                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-19-1999

Seitzinger v. Reading Hospital
Precedential or Non-Precedential:

Docket 97-1698




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Filed January 15, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-1698

SHARYN L. SEITZINGER,
       Appellant

v.

THE READING HOSPITAL AND
MEDICAL CENTER

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 95-cv-05926)
District Judge: Honorable E. Mac Troutman

Argued: November 16, 1998

Before: BECKER, Chief Judge, GREENBERG, Circuit Judges
and McLAUGHLIN, District Judge.*

(Filed January 15, 1999)



_________________________________________________________________

*Honorable Sean J. McLaughlin, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
       STEPHEN M. LATIMER, ESQUIRE
        (ARGUED)
       LUCILLE M. ROSANO, ESQUIRE

       Loughlin & Latimer
       131 Main Street
       Suite 235
       Hackensack, NJ 07601

       Counsel for Appellant

       VINCENT CANDIELLO, ESQUIRE
        (ARGUED)
       Morgan, Lewis & Bockius LLP
       One Commerce Square
       417 Walnut Street
       Harrisburg, PA 17101

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal by plaintiff Sharyn Seitzinger in a Title VII
case alleging gender and age discrimination by her former
employer, defendant Reading Hospital and Medical Center,
requires us to decide when the circumstances surrounding
an attorney's misconduct are sufficient to merit equitable
tolling of the statute of limitations. The appeal perforce
centers on the timeliness of the complaint. The District
Court granted summary judgment for the Hospital,
believing the complaint to be time-barred under 42 U.S.C.
S 2000e-5(f)(1) because it was not filed within ninety days of
the receipt of the EEOC's right-to-sue letter. The Court
rejected Seitzinger's fall-back position that the time
deadline should have been extended under the doctrine of
equitable tolling because of the defalcations of her lawyer,
who missed the filing deadline, albeit only by one day.

We agree with the district court's basic timeliness
determination and affirm on that point. However, we

                               2
disagree on equitable tolling. The district court proceeded
on the theory that an attorney's delinquency is chargeable
to the client and, at all events, is not a basis for equitable
tolling. This is generally true, consistent with the rule that
equitable tolling is to be used sparingly, particularly in the
context of attorney default. However, where -- as here --
the allegation is that a diligent client persistently
questioned the lawyer as to whether he had filed the
complaint in time, and he affirmatively misrepresented to
her that he had, we think there is a sufficient claim of
attorney abandonment to bring the case within the narrow
line of cases in which lawyer misconduct justifies equitable
tolling.

Because the District Court erroneously thought that
equitable tolling could not be justified here, we will reverse.
Because the equitable tolling determination turns on a
weighing and balancing of factors, including the extent of
attorney misconduct, the diligence of the client, and
prejudice to the defendant, we think it preferable to offer
the District Court the opportunity to exercise its discretion
and make the tolling determination in the first instance.
Hence, we will remand for further consideration.

I.

Seitzinger started work at Reading Hospital in 1984. In
May, 1993, she had an argument with her office manager
and was suspended. She later was given the option to
resign or be fired, and she opted to resign. A few months
later, she filed a complaint with the EEOC, alleging age and
gender discrimination. The EEOC concluded that there was
sufficient evidence of a gender discrimination claim. At this
point, Seitzinger retained an attorney named David Sloane
to help her with her case. However, after attempts at
reconciliation between Seitzinger and the Hospital failed,
the EEOC declined to transfer Seitzinger's case to its Legal
Unit and, in a letter dated May 30, 1995, notified Seitzinger
of its intention to issue to her, under separate cover, a
right-to-sue letter. The letter also stated that she could file
a lawsuit within ninety days of receiving the right-to-sue
letter.

                               3
On June 15, 1995, the EEOC sent the right-to-sue letter
to Seitzinger, Sloane, and Reading Hospital. The Hospital
received its copy of the right-to-sue letter on June 19.
Seitzinger does not know when she and Sloane received
their copies of the letter; she does not recall receiving her
letter, and Sloane had recently changed his address. The
first postmark on Sloane's letter was June 15, and the
second postmark, on the "change of address" label, was
June 17. Soon after receiving the letter, Seitzinger decided
to bring a Title VII suit against the Hospital. On July 2,
1995, Sloane wrote to Seitzinger, advising her that he was
in the process of drafting the complaint. Seitzinger called
Sloane in early September to make sure that he hadfiled
the complaint on time. Sloane assured Seitzinger that he
had done so. However, Sloane did not actually file the
complaint until September 19, 1995.

