Case No. 02-51272 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________ ROBIN MARTIN, Plaintiff-Appellant, v. ALAMO COMMUNITY COLLEGE DISTRICT, Defendant-Appellee. __________________________________________________________ On Appeal from the United States District Court for the Western District of Texas, Case No. SA-00-CA-1278-OG, The Honorable Orlando L. Garcia, Presiding __________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae Supporting Plaintiff-Appellant __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Statement of Facts 2 B. District Court Decision 4 STANDARD OF REVIEW 5 SUMMARY OF ARGUMENT 6 ARGUMENT THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO EQUITABLY TOLL THE 90-DAY LIMITATIONS PERIOD IN THIS CASE. 7 CONCLUSION 13 CERTIFICATE OF COMPLIANCE 14 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) 8, 10 Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642 (5th Cir. 1988) 7 Chappell v. Emco Mach. Works Co., 601 F.2d 1295 (5th Cir. 1979) 7 Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992) 9 Espinoza v. Mo. Pacific R.R. Co., 754 F.2d 1247 (5th Cir. 1985) 7 Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857 (10th Cir. 1983) 11 Gray v. Phillips Petroleum Co., 858 F.2d 610 (10th Cir. 1988) 12 Hood v. Sears Roebuck & Co., 168 F.3d 231 (5th Cir. 1999) 7 Lawrence v. Cooper Communities, Inc., 132 F.3d 447 (8th Cir. 1998) 8, 9 Martinez v. Orr, 738 F.2d 1107 (10th Cir. 1984) 12 Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985) 9 Montoya v. Chao, 296 F.3d 952 (10th Cir. 2002) 5 Pacheco v. Rice, 966 F.2d 904 (5th Cir. 1992) 8 Page v. U.S. Indus., Inc., 556 F.2d 346 (5th Cir. 1977) 7, 9 Ramirez v. City of San Antonio, 312 F.3d 178 (5th Cir. 2002) 7, 9 St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43 (5th Cir. 1995) 8 Teemac v. Henderson, 298 F.3d 452 (5th Cir. 2002) 5 United States v. Patterson, 211 F.3d 927 (5th Cir. 2000) 10 Warren v. Dep't of the Army, 867 F.2d 1156 (8th Cir. 1989) 12 Washington v. Ball, 890 F.2d 413 (11th Cir. 1989) 11 DOCKETED CASES Martin v. Alamo Community College District, No. SA-99-CV-1458-EP 3 FEDERAL STATUTES, REGULATIONS AND RULES Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 42 U.S.C. § 2000e-5(f)(1) 4 29 C.F.R. § 1601.19(b) 5, 6 Fed. R. App. P. 29(a) 1 Fed. R. App. P. 32(a)(7)(B) 14 Fed. R. Civ. P. 59(e) 4 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for the administrative processing of employment discrimination charges filed under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101 et seq., and other federal equal employment opportunity statutes. In this private ADA action, the district court abused its discretion by refusing to equitably toll the 90-day statute of limitations period for filing a federal lawsuit. The plaintiff's reasonable reliance on representations both by EEOC that her Dismissal and Notice of Rights had been rescinded and by the district court that she could file a lawsuit in federal court at a later date caused her to fail to comply with the limitations period. Because of the plaintiff's detrimental reliance on EEOC and the district court's representations, coupled with the important policy concerns against penalizing a plaintiff who has acted reasonably and with due diligence, the Commission offers its views to the Court. See Fed. R. App. P. 29(a) (authorizes a government agency to file an amicus curiae brief “without the consent of the parties or leave of court”). STATEMENT OF THE ISSUE Whether the district court abused its discretion by refusing to equitably toll the 90-day statute of limitations period for filing a federal lawsuit where the plaintiff reasonably relied to her detriment on representations both by EEOC that her Dismissal and Notice of Rights had been rescinded and by the district court that she could file a lawsuit in federal court at a later date.<1> STATEMENT OF THE CASE A. Statement of Facts EEOC issued Robin Martin a Dismissal and Notice of Rights letter dated September 17, 1999, having determined that the evidence presented did not establish any violation of the ADA by Alamo Community College District (Alamo). R.56 (Pl.'s Motion for New Trial) Exh. A.<2> The letter indicated that Martin had 90 days from receipt of that notice in which to file a lawsuit in federal district court. Id. In a letter dated December 7, 1999 (but not mailed until December 17, 1999), EEOC informed Martin that “the investigation of [her] charge has been reopened, [and] the Dismissal and Notice of Rights issued on September 17, 1999 with regard to the above referenced charge of discrimination is rescinded.” R.56 Exh. B. On December 17, 1999 — the same day that EEOC mailed the letter rescinding the Dismissal and Notice of Rights — Martin filed a lawsuit in district court. See Martin v. Alamo Community College District, No. SA-99-CV-1458-EP. After receiving EEOC's letter dated December 7, 1999, Martin reasonably believed that she no longer had a right to be in district court as her administrative charge had been reopened for further investigation and the Dismissal and Notice of Rights rescinded. R.56 Exh. F at ¶¶ 4,8. As such, she never served Alamo with the summons and complaint filed in district court. R.56 Exh. F at ¶ 8. Indeed, in response to