Joe v. City of Houston Fire

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20282
Summary Calendar
_______________
DARRELL JOE,
Plaintiff-Appellant,
VERSUS
CITY OF HOUSTON FIRE DEPARTMENT/CIVIL SERVICE COMMISSION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-134)
_________________________
March 1, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Darrell Joe, once a firefighter for the City
of Houston, was suspended indefinitely for
having been arrested for the purchase and use
of crack cocaine, an arrest he contends to have
been false. He filed a complaint with the
Texas Commission on Human Rights
(“TCHR”) and the Equal Employment
Opportunity Commission (“EEOC”), charging
race discrimination because other employees
who had committed crimes had not been
suspended indefinitely. He sued under title
VII, but the district court found the action
time barred and dismissed. Finding no error,
we affirm.
I.
After learning that Joe had been arrested on
September 1, 1995, the fire chief held a
predisciplinary meeting with him on December
6, 1995, and sometime thereafter informed him
that he would be indefinitely suspended, which
is tantamount to dismissal. The chief provided
Joe official notification of this indefinite
suspension on January 3, 1996, and explained
that Joe needed to appeal to the Civil Service
Commission (the “Commission”) within fifteen
days. Joe did so, and on June 5, 1996, the
Commission upheld the suspension.
The EEOC filing period functions as a
statute of limitations, barring suits not
preceded by a timely complaint. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385,
393-94 (1982). Joe filed complaints with the
TCHR and EEOC on March 11, 1997. The
city argued, and the district court agreed, that
this was more than 300 days after the alleged
discriminatory conduct had ended, and was
therefore untimely. Joe, on the other hand,
* 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determined that this opinion should not be
published and is not precedent except under the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.

-- 1 of 4 --

2
asserted that the discriminatory conduct
continued until the Commission denied his
appeal, so his complaint was timely.
II.
The time for filing a complaint with the
EEOC “will commence when the employee
receives unequivocal notice of his termination
or when a reasonable person would know of
the termination.” Burfield v. Brown, Moore &
Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995);
see also Delaware State College v. Ricks,
449 U.S. 250, 261 (1980). This limitation
“reflects a value judgment concerning the
point at which the interests in favor of
protecting valid claims are outweighed by the
interests in prohibiting the prosecution of stale
ones.” Id. at 260.
That Joe received review by the
Commission does not alter the date for
beginning the filing-deadline period. In Ricks,
the plaintiff was a professor who had been
denied tenure, had been offered a one-year
“terminal contract,” which he accepted, had
appealed his denial of tenure, and had been
denied. Id. at 252-55. Upon filing a civil
rights act ion, he found himself barred by his
tardy application to the EEOC and argued that
his filing period should not have begun to run
until his actual date of termination, or at the
earliest on rejection of his appeal. Id. The
Court disagreed.
Ricks would have had to allege and
prove 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. . . . In sum, the only alleged
discrimination occurredSSand the filing
limitations periods therefore
commencedSSat the time the tenure
decision was made and communicated
to Ricks.
Id. at 258.
Joe presents a similar situation. The city
discriminated against him, if at all, when the
chief suspended him indefinitely. For us to
hold that the filing period did not commence
until the Commission made its decision, we
would have to find that Joe had pleaded and
provided evidentiary support for the
proposition1 that the Commission had
reviewed his suspension in a manner different
from that it employed when reviewing the
indefinite suspensions of other employees and
that it had done so on account of race. Even
applying the liberal standards of interpretation
generally granted to pro se pleadings,2 we see
no such claim in Joe’s complaint, nor any
evidence to support it.
The statutory period in which Joe was
required to file a complaint with the EEOC,
therefore, began at the latest on January 3,
1996, so his March 11, 1997, complaint to the
EEOC was untimely. The law, without more,
demands dismissal.
III.
In certain situations, however, the doctrines
of equitable estoppel and equitable tolling may
apply. “Equitable tolling focuses on the
plaintiff’s excusable ignorance of the
employer’s discriminatory act. Equitable
estoppel, in contrast, examines the defendant’s
conduct and the extent to which the plaintiff
has been induced to refrain from exercising his
rights.” Clark v. Resistoflex Co., 854 F.2d
762, 769 n. 4 (5th Cir. 1988) (quoting Felty v.
Graves-Humphreys, 785 F.2d 516, 519 (4th
Cir. 1986)). These doctrines primarily are the
province of the district court and are applied at
its discretion; we therefore review for abuse of
discretion that court’s determination that these
1 While the city initially filed a motion to
dismiss under FED. R. CIV. P. 12(b)(6), the court
converted that motion, sua sponte, into a motion
for summary judgment under FED. R. CIV. P. 56(c)
10 days after both parties had submitted matters
outside the pleadings.
2 See, e.g., Rodriguez v. Holmes, 963 F.2d 799,
801 (5th Cir. 1992) (noting that “the allegations of
a pro se complaint . . . must be read in a liberal
fashion, and however inartfully pleaded must be
held to less stringent standards than formal
pleadings drafted by lawyers” (internal citations
and quotations omitted)).

