United States Court of Appeals
For the First Circuit
No. 04-1772
MIRIAM JORGE ET AL.,
Plaintiffs, Appellants,
v.
DONALD H. RUMSFELD, SECRETARY, UNITED STATES
DEPARTMENT OF DEFENSE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.
Marie Elsie López-Adames, with whom González-López & López-
Adames was on brief, for appellants.
Fidel A. Sevillano Del Rio, Assistant United States Attorney,
with whom H. S. Garcia, United States Attorney, and Miguel A.
Fernandez, Assistant United States Attorney, were on brief, for
appellee.
April 21, 2005
SELYA, Circuit Judge. Plaintiff-appellant Miriam Jorge
brought a discrimination suit against her government employer.1
The district court ruled that Jorge's cause of action under the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, was
time-barred and that her claim under Title VII of the Civil Rights
Act of 1964 (Title VII), 42 U.S.C. § 2000e-2(a)(1), was foreclosed
because she had not exhausted her administrative remedies. After
careful perscrutation of the briefs and record, we affirm the
judgment below.
I. BACKGROUND
This appeal follows a dismissal for failure to state a
claim upon which relief can be granted. See Fed. R. Civ. P.
12(b)(6).2 Consequently, we accept the well-pleaded facts as true
1
Jorge's husband, the couple's conjugal partnership, and
Jorge's ward are also plaintiffs and appellants. Because their
claims are purely derivative, we treat Jorge as if she were the
sole plaintiff and appellant. Our decision is, of course, binding
on all parties.
2
In the district court, the government originally filed a
hybrid motion to dismiss "pursuant to Rule 12(b)(6) and Rule 56(c)
of the Federal Rules of Civil Procedure." Its reply to Jorge's
opposition confirmed this ambivalence, requesting that "this entire
action be dismissed, or in the alternative, that [the district
court] grant summary judgment to defendants." In ruling on the
motion, the district court treated it as a motion to dismiss. See
Jorge v. Rumsfeld, Civ. No. 03-1224, slip op. at 1 (D.P.R. Mar. 9,
2004) (unpublished). Before us, the government has briefed the
case in terms of the Rule 12(b)(6) standard. Because that standard
is more favorable to Jorge than the Rule 56 standard, see Collier
v. City of Chicopee, 158 F.3d 601, 602-03 (1st Cir. 1998), we
follow the district court's lead and apply the jurisprudence of
Rule 12(b)(6).
-2-
and indulge all reasonable inferences therefrom in the plaintiff's
favor. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508
(1st Cir. 1998). We augment those facts with facts extractable
from documentation annexed to or incorporated by reference in the
complaint and matters susceptible to judicial notice. See In re
Colonial Mortg. Bankers Corp., 324 F.3d 12, 14 (1st Cir. 2003); see
also Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st
Cir. 1998) ("When, as now, a complaint's factual allegations are
expressly linked to — and admittedly dependent upon — a document
(the authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can
review it in deciding a motion to dismiss under Rule 12(b)(6).").
Moreover, the district court appropriately may consider the whole
of a document integral to or explicitly relied upon in a complaint,
even if that document is not annexed to the complaint. See Clorox
Co. P.R. v. Proctor & Gamble Comm'l Co., 228 F.3d 24, 32 (1st Cir.
2000).
Applying these tenets to the instant record enables us to
mine certain additional nuggets of information. The correspondence
between Jorge's attorney and the Equal Employment Opportunity
Commission (EEOC) — most notably, the right-to-sue letter upon
which Jorge predicates her claim of exhaustion — falls within this
parameter. So to does Jorge's notice of retirement. With this in
mind, we rehearse the relevant facts.
-3-
Between 1973 and 2001, Jorge worked for the Army and Air
Force Exchange Services (AAFES), a commissary program for military
personnel administered by the Department of Defense. In 1979, she
became the retail manager of Toyland, an AAFES-operated store on
the premises of Fort Buchanan (which is located in Guaynabo, Puerto
Rico). Jorge remained in this position for nearly two decades
until, at the age of fifty-one, she elected to make a lateral
transfer to the Base Muñiz Shoppette (which is located at a
National Guard installation some twelve miles away). Jorge claims,
and the defendants do not contest, that she was a model employee
who, both at Toyland and at the Shoppette, consistently exceeded
sales and performance targets set by senior management.
