[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-17238 Sept. 21, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 08-00124-CV-1
BILLY D. GANT,
Plaintiff-Appellant,
versus
JEFFERSON ENERGY COOPERATIVE,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(September 21, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Billy D. Gant, an African American, appeals pro se the district court’s
dismissal sua sponte of his complaint under Title VII of the Civil Rights Act
(“Title VII”) 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a), and 2000e-5(e)(1) for being
untimely. He filed a lawsuit against his former employer Jefferson Energy
Cooperative, alleging wrongful termination, hostile work environment, and
retaliation. He filed for and received in forma pauperis status. Pursuant to 28
U.S.C. § 1915(e)(2)(B), the district court reviewed his complaint sua sponte and
dismissed it for being untimely because it was filed outside of the 90-day window
mandated by law. On appeal, Gant argues that he filed his right-to-sue letter – but
not his formal complaint – within 90 days, and that any delay was the fault of a
civil rights organization he consulted following his termination.
I.
Under § 1915(e)(2)(B), a court shall dismiss a case proceeding in forma
pauperis “at any time if the court determines that . . . the action or appeal is
frivolous or malicious” or “fails to state a claim on which relief may be granted.”
Dismissal of an in forma pauperis action under § 1915(e)(2)(B)(i) as being
frivolous is reviewed for abuse of discretion. Mitchell v. Brown & Williamson
Tobacco Corp., 294 F.3d 1309, 1315 (11th Cir. 2002). An action “is frivolous if it
is without arguable merit either in law or fact.” Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001). Review of a dismissal under § 1915(e)(2)(B)(ii) for failure
to state a claim is reviewed de novo. Alba v. Montford, 517 F.3d 1249, 1252 (11th
Cir.), cert. denied, 129 S.Ct. 632 (2008). Pro se briefs and pleadings are to be
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construed liberally. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998).
In order to bring a viable claim in court under Title VII, a plaintiff must first
exhaust administrative remedies. Wilkerson v. Grinnel Corp., 270 F.3d 1314, 1317
(11th Cir. 2001). First, in a non-deferral state such as Georgia, a plaintiff must file
a complaint with the EEOC within 180 days of the alleged discriminatory act or
acts. 42 U.S.C. § 2000e-5(1), Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258
(11th Cir. 2003). Second, upon receiving a right-to-sue letter from the EEOC
upon the termination of their investigation, the plaintiff may bring a civil action
against the named respondent within 90 days by filing a complaint. 42 U.S.C.
§ 2000e-5(f)(1). The time limit is non-jurisdictional. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982).
Because it is non-jurisdictional, the time limit is subject to equitable tolling,
permitting a court to disregard the late filing under certain circumstances. Id. We
have held that “traditional equitable tolling principles require a claimant to justify
[his] untimely filing by a showing of extraordinary circumstances.” Jackson v.
Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). These include “fraud,
misinformation, or deliberate concealment.” Id. at 1355. However, “[a]ttorney
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negligence is not a basis for equitable tolling.” Johnson v. Florida Department of
Corrections, 513 F.3d 1328, 1333 (11th Cir.), cert. denied, 129 S.Ct. 348 (2008).
The Supreme Court has held that the filing of a right-to-sue letter, without
“a short and plain statement of the claim showing that the pleader is entitled to
relief,” neither satisfies Federal Rule of Civil Procedure 8(a)(1) nor tolls the
statute of limitations. Baldwin County Welcome Center v. Brown, 466 U.S. 147,
149, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984). We concluded in Judkins v.
Beech Aircraft Corp., 745 F.2d 1330, 1332 (11th Cir. 1984), that the filing of
additional documents, such as an EEOC “Charge of Discrimination,” with a right-
to-sue letter, would comply with the pleading requirements laid out in Baldwin.
After a careful review of the record on appeal and Gant’s brief, we find no
reversible error. Gant’s complaint under Title VII was properly dismissed as
being untimely. The district court was correct to dismiss the complaint as filed
beyond the 90-day limit. The stamp on the complaint bears the date “August 28,
2008" as does Gant’s handwritten date above his signature. He offers no argument
that he filed the complaint in a timely manner, only that he filed the right-to-sue
letter in a timely manner. Additionally, he does not argue that he filed any other
documentation with the right-to-sue letter that would satisfy the requirement of “a
short and plain statement of the claim showing that the pleader is entitled to
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relief.” Further, equitable tolling does not apply in his case because the
negligence of an attorney will not excuse lack of timeliness.1 For the above
reasons, we affirm the district court’s order dismissing the complaint.
AFFIRMED.
1
Gant did not cite to 42 U.S.C. § 1981 before the district court or now on appeal, and he
never asked the district court to construe his complaint – filed on a Title VII form – as arising
under that provision. Accordingly, we conclude that he has waived any claim in this regard.
GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (noting that
although we show leniency to pro se litigants, we will not serve as de facto counsel or “rewrite an
otherwise deficient pleading in order to sustain an action.”)
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