Maggio v. Wis. Ave. Psychiatric Ctr., Inc.

• Citation: 795 F.3d 57
• Decision Date: 24 July 2015
• Docket Number: No. 13–7181.,13–7181.
• Parties: Matthew MAGGIO, Appellant v. WISCONSIN AVENUE PSYCHIATRIC CENTER, INC, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 57

Matthew MAGGIO, Appellant

v.WISCONSIN AVENUE PSYCHIATRIC CENTER, INC, Appellee.

No. 13–7181.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 11, 2014.

Decided July 24, 2015.

Arinderjit Dhali argued the cause and filed the briefs for appellant.

Alan S. Block argued the cause for appellee. With him on the brief was Andrew Butz.

Before: ROGERS, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.

Opinion

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RANDOLPH, Senior Circuit Judge:

The issue in this appeal is whether, as District Judge Lamberth ruled, 42 U.S.C. § 2000e–5(f)(1) barred Matthew Maggio's civil action alleging discrimination because he brought it too late.

The dates matter so we will give them. On May 11, 2012, Maggio completed a “Charge of Discrimination” and had it submitted to the Washington, D.C. office of the U.S. Equal Employment Opportunity Commission (“EEOC”). His charge, contained on the EEOC's Form 5, alleged that in December 2011 Maggio's employer fired him because he was male. On Form 5, Maggio swore that his statements were true and listed his address as “3032 Rodman Street, NW, Apt. 35, Washington, DC 20008.” At the time he was not living at that address. A month earlier he had moved to South Carolina.

On November 26, 2012, the EEOC mailed a right-to-sue notice to Maggio at his Rodman Street address. Under 42 U.S.C. § 2000e–5(f)(1), if a complainant decides to sue his employer, he must bring the action “within ninety days after the giving” of the notice. See also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–50, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam). The EEOC's notice so informed Maggio and stated that if he did not bring a civil action within ninety days his “right to sue based on this charge will be lost.” According to Maggio, he never received the notice, doubtless because he was then living in South Carolina. (No evidence indicates that Maggio left a forwarding address with the post office after he vacated his Rodman Street apartment in April 2012.)

Although by law Maggio could bring an action if the EEOC had not resolved his discrimination charge within 180 days of his May 2012 filing, see 42 U.S.C. § 2000e–5(f)(1), it was not until June 2013 that Maggio's attorney bothered to call the EEOC to inquire about his client's case. At the attorney's request, the EEOC mailed him a copy of the November 2012 right-to-sue notice. On June 21, 2013, Maggio filed his complaint against his former employer in D.C. Superior Court. The defendant removed the case to federal district court.

Maggio's lawsuit began far more than ninety days after the EEOC mailed the right-to-sue notice to his Rodman Street address.¹ Maggio never informed the agency that he was living in South Carolina. Thus, Maggio violated his duty to notify the EEOC “of any change in address and ... any prolonged absence from that current address so that he or she can be located when necessary during the Commission's consideration of the charge.” 29 C.F.R. § 1601.7(b).² Maggio acknowledged this duty when signing Form 5, in which he declared that he “will advise the agencies if [he] change [d] [his] address or phone number.”

Maggio thinks “equitable tolling” should relieve him of the consequence of his failure to comply with the ninety-day rule. Although he apparently does not realize it, his argument calls on the court to engage in statutory interpretation of 42 U.S.C. § 2000e–5(f)(1). “Equitable tolling” is not some free floating doctrine allowing the courts to override the will of Congress. What matters is congressional intent, as we explained in 3M Co. (Minnesota Mining and Manufacturing) v. Browner, 17 F.3d 1453, 1461 (D.C.Cir.1994). The critical question is whether Congress meant to allow courts to toll the statutory limitations period. The answer to that question depends on “whether a particular basis for suspending the running of the statute of limitations had received judicial recognition when the statute became law.” Nat'l Ass'n of Mfrs. v. NLRB, 717 F.3d 947, 961 (D.C.Cir.2013) ;³ see Adam Bain & Ugo Colella, Interpreting Federal Statutes of Limitations, 37 CREIGHTON L. REV. 493, 502–03 (2004). If by then the judiciary had generally recognized it, a fair inference would be that Congress intended to permit the tolling of the statutory limitation in similar circumstances. If not, the courts cannot excuse a litigant's filing after the statutory deadline.

