               Case: 15-11788       Date Filed: 07/18/2017      Page: 1 of 12


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-11788
                              ________________________

                       D.C. Docket No. 3:13-cv-00079-BJD-JRK



TYQUISHA M. STAMPER,

                                                                        Plaintiff-Appellant,
                                           versus

DUVAL COUNTY SCHOOL BOARD,

                                                                      Defendant-Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                             _______________________

                                      (July 18, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and
MOORE, * District Judge.

WILLIAM PRYOR, Circuit Judge:




*
 Honorable K. Michael Moore, United States District Chief Judge for the Southern District of
Florida, sitting by designation.
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      This appeal requires us to decide whether the Equal Employment

Opportunity Commission revived an employee’s claim of discrimination—

otherwise barred by the statute of limitations—when it vacated a two-year-old

dismissal of the employee’s administrative charge and the Department of Justice

issued the employee a new notice of the right to sue her employer. If the

Commission cannot, we must also decide whether the employee’s mental health

condition equitably tolled the limitations period for her claim of discrimination. In

2007, Tyquisha Stamper filed with the Commission a charge of race and disability

discrimination against her employer, the Duval County School Board, 42 U.S.C.

§§ 2000e-2, 12112. In 2009, the Commission dismissed Stamper’s charge and

provided her notice of her right to sue the Board within 90 days, but Stamper failed

to file suit within that period. In 2011, she filed a request for reconsideration with

the Commission, which then vacated the dismissal of her first charge. The

Department of Justice later granted Stamper’s request for a new notice of her right

to sue about the same allegations of discrimination, and she filed suit within 90

days of the second notice. But the district court dismissed Stamper’s complaint as

untimely because she failed to file it within 90 days of receiving the first notice of

her right to sue and failed to establish that she was entitled to equitable tolling of

the limitations period. Because the Commission lacked the authority to issue the




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second notice of the right to sue and Stamper failed to establish she was entitled to

equitable tolling, we affirm.

                                 I. BACKGROUND

      In 2007, Stamper filed with the Commission a charge of race and disability

discrimination against the Board. On February 26, 2009, the Commission

dismissed her charge because it could not “conclude that the information obtained

[in its investigation] establishe[d] violations of the statutes.” The Commission also

provided Stamper notice that she could file a lawsuit against the Board based on

the conduct alleged in her charge within 90 days of her receipt of the notice.

Stamper failed to file suit within that period.

      More than two years later, on July 19, 2011, Stamper filed a request for

reconsideration with the Commission. On December 15, 2011, the Commission

sent Stamper a “Notice of Revocation” that “vacate[d] th[e] dismissal [of

Stamper’s first charge] and revoke[d] the letter terminating processing of th[at]

charge.” The Commission stated that it issued the notice under a regulation that

permits the Commission to reconsider a decision to dismiss a charge. See 29 C.F.R.

§ 1601.19(b).

      Stamper then filed a second charge against the Board based on the same

allegations in her first charge, and she requested another notice of her right to sue,

which the Department of Justice sent her on November 5, 2012. The Department of



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Justice, instead of the Commission, issued the second notice of Stamper’s right to

sue based on a regulation that requires that the Attorney General issue the notice of

the right to sue when a party files a charge against a government, governmental

agency, or political subdivision and requests a notice of the right to sue. See 29

C.F.R. § 1601.28(d)(2). Whether the Commission or the Department of Justice

issued the second notice of the right to sue makes no difference in this appeal.

       On January 18, 2013, Stamper filed a pro se complaint against the Board

that alleged that it had discriminated against her on the basis of race and disability

in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and

Title I of the Americans with Disabilities Act, id. § 12111, et seq., and caused her

to develop catatonic schizophrenia. The Board moved to dismiss the complaint as

untimely because Stamper failed to sue within 90 days of receiving the first notice

of her right to sue. The district court agreed that Stamper’s complaint was

untimely, but denied the motion to dismiss without prejudice to permit limited

discovery about whether equitable tolling was warranted. After discovery, the

district court granted summary judgment in favor of the Board. It found that

Stamper could have pursued her lawsuit within the original 90-day period, and

even if she could not have done so, she failed to justify her more than three-year

delay in filing suit.




