Dyson v. District of Columbia , 710 F.3d 415 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided February 5, 2013
No. 11-7146
SHEKITA C. DYSON,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01454)
Donna Williams Rucker was on the briefs for appellant.
Irvin B. Nathan, Attorney General, Office of the Attorney
General for the District of Columbia, Todd S. Kim, Solicitor
General, Donna M. Murasky, Deputy Solicitor General, and
Carl J. Schifferle, Assistant Attorney General, were on the
brief for appellee.
This case was considered on the record from the United
States District Court for the District of Columbia and on the
briefs filed by the parties. See FED. R. APP. P. 34(a)(2); D.C.
CIR. R. 34(j).
2
Before: HENDERSON and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant, Shekita
Dyson, filed a complaint in the District Court on August 26,
2010, pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq., the District of Columbia Human
Rights Act of 1977, D.C. CODE §§ 2-1401.01, et seq., and the
Civil Rights Act of 1991, 42 U.S.C. § 1981a, against the
District of Columbia (“City”). The complaint alleged that
Appellant had suffered sexual harassment during the course of
her employment with the District of Columbia Fire and
Emergency Medical Services (“DCFEMS”). On November 1,
2010, as supplemented on May 18, 2011, the City moved to
dismiss or, in the alternative, for summary judgment,
contending that the Charge filed by Appellant with the Equal
Employment Opportunity Commission (“EEOC”) was
untimely. The District Court granted the City’s motion,
dismissed Appellant’s Title VII claim with prejudice because
she had not filed a timely Charge with the EEOC, and
declined to exercise supplemental jurisdiction over
Appellant’s D.C. Human Rights Act claim. Dyson v. District
of Columbia, 808 F. Supp. 2d 84 (D.D.C. 2011) (“Dismissal
Decision”).
The District Court also noted that “Plaintiff [had]
clarifie[d] that she [was] not asserting an independent cause
of action under section 1981a but rather that it [was]
referenced in her complaint as part and parcel of her Title VII
claim.” Id. at 88 n.5. The District judge thus concluded that
there were “no ‘claims’ under [section 1981a] for the Court to
dismiss.” Id.3
On September 28, 2011, Appellant filed a motion for
reconsideration pursuant to Rule 59(e), FED. R. CIV. P. 59(e),
“claiming that the time that elapsed while the EEOC[]
processed her charge of discrimination should toll the statute
of limitations.” Dyson v. District of Columbia, No. 10-1454,
slip op. at 2 (D.D.C. Nov. 4, 2011) (“Reconsideration
Decision”). The District Court denied Appellant’s motion,
holding that “the circumstances of this case do not warrant
equitable tolling.” Id. at 3. Appellant now appeals solely from
the District Court’s denial of her motion for reconsideration.
We hold that the District Court did not err in finding that
Appellant failed to meet the requirements for equitable tolling
of the statute of limitations. She neither pursued her rights
diligently nor proved that some extraordinary circumstance
prevented her from satisfying the statute of limitations. See
Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Therefore, we are constrained to affirm the District Court’s
denial of Appellant’s motion for reconsideration.
I. Background
Appellant worked for DCFEMS as an emergency medical
technician beginning in July 1997. Dismissal Decision, 808 F.
Supp. 2d at 85. She alleged that, between “early 2007” and
“May 15, 2007,” Lieutenant James Clem, with whom she
worked in DCFEMS, sexually harassed her. Id. at 85, 87. The
District Court noted, based on the parties’ submissions, that it
was “unclear” whether Lt. Clem was Appellant’s direct
supervisor, but that “he outranked her, and he was authorized
to discipline her and approve her overtime.” Id. at 85.
Title VII requires that an administrative charge be filed
within 180 days “after the alleged unlawful employment
practice occurred” or within 300 days if “the person aggrieved
4
has initially instituted proceedings with a State or local
agency with authority to grant or seek relief from such
practice.” 42 U.S.C. § 2000e-5(e)(1). The statute also
prescribes that a Charge “shall be in writing and under oath or
affirmation.” Id. § 2000e-5(b).
On December 17, 2007 – 216 days after the alleged
sexual harassment had ended – Appellant filed an Intake
Questionnaire with the EEOC outlining the alleged sexual
harassment. See Intake Questionnaire, reprinted in J.A. 68-71.
The Intake Questionnaire is not a Charge of discrimination. A
claimant normally files a Charge with the EEOC after the
agency reviews the Intake Questionnaire. The Questionnaire
expressly reminds claimants that “a charge of employment
discrimination must be filed within the time limits imposed by
law, generally within 180 days or in some places 300 days of
the alleged discrimination.” Id. at 1, reprinted in J.A. 68. The
Questionnaire also instructs a claimant to call the EEOC if she
or he has “not heard from an EEOC office within 30 days of
mailing” the Questionnaire. Id. at 4, reprinted in J.A. 71. This
instruction appeared just below Appellant’s signature on the
Intake Questionnaire. Id.