Maggio's position is that he is entitled to “equitable tolling” because he thought the EEOC would send its right-to-sue notice to his attorney, and the agency did not.⁴ Was that a generally recognized basis for tolling a limitations period in 1964 when Congress enacted this statute? Neither party to this case has addressed the question. Although we very much doubt that any such “equitable tolling” was widely recognized in 1964, we will not undertake to research the issue on our own. We will not do so because we agree with the many decisions of other courts of appeals refusing to toll the running of the ninety days in circumstances like Maggio's. These decisions hold that when a complainant fails to receive a right-to-sue notice because he gave the EEOC an incorrect address or because he neglected to inform the EEOC when he moved, the complainant is at fault and he is not entitled to equitable tolling. See, e.g., Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 120–21 (1st Cir.2009) ; Pearison v. Pinkerton's Inc., 90 Fed.Appx. 811, 813 (6th Cir.2004) (per curiam) (unpublished); Day, 1 Fed.Appx. at 523 ; Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 385 (9th Cir.1997) ; Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th Cir.1989) ; Hunter, 790 F.2d at 475 ; St. Louis v. Alverno Coll., 744 F.2d at 1316–17 ; see also Dyson v. District of Columbia, 710 F.3d 415, 422 (D.C.Cir.2013) ; Tolling of the Time Period for Bringing Title VII Action, 13 A.L.R. Fed.2d 633 (2006), § 23 (collecting cases).⁵

In the words of a maxim of equity, Maggio came into court without “clean hands.”⁶

Affirmed.

ROGERS, Circuit Judge, dissenting:

Today the court holds that whenever a complainant fails to update his address with the Equal Employment Opportunity Commission (“EEOC”) and therefore fails to receive a mailed right-to-sue notice, the complainant is not entitled to equitable tolling regardless of what other measures the complainant took to ensure receipt of the notice. This is not the law. A complainant, like Matthew Maggio, is entitled to equitable tolling if the record “shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (citation and internal quotation marks omitted); see Dyson v. District of Columbia, 710 F.3d 415, 421 (D.C.Cir.2013). Here, the record shows that during a time of personal upheaval, when his permanent mailing address was uncertain, Maggio took reasonable steps to direct the EEOC to send his right-to-sue notice to his attorney. The EEOC failed to follow his instructions. Neither this court's precedent nor that cited by the court today require more. Because Maggio exercised reasonable diligence and circumstances beyond his control prevented his timely filing of his complaint, he is entitled to receive the benefit of equitable tolling, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ; Gordon v. Nat'l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982), and, accordingly, I respectfully dissent.

I.

Title VII encourages the informal resolution of employment discrimination disputes by requiring complainants to file charges first with the EEOC or the appropriate state or local agency before proceeding to federal court. 42 U.S.C. §§ 2000e–5(e)(1), (f)(1) ; see Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 368, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) ; Martini v. Fed. Nat'l Mortg. Ass'n, 178 F.3d 1336, 1340, 1346–47 (D.C.Cir.1999). The EEOC coordinates with state and local agencies, like the D.C. Office of Human Rights (“OHR”), to streamline the processing and investigation of charges. See 42 U.S.C. § 2000e–8(b) ; 29 C.F.R. §§ 1601.13(c), 1626.10 ; Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1372–74 (D.C.Cir.2008). Pursuant to the worksharing agreement between the EEOC and the OHR, they “each designate the other as its agent for the purpose of receiving and drafting charges.” Pl.'s Opp'n Def.'s Mot. Dismiss, Ex. 2, Worksharing Agreement ¶ II.A. Charges received by the OHR are “deemed received” by the EEOC. See 29 C.F.R. § 1626.10(c) ; cf. Schuler, 514 F.3d at 1372.

Because Maggio is appealing the dismissal of count I of his amended complaint for lack of timeliness pursuant to Federal Rule of Civil Procedure 12(b)(6), this court must “accept all factual allegations in the complaint as true” and “consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; see, e.g., Gordon v. U.S. Capitol Police, 778 F.3d 158, 163–64 (D.C.Cir.2015). The court may also consider documents that are undisputed by the parties. See Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) ; Hollis v. U.S. Dep't of the Army, 856 F.2d 1541, 1544 (D.C.Cir.1988).

Notwithstanding the worksharing agreement, the record shows that information received by the OHR is not necessarily passed on to the EEOC. Maggio submitted an intake questionnaire to the OHR on April 8, 2012, on which he noted that he was represented by an attorney. A copy of this...