Ruiz v. Shelby County Sheriff's Dept.

Decision Date16 January 1984
Docket NumberNo. 82-5456,82-5456
Citation725 F.2d 388
Parties33 Fair Empl.Prac.Cas. 1225, 33 Empl. Prac. Dec. P 34,065 Deogracias RUIZ, Plaintiff-Appellant, v. SHELBY COUNTY SHERIFF'S DEPARTMENT, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Deogracias Ruiz, pro se.

H. Wallace Maroney, Jr., Asst. County Atty., G. Hite McLean, Jr., Memphis, Tenn., for defendant-appellee.

Before KENNEDY and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

Appellant Deogracias Ruiz (Ruiz) appeals from an order entered by the United States District Court for the Western District of Tennessee, Western Division, resulting in the dismissal of the Title VII employment discrimination action of Ruiz against the Shelby County Sheriff's Department, Appellee. The District Judge based his order on 42 U.S.C. Sec. 2000e-5(f)(1), which says in part as follows:

(f)(1) ... If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ... the Commission has not filed a civil action ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought ... by the person claiming to be aggrieved. 1

I.

On November 18, 1976, Ruiz filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that the appellee had discriminated against him on the basis of his national origin in his application for a position as deputy sheriff with Shelby County. On February 9, 1979, the EEOC issued a Letter of Determination finding no cause to believe that the allegations in the charge were true. On November 6, 1981, the EEOC issued to Ruiz a "Notice of Right to Sue within 90 Days," as prescribed by 42 U.S.C. Sec. 2000e-5(f)(1), supra.

Eighty days later, on January 25, 1982, Ruiz instituted this cause of action under 42 U.S.C. Sec. 2000e by filing his Notice of Right to Sue with the Clerk's Office, United States District Court for the Western District of Tennessee, Western Division, in Memphis. The district court accepted this notice in order to toll the statute of limitations for filing suits under 42 U.S.C. Sec. 2000e-5(f)(1), but noted that under its local rule the cause would be dismissed unless a formal complaint was filed within thirty (30) days of filing the notice. See Beckum v. Tennessee Hotel, 341 F.Supp. 991 (W.D.Tenn.1971) (Wellford, J.). 2

On the same day that Ruiz filed his right to sue notice, January 25, 1982, he also filed a Pauper's Oath indicating his financial inability to employ counsel, to secure the necessary bond, or to pay the costs of litigation. The oath was approved by an order of the court that "the letter from the P.O. Order be filed and treated as a complaint on a Pauper's Oath, and for the time being, it be shown that the suit be prosecuted Pro Se in that [Ruiz] is representing himself." The record indicates that on January 25, 1982, the Clerk's Office forwarded to the appellee by certified mail a copy of the Ruiz Pauper's Oath. Apparently Ruiz then went out to seek counsel prior to filing a motion for the district court to appoint counsel.

On February 25, 1982, Ruiz filed a "Motion of Request the Right to Sue," wherein he requested that the district court appoint counsel to represent him in this cause. District Judge Robert M. McRae, however, held that the court was unable to grant this motion as Ruiz's filing had failed to meet the February 24, 1982, deadline for filing a formal complaint in the cause. In dismissing the complaint of Ruiz, the court noted that Ruiz had 110 days after issuance of his Notice of Right to Sue to search for counsel, and that any extension beyond February 24, 1982, "would disserve the particular purpose of the filing requirement, to protect employers from the burden of defendant claims arising from employment decisions that are long past. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)."

On March 29, 1982, Ruiz filed a motion to alter or amend the district court's dismissal of his cause. As bases for the motion, Ruiz cited his financial difficulty in hiring an attorney and the likelihood that he would prevail on the merits should the action go to trial. Ruiz also filed an affidavit listing those attorneys who declined to represent him, and their reasons for so declining. On April 6, 1982, Ruiz also filed another affidavit explaining that he thought thirty days from January 25, 1982, fell on February 26, 1982, the day after Ruiz had requested counsel. In its order denying this motion, the district court noted that Ruiz "ha[d] made serious yet unsuccessful efforts to secure counsel to represent him in this cause," but did not address the mistake alleged in the April 6 affidavit, and then basically repeated its earlier rationale for dismissing the case under 42 U.S.C. Sec. 2000e-5(f)(1).

