PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT U.S. FILED
COURT OF APPEALS
ELEVENTH CIRCUIT
________________ NOV - 6 2000
THOMAS K. KAHN
CLERK
No. 99-13897
________________
D.C. Docket No. 98-06559-CV-WJZ
ROBERTA SANTINI, M.D.,
Plaintiff-Appellant,
versus
CLEVELAND CLINIC FLORIDA,
Defendant-Appellee.
________________
Appeal from the United States District Court
for the Southern District of Florida
________________
(November 6, 2000)
Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI*, Judge.
PER CURIAM:
*
Honorable Jane A. Restani, Judge, United States Court of International Trade,
sitting by designation.
This appeal arises from the September 2, 1999, Order of the United States
District Court for the Southern District of Florida granting summary judgment to
defendant Cleveland Clinic Florida (“the Clinic”). Plaintiff-appellant Roberta
Santini, M.D. (“Santini”) contends that the district court erred in concluding first
that her federal claims were time-barred and second that no basis existed for an
equitable tolling of the statutory filing period. We affirm.
BACKGROUND
In late February of 1997, Santini filed a Charge of Discrimination
(“Charge”) with the Equal Employment Opportunity Commission (“EEOC”) and
the Broward County Human Rights Division against the Clinic for gender and age
discrimination. On May 8, 1997, Santini amended the Charge to add a claim of
retaliatory discharge. In response to the Charge, the EEOC issued a “Dismissal
and Notice of Right to Sue” (“Notice”). Santini received the Notice on or before
February 2, 1998. An associate at the law firm representing her informed the
EEOC that the Notice was undated, so the EEOC issued a second Notice dated
March 2, 1998.
On May 29, 1998, Santini filed a complaint with the U.S. District Court for
the Southern District of Florida under Title VII of the Civil Rights Act of 1964
2
(“Title VII”), 42 U.S.C § 2000e et seq. (1994), and the Age Discrimination in
Employment Act (“ADEA”),
29 U.S.C. § 626 (1967). On September 2, 1999, the
district court granted defendant’s motion for summary judgment on Santini’s
federal claims, finding, inter alia, that (1) Santini’s federal claims were time-barred
because she failed to file her complaint within 90 days of receipt of the Notice, and
(2) no basis existed for an equitable tolling of the statutory filing period. The court
considers whether the district court erred in granting summary judgment for the
Clinic on Santini's claims.1
DISCUSSION
The court reviews the district court’s grant of summary judgment de novo.
See Gordan v. Cochran,
116 F.3d 1438, 1439 (11th Cir. 1997). Title VII and
ADEA actions may not be brought more than 90 days after a complainant has
adequate notice that the EEOC has dismissed the Charge. See, e.g., Zillyette v.
1
The district court also issued an Order Imposing Sanctions on Santini’s trial
counsel Bartley C. Miller (“Miller”) for "concealing critical evidence, advancing spurious
arguments, submitting misleading affidavits and testimony." Because the magistrate judge has
not yet reduced the sanctions order to a specific sum, the order is not final and the court lacks
jurisdiction over Miller’s appeal. Traveler’s Ins. Co. v. Liljeberg Ins. Co.,
38 F.3d 1404, 1413
n.18 (5th Cir. 1994) (“an order awarding attorney’s fees or costs is not reviewable on appeal
until the award is reduced to a sum certain”) (quoting Southern Travel Club, Inc. v. Carnival Air
Lines, Inc.,
986 F.2d 125, 131 (5th Cir. 1993)). Therefore, the court does not reach the issue of
sanctions.
3
Capital One Fin. Corp.,
179 F.3d 1337, 1339-41 (11th Cir. 1999).2 A second
Notice tolls the limitation period only if the EEOC issues such Notice pursuant to a
reconsideration on the merits under
29 C.F.R. § 1601.21(b), (d). See, e.g., Gitlitz
v. Compagnie Nationale Air France,
129 F.3d 554, 557 (11th Cir. 1997) (“[A]
second EEOC letter . . . [is] not effective if there [is] no reconsideration”) (citing
Gonzalez v. Firestone Tire & Rubber,
610 F.2d 241, 246 (5th Cir. 1980)). Here,
the EEOC reissued a Notice merely to correct a technical defect rather than
pursuant to a reconsideration of the Charge. Because the issuance of a second
Notice on March 2, 1998 is immaterial, the district court did not err in finding that
Santini’s federal claims were time-barred.
As a matter of law, receipt of a second EEOC Notice does not constitute
grounds for equitable tolling where a party has actual knowledge of the first
Notice. See Ball v. Abbott Adver., Inc.,
864 F.2d 419, 421 (6th Cir. 1988) (noting
that “[a]ctual notice destroys any possible basis for applying the ‘equitable tolling’
doctrine”). At the summary judgment hearing held June 1, 1999, Santini
acknowledged that she had actual knowledge of the first Notice. Therefore, the
2
Title VII provides that “[w]ithin ninety days after the giving of . . . notice [of
dismissal of the charge] a civil action may be brought against the respondent named in the
charge . . . by the person claiming to be aggrieved....” 42 U.S.C § 2000e-5(f)(1). Similarly, the
ADEA provides that “[a] civil action may be brought under this section by a person . . . against
the respondent named in the charge within 90 days after the date of the receipt of . . . notice [of
dismissal of the charge].”
29 U.S.C. § 626(e).
4
district court properly found equitable tolling inapplicable. Accordingly, the court
affirms the district court’s grant of summary judgment.
AFFIRMED.
5
