Burrell v. Brown

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-30030
Summary Calender
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BARBARA SUE BURRELL

Plaintiff-Appellant

v.

MAXINE BROWN, doing business as Jamie’s Family
Restaurant

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
No. 98-CV-908
_________________________________________________________________
July 28, 2000

Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Plaintiff-Appellant Barbara Sue Burrell appeals a jury

verdict in favor of Defendant-Appellee Maxine Brown. For the

following reasons, we AFFIRM.

I.

*
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this opinion should not be published and is not precedent except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.
 Burrell is a former cook at Jamie’s Family Restaurant in

Bastrop, Louisiana. Jamie’s Family Restaurant is owned and

operated by Brown. In December 1994, Burrell informed Brown that

she was pregnant. On January 25, 1995, Brown told Burrell not to

return to work because she was worried that Burrell would slip

and fall in the kitchen, possibly injuring her unborn child.

According to testimony offered at trial, Brown intended Burrell’s

lay-off to be temporary, with Burrell returning to work after the

baby was born.

Burrell had her baby in August, and subsequently asked Brown

for her job back. During Burrell’s pregnancy, however, another

restaurant had opened in Bastrop and drawn business away from

Jamie’s Family Restaurant. As a result, Brown did not need any

more cooks and refused to give Burrell her job back. In October

1995, Burrell filed a complaint with the Bastrop Job Service (a

division of the Louisiana Department of Labor), complaining that

Brown had discriminated against her because of her pregnancy.1

1
There is some dispute regarding exactly what forms Burrell
completed when she made her complaint to the Bastrop Job Service.
Both sides agree that Burrell completed an “Employment Service
Complaint” form provided by the United States Department of
Labor. The record, however, also contains an undated Equal
Employment Opportunity Commission (“EEOC”) Charge of
Discrimination. In the charge, Burrell stated that she believed
she had been discriminated against because of her pregnancy. The
charge also stated that it would be filed with the Louisiana
Commission on Human Rights (“LCHR”) and the EEOC. Burrell claims
that she filled out this form during her visit to the Bastrop Job
Service, but Brown disputes this conclusion, arguing that the
charge was not completed until December 1995 at the earliest.

2
 The same day the Bastrop Job Service received Burrell’s

complaint, it concluded that it could not properly resolve the

issue at the local level. As a result, it forwarded her

complaint to the Director of Compliance Programs for the

Louisiana Department of Labor. After a delay of over two months,

the Director of Compliance Programs determined that the EEOC,

rather than the Louisiana Department of Labor, was the

appropriate agency to handle Burrell’s complaint. The Department

of Labor forwarded Burrell’s complaint to the EEOC on December

11, 1995.

Because Burrell’s charge was not filed with the EEOC within

300 days of her being fired, as required by Title VII, see 42

U.S.C. § 2000e-5(e)(1), the EEOC initially informed Burrell that

it lacked jurisdiction because her charge was untimely.2 Burrell

urged the EEOC to reconsider its decision. The EEOC subsequently

determined that Burrell’s original complaint to the Bastrop Job

Service was sufficient to render her charge timely. The EEOC

investigated Burrell’s charge, concluded that it was likely that

The district court, in considering the parties’ Rule 50 motions,
found that the charge had been completed by Burrell during her
October 1995 visit to the Bastrop Job Service. In any event,
neither party disputes that the form did not actually find its
way to the EEOC until sometime in December of 1995. Nor,
apparently, was the charge ever filed with the LCHR. Given our
analysis of the case, we need not determine the exact date that
the EEOC charge form was completed.
2
Burrell’s EEOC charge would have to have been filed with
the EEOC by November 21, 1995 to be within the 300-day time
limit.

3
she had been discriminated against by Brown, and attempted

conciliation. When all attempts at conciliation failed, the EEOC

issued Burrell a right-to-sue letter on February 12, 1998.

Burrell filed suit in the United States District Court for

the Western District of Louisiana on May 11, 1998. Burrell’s

complaint alleged that Brown had illegally discriminated against

her in violation of Title VII of the Civil Rights Act of 1964,

see 42 U.S.C. §§ 2000e-2000e-17, by firing Burrell because she

was pregnant. Cross-motions for summary judgment were denied,

and the case moved to trial.

