     Case: 14-50668      Document: 00513135633         Page: 1    Date Filed: 07/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals

                                      No. 14-50668
                                                                                       Fifth Circuit

                                                                                     FILED
                                                                                 July 30, 2015

MANUEL ALVARADO,                                                                Lyle W. Cayce
                                                                                     Clerk
              Plaintiff - Appellant

v.

MINE SERVICE, LIMITED, also known as Mine Service, Incorporated,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CV-315


Before JONES, SMITH, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge.*
       Statutes of limitations often result in the severe but necessary
consequence of dismissing a plaintiff’s case because of his lawyer’s lack of
diligence.   But any untimeliness in the filing of this employment lawsuit
resulted in large part from the vigilance of the plaintiff’s attorney rather than
his indolence. We thus determine that the unusual facts of this case present
one of the exceptional situations in which equitable tolling is appropriate.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 14-50668
                                            I
      Manuel Alvarado, an American citizen of Mexican descent, was
employed by Mine Service Ltd. as a heavy equipment operator at its power
plant in Franklin, Texas. 1 Upon arriving for the night shift one evening in
early 2011, he found a noose on a desk in the office. When he confronted the
shift foreman about it, the foreman explained that the concrete supervisor left
it “to tell his guys if they didn’t finish the job on time, that he was going to
hang them.” ROA.192. Alvarado voiced concern over the noose and the trouble
that Mine Service could get in if anyone complained. When Alvarado asked
what he should do with the noose, the shift foreman told him to throw it out.
Aside from that incident, Alvarado had also received numerous complaints
from fellow Hispanic workers that they had been mistreated on the night shift.
But when Alvarado helped facilitate a meeting between his coworkers and the
supervisor, none of the coworkers voiced any grievances. Later that week,
Alvarado’s supervisor contacted him and told him rumors were going around
the office about the noose and admonished Alvarez that he should “just stay
quiet, don’t say nothing to nobody just – We don’t want no trouble.” ROA.194.
A week later, on May 30, 2011, Alvarado was notified by phone that he had
been fired. His supervisor explained that Alvarado had been “stirring up racial
things, and . . . was stirring up too much trouble there at the power plant.”
ROA.194.
      On June 13, two weeks after he was terminated, Alvarado filed a timely
charge of retaliation with the EEOC alleging he was fired shortly after he
“complained to management about an offensive noose [that] other employees
also were offended by.”         ROA.395.        On the second anniversary of the


      1 This recitation of events is based on the evidence presented at summary judgment,
primarily Alvarado’s deposition. Disputed facts are construed in Alvarado’s favor given the
summary judgment posture.
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                                        No. 14-50668
administrative filing (June 13, 2013), without the EEOC’s having taken any
action, Alvarado’s counsel requested a right to sue letter. Consistent with the
requirement that the EEOC issue such a letter in response to a request if more
than 180 days have elapsed without completion of the agency investigation, 2
the EEOC issued a letter the next day.
      Although the letter dated June 14 correctly listed Alvarado’s name,
address, and the EEOC charge number, it contained numerous mistakes and
omissions. First, although more than 180 days had elapsed since Alvarado
filed his charge with the EEOC, the letter stated that “[l]ess than 180 days
have passed since the filing of this charge, but I have determined that it is
unlikely that the EEOC will be able to complete its administrative processing
within 180 days from the filing of this charge.” ROA.267. Second, although
Alvarado only alleged violations of Title VII, the letter checked a box
pertaining to the Age Discrimination in Employment Act stating that the
EEOC was closing Alvarado’s case and that his “lawsuit under the ADEA must
be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice.
Otherwise your right to sue based on the above-numbered charge will be lost.”
ROA.267. Finally, although there are lines for a named official’s signature and
the date, both were left blank.
      The same day this letter issued, the office administrator employed by
Alvarado’s attorney emailed the EEOC to notify it of the mistakes and request
a corrected letter. The EEOC investigator then called the office administrator
and explained that the June 14 letter “was accidentally sent due to a clerical
error by a new EEOC clerk” and that a “correct and executed Notice of Right
to Sue would be issued.” ROA.398. The law office again contacted the EEOC
by email on June 26 to inquire about the status of the revised letter. On July