Jorge began working at the Shoppette in 1998. Soon
thereafter, AAFES assigned Debra Baynard to oversee its operations
in the region. The relationship between Baynard and Jorge quickly
turned frosty. From Jorge's point of view, Baynard altered the
workplace by insisting upon, and rigorously enforcing, an English-
only policy and by undermining Jorge's managerial authority in
insidious ways. When Jorge complained about Baynard's policies and
practices, Baynard allegedly made derogatory comments about her
age.
The situation came to a head early in 2000 when, during
Jorge's vacation, Baynard unilaterally transferred her back to her
former position at Toyland and filled the position she had occupied
-4-
at the Shoppette with a younger, less experienced man who spoke
only English. After Jorge's vacation ended on March 4, 2000, she
met with Baynard, who served formal notice of the job shift without
offering Jorge any explanation for it.
Jorge refused to report for duty at Toyland. Instead,
she exhausted her accrued vacation time and sick leave while trying
to get herself reinstated at the Shoppette. Even after her efforts
proved unsuccessful, she refused to assume her duties at Toyland.
In due course, AAFES informed her that, pursuant to settled agency
regulations, her extended absence had led to the forfeiture of any
right she may have had to regain her position at the Shoppette.
Jorge was given two options at that juncture: return to Toyland or
take early retirement. She chose the latter option and, on April
17, 2001, submitted a notice of "involuntary early retirement,"
retroactive to March 30, 2001.
II. TRAVEL OF THE CASE
Jorge did not let sleeping dogs lie. Her first
initiative came in the form of a notice letter, dated May 8, 2001,
sent on her behalf to the EEOC. That letter announced her
intention to sue for age discrimination. Following the expiration
of a thirty-day waiting period, the agency granted Jorge leave to
sue under the ADEA. See 29 U.S.C. § 633a(d). Several months then
passed with no further action.
-5-
On April 1, 2002, Jorge commenced an action in the
federal district court, seeking relief under, inter alia, the ADEA
and Title VII. In her complaint, Jorge alleged that she was
humiliated both by Baynard's ageist comments and by the English-
only requirement, and that the involuntary transfer to Toyland
exacerbated this state of affairs. She also characterized her
early retirement, for the first time, as a constructive discharge.
Jorge's complaint named a bevy of defendants, including
the Secretary of Defense, AAFES, Baynard, two other AAFES managers
who had assisted Baynard in facilitating the transfer, the spouses
and conjugal partnerships of the individual defendants, and four
unidentified defendants (apparently sued as place-holders). Jorge
experienced difficulty in serving the individual defendants (other
than Secretary Rumsfeld). She discussed this problem with the
Assistant United States Attorney (AUSA) who was handling the case.
The AUSA suggested that she dismiss the action without prejudice,
see Fed. R. Civ. P. 41(a)(1), get her ducks in a row, and then
refile. Eventually, Jorge embraced that suggestion and moved to
dismiss the complaint without prejudice. The government consented,
and the district court granted the motion on September 27, 2002.
Jorge commenced a new action, identical to the first in
all respects, on March 4, 2003. That action ended in the order of
dismissal that undergirds this appeal. We pause to explicate the
district court's reasoning.
-6-
The court first determined that Jorge's supplemental
claims were not cognizable because the ADEA and Title VII comprised
the exclusive remedies for claims of age, gender, and national
origin discrimination. Jorge v. Rumsfeld, Civ. No. 03-1224, slip
op. at 4 (D.P.R. Mar. 9, 2004) (unpublished). The court then
concluded that the Secretary of Defense was the only proper
defendant in regard to the ADEA and Title VII claims and dismissed
the action as to all the other defendants. Id. at 5. These
rulings are not contested on appeal, and we do not discuss them.
With respect to Jorge's Title VII claim against the
Secretary, the lower court noted that Jorge's sole contact with the
EEOC was her letter indicating an intent to sue under the ADEA.
Id. at 6. It thereupon dismissed her Title VII claim without
prejudice for failure to "initiate[], much less exhaust[]," her
administrative remedies. Id. at 7. Finally, the court noted that
Jorge's ADEA claim was subject to a two-year statute of
limitations. See Rossiter v. Potter, 357 F.3d 26, 27 (1st Cir.
