United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 1998 Decided September 22, 1998
No. 96-7149
Jessica C. Smith-Haynie,
Appellant
v.
District of Columbia
and
Addison Davis
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00064)
JePhunneh Lawrence argued the cause and filed the briefs
for appellant.
Sheila Kaplan, Assistant Corporation Counsel, argued the
cause for appellees. Jo Anne Robinson, Interim Corporation
Counsel, Charles L. Reischel, Deputy Corporation Counsel,
and Martin B. White, Assistant Corporation Counsel, were on
the brief. Charles F.C. Ruff, White House Counsel, entered
an appearance.
Before: Wald, Sentelle and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Jessica Smith-Haynie, an African-
American woman, began working for the Firearms Identifica-
tion Branch of the District of Columbia Metropolitan Police
Department ("M.P.D.") as a civilian "Firearms Technician
Trainee" in 1984. According to Smith-Haynie's complaint,
she was harassed and discriminated against because of her
race and gender virtually from the start. She identifies her
supervisor, George Wilson, as the chief offender. She also
alleges that defendant Addison Davis, the M.P.D.'s Equal
Employment Opportunity Commission ("EEOC") officer, ha-
rassed her from 1988, when she first filed a discrimination
complaint, through 1992, when she took maternity leave.
Smith-Haynie filed a second complaint with the EEOC in
1992, charging Davis with harassment and retaliation for the
earlier complaint. She states that she has not returned to
her job since her maternity leave because of continuing
problems with anxiety and work-related phobias.
Smith-Haynie received a right-to-sue letter from the
EEOC on October 18, 1995. She filed her complaint in
district court on January 18, 1996, charging the M.P.D. and
Davis with violations of Title VII, 42 U.S.C. s 2000e et seq.,
the Civil Rights Act of 1866, 42 U.S.C. s 1981, the Civil
Rights Act of 1871, 42 U.S.C. s 1983, and the Equal Pay Act
of 1963, 29 U.S.C. s 206(d). Unfortunately for Smith-Hay-
nie, she filed her suit 92 days after she received the letter--
two days outside of the statutory period for filing suit under
Title VII. Before filing an answer, defendants moved under
Fed. R. Civ. P. 12(b)(6) to dismiss or, in the alternative, for
summary judgment. The district court treated the motion as
one for summary judgment and ruled for defendants on all
counts.1 Smith-Haynie v. District of Columbia et al., Civ.
__________
1 Since Smith-Haynie failed to contest defendants' allegation that
the most recent offense occurred in or before 1992, the district
No. 96-0064 (D.D.C. May 10, 1996). Smith-Haynie appealed.
Her arguments boil down to two: first, that defendants
impermissibly raised the affirmative defense of untimeliness
by dispositive motion before filing an answer under Fed. R.
Civ. P. 8(c); 2 and second, that ongoing and severe harass-
ment rendered her non compos mentis during the limitations
period and should result in either equitable tolling of the time
limit or equitable estoppel of its operation.
We conclude that an affirmative defense can be properly
raised in a pre-answer motion, and further, that Smith-
Haynie did not produce adequate support for her non compos
mentis argument. We therefore affirm the district court's
grant of summary judgment.
I.
We decide de novo the legal question of whether the
affirmative defense of statutory limitation can be raised in a
pre-answer motion under the proper construction of Rules
12(b) and 8(c). See Harris v. Secretary, U.S. Dep't of Veter-
ans Affairs, 126 F.3d 339, 342 (D.C. Cir. 1997). In Gordon v.
National Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir.
1982), we said that a statute of limitations defense under Title
VII is an affirmative defense that is properly raised by
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court dismissed the sections 1981 and 1983 and Equal Pay Act
claims as barred by the applicable statutes of limitations. See
Hobson v. Wilson, 737 F.2d 1, 32 (D.C. Cir. 1984) (three year
statute of limitations in the District of Columbia for sections 1981
and 1983); 29 U.S.C. s 255(a) (three year statute of limitations for
willful violations of the Equal Pay Act). This was not an abuse of
discretion and dismissal of these claims will be upheld. See CSX
Transportation, Inc. v. Commercial Union Ins. Co., 82 F.3d 478,
482 (D.C. Cir. 1996).