      2   See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28(a)(1).
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8, the EEOC issued a corrected letter that listed only Alvarado’s claim under
Title VII, detailed that more than 180 days had passed since the charge had
been filed, and stated that the EEOC was terminating its processing of the
charge. It was signed by Lillie Wilson for Janet V. Elizondo, the EEOC District
Director. An entry in the EEOC case log dated July 8 notes “mailed out correct
copy w/ signature” and also indicates Alvarado’s case was “closed” on that date.
      On October 2, 2013, Alvarado filed his lawsuit alleging retaliation.
Given the 90-day deadline for filing Title VII suits after the right to sue letter
issues, 3 the suit was timely if the “correct” July 8 letter started the clock
running, but twenty days late if the June 14 letter did. Mine Service moved
for summary judgment on limitations grounds, arguing that the earlier letter
started the 90-day period. The district court agreed based on its finding that
the June 14 letter “include[d] everything that is required [under the
regulations].” ROA.412. In doing so, the district court held that the office
administrator’s statement about what the EEOC investigator said over the
phone was hearsay that could not be used to show that the EEOC issued the
first letter in error. The district court then sua sponte considered but rejected
the possibility of equitable tolling, concluding that the EEOC did not “mislead[]
the plaintiff about his rights” because the first right to sue letter was facially
valid. ROA.415. Alvarado timely appealed.
                                                II
      Alvarado first argues that the district court improperly concluded that
the June letter commenced the limitations period. He relies on the EEOC case
log indicating that the later July letter was the “correct” one and cites the
numerous errors contained in the June letter, emphasizing the lack of any
signature. We are more concerned with the false information in the June


      3   See 42 U.S.C. § 2000e-5(f)(1).
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                                 No. 14-50668
letter—that the EEOC checked the box for an ADEA claim that Alvarado did
not assert and the incorrect statement that the matter had been pending with
the agency for less than 180 days. Mine Service counters that the June 14
letter nonetheless triggered the limitations period because it contains the
information that is required by an EEOC regulation: authorization to file suit;
advice about how to bring a lawsuit; a copy of the charge; and the agency’s
decision. See 29 C.F.R. § 1601.28(e). That regulation does not, however,
address how inaccurate information affects the legal status of a right to sue
letter. It seems that at some point—consider situations in which the right to
sue letter lists the incorrect claimant’s name or fails to check the box for the
claim the party brought—defects in a letter might render it ineffective.
      But we need not resolve the difficult issue of whether the defects in the
June 14 letter rise to that level. Even assuming the district court correctly
held that limitations began running upon issuance of the first letter, we
conclude that equitable tolling is warranted.
      The statutory 90-day filing requirement “is not a jurisdictional
prerequisite, but more akin to a statute of limitations. Thus, the ninety-day
filing requirement is subject to equitable tolling.” Harris v. Boyd Tunica, Inc.,
628 F.3d 237, 239 (5th Cir. 2010) (internal citations omitted).        We have
previously outlined three nonexclusive situations when equitable tolling may
be appropriate: “(1) the pendency of a suit between the same parties in the
wrong forum; (2) plaintiff’s unawareness of the facts giving rise to the claim
because of the defendant’s intentional concealment of them; and (3) the
EEOC’s misleading the plaintiff about the nature of her rights.” Granger v.
Aaron’s Inc., 636 F.3d 708, 712 (5th Cir. 2011) (citing Wilson v. Sec’y Dep’t of
Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995)). We review a tolling decision




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                                       No. 14-50668
under the deferential abuse of discretion standard. 4 See id. “A trial court
abuses its discretion when it bases its decision on an erroneous view of the law
or a clearly erroneous assessment of the evidence.” Phillips v. Leggett & Platt,
Inc., 658 F.3d 452, 457 (5th Cir. 2011).
       The district court contemplated whether this case implicated the third
situation in which we have recognized that tolling may be appropriate—when
the EEOC misleads a plaintiff. Yet in doing so it evaluated only whether the
EEOC’s act of sending two letters misled Alvarado about the nature of his
rights. Following cases from other circuits finding tolling unnecessary when
the EEOC reissues a right to sue notice with some minor, nonsubstantive
revisions, it concluded that this was not a situation in which the EEOC had
misled Alvarado about which letter triggered the 90-day deadline for filing
suit. See Santini v. Cleveland Clinic Fla., 232 F.3d 823 (11th Cir. 2000); Love
v. Harsh Inv. Corp., 983 F.2d 1076, 1993 WL 4811 (9th Cir. 1993)
(unpublished); Brown v. Mead Corp., 646 F.2d 1163 (6th Cir. 1981). 5
       An erroneous evidentiary ruling infected that determination. Recall that
when it considered the issue of which letter commenced the limitations period,
the district court excluded as hearsay the statement from the law firm office
administrator that the EEOC told her the first letter was “accidental[]” and
the “correct” letter would be forthcoming. See ROA.398. That evidentiary
ruling was correct in that context. To consider the EEOC investigator’s out-of-