2004). In light of that limitations period, the district court
held that Jorge, who had instituted the operative action a full
three years after her involuntary transfer, had sued too late.
Jorge, slip op. at 8. For that reason, the court dismissed the
ADEA claim with prejudice. Id. This appeal followed.
-7-
III. ANALYSIS
On appeal, Jorge limits her assault to the district
court's disposition of her ADEA and Title VII claims. We consider
these lines of attack separately.
A. The ADEA Claim.
The district court held that Jorge's ADEA claim was time-
barred. Id. That holding rested on a determination that the cause
of action accrued at the time of the involuntary transfer rather
than at the time of Jorge's retirement. See id. (concluding that
the transfer constituted "the gravamen of plaintiff's ADEA claim").
Jorge assigns error to that determination. We consider her
argument, mindful that when, as now, an order of dismissal is
premised on the running of the applicable limitations period, we
may affirm only if the Rule 12(b)(6) record "leave[s] no doubt that
[the] asserted claim is time-barred." LaChapelle, 142 F.3d at 509.
The ADEA requires that personnel actions affecting most
employees who are forty years of age or older be free from age-
based discrimination. 29 U.S.C. § 633a(a). In one sense, the ADEA
treats federal employees as a class apart from other employees.
See Rossiter, 357 F.3d at 28-29 (discussing the statutory scheme).
That difference implicates the ADEA's enforcement mechanism:
whereas most employees must first exhaust administrative remedies
before instituting an ADEA action, see 29 U.S.C. § 626(d), a
federal employee has the option of bypassing administrative
-8-
remedies entirely and suing directly in the federal district court.
Id. § 633a(c). A federal employee who wishes to avail himself of
this bypass option must notify the EEOC of his intent to sue within
180 days following the occurrence of the allegedly unlawful
practice and then observe a thirty-day waiting period before filing
suit. Id. § 633a(d). The EEOC is required to notify the putative
defendant of the employee's intent to sue, but it has no authority
to forestall the litigation. Id.
In this instance, it is beyond peradventure that Jorge
gave notice of her intent to sue and that the thirty-day cooling-
off period elapsed. But because an action prosecuted pursuant to
29 U.S.C. § 633a(c) is subject to a two-year limitations period,
Rossiter, 357 F.3d at 34-35, it is less clear whether Jorge brought
her action within the prescribed time. The uncertainty arises out
of a difference of opinion about the accrual date.
On the one hand, the government posits — and the district
court agreed — that the last independent act of alleged age
discrimination occurred when Baynard unilaterally transferred Jorge
to Toyland. On the other hand, Jorge argues that her retirement
should be treated as an independent act of discrimination. The
choice of an accrual date makes a dispositive difference here.
Jorge commenced this action on March 4, 2003. If the accrual date
is the date of the transfer, which occurred during, or just after
the end of Jorge's vacation (for simplicity's sake, we shall use an
-9-
approximate date of March 4, 2000), her ADEA claim is time-barred.
If however, the accrual date is the date of her retirement (which
took place on April 17, 2001, retroactive to March 30, 2001),3 her
ADEA claim is timely.
Jorge's argument proceeds on the basis of a supposed
constructive discharge. That is theoretically feasible: a
constructive discharge can constitute an adverse employment action
under the ADEA. See, e.g., Suarez v. Pueblo Int'l, Inc., 229 F.3d
49, 54 (1st Cir. 2000) (explaining that a charge will lie if the
employer has "engag[ed] in a calculated, age-inspired effort to
force an employee to quit"). By the same token, an offer of an
early retirement package sometimes can be a vehicle for a
constructive discharge: a worker who is presented with such a
package can be said to be constructively discharged if her refusal
to accept the offer will result in work or working conditions so
onerous or disagreeable that a reasonable person would feel
compelled to forsake employment rather than to submit herself to
manifold indignities. Vega v. Kodak Caribbean, Ltd., 3 F.3d 476,
480 (1st Cir. 1993). The rationale behind this rule is rooted in
a desire to ensure that an employer bent on dismissing an employee
for age-related reasons cannot skirt Congress's clear prohibition
on such discrimination by indirection. See Suarez, 229 F.3d at 54.