During trial, both parties made timely Rule 50 motions for

judgment as a matter of law, and the district court took both

motions under advisement. Prior to charging the jury, the

district court denied Brown’s Rule 50 motion, finding that there

was sufficient evidence to support a finding for Burrell. The

court did, however, find that Burrell’s filing with the Bastrop

Job Service did not constitute a filing with the EEOC and that

her EEOC charge was therefore untimely. Nonetheless, the court

concluded that the doctrine of equitable tolling might serve to

relieve Burrell of the timely filing requirement, and that

whether equitable tolling should apply in this case was an issue

of fact to be decided by the jury. The court withheld ruling on

Burrell’s Rule 50 motion until the jury returned its verdict.

The district court subsequently instructed the jury that

Burrell had failed to make a timely filing with the EEOC but

4
that, under the doctrine of equitable tolling, her failure to

make a timely filing might be excused.3 Neither party objected

to the jury instructions. The jury interrogatories asked the

jury to first find whether “Burrell diligently pursued her

employment discrimination claim but inadvertently missed

deadlines due to her lack of sophistication with the procedural

3
Specifically, the court instructed the jury that:

Before an employee can file suit against his
employer under [Title VII], he must first
file a charge with the [EEOC]. In Louisiana,
an employee has 300 days from the date of the
act of discrimination to file a complaint
with the E.E.O.C. If the employee does not
file a complaint within the 300 day time
period, he is barred from bringing an action
in court against the employer. In this case
the charge was not timely filed.

However, the employee’s failure to file a
charge with the E.E.O.C. during the 300 day
period may be excused under certain
circumstances. This is known as “equitable
tolling.” Equitable tolling is a doctrine
that a court may apply to allow an action to
proceed even though the action is untimely
under the statute. The plaintiff bears the
burden of proving the justification for the
application of equitable tolling principles.

Equitable tolling may be based on the
plaintiff’s excusable neglect, which may or
may not be attributable to the defendant.
Equitable tolling may apply when a plaintiff
has vigorously pursued his action, but has
inadvertently missed deadlines due to his or
her lack of sophistication with the
procedural requirements of employment
discrimination claims. The jury must decide
whether the plaintiff’s excusable neglect
caused the untimely filing.

5
requirements of employment discrimination.” The court instructed

the jury not to answer the remaining interrogatories regarding

Burrell’s claims of discrimination if it answered the first

interrogatory in the negative. The jury answered the first

interrogatory in the negative, thus returning a verdict in favor

of Brown.

After the jury returned its verdict, Burrell renewed her

Rule 50 motion. The district court denied her motion and

subsequently entered judgment in favor of Brown. Burrell timely

appeals.

II.

On appeal, Burrell argues a number of points. First, she

contends that the court erred in finding that her filing with the

Bastrop Job Service was insufficient to constitute a filing with

the EEOC and that her EEOC complaint was therefore untimely.

Second, Burrell complains that the issue of equitable tolling is

a legal one, and that the district court erred in submitting the

issue to the jury. Lastly, Burrell argues that even if the issue

of equitable tolling was properly submitted to the jury, the

jury’s verdict was not supported by the evidence and the district

court erred in denying her judgment as a matter of law.4 We

4
Burrell’s brief also contends that the district court
erred in denying her motion for summary judgment. Only “final
decisions of the district courts” may be appealed. See 28 U.S.C.
§ 1291. A denial of summary judgment is an interlocutory

6
discuss each of these arguments in turn.

A. Did Burrell’s Filing with the Bastrop Job Service Meet the
Requirements for a Timely Filing with the EEOC under Title VII?

Burrell claims that her complaint to the Bastrop Job Service

was a complaint filed with a state deferral agency, that a filing

with a state deferral agency constitutes a filing with the EEOC,

and thus that her filing with the Bastrop Job Service rendered

her complaint timely filed with the EEOC. Brown counters that

Title VII requires at least a nominal filing with the EEOC, and

that a filing with a state deferral agency cannot satisfy Title

VII’s filing requirements. Brown further contends that even if a

filing with the state deferral agency were sufficient to

constitute a filing with the EEOC, the proper deferral agency in

Louisiana is the LCHR, not the Bastrop Job Service.

