Fidel DeLeon v. General Insulation, Inc.

Filing

UNPUBLISHED OPINION FILED. [13-30933 Affirmed ] Judge: TMR , Judge: EHJ , Judge: ECP Mandate pull date is 08/01/2014 [13-30933]

Case: 13-30933

Document: 00512695226

Page: 1

Date Filed: 07/11/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED

No. 13-30933
Summary Calendar

July 11, 2014
Lyle W. Cayce
Clerk

FIDEL D. DELEON,

Plaintiff – Appellant

v.

GENERAL INSULATION, INCORPORATED,
Defendant – Appellee

Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CV-7
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Fidel DeLeon (“DeLeon”) appeals the dismissal of his claims
of employment discrimination under Title VII, 42 U.S.C. § 2000e, et seq.,
against Appellee General Insulation, Inc. (“General Insulation”). The district
court dismissed DeLeon’s claims because he did not timely file his
discrimination charge with the Equal Employment Opportunity Commission
(EEOC). We AFFIRM.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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No. 13-30933
DeLeon argues that the district court erred for two reasons. First, he
disputes that his discrimination charge was untimely filed. Under Title VII,
two different time limits are applied to determine when a charge must be filed,
depending on whether the alleged discrimination occurred in a deferral state.
42 U.S.C. § 2000e-5(e)(1).

If the alleged discrimination occurred in a

nondeferral state, a plaintiff must file a charge with EEOC within 180 days
from the last alleged act of discrimination. Id. The time limit is 300 days if
the alleged discrimination occurred in a deferral state. 1 Id. Here, the district
court found that DeLeon had until September 18, 2012, to file his
discrimination charge with EEOC because the last act of alleged
discrimination—DeLeon’s termination—occurred on November 23, 2011, and
Louisiana is a deferral state. Additionally, the court ruled that DeLeon’s filing
was untimely because EEOC received it on September 24, 2012, six days after
the deadline. DeLeon does not challenge these findings. Instead, he argues
that he complied with the deadline because his attorney mailed DeLeon’s
discrimination charge to EEOC on September 18, 2012, the final day of the
filing period. A discrimination charge is filed for the purposes of Title VII on
the date that EEOC receives the charge, however, not on the date that the
charge is mailed. Taylor v. Gen. Telephone Co. of the Southwest, 759 F.2d 437,
442 (5th Cir. 1985). Because DeLeon does not dispute that EEOC received his
charge after the filing deadline, his first argument fails.
Second, DeLeon contends that even if the discrimination charge was
untimely filed, the deadline should have been equitably tolled. In support of
this argument, DeLeon states that he completed the charge on August 23,

A deferral state is one in which state law prohibits discrimination in employment
and a state agency has been established to grant or seek relief for such discriminatory
practice. Clark v. Resistoflex Co., A Div. of Unidynamics Corp., 854 F.2d 762, 765 n.1 (5th
Cir. 1988).
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No. 13-30933
2012, but his attorney did not receive it until after Labor Day of that year due
to Hurricane Isaac. “[F]iling a timely charge of discrimination with the EEOC
is not a jurisdictional prerequisite, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982). Equitable
tolling applies to plaintiff’s deadline for filing an EEOC charge only in
extraordinary circumstances, such as where the parties have a pending case in
the wrong forum, where plaintiff is unaware of the facts as a result of
defendant’s purposeful concealment, and where EEOC misleads plaintiff about
the claim. Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir. 2011). This
case does not involve any of the paradigmatic circumstances that justify
equitable tolling. The parties did not have a pending suit in another forum,
General Insulation did not conceal facts, and EEOC did not mislead DeLeon.
The only possible basis for equitable tolling is the fact that DeLeon’s attorney
received the charge more than two weeks before the deadline, but did not
forward it to EEOC until the date that it was due. Attorney neglect, however,
does not justify equitable tolling. Id.
AFFIRMED.

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