3
Because the former date is potentially more helpful to Jorge,
we assume arguendo that it was the date of her retirement.
-10-
Although Jorge would have us believe that the employer's
offer of early retirement here was tantamount to a constructive
discharge (and, thus, an independent act of discrimination giving
rise to her ADEA claim), her complaint — even when read with full
deference to its factual allegations — fails to bear out this
assertion. Jorge's troubles evidently stemmed from the sequence of
events exemplifying the harassing behavior of her new supervisor.
That sequence of events began in 1998 and culminated in the order
transferring her to Toyland. Jorge refused to accept that
transfer, even though it entailed no loss of pay, benefits, status,
or the like.4 Because that transfer entailed no tangible
diminution, it did not, without more, sink to the level of
indignity necessary to make out a prima facie case of constructive
discharge. See Suarez, 229 F.3d at 56. Here, there is no "more";
Jorge's complaint is devoid of any allegations indicating that, by
accepting the transfer, she would have been subjected to the kind
of indignities against which the ADEA stands guard.
Nor does Jorge allege a discriminatory motive behind
AAFES's directive that she report to Toyland or take early
retirement. When Jorge refused to accept the transfer, she did not
resign, but remained nominally in AAFES's employ, drawing salary
4
In her appellate briefs, Jorge asserts for the first time
that AAFES had been planning to close the Toyland store and that
her transfer was thus merely an opening gambit en route to the
eventual elimination of her job. We decline to consider this
previously unraised and inherently speculative assertion.
-11-
and benefits from her accumulated vacation time and sick leave
while protesting the transfer administratively. By all accounts,
it was the refusal to report for work and the passage of time that
led to AAFES's ultimatum, and Jorge does not suggest that this
action was anything other than standard operating procedure. Thus,
the Toyland transfer constituted the last independent
discriminatory act visited upon her — in the district court's
phrase, it constituted the "gravamen of [p]laintiff's complaint,"
Jorge, slip op. at 8 — and the employer's ultimatum that she accept
the transfer or retire early was merely an inevitable consequence
of that action. It follows that the ADEA limitations period runs
from the date the transfer order was made.
The most pertinent authority for this proposition is the
Supreme Court's decision in Delaware State College v. Ricks, 449
U.S. 250 (1980). There, a college denied tenure to a faculty
member who alleged that the denial was attributable to national
origin discrimination. Id. at 252-54. The administration then
offered the faculty member a one-year contract, not subject to
renewal. Id. at 253. The offer was accepted and, after the year
had run, the faculty member left the school's employ. He then
sued. The Court deemed the case time-barred, rejecting the faculty
member's contention that his employment discrimination claim
accrued from the expiration of his terminal contract. Id. at 257-
58. The Court held that the plaintiff had neither alleged nor
-12-
proved "that the manner in which his employment was terminated
differed discriminatorily from the manner in which the College
terminated other professors who also had been denied tenure." Id.
at 258. Absent such an allegation, the plaintiff's loss of
employment was merely an "inevitable consequence" of the earlier
(time-barred) tenure decision, and could not constitute a
separately actionable event. Id. at 257-58. In short, "the
critical datum is the point in time at which the discriminatory act
occurred," not the point at which its effects became most
injurious. Morris v. Gov't Dev. Bank, 27 F.3d 746, 749 (1st Cir.
1994).
We find the same deficiency in Jorge's complaint. She
has not pled that the choice ultimately given her by AAFES differed
discriminatorily from the way in which the organization handled
personnel matters involving other, similarly situated employees
(i.e., those who had refused to accept lateral transfers and who
had exhausted their vacation and sick leave time). Nor has she
explained how the employer's return-or-retire ultimatum differed in
any respect from the employer's standard response to younger,
similarly situated employees. Here, as in Ricks, the mere
continuity of the employment relationship, in and of itself, is not
enough "to prolong the life of a cause of action." Ricks, 449 U.S.
at 257; accord Campbell v. BankBoston, 327 F.3d 1, 11 (1st Cir.
