William Nitch v. Eastern Gateway Cmty. College

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0250n.06
Case No. 20-4016
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 21, 2021
)
WILLIAM NITCH, DEBORAH S. HUNT, Clerk
)
)
Plaintiff-Appellant,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE NORTHERN DISTRICT OF
) OHIO
EASTERN GATEWAY COMMUNITY
)
COLLEGE,
) OPINION
)
Defendant-Appellee.
)
BEFORE: COLE, BUSH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Dr. William Nitch claims that Eastern Gateway
Community College (EGCC) discriminated against him because of his age. But this appeal is not
about age discrimination; it’s about timing. Because Nitch’s complaint was untimely, he cannot
pursue his argument in federal court at all, so we affirm the district court’s dismissal.
In May 2018, Nitch received a right-to-sue notice from the Equal Employment Opportunity
Commission. He promptly sued EGCC in federal district court within 90 days as required by 29
U.S.C. § 626(e). He contends (and EGCC doesn’t seem to dispute) that EGCC dragged its heels
in discovery. But instead of pursuing a tailored remedy for EGCC’s conduct, he decided it was in
his best interest to dismiss the case without prejudice and seek to refile later. He communicated
his intent to EGCC, and the parties filed a stipulation of dismissal without prejudice in June 2019.
No. 20-4016, Nitch v. Eastern Gate Community College
He refiled in October 2019. And EGCC moved to dismiss, arguing that Nitch’s case was
barred by the ADEA’s 90-day statute of limitation. The district court dismissed his untimely claim
because he brought the second iteration of his lawsuit outside the 90-day window.
Nitch argues that the dismissal was inappropriate because 1) the court should have
equitably tolled the limitations period, 2) a contract implied in law between the parties tolled the
limitations period, and 3) a three-year limitations period should apply. We reject each argument in
turn.
First, the district court did not err in refusing to equitably toll the limitations period. In
appropriate circumstances a federal court may equitably toll a limitations period. But equitable
tolling is not an easy “escape valve.” Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir.
1987) (citation omitted). “[E]quitable tolling relief should be granted only sparingly.” Amini v.
Oberlin Coll., 259 F.3d 493, 500 (6th Cir. 2001). And we typically do so only when a plaintiff
shows that her “failure to meet a legally-mandated deadline unavoidably arose from circumstances
beyond [her] control.” Zappone v. United States, 870 F.3d 551, 556 (6th Cir. 2017) (citation
omitted). “[M]ost cases in which equitable tolling relief is granted” involve an opposing party
“engag[ing] in . . . misrepresentations or other wrongdoing that cause[] [a plaintiff] to miss his
filing deadline.” Amini, 259 F.3d at 501.
Our court usually looks to five factors when deciding whether to equitably toll a limitations
period: “(1) the plaintiff’s lack of notice of the filing requirement; (2) the plaintiff’s lack of
constructive knowledge of the filing requirement; (3) the plaintiff’s diligence in pursuing her
rights; (4) an absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in
remaining ignorant of the particular legal requirement.” Zappone, 870 F.3d at 556 (citation
2
No. 20-4016, Nitch v. Eastern Gate Community College
omitted). But we have also noted that “the five factors are neither comprehensive nor material in
all cases.” Id.
On top of these factors, caselaw provides several guideposts in equitable tolling cases.
First, “the filing of a complaint which is later dismissed without prejudice does not toll the statutory
filing period.” Wilson, 815 F.2d at 28 (Title VII case). Second, “ignorance of the law alone is not
sufficient to warrant equitable tolling.” Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 561 (6th Cir. 2000) (citation omitted). And third, “a lawyer’s mistake is not”
“[g]enerally” “a valid basis for equitable tolling.” Jurado v. Burt, 337 F.3d 638, 644 (6th Cir. 2003)
(citation omitted). “[T]he principles of equitable tolling . . . do not extend to what is at best a garden
variety claim of excusable neglect” on a lawyer’s part. Irwin v. Dep’t of Veterans Affs., 498 U.S.
89, 96 (1990). And “fail[ing] to file [a client’s] petition on time” or being “unaware of the date on
which the limitations period expired” are “two facts that, alone, might suggest simple negligence.”
Holland v. Fla., 560 U.S. 631, 652 (2010). “[T]he remedy for negligence by a party’s lawyer is
generally a legal malpractice suit . . . .” Jurado, 337 F.3d at 644-45 (citation omitted).
