Robert Lee Washington, Sr. v. William L. Ball, Iii, Secretary, Department of The Navy, United States Marine Corps., Equal Employment Office, 890 F.2d 413, 11th Cir. (1989)
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Scribd Government DocsRobert Lee Washington, Sr. v. William L. Ball, Iii, Secretary, Department of The Navy, United States Marine Corps., Equal Employment Office, 890 F.2d 413, 11th Cir. (1989)
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Scribd Government Docs890 F.
2d 413
51 Fair Empl.Prac.Cas. 920,
52 Empl. Prac. Dec. P 39,533, 58 USLW 2404
Robert Lee WASHINGTON, Sr., Plaintiff-Appellant,
v.
William L. BALL, III, Secretary, Department of the Navy,
United States Marine Corps., Equal Employment
Office, Defendants-Appellees.
No. 89-8508
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 13, 1989.
Robert Lee Washington, Albany, Ga., pro se.
Michael C. Daniel, Asst. U.S. Atty., Macon, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of
Georgia.
Before FAY, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal involves the dismissal of a civil rights complaint for untimeliness in
filing. Under the particular facts of this case and the document filed with the
United States District Court in the District of Columbia, we reverse.
Appellant Washington filed this pro se, civil rights action in the District of
Columbia pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec.
2000e, et seq. (See Exhibit Envelope, District of Columbia District Court
Record, hereinafter referred to as "D.C.R.," at Doc. 1). In October 1985,
Washington filed an Equal Employment Opportunity (EEO) complaint with the
EEO Counselor at the Marine Corp Logistics Base, in Albany, Georgia. (Id.,
Doc. 17, Exh. 4, Doc. 13, Exh. 1). In his complaint, Washington alleged that
his supervisor committed acts of discrimination and retaliation because of a
previous Equal Employment Opportunity Commission (EEOC) complaint he
filed earlier. (Id.). After the complaint was rejected, Washington appealed to
the EEOC's Office of Review and Appeals (ORA) (id. Doc. 13, Tab 28). Later
that year, Washington was removed from his federal employment for conduct
unrelated to this complaint. On February 12, 1988, the ORA affirmed the
Secretary's rejection of Washington's complaint. Washington requested that his
case be reopened. On August 19, 1988, the ORA denied his request to reopen.
Washington received notice of this denial on August 26, 1988.
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The instant complaint was filed in the D.C. district court on October 25, 1988.
The Secretary moved to dismiss the action as untimely filed under 42 U.S.C.
Sec. 2000e-16, and if not dismissed, that the action be transferred to the proper
venue, the Middle District of Georgia. The district court granted the motion to
transfer but denied the motion to dismiss.
Upon transfer to the Middle District of Georgia, the Secretary moved again for
dismissal of the complaint as untimely. The district court granted the motion
and dismissed the complaint as untimely filed pursuant to 42 U.S.C. Sec.
2000e-16.
Title 42 U.S.C. Sec. 2000e-16 requires that civil actions brought by federal
employees against the United States for alleged violations of Title VII must be
commenced within thirty days of the employee's receipt of notice of final
agency action. 42 U.S.C. Sec. 2000e-16(c). Compliance with the thirty day time
limit, however, is not a prerequisite to the district court's jurisdiction; the thirty
day limitation is similar to a statute of limitation and is subject to equitable
tolling. Bates v. Tennessee Valley Authority, 851 F.2d 1366, 1368 (11th
Cir.1988). The statute may be equitably tolled in the following situations: (1)
when a state court action is pending; (2) when the defendant has concealed an
act supporting the Title VII cause of action; and (3) when the defendant has
mislead the employee regarding the nature of his rights under Title VII.
Manning v. Carlin, 786 F.2d 1108, 1109 (11th Cir.1986).
In this case, Washington received his right to sue letter on August 26, 1988, and
filed his complaint more than thirty days later, on October 25, 1988. While the
district court was correct that none of the three situations of Manning v. Carlin
was present in this case, the statute should nevertheless have been tolled
pursuant to the reasoning of the District of Columbia district court. That court
found equitable tolling justified by the following facts:
The thirty day period expired September 26, 1988. Prior to that date,
Washington filed a request for a fifteen day extension to file his complaint. That
request was received by the Clerk on September 22, 1988, four days before the
expiration of the period. The Clerk of the Court, however, returned the
document to Washington on October 3, 1988, with instructions to file his
complaint and then request leave to amend if he needed additional time.
October 3 was seven days after the limitations period.
Washington then submitted his complaint with an application to proceed in
forma pauperis; these documents were received by the Clerk on October 18,
1988. The court granted the application to proceed in forma pauperis and the
complaint was formally filed on October 25. The District of Columbia court
concluded that it would be manifestly unfair to penalize a pro se litigant in such
circumstances. Citing Bowen v. City of New York, 476 U.S. 467, 480-83, 106
S.Ct. 2022, 2030-31, 90 L.Ed.2d 462 (1986) (permitting equitable tolling of
Social Security Act statute of limitations in "compelling" cases). We agree.
This court has not stated conclusively that the three situations outlined in
Manning v. Carlin are exhaustive. Applying the reasoning of Manning, we do
not feel that Washington should be penalized for filing his complaint out of
time. Just as the statute is tolled where a plaintiff is mislead by the Secretary,
the statute should be tolled when a plaintiff is mislead by the court. The
District Court Clerk in the District of Columbia informed Washington after the
statutory period had run that he should proceed to file his complaint and then
request leave to amend it. Having filed his request for an extension of time prior
to the expiration of the thirty day period, he should not be penalized for
following the instructions of the district court. Accordingly we conclude that
under these peculiar facts the statute should be tolled.
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