Case: 10-60452 Document: 00511326400 Page: 1 Date Filed: 12/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 20, 2010
No. 10-60452 Lyle W. Cayce
Summary Calendar Clerk
BER’NEICE HARRIS,
Plaintiff–Appellant
v.
BOYD TUNICA, INC.,
Defendant–Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
Before WIENER, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Plaintiff–appellant Ber’Neice Harris appeals the district court’s dismissal
of her Title VII action for failure to timely file her complaint. Harris argues that
the ninety-day filing period for her religious discrimination action should be
equitably tolled because the delay was caused not by the plaintiff but by a
clerical error made by her attorney’s paralegal. We agree with the district court
that equitable tolling does not apply to normal situations of attorney negligence
or inadvertence. Accordingly, we AFFIRM the district court’s order dismissing
the Title VII case for failure to timely file the complaint.
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No. 10-60452
Harris was a revenue auditor at Sam’s Town Casino, which is owned by
the defendant–appellee, Boyd Tunica, Inc. Harris alleges that Boyd Tunica
discriminated against her on the basis of religion when it terminated her
employment. On December 11, 2008, the Equal Employment Opportunity
Commission (EEOC) mailed Harris a “right to sue”notice informing her that it
was closing the file on her employment discrimination charge and that she may
file a lawsuit against the defendant. The notice clearly stated that her “lawsuit
must be filed within 90 days of . . . receipt of this notice,” otherwise the right to
sue based on this charge would be lost.
Harris hired a lawyer, James Bell, to file suit on her behalf. She alleges
that she regularly checked with her lawyer on the progress of her case. Bell
allegedly requested his paralegal note the ninety-day filing deadline on the
calendar and also mark the dates fifteen, thirty, and forty-five days before the
deadline. The paralegal made a clerical error and skipped a month when
counting days and marking the calendar. She erroneously marked the filing
deadline as April 10, 2009 instead of March 16, 2009. Consequently, the
complaint was not filed in federal court until April 8, 2009, which was outside
of the ninety-day filing deadline.
Boyd Tunica, Inc. moved to dismiss the claim for failure to state a claim
because Harris did not file her complaint until April 8, 2009, 118 days after the
right-to-sue notice was mailed. Boyd Tunica, Inc. argued that even applying a
liberal presumption that Harris did not receive the notice until seven days after
it was mailed, Harris’s filing was outside the ninety-day period established in 42
U.S.C. § 2000e-5(f)(1) and therefore must be dismissed. The district court
granted the defendant’s motion to dismiss. The district court rejected Harris’s
argument that the ninety-day filing period should be equitably tolled, noting
that equitable tolling “does not normally apply to situations of attorney
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No. 10-60452
inadvertence or the inadvertence of the attorney’s staff” because a party is bound
by the acts of her lawyer/agent.
We review de novo a district court’s ultimate decision to dismiss an action
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),
accepting all well-pleaded facts as true and viewing those facts in the light most
favorable to the plaintiff. Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009).
However, we review a district court’s decision not to exercise its equitable tolling
powers for abuse of discretion. Teemac v. Henderson, 298 F.3d 452, 456 (5th Cir.
2002).
Neither party disputes that Harris was untimely in filing her complaint
outside of the ninety-day filing period or that a district court may dismiss an
action under Rule 12(b)(6) for failure to comply with Section 2005e-5(f)(1)’s
ninety-day filing requirement. Consequently, we only address whether the
district court abused its discretion in declining to toll the ninety-day filing
period. Section 2000e-5(f)(1) requires a civil action be commenced within ninety
days after the plaintiff has received a right-to-sue notice from the EEOC. See 42
U.S.C. § 2000e-5(f)(1). The ninety-day filing requirement is not a jurisdictional
prerequisite, but more akin to a statute of limitations. Espinoza v. Mo. Pac. R.R.
Co., 754 F.2d 1247, 1248 n.1 (5th Cir. 1985). Thus, the ninety-day filing
requirement is subject to equitable tolling. Crown, Cork & Seal Co., Inc. v.
Parker, 462 U.S. 345, 349 n.3 (1983).
We have previously stated that equitable tolling applies only in “rare and
exceptional circumstances.” Teemac, 298 F.3d at 457 (internal quotation marks
and citation omitted). Courts have typically extended equitable tolling where
“the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where complainant has been induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
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Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 & nn. 3–4 (1998); see Teemac,
298 F.3d at 457.
The district court relied on Irwin v. Department of Veterans Affairs. 498
U.S. 89 (1998). We find this reliance apt. In that case, the Supreme Court
considered a complainant’s argument that his failure to timely file his complaint
in accordance with a similar thirty-day filing period under another provision of
Section 2000e should be excused because his attorney was absent from the office
when the EEOC notice was received. Id. The Supreme Court noted that
“[u]nder our system of representative litigation, each party is deemed bound by
the acts of his lawyer-agent . . . .” Irwin, 498 U.S. at 456. The Supreme Court
further held that “the principles of equitable tolling . . . do not extend to what is
at best a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 97.
If Harris herself had mismarked the days on her calendar, a court would
not be obligated to equitably toll the ninety-day filing deadline. Merely because
the negligence was on the part of her attorney and his staff does not entitle
Harris to equitable tolling—a party is bound by the acts of her lawyer. This is
another garden variety act of attorney negligence. Consequently, we do not find
the district court abused its discretion in declining to equitably toll the ninety-
day filing period.
AFFIRMED.
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