2 The appeal of this case was held in abeyance pending the
outcome of Harris v. Secretary, U.S. Dep't of Veterans Affairs, 126
F.3d 339 (D.C. Cir. 1997). Smith-Haynie then moved for summary
reversal and remand based on Harris. The motion was denied and
the issue referred to the merits panel.
dispositive motion under Rule 12(b)(6). Gordon did not, of
course, address the precise situation involved in this case,
whether defendants can raise an affirmative defense by filing
a dispositive motion before they file an answer. Recently, we
decided in Harris that an affirmative defense is forfeited if it
is not raised in the answer and the answer is the first
responsive pleading in the case. Harris used sweeping lan-
guage: "In order to preserve the notice purpose of Rule 8(c)
..., we hold that Rule 8(c) means what it says: a party must
first raise its affirmative defenses in a responsive pleading
before it can raise them in a dispositive motion." Harris, 126
F.3d at 345.
However, this broad prohibition must be read in context.
The precise holding of Harris is that an affirmative defense
not raised by answer cannot be raised in dispositive motions
that are filed post-answer. The defendant in Harris had filed
its answer to the complaint, as well as answers to two
amended complaints, and each time had failed to plead un-
timeliness as an affirmative defense. Since "[f]ailure to raise
an affirmative defense in pleadings deprives the opposing
party of precisely the notice that would enable it to dispute
the crucial issues of the case on equal terms," id. at 343, a
defendant forfeits an affirmative defense that is not pleaded
in its answer or amended answer. In Harris, we cited with
approval Funding Systems Leasing Corp. v. Pugh, 530 F.2d
91, 96 (5th Cir. 1976), which adopted the majority view that
unpled affirmative defenses cannot be raised by dispositive
motion unless that motion is the first responsive pleading.
See Harris, 126 F.3d at 345; see also 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice & Procedure s 1277
(2d ed. 1990 & 1997 supp.). Courts that have adopted this
majority rule, however, have also reasoned that since a
plaintiff's complaint necessarily includes certain facts about
an alleged offense, such as dates, the plaintiff does not suffer
from lack of notice when a defendant bases a pre-answer
motion on the facts as alleged in the complaint. See, e.g.,
Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d
Cir. 1989); Conerly v. Westinghouse Electric Corp. et al., 623
F.2d 117, 119 (9th Cir. 1980); Wilburn v. Pepsi-Cola Bottling
Co., 492 F.2d 1288, 1289 (8th Cir. 1974); White v. Padgett, 475
F.2d 79, 82 (5th Cir. 1973); Williams v. Murdock, 330 F.2d
745, 749 (3d Cir. 1964); Rohner v. Union Pacific R.R. Co.,
225 F.2d 272, 274 (10th Cir. 1955); Kincheloe v. Farmer, 214
F.2d 604, 605 (7th Cir. 1954).
We find this reasoning to be sound and not in conflict with
Harris. See Stanton v. District of Columbia Court of Ap-
peals, 127 F.3d 72, 76-77 (D.C. Cir. 1997) (acknowledging that
an affirmative defense can be raised by pre-answer motion)
(citing Harris ). Accordingly, we now explicitly hold that an
affirmative defense may be raised by pre-answer motion
under Rule 12(b) when the facts that give rise to the defense
are clear from the face of the complaint.
This case fits the paradigm. Plaintiff states in her com-
plaint that she received her right-to-sue letter 92 days before
she filed suit.3 The facts supporting defendants' dispositive
motion were apparent to Smith-Haynie from the inception of
her lawsuit. Defendants properly raised the untimeliness
defense by a pre-answer motion under Rule 12(b)(6).
II.
Turning next to the merits of defendants' untimeliness
defense, we review the district court's grant of summary
judgment de novo.4 See, e.g., Goldman v. Bequal, 19 F.3d
666 (D.C. Cir. 1994).
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3 Title VII plaintiffs need not include the date of receipt of a
right-to-sue letter in their complaints. In the event that a date is
not pleaded, the Supreme Court has applied the "3-day" rule of
Fed. R. Civ. P. 6(e) to presume that the letter is received three days
after it is mailed. See Baldwin County Welcome Ctr. v. Brown, 466
U.S. 147, 148 & n.1 (1984) (per curiam).
4 We use the de novo standard despite the fact that the doctrine
of equitable tolling ordinarily involves discretion on the trial judge's
part. We read the judge's decision here to be based upon her
finding that as a matter of law Smith-Haynie's evidence could not
support invocation of the equitable tolling doctrine based upon her
mental state.
Smith-Haynie interposes the threshold argument that the
availability of equitable doctrines is a question for the jury
and not for the judge when they involve disputed issues of
material fact. Generally speaking, questions sounding in
equity are for a judge to decide. See generally Beacon
Theatres, Inc. v. Westover, 359 U.S. 500 (1959). But this
principle is sometimes muddled in the statute of limitations
context. The discovery rule, a legal doctrine which governs
when a limitations period begins to run in certain situations,
is presumably for a jury to consider when issues of disputed
fact surround the rule's application; equitable tolling and
estoppel, which ask whether equity requires extending a
limitations period, are for the judge to apply, using her
discretion, regardless of the presence of a factual dispute.