       4  Alvarado contends that the standard of review should be de novo. But we review de
novo only a district court’s determination that tolling “was legally unavailable due to the
court’s interpretation of a statute, regulation, or caselaw.” See id. (emphasis added). The
district court recognized that the limitations period for filing a Title VII case may be tolled,
but concluded that tolling was not justified under “the facts in this case.” ROA.413. Our
review is therefore for abuse of discretion.
        5 The district court also cited other cases parenthetically. See Howard v. Boatmen’s

Nat’l Bank of St. Louis, 230 F.3d 1363 (8th Cir. 2000) (unpublished); Witt v. Roadway
Express, 136 F.3d 1424 (10th Cir. 1998); Lee v. Alta Pac. Grp., 990 F.2d 1258 (9th Cir. 1993)
(unpublished); Davidson v. Serv. Corp. Int’l, 943 F. Supp. 734 (S.D. Tex. 1996).
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                                        No. 14-50668
court statement in deciding which letter was the “correct” one would be using
the statement for the truth of the matter it asserts—that the July letter was,
in the eyes of the EEOC, the valid one. See Fed. R. Evid. 801(c). But for
purposes of the tolling analysis, what matters is not which EEOC letter is
legally speaking the correct one, but the effect the EEOC’s statements had on
how Alvarado and his attorney decided to proceed with the case. Considering
a statement not for its truth but as an explanation of why the listener acted in
a certain manner is a hornbook example of nonhearsay. See 6 Michael H.
Graham, Handbook of Fed. Evid. § 801:5 (7th ed. 2014) (explaining that
“statements made by one person which become known to another offered as a
circumstance under which the latter acted and as bearing upon his conduct”
are not hearsay and collecting cases). And the office administrator’s statement
is corroborated by the EEOC log obtained later in this litigation that lists the
July 8 letter as the “correct” one and notes that the EEOC matter was not
closed until that second letter issued. 6 Moreover, the July EEOC letter advised
Alvarado that he could file suit “within 90 days of [his] receipt of this notice.”
See ROA.394 (emphasis added).