Nitch argues that equitable tolling is appropriate for two reasons. His attorney was
operating under the incorrect assumption that the Ohio Savings Statute applied and would allow
Nitch to refile within a year. And EGCC acted affirmatively to impede Nitch’s initial lawsuit in
questionable ways by dillydallying in discovery.
Neither of these arguments shows error on the part of the district judge. This is plain and
simple an attorney mistake case. And neither “a lawyer’s mistake,” Jurado, 337 F.3d at 644(citation omitted), nor “ignorance of the law . . . warrant[s] equitable tolling,” Graham-Humphreys,
209 F.3d at 561 (citation omitted). That Nitch filed previously and sought voluntary dismissal also
does not aid his cause even if EGCC was dilatory in the previous round of litigation. Simply stated,
3
No. 20-4016, Nitch v. Eastern Gate Community College
“[t]he filing of a complaint which is later dismissed without prejudice does not toll the statutory
filing period.” Wilson, 815 F.2d at 28. And even if EGCC’s conduct during discovery made Nitch
feel like dismissal and refiling was his best option, Nitch hasn’t shown that EGCC did anything to
induce his mistaken belief that the Ohio Savings Statute would apply. So his case is unlike cases
“in which equitable tolling relief is granted” because an opposing party “engaged in . . .
misrepresentations or other wrongdoing [and] caused [a plaintiff] to miss his filing deadline.”
Amini, 259 F.3d at 501. Nitch cannot sidestep this authority. The district court did not err.1
Second, Nitch failed to raise his contract-implied-in-law argument below, so we decline to
address its merits. The general rule in this court is that an argument not properly presented in
district court is unpreserved for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.
2008). This rule both “eases appellate review” and “ensures fairness to litigants by preventing
surprise issues from appearing on appeal.” Id. And while we may review unpreserved issues, “[w]e
. . . rarely exercise[] such discretion.” Id. We see no reason to depart from our general rule here.
Nitch “had ample opportunity to raise the issue to the district court,” and by failing to do so, he
forfeited this argument. Id. at 553.
Third, the district court was correct to reject Nitch’s three-year-limitations argument in
ruling his complaint was untimely. Nitch argues that his claims under the Age Discrimination in
Employment Act (ADEA) are subject to the three-year statute of limitations in 29 U.S.C. § 255, a
provision of the Fair Labor Standards Act (FLSA). He bases this argument on an ADEA provision
that says “[t]he provisions of this chapter shall be enforced in accordance with the powers,
remedies, and procedures provided in” various FLSA provisions. 29 U.S.C. § 626(b).
1
We are mindful that parties should not be rewarded for their misconduct during discovery.
But the Federal Rules provide district courts with the tools to address those issues. See, e.g., Fed.
R. Civ. P. 37. It is up to the parties, however, to invoke those remedies. See id. at 37(3)(A)-(B).
4
No. 20-4016, Nitch v. Eastern Gate Community College
His argument tries to muddy a clear statutory scheme. For starters, the ADEA provision
referencing the FLSA provisions does not refer to 29 U.S.C. § 255—the statute that sets the statute
of limitations for FLSA actions. The FLSA statute of limitations, moreover, only covers specific
actions: “any cause of action for unpaid minimum wages, unpaid overtime compensation, or
liquidated damages, under the Fair Labor Standards Act.” 29 U.S.C. § 255. Nitch’s action—an
ADEA discrimination claim—is not on the list.
Even more problematic for Nitch’s argument, the ADEA has its own limitations provision
that covers his case. The ADEA limitations scheme creates a hard start and stop for civil actions.
Under the ADEA limitations scheme, “[n]o civil action may be commenced . . . until 60 days after
a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity
Commission.” 29 U.S.C. § 626(d)(1). So after sixty days, a person is given the green light to bring
a civil action, even if the EEOC has not issued a decision. But once that person receives notice that
the EEOC has terminated or dismissed the charge, he is on the clock. If that happens, “[a] civil
action may be brought . . . against the respondent named in the charge within 90 days.” Id. § 626(e).
After 90 days, the light turns red—the action is time barred. See Thompson v. Fresh Prod., LLC,
985 F.3d 509, 521 (6th Cir. 2021) (“[I]f she waits for a right-to-sue letter, [a person] must bring
such an action within 90 days of receiving it . . . .”).
Nitch filed his initial complaint within the 90-day window. But the complaint that matters
is the second one. And he filed that one following voluntary dismissal far outside that window.
His claims are barred.
We AFFIRM.
5