IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-20282 Summary Calendar _______________

DARRELL JOE, Plaintiff-Appellant, VERSUS

CITY OF HOUSTON FIRE DEPARTMENT/CIVIL SERVICE COMMISSION, Defendant-Appellee. _________________________

Appeal from the United States District Court for the Southern District of Texas (H-98-CV-134) _________________________ March 1, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges. I. After learning that Joe had been arrested on JERRY E. SMITH, Circuit Judge:* September 1, 1995, the fire chief held a predisciplinary meeting with him on December Darrell Joe, once a firefighter for the City 6, 1995, and sometime thereafter informed him of Houston, was suspended indefinitely for that he would be indefinitely suspended, which having been arrested for the purchase and use is tantamount to dismissal. The chief provided of crack cocaine, an arrest he contends to have Joe official notification of this indefinite been false. He filed a complaint with the suspension on January 3, 1996, and explained Texas Commission on Human Rights that Joe needed to appeal to the Civil Service (“TCHR”) and the Equal Employment Commission (the “Commission”) within fifteen Opportunity Commission (“EEOC”), charging days. Joe did so, and on June 5, 1996, the race discrimination because other employees Commission upheld the suspension. who had committed crimes had not been suspended indefinitely. He sued under title The EEOC filing period functions as a VII, but the district court found the action statute of limitations, barring suits not time barred and dismissed. Finding no error, preceded by a timely complaint. Zipes v. we affirm. Trans World Airlines, Inc.,

(1982). Joe filed complaints with the TCHR and EEOC on March 11, 1997. The * Pursuant to 5TH CIR. R. 47.5, the court has city argued, and the district court agreed, that determined that this opinion should not be this was more than 300 days after the alleged published and is not precedent except under the discriminatory conduct had ended, and was limited circumstances set forth in 5TH CIR. therefore untimely. Joe, on the other hand, R. 47.5.4. asserted that the discriminatory conduct hold that the filing period did not commence continued until the Commission denied his until the Commission made its decision, we appeal, so his complaint was timely. would have to find that Joe had pleaded and provided evidentiary support for the II. proposition1 that the Commission had The time for filing a complaint with the reviewed his suspension in a manner different EEOC “will commence when the employee from that it employed when reviewing the receives unequivocal notice of his termination indefinite suspensions of other employees and or when a reasonable person would know of that it had done so on account of race. Even the termination.” Burfield v. Brown, Moore & applying the liberal standards of interpretation Flint, Inc.,

(5th Cir. 1995); generally granted to pro se pleadings,2 we see see also Delaware State College v. Ricks, no such claim in Joe’s complaint, nor any

(1980). This limitation evidence to support it. “reflects a value judgment concerning the point at which the interests in favor of The statutory period in which Joe was protecting valid claims are outweighed by the required to file a complaint with the EEOC, interests in prohibiting the prosecution of stale therefore, began at the latest on January 3, ones.”

. 1996, so his March 11, 1997, complaint to the EEOC was untimely. The law, without more, That Joe received review by the demands dismissal. Commission does not alter the date for beginning the filing-deadline period. In Ricks, III. the plaintiff was a professor who had been In certain situations, however, the doctrines denied tenure, had been offered a one-year of equitable estoppel and equitable tolling may “terminal contract,” which he accepted, had apply. “Equitable tolling focuses on the appealed his denial of tenure, and had been plaintiff’s excusable ignorance of the denied.

. Upon filing a civil employer’s discriminatory act. Equitable rights act ion, he found himself barred by his estoppel, in contrast, examines the defendant’s tardy application to the EEOC and argued that conduct and the extent to which the plaintiff his filing period should not have begun to run has been induced to refrain from exercising his until his actual date of termination, or at the rights.” Clark v. Resistoflex Co., 854 F.2d earliest on rejection of his appeal.

The 762, 769 n. 4 (5th Cir. 1988) (quoting Felty v. Court disagreed. Graves-Humphreys,

(4th Cir. 1986)). These doctrines primarily are the Ricks would have had to allege and province of the district court and are applied at prove that the manner in which his its discretion; we therefore review for abuse of employment was terminated differed discretion that court’s determination that these discriminatorily from the manner in which the College terminated other 1 professors who also had been denied While the city initially filed a motion to tenure. . . . In sum, the only alleged dismiss under FED. R. CIV. P. 12(b)(6), the court discrimination occurredSSand the filing converted that motion, sua sponte, into a motion limitations periods therefore for summary judgment under FED. R. CIV. P. 56(c) commencedSSat the time the tenure 10 days after both parties had submitted matters decision was made and communicated outside the pleadings. to Ricks. 2 See, e.g., Rodriguez v. Holmes,

(5th Cir. 1992) (noting that “the allegations of Id. at 258. a pro se complaint . . . must be read in a liberal fashion, and however inartfully pleaded must be Joe presents a similar situation. The city held to less stringent standards than formal discriminated against him, if at all, when the pleadings drafted by lawyers” (internal citations chief suspended him indefinitely. For us to and quotations omitted)).

