Butler, CHIEF DISTRICT JUDGE.
This matter is before the Court on the defendant's Motion to Dismiss or Alternative Motion for More Definite Statement. (Doc. 13). The defendant has filed a brief in support of its motion, (Doc. 14), and the plaintiff has filed a response. (Doc. 16). For the reasons set forth below, the Court concludes that the defendant's motion to dismiss is due to be granted.
The plaintiff, who is proceeding pro se in this action, is a former employee of the defendant. The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in March 1999. (Doc. 1 at 3). The EEOC issued a Dismissal and Notice of Rights letter ("Notice") on October 5, 1999. (Doc. 1 Attachment). The Notice was sent by certified mail, return receipt requested, to the plaintiff at her residence address as reflected in her complaint. (Doc. 1 Attachment). The Notice expressly states, in boldface lettering, that any lawsuit "must be filed WITHIN 90 DAYS from your receipt of this Notice." (Id. (emphasis in original)).
Such notices are commonly referred to as "right-to-sue letters." See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 (1984).
The plaintiff admits she "received this notice on October 13, 1999." (Doc. 16). The plaintiffs complaint, alleging violations of Title VII, was filed on January 18, 2000, (Doc. 1 at 1), 97 days after her October 13, 1999 receipt of the Notice. The defendant moves to dismiss the complaint on the grounds that the plaintiff has failed to satisfy the 90-day limitations period referenced in the Notice and codified at 42 U.S.C. § 2000e-5 (f)(1).
The complaint alleges the plaintiff received the Notice on December 13, 1999. (Doc. 1 at 3). In correspondence submitted along with her complaint, however, the plaintiff acknowledges being "unable to make the deadline" for filing suit. (Doc. 2). The defendant's alternate motion for more definite statement seeks clarification of the actual date the plaintiff received the Notice. (Doc. 14 at 6). Given the plaintiff's subsequent admission that she received the Notice on October 13, 1999, the defendant's motion for more definite statement is moot.
The plaintiff has clearly failed to satisfy Title VII's 90-day filing requirement. The defendant's motion to dismiss is therefore due to be granted unless the plaintiff has established grounds for equitably tolling the 90-day period. The plaintiff, in an effort to invoke equitable tolling, states that she "was unable to make the deadline" due to various circumstances discussed below. (Docs. 2, 16).
In Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), the Supreme Court held that Title VII's requirement that a charge of discrimination be filed with the EEOC by a non-federal employee within 180 days of the discriminatory action complained of "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 393. In Baldwin County Welcome Center v. Brown, 466 U.S. 1147 (1984), the Supreme Court assumed without deciding that the same principle applies to Title VII's requirement that a non-federal employee file a civil action in state or federal court within 90 days of receiving a right-to-sue letter. Id. at 150-52.
Both before and after Baldwin County Welcome Center, the Eleventh Circuit has extended equitable tolling principles to Title VII's 90-day filing requirement. See, e.g., Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993); Suarez v. Little Havana Associates, 721 F.2d 338, 340 (11th Cir. 1983); see also Lee v. United States Postal Service, 774 F.2d 1067, 1069 n. 2 (11th Cir. 1985) (extending equitable tolling principles to Title VII's requirement that federal employees file a civil action within 30 days (now 90 days) of receiving a right-to-sue letter); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1393 (11th Cir.), cert. denied, 525 U.S. 1019 (1998) (extending equitable tolling principles to the 90-day filing requirement under the Age Discrimination in Employment Act ("ADEA") and Civil Rights Act of 1991 ("CRA")); Browning v. ATT Paradyne, 120 F.3d 222, 225-27 (11th Cir. 1997)(same).
Because the Eleventh Circuit and other courts have cited precedents from each of these contexts interchangeably in analyzing equitable tolling under Title VII and other employment discrimination statutes, this Court will do likewise.
Although the doctrine of equitable tolling may thus be applied to Title VII filing requirements, its scope is extremely limited. "The Supreme Court has made clear that tolling is an extraordinary remedy which should be extended only sparingly." United States v. Justice, 6 F.3d 1474, 1479 (11th Cir. 1993) (emphasis added) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). The burden of proof is on the plaintiff to show that this "extraordinary remedy" is warranted. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir. 1993), cert. denied, 513 U.S. 814 (1994).
While Justice was not a Title VII case, Irwin was.
After reviewing Supreme Court and Fifth Circuit precedent, the former Fifth Circuit in Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979), identified only three situations in which Title VII's 180-day requirement could be equitably tolled: (1) "during the pendency of an action before a state court which had jurisdiction over the subject matter of the suit, but which was the wrong forum under state law"; (2) "until the claimant knew or should have known the facts which would give rise to his Title VII claim"; and (3) "when the EEOC misleads a complainant about the nature of his rights under Title VII." Id. at 1302-03; accord Manning v. Carlin, 786 F.2d 1108, 1109 (11th Cir. 1986) (extending Chappell to Title VII's charge-filing period for federal employees).
