Thomas v. Ryan ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10656
(Summary Calendar)
L.C. THOMAS,
Plaintiff-Appellant,
versus
JOHN E. RYAN, Deputy and Acting
Chief Executive Officer, FEDERAL
DEPOSIT INSURANCE CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas, Dallas Division
(3:95-CV-2692-BD)
January 15, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This is an appeal from the magistrate judge’s grant of summary
judgment dismissing Plaintiff-Appellant L. C. Thomas’s Title VII
discrimination claim against Defendant-Appellee John E. Ryan, who
was sued in his official capacity as Deputy and Acting Chief
Executive Officer of the Resolution Trust Corporation (RTC). The
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
magistrate judge dismissed the claim because Thomas (1) failed to
file his complaint within the ninety-day statutory filing period1
and (2) failed to establish a factual basis to compel tolling the
limitations statute on equitable grounds.
In 1993, Thomas, who is black, applied for the position of
Field Ethics Specialist in the Dallas, Texas office of the RTC.
After his application was rejected, Thomas filed a formal
discrimination charge with the Equal Employment Opportunity office
of the FDIC in which he alleged that the RTC had discriminated
against him on the basis of race by rejecting his job application
in favor of less-qualified white applicants. A hearing was held
before an administrative law judge who found no evidence of
discrimination and recommended that Thomas’s claim be denied.
On July 13, 1995, the FDIC issued a final decision rejecting
Thomas’s claim. In that decision, the FDIC advised Thomas that he
could either appeal its decision to the Equal Employment
Opportunity Commission (EEOC), or else file suit “in an appropriate
U.S. District Court within ninety (90) calendar days of the date
you receive this decision.” Thomas received a copy of the FDIC’s
decision on July 14.
Thomas did not appeal to the EEOC. In fact, he did nothing at
all to pursue his claim until October 10 -- 88 days later -- when
he attempted unsuccessfully to file a complaint against the RTC,
1
42 U.S.C. § 2000e-5(f)(1).
2
not in a federal district court but in a Texas state court. The
only evidence in the record of that eleventh hour attempt to pursue
his discrimination claim is a copy of Thomas’s transmittal letter
to the clerk of the Texas court, which reflects that it was
received (not filed) on October 12 -- the 90th day.
The record evidence does not indicate that Thomas actually
sent a petition with that letter to the Texas court. But even
assuming that the correspondence Thomas sent to the clerk of the
Texas court did include a petition, the clerk did not file it.
Instead, the clerk attempted to return to Thomas his filing fee
along with whatever correspondence the Texas court had received
from Thomas. In attempting to do so, the clerk mistakenly sent the
package to an unrelated law firm in Dallas, but a lawyer from that
firm forwarded the materials to Thomas on October 25. The Dallas
lawyer also advised Thomas by telephone that he had filed suit in
the wrong court. Thomas then filed this action in federal court on
November 9, 1995, 118 days after receiving the FDIC’s final
decision.
Thomas does not dispute that he filed his complaint in federal
court later than ninety days after receiving the FDIC’s final
decision. He insists, however, that the magistrate judge erred by
refusing to toll the running of the statutory filing period, on
equitable grounds, from the day Thomas attempted to file suit in
state court until the day he received the package from the Texas
clerk of court indicating that no complaint was filed.
3
Thomas attempts to support his argument by citing two cases --
one from the Sixth Circuit and one from the Ninth -- both of which
applied equitable tolling principles to permit the filing of a
Title VII action in federal court after the passage of 90 days
because the plaintiff had mistakenly but reasonably filed suit in
a state court within the 90-day filing period.2 These cases are
distinguishable from the instant action. In each of these cases,
the plaintiff actually filed a Title VII action in state court.
Moreover, each was filed during a time period when conflicting
authorities left unclear the now widely understood fact that
federal courts have exclusive jurisdiction over Title VII claims.
In opinions that were similar to each other, the Sixth and Ninth
Circuits held that equitable tolling was appropriate because the
plaintiff in each case acted diligently and filed a complaint
within 90 days in a forum which, at the time, was reasonably,
albeit mistakenly, believed to be a proper forum.
In contrast, Thomas offers no excuse -- either reasonable or
otherwise -- for attempting to file his Title VII action in state
court rather than in federal court. In its final agency decision,
the FDIC clearly and explicitly advised Thomas that he must file
suit in a U.S. District Court. We must presume that Thomas, who is
an attorney and a member of the Judge Advocate General for the Army
2
Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1175 (9th Cir.
1986); Fox v. Eaton Corp., 615 F.2d 716, 720 (6th Cir. 1980), cert.
denied, 450 U.S. 935, 101 S.Ct. 1401, 67 L.Ed.2d 371 (1981).
4
Reserve, is capable of understanding the difference between a
federal district court and a state court. Thus, as “[o]ne who
fails to act diligently cannot invoke equitable principles to
excuse that lack of diligence,”3 we see no basis for equitably
tolling the 90-day filing period in this case.
For the foregoing reasons, the magistrate’s grant of summary
judgment is
AFFIRMED.
3
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151,
104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984).
5