Panicker v. Compass Group U.S.A. Inc. ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SOLOMON PANICKER,
Plaintiff - Appellant,
v. No. 17-6049
(D.C. No. 5:15-CV-01034-M)
COMPASS GROUP U.S.A. INC., d/b/a (W.D. Okla.)
Eurest Dining Services,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and BALDOCK, Circuit Judges.
_________________________________
Pro se appellant Solomon Panicker challenges the district court’s dismissal of
his Title VII case on statute-of-limitations grounds. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Panicker filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC or Commission), claiming his former employer,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Compass Group U.S.A. Inc. (Compass), discriminated against him because he is
Asian and from India. On February 12, 2014, the EEOC sent Panicker a “Dismissal
and Notice of Rights” letter (right-to-sue letter), stating that the EEOC was “unable
to conclude that the information obtained establishes violations of the statutes,” and
advising Panicker that he had the right to file a lawsuit against Compass based on
federal law but had to do so “WITHIN 90 DAYS of [his] receipt of [the] notice.”
R. at 70. As it turned out (and as he alleged in this action), Panicker never received
the right-to-sue letter because the address on it was “11686 S.W. 3rd,” id. (emphasis
added), but his address was 11636 S.W. 3rd. On June 4, 2014, the EEOC sent a letter
to Panicker’s correct address informing him that his case had been re-assigned to a
different investigator. Panicker wrote on the letter that he “checked with the office
[and] they said the matter was dismissed on [sic] Feb.” R. at 98. More than a year
later, on July 16, 2015, Panicker submitted a request for disclosure of the EEOC’s
case file. On September 16, 2015, the EEOC provided Panicker with the case file,
which included a copy of the February 12, 2014 right-to-sue letter.
Five days later, on September 21, 2015, Panicker filed his complaint in the
district court. In the operative pleading (Panicker’s Second Amended Complaint), he
advanced a discrimination claim grounded in Title VII of the Civil Rights Act of
1964. Compass moved to dismiss the Second Amended Complaint under Federal
Rule of Civil Procedure 12(b)(6), arguing that Panicker’s Title VII claim was
untimely filed and that he was not entitled to equitable tolling. Agreeing with both
arguments, the district court granted the motion and dismissed the case. Panicker
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filed successive motions for a new trial under Federal Rule of Civil Procedure 59,
which the district court denied. Panicker appeals.
II. DISCUSSION
“We review de novo the dismissal of an action under Rule 12(b)(6) based on
the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.
2010). Under this standard, we “accept as true all well-pleaded facts, as
distinguished from conclusory allegations, and view those facts in the light most
favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302,
1304 (10th Cir. 1998). “We review the district court’s refusal to apply equitable
tolling for an abuse of discretion.” Braxton, 614 F.3d at 1159 (internal quotation
marks omitted). Because Panicker is proceeding pro se, we liberally construe his
filings. See id.In relevant part, Title VII requires the EEOC to “notify the person aggrieved”
when it dismisses a charge. 42 U.S.C. § 2000e-5(f)(1). The “aggrieved person” then
has “ninety days after the giving of such notice” to file a “civil action . . . against the
respondent named in the charge.” Id. This filing requirement “is not a jurisdictional
prerequisite” but “a condition precedent to suit that functions like a statute of
limitations and is subject to waiver, estoppel, and equitable tolling.” Million v.
Frank, 47 F.3d 385, 389 (10th Cir. 1995).
The district court determined that Panicker, “through no fault of his own,”
never received the right-to-sue letter that was mailed in February 2014. R. at 125.
The court reasoned that “[b]ased upon the documents attached to [Panicker’s] Second
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Amended Complaint and his response to defendant’s motion to dismiss, it appears
that while [he] provided the EEOC with his correct address (11636 SW 3rd Street),
the EEOC incorrectly (perhaps based on illegible handwriting) sent the right to sue
notice to the incorrect address (11686 SW 3rd Street).” R. at 124 n.1. The court
further posited that the June 4 letter, which was sent to Panicker at his correct
address, could have misled Panicker into thinking his case was still active. But
ultimately the court ruled that Panicker had filed his action “over one year after he
was advised that his case had been dismissed,” and that this advisement occurred
“[a]fter receiving the June 4, 2014 letter,” R. at 124.1 Because Panicker did not file
his civil action within ninety days of learning that his case had been dismissed but
instead waited more than a year to next contact the EEOC, the court concluded that
he was not entitled to equitable tolling.
