Case: 10-30789 Document: 00511422416 Page: 1 Date Filed: 03/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 24, 2011
No. 10-30789
Summary Calendar Lyle W. Cayce
Clerk
ANGEL GRANGER; CASEY DIXON DESCANT,
Plaintiffs - Appellees
v.
AARON’S, INCORPORATED,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Before us is an interlocutory appeal of an order allowing this employment
discrimination suit to proceed despite an arguably late filing. The district court
applied equitable tolling. We AFFIRM.
FACTUAL AND PROCEDURAL HISTORY
Angel Granger and Casey Dixon Descant worked at the Aaron’s store in
Mansura, Louisiana. They claim their supervisor, store manager Kennard
Williams, engaged in a pattern of sexual harassment that Aaron’s failed to halt.
This harassment led Descant to resign on June 30, 2007, and Granger to resign
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No. 10-30789
on September 23, 2007. Each had 300 days from their resignation to file an
administrative charge of employment discrimination.
Both sought legal counsel. On November 7, 2007, their attorney forwarded
their signed complaints of discrimination to the Office of Federal Contract
Compliance Programs (“OFCCP”), an agency within the U.S. Department of
Labor that enforces equal employment opportunities for employees of federal
contractors. The OFCCP could not resolve these claims because Aaron’s is not
a federal contractor. Granger and Descant’s attorney instead should have filed
the complaints with the Equal Employment Opportunity Commission (“EEOC”).
Over the next several months, and before the 300-day period expired for
filing the administrative claim, staff for Granger and Descant’s attorney made
at least six phone calls to the OFCCP. The lawyers’ staff apparently were
convinced they were speaking with the EEOC. The OFCCP never said that
Granger and Descant’s complaints were filed with the wrong office. It assured
the staff that it was investigating the claims. The OFCCP also did not follow its
own regulations requiring it to notify an employer within ten days of receiving
a discrimination complaint.
Descant’s 300-day period to file with the EEOC expired on April 25, 2008.
Granger’s expired on July 19, 2008. On those dates, the complaints were still
pending with the OFCCP.
On September 4, 2008, the OFCCP closed Granger and Descant’s files
because Aaron’s is not a federal contractor. It simultaneously transferred the
complaints to the EEOC, which received them on September 8. On September
16, the EEOC issued a charge of discrimination to Aaron’s. The EEOC assured
Granger and Descant that their complaints would be treated as timely. They
received “right to sue” letters.
Granger and Descant filed suit in state court in August 2009. After
removal to United States District Court, Aaron’s filed a motion to dismiss or in
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the alternative for summary judgment. It argued that Granger and Descant had
failed to file a charge of discrimination with the EEOC within 300 days of their
separation. Aaron’s had not been notified of any administrative complaint until
the EEOC’s charge in September 2008.
Granger and Descant argued that their claims were constructively filed
with the OFCCP. They pointed to a Memorandum of Understanding (“MOU”)
between the EEOC and OFCCP that requires discrimination claims timely filed
with the OFCCP to be treated as “dual-filed” with the EEOC. Granger and
Descant noted that the EEOC agreed and had accepted their claims as timely.
Alternatively, Granger and Descant argued that the district court should
equitably toll the 300-day deadline because of the OFCCP’s representations that
it was processing their claims, among other facts arguably in their favor.
The district court considered materials outside of the pleadings and
treated the motion as one for summary judgment. It held that the MOU did not
apply to Granger and Descant’s claims because the OFCCP never had
jurisdiction over them. The court agreed that the 300-day deadline should be
equitably tolled, and denied summary judgment. The district court certified the
decision for interlocutory appeal, and we also permitted the appeal.
DISCUSSION
I. Constructive Filing under the MOU
The MOU requires the EEOC to accept charges of discrimination timely
filed with the OFCCP. It states, in relevant part:
Complaints of employment discrimination filed with OFCCP under
Executive Order 11246 will be considered charges simultaneously
filed under Title VII whenever the complaints also fall within the
jurisdiction of Title VII. For the purpose of determining the
timeliness of such a charge, which will be considered dual filed
under this paragraph, the date the matter was received by OFCCP
shall be deemed to be the date it was received by EEOC.
