Ramirez v. City of San Antonio

• Decision Date: 26 November 2002
• Docket Number: No. 02-50002.,02-50002.
• Citation: 312 F.3d 178
• Parties: Juan RAMIREZ, Plaintiff-Appellant, v. CITY OF SAN ANTONIO; City Public Service Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

312 F.3d 178

Juan RAMIREZ, Plaintiff-Appellant, v. CITY OF SAN ANTONIO; City Public Service Board, Defendants-Appellees.

No. 02-50002.

United States Court of Appeals, Fifth Circuit.

November 26, 2002.

Rehearing Denied December 24, 3003.

COPYRIGHT MATERIAL OMITTED

Jeffrey D. Small, Law Offices of Jeff Small, Jeffrey R. Davis, White & Davis, Alexander Lawrece Katzman, Katzman & Katzman, San Antonio, TX, for Plaintiff-Appellant.

Leslie Selig Byrd, J. Joe Harris, Bracewell & Patterson, San Antonio, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas.

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS^*, District Judge.

EMILIO M. GARZA, Circuit Judge:

Juan Ramirez appeals the district court's grant of summary judgment in favor of the City of San Antonio and City Public Service (collectively, "CPS"). Ramirez sued CPS, claiming that it violated the Americans with Disabilities Act (ADA) by transferring him to a less physically demanding position within the company. The district court found that his claim was untimely because he did not file a charge of discrimination with the federal government within 300 days of CPS's alleged discriminatory act. The district court also found that equitable tolling was not warranted in this case. We affirm.

I

Ramirez worked as a shift supervisor at a gas-burning plant operated by CPS. In 1993, he underwent a partial larynectomy to remove a cancerous growth. After his surgery, Ramirez had difficulty readjusting to shift work. He also told CPS that he could not attend meetings held at coal-burning plants. When he failed to attend one such meeting, or provide a doctor's excuse for his absence, CPS placed Ramirez on involuntary leave.

Following that incident, CPS consulted with a specialist in occupational medicine about Ramirez's condition. The doctor concluded that Ramirez was no longer capable of performing as a shift supervisor, and suggested that CPS place him in a sedentary job. On February 7, 1996, CPS met with Ramirez and informed him that he would be transferred on March 11, 1996, to a clerical position. According to CPS, the company informed Ramirez that he would continue to receive the same pay and benefits for the next six months. After that time, however, his shift supervisor salary ($4,214.00 per month) would be reduced to the salary of a clerk ($1,764.00).

On March 6, 1996, Ramirez went to Advocacy, Inc., an organization in Austin, Texas, to discuss his removal from his position as shift supervisor and to obtain information about the ADA. Ramirez later wrote to the government printing office, requesting materials relating to the ADA. The printing office sent him a copy of the statute, the accompanying regulations, and a technical compliance manual.

On March 15, 1996, a few days after his transfer, Ramirez went to the Equal Employment Opportunity Commission (EEOC). He told the EEOC representative that he felt his transfer was discriminatory. Ramirez explained that he "believed it was in retaliation for ... using the ADA as a form of accommodation." According to Ramirez, the EEOC informed him that he did not yet have enough to complain about, and suggested that he return when CPS did something more tangible, "like removing [his] title or [his] pay."

On September 11, 1996, Ramirez's salary was reduced. On March 14, 1997, the U.S. Department of Labor received Ramirez's complaint (signed on March 7), asserting that CPS violated the ADA by failing to accommodate him and by retaliating against him for requesting accommodation. The EEOC issued Ramirez a right to sue letter. He subsequently filed this action.

II

Ramirez appeals the district court's grant of CPS's motion for summary judgment. We conduct de novo review of the district court's ruling on a motion for summary judgment, applying the same legal standard as the district court. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir.2002). Summary judgment should be granted only when there is "no genuine issue as to any material fact." FED. R.CIV.P. 56(c); Wyatt, 297 F.3d at 408-09. An issue of fact is material only "if its resolution could affect the outcome of the action." Wyatt, 297 F.3d at 409.