On June 7, 1996, the District Court dismissed
Seitzinger's complaint without prejudice for failure to serve
Reading Hospital with the complaint. At some point that
spring, Sloane told Seitzinger, who had repeatedly called
him to ask for a copy of the complaint and to inquire about
the status of her case, that he was giving up his law
practice. In fact, Sloane had been suspended from the
practice of law in October 1995. After picking up her file
from Sloane, Seitzinger called the Clerk of the District
Court to check on the status of her case and was told that
her complaint had been dismissed.

On September 22, 1996, Seitzinger moved to vacate the
dismissal because her attorney had failed to serve the
complaint and had been disbarred in July 1996. Although
the District Court granted her motion to vacate, and
Seitzinger timely served the Hospital with a notice of the
complaint, the District Court subsequently granted the
Hospital's motion for summary judgment on the ground
that the complaint was not timely filed. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.
S 1291. Our review of the district court's grant of the
Hospital's motion for summary judgment is plenary, see
Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.
1990), and we must construe the facts in the light most
favorable to the non-moving party, see Gallo v. City of
Philadelphia, 161 F.3d 217, 219 (3d Cir. 1998).

                               4
II.

We must initially decide whether Seitzinger has
introduced sufficient evidence to identify the date on which
she or Sloane received the EEOC's right-to-sue letter, for it
is from that date that we determine whether Seitzinger's
complaint was timely filed in federal court. If Seitzinger has
failed to do so, we will apply the Federal Rules'
presumption that a party receives a document three days
after it was mailed, see Fed. R. Civ. P. 6(e), in which case
we would begin to count from June 18, 1995, and
Seitzinger's complaint would not be timely. Even if she has
produced some evidence that we should begin to count
from June 19, we conclude that there is still no genuine
issue of material fact bearing on timeliness because the
ninety-day period still expired before she filed her claim.1

42 U.S.C. S 2000e-5(f)(1) provides that if the EEOC takes
no action on a complaint within a specified period of time,
the agency "shall so notify the person aggrieved and within
ninety days after the giving of such notice a civil action may
be brought . . . ." Id. We have construed this provision to
mean that the time for the filing of a complaint begins to
run when the plaintiff has notice of the EEOC's decision,
which usually occurs on the date he receives a right-to-sue
letter from the agency. See Mosel v. Hills Dep't Store, Inc.,
789 F.2d 251, 252 (3d Cir. 1986). The EEOC's right-to-sue
letter also informs the claimant that he or she has ninety
days after receipt in which to file suit. See id. at 252-53.
Therefore, the date on which Seitzinger received the letter
becomes critical.

When the actual date of receipt is known, that date
controls. Dixon v. Digital Equip. Corp., 1992 WL 245867, *1
(4th Cir. Sept. 30, 1992) (unpublished disposition); Peete v.
American Standard Graphic, 885 F.2d 331 (6th Cir. 1989).
_________________________________________________________________

1. The statutorily-created ninety-day period starts when either the
claimant or her attorney receives a right-to-sue letter, whichever is
earlier. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92-93
(1990) (notice is received when the EEOC delivers its letter to a claimant
or the claimant's attorney). Because we conclude that Seitzinger received
the letter no later than June 19, the date on which her attorney received
his letter is irrelevant.

                               5
However, in the absence of other evidence, courts will
presume that a plaintiff received her right-to-sue letter
three days after the EEOC mailed it. See Fed. R. Civ. P.
Rule 6(e); Mosel, 789 F.2d at 253 n.2 (stating that the
Supreme Court has suggested that Rule 6(e) applies when
parties dispute the date of receipt). Rule 6(e)'s three-day
presumption attempts to ensure that the plaintiff has the
benefit of the full ninety-day period when the date of actual
receipt is unknown.

Seitzinger states that she does not recall receiving a
right-to-sue letter directly from the EEOC. Nevertheless, the
right-to-sue letter was addressed to her at the address at
which she has received information from the EEOC since
this action began. Seitzinger offers only one piece of
evidence to suggest that she may have received her letter
after June 18: the Hospital received its copy of the letter on
June 19. While this evidence may not be of sufficient
weight to rebut Rule 6(e)'s presumption, we need not decide
this issue: even if we were to assume that the date the
Hospital received its copy of the right-to-sue letter was the
date on which Seitzinger received hers, she still failed to file
her complaint within ninety days of June 19. Ninety days
from June 19 is September 17. Since September 17 was a
Sunday, Seitzinger had until September 18 to file her
complaint. Because she, through her attorney, did not file
the complaint until September 19, she failed to meet the
EEOC's ninety-day filing period.

III.