However, the "discovery rule" and "equitable tolling" are
often treated as the same doctrine, leading courts to the
tenuous conclusion that disputed issues of fact regarding both
are for the jury to resolve. Compare Goldman, 19 F.3d at
671-72, with Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380 (3d Cir. 1994) and Cada v. Baxter Healthcare
Corp., 920 F.2d 446 (7th Cir. 1990). The province of the
judge versus that of the jury does not need to be decided
today, because even if we were to treat this as a jury
question, we would conclude that Smith-Haynie failed to
present sufficient proof to send the issue to a jury.
Summary judgment may be granted only if there remain no
genuine issues of material fact, accepting all evidence offered
by the nonmoving party as presumptively valid and drawing
all justifiable inferences in her favor. See Anderson v. Liber-
ty Lobby, Inc., 477 U.S. 242, 255 (1986). To avoid summary
judgment, Smith-Haynie must show the existence of evidence
sufficient to permit a reasonable conclusion that the statute of
limitations should have been equitably tolled. In opposition
to the motion for summary judgment, Smith-Haynie filed an
affidavit in which she alleged that she was too distraught to
grasp the meaning of the 90-day limitations period. At oral
argument, her lawyer argued that he could have gathered
more supporting material to prove her poor mental state but
the case was dismissed before he was able to conduct discov-
ery and obtain a psychological examination. Of course,
Smith-Haynie could have moved the district court under Fed.
R. Civ. P. 56(f) for discovery, but no such motion was made in
this case. We are left with her affidavit, and standing alone,
it does not support a claim for equitable tolling or for
equitable estoppel.
First, Smith-Haynie argues that the 90-day limitation peri-
od should be tolled because she was non compos mentis
during that period. Defendants do not dispute that the 90-
day period is not a jurisdictional prerequisite to filing suit in
federal district court but operates as a statute of limitations
and is subject to waiver and equitable tolling. See Baldwin
County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) (per
curiam); Gordon, 675 F.2d at 360; cf. Irwin v. Department
of Veterans Affairs, 498 U.S. 89 (1990) (Title VII's time limits
for filing suit against the government subject to waiver and
equitable considerations). Equitable tolling permits a plain-
tiff to avoid the bar of the limitations period if despite all due
diligence she is unable to obtain vital information bearing on
the existence of her claim. See Cada, 920 F.2d at 451. Using
District of Columbia law as a touchstone, see Miller v.
Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (relying on state and
federal interpretations of state non compos mentis laws to
determine scope of equitable tolling of Rehabilitation Act
claim); Nunnally v. MacCausland, 996 F.2d 1, 5 (1st Cir.
1993) (per curiam) (analogizing to state standards to deter-
mine incompetence for purposes of tolling of Rehabilitation
Act limitation period); Kien v. United States, 749 F. Supp.
286 (D.D.C. 1990) (same); Speiser v. Department of Health
and Human Services, 670 F. Supp. 380 (D.D.C. 1986) (same),
aff'd without opinion, 818 F.2d 95 (1987),5 the doctrine can
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5 This court has consistently applied federal courts' interpreta-
tions of typical equitable tolling and equitable estoppel doctrines in
Title VII discrimination cases. See, e.g., Bowden v. United States,
106 F.3d 433 (D.C. Cir. 1997); Mondy v. Secretary of the Army, 845
F.2d 1051 (D.C. Cir. 1988); cf. Bull S.A. v. Comer, 55 F.3d 678
(D.C. Cir. 1995) (equitable tolling of patent deadlines). This does
not, of course, preclude the use of District of Columbia law to distill
fairly be read to encompass cases where a plaintiff has been
unable to obtain such information because of disability.
Smith-Haynie's hurdle is high. "The court's equitable
power to toll the statute of limitations will be exercised only
in extraordinary and carefully circumscribed instances."
Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C.
Cir. 1988). District of Columbia law provides that a person
who is non compos mentis and who has failed to file a legal
action in a timely fashion may bring the action "within the
time limited after the disability is removed." D.C. Code
s 12-302. The code does not itself define non compos men-
tis, but "[t]he phrase 'non compos mentis ... generally
refers to someone incapable of handling her own affairs or
unable to function [in] society.' " Hendel v. World Plan
Executive Council et al., 705 A.2d 656, 665 (D.C. 1997)
(quoting Speiser, 670 F. Supp. at 384). " 'Impaired judgment
alone is not enough to toll the statute of limitations.' " Id.
