Burrell v. Brown ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30030
Summary Calender
_____________________
BARBARA SUE BURRELL
Plaintiff-Appellant
v.
MAXINE BROWN, doing business as Jamie’s Family
Restaurant
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
No. 98-CV-908
_________________________________________________________________
July 28, 2000
Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Barbara Sue Burrell appeals a jury
verdict in favor of Defendant-Appellee Maxine Brown. For the
following reasons, we AFFIRM.
I.
*
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this opinion should not be published and is not precedent except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.
Burrell is a former cook at Jamie’s Family Restaurant in
Bastrop, Louisiana. Jamie’s Family Restaurant is owned and
operated by Brown. In December 1994, Burrell informed Brown that
she was pregnant. On January 25, 1995, Brown told Burrell not to
return to work because she was worried that Burrell would slip
and fall in the kitchen, possibly injuring her unborn child.
According to testimony offered at trial, Brown intended Burrell’s
lay-off to be temporary, with Burrell returning to work after the
baby was born.
Burrell had her baby in August, and subsequently asked Brown
for her job back. During Burrell’s pregnancy, however, another
restaurant had opened in Bastrop and drawn business away from
Jamie’s Family Restaurant. As a result, Brown did not need any
more cooks and refused to give Burrell her job back. In October
1995, Burrell filed a complaint with the Bastrop Job Service (a
division of the Louisiana Department of Labor), complaining that
Brown had discriminated against her because of her pregnancy.1
1
There is some dispute regarding exactly what forms Burrell
completed when she made her complaint to the Bastrop Job Service.
Both sides agree that Burrell completed an “Employment Service
Complaint” form provided by the United States Department of
Labor. The record, however, also contains an undated Equal
Employment Opportunity Commission (“EEOC”) Charge of
Discrimination. In the charge, Burrell stated that she believed
she had been discriminated against because of her pregnancy. The
charge also stated that it would be filed with the Louisiana
Commission on Human Rights (“LCHR”) and the EEOC. Burrell claims
that she filled out this form during her visit to the Bastrop Job
Service, but Brown disputes this conclusion, arguing that the
charge was not completed until December 1995 at the earliest.
2
The same day the Bastrop Job Service received Burrell’s
complaint, it concluded that it could not properly resolve the
issue at the local level. As a result, it forwarded her
complaint to the Director of Compliance Programs for the
Louisiana Department of Labor. After a delay of over two months,
the Director of Compliance Programs determined that the EEOC,
rather than the Louisiana Department of Labor, was the
appropriate agency to handle Burrell’s complaint. The Department
of Labor forwarded Burrell’s complaint to the EEOC on December
11, 1995.
Because Burrell’s charge was not filed with the EEOC within
300 days of her being fired, as required by Title VII, see 42
U.S.C. § 2000e-5(e)(1), the EEOC initially informed Burrell that
it lacked jurisdiction because her charge was untimely.2 Burrell
urged the EEOC to reconsider its decision. The EEOC subsequently
determined that Burrell’s original complaint to the Bastrop Job
Service was sufficient to render her charge timely. The EEOC
investigated Burrell’s charge, concluded that it was likely that
The district court, in considering the parties’ Rule 50 motions,
found that the charge had been completed by Burrell during her
October 1995 visit to the Bastrop Job Service. In any event,
neither party disputes that the form did not actually find its
way to the EEOC until sometime in December of 1995. Nor,
apparently, was the charge ever filed with the LCHR. Given our
analysis of the case, we need not determine the exact date that
the EEOC charge form was completed.
2
Burrell’s EEOC charge would have to have been filed with
the EEOC by November 21, 1995 to be within the 300-day time
limit.
3
she had been discriminated against by Brown, and attempted
conciliation. When all attempts at conciliation failed, the EEOC
issued Burrell a right-to-sue letter on February 12, 1998.
Burrell filed suit in the United States District Court for
the Western District of Louisiana on May 11, 1998. Burrell’s
complaint alleged that Brown had illegally discriminated against
her in violation of Title VII of the Civil Rights Act of 1964,
see 42 U.S.C. §§ 2000e-2000e-17, by firing Burrell because she
was pregnant. Cross-motions for summary judgment were denied,
and the case moved to trial.