Decisions of the former Fifth Circuit handed down before the close of business on September 30, 1981 constitute binding precedent within the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
The Chappell circumstances may also permit equitable tolling of the limitations period for filing a civil action. Washington v. Ball, 890 F.2d 413, 415 (11th Cir. 1989) (federal employee). The Washington Court added a fourth circumstance under which equitable tolling may be appropriate: "when a plaintiff is misled by the court." Id.
None of the circumstances identified in Chappell and Washington exists, or is even alleged to exist, in this case. Instead, the plaintiff identifies the following reasons for her failure to comply with the 90-day filing requirement: (1) delay in receiving the EEOC file from the agency; (2) her efforts to retain an attorney; and (3) neck pain from a motor vehicle accident. (Docs. 2, 16) As discussed below, these circumstances furnish no basis for invoking the narrow doctrine of equitable tolling.
While Chappell, Washington and like cases have not ruled out the possibility that other circumstances might justify equitable tolling, "the principle of equitable tolling does not extend `to what is at best a garden variety claim of excusable neglect [by the plaintiff].'" Bryant v. United States Department of Agriculture, 967 F.2d 501, 504 (11th Cir. 1992) (quoting Irwin v. Veterans Administration, 498 U.S. at 96). As this Court recently noted, "`[a]s a general rule, equitable tolling is a remedy reserved for circumstances that are "truly beyond the control of the plaintiff."'" Dees v. Associates Financial Co., Civil Action No. 97-1199-CB-M (Doc. 70 at 8) (quoting Shempert v. Harwick Chemical Corp., 151 F.3d 793, 797 (8th Cir. 1998), cert. denied, 525 U.S. 1139 (1999); see also Smith v. American President Lines, Ltd., 571 F.2d 102, 108 (2d Cir. 1978) (to trigger equitable tolling, the plaintiff must have "in some extraordinary way been prevented from asserting his rights"); Begay v. St. Joseph's Indian School, 922 F. Supp. 270, 273 (D.S.D. 1996) (the plaintiffs personal schedule did not trigger equitable tolling because it was not "beyond her control").
The Eleventh Circuit has utilized equitable tolling in the employment discrimination context in two additional situations, neither of which is presented here. First, despite the normal rule that the 90-day period begins to run upon delivery of the right-to-sue letter to the plaintiff's residence address, the filing period may sometimes be equitably tolled when the plaintiff does not actually receive notice of his right to sue. See, e.g., Stallworth v. Wells Fargo Armored Services Corp., 936 F.2d 522, 524-25 (11th Cir. 1991) (although the plaintiff was not living at her residence address, she checked the mail frequently and requested the EEOC to send a copy to her attorney). Second, the filing period may sometimes be equitably tolled when the plaintiff timely files defective paperwork. See, e.g., Goldsmith v. City of Atmore, 996 F.2d 1155, 1158, 1161 (11th Cir. 1993) (the plaintiff timely filed her right-to-sue letter along with a memorandum summarizing her allegations; both the EEOC and the Court misled her into believing her filing was sufficient). Here, the plaintiff admits receiving the Notice on October 13, 1999, thereby triggering the 90-day period, and further admits filing nothing prior to January 18, 2000.
The EEOC's delay in forwarding the plaintiff's file does not justify equitable tolling for several reasons. First, it is neither legally nor practically necessary for the EEOC file to be in the plaintiff's possession prior to filing a complaint. The form complaint filed by the plaintiff contains little factual information and none that was exclusively in the EEOC's possession. While an attorney might well desire to review the EEOC file before accepting representation, as discussed below the plaintiff's efforts to obtain counsel do not themselves furnish grounds for equitable tolling.
Even if the plaintiff truly required possession of the EEOC file before filing suit, she admits she received the file on December 2, 1999. (Doc. 16). At that point, the plaintiff still had 40 days in which to file a timely complaint, so that the EEOC's delay in forwarding the file could not have caused her complaint to be untimely filed. Other courts have refused to invoke equitable tolling when a significant portion of the 90-day period expired before the plaintiff even learned that a right-to-sue letter had been issued. See, e.g., Vogel v. American Home Products Corp. Severance Pay Plan, 1997 WL 577578 at 3 (4th Cir. 1997) (no equitable tolling when the plaintiff learned of the right-to-sue letter only ten days before the 90-day period expired); Beale v. Burlington Coat Factory, 36 F. Supp.2d 702, 705 (E.D. Va. 1999) (no equitable tolling when only 60 days remained; see also cases cited therein). The plaintiff, who had a full 90 days advance notice of her filing deadline, cannot invoke equitable tolling because she received the EEOC file only 40 days before the filing deadline.