Anticipating that the District Court might conclude that
her complaint was not timely, Seitzinger asked the District
Court to equitably toll the ninety-day period so that her
suit would be deemed timely filed. The Court refused to do
so, concluding that dereliction of counsel was an
insufficient reason to invoke equitable tolling. The law is
clear that courts must be sparing in their use of equitable
tolling. There are, however, narrow circumstances in which
the misbehavior of an attorney may merit such equitable
relief. See, e.g., Cantrell v. Knoxville Community Dev. Corp.,
60 F.3d 1177, 1180 (6th Cir. 1995) (equitable tolling may
be appropriate where attorney has abandoned client).

                               6
As a preliminary matter, we note that it is settled that the
ninety-day time limit in which a plaintiff mustfile a Title
VII action is akin to a statute of limitations rather than a
jurisdictional bar. Therefore, the time limit is subject to
tolling. See, e.g., Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982) (holding that time limits in Title VII
are not jurisdictional but are instead like statutes of
limitations); Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1387 (3d Cir. 1994) (stating that time limits
set forth in Title VII are analogous to statutes of limitations
and are subject to equitable modifications).

Under equitable tolling, plaintiffs may sue after the
statutory time period for filing a complaint has expired if
they have been prevented from filing in a timely manner
due to sufficiently inequitable circumstances. Ellis v.
General Motors Acceptance Corp., 160 F.3d 703, 706 (11th
Cir. 1998); Naton v. Bank of California, 649 F.2d 691, 696
(9th Cir. 1981); Mathews v. Little, Civ. A. No. 92-CV-1114,
1992 WL 192542, *2 (E.D. Pa. July 31, 1992). The caselaw
is instructive. The Supreme Court has held that equitable
tolling may be appropriate when a claimant received
inadequate notice of her right to file suit, where a motion
for appointment of counsel is pending, or where the court
has misled the plaintiff into believing that she had done
everything required of her. See Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 151 (1984). In United States v.
Midgley, 142 F.3d 174 (3d Cir. 1998), we expressed a
willingness to invoke equitable tolling in a number of other
circumstances: when the defendant has actively misled the
plaintiff; when the plaintiff "in some extraordinary way" was
prevented from asserting her rights; or when the plaintiff
timely asserted her rights in the wrong forum. See id. at
179; Oshiver, 38 F.3d at 1387. See also Miller v. New
Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d
Cir. 1998) (equitable tolling is an appropriate remedy when
principles of equity would make a rigid application of the
statute of limitations unfair); Shendock v. Office of Workers'
Compensation Programs, 893 F.2d 1458, 1462 (3d Cir.
1990) (same).

Although the Supreme Court has repeatedly recognized
the equitable tolling doctrine, it also has cautioned that

                                7
"[p]rocedural requirements established by Congress for
gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for
particular litigants." Baldwin, 466 U.S. at 152. We too have
exercised caution in using the doctrine. In Mosel, we
emphasized the importance of adhering to the EEOC's
ninety-day filing period, holding that "in the absence of a
recognized equitable consideration, the court cannot extend
the limitations period by even one day." 789 F.2d at 253
(citations omitted). We therefore approach the doctrine
warily, so as to guard against possible misuse.

Seitzinger alleges that the facts of her case fit into
Midgley's second category: namely, that this is an
"extraordinary" case where she was prevented from timely
asserting her rights because of gross attorney error. The
usual rule is that attorney errors will be attributed to their
clients. See United States v. Boyle, 469 U.S. 241, 252
(1985) (client may be penalized for counsel's tardy filing of
tax return); Link v. Wabash, 370 U.S. 626, 633 (1962)
(client must suffer the consequence of dismissal of his
lawsuit where his attorney failed to attend pretrial
conference).

Nonetheless, some courts have found it appropriate to
toll the statute of limitations in cases of attorney mistake.
See, e.g., Cantrell, 60 F.3d at 1180 (holding that where
client was abandoned by attorney due to attorney's mental
illness, equitable tolling may be appropriate). In Burton v.
United States Postal Serv., 612 F. Supp. 1057, 1059 (N.D.
Ohio 1985), the court applied equitable tolling to the
plaintiff's claim because his attorney "irresponsibly
abandoned his client and the case and left town." Finding
that the plaintiff had been diligent in pursuing his claim,
that the defendant's interest in prompt notice of claims
against it had not been substantially damaged by the delay,
and that to penalize the plaintiff in this case would defeat
the remedial purpose of Title VII, the court tolled the
EEOC's filing deadline. Id. Likewise, in Volk v. Multi-Media,
Inc., 516 F. Supp. 157, 161-62 (S.D. Ohio 1981), the
plaintiff's attorney failed to timely inform the Department of
Labor that his client intended to sue his former employer
under the Age Discrimination in Employment Act. The

                               8
court took into account the fact that the plaintiff's attorney
was inept and sloppy, that the defendant suffered no
prejudice, and that the plaintiff was diligent infinding out
about the ADEA and hiring an attorney. The court
concluded that it was unwilling to visit the errors of that
lawyer on his client. Id. at 162.