During trial, both parties made timely Rule 50 motions for
judgment as a matter of law, and the district court took both
motions under advisement. Prior to charging the jury, the
district court denied Brown’s Rule 50 motion, finding that there
was sufficient evidence to support a finding for Burrell. The
court did, however, find that Burrell’s filing with the Bastrop
Job Service did not constitute a filing with the EEOC and that
her EEOC charge was therefore untimely. Nonetheless, the court
concluded that the doctrine of equitable tolling might serve to
relieve Burrell of the timely filing requirement, and that
whether equitable tolling should apply in this case was an issue
of fact to be decided by the jury. The court withheld ruling on
Burrell’s Rule 50 motion until the jury returned its verdict.
The district court subsequently instructed the jury that
Burrell had failed to make a timely filing with the EEOC but
4
that, under the doctrine of equitable tolling, her failure to
make a timely filing might be excused.3 Neither party objected
to the jury instructions. The jury interrogatories asked the
jury to first find whether “Burrell diligently pursued her
employment discrimination claim but inadvertently missed
deadlines due to her lack of sophistication with the procedural
3
Specifically, the court instructed the jury that:
Before an employee can file suit against his
employer under [Title VII], he must first
file a charge with the [EEOC]. In Louisiana,
an employee has 300 days from the date of the
act of discrimination to file a complaint
with the E.E.O.C. If the employee does not
file a complaint within the 300 day time
period, he is barred from bringing an action
in court against the employer. In this case
the charge was not timely filed.
However, the employee’s failure to file a
charge with the E.E.O.C. during the 300 day
period may be excused under certain
circumstances. This is known as “equitable
tolling.” Equitable tolling is a doctrine
that a court may apply to allow an action to
proceed even though the action is untimely
under the statute. The plaintiff bears the
burden of proving the justification for the
application of equitable tolling principles.
Equitable tolling may be based on the
plaintiff’s excusable neglect, which may or
may not be attributable to the defendant.
Equitable tolling may apply when a plaintiff
has vigorously pursued his action, but has
inadvertently missed deadlines due to his or
her lack of sophistication with the
procedural requirements of employment
discrimination claims. The jury must decide
whether the plaintiff’s excusable neglect
caused the untimely filing.
5
requirements of employment discrimination.” The court instructed
the jury not to answer the remaining interrogatories regarding
Burrell’s claims of discrimination if it answered the first
interrogatory in the negative. The jury answered the first
interrogatory in the negative, thus returning a verdict in favor
of Brown.
After the jury returned its verdict, Burrell renewed her
Rule 50 motion. The district court denied her motion and
subsequently entered judgment in favor of Brown. Burrell timely
appeals.
II.
On appeal, Burrell argues a number of points. First, she
contends that the court erred in finding that her filing with the
Bastrop Job Service was insufficient to constitute a filing with
the EEOC and that her EEOC complaint was therefore untimely.
Second, Burrell complains that the issue of equitable tolling is
a legal one, and that the district court erred in submitting the
issue to the jury. Lastly, Burrell argues that even if the issue
of equitable tolling was properly submitted to the jury, the
jury’s verdict was not supported by the evidence and the district
court erred in denying her judgment as a matter of law.4 We
4
Burrell’s brief also contends that the district court
erred in denying her motion for summary judgment. Only “final
decisions of the district courts” may be appealed. See 28 U.S.C.
§ 1291. A denial of summary judgment is an interlocutory
6
discuss each of these arguments in turn.
A. Did Burrell’s Filing with the Bastrop Job Service Meet the
Requirements for a Timely Filing with the EEOC under Title VII?
Burrell claims that her complaint to the Bastrop Job Service
was a complaint filed with a state deferral agency, that a filing
with a state deferral agency constitutes a filing with the EEOC,
and thus that her filing with the Bastrop Job Service rendered
her complaint timely filed with the EEOC. Brown counters that
Title VII requires at least a nominal filing with the EEOC, and
that a filing with a state deferral agency cannot satisfy Title
VII’s filing requirements. Brown further contends that even if a
filing with the state deferral agency were sufficient to
constitute a filing with the EEOC, the proper deferral agency in
Louisiana is the LCHR, not the Bastrop Job Service.