-13-
2003); Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 123
(1st Cir. 1998).5
Jorge makes a last-ditch effort to resuscitate her ADEA
claim by arguing that the operative tolling date was April 1, 2002
(the date when she filed her first action, later dismissed) rather
than March 4, 2003 (the date when she commenced the action
presently on appeal). This argument is hopeless: March 4, 2003
was the correct tolling date for the statute of limitations
calculation.
A voluntary dismissal without prejudice results in a
tabula rasa. It renders the proceedings null and void and leaves
the parties in the same position as if the action had never been
prosecuted. Nat'l R.R. Passenger Corp. v. Int'l Ass'n of
Machinists, 915 F.2d 43, 48 (1st Cir. 1990); In re Piper Aircraft
Distrib. Sys. Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977).
Consequently, "a prescriptive period is not tolled by filing a
complaint that is subsequently dismissed without prejudice."
Chico-Vélez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998).
5
Jorge's reliance on Flaherty v. Metromail Corp., 235 F.3d
133, 138-39 (2d Cir. 2000), in which an employee who had alleged a
constructive discharge was allowed to start the limitations clock
for her discrimination claim from the date that she submitted her
letter of resignation, misses the mark. There the plaintiff had
remained at work after being notified of her "looming termination"
and continued, up to the date of her resignation, to suffer
indignities attributable to a discriminatorily hostile work
environment. See id. at 138. In this case, the last act of
discrimination was the transfer order itself. Flaherty is,
therefore, inapposite.
-14-
Equally unavailing is Jorge's contention that the statute
of limitations should be equitably extended due to her attorney's
misplaced reliance on the AUSA's suggestion that she dismiss the
first action because of the difficulty she was experiencing in
locating some of the individual defendants. While the doctrine of
equitable estoppel may be invoked when "a defendant's conduct
causes a plaintiff to delay bringing an action or pursuing a claim
he or she was entitled to initiate by law," Kelley v. NLRB, 79 F.3d
1238, 1247 (1st Cir. 1996), this requires affirmative misconduct,
see id.; see also Lavery v. Marsh, 918 F.2d 1022, 1028 (1st Cir.
1990). Jorge makes no such claim — nor would the pleaded facts
support one.
To say more about the ADEA claim would be pointless. For
the foregoing reasons, we affirm the district court's dismissal of
that claim as time-barred.
B. The Title VII Claim.
The district court dismissed Jorge's Title VII claim
without prejudice for failure to exhaust administrative remedies.
Jorge, slip op. at 7. Jorge assigns error to this ukase as well.
She is fishing in an empty stream.
Unlike the ADEA, Title VII does not spare federal
employees from running the administrative gauntlet. An individual
who has suffered discrimination at the hands of a federal employer
on account of race, color, religion, gender, or national origin
-15-
must file an administrative complaint with the EEOC within 180 days
of the alleged unlawful employment practice. See 42 U.S.C. §
2000e-15(c)(1) & 16(c). The employee may commence a civil action
against her employer if, and only if, the EEOC has dismissed the
administrative complaint or has itself failed to begin a civil
action within 180 days of the original EEOC filing.6 Id. § 2000e-
5(f)(1). The employee then must sue within ninety days. Id. The
ninety-day period begins to run from the time that the Attorney
General notifies the employee either that the EEOC has dismissed
the charge or that the government has failed to address the
employee's grievance (by reaching a negotiated settlement or by
commencing litigation on her behalf). See id.; see also Clockedile
v. N.H. Dep't of Corr., 245 F.3d 1, 3 (1st Cir. 2001). It is thus
apparent that "[j]udicial recourse under Title VII . . . is not a
remedy of first resort." Morales-Vallellanes v. Potter, 339 F.3d
9, 18 (1st Cir. 2003).
In light of the statutory scheme, it is unsurprising
that, in a Title VII case, a plaintiff's unexcused failure to
exhaust administrative remedies effectively bars the courthouse
door. See, e.g., Duncan v. Manager, Dep't of Safety, 397 F.3d
1300, 1314 (10th Cir. 2005); Duncan v. Delta Consol. Indus., Inc.,
371 F.3d 1020, 1024-25 (8th Cir. 2004); Taylor v. Books A Million,
6
A federal employee may, of course, intervene in an action
brought by the EEOC on her behalf. See 42 U.S.C. § 2000e-5(f)(1).
-16-
Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); see also Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999).