       6  Mine Service argues that the EEOC has no authority to issue a second letter unless
it is reconsidering an earlier decision, which requires notifying the parties that it is reopening
the case. See Santini, 232 F.3d at 825; Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 245–46 (5th Cir. 1980) (explaining that the EEOC may issue a second notice of right to
sue “upon completion of a discretionary reconsideration of a prior determination provided it
has given notice to both parties of its decision to reconsider within the ninety-day period
provided by the initial notice of right-to-sue”). The second letter in this case did not implicate
those reconsideration procedures. The EEOC case log states that it did not “close” Alvarado’s
case until it issued the “corrected” July 8 letter. There thus was no closed case to reopen
before that date. And in neither letter did the EEOC make a determination about Alvarado’s
case that could be “reconsidered” (given the agency delay, plaintiff’s counsel asked for the
right to sue letter before the EEOC reached a determination). In any event, to the extent
Mine Service is correct and the issuance of the second letter was in error, the EEOC’s
issuance of a letter it had no authority to issue would only bolster a finding that it misled
Alvarado concerning his rights.
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                                 No. 14-50668
      When the office administrator’s corroborated statement is considered for
its nonhearsay purpose, this case squarely falls into the third category in which
we have found tolling appropriate because the EEOC misled Alvarado about
when he had to file suit (assuming, as we have, that the first letter triggered
the limitations period). See Manning v. Chevron Chem. Co., LLC, 332 F.3d
874, 881 (5th Cir. 2003) (providing that EEOC’s misleading plaintiff about his
rights is potential basis for equitable tolling); Page v. U.S. Indus., Inc., 556
F.2d 346, 351 (5th Cir. 1977) (finding that “equitable considerations” allowed
plaintiff to pursue untimely action because EEOC letter indicating only that
conciliation efforts had failed but not that EEOC had decided not to sue was
“patently misleading”); see also Schlueter v. Anheuser-Busch, Inc., 132 F.3d
455, 458–59 (8th Cir. 1998) (equitably tolling plaintiff’s case when EEOC
misled plaintiff into believing she had filed a charge but had mistakenly
instructed her to fill out an intake questionnaire and also calculated the
expiration of the 300-day filing period based on an incorrect date); Browning
v. AT&T Paradyne, 120 F.3d 222, 227 (11th Cir. 1997) (tolling statute of
limitations when an EEOC investigator told plaintiff that incorrect statute of
limitations applied). The district court’s legal error in not considering the
nonhearsay purposes of the statement in determining if this case is suitable
for tolling thus qualifies as an abuse of discretion. See Wright v. Farouk Sys.,
Inc., 701 F.3d 907, 911 (11th Cir. 2012) (finding abuse of discretion when
district court erroneously excluded as hearsay admissions of party opponent);
United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004) (“Whether the
admission of objected-to [hearsay] evidence [of a statement against interest],
was proper is a mixed question of law and fact; the factual determinations are
reviewed for clear error and the legal issues are reviewed de novo.”); see also
Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by definition
abuses its discretion when it makes an error of law.”).
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      Once we identify a case as one involving a situation in which tolling may
be appropriate, the next step is to balance the equities. We consider whether
“the claimant has vigorously pursued his action,” see Rowe v. Sullivan, 967
F.2d 186, 192 (5th Cir. 1992), and has taken “some step recognized as
important by the statute before the end of the limitations period.” See Granger,
636 F.3d at 712 (quoting Perez v. United States, 167 F.3d 913, 918 (5th Cir.
1999)). If a plaintiff is represented, we determine whether his “attorney has
exercised due diligence in pursuing [the claimant’s] rights,” or if the situation
is simply the result of “attorney error or neglect.” See id. We also take into
account any demonstrated prejudice to the defendant. See Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (clarifying that absence of
prejudice is not an independent basis for invoking equitable tolling but rather
a factor to consider once it is determined that tolling might be appropriate).
Those equities strongly favor tolling in this case.
      This is not a case in which the attorney completely neglected deadlines
or was otherwise indolent. See Granger, 636 F.3d at 712 (“We are reluctant to
apply equitable tolling to situations of attorney error or neglect, because
parties are bound by the acts of their lawyer.”). From the beginning of the
sequence of events that led to this late filing, Alvarado’s attorney actively
sought to move the case forward. 7 He contacted the EEOC after two years of
agency inaction and requested a right to sue letter. When the EEOC sent the
error-laden notice the following day, Alvarado’s attorney’s office immediately
contacted the EEOC by email to notify it of the missing signature and date.
That desire to have an EEOC letter with all the t’s crossed and i’s dotted is a
sign of diligence rather than dawdling. See id. (“We are more forgiving, though,


