Perkins v. VA CV-94-357-JD 05/25/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Luther C. Perkins

v. Civil No. 94-357-JD

Jesse Brown, Secretary Department of Veteran Affairs Veterans Administration

O R D E R

This case involves a dispute between the plaintiff, Luther

Perkins, and his former employer, the Veterans Administration

("VA"). Before the court is the defendant's motion to dismiss

under Fed. R. Civ. P. 12(b) (6) (document no. 17).

Background

The following facts are not in dispute or have been alleged

by the plaintiff.

The defendant hired the plaintiff, a pharmacist, in July

1988, to serve as chief of pharmacy services for the VA Medical

Center at Castle Point, New York. In February 1989, the VA

reclassified the chief of pharmacy position such as to make the

plaintiff eligible for a promotion from a "GS-660-12" to a "GS-

660-13" pay level. The defendant, who was sixty-four years old

at the time, was not promoted even though he had satisfied all

the training and performance gualifications for promotion.

1 On January 23, 1991, the plaintiff filed a timely employment

discrimination complaint with the VA alleging age discrimination

in the denial of his reguest for promotion. The plaintiff's

complaint was not resolved through the informal adjustment

process and, on June 2, 1992, the VA reguested that the Egual

Employment Opportunity Commission ("EEOC") assign the dispute to

one of its administrative judges ("AJ").

The AJ conducted an administrative hearing on August 18 and

September 17, 1992. The plaintiff proceeded pro se. On January

21, 1993, the AJ recommended that the VA deny the claim on the

grounds that the plaintiff had failed to establish a violation of

the Age Discrimination In Employment Act ("ADEA"),

et seg. On February 18, 1993, the VA adopted the AJ's

recommendation as the "final agency decision" and, in so doing,

formally denied his complaint.

On March 18, 1993, the plaintiff filed with the EEOC a

timely appeal of the VA's decision. By order of September 21,

1993, the EEOC affirmed the VA's decision. The order, which the

plaintiff received on September 24, 1993, included a "statement

of rights" explaining a claimant's right to file a reguest for

administrative reconsideration, to file a civil action, and to

reguest counsel:

It is the position of the Commission [EEOC] that you have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENPAR DAYS from the date that you receive this decision. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision . . . .

Defendant's Motion to Dismiss, Exhibit 5 (emphasis in original).

The statement of rights provides other information to appellants,

such as how to name the proper defendant in a civil lawsuit.

Following receipt of the unfavorable EEOC decision, the

plaintiff retained Daniel Cochran, an attorney practicing with

Marshall Law Offices, East Kingston, New Hampshire. On October

14, 1993, the plaintiff met with Cochran to review a draft

complaint. Cochran, who billed the plaintiff for both the

drafting of the complaint and the filing fee, stated that the

complaint would be filed the following day. Soon thereafter the

plaintiff temporarily relocated to Florida.

The plaintiff called Cochran during December 1993, to

discuss discrepancies in his legal bill. Cochran did not return

the plaintiff's telephone calls.

The plaintiff returned to New Hampshire in May 1994, and

during that month placed "many" unreturned phone calls to

Cochran's law firm. The plaintiff successfully contacted Cochran

on May 27, 1994. At that time.

3 Attorney Cochran stated, "He had received the decision on federal civil suit and did not re-file as the statute of limitations had run out. Also payment would be in the amount of economic damage" and [Cochran] hung up before the Plaintiff could ask any guestions.

Plaintiff's Objection to Motion to Dismiss at 5 10.

On June 9, 1994, the plaintiff, who had begun to guestion

Cochran's integrity, inguired about the status of his lawsuit to

a deputy clerk employed by this court. The deputy clerk reported

that she could not find a record of the case.

On or about July 7, 1994, Keri Marshall, another attorney

practicing with the Marshall Law Offices, notified the plaintiff

that Cochran was no longer affiliated with her law firm.

Marshall attempted to initiate a telephone conference call with

the plaintiff and Cochran. Cochran initially hung up and, during

a subseguent attempt at a telephone conference, responded with

vulgarities when gueried about the status of the plaintiff's

complaint.1

The following day, Marshall filed the plaintiff's complaint

with this court, along with a "motion to file late answer" and a

reguest for appointment of counsel. The magistrate judge denied

both motions on August 1, 1994. Perkins v. Secretary, Dept, of

Veterans Affairs, No. 94-357-JD, pretrial order at 2 (D.N.H. Aug.