(quoting Speiser, 670 F. Supp. at 384). The disability of a
person claiming to be non compos mentis must be "of such a
nature as to show [she] is unable to manage [her] business
affairs or estate, or to comprehend [her] legal rights or
liabilities." Decker v. Fink, 422 A.2d 389, 392 (Md. 1980).
Smith-Haynie swore in her affidavit that she was confused
by her right-to-sue letter because the EEOC had apparently
dismissed some of her charges as untimely. She also related
that "[w]hen I received the unrequested notice of right to sue
and dismissal, I did not understand it and I was further
traumatized and simply unable to psychologically deal with
it." Her statement that she did not understand the letter is a
general and conclusory one. She does not contest that she
was informed in the letter of the 90-day limitations period or
aver that the meaning of the time limit was unclear to her.
Her supplementary affidavit does describe emotional difficul-
ty, but of a kind that was basically related to the work
environment. Smith-Haynie was unable to go to work, afraid
of Addison Davis, and "uncomfortable, humiliated and de-
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basic common law principles. See 19 Wright & Miller s 4514, at
474-76.
graded in [her] work environment." She does not tell us that
she was "[un]able to engage in rational thought and deliber-
ate decision making sufficient to pursue [her] claim alone or
through counsel," Nunnally, 996 F.2d at 5, nor does she
provide information to support an inference that she was "in
fact prevent[ed] ... from managing [her] affairs....," Mil-
ler, 77 F.3d at 191; see also Lawson v. Glover, 957 F.2d 801,
804-06 (11th Cir. 1987) (state court interpretation of similar
Georgia Code provision requires showing that plaintiff was
"physically and mentally incapacitated and was incompetent
to manage his own affairs"). It may be that a doctor's
diagnosis would have strengthened her claim, see Nunnally,
996 F.2d at 5-6 (diagnosis of schizophrenia supported claim of
non compos mentis ); but see Miller, 77 F.3d at 192 ("Most
mental illnesses today are treatable by drugs that restore the
patient to at least a reasonable approximation of normal
mentation and behavior."); Speiser, 670 F. Supp. at 385
(while hospitalized plaintiff "has brought forth evidence to the
effect that she was preoccupied, depressed, and obsessed with
events surrounding her resignation, she has not shown that
she was ever adjudged incompetent, signed a power of attor-
ney, had a guardian or caretaker appointed, or otherwise ...
let someone else handle her affairs ...."), however, no such
diagnosis or report was submitted to the district court.
Moreover, plaintiff does not explain what happened between
the 90th and the 91st day after she received her letter, when
she had the presence of mind to consult a lawyer. We must
conclude that plaintiff's affidavit does not yield a reasonable
inference that she was incapable of handling her own affairs
and functioning in society.
Smith-Haynie also argues that equitable estoppel should
operate to prevent defendants from asserting untimeliness.
Equitable estoppel in the statute of limitations context
"comes into play if the defendant takes active steps to pre-
vent the plaintiff from suing in time, as by promising not to
plead the statute of limitations." Cada, 920 F.2d at 450-51
(citing Holmberg v. Armbrecht, 327 U.S. 392, 396-97 (1946)).
More specifically, tolling on estoppel grounds is proper where
" 'a claimant has received inadequate notice, ... where the
court has led the plaintiff to believe that she had done
everything required of her, ... [or] where affirmative miscon-
duct on the part of a defendant lulled the plaintiff into
inaction.' " Mondy, 845 F.2d at 1057 (quoting Baldwin Coun-
ty Welcome Ctr., 466 U.S. at 151). The argument that she
was either lulled or scared into inaction has little force in
Smith-Haynie's case. She states in her affidavit that she
"felt pressured to endure [Davis'] sexual harassment because
[he] was ultimately responsible for processing [her] EEO
complaints and he had the authority to remedy [her] pay act
claims and or [sic] terminate [her] job." As part of her
retaliation claim, Smith-Haynie alleges in her complaint that
Davis told her that he controlled the disposition of plaintiff's
claims. However, nowhere does she claim that anything the
defendants did or said misled her as to the effect of the 90-
day limitation period on her right to seek judicial relief. See
Dougherty v. Barry, 869 F.2d 605, 613 (D.C. Cir. 1989)
(equitable estoppel unavailable to plaintiffs who were " 'unam-
biguous[ly]' notified that they must sue within ninety days of
the EEOC's dismissal of the charge") (citing Baldwin County
Welcome Ctr., 466 U.S. at 151).
III. Conclusion
For the foregoing reasons, the district court's grant of
summary judgment and dismissal of appellant's claims are
affirmed.
So ordered.