Harrison v. Estes Express Lines , 211 F. App'x 261 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2006
Charles R. Fulbruge III
Clerk
06-20407
Summary Calendar
HENRY L. HARRISON, JR.,
Plaintiff-Appellant,
Versus
ESTES EXPRESS LINES,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas, Houston Division
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Henry L. Harrison (“Harrison”) filed this suit against his
former employer, Estes Express Lines (“Estes”) under Title VII
based on racial discrimination.
The district court granted summary judgment in favor of
Estes, holding that Harrison had not filed a timely claim with
the Equal Employment Opportunity Commission (“EEOC”). For the
*
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this opinion should not be published and is not precedent except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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following reasons, we AFFIRM the decision of the district court.
I.
In 2001, Harrison applied for employment with Estes by
completing an application form that required certain criminal
history disclosures. The application asked applicants to list
all felony convictions which had occurred within 7 years of the
application date. Harrison had a criminal conviction for cocaine
possession which had occurred more than 10 years prior to the
date of his application. Because the conviction was beyond the 7
year disclosure period, Harrison did not disclose it. Estes
hired Harrison on September 1, 2001.
Harrison’s previous conviction was eventually discovered by
Estes after the company conducted background checks on its
employees in February 2003. Harrison’s background check revealed
that his 1991 conviction carried a sentence of 12 years. Because
Harrison’s conviction and prison sentence appeared to conflict
with the employment history on his application, Estes requested
proof of Harrison’s previous employment. Though the
documentation provided by Harrison verified most of his previous
employment, it also revealed inconsistencies between the actual
dates of Harrison’s former employment and the dates reported on
his application. Specifically, Harrison’s application indicated
that he was working during a period of time when he was actually
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incarcerated.
Shortly after Harrison had provided the employment
verification documentation to Estes, Estes terminated Harrison
effective March 7, 2003. The reason for the termination is the
subject of some dispute. Harrison cites evidence in the record
that Estes represented to him and to the state unemployment
agency that he was fired because of the cocaine conviction.
Estes claims that Harrison’s previous conviction was not a factor
and that Harrison was terminated because of the false statements
he made in his application regarding his employment history.
Harrison asserts that while he and another black employee
were fired for having criminal convictions, Robert Allen, a white
employee with a previous criminal conviction, was permitted to
keep his job despite his own criminal background. Harrison’s
sworn affidavit states that he learned of Allen’s conviction back
in 2002 when he overheard Allen make statements to co-workers
during lunch that he had been in prison.**
Three months after Harrison’s termination, on or about June
6, 2003, Harrison and his wife went to the EEOC’s Houston
**
While Allen was also subject to a criminal background
check by Estes, that investigation did not reveal Allen’s
previous criminal conviction because the conviction had occurred
outside the time period examined. After discovery in this case
revealed Allen’s previous conviction as well as information that
Allen had provided false information in his job application,
Estes terminated Allen.
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District Office. Harrison met with an EEOC employee, Wanda
Johnson, to discuss his termination. Harrison complained to
Johnson that Estes had wrongfully terminated him for failing to
disclose his previous felony conviction despite the fact that the
employment application did not require such a disclosure. He
claims to have asked Johnson if the EEOC would be able to
determine whether race was a factor in his termination through an
investigation of the backgrounds and races of other employees who
had recently been terminated. Although Harrison’s affidavit
indicates that he knew of his white co-worker Allen’s conviction
and non-termination during his first visit to the EEOC, he did
not disclose that information to the Johnson or any other EEOC
counselor at that time.
Johnson explained to Harrison that he would have to provide
the EEOC with some additional information about other Estes
employees before the EEOC could help him file a charge. Harrison
states that the EEOC did not inform him about the 300-day
limitations period for the filing of a charge of discrimination.
He agreed to return after he had developed more information.
Harrison also asserts that he filled out a two sided form on
green paper during his visit to the EEOC. This green sheet,
which Harrison states was either an intake or charge form, is not
part of the record and Harrison’s testimony is the only evidence
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of the document’s existence.
Over the course of the next year, Harrison says he attempted
to contact the EEOC office on at least two occasions to get more
details on what he needed to do. He claims to have made calls
around November of 2003 and February of 2004 and to have left
messages with his name and number. After seeking legal advice,
Harrison returned to the EEOC office in person on August 23,
2004. At that time, he filed a discrimination claim and
completed a charge form. Harrison’s August 23, 2004 charge
alleges that Estes fired Harrison for having a felony conviction
and allowed a white worker with a felony conviction to continue
working.
Because Harrison’s termination had occurred more than 300
days before he filed his charge (his charge was filed 535 days
afterwards), the EEOC determined that Harrison’s complaint was
not timely and dismissed the charge. Thereafter, Harrison filed
the present suit. The district court granted Estes’s motion for
summary judgment on Harrison’s Title VII claims on the basis that
Harrison had failed to file a charge with the EEOC within 300-
days of the alleged discriminatory violation. Harrison appeals
the district court’s grant of Estes’s motion for summary judgment
on the basis that (1) equitable tolling principles can be applied
to excuse his noncompliance with the 300 day filing period; or
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(2) alternatively, he met the 300 day filing requirement during
his initial meeting with the EEOC and should be allowed to amend
and correct any defects in that complaint.
II.
A.
In reviewing the granting of a motion for summary judgment,
an appellate court reviews the district court’s decision de novo,
applying the same standard as the district court. Price v. Fed.