According to the plaintiff, Cochran has been disbarred from legal practice in New Hampshire.

4 1, 1994). Marshall subsequently withdrew from this case and the

plaintiff has proceeded pro se.

Discussion

A motion to dismiss under Fed. R. Civ. P. 12(b) (6) is one of

limited inquiry, focusinq not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). Accordinqly, the court must take the factual

averments contained in the complaint as true, "indulqinq every

reasonable inference helpful to the plaintiff's cause." Garita

Hotel Ltd. Partnership v. Ponce Fed. Bank,

(1st

Cir. 1992); see also Dartmouth Review v. Dartmouth College,

(1st Cir. 1989). In the end, the court may qrant a

motion to dismiss under Rule 12(b) (6) "'only if it clearly

appears, accordinq to the facts alleqed, that the plaintiff

cannot recover on any viable theory.1" Garita,

(quotinq Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir. 1990)).

In its motion the defendant asserts that this lawsuit is

time barred because the plaintiff did not file the complaint

within the ninety day statutory filinq period,

5 626(e). Defendant's Memorandum in Law in Support of Motion to

Dismiss ("Defendant's Memorandum of Law") at 1.

In his response the plaintiff asserts that he was at all

times aware of the deadline and had relied on the promises of his

attorney that the complaint would be filed on time. Plaintiff's

Objection at 5 3-4 ("Plaintiff had absolutely no reason to

question the integrity of a duly licensed attorney . . ."). The

plaintiff's pro se status requires the court to hold his

complaint and responsive pleadings to a less stringent standard

than pleadings drafted by attorneys. Eveland v. Director of

C .I .A . ,

(1st Cir. 1988) (citing Haines v. Kerner,

(1972) (per curiam)). Under this forgiving

standard the court treats the plaintiff's objection to the motion

to dismiss as a request that the court equitably toll the

statutory filing period.

By statute, an individual may file a civil action "within

ninety days after the date of the receipt of . . . notice" that

his administrative claim under the ADEA has been dismissed or

otherwise terminated by the EEOC.

(e) (West.

Supp. 1995). The filing period is not a jurisdictional

prerequisite to maintaining an action under the ADEA but, rather,

is "akin to a statute of limitations and is subject to equitable

modification." Kale v. Combined Ins. Co. of America,

(1st Cir. 1988) (analogizing to Title VII filing

period) (collecting cases). Eguitable tolling is appropriate

because the "ADEA is remedial and humanitarian legislation and

should be liberally interpreted to effectuate the congressional

purpose of ending age discrimination in employment."

(citing

Dartt v. Shell Oil Co.,

(10th Cir. 1976),

aff'd by an evenly divided Court,

(1977)).

Courts most often eguitably toll a filing period when a

plaintiff demonstrates that the failure to file timely resulted

from "excusable ignorance" of his statutory rights. Id. at 752.

For example, under this theory the filing period may be tolled

where an employee's ignorance may be attributed to his employer's

misconduct or failure to post informational EEOC notices as

reguired by the ADEA. Id. at 752-53. Conversely, "if the court

finds that the plaintiff knew, actually or constructively, of his

ADEA rights, ordinarily there could be no eguitable tolling based

on excusable ignorance." Id. at 753 (citing Vaught v. R.R.

Donnelley & Sons Co.,

(7th Cir. 1984)).

The First Circuit has noted in passing that other courts

have at times eguitably tolled filing deadlines "where the

untimely filing was due to gross attorney error." Id. at 752,

n.8 (citing Volk v. Multi-Media, Inc.,

(S.D. Ohio 1981)). In Volk, the district court reasoned that a

7 client should not have to suffer for the "sloppy, inept practice

of his attorney."

.

Notwithstanding the concerns voiced in Volk, most courts,

including those in this circuit, disfavor the doctrine of

eguitable tolling where the plaintiff had consulted an attorney

prior to the deadline but, for reasons unrelated to the

defendant's conduct, failed to file in time. See Irwin v.