the district court's order to show cause as to why Martin's case should not be dismissed for failure to prosecute, Martin explained that “the investigation of her charge had been reopened and the Dismissal and Notice of Rights issued on September 17, 1999 was rescinded.” R.56 Exh. F at ¶ 4. She further stated that “[w]ithout permission from the EEOC, [she] could not proceed with her lawsuit,” and therefore was “waiting on a new right to sue letter from the EEOC or the Department of Justice.” R.56 Exh. F at ¶¶ 7-8. Finally, Martin asked the district court to “allow [the] action to remain on the docket” until she received new authorization to be in federal court. R.56 Exh. F at ¶ 10. EEOC issued Martin a new letter of determination dated March 29, 2000, finding that based upon further investigation the Commission had reason to believe that she had been discriminated against because of her disability. R.56 Exh. D. On June 28, 2000, the district court (Prado, J.) dismissed Martin's lawsuit without prejudice. R.56 Exh. G. Notably, the district court's order stated that Martin “may re-file her case when the EEOC issues a new right to sue letter.” Id. On August 18, 2000, the Department of Justice completed its review of Martin's EEOC charge file and issued Martin a new right to sue letter pursuant to 42 U.S.C. § 2000e-5(f)(1). R.56 Exh. H. Martin filed a new lawsuit on November 16, 2000. R.1 (Complaint). On August 21, 2002, the district court (Garcia, J.) granted summary judgment to Alamo, finding that Martin's lawsuit was untimely because it was not filed within 90 days of EEOC's first Dismissal and Notice of Rights issued to Martin on September 17, 1999. R.53 (Order granting Def. Motion for Summary Judgment). Martin subsequently filed a motion for new trial. R.56. B. District Court Decision On November 1, 2002, the district court (Garcia, J.) issued an opinion denying Martin's motion for new trial (treated as a motion to alter or amend the summary judgment decision pursuant to Fed. R. Civ. P. 59(e)). R.58 (Order denying Pl.'s Motion for New Trial). In reaching this conclusion, the district court, relying on EEOC's regulation at 29 C.F.R. § 1601.19(b), found that “two conditions precedent must be met before the reconsideration notice will vacate the right to sue: (1) the notice must issue within the 90-day period within which the charging party must file suit, and (2) that party must not have filed suit.” Id. at 3. Although the notice was received within the 90-day period, the district court held that Martin “did not satisfy the second condition precedent because she had filed suit.” Id. Accordingly, the district court reasoned that EEOC's letter dated December 7, 1999 rescinded only the earlier no-cause determination, but not Martin's right to sue notice. The district court also rejected Martin's argument for applying equitable tolling to the 90-day suit-filing period, finding that Martin had not asserted that “she was actively precluded or dissuaded by the EEOC from prosecuting her suit.” Id. Interpreting Martin's claim as one of “[i]gnorance of the law,” the district court concluded that equitable tolling was not applicable in this case. Id. at 4. STANDARD OF REVIEW A district court's denial of equitable tolling is reviewed under an abuse of discretion standard. See Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). Equitable tolling may be appropriate “where a plaintiff has been ‘lulled into inaction by ... state or federal agencies, or the courts.'” Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002) (citation omitted). SUMMARY OF ARGUMENT The district court abused its discretion by failing to apply equitable tolling to the 90-day statute of limitations in this case.<3> The facts of this case clearly demonstrate that Martin failed to pursue a timely lawsuit against Alamo only because she was affirmatively misled by the Commission into believing that she could not proceed with her lawsuit because EEOC had rescinded her Dismissal and Notice of Rights. The district court compounded this error when it refused Martin's specific request to hold her case in abeyance and instead dismissed it without prejudice, informing her that she could file a new complaint at a later date. Martin's reasonable reliance on this misinformation, her due diligence in pursuing her claim, and the lack of any prejudice to Alamo all compel application of equitable tolling in this case. The district court's incorrect and unfair characterization of Martin's equitable tolling argument as one of “ignorance of the law” (rather than detrimental reliance on representations by EEOC and the district court) strongly suggests that it misapplied the appropriate legal standard for determining when equitable tolling should be granted. Had the district court applied the proper legal standard to the compelling facts of this case, it would have equitably tolled the 90-day suit-filing period. ARGUMENT THE DISTRICT COURT ABUSED ITS DISCRETION BY REFUSING TO EQUITABLY TOLL THE 90-DAY LIMITATIONS PERIOD IN THIS CASE. It is well settled that equitable considerations may toll the time period for filing a lawsuit alleging violations of federal anti-discrimination laws. See Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985) (holding that EEOC's 90-day filing requirement is akin to a statute of limitations and thus subject to equitable tolling). The Fifth Circuit has long recognized that equitable tolling may apply “when the EEOC misleads the claimant about the nature of her rights.” Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999); see also Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642, 644 (5th Cir. 1988); Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979). Recently, the Fifth Circuit elaborated on this issue, stating that to prevail on such a claim for equitable tolling, “[i]t is not sufficient for [plaintiff] to show that the EEOC failed to give him some relevant information; he must demonstrate that the EEOC gave him information that was affirmatively wrong.” Ramirez v. City of San Antonio, 312 F.3d 178, 184 (5th Cir. 2002). Thus, when a plaintiff has reasonably relied to her detriment on incorrect representations from EEOC, courts have permitted equitable tolling. See Page v. U.S. Indus., Inc., 556 F.2d 346, 351 (5th Cir. 1977) (allowing equitable tolling where plaintiff filed complaint late because he reasonably relied on erroneous information from EEOC); Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 452 (8th Cir. 1998) (permitting equitable tolling where plaintiff reasonably relied to his detriment on EEOC's representation that he had filed a formal charge of discrimination). In addition, the Fifth Circuit, following the Supreme Court's decision in Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984), has found that equitable tolling may be appropriate when “the court itself has led the plaintiff to believe that she has done everything required of her.” St. Louis v. Tex. Worker's Comp. Comm'n, 65 F.3d 43, 47 (5th Cir. 1995). In any event, when considering claims for equitable tolling, courts — including the Fifth Circuit — routinely look at other factors, such as whether the plaintiff acted with “due diligence” in pursuing her rights, Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992), and whether the defendant was “prejudiced” by the plaintiff's failure to comply with the relevant statute of limitations, Baldwin County Welcome Ctr., 466 U.S. at 151. Relying on EEOC's Dismissal and Notice of Rights letter dated September 17, 1999, Martin filed suit in district court near the end of the 90-day period to safeguard her right to sue. On the same day that she filed her complaint, EEOC issued to her a letter dated December 7, 1999 clearly indicating that her Dismissal and Notice of Rights had been rescinded and her administrative charge reopened for investigation. Martin was “entitled to rely on this seemingly authoritative statement by the agency presumed to know the most about these matters.” Page, 556 F.2d at 351 (equitable tolling applied where EEOC misled plaintiff into reasonably believing that she had 90 days after receiving second notice in which to file a lawsuit). In this letter, the Commission in effect dissuaded Martin from pursuing her lawsuit by telling her that she no longer had the right to sue in federal court. Indeed, EEOC gave Martin “information that was affirmatively wrong,” Ramirez, 312 F.3d at 184; that is, her Dismissal and Notice of Rights in fact had not been rescinded because she already had filed suit at the time she received EEOC's letter. Nevertheless, Martin reasonably believed that the Commission had rescinded her right to be in federal court and, as a result, never served the summons and complaint on Alamo believing that “[w]ithout permission from the EEOC, [she] could not proceed with her lawsuit.” R.56 Exh. F at ¶ 8. This type of detrimental reliance on misleading information by EEOC is classic grounds for equitable tolling. See, e.g., Lawrence, 132 F.3d at 452 (equitable tolling allowed where “[plaintiff's] failure to file a timely charge arose from the EEOC's misconduct which is a circumstance beyond [plaintiff's] control and constitutes excusable neglect”); Early v. Bankers Life & Cas. Co., 959 F.2d 75, 81 (7th Cir. 1992) (“Misleading conduct by the EEOC can be a basis for tolling the administrative statute of limitations.”); Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985) (“equitable tolling may be appropriate when a plaintiff has been lulled into inaction by ... federal agencies”) (internal quotation marks omitted). Equitable tolling of the limitations period in this case is further supported by the actions of the district court, which led Martin “to believe that she had done everything required of her.” Baldwin County Welcome Ctr., 466 U.S. at 151. During the time between Martin's receipt of EEOC's March 29, 2000 letter of determination and the Department of Justice's August 18, 2000 right to sue letter, the district court issued Martin an order to show cause as to why her case should not be dismissed for failure to prosecute. R.56 Exh. E. Martin responded, first explaining that EEOC had rescinded the Dismissal and Notice of Rights and then asking the district court to “allow th[e] action to remain on the docket until [she] receives the new right to sue letter,” at which time Alamo would be served. R.56 Exh. F at ¶¶ 4,10. The district court, however, refused her request and dismissed Martin's case