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"), 29 U.S.C.A. §
626 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. Id.
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, 416 U.S.
232, 236 (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, 958 F.2d 15, 17 (1st
Cir. 1992); see also Dartmouth Review v. Dartmouth College, 889
F.2d 13, 16 (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, 958 F.2d at 17
(quotinq Correa-Martinez v. Arrillaqa-Belendez, 903 F.2d 49, 52
(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, 29 U.S.C. §
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
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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"), 29 U.S.C.A. §
626 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. Id.
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, 416 U.S.
232, 236 (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, 958 F.2d 15, 17 (1st
Cir. 1992); see also Dartmouth Review v. Dartmouth College, 889
F.2d 13, 16 (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, 958 F.2d at 17
(quotinq Correa-Martinez v. Arrillaqa-Belendez, 903 F.2d 49, 52
(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, 29 U.S.C. §
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 . , 843 F.2d 46, 49 (1st Cir. 1988) (citing Haines v. Kerner,
404 U.S. 519, 520 (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. 29 U.S.C.A. § 626(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, 861 F.2d
6 746, 751-52 (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." Id. (citing
Dartt v. Shell Oil Co., 539 F.2d 1256, 1259-60 (10th Cir. 1976),
aff'd by an evenly divided Court, 434 U.S. 99 (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., 745 F.2d 407, 412 (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., 516 F. Supp. 157, 161-62
(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." 516 F. Supp. at 162.
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, 834 F. Supp. 553, 554 (D.P.R. 1993) (Title VII employment
discrimination claim) (citing Polsbv v. Chase, 970 F.2d 1360,
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., 1992
WL 368347 *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., 1995 WL 119574 * 4 (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, 1995 WL 119574 at * 4 ("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, 466 U.S. 147, 152 ( 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, 861 F.2d at 752 (citing Andrews v. Orr, 851 F.2d 146, 151
(6th Cir. 1988)); see Abbott v. Moore Business Forms, Inc., 439
F. Supp. 643, 646 (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,
516 F. Supp. at 161-62 (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, 29
U.S.C.A. § 626(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 516
F. Supp. at 161-62. 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, 834 F.
Supp. at 554. 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