The plaintiff delayed from October 13, 1999 to October 22, 1999 in requesting the EEOC file. (Doc. 16). Had she more promptly requested the file, she presumably would have received it more promptly.
The plaintiffs efforts to obtain legal representation are likewise insufficient to permit equitable tolling. A plaintiff is not required to prosecute a lawsuit with counsel but may proceed pro se, and the lack of legal representation does not trigger equitable tolling. Barrow v. New Orleans Steamship Association, 932 F.2d 473, 478 (5th Cir. 1991)(ADEA). Cf. Raziano v. United States, 999 F.2d 1539, 1541 (11th Cir. 1993) (Suits in Admiralty Act) (efforts to informally settle the dispute did not warrant equitable tolling).
The plaintiff, who in fact filed her complaint pro se, clearly was aware that she could do so. Even if she were not, her error constitutes exactly the sort of "excusable neglect" whose effects may not be undone through application of equitable tolling. See, e.g., Wakefield v. Railroad Retirement Board, 131 F.3d 967, 970 (11th Cir. 1997)("Ignorance of the law usually is not a factor that can warrant equitable tolling.").
Finally, the plaintiff's neck pain following her December 26, 1999 motor vehicle accident does not support equitable tolling. Assuming that a plaintiff's physical or mental incapacity may provide grounds for equitable tolling, the plaintiff's evidence does not support such tolling in this case. The ninetieth and final day to timely file a complaint was January 11, 2000. Six days earlier, on January 5, 2000, the plaintiff's chiropractor noted simply that the plaintiff "is under my care for injuries [identified as neck sprain] she received in a motor vehicle collision," with no suggestion that the plaintiff was incapacitated. (Doc. 2, Attachment). Indeed, the plaintiff dated her complaint January 16, 2000, (Doc. 1 at 4), while still under her chiropractor's care. (Doc. 2 Attachment).
The police report of the December 26, 1999 accident reflects the plaintiff's vehicle was traveling five miles per hour and the other vehicle one mile per hour, (Doc. 2 Attachment), speeds that do not suggest incapacitating injury or pain.
See Branch v. G. Bernd Co., 955 F.2d 1574, 1576, 1581 (11th Cir. 1992)(60-day election period under COBRA was tolled when the employee was incapacitated from gunshot wounds). But see Hays v. Republic Steel Corp., 531 F.2d 1307, 1310 (5th Cir. 1976)(ADEA) (where the plaintiff prepared a notice of intent to sue but never filed it with the Department of Labor after falling ill and being hospitalized, "[t]his court cannot waive a limitation period established by Congress . . . ."); Cox v. Sears, Roebuck Co., 1994 WL 143019 at 3 (M.D. Fla. 1994) (ADEA) (doubting the availability of equitable tolling on grounds of mental incapacity because it does not fall within the circumstances identified in Chappell and Manning).
In sharp contrast, the employee in Branch v. G. Bernd Co. was "semi-comatose" and later died. 955 F.2d at 1576; see also Cox v. Sears, Roebuck, 1994 WL 143019 at 4 ("Mental incapacity has only been held to toll time limitations under the most exceptional circumstances.").
The plaintiff's pro se status does not alter the analysis or the result. In Baldwin County Welcome Center v. Brown, the pro se plaintiff filed in federal court a right-to-sue letter rather than a complaint. The Supreme Court held that a right-to-sue letter is not a "complaint" under Federal Rules of Civil Procedure 3 and 8 and that the filing of a right-to-sue letter does not equitably toll Title VII's 90-day filing period. 466 U.S. at 149-52. While the dissent suggested the Court "should be more solicitous of the pleadings of [a] pro se litigant," id. at 150 n. 4, the Court admonished that "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants." Id. at 152; see also Wakefield v. Railroad Retirement Board, 131 F.3d at 970 (refusing to apply equitable tolling based on the plaintiffs pro se status); Barrow v. New Orleans Steamship Association, 932 F.2d at 478 (same); White v. Bethlehem Steel Corp., 900 F. Supp. 51, 53 (E.D. Tex. 1995)(same); Jett v. Drummond Co., 1989 WL 180683 (N.D. Ala. 1989)(same).
While the Court sympathizes with the plaintiff's plight, it must, as the Supreme Court commands, follow the law concerning equitable tolling regardless of "sympathy for particular litigants." Accordingly, the defendant's motion to dismiss is granted. Judgment shall be entered accordingly by separate order.
DONE this the 16th day of May, 2000.
FINAL JUDGMENT