Appellant did not contact the EEOC between December
17, 2007, and April 17, 2008. The EEOC mailed Appellant a
draft Charge of discrimination on March 17, 2008. On April
17, 2008, the EEOC received a Charge from Appellant,
signed and dated the previous day. Charge of Discrimination,
reprinted in J.A. 37-38. Her Charge was thus filed with the
EEOC more than three hundred days after May 15, 2007,
when the alleged harassment had ended. The District Court
determined that, “[a]ssuming that the longer 300-day time
period applies because plaintiff first instituted proceedings
with [the District of Columbia Office of Human Rights],
plaintiff’s deadline for filing with the state agency was March
5
12, 2008. Plaintiff did not file her Charge of discrimination
until April 17, 2008, which is 38 days after the filing deadline.
Thus, her Title VII claims are untimely.” Dismissal Decision,
808 F. Supp. 2d at 87.
In her motion for reconsideration, Appellant claimed that
the time that had elapsed while the EEOC processed her
Intake Questionnaire before sending her a draft Charge of
discrimination should toll the statute of limitations.
Reconsideration Decision at 2. The District Court described
Appellant’s equitable tolling argument as a “variation” of the
argument she had raised in response to the City’s motion to
dismiss. Id. In the view of the District Court, Appellant’s
motion for reconsideration offered “a similar but slightly
different reason for why the statute of limitations should be
tolled, but the result is the same.” Id. The court then rejected
the motion for reconsideration on the following grounds:
Application of equitable tolling is solely within the
Court’s discretion. Fortune v. Holder, 767 F. Supp. 2d
116, 119-21 (D.D.C. 201l). “The court’s equitable power
to toll the statute of limitations will be exercised only in
extraordinary and carefully circumscribed instances.”
Smith-Haynie v. District of Columbia, 155 F.3d 575, 580
(D.C. Cir 1998), citing Mondy v. Sec’y of the Army, 845
F.2d 1051, 1057 (D.C. Cir. 1988). The Court finds that
the circumstances of this case do not warrant equitable
tolling. Plaintiff bears responsibility for much of the time
that was wasted during the statute of limitations period.
The 300-day statute of limitations clock began running
on the date the alleged harassment ceased. Here, that date
was May 15, 2007. But plaintiff waited over seven
months – until December 17, 2007 – to contact the
EEOC. The fact that it then took the EEOC three months
to mail her the Charge (Form 5) does not alter the
6
conclusion that a substantial majority of the delay was
attributable to plaintiff.
Reconsideration Decision at 3.
On December 2, 2011, Plaintiff filed a timely Notice of
Appeal from the Reconsideration Decision.
II. Appealability
The City argues that Appellant’s new theory of equitable
tolling raised in support of her motion for reconsideration was
untimely and therefore should not be considered by this court.
Br. for Appellee at 9. The City cites Carter v. Washington
Metropolitan Area Transit Authority, 503 F.3d 143, 145-46
n.2 (D.C. Cir. 2007), for the principle that an appellate court
will not consider an argument raised for the first time in a
motion for reconsideration. There are two problems with the
City’s claim: first, the City failed to raise this argument with
the District Court; and, second, Carter is inapposite.
The City’s argument was effectively forfeited because it
was not raised with the District Court in opposition to
Appellant’s motion for reconsideration. Potter v. District of
Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (“It is well
settled that issues and legal theories not asserted at the District
Court level ordinarily will not be heard on appeal.” (quoting
District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084
(D.C. Cir. 1984))). The City is correct that the District Court
might have rejected Appellant’s equitable tolling argument as
untimely; had it done so we would have reviewed that
decision only for abuse of discretion. See, e.g., Carter, 503
F.3d at 145-46 n.2 (declining to consider on appeal an
equitable tolling argument raised in the first instance in a Rule
59(e) motion). However, because the timeliness of
Appellant’s new equitable tolling argument was neither raised
7
with nor considered by the District Court, we do not address
it.
Although “[i]t is well settled that an issue presented for
the first time in a motion pursuant to Federal Rule of Civil
Procedure 59(e) generally is not timely raised,” District of
Columbia v. Doe, 611 F.3d 888, 896 (D.C. Cir. 2010), such an
issue is subject to appellate review if the district court
exercises its discretion to consider the issue on the merits, id.This point was made clear in Connors v. Hallmark & Son
Coal Co., 935 F.2d 336 (D.C. Cir. 1991), where then-Judge
Ruth Bader Ginsburg wrote that because “the district court
expressly stated that it had ‘carefully consider[ed]’ the matters
raised in the [Rule 59(e)] motion . . . [it did not matter]
whether or not the . . . theory was a ‘new argument.’” Id. at
341 n.9. The new argument raised in the Rule 59(e) motion
was subject to review because “the district court apparently
decided the issue on the merits, in the same manner it decided
other issues in the case.” Id. That is what happened in this
case.