2 facts do not warrant application of either statute.” Id. Similarly, the record here doctrine. See Fisher v. Johnson, 174 F.3d suggests nothing the city did to cause it to 710, 713 (5th Cir. 1999). forfeit the benefits of the limitation period.

Considering equitable estoppel first, we can What remains to Joe, then, is equitable find nothing in the pleadings or the record to tolling, which looks to him rather than to the suggest that Joe was “induced to refrain from city to see whether his tardiness can be exercising his rights” by any party. We have excused. “The plaintiff has the burden of “described the level of employer culpability demonstrating a factual basis to toll the required to trigger equitable estoppel in terms period,” Blumberg, 848 F.2d at 644, and we of a recklessness standard: The doctrine may attempt by liberal construction of Joe’s properly be invoked when the employee’s pleadings to find the sort of “rare and untimeliness in filing his charge results from exceptional circumstances” that will allow for either the employer’s deliberate design to delay equitable tolling. Fisher, 174 F.3d at 713. the filing or actions that the employer should Too, “a garden variety claim of excusable unmistakably have understood would result in neglect does not support equitable tolling.” the employee’s delay.” Id. at 769 (internal Coleman v. Johnson,

(5th quotations and citations omitted). Cir. 1999).

The record does not indicate that anything The record presents no facts that have not of the kind occurred here. Joe was informed previously been considered and dismissed by by the chief of the reasons for his discharge, this court as insufficient excuses for failure to that the letter of January 3, 1996, officially meet a statute of limitations. Joe proceeds pro enacted his suspension, and that the available se and in forma pauperis, but an “argument[] appeal process worked as the appeal of a final that he is a ‘layman-at-law,’ a pauper without decision rather than as the decision itself. Joe legal assistance . . . afford[s] him no defense to does not allege that any representative of the the absolute bar of the statute of limitations.” city suggested t hat he should refrain from Kissinger v. Foti,

(5th complaining to the EEOC or that his rights Cir. 1977). See also Fisher, 174 F.3d at 714 would remain intact during the pendency of his (opining that “ignorance of the law, even for appeal; neither does he claim that the city kept a[] . . . pro se petitioner, generally does not relevant information from him. excuse prompt filing”). This result springs from necessity rather than dearth of In Blumberg v. HCA Management Co., generosity; though forgiven his failures of art,

, 645 (5th Cir. 1988), we heard the pauper no less than the practitioner must the complaint of an employee who had failed vigorously and swiftly pursue his claims of to file a timely complaint and who argued that right lest quietude and repose, so necessary to her employer was “estopped from invoking her the rule of law and ordered society, succumb failure to file . . . because it concealed the to his delayed attack. reason for her termination.” We held that because the plaintiff had been “advised at the Neither does Joe benefit from a claim that time of her termination that she was being third parties hindered his pursuit of justice. He discharged for cause, and she was able to included with his pleadings a copy of the evaluate the propriety of the reasons for her complaint that he eventually filed with the dismissal immediately,” her employer was not EEOC, which complaint noted that estopped from pleading the passage of the “discrimination took place” from January 3, filing period merely “by not expressly declaring 1996, until June 5, 1996. He might have that her di scharge was due to understood this notation to work an [discrimination].” Id. Such a holding, we endorsement of his contention that the 300- thought, would be “tantamount to asserting day limitation period began on June 5. We that an employer is equitably estopped note, however, that he did not file the relevant whenever it does not disclose a violation of the complaint until March 11, 1997, after the 3 correctly calculated limitation period had ended; thus, any representation by the EEOC The central bar to any attempt to invoke the that discrimination had occurred until June 5, doctrine of equitable tolling, though, must be 1996, did not come in time for Joe Joe’s lack of diligence. “In order for equitable meaningfully to have relied on it. tolling to apply, the applicant must diligently pursue his . . . relief. . . . As this court has Meanwhile, we could not hear noted, equity is not intended for those who complaintSSeven if Joe had made itSSthat the sleep on their rights.” Coleman, 184 F.3d EEOC had made more evanescent at 403. representations to him about the running of the filing period. As we have explained in the We have refused to apply the doctrine in context of age-discrimination filings with the cases in which the plaintiff might have stated a EEOC, reasonable claim to toll a small portion of the limitations period, even when that small period [i]t would be virtually impossible for the would prove “outcome determinative,” if he EEOC or a defendant to rebut a has not generally prosecuted his case plaintiff's unsupported allegation that the diligently. Fisher, 174 F.3d at 715; see also EEOC provided incomplete information Coleman,

. Joe did not in a telephone conversation. Allowing a prosecute his case for more than a year after plaintiff equitably to toll a time he was indefinitely suspended or for nearly 300 limitation based on incomplete days after his appeal was denied. information provided in a telephone conversation would create a great AFFIRMED. potential for abuse. Thus, we hold that . . . alleged incomplete oral statements made by the EEOC to [a complainant] during a telephone conversation will not support equitable tolling.

Conaway v. Control Data Corp.,

(5th Cir. 1992).

4