Polsby v. Chase, 92-1176

Citation970 F.2d 1360
Decision Date12 August 1992
Docket NumberNo. 92-1176,92-1176
Parties59 Fair Empl.Prac.Cas. (BNA) 712, 59 Empl. Prac. Dec. P 41,667, 61 USLW 2088, RICO Bus.Disp.Guide 8057 M. Maureen POLSBY, Plaintiff-Appellant, v. Thomas CHASE; Irwin J. Kopin; Mark Hallett; Daniel R. Weinberger; Giovanni Dichiro; Marinos Dalakis; Richard E. Carson; Murray Goldstein, in his official capacity as director of the National Institute of Neurologic and Communicative Disorders and Stroke; James B. Wyngaarden, in his official capacity as director of the National Institutes of Health; Louis W. Sullivan, Secretary of Health and Human Services, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Katherine Jo Henry, argued, Mayer, Brown & Platt, Washington, D.C., (Roy T. Englert, Jr., M. Lindsay Childress, Laurie Rubenstein, on brief), for plaintiff-appellant.

Larry David Adams, Asst. U.S. Atty., Baltimore, Md., argued (Richard D. Bennett, U.S. Atty., Baltimore, Md., Elizabeth Jordan Gianturco, Office of the Gen. Counsel, Dept. of Health & Human Services, Washington, D.C., on brief), for defendants-appellees.

Before WILKINSON, Circuit Judge, CHAPMAN, Senior Circuit Judge, and WILLIAMS, Senior United States District Judge for the Western District of Virginia, sitting by designation.

OPINION

CHAPMAN, Senior Circuit Judge:

M. Maureen Polsby, M.D., brought this suit in the United States District Court for the District of Maryland against various persons at the National Institute of Health ("NIH") and the Department of Health and Human Services ("HHS") in their official and personal capacities, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, 29 U.S.C. §§ 2000e et seq. (1982), and various common law torts. Polsby sought declaratory and injunctive relief as well as damages. The district court dismissed most of the defendants and all of the claims except for the Title VII claim and refused Polsby leave to amend her complaint to add a claim for violations of RICO. The court then granted the defendants' motion for summary judgment on the grounds that Polsby had failed to bring the complaint to the attention of an EEO counselor within thirty days of the complained of act and that equity did not warrant a waiver or tolling of the time limit. We affirm.

I.

Polsby complains of numerous acts by Dr. Thomas Chase, Director of the National Institute of Neurological and Communicative Disorders and Stroke (NINCDS), 1 a division of the NIH, and others which she claims were sexually discriminatory, while she worked at NINCDS from 1983 to 1985. Polsby consulted a person whom she mistakenly thought was an EEO counselor about the sex discrimination. The person did not inform her that a complaint must be brought to the attention of an EEO counselor within thirty days. She also sought the advice of others, including at least one attorney, who erroneously told her that she had six months before being time barred.

In June 1985, Polsby was informed that her contract would not be extended another year. She left NINCDS on July 9, 1985, and talked with an EEO counselor on December 13, 1985. The counselor stated that "while [her] complaint was initiated more than 30 days after the alleged discrimination, counseling would proceed and the timeliness of the complaint would be determined by the [HHS] if a formal complaint is filed." Polsby filed a formal administrative complaint in January 1986.

In December 1985, Polsby, seeking board certification, requested that a letter, from NINCDS describing her training at the department, be sent to the American Board of Psychiatry and Neurology. Dr. Hallett, who was not "formally aware" of the complaint, wrote the letter on December 24, 1985. After discussing the training program in which Polsby was involved, he added that, while Polsby did receive training, a year's credit toward residency "training" requirements was no longer being given. After learning that she would not receive the year's credit, she twice asked Hallett to correct this, claiming that this policy took effect after she had accepted the position and that Chase assured her that she would receive residency credit. Hallett refused the request. Polsby claims that thereafter the defendants began to slander her professional competence.

In March 1988, the Proposed Disposition of her claim, which became the Final Disposition, was issued and simply noted that Polsby stated that she did not file within thirty days because of erroneous advice. While the Disposition made no mention of abandoning the statutory time limit, Polsby assumed that it was no longer an issue. The Proposed Disposition also found that the evidence did not support Polsby's claims.

Upon the Proposed Disposition becoming final, Polsby filed a pro se complaint, with the help of an attorney, alleging sex discrimination in violation of Title VII and certain common law torts. The district court dismissed the common law claims and some of the defendants. On September 25, 1989, HHS filed an answer admitting that Polsby's complaint had been "accepted" by the HHS and that she had exhausted her administrative remedies. It raised no affirmative defenses. In the fall of 1989, Polsby retained counsel.

Polsby also claims that, in December 1989, she discovered that some of the defendants had appropriated her research and used it in a scientific article which they had published without her consent. Polsby asserts that, because the article also contained fabricated data, it harmed her reputation. She moved for leave to amend her complaint to add RICO and common law tort claims and join other defendants. The court denied the motion, finding that the claims were simply a restatement of the dismissed claims involving the same defendants and that Title VII was her exclusive remedy.

On July 15, 1992, HHS moved for summary judgment on the grounds that the claims were time barred and that Polsby could not make out a prima facie case of retaliation. The court granted the motion on the first ground and did not discuss the second. Polsby appeals, raising the following issues: 1) whether Polsby's claim of sex discrimination under Title VII is time barred; 2) whether Polsby's claim of retaliatory sex discrimination should have survived summary judgment; and 3) whether the district court abused its discretion in denying Polsby leave to amend her complaint to add a RICO claim. In reviewing the district court's decision, we keep in mind that "summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004 (4th Cir.), cert. denied, 484 U.S. 897, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987).

II.
A. Whether Polsby's claim of sex discrimination under Title VII is time barred.

A complainant has thirty days to bring to the attention of an EEO counselor allegations of sex discrimination. 29 C.F.R. § 1613.214(a)(1)(i) (1985). 2 This time limit is not jurisdictional. See Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). It acts as a statute of limitations and, therefore, is subject to equitable as well as regulatory exceptions. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). There is no dispute that Polsby failed to bring the allegations of sex discrimination to the attention of an EEO counselor within thirty days. The issue is whether Polsby is entitled to equitable relief to allow her to proceed despite this failure.

The Supreme Court has recently stated:

Federal courts have typically extended equitable relief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.

Irwin, 498 U.S. at ----, 111 S.Ct. at 457-58 (footnotes omitted). Equitable relief is reserved for only the most deserving complainants.

Polsby claims lack of notice of the thirty day requirement, but she admits that she does not know whether NIH has posted notice of the time limits. She states that there were many notices posted on bulletin boards, but that she was unaware of any indicating the time limit for sex discrimination complaints. She does not claim that any of the original defendants misrepresented the time limits or otherwise misled her. A grant of equitable relief requires a diligent search by Polsby. "One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725, 80 L.Ed.2d 196 (1984). Likewise, we have stated:

The statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.

Price v. Litton Business Sys., 694 F.2d 963, 965-66 (4th Cir.1982); see Felty v. Graves-Humphreys Co., 818 F.2d 1126 (4th Cir.1987). In a factually similar case, the Fifth Circuit remarked:

In the case at bar, plaintiff's equitable tolling argument is entirely dependent on [the defendant's] failure to post any notice of EEOC procedures and on plaintiff's ignorance of her rights under Title VII. These facts as presented here are insufficient to support equitable...

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