Rebecca Howard v. Boatmen's Natl. Bank ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3416
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Rebecca Howard, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Boatmen’s National Bank of * Eastern District of Missouri
St. Louis, *
* [UNPUBLISHED]
Appellee. *
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Submitted: September 25, 2000
Filed: September 29, 2000
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Rebecca Howard appeals from the final judgment entered in the District Court1
for the Eastern District of Missouri, granting summary judgment to Boatmen’s National
Bank of St. Louis (Boatmen’s) in her employment discrimination action. In August
1996, while her charge before the Equal Employment Opportunity Commission
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
(EEOC) was pending, Howard relocated and did not provide the EEOC with her new
address. On May 7, 1997, the EEOC sent Howard a right-to-sue letter, but it was
returned with a note that Howard had moved and had left no forwarding address.
Howard filed her suit on September 4, some 120 days after the EEOC sent the right-to-
sue letter, indicating in her unverified complaint that an EEOC representative had told
her she could file her complaint within ninety days of the day she actually received the
letter at her new address. The district court granted summary judgment for Boatmen’s,
concluding that Howard’s complaint was filed untimely, and that she was not entitled
to equitable tolling because she had failed to notify the EEOC of her address change.
For reversal, Howard argues the district court abused its discretion in declining to apply
equitable tolling, because (1) she was proceeding pro se at the time she filed her suit,
and (2) she was misled by the information the EEOC representative provided her. For
the reasons discussed below, we affirm the judgment of the district court.
Although Howard was proceeding pro se, “[c]ourts have generally reserved the
remedy of equitable tolling for circumstances which were truly beyond the control of
the plaintiff.” See Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989).
We agree with the district court that, although Howard was proceeding pro se, notifying
the EEOC of her address change, which was her duty, was a task within her control.
See 29 C.F.R. § 1601.7(b) (2000) (Title VII plaintiff has responsibility to provide
EEOC with notice of any address change); Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 151 (1984) (“One who fails to act diligently cannot invoke equitable
principles to excuse that lack of diligence.”); Heideman v. PFL, Inc., 904 F.2d 1262,
1266 (8th Cir. 1990) (“Equitable tolling is appropriate only when the circumstances
that cause a plaintiff to miss a filing deadline are out of his [or her] hands.”), cert.
denied, 498 U.S. 1026 (1991).
We also agree with the district court that Howard did not provide any evidence
beyond her unsubstantiated, unverified complaint allegation, of the EEOC
representative’s alleged advice. See Fed. R. Civ. P. 56(e); Jetton v. McDonnell
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Douglas Corp., 121 F.3d 423, 427 (8th Cir. 1997) (when motion for summary judgment
is made, nonmoving party may not rest on complaint alone and “must introduce
affidavits or other evidence to avoid summary judgment”). Accordingly, we affirm the
district court’s judgment.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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