                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2005

Hammer v. Cardio Med Prod Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2723




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                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                    No. 02-2723
                                 ________________

                                NANCY HAMMER,

                                                Appellant

                                          v.

                CARDIO MEDICAL PRODUCTS, INCORPORATED

                                 ________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                              (D.C. Civ. No. 01-cv-00564)
                    District Judge: Honorable William L. Standish
                                  ________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 10, 2005

             Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                (Filed: May 18, 2005 )

                                 ________________

                                     OPINION
                                 ________________

PER CURIAM

      Nancy Hammer was employed as a sales representative by Cardio Medical

Products, Inc. (“Cardio Medical”) until her employment was terminated on March 22,
1999. On October 24, 2000, Hammer filed a charge of sex and age discrimination with

the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued Hammer

a Dismissal and Notice of Rights, notifying her: “Your charge was not timely filed with

the Commission, i.e., you waited too long after the date(s) of the discrimination you

alleged to file your charge.”

       On March 26, 2001, Hammer filed the underlying pro se complaint in the United

States District Court for the Western District of Pennsylvania pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). Cardio Medical

responded to the complaint by filing a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6). In its motion to dismiss, Cardio Medical argued that Hammer had failed to

timely exhaust her administrative remedies and that she was not entitled to equitable

tolling of the 300-day limitations period. The Magistrate Judge assigned to the case

agreed and recommended that the motion to dismiss be granted. Hammer filed untimely

objections to the report and recommendation, which were stricken by the Magistrate

Judge on May 22, 2002. On May 31, 2002, the District Court adopted the report and

recommendation and dismissed Hammer’s complaint. Hammer then filed a “notice of

appeal” to the District Court from the Magistrate Judge’s May 22, 2002 order, which was

denied by the District Court on June 6, 2002. Hammer timely appealed the May 31 and

June 6 orders of the District Court.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of

                                             2
review of the District Court’s dismissal under Rule 12(b)(6) is plenary. See Gallo v. City

of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). “We must determine whether, under

any reasonable reading of the pleadings, the plaintiff[] may be entitled to relief, and we

must accept as true the factual allegations in the complaint and all reasonable inferences

that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

       In a deferral state, such as Pennsylvania, a plaintiff is required to file a Title VII or

ADEA charge of discrimination with the EEOC within 300 days of the alleged unlawful

employment practice. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2); see also

Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). There is no dispute

that Hammer failed to file her charge with the EEOC within this time frame. The record

shows that Hammer was fired by Cardio Medical on March 22, 1999. Hammer did not

file her charge with the EEOC until October 24, 2000, 581 days after the limitations

period had started. Consequently, Hammer’s charge was clearly untimely.

       It is well-established, however, that a timely charge of discrimination with the

EEOC is not a jurisdictional prerequisite to filing suit under Title VII or the ADEA.

Rather, it is a requirement more in the nature of a statute of limitations which is subject to

equitable tolling. See Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997); see

also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1392 (3d Cir. 1994).

Equitable tolling may be appropriate where a plaintiff has “been prevented from filing in

a timely manner due to sufficiently inequitable circumstances.” Seitzinger v. Reading

Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). Likewise, equitable tolling may

                                               3
apply “where the employer’s own acts or omissions have lulled the plaintiff into

foregoing prompt attempts to vindicate [her] rights.” Bonham v. Dresser Indus., Inc., 569

F.2d 187, 193 (3d Cir. 1977); see also Oshiver, 38 F.3d at 1388 (noting that “the

fundamental rule of equity that a party should not be permitted to profit from its own

wrongdoing” is the “basic principle” underlying the equitable tolling doctrine). Hammer

bears the burden of proving that the equitable tolling doctrine applies. See Courtney, 124

F.3d at 505.

       Anticipating that the District Court would conclude that her EEOC charge was

untimely, Hammer asserted two grounds for equitable tolling in her complaint. First,

Hammer alleged that she was entitled to equitable tolling because, after she was fired,

four of her loved ones passed away unexpectedly. We agree with the District Court that,

while the events alleged by Hammer are tragic, they do not justify tolling the 300-day

limitations period, particularly where Hammer did not file her charge until 281 days after

the limitations period had expired. See, e.g., Robinson v. Dalton, 107 F.3d 1018, 1023

(3d Cir. 1997). Second, Hammer alleged that equitable tolling was appropriate because

Cardio Medical failed to post any information concerning her statutory rights under Title

VII or the ADEA. The District Court rejected this argument, concluding that “even if”

Cardio Medical had “failed to post notices in its offices concerning employees’ rights

under Title VII and the ADEA,” it could not equitably toll the 300-day limitations period.

       Employers are required to post in “conspicuous places” notices of fair employment

practices, including descriptions of pertinent provisions of Title VII and the ADEA. 42

                                             4
U.S.C. § 2000e-10(a) and 29 U.S.C. § 627. We have stated that equitable tolling may

apply if the plaintiff can demonstrate “excusable ignorance” of her statutory rights,

where, for instance, her employer has failed to post the required notices. Kale v.

Combined Ins. Co., 861 F.2d 746, 752-53 (1st Cir. 1988). This is a fact-intensive test

involving several “equitable factors.” Id. Here, Hammer has averred that she was

unaware of her rights until July 29, 2000 when she first obtained knowledge of these

rights from a friend. Thus, she asserts the failure to post as a ground for tolling and,

accordingly, the District Court should give her the opportunity to demonstrate the

existence of these factors. Bonham v. Dresser Indus. Inc., 569 F.2d 187, 193 (3d Cir.

1977).

         Accordingly, we will vacate the District Court’s May 31, 2002 order, and remand

this matter to the District Court for further proceedings consistent with this opinion and

Bonham.1




         1
        Because a remand is necessary, we need not consider whether the District Court
abused its discretion in denying Hammer’s “notice of appeal” from the Magistrate
Judge’s May 22, 2002 report and recommendation.

                                              5