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64 Fed. Reg. 17664-02, 17666 (Apr. 12, 1999). In the present case, the EEOC
relied upon the MOU to conclude that Granger and Descant’s charges of
discrimination were dual-filed with the EEOC as of November 13, 2007. This
date satisfies the 300-day requirement.
The district court disagreed. It interpreted the MOU as permitting dual-
filing only when the complaints filed with the OFCCP “also fall within the
jurisdiction of Title VII.” Id. The court found dual-filing improper because “the
OFCCP never had jurisdiction over the Plaintiffs’ complaints. As such, the
EEOC did not also have jurisdiction; only the EEOC had jurisdiction. The
complaints were not ‘dual-filed’; they were erroneously filed.”
We review the district court’s legal interpretation de novo. Teemac v.
Henderson, 298 F.3d 452, 456 (5th Cir. 2002).
The EEOC has filed an amicus brief urging us to reject the district court’s
interpretation. It seeks to preserve dual-filing even for complaints where the
OFCCP lacks jurisdiction, in order to strengthen enforcement and increase
efficiency. It argues that its reading of the MOU is reasonable and entitled to
deference, and has been adopted by other courts.
Aaron’s contends that Granger and Descant waived any challenge to the
district court’s interpretation of the MOU by failing to appeal or cross-appeal.
“[I]n the absence of a cross-appeal, an appellate court has no jurisdiction to
modify a judgment so as to enlarge the rights of the appellee or diminish the
rights of the appellant.” Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d
225, 250 (5th Cir. 2010) (quotation marks and citations omitted).
We restate the procedures that brought the case here. The district court
granted Aaron’s motion for certification under 28 U.S.C. § 1292(b), and we
granted leave to appeal. Our jurisdiction thus extends “to the order certified to
the court of appeals, and is not tied to the particular question formulated by the
district court. . . . [T]he appellate court may address any issue fairly included
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within the certified order because it is the order that is appealable . . . .”
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) (quotation
marks and citation omitted).
We decline to rule on waiver or on the meaning of the MOU. Neither issue
is a necessary part of the answer to whether the district court was correct to
allow this suit to proceed. Because we affirm on equitable tolling, we need not
reach the district court’s interpretation of the MOU.
II. Equitable Estoppel
Granger and Descant did not file charges of discrimination with the EEOC
within 300 days of their resignation from Aaron’s. See 42 U.S.C. § 2000e-5(e)(1).
“However, filing a timely charge of discrimination with the EEOC 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.”
Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 521 (5th Cir. 2008) (quotation
marks and citation omitted). The district court applied equitable tolling.
Parties dispute the correct standard of review. A number of our decisions
review equitable tolling for abuse of discretion. Teemac, 298 F.3d at 456 & n.7
(collecting cases). A recent precedent applies that standard. Harris v. Boyd
Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010).
There is some contrary authority holding that we are to conduct a de novo
review. Ramirez v. City of San Antonio, 312 F.3d 178, 183 & n.5 (5th Cir. 2002)
(citing Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 881 (5th Cir. 1991).
There, the court determined it was bound by an early case that had reviewed
equitable tolling of employment discrimination claims de novo. Id. at 183 n.5.
“Although one recent case suggests that the proper standard is abuse of
discretion, we are bound by the earlier precedent.” Id. (citation omitted). We
conclude, though, that the following precedent, predating the one relied upon in
Ramirez, is controlling:
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Nor has Barrs shown that a determination that he failed to
demonstrate grounds for equitable tolling constitutes a plain abuse
of discretion; he has not established that his case falls within the
narrow class of cases in which the equities in favor of tolling the
limitations period are so great that deference to the agency’s
determination is inappropriate.
Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir. 1990) (per curiam). Under our rule
that one panel cannot overturn the decision of an earlier one, the Barrs case
takes precedence. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
(5th Cir. 2008).
