Paula Bradshaw v. City of Gulfport, Mississippi, e

Case: 10-60872 Document: 00511500709 Page: 1 Date Filed: 06/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2011
No. 10-60872
Summary Calendar Lyle W. Cayce
Clerk
PAULA BRADSHAW,
Plaintiff-Appellant
v.
CITY OF GULFPORT, MISSISSIPPI; JIM COWAN, in his official and personal
capacities,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:09-CV-743
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Paula Bradshaw filed suit against the City of Gulfport, Mississippi, for
alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq. The district court dismissed the federal claims as time-barred since
Bradshaw failed to file within 90 days of receiving her “right to sue” letter from
the Equal Employment Opportunity Commission (“EEOC”). We AFFIRM.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60872
Paula Bradshaw is a former employee of the City of Gulfport. In
December 2008, Bradshaw filed with the EEOC a charge of employment
discrimination against the City after she allegedly found a hangman’s noose
hanging in her office in March of that year. The EEOC dismissed the charge as
untimely and issued a right to sue letter on December 16, 2008. Bradshaw
alleged that in retaliation for her filing this first complaint, the City
subsequently fired her on January 21, 2009. As a result, Bradshaw filed a
second charge with the EEOC on February 12, and contemporaneously appealed
her termination to the City’s Civil Service Commission (“CSC”). On June 16,
2009–before the CSC completed its review of Bradshaw’s appeal–the EEOC
issued a right to sue letter, which informed Bradshaw that she had 90 days from
the receipt of the letter to bring a civil action. Bradshaw filed suit on October
28, 2009. The district court dismissed the Title VII allegations of the suit as
time-barred.1 Bradshaw now appeals.
We review rulings on motions for summary judgment de novo, applying
the same standard as the district court. King v. Ill. Cent. R.R., 337 F.3d 550, 553
(5th Cir. 2003). A court may only grant summary judgment if there is no
genuine issue of material fact, such that the moving party is entitled to
judgment as a matter of law. F ED. R. C IV. P. 56(a).
Title VII prohibits retaliation by employers against employees who have
filed a charge of discrimination. Bryant v. Compass Group USA, Inc., 413 F.3d
471, 475 (5th Cir. 2005) (citing 42 U.S.C. § 2000e-3(a)). An employment
discrimination plaintiff may not, however, bring suit unless he timely files a
charge of discrimination with the EEOC. Taylor v. Books A Million, Inc., 296
F.3d 376, 379 (5th Cir. 2002). Once the EEOC issues a statutory notice of right
to sue, a plaintiff has 90 days to file suit. Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1The court also dismissed her claims against appellant Cowan with prejudice and her
state law claims without prejudice. These rulings are not appealed.
2
Case: 10-60872 Document: 00511500709 Page: 3 Date Filed: 06/07/2011
No. 10-60872
1188, 1191 (5th Cir. 1992). Importantly, the requirement to file a lawsuit within
the 90-day limitation period is not jurisdictional, but rather a statutory
precondition to filing suit. Taylor, 296 F.3d at 379-80. As a result, it is subject
to doctrines such as equitable tolling. Manning v. Chevron Chem. Co., 332 F.3d
874, 880 (5th Cir. 2003).
On appeal, Bradshaw argues that the limitations period for her claim was
equitably tolled. She does not, however, claim that any of the recognized bases
for equitable tolling in Title VII cases are applicable in her case.2 Rather,
Bradshaw cites a raft of regulations not raised before the district court to
support her theory that the limitations period should have been equitably tolled
until the CSC completed its review of her case. Since Bradshaw failed to present
this theory before the district court, it is not our place to consider it for the first
time on appeal. See Guillory v. PPG Indus., Inc., 434 F.3d 303, 313 (5th Cir.
2005). Accordingly, the district court properly concluded that Bradshaw’s suit,
which was filed on October 28, 2009, was untimely.
The judgment of the district court is
AFFIRMED.
2
The Fifth Circuit recognizes three potential bases for equitably tolling the 90-day
limitations period: (1) the pendency of a suit between the same parties in the wrong forum;
(2) the plaintiff's lack of awareness of the facts supporting his claim because of the defendant's
intentional concealment of them; and (3) the EEOC's misleading the plaintiff about his rights.
Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003).
3