without prejudice on June 28, 2000. R.56 Exh. G. In its order, the district court clearly stated that Martin “may re-file her case when the EEOC issues a new right to sue letter.” Id. Thus, according to the district court and as far as Martin was aware, she had done everything that was required of her to safeguard her right to sue. See United States v. Patterson, 211 F.3d 927, 931-32 (5th Cir. 2000) (applying equitable tolling where district court order dismissed plaintiff's case without prejudice and unintentionally misled him into believing that he could re-file a petition at a later date); Washington v. Ball, 890 F.2d 413, 415 (11th Cir. 1989) (granting equitable tolling for plaintiff's untimely complaint because “he should not be penalized for following the instructions of the district court”); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983) (holding that 90-day suit-filing period equitably tolled where district court clerk misled plaintiff about filing requirements). In addition, Martin acted reasonably and with due diligence throughout the relevant time period. When EEOC concluded its supplemental investigation, the agency issued Martin a letter dated March 29, 2000 indicating that it had found reason to believe that she had been discriminated against because of her disability. R.56 Exh. D. Martin received this letter within the 120-day period for serving the summons and complaint upon Alamo, and would have done so but for the fact that she was still “waiting on a new right to sue notice from the EEOC or the Department of Justice.” R.56 Exh. F at ¶ 7. In fact, during this time period, Martin specifically requested a right to sue letter from EEOC and the Department of Justice. When she finally received the new right to sue letter from the Department of Justice on August 18, 2000, she filed a new lawsuit within 90 days, reasonably believing that the suit would be timely given the representations by both EEOC and the district court. Thus, the evidence demonstrates that far from sleeping on her rights, Martin “acted with utmost diligence, pursuing [her] claim first through administrative channels and ultimately to th[e] court.” Martinez v. Orr, 738 F.2d 1107, 1112 (10th Cir. 1984) (finding that plaintiff did not “attempt to revive a long stale claim or otherwise circumvent the statutory period at issue”); see also Warren v. Dep't of the Army, 867 F.2d 1156, 1160 (8th Cir. 1989) (equitable tolling warranted where “record reveals that [plaintiff] acted with utmost diligence, only to find himself caught up in an arcane procedural snare”) (internal quotation marks and citation omitted). Finally, Alamo has not alleged any prejudice resulting from Martin's delay in maintaining her lawsuit. Alamo received all communications from EEOC and the Department of Justice at the same time Martin received them, including EEOC's letter dated December 7, 1999 indicating that its prior Notice and Dismissal of Rights had been rescinded, EEOC's letter dated March 29, 2000 stating that EEOC had found discrimination in Martin's charge, and the Department of Justice's right to sue letter dated August 18, 2000. R.56 Exhs. C, D, H. See Gray v. Phillips Petroleum Co., 858 F.2d 610, 616 (10th Cir. 1988) (finding that defendant was not prejudiced by delayed filing because it “not only was fully apprised of the filing of plaintiffs' charges but also participated fully in the EEOC proceedings”). Accordingly, this Court should equitably toll the limitations period in Martin's case and hold that she filed her lawsuit in a timely manner. CONCLUSION The district court abused its discretion by refusing to equitably toll the 90-day statute of limitations in Martin's case. We believe that the record evidence overwhelmingly demonstrates that Martin reasonably relied to her detriment on representations by EEOC and the district court thus warranting equitable tolling in this case. For the foregoing reasons, this Court should reverse the district court's ruling and remand this case for further proceedings. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 3,034 words, and was prepared using the WordPerfect 9.0 processing system in 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ___________________________ LOUIS LOPEZ CERTIFICATE OF SERVICE I, Louis Lopez, hereby certify that on the 27th day of January 2003, I caused: (1) copies of the attached brief; (2) a diskette containing the brief in an Adobe Acrobat PDF format; and (3) a copy of my appearance form to be sent by first-class U.S. mail, postage prepaid, to the following: Clerk of the Court U.S. Court of Appeals for the Fifth Circuit 600 Camp Street New Orleans, LA 70130 Malinda Ann Gaul Gaul & Dumont 105 S. St. Mary's St., Suite 950 San Antonio, TX 78205 Attorney for Appellant Mark Anthony Sanchez Gale, Wilson & Sanchez, P.L.L.C. 115 E. Travis, Suite 618 San Antonio, TX 78205 Attorney for Appellee ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 1 We take no position on any other issue raised in this appeal. 2 Record references are denoted “R.__” and correspond to the numbered docket entries in the district court docket. 3 We do not argue that the district court's interpretation of EEOC's regulation at 29 C.F.R. § 1601.19(b) is incorrect.