In the context of a Title VII claim, the Supreme Court has
warned, "[T]he principles of equitable tolling . . . do not
extend to what is at best a garden variety claim of
excusable neglect" by an attorney. Irwin, 498 U.S. at 96. In
Irwin, the plaintiff's lawyer was out of the country when the
right-to-sue letter was delivered to his office. Although the
statute of limitations in that case was thirty days, the
lawyer filed suit forty-four days later, albeit only twenty-
nine days after his client received his copy of the letter.
Since the lawyer's only excuse was his absence from the
office, the Court refused to apply equitable tolling. See id.
We therefore must decide whether Sloane's behavior, as
reflected by the present record, is of a type that goes
beyond garden variety neglect.

We conclude that it is. Sloane's level of misbehavior went
well beyond the garden variety, because Sloane
affirmatively lied to his client. When she called Sloane in
early September to check on the status of the complaint,
Sloane assured her that he had filed it, when in fact he had
not. In addition, he promised her a number of times that he
would send or had sent her a copy of the complaint, yet he
never did. We agree with the Hospital that the mere fact
that counsel failed to file the complaint in a timely manner
probably constitutes garden variety neglect. But his
affirmative misrepresentations to his client about the very
filing at issue here rise above that standard. The Supreme
Court's declaration in Irwin that garden variety attorney
neglect is an insufficient reason to invoke equitable tolling
therefore does not control the outcome in this case.

We conclude that Seitzinger has adduced facts sufficient
to overcome summary judgment on the equitable tolling
issue. First (and importantly), Seitzinger appears to have
been extremely diligent in pursuing her claim. See Irwin,
498 U.S. at 96 (implying that the Court has been more
forgiving of late filings where claimant exercised due

                                9
diligence in preserving his rights); New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997)
(stating that to invoke equitable tolling, a party must show
that it exercised reasonable diligence in investigating and
bringing its claims). She hired an attorney to help her file
her civil complaint. She contacted him before thefiling
deadline, which she knew about in broad terms, to ensure
that he had filed the complaint. In addition, she repeatedly
called him, requesting a copy of the complaint and seeking
information on how her case was progressing.2 We think
that these examples of her consistent assiduousness, if
true, would weigh heavily in favor of equitable tolling.

In addition to Seitzinger's diligence as a client, it is
important to consider whether she had actual or
constructive notice of the filing requirement, and whether
her lack of knowledge was reasonable. It appears from the
facts before us that she lacked notice of the exact date on
which her complaint had to be filed, although she had a
general idea that her complaint had to be filed towards the
end of September. It may be that her lack of knowledge of
the specific filing date was not reasonable, since she
received the EEOC's letter, but then again her putative
knowledge may have been eroded by her attorney's
misrepresentations. Moreover, the defendants have
proffered no evidence of prejudice as a result of the one- or
two-day delay in filing. Although courts may not rely on
lack of prejudice as a determinative factor, once a factor
that might justify equitable tolling is identified, prejudice is
a factor to be considered. See Baldwin, 466 U.S. at 152.

Given this welter of material, countervailing factors, we
believe that the District Court was mistaken in concluding
that Seitzinger has not presented material issues of fact
such that a reasonable factfinder could conclude that her
diligence, coupled with her attorney's direct lies about
_________________________________________________________________

2. We note that she continued to be diligent after she learned that her
attorney had effectively abandoned her. She picked up her files from him
and contacted the District Court to check on the status of her case. She
consulted with ten to fifteen attorneys, trying to determine whether there
was a way to get her case reinstated by the Court. Finally, she moved
(successfully) for the District Court to vacate the dismissal of her case.

                               10
whether he had filed her complaint and an absence of
prejudice to the defendant, created a situation appropriate
for tolling. We must therefore reverse the grant of summary
judgment. However, since the sensitive decision as to
whether to equitably toll the time limit involves weighing
and balancing (and possibly further factual development),
we will leave the decision of whether to apply equitable
tolling to the discretion of the District Court in the first
instance. The judgment of the District Court will be
reversed and the case remanded for further proceedings
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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