Whether Burrell’s filing with the Bastrop Job Service within

the 300-day time limit constitutes a timely filing with the EEOC

is an issue of law. We review issues of law de novo. See

Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000).

decision. An interlocutory decision is only considered final and
appealable under § 1291 if “it (1) conclusively determines the
disputed question; (2) resolves an important issue completely
separate from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment.” Acoustic Sys.,
Inc. v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000)
(citations omitted). Burrell has made no showing that any of
these conditions are met here, and thus we lack jurisdiction to
review the district court’s denial of Burrell’s summary judgment
motion.

7
 Title VII requires that an aggrieved employee file a charge

of discrimination with the EEOC within 180 days of the alleged

unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1).

Title VII, however, also contemplates that states will establish

state or local agencies with “authority to grant or seek relief”

from discriminatory practices, “or to institute criminal

proceedings with respect thereto.” Id. States with such

agencies are known as deferral states. See Blumberg v. HCA

Management Co., Inc., 848 F.2d 642, 645 (5th Cir. 1988). In a

deferral state, an individual need not file a charge with the

EEOC until thirty days after receiving notice that the state or

local agency has terminated proceedings, or 300 days after the

alleged unlawful employment action, whichever is earlier. See 42

U.S.C. § 2000e-5(e)(1). Louisiana became a deferral state with

the creation of the LCHR. See La. Rev. Stat. Ann. §§ 51:2231-

51:2265.

We agree with the district court’s decision that Burrell’s

filing with the Bastrop Job Service was insufficient to

constitute a filing with the EEOC. Title VII “clearly

anticipates that [a] complaint must be filed with the EEOC” prior

to complainant’s seeking relief in federal court. Chappell v.

Emco Mach. Works Co., 601 F.2d 1295, 1304 (5th Cir. 1979); see

also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998)

(stating that “[i]n a state that . . . provides a state or local

administrative mechanism to address complaints of employment

8
discrimination, a title [sic] VII plaintiff must file a charge of

discrimination with the EEOC within 300 days after learning of

the conduct alleged”) (emphasis added) (citations omitted).

Therefore, Burrell was required to make some sort of nominal

filing with the EEOC within 300 days of the complained-of action.

It is undisputed that no document relating to Burrell’s charge of

discrimination reached the EEOC until early December, well

outside the 300-day time limit.

Burrell points to a work-sharing agreement between the LCHR

and the EEOC in support of her contention that a filing with the

state deferral agency is sufficient to constitute a filing with

the EEOC. Burrell’s reliance on this agreement, however, is

misplaced. While the agreement states that the EEOC and LCHR

“designate the other as its agent for the purpose of receiving

and drafting charges,” the fact remains that Burrell never filed

a charge with the LCHR. Burrell baldly asserts that “it is

apparent that the Louisiana Department of Labor and Bastrop Job

Service served as agents of the” LCHR, but she provides no

support for that contention. The case law is devoid of any

reference to other Louisiana state agencies acting as agents for

the LCHR, and Louisiana statutes offer no indication that other

state agencies are empowered to act on the LCHR’s behalf.

Furthermore, under Title VII, a deferral agency is a state

or local agency that has the authority to “grant or seek relief”

from discriminatory practices, as well as to “institute criminal

9
proceedings” with respect to the discrimination alleged by the

charging party. 42 U.S.C. § 2000e-5(e)(1); see also White v.

Dallas Indep. Sch. Dist., 581 F.2d 556, 561 (5th Cir. 1978) (en

banc). Burrell points to no authority indicating that either the

Bastrop Job Service or the Louisiana Department of Labor is

empowered to act in a manner that would justify their being

considered deferral agencies.

Burrell also points out that the EEOC, although it first

determined that her complaint was untimely, later amended its

decision to find that her filing with the Bastrop Job Service was

sufficient to render her charge timely. The federal courts,

however, are not bound by determinations made by the EEOC. See

Chappell, 601 F.2d at 1304 (holding that the courts are not bound

by the EEOC’s determinations regarding compliance with Title

VII’s filing requirements, but instead must make an “independent

determination” regarding timeliness). Therefore, the district

court did not err either in disregarding the EEOC’s decision

regarding the timeliness of Burrell’s charge, or in independently

finding that Burrell’s charge was not timely.

