Ber'Neice Harris v. Boyd Tunica, Inc.


PUBLISHED OPINION FILED. [10-60452 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 01/10/2011 [10-60452]

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Ber'Neice Harris v. Boyd e: 10-60452 Cas Tunica, Inc. Document: 00511326400 Page: 1 Date Filed: 12/20/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 20, 2010 N o . 10-60452 S u m m a r y Calendar Lyle W. Cayce Clerk B E R 'N E I C E HARRIS, P la in t if f ­ A p p e lla n t v. B O Y D TUNICA, INC., D e fe n d a n t ­ A p p e lle e A p p e a l from the United States District Court for the Northern District of Mississippi B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. E D W A R D C. PRADO, Circuit Judge: P la in t iff­ a p p e lla n t Ber'Neice Harris appeals the district court's dismissal o f her Title VII action for failure to timely file her complaint. Harris argues that t h e ninety-day filing period for her religious discrimination action should be e q u it a b ly tolled because the delay was caused not by the plaintiff but by a c le r ic a l error made by her attorney's paralegal. We agree with the district court t h a t equitable tolling does not apply to normal situations of attorney negligence o r inadvertence. Accordingly, we AFFIRM the district court's order dismissing t h e Title VII case for failure to timely file the complaint. Case: 10-60452 Document: 00511326400 Page: 2 Date Filed: 12/20/2010 No. 10-60452 H a r r is was a revenue auditor at Sam's Town Casino, which is owned by t h e defendant­appellee, Boyd Tunica, Inc. Harris alleges that Boyd Tunica d is c r im in a t e d against her on the basis of religion when it terminated her e m p lo y m e n t. On December 11, 2008, the Equal Employment Opportunity C o m m is s io n (EEOC) mailed Harris a "right to sue"notice informing her that it w a s closing the file on her employment discrimination charge and that she may file a lawsuit against the defendant. The notice clearly stated that her "lawsuit m u s t be filed within 90 days of . . . receipt of this notice," otherwise the right to s u e based on this charge would be lost. Harris hired a lawyer, James Bell, to file suit on her behalf. She alleges t h a t she regularly checked with her lawyer on the progress of her case. Bell a lle g e d ly requested his paralegal note the ninety-day filing deadline on the c a le n d a r and also mark the dates fifteen, thirty, and forty-five days before the d e a d lin e . The paralegal made a clerical error and skipped a month when c o u n t in g days and marking the calendar. She erroneously marked the filing d e a d lin e as April 10, 2009 instead of March 16, 2009. Consequently, the c o m p la in t was not filed in federal court until April 8, 2009, which was outside o f the ninety-day filing deadline. B o y d Tunica, Inc. moved to dismiss the claim for failure to state a claim b e c a u s e Harris did not file her complaint until April 8, 2009, 118 days after the r ig h t -t o -s u e notice was mailed. Boyd Tunica, Inc. argued that even applying a lib e r a l presumption that Harris did not receive the notice until seven days after it was mailed, Harris's filing was outside the ninety-day period established in 42 U .S . C . § 2000e-5(f)(1) and therefore must be dismissed. The district court g r a n t e d the defendant's motion to dismiss. The district court rejected Harris's a r g u m e n t that the ninety-day filing period should be equitably tolled, noting t h a t equitable tolling "does not normally apply to situations of attorney 2 Case: 10-60452 Document: 00511326400 Page: 3 Date Filed: 12/20/2010 No. 10-60452 in a d v e r t e n c e or the inadvertence of the attorney's staff" because a party is bound b y the acts of her lawyer/agent. W e review de novo a district court's ultimate decision to dismiss an action fo r failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), a c c e p t in g all well-pleaded facts as true and viewing those facts in the light most fa v o r a b le to the plaintiff. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009). However, we review a district court's decision not to exercise its equitable tolling p o w e r s for abuse of discretion. Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir. 2 0 0 2 ). N e it h e r party disputes that Harris was untimely in filing her complaint o u ts id e of the ninety-day filing period or that a district court may dismiss an a c t io n under Rule 12(b)(6) for failure to comply with Section 2005e-5(f)(1)'s ninety-day filing requirement. Consequently, we only address whether the d is t r ic t court abused its discretion in declining to toll the ninety-day filing p e r io d . Section 2000e-5(f)(1) requires a civil action be commenced within ninety d a y s after the plaintiff has received a right-to-sue notice from the EEOC. See 42 U .S .C . § 2000e-5(f)(1). The ninety-day filing requirement is not a jurisdictional p r e r e q u is it e , but more akin to a statute of limitations. Espinoza v. Mo. Pac. R.R. C o ., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985). Thus, the ninety-day filing r e q u ir e m e n t is subject to equitable tolling. Crown, Cork & Seal Co., Inc. v. P a r k e r , 462 U.S. 345, 349 n.3 (1983). W e have previously stated that equitable tolling applies only in "rare and e x c e p t io n a l circumstances." Teemac, 298 F.3d at 457 (internal quotation marks a n d citation omitted). Courts have typically extended equitable tolling where " t h e claimant has actively pursued his judicial remedies by filing a defective p le a d in g during the statutory period, or where complainant has been induced or t r ic k e d by his adversary's misconduct into allowing the filing deadline to pass." 3 Case: 10-60452 Document: 00511326400 Page: 4 Date Filed: 12/20/2010 No. 10-60452 I r w in v. Dep't of Veterans Affairs, 498 U.S. 89, 96 & nn. 3­4 (1998); see Teemac, 2 9 8 F.3d at 457. The district court relied on Irwin v. Department of Veterans Affairs. 498 U .S . 89 (1998). We find this reliance apt. In that case, the Supreme Court c o n s id e r e d a complainant's argument that his failure to timely file his complaint in accordance with a similar thirty-day filing period under another provision of S e c tio n 2000e should be excused because his attorney was absent from the office w h e n the EEOC notice was received. Id. The Supreme Court noted that " [u ]n d e r our system of representative litigation, each party is deemed bound by t h e acts of his lawyer-agent . . . ." Irwin, 498 U.S. at 456. The Supreme Court fu r t h e r held that "the principles of equitable tolling . . . do not extend to what is a t best a garden variety claim of excusable neglect." Irwin, 498 U.S. at 97. I f Harris herself had mismarked the days on her calendar, a court would n o t be obligated to equitably toll the ninety-day filing deadline. Merely because t h e negligence was on the part of her attorney and his staff does not entitle H a r r is to equitable tolling--a party is bound by the acts of her lawyer. This is a n o t h e r garden variety act of attorney negligence. Consequently, we do not find t h e district court abused its discretion in declining to equitably toll the ninetyd a y filing period. A F F IR M E D . 4

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