Tirado v. US Dept. of Veterans ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                              _________________________







          No. 96-1413



                                JULIA TIRADO, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                     U.S. DEPARTMENT OF VETERANS AFFAIRS, ET AL.,



                                Defendants, Appellees.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Salvador E. Casellas, U.S. District Judge]
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                                 ____________________





                                        Before



                               Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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                                 ____________________





               Emilio F. Soler for appellant.
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               Lowell  V.  Sturgill,  Jr.,   with  whom  Frank  W.  Hunger,
__________________________                _________________

          Assistant   Attorney  General,   Guillermo  Gil,   United  States
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          Attorney, and Robert S. Greenspan, Appellate Staff, Department of
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          Justice, were on brief, for appellees.



                                 ____________________





                                    March 11, 1997





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                    Per  Curiam.  We affirm the judgment below on the basis
Per  Curiam.
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          of  the district  court's well-reasoned  order dated  February 5,



          1996.  We add only a brief comment.



                    The concept of an ordered liberty requires that the law



          draw temporal  lines.  Any  time such  a line is  drawn, however,



          there will always be litigants who fall just short.   Holding the



          line in  those instances may seem  harsh, but it  is essential to



          the proper functioning of our legal system.



                    This  is such  a case.   Under  a valid  and concededly



          applicable regulation, 29 C.F.R.    163.214(a)(1)(ii) (1992), the



          plaintiff had  to file  her complaint charging  discrimination in



          employment with the EEOC within 15 days of receipt of the  Notice



          of Final Interview.   The plaintiff missed the deadline  by eight



          days.   And, while equitable tolling, as the plaintiff argues, is



          available in  an appropriate case, see, e.g., Irwin v. Department
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          of Veterans Affairs, 498  U.S. 89, 95-96 (1990), the  contours of
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          the exception  are narrow and  its use  is rare,   see Jensen  v.
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          Frank, 912  F.2d 517, 521 (1st  Cir. 1990); Mack v.  Great Atl. &
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          Pac. Tea Co., 871 F.2d 179, 185 (1st Cir. 1989).
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                    In  this case, we agree  with the lower  court that the



          facts of record, even when taken  in the light most favorable  to



          the  plaintiff, do  not permit  the invocation  of  the doctrine.



          See, e.g., Kelley v. NLRB,  79 F.3d 1238 (1st Cir. 1996).   Among
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          other things, there is  no factual support for a finding that the



          untimely filing resulted either  from conduct attributable to the



          defendants or from circumstances beyond the plaintiff's  control.





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          Applying the test laid  down in Kelley, 79 F.3d at 1249-50     an
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          appeal which, on  the facts, perhaps presented  a more compelling



          (but, nonetheless, still unsuccessful) case for equitable tolling



              the plaintiff is plainly not entitled to relief.  Her Union's



          blunder, like the plaintiff's lawyer's error in  Kelley, is fully
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          chargeable to her.



                    We need go no further.  The judgment below is







          Affirmed.
Affirmed
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