Whether Burrell’s filing with the Bastrop Job Service within
the 300-day time limit constitutes a timely filing with the EEOC
is an issue of law. We review issues of law de novo. See
Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000).
decision. An interlocutory decision is only considered final and
appealable under § 1291 if “it (1) conclusively determines the
disputed question; (2) resolves an important issue completely
separate from the merits of the action; and (3) is effectively
unreviewable on appeal from a final judgment.” Acoustic Sys.,
Inc. v. Wenger Corp., 207 F.3d 287, 290 (5th Cir. 2000)
(citations omitted). Burrell has made no showing that any of
these conditions are met here, and thus we lack jurisdiction to
review the district court’s denial of Burrell’s summary judgment
motion.
7
Title VII requires that an aggrieved employee file a charge
of discrimination with the EEOC within 180 days of the alleged
unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1).
Title VII, however, also contemplates that states will establish
state or local agencies with “authority to grant or seek relief”
from discriminatory practices, “or to institute criminal
proceedings with respect thereto.” Id. States with such
agencies are known as deferral states. See Blumberg v. HCA
Management Co., Inc., 848 F.2d 642, 645 (5th Cir. 1988). In a
deferral state, an individual need not file a charge with the
EEOC until thirty days after receiving notice that the state or
local agency has terminated proceedings, or 300 days after the
alleged unlawful employment action, whichever is earlier. See 42
U.S.C. § 2000e-5(e)(1). Louisiana became a deferral state with
the creation of the LCHR. See La. Rev. Stat. Ann. §§ 51:2231-
51:2265.
We agree with the district court’s decision that Burrell’s
filing with the Bastrop Job Service was insufficient to
constitute a filing with the EEOC. Title VII “clearly
anticipates that [a] complaint must be filed with the EEOC” prior
to complainant’s seeking relief in federal court. Chappell v.
Emco Mach. Works Co., 601 F.2d 1295, 1304 (5th Cir. 1979); see
also Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998)
(stating that “[i]n a state that . . . provides a state or local
administrative mechanism to address complaints of employment
8
discrimination, a title [sic] VII plaintiff must file a charge of
discrimination with the EEOC within 300 days after learning of
the conduct alleged”) (emphasis added) (citations omitted).
Therefore, Burrell was required to make some sort of nominal
filing with the EEOC within 300 days of the complained-of action.
It is undisputed that no document relating to Burrell’s charge of
discrimination reached the EEOC until early December, well
outside the 300-day time limit.
Burrell points to a work-sharing agreement between the LCHR
and the EEOC in support of her contention that a filing with the
state deferral agency is sufficient to constitute a filing with
the EEOC. Burrell’s reliance on this agreement, however, is
misplaced. While the agreement states that the EEOC and LCHR
“designate the other as its agent for the purpose of receiving
and drafting charges,” the fact remains that Burrell never filed
a charge with the LCHR. Burrell baldly asserts that “it is
apparent that the Louisiana Department of Labor and Bastrop Job
Service served as agents of the” LCHR, but she provides no
support for that contention. The case law is devoid of any
reference to other Louisiana state agencies acting as agents for
the LCHR, and Louisiana statutes offer no indication that other
state agencies are empowered to act on the LCHR’s behalf.
Furthermore, under Title VII, a deferral agency is a state
or local agency that has the authority to “grant or seek relief”
from discriminatory practices, as well as to “institute criminal
9
proceedings” with respect to the discrimination alleged by the
charging party. 42 U.S.C. § 2000e-5(e)(1); see also White v.
Dallas Indep. Sch. Dist., 581 F.2d 556, 561 (5th Cir. 1978) (en
banc). Burrell points to no authority indicating that either the
Bastrop Job Service or the Louisiana Department of Labor is
empowered to act in a manner that would justify their being
considered deferral agencies.