      7  Alvarado was also diligent from the beginning, even before he hired an attorney.
Although there is a 180 day window in which to file a charge with the EEOC, Alvarado filed
his charge within 15 days of his termination.
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                                   No. 14-50668
when a claimant or her attorney has exercised due diligence in pursuing her
rights.”). Then, when more than a week had passed without a corrected notice,
Alvarado’s attorney again followed up with the EEOC by email. See id. at 713
(recognizing “attorney diligently and repeatedly followed up on [plaintiffs’]
claims”). Of course, Alvarado would not be in this predicament if his attorney
had filed suit within 90 days of the issuance of the original letter. There is
almost always going to be something more the attorney could have done any
time a suit is filed after the limitations period. But as we have explained, the
decision to file this case within 90 days from the date of what the EEOC termed
the “correct” letter was made in reasonable reliance on the EEOC’s guidance.
This is hardly a case of a plaintiff “sitting on his rights.”
      On the other side of the balance, we see no unfair prejudice to Mine
Service resulting from the additional 20 days Alvarado took to file his lawsuit
after the 90 days had elapsed since the first letter. See Baldwin Cnty., 466
U.S. at 152. The more than two-year delay before this case arrived in federal
court may well have caused prejudice to either side by weakening the
recollections of witnesses. But almost all of that time period is attributable to
the time the case was pending with the EEOC. The additional twenty days
attributable to any late filing of the suit represents just over two percent of the
total number of days that elapsed from the filing of the EEOC charge to the
filing of this lawsuit. Both of the key equitable considerations—the plaintiff’s
exercise of diligence and any unfair prejudice to the defendant—thus strongly
favor tolling.
      Those equities also distinguish this case from the ones Mine Service
cites. Those cases involved either a dilatory plaintiff or reissued EEOC letters
that, other than a signature or date, were substantively identical. Love v.
Harsh Investment Corp., an unpublished Ninth Circuit case upon which the
district court relied, had both. In that case, the EEOC first issued a right to
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                                  No. 14-50668
sue letter on October 5, 1989. 1993 WL 4811, at *1. Having never received the
letter due to an unreported change of address, the plaintiff requested not a
corrected notice but a copy of the original one, which he received on December
5, 1990. Love did not file his suit in federal court until April 1, 1991, almost
four months after receiving the December 5 notification. Id. at *2. After
finding that the unsigned, second letter was valid and properly notified the
plaintiff of his rights, the court declined to equitably toll the 90-day period
because the plaintiff did “not show[] due diligence or a basis to justify
invocation of the doctrine of equitable tolling.” Id. Similarly, in Santini v.
Cleveland Clinic Florida, the plaintiff received an undated right to sue notice
on February 2, 1998, but was reissued a dated copy that was otherwise
identical on March 2, 1998. 232 F.3d at 824. The plaintiff filed suit on May
29, 1998. Id. Noting that the second notice was merely a reissuance of the
first—identical other than the new date—the Eleventh Circuit held that the
first notice provided the plaintiff with “actual knowledge” of his rights,
negating any basis for equitably tolling the 90-day period. Id. at 825 (internal
citations omitted). Brown v. Mead Corp, in which the Sixth Circuit also refused
to equitably toll the 90-day period, provides the starkest contrast. See 646 F.2d
at 1164. In that case, the plaintiff took no action after she received a notice of
right to sue in December 1974, more than four years after she filed her initial
charge with the EEOC. Id. Three years later, the plaintiff received a second,
unsolicited notice notifying her that the first letter was the “product of
administrative error and should be disregarded”; only then did the plaintiff file
suit. Id. Understandably, there was no basis for tolling: the plaintiff did not
file suit after receiving the first notice—which appeared valid—and in fact
waited almost eight years from the date of her original EEOC charge before




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filing suit, leaving “the employer with reason to conclude that the matter was
resolved.” Id. at 1167–68. 8
       Lastly, we address Mine Service’s concern that plaintiffs will be
encouraged to search for minor technical or clerical errors in right to sue letters
in order to excuse late filings. But plaintiff’s counsel asked the EEOC to correct
the errors, which were not technical ones, immediately upon receiving the
letter, not after facing a motion to dismiss for filing an untimely lawsuit. Our
view of the equities would be much different in a case in which plaintiff’s
counsel requested a corrected letter post-lawsuit after realizing he was facing
a limitations problem.
                                             III
       Because the district court’s decision not to toll stemmed from the legal
error of failing to consider the EEOC’s statements on which Alvarado’s counsel
relied for their nonhearsay purpose, we conclude that the district court abused
its discretion when it failed to toll the 90-day limitations period. We therefore
REVERSE the judgment of the district court and REMAND for further
proceedings.




       8  The other circuit cases the district court relied on to deny equitable tolling are
similarly distinguishable. See, e.g., Witt v. Roadway Express, 136 F.3d 1424, 1430 (10th Cir.
1998) (applying Tenth Circuit law, which tolls a Title VII time limit “only if there has been
active deception of the claimant regarding procedural requirements,” which was not the case
when the allegedly misleading letter from the Kansas Human Rights Commission was
completely accurate (emphasis in original)); Simmons v. Ill. Dept. of Mental Health and Dev.
Disabilities, 74 F.3d 1242, at *2–3 (7th Cir. 1996) (unpublished) (declining to toll when,
applying “fault” approach focusing on “whether the delay in bringing suit was the ‘fault’ of
the claimant,” the plaintiff’s failure to provide the EEOC with a proper address caused her
first notice to be returned to sender and the suit was filed beyond the 90-day period even if
tolled); Lee v. Alta Pac. Grp., 990 F.2d 1258, at *1–2 (9th Cir. 1993) (unpublished) (declining
to equitably toll 90-day period when plaintiff received two identical letters on two different
dates—March 20, 1991 and April 5, 1991—because the second letter did not rescind the first).
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