Farris v. Shinseki

United States Court of Appeals
For the First Circuit

No. 11-1080

DONNA MARIE FARRIS,

Plaintiff, Appellant,

v.

ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella and Thompson, Circuit Judges,
and Saris,* District Judge.

Jeffrey Neil Young, with whom Benjamin K. Grant and Carol J.
Garvan were on brief, for appellant.
Evan J. Roth, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

November 10, 2011

*
Of the District of Massachusetts, sitting by designation.
 THOMPSON, Circuit Judge. Plaintiff Donna Marie Farris

("Farris") challenges the district court's order granting summary

judgment for her former employer, the Department of Veterans

Affairs ("VA"). Finding no valid reason to apply an equitable

exception, the district court dismissed Farris's disability

discrimination complaint due to her concession that she failed to

timely file a formal complaint with the Equal Employment

Opportunity Commission ("EEOC"). We find that the district court

did not abuse its discretion by declining to toll the limitations

period and therefore affirm.

I. Background

We recount the facts in the light most favorable to the

nonmovant, Farris. See Franceschi v. U.S. Dept. of Veterans

Affairs, 514 F.3d 81, 83 (1st Cir. 2008).

Farris was hired by the VA as a Primary Care and

Emergency Department Clinical Social Worker and POW Coordinator at

its medical center in Togus, Maine on November 13, 2007.1 Within

eight months, the VA formally recognized Farris for her excellent

job performance -- once for an "Above and Beyond Attitude and

Excellence in Customer Service" and once for providing extra

assistance during a staffing shortage.

1
Though the district court states that Farris began her
employment in September 2008, both parties agree that Farris
commenced her employment with the VA on or about November 13, 2007.

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 On September 22, 2008, Farris suffered a work-related

injury to her neck and right shoulder that resulted in a one-month

absence from work. During her absence, Farris was ordered by her

supervisor, James Hammond ("Hammond"), and Togus Human Resources

Manager, Terry Gagne ("Gagne"), to see Bonnie Ayotte ("Ayotte"), an

occupational nurse for the VA. While examining Farris, Ayotte

inquired about her medical history. In addition to a pre-existing

back injury, Farris informed Ayotte that she suffered from

myasthenia gravis -- a potentially life threatening autoimmune

disorder -- and scleroderma -- a chronic connective tissue disease.

Periodically, the latter two afflictions caused Farris to suffer

from "difficulty eating, swallowing, chewing, gagging, choking,

spitting up blood, and weight loss; numbness and burning in [her]

feet and calves . . . tearing in [her] left eye . . . and blood in

[her] stomach." Nonetheless, these symptoms did not prevent Farris

from performing her job satisfactorily.

Less than a month after the injury, around October 6,

2008, Farris contacted Gagne about returning to work. During this

conversation, Farris informed Gagne that she was feeling better,

yet he began to inquire about Farris's myasthenia gravis. Before

their conversation was over, Gagne had requested the results of a

Magnetic Resonance Imaging test that had been performed on Farris's

throat in relation to the disorder.

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 Approximately two weeks after their phone conversation,

Gagne requested that Farris come to the VA to fill out paperwork

related to a mileage reimbursement. Farris reported to work that

day and, to her surprise, was directed to attend a meeting with

Gagne and Jeff Saren ("Saren"), a private investigator, among

others. At the meeting, Saren confronted Farris with a

surveillance video showing Farris, who alleged she suffered a work-

related neck and shoulder injury, lifting her son's hockey bag.

Saren immediately accused Farris of committing fraud. At Hammond's

urging and with her physician's permission, Farris returned to work

on October 22, 2008 -- two days later.

On October 31, 2008, approximately one week after Farris

returned to work, the VA placed her on administrative leave and

notified her that her employment would terminate on November 12,

2008. According to the VA, the reason for the termination was that

the "circumstances surrounding [Farris's] recent absence from work"

caused the VA "to lose confidence in [her] ability to

satisfactorily perform the duties of [her] position," because she

had been "less than candid concerning [her] medical condition."

Soon thereafter, Farris filed an informal complaint of

disability discrimination with the VA's Equal Employment

Opportunity ("EEO") counselor. She also sought redress through

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various other agencies.2 Subsequently, Farris and the VA agreed to

