Seitzinger v. Reading Hosp. and Medical Center, No. 97-1698

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BECKER
• Citation: 165 F.3d 236
• Docket Number: No. 97-1698
• Decision Date: 15 January 1999
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 48, 74 Empl. Prac. Dec. P 45,735, 75 Empl. Prac. Dec. P 45,735 Sharyn L. SEITZINGER, Appellant, v. The READING HOSPITAL AND MEDICAL CENTER.

Page 236

165 F.3d 236 79 Fair Empl.Prac.Cas. (BNA) 48, 74 Empl.
Prac. Dec. P 45,735,
75 Empl. Prac. Dec. P 45,735 Sharyn L. SEITZINGER, Appellant,
v.
The READING HOSPITAL AND MEDICAL CENTER. No. 97-1698. United States Court of Appeals,
Third Circuit. Argued Nov. 16, 1998.
Decided Jan. 15, 1999.

Page 237

Stephen M. Latimer (Argued), Lucille M. Rosano, Loughlin & Latimer, Hackensack, NJ, for Appellant.

Vincent Candiello (Argued), Morgan, Lewis & Bockius LLP, Harrisburg, PA, for Appellee.

Before: BECKER, Chief Judge, GREENBERG, Circuit Judge and McLAUGHLIN, District Judge. ^*

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal by plaintiff Sharyn Seitzinger in a Title VII case alleging gender and age discrimination by her former employer, defendant Reading Hospital and Medical Center, requires us to decide when the circumstances surrounding an attorney's misconduct are sufficient to merit equitable tolling of the statute of limitations. The appeal perforce centers on the timeliness of the complaint. The District Court granted summary judgment for the Hospital, believing the complaint to be time-barred under 42 U.S.C. § 2000e-5(f)(1) because it was not filed within ninety days of the receipt of the EEOC's right-to-sue letter. The Court rejected Seitzinger's fall-back position that the time deadline should have been extended under the doctrine of equitable tolling because of the defalcations of her lawyer, who missed the filing deadline, albeit only by one day.

We agree with the district court's basic timeliness determination and affirm on that point. However, we disagree on equitable tolling. The district court proceeded on the theory that an attorney's delinquency is chargeable to the client and, at all events, is not a basis for equitable tolling. This is generally true, consistent with the rule that equitable tolling is to be used sparingly, particularly in the context of attorney default. However, where--as here--the allegation is that a diligent client persistently questioned the lawyer as to whether he had filed the

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complaint in time, and he affirmatively misrepresented to her that he had, we think there is a sufficient claim of attorney abandonment to bring the case within the narrow line of cases in which lawyer misconduct justifies equitable tolling.

Because the District Court erroneously thought that equitable tolling could not be justified here, we will reverse. Because the equitable tolling determination turns on a weighing and balancing of factors, including the extent of attorney misconduct, the diligence of the client, and prejudice to the defendant, we think it preferable to offer the District Court the opportunity to exercise its discretion and make the tolling determination in the first instance. Hence, we will remand for further consideration.

I.

Seitzinger started work at Reading Hospital in 1984. In May, 1993, she had an argument with her office manager and was suspended. She later was given the option to resign or be fired, and she opted to resign. A few months later, she filed a complaint with the EEOC, alleging age and gender discrimination. The EEOC concluded that there was sufficient evidence of a gender discrimination claim. At this point, Seitzinger retained an attorney named David Sloane to help her with her case. However, after attempts at reconciliation between Seitzinger and the Hospital failed, the EEOC declined to transfer Seitzinger's case to its Legal Unit and, in a letter dated May 30, 1995, notified Seitzinger of its intention to issue to her, under separate cover, a right-to-sue letter. The letter also stated that she could file a lawsuit within ninety days of receiving the right-to-sue letter.

On June 15, 1995, the EEOC sent the right-to-sue letter to Seitzinger, Sloane, and Reading Hospital. The Hospital received its copy of the right-to-sue letter on June 19. Seitzinger does not know when she and Sloane received their copies of the letter; she does not recall receiving her letter, and Sloane had recently changed his address. The first postmark on Sloane's letter was June 15, and the second postmark, on the "change of address" label, was June 17. Soon after receiving the letter, Seitzinger decided to bring a Title VII suit against the Hospital. On July 2, 1995, Sloane wrote to Seitzinger, advising her that he was in the process of drafting the complaint. Seitzinger called Sloane in early September to make sure that he had filed the complaint on time. Sloane assured Seitzinger that he had done so. However, Sloane did not actually file the complaint until September 19, 1995.

On June 7, 1996, the District Court dismissed Seitzinger's complaint without prejudice for failure to serve Reading Hospital with the complaint. At some point that spring, Sloane told Seitzinger, who had repeatedly called him to ask for a copy of the complaint and to inquire about the status of her case, that he was giving up his law practice. In fact, Sloane had been suspended from the practice of law in October 1995. After picking up her file from Sloane, Seitzinger called the Clerk of the District Court to check on the status of her case and was told that her complaint had been dismissed.

On September 22, 1996, Seitzinger moved to vacate the dismissal because her attorney had failed to serve the complaint and had been disbarred in July 1996. Although the District Court granted her motion to vacate, and Seitzinger timely served the Hospital with a notice of the complaint, the District Court subsequently granted the Hospital's motion for summary judgment on the ground that the complaint was not timely filed. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the district court's grant of the Hospital's motion for summary judgment is plenary, see Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990), and we must construe the facts in the light most favorable to the non-moving party, see Gallo v. City of Philadelphia, 161 F.3d 217, 219 (3d Cir.1998).

II.

We must initially decide whether Seitzinger has introduced sufficient evidence to identify the date on which she or Sloane received the EEOC's right-to-sue letter, for it is from that date that we determine whether

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Seitzinger's complaint was timely filed in federal court. If Seitzinger has failed to do so, we will apply the Federal Rules' presumption that a party receives a document three days after it was mailed, see Fed.R.Civ.P. 6(e), in which case we would begin to count from June 18, 1995, and Seitzinger's complaint would not be timely. Even if she has produced some evidence that we should begin to count from June 19, we conclude that there is still no genuine issue of material fact bearing on timeliness because the ninety-day period still expired before she filed her claim. ¹

42 U.S.C. § 2000e-5(f)(1) provides that if the EEOC takes no action on a complaint within a specified period of time, the agency "shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought...." Id. We have construed this provision to mean that the time for the filing of a complaint begins to run when the plaintiff has notice of the EEOC's decision, which usually occurs on the date he receives a right-to-sue letter from the agency. See Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 252 (3d Cir.1986). The EEOC's right-to-sue letter also...