UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50491
DARRYL S. STORBECK,
Plaintiff-Appellant,
VERSUS
SAKS FIFTH AVENUE, JOHN DOE CORPS, 1-5
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas, San Antonio
(SA-99-CV-70-HG)
June 20, 2000
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Darryl S. Storbeck appeals the dismissal of the sexual
harassment claim he brought against his former employer Saks Fifth
Avenue (“Saks”). We affirm.
FACTS AND PROCEDURAL HISTORY
Storbeck was discharged from employment with Saks in May 1996.
On October 7, 1998, over two years after his termination, Storbeck
*
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opinion should not be published and is not precedent except under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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filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Storbeck filed his pro se
complaint in this suit on January 25, 1999, alleging that he had
been unlawfully harassed because of his gender between February
1996 and July 1996 in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e (1994).
Saks moved to dismiss because Storbeck failed to exhaust
administrative remedies within the required time frame. In
response, Storbeck sought equitable tolling of the period for
filing with the EEOC alleging that he had been incapacitated due to
mental illness from July 1996 until October 6, 1998. He attached
medical records to his response documenting the treatment he had
received for his mental illness during this time. The district
court found that the evidence submitted, while indicating that
Storbeck suffered from mental illness, did not rise to the level of
establishing that he had a mental disability that incapacitated him
from filing a timely Charge of Discrimination with the EEOC.
DISCUSSION
The only issue on appeal is whether Storbeck was entitled to
equitable tolling of the time period for filing his EEOC complaint.
Initially, we note that in states such as Texas, that have an
administrative agency with the authority to address complaints of
employment discrimination, the 180-day period is extended to 300
days. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).
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This time limit operates as a statute of limitations. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). As such, it
is subject to equitable tolling. See id. The claimant bears the
burden of justifying equitable tolling. See Hood v. Sears Roebuck
and Co., 168 F.3d 231, 232 (5th Cir. 1999).
The Fifth Circuit has never expressly recognized mental
illness as a basis for equitable tolling of the time limits for
filing EEOC complaints. See id. at 233 & n.3. While such a rule
is clearly consistent with the remedial purposes of Title VII, and
some district courts have employed it, see Moody v. Bayliner Marine
Corp., 664 F. Supp. 232, 235 (E.D.N.C. 1987), thus far, no clear
consensus has been reached on the appropriate breadth of relief.
Compare Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 1248
(S.D. Ohio 1984)(limiting equitable tolling to cases where the
claimant has been institutionalized or adjudicated incompetent)
with Pulitzer v. Middleberg, 1996 WL 469689, at *5 (E.D. La.
1996)(for equitable tolling, plaintiff must show that she was
mentally incapacitated to the point of being unable to take the few
steps necessary to file an EEOC charge.) The district court,
noting the unsettled state of the law on this point, found that the
evidence did not support a finding that Storbeck suffered from
mental illness that would justify equitable tolling of the
limitations period within even the most generous paradigm.
On appeal, Storbeck argues that he was hospitalized several
3
times for treatment of major depressive episodes, paranoid
schizophrenia, schizophrenic disorder and psychotic episodes which
conditions rendered him incapable of pursuing this matter with the
EEOC between July 1996 and October 1998. Storbeck relies on
evidence that he was hospitalized in 1996 for psychiatric disorders
for ten days in September, eleven days in October and four days in
December. His December 1996 discharge papers indicate that he was
released to return to work. In fact, Storbeck did work at a series
of jobs for approximately 21 months between his last
hospitalization and the date he filed his complaint. The district
court inferred from Storbeck’s spotty employment history that he
had ongoing difficulties during this time. However, the district
court concluded that the evidence does not support a finding that
he suffered from a mental disability that would justify equitable
tolling. We agree. Assuming that incapacitating mental illness
allows equitable tolling of the 300-day period within which
complainants are required to file EEOC complaints, the evidence
does not show that Storbeck suffered from such illness after his
December 1996 release from the hospital.
CONCLUSION
Based on the foregoing, we affirm the dismissal of Storbeck’s
case.
AFFIRMED.
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Storbeck v. Saks Fifth Avenue
Combined Opinion