Tyquisha Stamper v. Duval County School Board

Filing

Opinion issued by court as to Appellant Tyquisha M. Stamper. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11788
________________________
D.C. Docket No. 3:13-cv-00079-BJD-JRK

TYQUISHA M. STAMPER,
Plaintiff-Appellant,
versus
DUVAL COUNTY SCHOOL BOARD,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_______________________
(July 18, 2017)
Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and
MOORE, * District Judge.
WILLIAM PRYOR, Circuit Judge:

*

Honorable K. Michael Moore, United States District Chief Judge for the Southern District of
Florida, sitting by designation.

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This appeal requires us to decide whether the Equal Employment
Opportunity Commission revived an employee’s claim of discrimination—
otherwise barred by the statute of limitations—when it vacated a two-year-old
dismissal of the employee’s administrative charge and the Department of Justice
issued the employee a new notice of the right to sue her employer. If the
Commission cannot, we must also decide whether the employee’s mental health
condition equitably tolled the limitations period for her claim of discrimination. In
2007, Tyquisha Stamper filed with the Commission a charge of race and disability
discrimination against her employer, the Duval County School Board, 42 U.S.C.
§§ 2000e-2, 12112. In 2009, the Commission dismissed Stamper’s charge and
provided her notice of her right to sue the Board within 90 days, but Stamper failed
to file suit within that period. In 2011, she filed a request for reconsideration with
the Commission, which then vacated the dismissal of her first charge. The
Department of Justice later granted Stamper’s request for a new notice of her right
to sue about the same allegations of discrimination, and she filed suit within 90
days of the second notice. But the district court dismissed Stamper’s complaint as
untimely because she failed to file it within 90 days of receiving the first notice of
her right to sue and failed to establish that she was entitled to equitable tolling of
the limitations period. Because the Commission lacked the authority to issue the

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second notice of the right to sue and Stamper failed to establish she was entitled to
equitable tolling, we affirm.
I. BACKGROUND
In 2007, Stamper filed with the Commission a charge of race and disability
discrimination against the Board. On February 26, 2009, the Commission
dismissed her charge because it could not “conclude that the information obtained
[in its investigation] establishe[d] violations of the statutes.” The Commission also
provided Stamper notice that she could file a lawsuit against the Board based on
the conduct alleged in her charge within 90 days of her receipt of the notice.
Stamper failed to file suit within that period.
More than two years later, on July 19, 2011, Stamper filed a request for
reconsideration with the Commission. On December 15, 2011, the Commission
sent Stamper a “Notice of Revocation” that “vacate[d] th[e] dismissal [of
Stamper’s first charge] and revoke[d] the letter terminating processing of th[at]
charge.” The Commission stated that it issued the notice under a regulation that
permits the Commission to reconsider a decision to dismiss a charge. See 29 C.F.R.
§ 1601.19(b).
Stamper then filed a second charge against the Board based on the same
allegations in her first charge, and she requested another notice of her right to sue,
which the Department of Justice sent her on November 5, 2012. The Department of

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Justice, instead of the Commission, issued the second notice of Stamper’s right to
sue based on a regulation that requires that the Attorney General issue the notice of
the right to sue when a party files a charge against a government, governmental
agency, or political subdivision and requests a notice of the right to sue. See 29
C.F.R. § 1601.28(d)(2). Whether the Commission or the Department of Justice
issued the second notice of the right to sue makes no difference in this appeal.
On January 18, 2013, Stamper filed a pro se complaint against the Board
that alleged that it had discriminated against her on the basis of race and disability
in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and
Title I of the Americans with Disabilities Act, id. § 12111, et seq., and caused her
to develop catatonic schizophrenia. The Board moved to dismiss the complaint as
untimely because Stamper failed to sue within 90 days of receiving the first notice
of her right to sue. The district court agreed that Stamper’s complaint was
untimely, but denied the motion to dismiss without prejudice to permit limited
discovery about whether equitable tolling was warranted. After discovery, the
district court granted summary judgment in favor of the Board. It found that
Stamper could have pursued her lawsuit within the original 90-day period, and
even if she could not have done so, she failed to justify her more than three-year
delay in filing suit.