-- 2 of 4 --

3
facts do not warrant application of either
doctrine. See Fisher v. Johnson, 174 F.3d
710, 713 (5th Cir. 1999).
Considering equitable estoppel first, we can
find nothing in the pleadings or the record to
suggest that Joe was “induced to refrain from
exercising his rights” by any party. We have
“described the level of employer culpability
required to trigger equitable estoppel in terms
of a recklessness standard: The doctrine may
properly be invoked when the employee’s
untimeliness in filing his charge results from
either the employer’s deliberate design to delay
the filing or actions that the employer should
unmistakably have understood would result in
the employee’s delay.” Id. at 769 (internal
quotations and citations omitted).
The record does not indicate that anything
of the kind occurred here. Joe was informed
by the chief of the reasons for his discharge,
that the letter of January 3, 1996, officially
enacted his suspension, and that the available
appeal process worked as the appeal of a final
decision rather than as the decision itself. Joe
does not allege that any representative of the
city suggested that he should refrain from
complaining to the EEOC or that his rights
would remain intact during the pendency of his
appeal; neither does he claim that the city kept
relevant information from him.
In Blumberg v. HCA Management Co.,
848 F.2d 642, 645 (5th Cir. 1988), we heard
the complaint of an employee who had failed
to file a timely complaint and who argued that
her employer was “estopped from invoking her
failure to file . . . because it concealed the
reason for her termination.” We held that
because the plaintiff had been “advised at the
time of her termination that she was being
discharged for cause, and she was able to
evaluate the propriety of the reasons for her
dismissal immediately,” her employer was not
estopped from pleading the passage of the
filing period merely “by not expressly declaring
that her di scharge was due to
[discrimination].” Id. Such a holding, we
thought, would be “tantamount to asserting
that an employer is equitably estopped
whenever it does not disclose a violation of the
statute.” Id. Similarly, the record here
suggests nothing the city did to cause it to
forfeit the benefits of the limitation period.
What remains to Joe, then, is equitable
tolling, which looks to him rather than to the
city to see whether his tardiness can be
excused. “The plaintiff has the burden of
demonstrating a factual basis to toll the
period,” Blumberg, 848 F.2d at 644, and we
attempt by liberal construction of Joe’s
pleadings to find the sort of “rare and
exceptional circumstances” that will allow for
equitable tolling. Fisher, 174 F.3d at 713.
Too, “a garden variety claim of excusable
neglect does not support equitable tolling.”
Coleman v. Johnson, 184 F.3d 398, 402 (5th
Cir. 1999).
The record presents no facts that have not
previously been considered and dismissed by
this court as insufficient excuses for failure to
meet a statute of limitations. Joe proceeds pro
se and in forma pauperis, but an “argument[]
that he is a ‘layman-at-law,’ a pauper without
legal assistance . . . afford[s] him no defense to
the absolute bar of the statute of limitations.”
Kissinger v. Foti, 544 F.2d 1257, 1258 (5th
Cir. 1977). See also Fisher, 174 F.3d at 714
(opining that “ignorance of the law, even for
a[] . . . pro se petitioner, generally does not
excuse prompt filing”). This result springs
from necessity rather than dearth of
generosity; though forgiven his failures of art,
the pauper no less than the practitioner must
vigorously and swiftly pursue his claims of
right lest quietude and repose, so necessary to
the rule of law and ordered society, succumb
to his delayed attack.
Neither does Joe benefit from a claim that
third parties hindered his pursuit of justice. He
included with his pleadings a copy of the
complaint that he eventually filed with the
EEOC, which complaint noted that
“discrimination took place” from January 3,
1996, until June 5, 1996. He might have
understood this notation to work an
endorsement of his contention that the 300-
day limitation period began on June 5. We
note, however, that he did not file the relevant
complaint until March 11, 1997, after the

-- 3 of 4 --

4
correctly calculated limitation period had
ended; thus, any representation by the EEOC
that discrimination had occurred until June 5,
1996, did not come in time for Joe
meaningfully to have relied on it.
Meanwhile, we could not hear
complaintSSeven if Joe had made itSSthat the
EEOC had made more evanescent
representations to him about the running of the
filing period. As we have explained in the
context of age-discrimination filings with the
EEOC,
[i]t would be virtually impossible for the
EEOC or a defendant to rebut a
plaintiff's unsupported allegation that the
EEOC provided incomplete information
in a telephone conversation. Allowing a
plaintiff equitably to toll a time
limitation based on incomplete
information provided in a telephone
conversation would create a great
potential for abuse. Thus, we hold that
. . . alleged incomplete oral statements
made by the EEOC to [a complainant]
during a telephone conversation will not
support equitable tolling.
Conaway v. Control Data Corp., 955 F.2d
358, 363 (5th Cir. 1992).
The central bar to any attempt to invoke the
doctrine of equitable tolling, though, must be
Joe’s lack of diligence. “In order for equitable
tolling to apply, the applicant must diligently
pursue his . . . relief. . . . As this court has
noted, equity is not intended for those who
sleep on their rights.” Coleman, 184 F.3d
at 403.
We have refused to apply the doctrine in
cases in which the plaintiff might have stated a
reasonable claim to toll a small portion of the
limitations period, even when that small period
would prove “outcome determinative,” if he
has not generally prosecuted his case
diligently. Fisher, 174 F.3d at 715; see also
Coleman, 184 F.3d at 403. Joe did not
prosecute his case for more than a year after
he was indefinitely suspended or for nearly 300
days after his appeal was denied.
AFFIRMED.

-- 4 of 4 --