Burrell also points out that the EEOC, although it first
determined that her complaint was untimely, later amended its
decision to find that her filing with the Bastrop Job Service was
sufficient to render her charge timely. The federal courts,
however, are not bound by determinations made by the EEOC. See
Chappell, 601 F.2d at 1304 (holding that the courts are not bound
by the EEOC’s determinations regarding compliance with Title
VII’s filing requirements, but instead must make an “independent
determination” regarding timeliness). Therefore, the district
court did not err either in disregarding the EEOC’s decision
regarding the timeliness of Burrell’s charge, or in independently
finding that Burrell’s charge was not timely.
Finally, Burrell argues that she believed that she had done
all that was required of her once she filed a complaint with the
Bastrop Job Service. We recognize that his may have been the
case. Burrell’s belief, however, does not pertain to whether a
charge was timely filed with the EEOC, but to whether the
doctrine of equitable tolling, discussed infra, applies to excuse
10
Burrell’s late filing. Burrell was required to file a charge
with the EEOC within 300 days of being fired by Brown, and the
evidence is uncontroverted that no filing was made within this
time. We find no support in the record, case law, or statutes
for Burrell’s contention that her filing with the Bastrop Job
Service was sufficient to constitute a filing with the EEOC.
Therefore, we agree with the district court that that Burrell
failed to make a timely filing with the EEOC.
B. Did the District Court Err in Submitting the Issue of
Equitable Tolling to the Jury?
It is well established that a timely filing with the EEOC is
not a jurisdictional prerequisite, but is 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 (1982). Prior to Zipes, we recognized that the
time period for filing a charge with the EEOC may be tolled in at
least three specific instances: (1) “during the pendency of an
action before a state court which had jurisdiction over the
subject matter of the suit, but which was the wrong forum under
state law”; (2) during the period prior to when the employee knew
or should have known of the facts giving rise to his claim; and
(3) when the EEOC misleads the employee about her rights.
Chappell, 601 F.2d at 1302-03. We have recognized, however, that
equitable tolling may apply to more circumstances than just those
11
listed in Chappell. See Conaway v. Control Data Corp., 955 F.2d
358, 362 (5th Cir. 1992) (stating that “[e]quitable tolling
focuses on the plaintiff’s excusable ignorance of the employer’s
discriminatory act”) (citations omitted); Blumberg, 848 F.2d at
644-45 (listing the three bases for equitable tolling recognized
in Chappell but stating that “these three are not the only cases
for tolling” and that “other circumstances may toll the running
of the period”).
In this case, neither party has objected to the district
court’s decision that, under these factual circumstances,
equitable tolling may serve to excuse Burrell’s untimely filing
with the EEOC. Rather, Burrell contends that the issue of
whether equitable tolling should apply to excuse her untimely
filing was a legal one, and therefore the lower court erred in
submitting the issue to the jury.5 Burrell, however, failed to
make this objection in the district court. Federal Rule of Civil
Procedure 51 states that “[n]o party may assign as error the
giving of [a jury] instruction unless that party objects thereto
before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the
objection.” The record indicates that the district court gave
both parties an opportunity to object to the jury instructions,
5
Burrell does not argue that the equitable nature of the
inquiry makes it an issue for a judge rather than a jury.
12
including the instruction regarding equitable tolling, but that
neither party stated any objection.
“Where the party challenging the district court’s
instructions has failed to raise the objection before the
district court and his position has not been made clear to the
court in some other manner, our consideration of the issue is
limited to plain error review.” Russell v. Plano Bank & Trust,
130 F.3d 715, 721 (5th Cir. 1997); see also Hartsell v. Dr.
Pepper Bottling Co. of Texas, 207 F.3d 269, 272 (5th Cir. 2000).
There is no evidence in the record that Burrell objected to the
district court’s jury instruction on the issue of equitable
tolling. Therefore, we will only review the district court’s
decision for plain error.
Plain error is an error that is “clear,” “obvious,” or
“readily apparent.” See United States v. Calverley, 37 F.3d 160,
163 (5th Cir. 1994) (citations omitted). Furthermore, to
constitute plain error, the error must affect the appellant’s
substantial rights. See id. at 164. Even if we find plain
error, we need only reverse the district court if the error
“seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Atkinson,
297 U.S. 157, 160 (1936); see also United States v. Olano, 507
U.S. 725, 732 (1993).