We arrive at the same conclusion as the district court but via a different
analytical route because we find no support for the determination that Panicker was
without fault in the failure to receive the right-to-sue letter. Generally, when the
EEOC mails a right-to-sue letter, “federal courts have presumed various receipt dates
ranging from three to seven days after the letter was mailed.” Lozano v. Ashcroft,
1
In an apparent attempt to clarify this conclusion, the court stated in a footnote
that “[c]onservatively, [Panicker] would have been advised no later than July 1,
2015.” R. at 125 n.2 (emphasis added). Viewed in context of the court’s conclusion
that Panicker had waited more than a year after being advised that his charge had
been dismissed, the reference to “2015” was a typographical error—the court clearly
thought Panicker had been informed shortly after receiving the June 4, 2014 letter
and no later than July 1, 2014.
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258 F.3d 1160, 1164 (10th Cir. 2001) (collecting cases). Here however, Panicker
does not dispute that the EEOC mailed the right-to-sue letter on February 12, 2014
(he alleged as much in his Second Amended Complaint), and Compass has not
disputed his allegation that he never received the letter because it was sent to an
incorrect address. The presumption of receipt is therefore not germane to our inquiry
regarding timeliness. See id. (explaining that the presumption applies “[w]hen the
receipt date for an EEOC right-to-sue letter is unknown or disputed”). We must
instead assess the reason that Panicker did not receive the letter. For the reasons that
follow, we agree with Compass that an aggrieved person cannot escape the
consequences of nonreceipt when the failure to receive a right-to-sue letter is his own
fault. See Kerr v. McDonald’s Corp., 427 F.3d 947, 952 (11th Cir. 2005) (per
curiam) (“Receipt is presumed when a complainant is unable to show that her failure
to receive [a right-to-sue] letter was in no way her fault.”).
As noted, the district court opined that based on the documents Panicker had
attached to his Second Amended Complaint and his response to the dismissal motion,
the EEOC’s use of the incorrect address was perhaps due to illegible handwriting and
therefore not Panicker’s fault. But the only instance of a possibly illegible
handwritten address we see in the referenced documents is on the request for
disclosure of the EEOC’s case file Panicker filed in July 2015. Because he submitted
that request long after he filed his charge (in September 2013) and long after the
EEOC sent the right-to-sue letter (in February 2014), that potentially illegible address
could not form the basis of the EEOC’s use of the incorrect address. Nor have we
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uncovered any documentation elsewhere in the record that supports the district
court’s conclusion that Panicker did not receive the right-to-sue letter “through no
fault of his own,” R. at 125.
We are left, then, with the address on the charge itself, which was attached to
his Second Amended Complaint. The charge is set forth on EEOC Form 5 and
contains typewritten entries in various data fields. The “street address” listed is the
incorrect “11686 S.W. 3rd” address. R. at 71. Although it is unknown whether
Panicker completed the form himself, he indisputably signed the form as the charging
party on his own behalf. By doing so he “declare[d] under penalty of perjury that the
above”—which included the incorrect street address—“is true and correct.” Id.By declaring that the incorrect street address on the charge was “true and
correct,” Panicker provided the EEOC with faulty information. But he was obligated
by regulation (as well as common sense) to give the EEOC his correct address. See
29 C.F.R. § 1601.7(a) (“The person making the charge . . . must provide the
Commission with the name, address and telephone number of the person on whose
behalf the charge is made.”). As we explain, the EEOC therefore cannot be blamed
for sending the right-to-sue letter to the address of record, which was incorrect.2
Instead, Panicker must shoulder that blame, which undermines his reliance on
equitable tolling.
2
There is no indication in the district-court record or the parties’ appellate
briefs how the EEOC was able to send the June 4 letter to Panicker’s correct address.
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Equitable tolling is warranted in Title VII cases “only if the circumstances of
the case rise to the level of active deception which might invoke the powers of equity
to toll the limitations period.” Biester v. Midwest Health Servs., Inc., 77 F.3d 1264,
1267 (10th Cir. 1996) (internal quotation marks omitted). As more specifically
applicable here, “equitable tolling may be appropriate where a plaintiff has been
lulled into inaction by . . . federal agencies,” has been “actively misled, or has in
some extraordinary way been prevented from asserting his or her rights.”