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                          II. STANDARD OF REVIEW

      “This Court reviews de novo summary judgment rulings and draws all

inferences and reviews all evidence in the light most favorable to the non-moving

party.” Craig v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011) (quoting Moton

v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that Stamper’s

complaint is untimely because the second notice of her right to sue—issued after

her original limitations period expired—failed to revive the limitations period.

Second, we explain that Stamper failed to establish that she is entitled to equitable

tolling based on her psychiatric condition.

                        A. Stamper’s Complaint Is Untimely.
      An employee must exhaust administrative remedies before filing a complaint

of discrimination under Title VII of the Civil Rights Act and Title I of the

Americans with Disabilities Act. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317

(11th Cir. 2001) (Title VII); see Maynard v. Pneumatic Prods. Corp., 256 F.3d

1259, 1262 (11th Cir. 2001) (Americans with Disabilities Act). “The first step

down th[e] path [to exhaustion] is filing a timely charge of discrimination with the

[Commission].” Wilkerson, 270 F.3d at 1317. If the Commission determines after

an investigation “that there is not reasonable cause to believe that the charge is



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true, it shall dismiss the charge and promptly notify” the employee. 42 U.S.C.

§ 2000e-5(b). When the employee receives a notice of dismissal from the

Commission, she has 90 days to file a civil action against the employer. Id.

§ 2000e-5(f)(1).

      A regulation permits the Commission to reconsider a decision to dismiss a

charge, 29 C.F.R. § 1601.19(b), but the effect of that decision on the timing for

filing a civil action depends on when the Commission issues its notice of intent to

reconsider. If the Commission issues a notice of intent to reconsider “within 90

days of [the charging party’s] receipt of the final no cause determination,” then the

issuance of the notice “revoke[s] the charging party’s right to bring suit within 90

days” so long as the charging party has not yet filed suit and has not requested and

received a notice of her right to sue. Id. But “[i]f the 90 day suit period has

expired,” then “the notice of intent to reconsider . . . shall not revoke the charging

party’s right to sue in 90 days.” Id. When, after reconsideration, the Commission

issues a new determination, only “[i]n those circumstances where the charging

party’s right to bring suit in 90 days was revoked . . . shall [the determination]

include notice that a new 90 day suit period shall begin upon the charging party’s

receipt of the determination.” Id.

      The regulation makes clear that the Commission lacked the authority to

revive Stamper’s claim of discrimination; that is, neither the Commission nor the



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Department of Justice had the authority to issue Stamper a new notice of her right

to sue the Board. Stamper’s original notice of her right to sue was not revoked

when the Commission reconsidered dismissal of her administrative charge. The

regulation contemplates the issuance of a new notice of the right to sue only when

the original notice was revoked, which means that the regulation does not allow the

Department of Justice to issue a new notice of the right to sue when the original

notice was not revoked. See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 107 (2012) (“The expression of one thing implies the

exclusion of others . . . .”). When the Commission issued Stamper a notice of intent

to reconsider after her original limitations period for filing suit had expired, the

notice of intent to reconsider failed to revoke Stamper’s original notice of her right

to sue within 90 days.

      The regulation codified an equitable rule followed by our predecessor court

that the Commission could restart the running of the limitations period by issuing a

second notice of the right to sue only if the Commission issued a notice of intent to

reconsider before the expiration of the original limitations period. In Gonzalez v.