In determining whether there is a dispute as to any material fact, we consider all of the evidence in the record, but we do not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Instead, we "draw all reasonable inferences in favor of the nonmoving party[.]" Id.; Wyatt, 297 F.3d at 409. If we determine, after giving credence to the facts as presented by the nonmoving party, that "the moving party is entitled to a judgment as a matter of law," we affirm the grant of summary judgment. FED.R.CIV.P. 56(c).

The district court found that Ramirez's employment discrimination claim was untimely. Under the ADA, a plaintiff must file a charge of discrimination within 300 days of the alleged discriminatory act. 42 U.S.C. § 12117 (incorporating 42 U.S.C. § 2000e-5(e)). We have held that the limitations period on an employment discrimination claim "begins to run from the time the complainant knows or reasonably should have known that the challenged act has occurred." Vadie v. Mississippi State Univ., 218 F.3d 365, 371 (5th Cir.2000); Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir.1992) ("`The time begins when facts that would support a cause of action are or should be apparent.'") (quoting Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d 642, 645 (5th Cir.1988)); see also Delaware State Coll. v. Ricks, 449 U.S. 250, 259, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (holding, in a challenge to a denial of tenure, that the limitations period "commenced... when the tenure decision was made and [the professor] was notified").

Ramirez argues that CPS discriminated against him by removing him from his position as shift supervisor. Thus, the limitations period in his case began when CPS notified him about the transfer.¹ Ramirez was notified, at the latest, by March 11, 1996 (the day he was transferred). He filed his charge of discrimination no earlier than March 7, 1997 (the day he signed the complaint form). Because he filed his charge over 300 days after he was informed of the alleged discriminatory act, his claim is untimely.

Ramirez argues that he was not on notice of the alleged discrimination until CPS reduced his pay on September 11, 1996. He points out that CPS did not file any paperwork documenting the change until September. As a result, he asserts, he believed the change was only temporary. Ramirez's assertion is belied by the record. As Ramirez himself recounts, he visited Advocacy, Inc. and the EEOC in March 1996 in order to complain about his transfer. At that time, Ramirez told those organizations that CPS transferred him to retaliate against his requests for accommodation. Indeed, Ramirez even requested and received a copy of the ADA and its technical compliance manual. Clearly, he was on notice that his transfer might be discriminatory.²

Ramirez goes on to contend that his March 11 transfer, by itself, could not have been the alleged discriminatory act. He argues that a transfer without a decrease in pay or benefits is not an adverse employment action under the law of this Court. Therefore, he reasons, his claim for discrimination could not have accrued until September 11, 1996, when CPS decreased his pay. Ramirez is mistaken. The limitations period does not begin when the employer commits an act that this Court would characterize as an adverse employment decision.³ Instead, an employee's claim accrues at the moment the employee believes (or has reason to believe) that he is the victim of discrimination.⁴

III

Ramirez contends that the district court should have exercised its equitable powers to toll the limitations period. First, he claims that CPS should be equitably estopped from asserting a limitations defense, because the company "led [him] to believe" that his transfer would be temporary. Second, Ramirez contends that equitable tolling is appropriate because the EEOC informed him that he would not have a claim until CPS reduced his salary.

The Supreme Court has held that the limitations period on filing a charge of employment discrimination "is subject to equitable doctrines such as tolling or estoppel." Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The Court has also made clear, however, that these equitable doctrines "are to be applied sparingly." Morgan, 122 S.Ct. at 2072.

We have found that equitable tolling may be appropriate when "the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir.2002) (internal quotation marks omitted). We have also occasionally granted equitable tolling when the delay was caused by "the EEOC's misleading the plaintiff about the nature of her rights." Blumberg, 848 F.2d at 644.

The party who invokes equitable tolling bears the burden of demonstrating that it applies in his case. Teemac, 298 F.3d at 457; Conaway, 955 F.2d at 362 ("If the complaint is not filed within 300 days, the plaintiff has the burden of demonstrating a factual basis to toll the period."); Blumberg, 848 F.2d at 644 (same). The district court found that Ramirez did not produce sufficient evidence to demonstrate that he was misled by either CPS or the EEOC. We review the district court's determination on the applicability of equitable estoppel de novo. Tyler v. Union Oil Co. of California, 304 F.3d 379, 391 (5th Cir.2002).⁵

Ramirez argues that CPS should be equitably estopped from asserting a limitations defense. He contends that he delayed filing a...