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Verret v. Civic Action Comm

Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-02-17
Citations: 172 F.3d 870
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Combined Opinion
                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                       _________________

                                           No. 98-60435

                                       (Summary Calendar)
                                       _________________


               LIONEL R. VERRET,


                                               Plaintiff-Appellant,

               versus


               JACKSON COUNTY CIVIC ACTION COMMITTEE, INC.;
               BOARD OF DIRECTORS of the Jackson County Civic Action
               Committee; DOROTHY BURNEY, Chairman, Board of Directors,
               Jackson County Civic Action Committee; DIANN PAYNE, Acting
               Executive Director, Jackson County Civic Action Committee; and
               MARIE PATRICK, Programs Director, Jackson County Civic Action
               Committee,


                                               Defendants-Appellees.



                           Appeal from the United States District Court
                             For the Southern District of Mississippi
                                       (1:98-CV-70-BrR)
                                       February 12, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Lionel Verret sued the Jackson County Civic Action Committee, its Board of Directors, and

employees Dorothy Burney, Diann Payne, and Marie Patrick (collectively, “JCCAC”), alleging that

JCCAC terminated him on the basis of race and sex in violation of Title VII and Section 1981. The

district court granted summary judgment in favor of JCCAC, finding that Verret failed to meet the



   *
       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
limitations period because Verret failed to file a complaint within ninety days of receiving the Equal

Employment Opportunity Commission’s (“EEOC”) right-to-sue letter. See 42 U.S.C. § 2000e-

5(f)(1)(ninety-day limitations period). Verret appeals the ruling, arguing the limitations period should

be equitably tolled. We affirm the district court.

        Verret filed his complaint one-hundred-and-four days after receiving the notice of his right

to sue.1 He argues that the limitations period should be equitably tolled because the law firm he

consulted did not inform him until immediately prior to the expiration of the limitations period that

it refused to take his case. Verret filed his complaint pro se shortly after a period of research.

        We review a grant of summary judgment de novo. See Duplantis v. Shell Offshore, Inc., 948

F.2d 187, 189 (5th Cir. 1991). The ninety-day limitations period is not a jurisdictional prerequisite

and may be equitably tolled. See Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1250 (1985).

In Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984),

the Supreme Court indicated that a court may equitably toll the limitations period if the claimant

received inadequate notice, if a motion for appointment of counsel is pending and equity would justify

tolling the statutory period, if a court has led the plaintiff to believe he has done everything required

of him, or if affirmative misconduct on the part of the defendant lulled the plaintiff into inaction. See

id. at 151, 104 S. Ct. at 1725-26. Verret cannot justify tolling the limitations period based on any

of these circumstances, however, the Court did not indicate that equitable tolling is only appropriate

in these situations.

        We conclude that we will not equitably toll the limitations period. Verret admits that he

waited thirty-one days before presenting his right-to-sue letter to a law firm for action. He explains

that he took his case to one firm, which told him that they would look at the information to decide

whether to take the case, and that he never sought help elsewhere, even when the deadline


  1
     There is no factual dispute in this case because the district court calculated the limitations period
from the date that, by Verret’s admission, he received the EEOC’s letter. Verret does not dispute
that his claim was not filed within ninety days. He claims, rather, that the court should have invoked
its equitable power to toll the limitations period.

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approached. Verret admits further that he knew, based in part from initial conversations with the

attorneys, that his complaint had to be filed within ninety days of receipt of the letter. As the deadline

approached without word from the firm regarding its decision about his case, Verret could have

retained a different attorney or moved the court for appointment of counsel. Thus, it would be

inaccurate to characterize the expiration of the limitations period, due to the attorney’s failure to

accept the case or to file the complaint, as an event over which Verret had no control. The lack of

a circumstance beyond Verret’s control distinguishes this case from other cases in which courts have

equitably tolled the limitations period. See Suarez v. Little Havana Activities, 721 F.2d 338, 340

(11th Cir. 1983)(per curiam)(citing mistakes of clerk’s office or postal service as justifications to toll

limitations period); Carlile v. South Routt Sch. Dist. Re 3-J, 652 F.2d 981, 986 (10th Cir.

1981)(tolling period due to plaintiff’s reliance on statements by the court). Therefore, we AFFIRM

the ruling of the district court.




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