Exhaustion has two key components: the timely filing of a charge
with the EEOC and the receipt of a right-to-sue letter from the
agency. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798
(1973); McKinnon v. Kwong Wah Rest., 83 F.3d 498, 504 (1st Cir.
1996).
Jorge says that she filed a charge with the EEOC within
the prescribed period and that the EEOC, in turn, sent her a right-
to-sue letter. But that is a half-truth. The charge was not a
charge at all, but, rather, a notice of intent to sue. Perhaps
more importantly, both the so-called "charge" and the subsequent
right-to-sue letter concerned only her ADEA claim; she never filed
a Title VII claim with the EEOC, and her attempt to piggyback a
non-existent Title VII filing on an ADEA filing does not hold
water.
A Title VII suit may extend as far as, but not beyond,
the parameters of the underlying administrative charge. See Fine
v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). This does
not mean that the scope of the suit is inevitably limited to the
allegations in the administrative complaint, but it is nonetheless
constrained by those allegations in the sense that the judicial
complaint must bear some close relation to the allegations
presented to the agency. Cf. Clockedile, 245 F.3d at 6 (holding
-17-
that retaliation claims are preserved if the retaliation is
"reasonably related to and grows out of" the discrimination charged
in the administrative complaint). Jorge's filings do not pass that
test.
The ADEA and Title VII cover separate and distinct
subjects. See Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999)
(explaining that age discrimination claims are not cognizable under
Title VII). Moreover, the two statutes operate in different
administrative universes vis-à-vis federal employees. Compare 29
U.S.C. § 633a(c), with 42 U.S.C. § 2000e-16(c). A merger of the
two schemes by judicial fiat would destroy the very purpose of
exhaustion by depriving the EEOC of the ability to resolve Title
VII disputes in the conference room rather than in the courtroom.
See 42 U.S.C. § 2000e-5(b) ("[T]he Commission shall endeavor to
eliminate any such alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.").
Accordingly, we hold that neither Jorge's ADEA filing nor the
ensuing right-to-sue letter exhausted her administrative remedies
for purposes of her Title VII claim.
Jorge has a fallback position. Even if the district
court was correct in holding that her administrative journey was
incomplete with respect to her Title VII claim, Jorge seeks to
persuade us that she nonetheless may find relief under the doctrine
of equitable tolling. We are not convinced.
-18-
To be sure, an employee's failure to follow the
administrative route to its due completion does not automatically
doom a Title VII claim. The charge-filing requirement is mandatory
but not jurisdictional; therefore, it is subject to a host of
equitable exceptions. Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982); Bonilla, 194 F.3d at 278. In deference,
however, to Title VII's carefully crafted temporal limitations, we
invoke those exceptions sparingly and interpret them narrowly. See
Bonilla, 194 F.3d at 278; Jensen v. Frank, 912 F.2d 517, 521 (1st
Cir. 1990). Thus, an employee is generally not entitled to avail
herself of the doctrine of equitable tolling if the procedural flaw
that prompted the dismissal of her claim is of her own making. See
Bonilla, 194 F.3d at 279 ("Generally speaking — peculiar
circumstances may leave some wiggle room — equitable tolling is not
appropriate unless a claimant misses a filing deadline because of
circumstances effectively beyond her control (such as when her
employer actively misleads her, and she relies on that misconduct
to her detriment).").
Jorge pretty much ignored this issue in the proceedings
before the district court. She raises it in this court, but she
has offered no developed argumentation as to why her case should
not come within the general rule rather than within the long-odds
-19-
exception to it. Consequently, she is not entitled to invoke the
equitable tolling doctrine here.7
IV. CONCLUSION
We need go no further. Discerning no error in the
district court's well-reasoned decision, we affirm the judgment
below.
Affirmed.
7
Jorge makes a feeble attempt to rely on the continuing
violation doctrine. See, e.g., Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-17 (2002); Mack v. Great Atl. & Pac. Tea
Co., 871 F.2d 179, 182 (1st Cir. 1989). That doctrine relates to
statutes of limitations and has no bearing on relief from Title
VII's exhaustion requirements.
-20-
Jorge v. Rumsfeld
Court: Court of Appeals for the First Circuit
Date filed: 2005-04-21
Citations: 404 F.3d 556
Copy Citations