participate in mediation, but this effort proved unsuccessful. By

a letter dated December 17, 2008, the VA's Office of Resolution

Management ("ORM") notified Farris that it was unable to resolve

her complaint and explicitly advised her that she had fifteen days

from the letter's receipt to file a formal complaint with the

EEOC.3 Farris received the letter on December 18, 2008, making the

fifteen-day deadline January 2, 2009. She immediately forwarded

the letter to her attorney, Stephanie Mills ("Attorney Mills"), who

2
These agencies include the Department of Veterans Affairs
Office of Resolution Management ("ORM"), the Office of Special
Counsel ("OSC"), the Office of Special Appeals ("OSA"), the Merit
Systems Protection Board ("MSPB"), and the Office of Workers'
Compensation Programs ("OWCP").
3
The letter stated in relevant part:
• "If you decide to file a formal complaint, you have 15
calendar days from receipt of this notice in which to do
so."
• "If you decide to file a formal complaint, you must do so
WITHIN FIFTEEN CALENDAR DAYS OF RECEIPT OF THIS NOTICE."
• "Please note that the 15-calendar day time frame will not
be extended due to your need to seek my assistance in
completing this form."
• "WHEN TO FILE: Your formal complaint must be filed
within 15 calendar days of the date you received the
'Notice of Right to File a Discrimination
Complaint'(NRTF) from your EEO Counselor. If you do not
meet this time limit, you must explain why you waited
more than 15 calendar days to file. These time limits
may be extended under certain circumstances; however,
they will NOT be waived and your complaint will NOT be
investigated unless you explain your untimeliness and the
explanation is acceptable in accordance with EEOC, CFR §
1614(c)., [sic]. Use an additional sheet of paper, if
necessary. If you have evidence which supports your
explanation, please attach it to this complaint."
(emphasis in original.)

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received it on December 19, 2008. Farris also made a phone call to

Attorney Mills and received an e-mail response assuring her that

the complaint would be timely filed. Farris followed up with

Attorney Mills on December 26, 2008 and according to Farris, was

assured by a legal secretary that "Ms. Mills was aware of the need

to timely file the formal complaint and was working on it."

Attorney Mills was well aware of the fifteen-day

timeline; nevertheless, she failed to file Farris's formal EEOC

complaint until January 13, 2009 -- eleven days late. Accompanying

the complaint was a letter from Attorney Mills acknowledging the

tardiness of the complaint and offering an explanation. She

expressed her mistaken belief that she had in fact filed the formal

complaint on January 2, 2009, stated that her office had been

closed for the holidays for eight days during the fifteen-day

filing period, and admitted that the complaint must have been

"overlooked" in the midst of the "holiday rush."

On February 18, 2009, the EEOC advised Farris that it

had denied the complaint as untimely. Attorney Mills received the

denial letter on February 23, 2009 and appealed it the same day.

On June 22, 2009, an EEO Regional Officer rejected the appeal.

Farris sought reconsideration on July 20, 2009, but was again

denied.

Thereafter, Farris filed a complaint in district court

alleging disability discrimination. Her complaint alleged

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violations of the Americans with Disabilities Act ("ADA"), 42

U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701

et seq. The VA4 moved to dismiss the complaint or, in the

alternative, for summary judgment because Farris had failed to

timely file her EEOC formal complaint. Farris opposed the motion,

arguing that her belated filing should be equitably excused. The

district court granted the VA's motion for summary judgment on

January 11, 2011. This appeal followed.

II. DISCUSSION

A. Standard of Review

As a general matter, we review an order granting summary

judgment de novo. See Franceschi, 514 F.3d at 84. However, on

appeal from summary judgment, as in other circumstances, we review

the district court's ruling rejecting the application of equitable

doctrines such as tolling for abuse of discretion, "always mindful

of the 'highly deferential' nature of our oversight." Abraham v.

Woods Hole Oceanographic Inst., 553 F.3d 114, 119-20 (1st Cir.

2009)(quoting Mr. I. v. Me. Sch. Admin. Dist. No. 55, 480 F.3d 1,

23 (1st Cir. 2007)) (reviewing the district court's refusal to

equitably toll the statute of limitations in a Title VII case for

4
The named defendant in this case is Eric K. Shinseki in his
official capacity as Secretary for the Department of Veterans
Affairs. Throughout the opinion, when referencing the defendant,
we simply refer to the VA.

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abuse of discretion); see also Vera v. McHugh, 622 F.3d 17, 30 (1st

Cir. 2010).

B. The Legal Principle of Exhaustion

The ADA prohibits discrimination against an otherwise

qualified individual based on disability. 42 U.S.C. § 12112(a);

Calero-Cerezo, v. U.S. Dept. of Justice, 355 F.3d 6, 19 (1st Cir.

2004). Claims of employment discrimination arising under the ADA

are subject to the same remedies and procedures as those under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. ("Title VII"); 42 U.S.C. § 12117(a)("ADA"). Under Title VII,

a federal employee must exhaust her administrative remedies before

initiating a complaint of discrimination in federal court. See 42

U.S.C. § 2000e-16(c). The same is true for claims under the ADA.5

See Roman-Martinez v. Runyon, 100 F.3d 213, 216 (1st Cir. 1996).

Because administrative exhaustion "is a condition to the

waiver of sovereign immunity," it "must be strictly construed."

Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94 (1990).

Consequently, failure to comply with an agency's applicable time

5
Farris's complaint also alleges a violation of the
Rehabilitation Act. While our precedent states that a claim
brought under the Act does not require exhaustion, see Prescott v.
Higgins, 538 F.3d 32, 44 (1st Cir. 2008), we need not discuss this
issue as it was never raised before the district court, nor briefed
or argued before us. Consequently, it is deemed waived on appeal.
See In re Mecurio, 402 F.3d 62, 64 n.1 (1st Cir. 2005)("[T]his
issue was not argued by the parties before either the bankruptcy or
district courts, nor briefed or argued before us, and is thus
deemed waived.").

-8-
limit may expose the plaintiff's federal law suit to dismissal,

Cano v. United States Postal Serv., 755 F.2d 221, 223 (1st Cir.

1985)(per curiam), subject to narrowly applied equitable doctrines

such as tolling or estoppel. See Nat'l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002); Irwin, 498 U.S. at 93-96; Vera,

622 F.3d at 29-30. Only in "exceptional circumstances" will these

equitable principles extend the statute of limitations. Vistamar,

Inc. v. Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir. 2005)(citation

and internal quotation marks omitted). Furthermore, the heavy

burden to prove entitlement to equitable relief lies with the

complainant. See Rivera-Gomez v. de Castro, 900 F.2d 1, 3 (1st

Cir. 1990).

C. Equitable Tolling

Before delving too far, we note that both Farris and the

VA make much to do, unnecessarily, over the distinction between the

equitable doctrines of estoppel and tolling. Our review of the

record makes clear that Farris's argument on appeal is one of

tolling. Similarly, though the district court may have mistakenly

referred to "estoppel" on a few occasions within its order, it is

more than obvious that the court was analyzing Farris's claim based

on principles of tolling. With this minor quibble addressed, we

turn now to the law.

The Supreme Court has held that Title VII time limits are

not jurisdictional and may be subject to equitable tolling just

-9-
like private suits. Irwin, 498 U.S. at 93-96. As the district

court stated, "although the failure to comply with required time

periods ordinarily shuts the courthouse door to the Title VII

complainant, the would-be plaintiff can unlock it in exceptional

circumstances, where the plaintiff can demonstrate [entitlement to]

equitable tolling." Specifically, equitable tolling is appropriate

when a plaintiff shows that "circumstances beyond his or her

control precluded a timely filing." Abraham, 553 F.3d at 119.

However, a plaintiff generally cannot avail herself of the doctrine

if she is responsible for the procedural flaw that prompted

dismissal of her claim; in other words, equitable tolling will not

"rescue a plaintiff from his or her lack of diligence." Id.; see

also Irwin, 498 U.S. at 96. Moreover, we interpret the doctrine of

equitable tolling quite narrowly, particularly in suits against the

government. See Benitez-Pons v Com. of Puerto Rico, 136 F.3d 54,

61 (1st Cir. 1998).

In Baldwin County Welcome Center v. Brown, the Supreme

Court set out four circumstances in which equitable tolling may

grant a Title VII (and, by extension, an ADA) plaintiff relief: (1)

the plaintiff "received inadequate notice" of the statute of

limitations; (2) "a motion for appointment of counsel is pending

and equity would justify tolling the statutory period until the

motion is acted upon;" (3) "the court [has] led the plaintiff to

believe that she has done everything required of her," or (4)

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"affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction." 466 U.S. 147, 151 (1984); Rys v. U.S.

Postal Serv., 886 F.2d 443, 446 (1st Cir. 1989). In Irwin, the

Supreme Court stated that situations where a plaintiff "has

actively pursued his judicial remedies by filing a defective

pleading during the statutory period," may also warrant tolling.

498 U.S. at 96.

In this circuit, when a plaintiff asserts that Baldwin

County or Irwin-like factors excuse her tardy filing and justify

tolling the statute of limitations, we generally apply a five-

factor analysis and consider the following: "(1) lack of actual

notice of the filing requirement; (2) lack of constructive

knowledge of the filing requirement; (3) diligence in pursuing

one's rights; (4) absence of prejudice to the defendant; and (5) a

plaintiff's reasonableness in remaining ignorant of the filing

requirement." Mercado v. Ritz-Carlton San Juan Hotel, Spa &

Casino, 410 F.3d 41, 48 (1st Cir. 2005)(citation and internal

quotation marks omitted). Additionally, although absence of

prejudice is considered, it is not "an independent basis" for

tolling. Baldwin County, 466 U.S. at 152. Though this framework

provides guidance, it is not exhaustive; rather, we adhere to the

notion that "it is in the nature of equity to entertain case-

specific factors that may counsel in favor of tolling." Kale v.