Express Corp., 283 F.3d 715, 719 (5th Cir. 2002). Viewing
evidence in the light most favorable to the nonmovant, summary
judgment is proper only when no genuine issue of material fact
exists. Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d
392, 399 (5th Cir. 2000). We review the district court’s
determination on the applicability of equitable estoppel de novo.
Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir.
2002).
Under Title VII, a plaintiff must file a charge of
discrimination within 300 days of the alleged discriminatory act.
42 U.S.C. § 2000e-5(e)(1); Huckabay v. Moore, 142 F.3d 233, 238
(5th Cir. 1998). The 300-day filing period is subject to
equitable doctrines such as tolling or estoppel. However, the
Supreme Court has held that such doctrines must be applied
sparingly. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
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113-14 (2002).
This court has recognized three possible and non-exclusive
bases for tolling the time period for filing a charge: (1) the
pendency of a suit between the same parties in the wrong forum;
(2) plaintiff’s unawareness of the facts giving rise to the claim
because of the defendant’s intentional concealment of them; and
(3) the EEOC’s misleading the plaintiff about the nature of her
rights. Wilson v. Sec’y, Dep’t of Veterans Affairs, 65 F.3d 402,
404 (5th Cir. 1995). Harrison argues that equitable tolling is
appropriate in this case based on the latter two grounds. The
party who invokes equitable tolling bears the burden of
demonstrating that it applies in his case. Conaway v. Control
Data Corp., 955 F.2d 358, 362 (5th Cir. 1992).
Harrison first argues that Estes misled him about the reason
for his termination and failed to disclose the identities of
similarly situated white employees who were not discharged.
Harrison’s assertions that he did not discover the facts
sufficient to support his claim and that Estes prevented him from
learning such facts is not supported by the summary judgment
evidence. Harrison stated in his affidavit that he learned that
Robert Allen had a criminal background in 2002 when he heard
Allen talk about his prison time in the break room at work.
Further, the same affidavit indicates that Harrison’s visit to
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the EEOC office in June 2003 was prompted by his belief that two
black employees were discharged for previous convictions but that
no white employees were discharged despite the fact that at least
one white employee also had a criminal background. Thus,
Harrison by his own admission had formed a belief regarding
discrimination upon his first visit to the EEOC. Because
Harrison had learned sufficient facts to support filing his
discrimination claim upon his first visit to the EEOC, the 300-
day filing period began on or about June 9, 2003, at the latest.
See Blumberg v. HCA Management Co., 848 F.2d 642, 645 (5th Cir.
1988) (“The time begins when facts that would support a cause of
action are or should be apparent.”). As a result, Harrison’s
claim is untimely since it was filed on August 23, 2004, at least
350 days after Harrison learned of those relevant facts.
Further, although Harrison alleges that Estes concealed its
discriminatory intent by lying about the reason for his
dismissal, any dispute between Harrison and Estes regarding the
motivation for his termination cannot be said to have concealed
the facts relevant to his claim. See Conaway, 955 F.2d at 363(where an ADEA claimant knew that three younger sales persons had
been hired despite purported cut-backs in his department which
were used to justify his own termination, claimant knew enough
facts to support filing a claim).
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Harrison next argues that the EEOC failed to alert him to
the relevant time limitation or adequately assist him with the
filing of his claim during his initial visit. Because of these
failures, Harrison argues, equitable tolling is appropriate.
The EEOC did not affirmatively mislead Harrison by failing
to advise him of the applicable limitations period. See Conaway,
955 F.2d at 363 (EEOC did not affirmatively mislead ADEA
plaintiff by failing to inform him of 300-day limitations
period). Further, Harrison does not allege that the EEOC
counselor he encountered during his first visit misled him or
even actively discouraged him from filing a claim. Nor does he
allege that the counselor erred in her explanation of either the
laws enforced by the EEOC or the requirements for filing a charge
of discrimination. The record summary judgment evidence belies
Harrison’s argument that the EEOC misled him about the nature of
his rights. Accordingly, he may not receive equitable tolling of
the limitations period on that basis. Ramirez, 312 F.3d at 184(“In order to invoke equitable tolling ... [a plaintiff] must
demonstrate that the EEOC gave him information that was
affirmatively wrong.”).
B.
Finally, Harrison argues that even if equitable tolling is
not appropriate in this case, he gave the EEOC sufficient
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information during his first visit to initiate a charge by
filling out a two-sided green sheet of paper, which he asserts
was an intake or charge form. He asserts that his second visit
to the EEOC and the resulting paperwork should be treated as
amendments to this original charge which could serve to cure any
deficiencies.
EEOC regulations recognize that a charge may be amended to
cure technical defects or omissions and that such amendments will
relate back to the date the charge was first received. C.F.R. §
1601.12(b)(1991). However, Harrison’s post-deposition statements
that he filled out a green sheet during his first visit to the
EEOC was not enough evidence to raise an issue of material fact
with regard to whether he filed a curable charge. The EEOC
confirmed that its Houston office has no record of either a
charge or green sheet filed by Harrison against Estes. Further,
Harrison’s deposition testimony about what transpired during his
June 2003 visit does not support an inference that he filled out
a charge form at that time. Specifically, Harrison testified
that he did not emerge from his meeting with the EEOC counselor
with any paperwork, he did not sign any documents requiring an
oath, and he did not believe that the EEOC was conducting an
investigation into his termination after the meeting. Based on
this evidence, the district court correctly concluded that
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Harrison did not file any type of charge during his initial visit
to the EEOC.
III.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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