In response to the City’s motion to dismiss, Appellant
“asserted that because a limitations period is typically tolled
when a complaint is pending at the EEOC, it should have
been tolled for the period between when she completed an
EEOC intake questionnaire on December 17, 2007 and the
date she filed her official charge of discrimination on April
17, 2008.” Reconsideration Decision at 2. The District Court
considered and rejected this claim. In support of her motion
for reconsideration, Appellant raised a new and slightly
different theory in support of equitable tolling, “claiming that
the time that elapsed while the EEOC[] processed her charge
of discrimination should toll the statute of limitations.”
Reconsideration Decision at 2. The District Court addressed
the new equitable tolling theory and rejected Appellant’s
claim on the merits. The City did not argue that Appellant’s
8
new theory was untimely, nor did the District Court
characterize it as such. Rather, the District Court decided the
issue on the merits. Accordingly, Appellant’s new theory of
equitable tolling is subject to review by this court. Connors,
935 F.2d at 341 n.9.
III. Standard of Review
“A Rule 59(e) motion is discretionary and need not be
granted unless the district court finds that there is an
intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C.
Cir. 2004) (citations omitted). And we normally review
district court denials of Rule 59(e) motions only for abuse of
discretion. Id.; see also Anyanwutaku v. Moore, 151 F.3d
1053, 1058 (D.C. Cir. 1998). There are some situations,
however, in which we review the District Court’s denial of a
motion for reconsideration de novo. This case presents such a
situation.
De novo review is appropriate in this case because the
District Court assessed the merits of equitable tolling both
when it granted the City’s motion to dismiss and again when
it denied Appellant’s motion for reconsideration. The abuse of
discretion standard ordinarily applies to a district judge’s
decision whether to consider a new theory raised on motion
for reconsideration. Connors, 935 F.2d at 341 n.9. In this
case, the District Court did consider the merits of Appellant’s
new theory of equitable tolling. Therefore, we review the
matter de novo, just as we would have if Appellant had
appealed the District Court’s rejection of her theory of
equitable tolling presented in opposition to the City’s motion
to dismiss. See Patton Boggs LLP v. Chevron Corp., 683 F.3d
397, 402 & n.4 (D.C. Cir. 2012) (noting that if the district
court addresses the merits of a new theory raised for the first
9
time pursuant to Rule 59(e), the appellate court “would
review that decision de novo”). The principles enunciated in
Patton Boggs and Connors are controlling in this case
regarding the appropriate standard for our review of the
District Court’s denial of Appellant’s motion for
reconsideration.
IV. The Merits
A. The Matter Under Review
In her principal brief to this court, Appellant touches on
some matters that were resolved by the District Court in its
Dismissal Decision. As noted above, however, the issues
before this court relate only to the Reconsideration Decision,
not the Dismissal Decision. This is not in dispute.
Appellant’s appeal designated only the Reconsideration
Decision, not the underlying Dismissal Decision. See
Appellant’s Notice of Appeal, Dec. 7, 2011 (attaching District
Court docket and Reconsideration Decision but not Dismissal
Decision); Br. for Appellant at i (“The appellant files this
appealed [sic] from the Memorandum Opinion and Order
(unpublished) entered on November 7, 2011, by U.S. District
Judge Amy Berman Jackson, denying the Plaintiff’s Motion
for Reconsideration . . . .”); Br. for Appellant at 5 (“Plaintiff
filed her Notice of Appeal of the District Court’s Amended
Order denying Plaintiff’s Motion for Reconsideration.”). The
City also understood that Appellant had appealed only from
the Reconsideration Decision. Br. for Appellee at 1 (“Ms.
Dyson appeals only the order denying reconsideration.”). Our
review in this case is thus limited to the Reconsideration
Decision.
10
B. Equitable Tolling
On the merits, Appellant argues the District Court erred
when it failed to find that she was entitled to equitable tolling
of her deadline to timely file her Charge with the EEOC.
“[F]iling a timely charge of discrimination with the EEOC is
not a jurisdictional prerequisite to suit in federal court, 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 (1982). This right is not
without limit, however. A “petitioner is entitled to equitable
tolling only if [s]he shows (1) that [s]he has been pursuing
[her] rights diligently, and (2) that some extraordinary
circumstance stood in [her] way and prevented timely filing.”