Id. (internal quotation marks omitted).
The circumstances of Panicker’s case do not fall into any of these categories.
To the contrary, courts have declined to apply equitable tolling where the failure to
receive a right-to-sue letter was due to the plaintiff’s culpability in providing the
EEOC with an incorrect address. For example, in Maggio v. Wisconsin Avenue
Psychiatric Center, Inc., 795 F.3d 57, 59–60 (D.C. Cir. 2015), the District of
Columbia Circuit declined to apply equitable tolling to the failure to comply with the
ninety-day rule because the plaintiff, who never received the right-to-sue notice, had
provided the EEOC with a charge listing an address where he was no longer living,
and he never notified the EEOC of his current address. And in Nelmida v. Shelly
Eurocars, Inc., 112 F.3d 380 (9th Cir. 1997), the plaintiff provided the EEOC with her
parents’ address even though she was not living there. The EEOC sent a right-to-sue
letter by certified mail to that address, and the Postal Service left two notices stating that
delivery had been attempted and that the letter was available at the post office for
retrieval. The plaintiff’s family members residing at that address did not inform the
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plaintiff of the notices or attempt to retrieve the letter, and the Postal Service eventually
returned it to the EEOC. The Ninth Circuit held “that the ninety-day period within which
to file suit began running when delivery of the right-to-sue notice was attempted at the
address of record with the EEOC” and declined to apply equitable tolling. Id. at 384–85.
We agree with this approach, as it conforms with our previously expressed view
that a Title VII “plaintiff should be required to assume some minimum responsibility
himself for an orderly and expeditious resolution of his dispute.” Million, 47 F.3d at 388(internal quotation marks omitted); cf. St. Louis v. Alverno Coll., 744 F.2d 1314, 1317
(7th Cir. 1984) (“[C]laimants who do not receive actual knowledge of their right-to-sue
letter through no fault of their own should not be penalized.” (emphasis added)).
Ensuring that the EEOC has the correct mailing address is easily characterized as falling
within such minimum responsibilities. See St. Louis, 744 F.2d at 1316 (“The burden of
providing the EEOC with changes of address is minimal.”).
Panicker’s failure to receive the right-to-sue letter was due to his declaration
that the address on the charge he filed with the EEOC was correct when in fact it was
not. Because that failure was attributable solely to him, we conclude that equitable
tolling does not apply. Consequently, Panicker’s complaint, filed more than a year
after the expiration of the ninety-day filing period, was untimely.
Panicker argues that the June 4, 2014 letter informing him that his case was
being reassigned to a new investigator voided the right-to-sue letter, Aplt. Opening
Br. at 2, or cancelled, nullified, or rendered it and his right to sue “Null and Void,”
id. at 6. He offers no legal support for this argument, and we decline to perform the
8
research for him, see Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841
(10th Cir. 2005). He has therefore waived appellate review of this issue. See id.(explaining that failure to provide legal authority in support of an issue results in
waiver of that issue).
Panicker also appears to take issue with the district court’s denial of his two
substantially identical Rule 59 motions for a new trial, which the court treated as
motions to reconsider. In those motions, he argued that after receiving the June 4,
2014 letter, he had no contact with the EEOC until July 16, 2015, when he sought
disclosure of his case file. He contended, as he does on appeal, that his action was
timely because it was filed less than ninety days after that date. The district court
found no grounds warranting reconsideration, concluding that even if Panicker did
not learn his case had been dismissed shortly after receiving the June 4, 2014 letter,
as suggested by the notation he made on that letter, his failure to contact the EEOC
until July 16, 2015 showed that he did not exhibit the diligence required to merit
equitable tolling. See Barnes v. United States, 776 F.3d 1134, 1150 (10th Cir. 2015)
(listing plaintiff’s diligent pursuit of his rights as an element of equitable tolling).
We review the denial of a Rule 59 motion for reconsideration for an abuse of
discretion. Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). Although we
see no abuse of discretion in the district court’s reasoning, we have concluded that
Panicker was responsible for his failure to receive the right-to-sue letter and is
therefore not entitled to equitable tolling. Consequently, the ninety-day period had
already expired before he received the June 4, 2014 letter, and whether Panicker
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contacted the EEOC shortly after receiving that letter, as the district court inferred, or
not until July 16, 2015, more than a year later, is ultimately immaterial.
CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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