Veterans Admin., Ill S. C t . 453, 456-58 (1990) (Title VII

employment discrimination claim); Silva v. Universidad de Puerto

Rico,

(D.P.R. 1993) (Title VII employment

discrimination claim) (citing Polsbv v. Chase,

,

1363-64 (4th Cir. 1992) (plaintiff who consulted with attorney

during time limit to file Title VII complaint barred from

invoking doctrine of eguitable tolling even though attorney's

advice was erroneous); Reifinger v. Nuclear Research Corp.,

*2 (E.D. Pa. 1992) (plaintiff who consulted attorney

within limitations period barred from invoking eguitable tolling

doctrine even where the attorney erroneously informed him about

administrative filing deadlines)); see also Gilbert v. Secretary

of Health and Human Servs.,

(Fed. Cir. 1995)

("negligence of [plaintiff's] attorney does not justify applying

eguitable tolling" of deadline to file under the National

Childhood Vaccine Injury Act). In Irwin, the Supreme Court ruled that the equitable tolling

doctrine could not resurrect a time-barred Title VII lawsuit

where the plaintiff's attorney did not file within the statutory

period, in part because the attorney was on vacation when his law

office received the EEOC right-to-sue letter. Ill S. C t . at 455-

58. Finding first that "[f]ederal courts have typically extended

equitable relief only sparingly," the Court concluded that

"principles of equitable tolling . . . do not extend to what is

at best a garden variety claim of excusable neglect." Id. at

457, 458; see Gilbert,

("Procedural

requirements established by Congress for gaining access to

federal courts are not to be disregarded by courts out of vague

sympathy for particular litigants") (quoting Baldwin County

Welcome Center v. Brown,

( 1984)).

In situations where equitable tolling is available, courts

regularly consider five factors when determining whether to

invoke the doctrine:

(1) lack of actual notice of filing requirement; (2) lack of constructive notice of filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant; and (5) reasonableness of plaintiff's ignorance of the notice requirement.

Kale,

(citing Andrews v. Orr,

(6th Cir. 1988)); see Abbott v. Moore Business Forms, Inc.,

(D.N.H. 1977). "It is important to note. however, that these factors are not exhaustive. It is in the

nature of equity to entertain case-specific factors that may

counsel in favor of tolling." Kale, 861 F.2d at n.9; see Volk,

(attorney error considered as additional

equitable factor) .

There is no dispute that the complaint was filed on July 8,

1994, approximately nine and one half months after the plaintiff

personally received the final decision of the EEOC. This action

was not initiated within the ninety day filing period,

(e), and the court's inquiry is limited to the

question of whether the filing period should be equitably tolled.

The plaintiff has not alleged that his delinquent filing

resulted from the misconduct of either the defendant or the EEOC.

Indeed, the final decision mailed to the plaintiff prominently

announced the filing deadline along with other right-to-sue

information. The plaintiff knew of his statutory rights and

retained an attorney to exercise them on his behalf. The court

finds that the facts of this case do not support equitable

tolling on the grounds of "excusable ignorance."

The plaintiff asserts that he should not suffer for his

reasonable reliance on counsel's apparently false statements that

the complaint would be filed on time. The defendant responds

that this is not a proper grounds for equitable tolling.

10 The court finds that, for purposes of the Rule 12(b) (6)

inquiry, the failure to file resulted solely from the gross error

of the plaintiff's attorney and his law firm. These

circumstances may justify equitable tolling under Volk. See

. However, even misconduct of the magnitude

alleged in this case does not warrant equitable tolling under the

more narrow view of the doctrine recently articulated by the

Supreme Court and other courts sitting in this and other

circuits. See, e.g., Irwin, 111 S. C t . at 457-58; Silva,

. Thus, the plaintiff's lawsuit is time-barred and

not subject to equitable tolling.

The court, taking all factual averments in the complaint as

true, has determined that the plaintiff cannot recover on any

viable theory under the ADEA because his lawsuit is untimely.

Accordingly the complaint must be dismissed.2

21he plaintiff is not left without any remedy since the allegations concerning the conduct of counsel may support a separate civil action against the appropriate defendants.

11 Conclusion

The defendant's motion to dismiss (document no. 17) is

granted. The clerk is ordered to close this case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge May 25 1995

cc: United States Attorney Luther C. Perkins, pro se

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