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also,
e.g., Felter, 473 F.3d at 1260. This is a weighty burden. We
will toll a filing deadline “only in extraordinary and carefully
circumscribed instances.” Smith-Haynie v. District of
Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998).
Appellant argues that she satisfied the requirements for
equitable tolling. We disagree. The District Court concluded
that Appellant neither pursued her rights diligently nor proved
that an extraordinary circumstance stood in her way. The
District Court’s findings are not in error.
The undisputed facts in this case make it clear that
Appellant bears responsibility for failing to file a timely
Charge with the EEOC. She delayed unnecessarily in filing
her Intake Questionnaire with the EEOC. She then failed to
communicate with the EEOC about the filing of her Charge.
The District Court assumed that Appellant had 300 days from
the last occurrence of alleged sexual harassment on May 15,
2007 – until March 12, 2008 – to file her Charge with the
EEOC. See 42 U.S.C. § 2000e-5(e)(1). However, without
11
explanation or excuse, Appellant waited over seven months,
until December 17, 2007, to submit her Intake Questionnaire
to the EEOC. Reconsideration Decision at 3. She then filed
her Charge with the EEOC on April 17, 2008. These facts
certainly do not suggest that Appellant was pursuing her
rights diligently.
Appellant had good reason to know when she was
required to file a Charge with the EEOC. The Intake
Questionnaire that she signed explicitly reminded her that “a
charge of employment discrimination must be filed within the
time limits imposed by law, generally within 180 days or in
some places 300 days of the alleged discrimination.” Intake
Questionnaire at 1, reprinted in J.A. 68. And, at the bottom of
the last page, just below the line on which Appellant signed
her name, the Intake Questionnaire stated: “If you have not
heard from an EEOC office within 30 days of mailing this
form, please call toll-free [sic] number shown on the letter
accompanying this form.” Id. at 4, reprinted in J.A. 71.
Appellant never contacted the EEOC to inquire about her
Charge.
“[W]e have tolled time limits in Title VII cases when
complainants neither knew nor had reason to know about the
limit.” Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir.
1997). In this case, however, Appellant was given clear notice
of her responsibilities. She cannot now argue that she was
unaware of her impending deadline; she simply failed to meet
the filing deadline. Furthermore, as the District Court noted,
Appellant cannot claim diligence when her own delay in
filing her Intake Questionnaire caused a substantial portion of
the overall delay. Reconsideration Decision at 3.
To merit equitable tolling, Appellant must also show that
extraordinary circumstances prevented her from meeting her
filing deadlines. Equitable tolling is meant to “ensure[] that
12
the plaintiff is not, by dint of circumstances beyond his
control, deprived of a reasonable time in which to file suit.”
Chung v. U.S. Dep’t of Justice, 333 F.3d 273, 279 (D.C. Cir.
2003). Appellant argues that she was unable to meet her filing
deadline because she did not receive her Charge from the
EEOC until after the filing deadline had passed. Br. for
Appellant at 14 (“It was impossible for Appellant to execute
the proper paperwork needed to timely file her complaint
when she had never been requested to execute the same when
the deadline occurred.”). To the contrary, Appellant bears full
responsibility both for her extreme delay in filing her Intake
Questionnaire with the EEOC and for her failure to
investigate the progress of her claim at the EEOC. See e.g.,
Koch v. Christie’s Int’l PLC, 699 F.3d 141, 157 (2d Cir.
2012). The fact that the EEOC had not returned her Charge
before it was due was by no means beyond Appellant’s
control; she was complicit in the delay and never bothered to
call the EEOC to inquire about her Charge.
Finally, Appellant cites cases holding that equitable
tolling is proper where the plaintiff has received “inaccurate
or ineffective notice from a government agency required to
provide notice of the limitations period.” Bowden, 106 F.3d at
438; Br. for Appellant at 11. However, Appellant has not
alleged that either the EEOC or the District of Columbia
misled her as to her filing deadline. See Washington v. Wash.
Metro. Area Transit Auth., 160 F.3d 750, 752-53 (D.C. Cir.
1998). Quite the contrary. The Intake Questionnaire explicitly
instructed Appellant to call the EEOC if she had “not heard
from an EEOC office within 30 days of mailing” the
Questionnaire. Intake Questionnaire at 4, reprinted in J.A. 71.
She never did this. On this record, it is clear that Appellant
has failed to establish any extraordinary circumstances that
precluded her timely filing of her Charge.
13
On this record, we hold that Appellant easily could have
satisfied the March 12, 2008 deadline but failed to do so. She
is therefore not entitled to equitable tolling.
V. Conclusion
For the foregoing reasons, the District Court’s
Reconsideration Decision is affirmed.