Jackie Brooks v. Ferguson-Florissant ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3616
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Jackie Brooks, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Ferguson-Florissant *
School District, *
*
Appellee. *
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Submitted: April 15, 1997
Filed: May 20, 1997
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Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and MURPHY, Circuit
Judges.
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MURPHY, Circuit Judge.
Jackie Brooks sued his employer, the Ferguson-Florissant School
District under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e
et. seq. The action was dismissed as untimely, and Brooks moved to set
aside the dismissal. After that motion was denied, he filed a second
motion in which he claimed he had discovered new evidence showing his
action had been timely brought. The district court1 determined that Brooks
had not made a sufficient showing under Federal Rule of Civil Procedure
60(b) to
1
The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
reopen his case, and denied the motion. Brooks appeals, and we affirm.
Brooks filed his complaint on July 3, 1995, alleging discrimination
on the basis of race, age, and sex, and retaliation by an involuntary
transfer from a social work position to teaching. The school district
moved to dismiss because the complaint stated that his right to sue letter
had been received from the Equal Employment Opportunity Commission (EEOC)
on March 30, 1995. A litigant has ninety days from the receipt of the EEOC
letter in which to start an action, 42 U.S.C. 2000e-5(f)(1), and Brooks had
filed his case 95 days after the date he alleged for receipt of his letter.
Brooks did not respond to the motion to dismiss, and it was granted eight
months later. The order of dismissal was entered on April 9, 1996, and
Brooks did not appeal.
On April 15, 1996, Brooks filed a "Motion to Set Aside Ordered [sic]
of Defendant's Motion to Dismiss/or in the alternative to Vacate Order of
Dismissal of April 9, 1996." The district court treated this motion under
Rule 59(e), which provides that motions to alter or amend a judgment can
be brought within 10 days of entry of judgment. Brooks argued that the
EEOC letter showed that it had been mailed on March 30, 1995, it should
have been presumed that the letter was received three days after mailing,
and the suit was therefore timely filed.2 The district court denied the
motion on the basis that a presumption should not apply because Brooks had
affirmatively stated in his complaint that he had received the letter on
March 30, 1995. Brooks did not appeal from the denial of this motion.
2
An additional three days would have made the filing timely
even though it would have been 92 days after he had received the
letter because the ninetieth day was a Saturday. See F.R.Civ.P.
6(a).
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Instead of appealing, Brooks filed on July 8, 1996 a "Second Motion
to Set Aside Ordered [sic] of Defendant's Motion to Dismiss/or in the
alternative to Vacate Order of Dismissal of April 9, 1996 Based on New
Evidence." Brooks referred to Rule 59(e) in his second motion, but it was
treated as a Rule 60(b) motion because it was filed more than 10 days after
the entry of judgment. See Baxter Int'l, Inc. v. Morris, 11 F.3d 90, 92
n.2. (8th Cir. 1993). In this motion Brooks contended that he had made an
error in his complaint regarding the date of receipt of the EEOC letter,
that he could not have received it before April 3, 1995, and that his claim
was therefore timely. The district court determined that this was not new
evidence and that the necessary showing under Rule 60(b) had not been made.
Since Brooks would have known when he had received the letter, evidence of
receipt after March 30, 1995 was previously available to him. The court
also pointed out that Brooks had still not said when he had received the
letter; it was theoretically possible that he had picked it up from the
EEOC. Brooks appeals from the denial of this second motion.
Brooks argues his case should not have been dismissed because it was
actually filed within 90 days of receiving the EEOC letter. He was
proceeding pro se, and the district court should have added three to five
days to the date the letter was mailed to determine accurately the date of
receipt. He points to a postal receipt he has obtained that shows the
letter was received on April 4, 1995; his filing was therefore timely. He
claims he was unable to obtain this evidence earlier, "in part [because of
his] lack of knowledge."
Under Rule 60(b) the movant must demonstrate exceptional
circumstances to justify relief. E.g., Atkinson v. Prudential Prop. Co.,
43 F.3d 367, 371 (8th Cir. 1994). We review only the
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denial of the Rule 60(b) motion and do not squarely consider the merits of
the underlying order. Cox v. Wyrick, 873 F.2d 200, 201-02 (8th Cir. 1989).
Rule 60(b)(2) permits relief on the basis of new evidence that could not
have been discovered by due diligence in time to move for relief under Rule
59; Rule 60(b)(6) can apply when exceptional circumstances prevent relief
"through the usual channels." In re Zimmerman, 869 F.2d 1126, 1128 (8th
Cir. 1989). The denial of a motion brought under Rule 60(b) is reviewed
for abuse of discretion. Atkinson, 43 F.3d at 371.
Brooks has not shown that he was diligent in seeking evidence about
the correct day the EEOC letter was received in order to establish a timely
filing. While we recognize that Brooks represented himself and may have
had difficulty with procedural rules, the motion to dismiss provided him
notice that the receipt date was critical and that he would lose his right
to sue under Title VII if he had not filed within 90 days of receiving the
letter. The EEOC letter itself plainly stated that he would lose his right
of action if one was not filed within 90 days. Brooks did not respond to
the motion to dismiss even though the district court waited eight months
to rule on it. The postal receipt referred to in his brief was not
obtained until after the district court ruled on his second motion, and his
cryptic statement that he could not have gotten it earlier "in part
[because of his] lack of knowledge" does not show he was diligent in
seeking it. See Saxon v. Blann, 968 F.2d 676, 680 (8th Cir. 1992) (movant
had the opportunity to obtain new evidence, but did not do so). Evidence
of receipt of the letter was available from the post office and was
obtained by Brooks four days after the EEOC suggested the post office would
have it. In the exercise of reasonable diligence he could have obtained
the needed evidence earlier to counter the
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employer's motion to dismiss or to support his own motions to the district
court, but he never did.
The district court did not abuse its discretion in finding that
Brooks failed to make a sufficient showing under Rule 60(b). Brooks
offered no explanation for failing to respond to the motion to dismiss his
underlying claim, he has not pointed to any circumstance that prevented him
from appealing the dismissal, and he has not provided any reason why he
apparently did not seek evidence to show that the date of receipt he
pleaded was incorrect until after the district court denied his second
motion. See Zimmerman, 869 F.2d at 1128 (no explanation for failing to
seek redress through usual means is a proper basis for denying Rule 60(b)
motion); In re Design Classics, Inc., 788 F.2d 1384, 1386 (8th Cir. 1986)
(same).
The order denying Brooks' July 8, 1996 motion is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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