Finally, Burrell argues that she believed that she had done

all that was required of her once she filed a complaint with the

Bastrop Job Service. We recognize that his may have been the

case. Burrell’s belief, however, does not pertain to whether a

charge was timely filed with the EEOC, but to whether the

doctrine of equitable tolling, discussed infra, applies to excuse

10
Burrell’s late filing. Burrell was required to file a charge

with the EEOC within 300 days of being fired by Brown, and the

evidence is uncontroverted that no filing was made within this

time. We find no support in the record, case law, or statutes

for Burrell’s contention that her filing with the Bastrop Job

Service was sufficient to constitute a filing with the EEOC.

Therefore, we agree with the district court that that Burrell

failed to make a timely filing with the EEOC.

B. Did the District Court Err in Submitting the Issue of
Equitable Tolling to the Jury?

It is well established that a timely filing with the EEOC is

not a jurisdictional prerequisite, but is 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 (1982). Prior to Zipes, we recognized that the

time period for filing a charge with the EEOC may be tolled in at

least three specific instances: (1) “during the pendency of an

action before a state court which had jurisdiction over the

subject matter of the suit, but which was the wrong forum under

state law”; (2) during the period prior to when the employee knew

or should have known of the facts giving rise to his claim; and

(3) when the EEOC misleads the employee about her rights.

Chappell, 601 F.2d at 1302-03. We have recognized, however, that

equitable tolling may apply to more circumstances than just those

11
listed in Chappell. See Conaway v. Control Data Corp., 955 F.2d

358, 362 (5th Cir. 1992) (stating that “[e]quitable tolling

focuses on the plaintiff’s excusable ignorance of the employer’s

discriminatory act”) (citations omitted); Blumberg, 848 F.2d at

644-45 (listing the three bases for equitable tolling recognized

in Chappell but stating that “these three are not the only cases

for tolling” and that “other circumstances may toll the running

of the period”).

In this case, neither party has objected to the district

court’s decision that, under these factual circumstances,

equitable tolling may serve to excuse Burrell’s untimely filing

with the EEOC. Rather, Burrell contends that the issue of

whether equitable tolling should apply to excuse her untimely

filing was a legal one, and therefore the lower court erred in

submitting the issue to the jury.5 Burrell, however, failed to

make this objection in the district court. Federal Rule of Civil

Procedure 51 states that “[n]o party may assign as error the

giving of [a jury] instruction unless that party objects thereto

before the jury retires to consider its verdict, stating

distinctly the matter objected to and the grounds of the

objection.” The record indicates that the district court gave

both parties an opportunity to object to the jury instructions,

5
Burrell does not argue that the equitable nature of the
inquiry makes it an issue for a judge rather than a jury.

12
including the instruction regarding equitable tolling, but that

neither party stated any objection.

“Where the party challenging the district court’s

instructions has failed to raise the objection before the

district court and his position has not been made clear to the

court in some other manner, our consideration of the issue is

limited to plain error review.” Russell v. Plano Bank & Trust,

130 F.3d 715, 721 (5th Cir. 1997); see also Hartsell v. Dr.

Pepper Bottling Co. of Texas, 207 F.3d 269, 272 (5th Cir. 2000).

There is no evidence in the record that Burrell objected to the

district court’s jury instruction on the issue of equitable

tolling. Therefore, we will only review the district court’s

decision for plain error.

Plain error is an error that is “clear,” “obvious,” or

“readily apparent.” See United States v. Calverley, 37 F.3d 160,

163 (5th Cir. 1994) (citations omitted). Furthermore, to

constitute plain error, the error must affect the appellant’s

substantial rights. See id. at 164. Even if we find plain

error, we need only reverse the district court if the error

“seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Atkinson,

297 U.S. 157, 160 (1936); see also United States v. Olano, 507

U.S. 725, 732 (1993).

