USCA11 Case: 22-12032 Document: 32-1 Date Filed: 05/30/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12032
Non-Argument Calendar
____________________
JENNIFER BOATWRIGHT,
Plaintiff-Appellant,
versus
FLORIDA CREDIT UNION,
A Federally Insured State-Chartered
Credit Union,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
USCA11 Case: 22-12032 Document: 32-1 Date Filed: 05/30/2023 Page: 2 of 4
2 Opinion of the Court 22-12032
D.C. Docket No. 1:21-cv-00067-MW-GRJ
____________________
Before WILSON, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM:
Jennifer Boatwright appeals from the District Court’s grant
of Florida Credit Union’s motion to dismiss. She argues that, alt-
hough her charge of discrimination was untimely filed with the
Equal Employment Opportunity Commission (the “EEOC”), she
was entitled to equitable tolling because extraordinary circum-
stances, specifically COVID-19, prevented her from timely filing
the EEOC charge.
We review the grant of a motion to dismiss under Rule
12(b)(6) de novo, accepting the allegations in the complaint as true
while construing them in the light most favorable to the non-mo-
vant. Bourff v. Rubin Lublin, LLC,
674 F.3d 1238, 1240 (11th Cir.
2012) We review de novo whether equitable tolling applies, but we
review for clear error a district court’s factual findings on equitable
tolling. Cabello v. Fernandez-Larios,
402 F.3d 1148, 1153 (11th Cir.
2005).
Before filing an ADEA action, a plaintiff in a deferral state
such as Florida must first file a charge of discrimination with the
EEOC within 300 days of the alleged unlawful employment prac-
tice. 42 U.S.C. § 2000e-5(e)(1); EEOC v. Joe’s Stone Crabs, Inc.,
296
F.3d 1265, 1271 (11th Cir. 2002). Only alleged discriminatory acts
arising within 300 days prior to the filing of the charge are
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22-12032 Opinion of the Court 3
actionable. Joe’s Stone Crabs, Inc.,
296 F.3d at 1271. The plaintiff has
the burden of establishing that he filed a timely charge of discrimi-
nation. See Jackson v. Seaboard Coast Line R. Co.,
678 F.2d 992, 1010
(11th Cir. 1982).
Timely filing a charge of discrimination is not a jurisdictional
prerequisite, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling. Zipes v. Trans
World Airlines, Inc.,
455 U.S. 385, 393,
102 S. Ct. 1127, 1132 (1982).
Nevertheless, we have held that traditional equitable tolling princi-
ples require a claimant to justify her untimely filing by a showing
of extraordinary circumstances. Jackson v. Astrue,
506 F.3d 1349,
1353 (11th Cir. 2007).
The plaintiff must establish that tolling is warranted because
equitable tolling is an extraordinary remedy which should be ex-
tended only sparingly. Bost v. Fed. Express Corp.,
372 F.3d 1233, 1242
(11th Cir.2004). In addition to a showing of extraordinary circum-
stances, a plaintiff must show that the delay in filing was unavoid-
able, even if the plaintiff acted with diligence. See Sandvik v. United
States,
177 F.3d 1269, 1271 (11th Cir. 1999) (citing Irwin v. Dep’t of
Veterans Affairs,
498 U.S. 89, 96,
111 S. Ct. 453, 458 (1990) (“[w]e
have generally been much less forgiving in receiving late filings
where the claimant failed to exercise due diligence in preserving
[her] legal rights”)).
Here, the District Court did not err in granting Florida
Credit Union’s motion to dismiss because Boatwright admitted
that her EEOC charge was untimely filed. Further, the District
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4 Opinion of the Court 22-12032
Court did not err in determining that Boatwright was not entitled
to equitable tolling because she failed to show that the delay in fil-
ing was unavoidable had she acted diligently. Boatwright was ter-
minated in January 2022, but did not attempt to file a charge with
the EEOC until November 2022—over ten months later. Boat-
wright understood that there was a deadline for filing her charge of
discrimination with the EEOC, and she stated that there was no
reason she waited to sign the charge until November 8, 2020, de-
spite meeting with her attorney as early as the week she was termi-
nated. Nor was Boatwright’s attorney diligent. When he at-
tempted to file Boatwright’s charge with the EEOC, he attempted
to do so using a method inconsistent with the EEOC’s filing in-
structions. Namely, as opposed to using the EEOC portal to sched-
ule an intake interview, as the EEOC website clearly instructed,
Boatwright’s attorney sent her charge via FedEx, though the web-
site stated that its physical officers were closed.
Accordingly, we affirm the District Court’s grant of Florida
Credit Union’s motion to dismiss.
AFFIRMED.