We agree, of course, that a district court conclusion that tolling was legally
unavailable due to the court’s interpretation of a statute, regulation, or caselaw
would be reviewed de novo. See Teemac, 298 F.3d at 456; F.D.I.C. v. Dawson, 4
F.3d 1303, 1308 (5th Cir. 1993). Here, because the application of equitable
tolling was a fact-specific, discretionary matter, the appropriate standard of
review is abuse of discretion. See Fisher v. Johnson, 174 F.3d 710, 713 & n.9
(5th Cir. 1999).
Equitable tolling is to be applied “sparingly.” National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002). The plaintiff has the burden to
provide justification for equitable tolling. Wilson v. Sec’y, Dep’t of Veterans
Affairs, 65 F.3d 402, 404 (5th Cir. 1995) (per curiam). We have described at
least three bases for equitable tolling:
(1) the pendency of a suit between the same parties in the wrong forum;
(2) plaintiff’s unawareness of the facts giving rise to the claim because of
the defendant’s intentional concealment of them; and (3) the EEOC’s
misleading the plaintiff about the nature of her rights.
Id. (citation omitted). The court described these as “possible bases,” which we
conclude leaves the door open to recognize other ones. Id.
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We are reluctant to apply equitable tolling to situations of attorney error
or neglect, because parties are bound by the acts of their lawyer. See Coleman
v. Thompson, 501 U.S. 722, 753 (1991); Wion v. Quarterman, 567 F.3d 146, 149
(5th Cir. 2009). We are more forgiving, though, when a claimant or her attorney
has exercised due diligence in pursuing her rights. Wilson, 65 F.3d at 404-05;
e.g., Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th Cir. 2006). We have
considered it relevant whether “the plaintiff took some step recognized as
important by the statute before the end of the limitations period.” Perez v.
United States, 167 F.3d 913, 918 (5th Cir. 1999)
The district court observed that this case does not fall into any of the most
common categories. The third category is closest, but there were no affirmative
misrepresentations by the OFCCP or the EEOC. Instead, the court identified
authorities holding that “equitable tolling is available where a plaintiff has
actively pursued judicial remedies but filed a defective pleading, as long as the
plaintiff has exercised due diligence.” Id. at 917; see Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990); Morgan v. Washington Mfg. Co., 660 F.2d 710,
712 (6th Cir. 1981). It also considered whether Aaron’s had demonstrated
prejudice and whether the balance of equities tipped in favor of seeing Granger
and Descant’s claim survive. See Morgan, 660 F.2d at 712; see also Holland v.
Florida, 130 S. Ct. 2549, 2562-63 (2010); Fisher, 174 F.3d at 713 n.11.
The district court did not abuse its discretion in concluding that the facts
warranted equitable tolling. Granger and Descant secured counsel soon after
their resignation from Aaron’s. Their signed complaints were submitted to the
government months before the 300-day period expired. Their attorney’s staff
made repeated contact with the OFCCP, which never communicated the filing
error and maintained that the complaints were under investigation. The
government’s lengthy delay was egregious and exceptional. The court found that
Aaron’s had not shown it was prejudiced by the delay.
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Aaron’s correctly emphasizes that Granger and Descant were represented
by counsel, and that Granger and Descant are bound by their attorney’s failings.
See Harris, 628 F.3d at 239-40. Certainly, the attorney made an obvious
mistake in sending his clients’ signed charges of discrimination to the wrong
office. Even the form Granger and Descant used to submit their complaint
reveals their attorney’s basic error.
The fact that a complainant is represented, though, does not automatically
bar the application of equitable tolling. In one precedent, we concluded that the
plaintiff “clearly did not sleep on her rights, and her attorneys, skilled or not,
made an error. Tolling is the only remedy for the regulatory violation, and it is
a remedy that fits.” Perez, 167 F.3d at 919.
In this case, the circumstances favor permitting Granger and Descant’s
claims to proceed. They were diligent about pursuing their rights and their
attorney diligently and repeatedly followed up on their claims within the 300-
day period, notwithstanding his filing in the wrong forum. In light of their
actions, the government’s considerable errors and neglect, and the lack of
demonstrated prejudice to Aaron’s, this case presents sufficiently rare
circumstances (we trust) to support the district court’s application of equitable
tolling.
AFFIRMED.
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