II.

On appeal, intervenor EEOC argues vigorously that the district court's action was the equivalent of an involuntary dismissal of the case under F.R.Civ.P. 41(b) "for failure of a plaintiff to prosecute or to comply with [the Civil Rules] or any other order of the court." The EEOC then argues that such involuntary dismissal is an overly harsh sanction where this pro se Title VII plaintiff merely filed a single document one day late, and otherwise has not engaged in a clear pattern of delay or contumacious conduct. The appellee responds that the district court's action was not an involuntary dismissal under Rule 41(b), but a proper sua sponte dismissal based on the appellant's failure to commence a civil action within the statute of limitations, which was extended gratuitously by the district court. The appellee also raises the equitable defense of laches as a further reason for this court to affirm the dismissal by the district court.

A.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), the Supreme Court held that compliance with 42 U.S.C. Sec. 2000e-5(d), which required charges to be filed with the EEOC within 90 days of the alleged unlawful employment practice (now amended to extend the time limit to 180 days, and codified as Sec. 2000e-5(e)), 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. The Court stated that in construing the provisions of Title VII, "a technical reading would be 'particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.' " 455 U.S. at 397, 102 S.Ct. at 1134, citing Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972). Additionally, in Zipes the Supreme Court noted that it did not sua sponte dismiss the action in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), on the basis that the District Court lacked jurisdiction because of plaintiff's failure to comply with what we presume to be 42 U.S.C. Sec. 2000e-5(f)(1); instead, in Mohasco, the Court merely observed in a footnote that petitioner had failed to assert respondent's failure to file the action within 90 days as a defense. 455 U.S. at 398, 102 S.Ct. at 1135, citing 447 U.S. at 811, n. 9, 100 S.Ct. at 2489, n. 9.

Therefore, at the outset, we hold that an alleged failure to comply with the 90 day filing period under 42 U.S.C. Sec. 2000e-5(f)(1) is an affirmative defense which is properly plead in an answer to the complaint. See F.R.Civ.P. 8(c). Because the district court dismissed the case prior to the filing of a formal complaint by Ruiz and an answer to the complaint by the appellee, we further hold that dismissal of Ruiz's cause by the district court sua sponte was improper in this case. 3

In light of this holding, we treat the district court's denial of Ruiz's request for counsel as an election by the district court to not exercise its equitable jurisdiction to extend the period in which Ruiz could request counsel. We now address whether such an election was required in the instant case. We approach this issue

with consciousness of the constitutional principles underlying the Equal Employment Opportunity Act and with the desire to interpret its provisions so as fully to serve the great purposes enunciated by Congress.

In this regard the Fifth Circuit's language ... is appropriate:

"The basic purposes of the Act, however, are clearly discernible. Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts construing Title VII have been extremely reluctant to allow procedural technicalities to bar claims brought under the Act...." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir.1970).

Harris v. Walgreen's Distribution Center, 456 F.2d 588, 591 (6th Cir.1972).

In Harris, the appellant filed a motion for appointment of counsel within the thirty day period prescribed by the statute for filing a Title VII action. 4 The district court denied the motion. The appellant then filed an "Amended Petition," again seeking appointment of counsel, but reciting his cause of action in more detail. The district judge dismissed the "Amended Petition," again denying appointment of counsel, but adding as a rationale for dismissal that the amended petition had not been filed with the prescribed 30 day period.

On appeal, this court reversed. The court held on equitable grounds that the original motion for counsel "should be regarded as tolling the statute until it was disposed of." 456 F.2d at 592. The court distinguished Goodman v. City Products Corp., 425 F.2d 702 (6th Cir.1970), in which the Sixth Circuit...

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