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Combined Ins. Co. of America, 861 F.2d 746, 753 n.9 (1st Cir.

1988).

Farris concedes that she failed to timely file a formal

complaint with the EEOC. Nonetheless, it is her contention that

the district court erred when it refused to toll the fifteen-day

limitations period to save her belated filing. We disagree.

First, we must address Farris's misplaced reliance on

Perry v. Wolaver, 506 F.3d 48 (1st Cir. 2007) and the "excusable

neglect rubric" discussed therein. Id. at 56 n.10. In Perry, a

civil case not involving administrative remedies, we excused the

defendants' late response to a motion for summary judgment because

the defendants (1) had not missed any previous deadlines, (2) had

responded promptly when they were made aware of their error, (3)

had not shown any bad faith or intent to delay, and (4) had shown

that late filing would not cause prejudice to the plaintiff. Id.

According to Farris, application of these factors to her case

illustrates "that the District Court's mechanical application of

the 15-day time limit here unfairly [] prejudiced [her] and was

legal error." Farris's argument misses the mark. As the district

court properly observed, "[t]he Perry standards for evaluating

excusable neglect in a civil case pending before the Court are not

consistent with the Baldwin County standards for evaluating whether

a Title VII claimant has satisfied her burden of proving a claim of

equitable [tolling due to] her failure to meet administrative

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deadlines." We agree and find Farris's reliance on Perry, in the

face of the well-known Baldwin County and Irwin framework,

puzzling. With that settled, the analysis of this case under the

applicable framework is straightforward.

As the district court properly stated, none of the

circumstances set out in Baldwin County that could provide an

independent basis for tolling are present in Farris's case. To the

contrary, Farris and her attorney both received adequate notice of

the fifteen-day limitation period; no motion for appointment of

counsel was pending; the court did not lead Farris to believe she

had done everything required; and no affirmative misconduct by the

VA had lulled Farris into inaction. Similarly, the facts here fail

to fit within the Irwin framework: Farris did not file a defective

pleading during the fifteen-day time frame. Lastly, under this

court's five-factor analysis, Farris had both actual and

constructive notice, and she was not reasonably ignorant. Refusing

to throw in the towel, Farris persists with the following

arguments: (1) "the filing of a formal complaint with the OSC,

which defers to the EEOC, placed the VA on notice of her claim,"

(2) "the mistake was her lawyer's," (3) "dismissal with prejudice

is an extreme sanction," and (4) the "holiday rush" justified her

late filing.6

6
Farris presents seven different arguments, but because three
of them are based on her reliance on Perry, we will not discuss
them. Those arguments are as follows: (1) she was diligent in her
pursuit of multiple avenues of relief and had complied with all

-13-
 It is axiomatic that "equitable tolling do[es] not extend

to what is at best a garden variety claim of excusable neglect,"

Irwin, 498 U.S. at 96, yet that is exactly what Farris proffers.

First, Farris's argument that the VA was put on notice of her claim

because she had filed a formal complaint with the OSC is completely

unpersuasive. We firmly agree with the district court that

Farris's "pursuit of other remedies with other agencies does not

justify her failure to comply with EEOC procedure." Second,

although Attorney Mills was ultimately responsible for making sure

the formal complaint was timely filed, "[u]nder our system of

representative litigation, each party is deemed bound by the acts

of his lawyer-agent." Id. at 92 (internal quotation marks

omitted); see also Kelley v. Nat'l Labor Relations Bd., 79 F.3d

1238, 1249 (1st Cir. 1996)(stating that "courts generally impute

constructive knowledge of filing and service requirements to

plaintiffs who . . . consult with an attorney")). Third, under the

doctrine of administrative exhaustion, dismissal with prejudice can

be the appropriate consequence for failure to comply with the

applicable administrative time frame. See Cano, 755 F.2d at 223

("Since we hold that tolling is not justified in this instance,

Cano's failure to file her charge of discrimination within the

required time period bars relief in the district court.").

other deadlines, (2) she had complied with the standards set forth
in Perry, and (3) the VA was not prejudiced due to the belated
filing.

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Finally, the contention that the belated filing was justified

because the fifteen-day time period fell during the holidays is, to

say the least, highly unconvincing. As the district court stated,

"[t]he holiday period between Christmas and New Year's Day is a

readily anticipated annual affair and legal deadlines invariably

continue to fall due." We agree. Consequently, Farris has failed

to satisfy her burden of showing "exceptional circumstances" that

would warrant tolling.

III. CONCLUSION

For the reasons set forth above, the district court did

not abuse its discretion by refusing to equitably toll the fifteen-

day filing deadline in order to save Farris's tardy EEOC filing.

Because Farris concedes that her complaint was filed late and time-

barred absent tolling, the district court's grant of summary

judgment for the VA was proper. We affirm.

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