charge within a few months after learning that he had been a victim of discrimination. <8> The district court’s due diligence standard is more likely to open a floodgate of charges and lawsuits if job applicants are required to file federal lawsuits “whenever they were not hired and learned that someone outside of their protected class was hired.” Mag. Rep. at 21. As the magistrate stated, “[t]his result . . . would burden employers to defend and federal courts to decide a multitude of frivolous suits.” Id. In like manner, as the first point of law enforcement in the EEO process, the Commission would also be unduly burdened. Thus, the Commission believes the better rule is to permit a plaintiff to file a charge when he reasonably became aware that the act was discriminatory. <9> Direct evidence of discrimination, not just animus, is rarely available to the plaintiff. See Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). Thus, this direct evidence case calls for employer accountability. <10> Ironically, InTown waited until its reply brief to raise the statute of limitations argument, despite its awareness at the time of its motion for summary judgment that Howard was not hired in 2001, but did not file a charge until 2003. Mag. Rep. at 15. The magistrate and district court made an exception and entertained this untimely argument. KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321, 1328 n.4 (11th Cir. 2004) (an issue is generally waived if it is raised for the first time in a reply brief). In fairness, the district court should have invoked the same equities it apparently applied when it entertained InTown’s belated timeliness argument, to permit Howard, an innocent applicant who had no knowledge that he had been subjected to discrimination at the time the unlawful employment practice occurred, to pursue his Title VII claim.