There is no plain error in the court’s submission of the

issue of equitable tolling to the jury. “[F]indings involving

13
material facts genuinely in dispute” -- in this case, whether

excusable neglect caused Burrell’s untimely filing -- are

reserved for the fact finder, whether judge or jury. Carroll v.

Metropolitan Ins. and Annuity Co., 166 F.3d 802, 808 (5th Cir.

1999).

Furthermore, it is well established that Title VII’s time

limits for filing a charge with the EEOC are similar to a

traditional statute of limitations. See Zipes, 455 U.S. at 393.

We have long held that determining whether a statute of

limitations should be equitably tolled turns, in part, on factual

determinations. See Fluor Eng’rs and Constructors, Inc. v.

Southern Pac. Transp. Co., 753 F.2d 444, 449 n.6 (5th Cir. 1985)

(stating that whether a plaintiff exercised due diligence in

attempting to serve the defendant with process, which would toll

the statue of limitations, is a question of fact); Hanson v. Polk

County Land, Inc., 608 F.2d 129, 131 (5th Cir. 1979) (stating

that “[a] factual dispute about equitable tolling of the statute

of limitations” would render a grant of summary judgment

inappropriate).

We find that the district court did not clearly err in

submitting the issue of equitable tolling to the jury. Once the

district court determined that Burrell had failed to make a

timely filing with the EEOC, the question whether equitable

tolling excused her failure turned on the factual issues whether

Burrell was diligent in pursuing her rights and missed the filing

14
deadline only as a result of excusable neglect. Given that the

jury was the ultimate finder of fact in this case, we find that

the district court did not clearly err in submitting these issues

to the jury.

C. Is the Jury’s Verdict Supported by Sufficient Evidence?

Lastly, Burrell objects to the jury’s verdict and the

district court’s subsequent refusal to grant her judgment as a

matter of law. Burrell claims that there was no evidence that

she had failed to diligently pursue her claim for discrimination.

“When a party contests a jury verdict on the grounds that the

evidence is legally insufficient, we ordinarily apply de novo

review, making the same inquiry required of the district court.”

Gaia Technologies Inc. v. Recycled Products Corp., 175 F.3d 365,

373 (5th Cir. 1999) (citing Nero v. Indus. Molding Corp., 167

F.3d 921, 925 (5th Cir. 1999)).

The district court may only set aside the jury’s verdict if

“there is no legally sufficient evidentiary basis for a

reasonable jury” to find as it did. Fed. R. Civ. P. 50.

Therefore, we review the record to determine whether sufficient

material evidence supports the jury’s verdict. See Vance v.

Union Planters Corp., 209 F.3d 438, 441 (5th Cir. 2000). “We may

not reweigh the evidence, re-evaluate the credibility of the

witnesses, nor substitute our reasonable factual inferences for

the jury’s reasonable inferences.” Douglas v. DynMcDermott

15
Petroleum Operations Co., 144 F.3d 364, 369 (5th Cir. 1998).

While the question is a close one, ultimately we agree with

the district court that there is sufficient evidence in the

record to support the jury’s verdict. While Burrell testified

that she believed she had taken all necessary steps in filing her

EEOC complaint, Brown’s attorney elicited testimony on cross-

examination indicating that Burrell had been less than diligent

in pursuing her rights. Burrell’s testimony demonstrated that

she had simply relied on the Bastrop Job Service to handle her

claim and that she had done little to ensure that the Bastrop Job

Service was the correct agency or that the charge was being

properly handled. Brown also introduced evidence showing that

when Burrell filed a second EEOC charge against Brown, she stated

on the charge questionnaire that her first charge had not been

filed with the EEOC until December 1995.

While our examination of the record suggests that reasonable

juries could differ in their conclusions regarding Burrell’s

diligence in pursuing her claim, we cannot say that the jury’s

verdict is wholly unsupported by the record. In determining

whether she diligently pursued her claim, the jury was called

upon to assess Burrell’s credibility. Having heard the evidence

and witnessed the demeanor of the parties, the jury was entitled

to conclude that Burrell should have been more diligent in

pursuing her charge and that her untimely filing was not due to

excusable neglect. We therefore decline to disturb the jury’s

16
conclusion.

III.

For the above stated reasons, we AFFIRM.

17