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II. STANDARD OF REVIEW
“This Court reviews de novo summary judgment rulings and draws all
inferences and reviews all evidence in the light most favorable to the non-moving
party.” Craig v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011) (quoting Moton
v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that Stamper’s
complaint is untimely because the second notice of her right to sue—issued after
her original limitations period expired—failed to revive the limitations period.
Second, we explain that Stamper failed to establish that she is entitled to equitable
tolling based on her psychiatric condition.
A. Stamper’s Complaint Is Untimely.
An employee must exhaust administrative remedies before filing a complaint
of discrimination under Title VII of the Civil Rights Act and Title I of the
Americans with Disabilities Act. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317
(11th Cir. 2001) (Title VII); see Maynard v. Pneumatic Prods. Corp., 256 F.3d
1259, 1262 (11th Cir. 2001) (Americans with Disabilities Act). “The first step
down th[e] path [to exhaustion] is filing a timely charge of discrimination with the
[Commission].” Wilkerson, 270 F.3d at 1317. If the Commission determines after
an investigation “that there is not reasonable cause to believe that the charge is

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true, it shall dismiss the charge and promptly notify” the employee. 42 U.S.C.
§ 2000e-5(b). When the employee receives a notice of dismissal from the
Commission, she has 90 days to file a civil action against the employer. Id.
§ 2000e-5(f)(1).
A regulation permits the Commission to reconsider a decision to dismiss a
charge, 29 C.F.R. § 1601.19(b), but the effect of that decision on the timing for
filing a civil action depends on when the Commission issues its notice of intent to
reconsider. If the Commission issues a notice of intent to reconsider “within 90
days of [the charging party’s] receipt of the final no cause determination,” then the
issuance of the notice “revoke[s] the charging party’s right to bring suit within 90
days” so long as the charging party has not yet filed suit and has not requested and
received a notice of her right to sue. Id. But “[i]f the 90 day suit period has
expired,” then “the notice of intent to reconsider . . . shall not revoke the charging
party’s right to sue in 90 days.” Id. When, after reconsideration, the Commission
issues a new determination, only “[i]n those circumstances where the charging
party’s right to bring suit in 90 days was revoked . . . shall [the determination]
include notice that a new 90 day suit period shall begin upon the charging party’s
receipt of the determination.” Id.
The regulation makes clear that the Commission lacked the authority to
revive Stamper’s claim of discrimination; that is, neither the Commission nor the

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Department of Justice had the authority to issue Stamper a new notice of her right
to sue the Board. Stamper’s original notice of her right to sue was not revoked
when the Commission reconsidered dismissal of her administrative charge. The
regulation contemplates the issuance of a new notice of the right to sue only when
the original notice was revoked, which means that the regulation does not allow the
Department of Justice to issue a new notice of the right to sue when the original
notice was not revoked. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 107 (2012) (“The expression of one thing implies the
exclusion of others . . . .”). When the Commission issued Stamper a notice of intent
to reconsider after her original limitations period for filing suit had expired, the
notice of intent to reconsider failed to revoke Stamper’s original notice of her right
to sue within 90 days.
The regulation codified an equitable rule followed by our predecessor court
that the Commission could restart the running of the limitations period by issuing a
second notice of the right to sue only if the Commission issued a notice of intent to
reconsider before the expiration of the original limitations period. In Gonzalez v.
Firestone Tire & Rubber Co., the Fifth Circuit balanced two competing
considerations that concerned whether the Commission had the authority to issue a
second notice of the right to sue. 610 F.2d 241, 246 (5th Cir. 1980). On the one
hand, the court explained that granting authority to the Commission to issue a

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second right to sue “would vitiate the limitation periods mandated by Congress in
favor of ad-hoc determinations by the [Commission].” See id. On the other, the
court considered the fairness of allowing reconsideration “prior to the expiration of
the period in which the plaintiff could permissibly file suit under the first right-tosue notice.” Id. Our predecessor court held that a notice of intent to reconsider
issued by the Commission had no effect on the running of the limitations period
unless issued before the expiration of that period. Id. Two of our sister circuits
adopted that reasoning, see Lute v. Singer Co., 678 F.2d 844, 846 (9th Cir. 1982)
(holding that the Commission has the authority to rescind a notice to sue only
when it “decides to reconsider and notifies all parties of its decision within 90 days
after it first issues a Notice of Right to Sue”); Trujillo v. Gen. Elec. Co., 621 F.2d
1084, 1086–87 (10th Cir. 1980) (same).
A decision of the District of Columbia Circuit, issued after the Commission
codified section 1601.19(b) and authored by then-Judge Ruth Bader Ginsburg, also
supports our interpretation. Dougherty v. Barry involved a group of firemen who
filed a charge of racial discrimination. 869 F.2d 605, 606–07 (D.C. Cir. 1989).
More than 90 days after the Commission dismissed the charge and provided the
firemen notice of their right to sue, the Commission issued a notice of intent to
reconsider. Id. at 607–08. When the Justice Department later decided not to pursue
litigation, it issued the firemen a second notice of their right to sue, and the firemen