There is no plain error in the court’s submission of the
issue of equitable tolling to the jury. “[F]indings involving
13
material facts genuinely in dispute” -- in this case, whether
excusable neglect caused Burrell’s untimely filing -- are
reserved for the fact finder, whether judge or jury. Carroll v.
Metropolitan Ins. and Annuity Co., 166 F.3d 802, 808 (5th Cir.
1999).
Furthermore, it is well established that Title VII’s time
limits for filing a charge with the EEOC are similar to a
traditional statute of limitations. See Zipes, 455 U.S. at 393.
We have long held that determining whether a statute of
limitations should be equitably tolled turns, in part, on factual
determinations. See Fluor Eng’rs and Constructors, Inc. v.
Southern Pac. Transp. Co., 753 F.2d 444, 449 n.6 (5th Cir. 1985)
(stating that whether a plaintiff exercised due diligence in
attempting to serve the defendant with process, which would toll
the statue of limitations, is a question of fact); Hanson v. Polk
County Land, Inc., 608 F.2d 129, 131 (5th Cir. 1979) (stating
that “[a] factual dispute about equitable tolling of the statute
of limitations” would render a grant of summary judgment
inappropriate).
We find that the district court did not clearly err in
submitting the issue of equitable tolling to the jury. Once the
district court determined that Burrell had failed to make a
timely filing with the EEOC, the question whether equitable
tolling excused her failure turned on the factual issues whether
Burrell was diligent in pursuing her rights and missed the filing
14
deadline only as a result of excusable neglect. Given that the
jury was the ultimate finder of fact in this case, we find that
the district court did not clearly err in submitting these issues
to the jury.
C. Is the Jury’s Verdict Supported by Sufficient Evidence?
Lastly, Burrell objects to the jury’s verdict and the
district court’s subsequent refusal to grant her judgment as a
matter of law. Burrell claims that there was no evidence that
she had failed to diligently pursue her claim for discrimination.
“When a party contests a jury verdict on the grounds that the
evidence is legally insufficient, we ordinarily apply de novo
review, making the same inquiry required of the district court.”
Gaia Technologies Inc. v. Recycled Products Corp., 175 F.3d 365,
373 (5th Cir. 1999) (citing Nero v. Indus. Molding Corp., 167
F.3d 921, 925 (5th Cir. 1999)).
The district court may only set aside the jury’s verdict if
“there is no legally sufficient evidentiary basis for a
reasonable jury” to find as it did. Fed. R. Civ. P. 50.
Therefore, we review the record to determine whether sufficient
material evidence supports the jury’s verdict. See Vance v.
Union Planters Corp., 209 F.3d 438, 441 (5th Cir. 2000). “We may
not reweigh the evidence, re-evaluate the credibility of the
witnesses, nor substitute our reasonable factual inferences for
the jury’s reasonable inferences.” Douglas v. DynMcDermott
15
Petroleum Operations Co., 144 F.3d 364, 369 (5th Cir. 1998).
While the question is a close one, ultimately we agree with
the district court that there is sufficient evidence in the
record to support the jury’s verdict. While Burrell testified
that she believed she had taken all necessary steps in filing her
EEOC complaint, Brown’s attorney elicited testimony on cross-
examination indicating that Burrell had been less than diligent
in pursuing her rights. Burrell’s testimony demonstrated that
she had simply relied on the Bastrop Job Service to handle her
claim and that she had done little to ensure that the Bastrop Job
Service was the correct agency or that the charge was being
properly handled. Brown also introduced evidence showing that
when Burrell filed a second EEOC charge against Brown, she stated
on the charge questionnaire that her first charge had not been
filed with the EEOC until December 1995.
While our examination of the record suggests that reasonable
juries could differ in their conclusions regarding Burrell’s
diligence in pursuing her claim, we cannot say that the jury’s
verdict is wholly unsupported by the record. In determining
whether she diligently pursued her claim, the jury was called
upon to assess Burrell’s credibility. Having heard the evidence
and witnessed the demeanor of the parties, the jury was entitled
to conclude that Burrell should have been more diligent in
pursuing her charge and that her untimely filing was not due to
excusable neglect. We therefore decline to disturb the jury’s
16
conclusion.
III.
For the above stated reasons, we AFFIRM.
17