                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1737
                         ___________________________

                                  Porfirio Rodriguez

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                                Wal-Mart Stores, Inc.

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                            Submitted: February 13, 2018
                               Filed: June 11, 2018
                                  ____________

Before LOKEN, BENTON, and ERICKSON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

      On November 12, 2013, Wal-Mart Stores, Inc. (Walmart), terminated Porfirio
Rodriguez from his position as Senior Marketing Manager in Bentonville, Arkansas.
On June 30, 2014, Rodriguez filed a charge with the Equal Employment Opportunity
Commission (EEOC) alleging that Walmart violated the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101, et. seq., by discriminating and retaliating against
him due to his disability and refusing to reasonably accommodate his disability. After
receiving a right to sue letter from the EEOC, Rodriguez commenced this ADA action
in October 2016. The district court1 granted Walmart summary judgment because
Rodriguez failed to file a charge of discrimination with the EEOC within 180 days
of the alleged ADA violation, as the statute requires. 42 U.S.C. §§ 2000e-5(e)(1),
12117(a). Rodriguez appeals. He concedes his discrimination charge was untimely
but argues the district court erred in not concluding that Walmart is equitably
estopped to assert this statute of limitations defense because its pre-deadline
settlement discussions lulled Rodriguez into not filing a timely charge. Reviewing
the grant of summary judgment de novo, we affirm.2

        The governing legal principles are well established and undisputed. As each
wrongful act alleged in Rodriguez’s complaint occurred on or before November 12,
2013, when he was terminated, the 180-day period in which to file a charge with the
EEOC ended on May 12, 2014. See 42 U.S.C. § 2000e-5(e)(1); Henderson v. Ford
Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005). Thus, his charge, filed on June 30,
2014, was untimely. However, the statutory requirement to file a timely EEOC
charge is not jurisdictional; it is subject to equitable tolling and equitable estoppel.
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). This appeal concerns
equitable estoppel, which applies if “the employee’s failure to file in timely fashion
is the consequence of either a deliberate design by the employer or of actions that the
employer should unmistakably have understood would cause the employee to delay


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
      2
        It seems to be widely understood that equitable estoppel is an issue for the
court, not the jury. The standard of appellate review is seldom discussed, and the few
circuit decisions that address the issue are inconsistent. Compare O’Donnell v.
Vencor, Inc., 466 F.3d 1104, 1109 (9th Cir. 2006) (abuse of discretion), with Ramirez
v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (de novo). Our court has
apparently not addressed the question. As it has not been briefed and argued and
would not affect our decision, we leave it for another day.

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filing his charge.” Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir.
1995), quoting Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th
Cir.), cert. denied, 469 U.S. 1036 (1984). Equitable relief from a statute of limitations
“is an exception to the rule, and should therefore be used only in exceptional
circumstances.” Id. at 1330.

       Rodriguez argues that Walmart should be equitably estopped to assert that his
charge was untimely because it lured him into missing the deadline through the
settlement negotiations. In response to Walmart’s motion to dismiss, Rodriguez
submitted letters and emails reflecting the settlement negotiations at issue. The
district court converted the motion to dismiss to a motion for summary judgment, and
the parties stipulated that the letters and emails were the only evidence of their
negotiations. Thus, there are no issues of disputed fact on appeal. The issue is
whether these documents satisfy the strict requirements of equitable estoppel.

       By late March 2014, counsel for Rodriguez had notified Walmart that it had
violated the ADA through actions culminating in Rodriguez’s termination; Walmart
had disputed the allegations but expressed a willingness “to determine whether we
can resolve this dispute amicably.” The parties discussed the matter by phone. On
May 2, counsel for Rodriguez made a settlement demand, stating he intended to file
a charge with the EEOC and then sue if the matter could not be settled. Walmart did
not respond. Counsel for Rodriguez sent another letter on May 30, noting that
Walmart had stated in a May 23 phone call it would respond by May 30, and stating
that Rodriguez would “move forward with filing [the] charge” if Walmart did not
respond by June 4. On June 4, Walmart rejected Rodriguez’s settlement demand and
made a counteroffer. On June 30, Rodriguez filed a charge with the EEOC. On July
2, Rodriguez rejected Walmart’s counteroffer, made a counteroffer, and advised that
the EEOC charge had been filed. On July 16, Walmart responded that it had received
the EEOC charge and would prepare to defend against Rodriguez’s claims.



                                          -3-
      After summarizing these negotiations in even greater detail, the district court
granted Walmart summary judgment on the equitable estoppel issue:

              None of the letters in the record create a genuine, material
      question of fact as to the issue of equitable estoppel. The letters
      manifest only a general, good faith intent by Walmart to engage in
      settlement negotiations. Mr. Rodriguez’s counsel sent a demand letter
      ten days before the EEOC filing deadline and did not receive a response
      until after the deadline had passed. Under these facts, Walmart’s silence
      cannot be construed as anything but silence. Walmart made no promise
      to settle, nor did it encourage that settlement was imminent through its
      silence.

       We agree with the district court’s analysis. Rodriguez’s failure to file his
EEOC claim within 180 days was not the result of any misconduct by Walmart. As
Rodriguez’s counsel admitted during the district court hearing, “nothing [Walmart]
said per se” caused Rodriguez to miss the deadline. Rodriguez argues the pattern of
“delay in responding to any settlement demand that we made” was deceptive. But
failing to respond to a settlement demand made ten days before the statutory deadline,
and accompanied by a statement that the employee would file a charge with the
EEOC if the matter could not be settled, is not conduct that the employer “should
unmistakably have understood” would cause the employee to miss the filing deadline.
Dring, 58 F.3d at 1329. Thus, equitable estoppel does not apply, and summary
judgment was properly granted.

      The order of the district court is affirmed.
                      ______________________________




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