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sued within 90 days. Id. at 608. Judge Ginsburg explained that reconsideration of a
charge under section 1601.19(b) “reopens the door to a private action only when
the reconsideration itself occurs within ninety days of the issuance of a right to sue
notice.” Id. at 610. Because the Commission notified the fireman of its intent to
reconsider more than 90 days after the issuance of the first right to sue notice, “the
Commission’s reconsideration did not revive [the] right to sue.” Id. And although
the regulation “does not advert to the effect of a second right to sue letter,” Judge
Ginsburg explained that “the regulation contemplates . . . that second notices shall
issue only when the [Commission] notifies complainants of its intent to reconsider
within ninety days of the first notice of right to sue.” Id. at 610–11. As a result, the
second notice of the right to sue failed to start a new limitations period. Id. at 611.
As in this appeal, the “issuance of a second right to sue letter do[es] not alter the
fact that the [Commission] did not notify [the firemen] of its intent to reconsider
the[] charges within ninety days of the first notice.” Id. For that reason, the D.C.
Circuit concluded that “[t]he second notice . . . should not work to recover a lost
right to sue.” Id.
Stamper argues that the notice she received was not a notice of intent to
reconsider but instead was a “notice of revocation” that explicitly revoked her first
notice of the right to sue, but we disagree. Stamper received a notice of intent to
reconsider. The notice stated that it was issued “[u]nder the authority vested” by

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section 1601.19(b), which governs notices of intent to reconsider. And it stated that
it “vacate[d]” the earlier dismissal of Stamper’s charge and “revoke[d] the letter
terminating processing of the charge,” which is consistent with the authority
granted to the Commission by section 1601.19(b) to “vacate the letter of
determination.” Stamper also fails to cite any statute or regulation that grants the
Commission the authority to issue a “notice of revocation” or otherwise vacate a
notice of the right to sue outside of the circumstances provided in section
1601.19(b).
We agree with the district court that the second notice of the right to sue
failed to revive Stamper’s limitation period. Section 1601.19(b) permits the
issuance of a new notice of a right to sue only after the Commission issues a notice
of intent to reconsider before the expiration of the original limitations period.
Because the Commission issued Stamper a notice of intent to reconsider years after
her limitations period expired, the notice failed to revive her right to sue.
B. Stamper’s Psychiatric Condition Did Not Equitably Toll the Limitations
Period.
Stamper argues that even if her complaint is untimely, she is entitled to
equitable tolling because her catatonic schizophrenia prevented her from filing suit.
The timely-filing requirements of Title VII of the Civil Rights Act and Title I of
the Americans with Disabilities Act are non-jurisdictional and subject to equitable
tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Zillyette v.
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Capital One Fin. Corp., 179 F.3d 1337, 1342 (11th Cir. 1999). “Equitable tolling
is appropriate when a movant untimely files because of extraordinary
circumstances that are both beyond [her] control and unavoidable even with
diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Mental
incompetence can be an extraordinary circumstance that warrants equitable tolling
if a plaintiff “establish[es] a causal connection between his alleged mental
incapacity and his ability to file a timely petition.” Lawrence v. Florida, 421 F.3d
1221, 1226 (11th Cir. 2005) (emphasis added), aff’d 549 U.S. 327 (2007). But
Stamper bears the burden of proving that equitable tolling of the limitations period
is appropriate. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir.
1993).
Stamper has failed to establish a causal connection between her
schizophrenia and her delay in filing a complaint. Because Stamper stated that she
received the letter “at or about” March 2, 2009, the 90-day limitations period began
to run on that date and expired on June 1, 2009. The record belies any assertion
that Stamper’s medical condition prevented her from filing suit within the
limitations period. Stamper testified at her deposition that when she received the
notice of her right to sue from the Commission, she called an attorney hotline. She
stated that she understood that she had four years to file in state court and 90 days
to file in federal court. On April 6, 2009, during the limitations period, she drove

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herself to an appointment with her psychiatrist, who noted in Stamper’s medical
record that although Stamper “had a blunted affect and a dysphoric mood,” she
was “oriented,” “happy,” “alert,” and spoke at a “normal rate.” And Stamper
collected disability benefits in March 2009 and cashed her disability checks herself
until April 2009, when her mother was put in charge of her finances. The record
also contradicts Stamper’s assertion that her medical condition prevented her from
filing suit until January 18, 2013. The last medical record Stamper submitted to the
district court, dated August 23, 2010, describes Stamper as “cooperative,” speaking
at a normal rate, “alert,” “oriented” and “present.” We cannot infer from this record
that Stamper’s medical condition prevented her from filing suit. Stamper failed to
establish she is entitled to equitable tolling.
IV. CONCLUSION
We AFFIRM the judgment dismissing Stamper’s complaint with prejudice.

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