IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-10656 (Summary Calendar)

L.C. THOMAS,

Plaintiff-Appellant,

versus

JOHN E. RYAN, Deputy and Acting Chief Executive Officer, FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas, Dallas Division (3:95-CV-2692-BD)

January 15, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This is an appeal from the magistrate judge’s grant of summary

judgment dismissing Plaintiff-Appellant L. C. Thomas’s Title VII

discrimination claim against Defendant-Appellee John E. Ryan, who

was sued in his official capacity as Deputy and Acting Chief

Executive Officer of the Resolution Trust Corporation (RTC). The

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. magistrate judge dismissed the claim because Thomas (1) failed to

file his complaint within the ninety-day statutory filing period1

and (2) failed to establish a factual basis to compel tolling the

limitations statute on equitable grounds.

In 1993, Thomas, who is black, applied for the position of

Field Ethics Specialist in the Dallas, Texas office of the RTC.

After his application was rejected, Thomas filed a formal

discrimination charge with the Equal Employment Opportunity office

of the FDIC in which he alleged that the RTC had discriminated

against him on the basis of race by rejecting his job application

in favor of less-qualified white applicants. A hearing was held

before an administrative law judge who found no evidence of

discrimination and recommended that Thomas’s claim be denied.

On July 13, 1995, the FDIC issued a final decision rejecting

Thomas’s claim. In that decision, the FDIC advised Thomas that he

could either appeal its decision to the Equal Employment

Opportunity Commission (EEOC), or else file suit “in an appropriate

U.S. District Court within ninety (90) calendar days of the date

you receive this decision.” Thomas received a copy of the FDIC’s

decision on July 14.

Thomas did not appeal to the EEOC. In fact, he did nothing at

all to pursue his claim until October 10 -- 88 days later -- when

he attempted unsuccessfully to file a complaint against the RTC,

1 42 U.S.C. § 2000e-5(f)(1).

2 not in a federal district court but in a Texas state court. The

only evidence in the record of that eleventh hour attempt to pursue

his discrimination claim is a copy of Thomas’s transmittal letter

to the clerk of the Texas court, which reflects that it was

received (not filed) on October 12 -- the 90th day.

The record evidence does not indicate that Thomas actually

sent a petition with that letter to the Texas court. But even

assuming that the correspondence Thomas sent to the clerk of the

Texas court did include a petition, the clerk did not file it.

Instead, the clerk attempted to return to Thomas his filing fee

along with whatever correspondence the Texas court had received

from Thomas. In attempting to do so, the clerk mistakenly sent the

package to an unrelated law firm in Dallas, but a lawyer from that

firm forwarded the materials to Thomas on October 25. The Dallas

lawyer also advised Thomas by telephone that he had filed suit in

the wrong court. Thomas then filed this action in federal court on

November 9, 1995, 118 days after receiving the FDIC’s final

decision.

Thomas does not dispute that he filed his complaint in federal

court later than ninety days after receiving the FDIC’s final

decision. He insists, however, that the magistrate judge erred by

refusing to toll the running of the statutory filing period, on

equitable grounds, from the day Thomas attempted to file suit in

state court until the day he received the package from the Texas

clerk of court indicating that no complaint was filed.

3 Thomas attempts to support his argument by citing two cases --

one from the Sixth Circuit and one from the Ninth -- both of which

applied equitable tolling principles to permit the filing of a

Title VII action in federal court after the passage of 90 days

because the plaintiff had mistakenly but reasonably filed suit in

a state court within the 90-day filing period.2 These cases are

distinguishable from the instant action. In each of these cases,

the plaintiff actually filed a Title VII action in state court.

Moreover, each was filed during a time period when conflicting

authorities left unclear the now widely understood fact that

federal courts have exclusive jurisdiction over Title VII claims.

In opinions that were similar to each other, the Sixth and Ninth

Circuits held that equitable tolling was appropriate because the

plaintiff in each case acted diligently and filed a complaint

within 90 days in a forum which, at the time, was reasonably,

albeit mistakenly, believed to be a proper forum.

In contrast, Thomas offers no excuse -- either reasonable or

otherwise -- for attempting to file his Title VII action in state

court rather than in federal court. In its final agency decision,

the FDIC clearly and explicitly advised Thomas that he must file

suit in a U.S. District Court. We must presume that Thomas, who is

an attorney and a member of the Judge Advocate General for the Army

2 Valenzuela v. Kraft, Inc.,

(9th Cir. 1986); Fox v. Eaton Corp.,

(6th Cir. 1980), cert. denied,

,

,

(1981).

4 Reserve, is capable of understanding the difference between a

federal district court and a state court. Thus, as “[o]ne who

fails to act diligently cannot invoke equitable principles to

excuse that lack of diligence,”3 we see no basis for equitably

tolling the 90-day filing period in this case.

For the foregoing reasons, the magistrate’s grant of summary

judgment is

AFFIRMED.

3 Baldwin County Welcome Center v. Brown,

,

,

(1984).

5