Firestone Tire & Rubber Co., the Fifth Circuit balanced two competing

considerations that concerned whether the Commission had the authority to issue a

second notice of the right to sue. 610 F.2d 241, 246 (5th Cir. 1980). On the one

hand, the court explained that granting authority to the Commission to issue a



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second right to sue “would vitiate the limitation periods mandated by Congress in

favor of ad-hoc determinations by the [Commission].” See id. On the other, the

court considered the fairness of allowing reconsideration “prior to the expiration of

the period in which the plaintiff could permissibly file suit under the first right-to-

sue notice.” Id. Our predecessor court held that a notice of intent to reconsider

issued by the Commission had no effect on the running of the limitations period

unless issued before the expiration of that period. Id. Two of our sister circuits

adopted that reasoning, see Lute v. Singer Co., 678 F.2d 844, 846 (9th Cir. 1982)

(holding that the Commission has the authority to rescind a notice to sue only

when it “decides to reconsider and notifies all parties of its decision within 90 days

after it first issues a Notice of Right to Sue”); Trujillo v. Gen. Elec. Co., 621 F.2d

1084, 1086–87 (10th Cir. 1980) (same).

      A decision of the District of Columbia Circuit, issued after the Commission

codified section 1601.19(b) and authored by then-Judge Ruth Bader Ginsburg, also

supports our interpretation. Dougherty v. Barry involved a group of firemen who

filed a charge of racial discrimination. 869 F.2d 605, 606–07 (D.C. Cir. 1989).

More than 90 days after the Commission dismissed the charge and provided the

firemen notice of their right to sue, the Commission issued a notice of intent to

reconsider. Id. at 607–08. When the Justice Department later decided not to pursue

litigation, it issued the firemen a second notice of their right to sue, and the firemen



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sued within 90 days. Id. at 608. Judge Ginsburg explained that reconsideration of a

charge under section 1601.19(b) “reopens the door to a private action only when

the reconsideration itself occurs within ninety days of the issuance of a right to sue

notice.” Id. at 610. Because the Commission notified the fireman of its intent to

reconsider more than 90 days after the issuance of the first right to sue notice, “the

Commission’s reconsideration did not revive [the] right to sue.” Id. And although

the regulation “does not advert to the effect of a second right to sue letter,” Judge

Ginsburg explained that “the regulation contemplates . . . that second notices shall

issue only when the [Commission] notifies complainants of its intent to reconsider

within ninety days of the first notice of right to sue.” Id. at 610–11. As a result, the

second notice of the right to sue failed to start a new limitations period. Id. at 611.

As in this appeal, the “issuance of a second right to sue letter do[es] not alter the

fact that the [Commission] did not notify [the firemen] of its intent to reconsider

the[] charges within ninety days of the first notice.” Id. For that reason, the D.C.

Circuit concluded that “[t]he second notice . . . should not work to recover a lost

right to sue.” Id.

       Stamper argues that the notice she received was not a notice of intent to

reconsider but instead was a “notice of revocation” that explicitly revoked her first

notice of the right to sue, but we disagree. Stamper received a notice of intent to

reconsider. The notice stated that it was issued “[u]nder the authority vested” by



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section 1601.19(b), which governs notices of intent to reconsider. And it stated that

it “vacate[d]” the earlier dismissal of Stamper’s charge and “revoke[d] the letter

terminating processing of the charge,” which is consistent with the authority

granted to the Commission by section 1601.19(b) to “vacate the letter of

determination.” Stamper also fails to cite any statute or regulation that grants the

Commission the authority to issue a “notice of revocation” or otherwise vacate a

notice of the right to sue outside of the circumstances provided in section

1601.19(b).

      We agree with the district court that the second notice of the right to sue

failed to revive Stamper’s limitation period. Section 1601.19(b) permits the

issuance of a new notice of a right to sue only after the Commission issues a notice

of intent to reconsider before the expiration of the original limitations period.

Because the Commission issued Stamper a notice of intent to reconsider years after

her limitations period expired, the notice failed to revive her right to sue.

    B. Stamper’s Psychiatric Condition Did Not Equitably Toll the Limitations
                                      Period.
      Stamper argues that even if her complaint is untimely, she is entitled to

equitable tolling because her catatonic schizophrenia prevented her from filing suit.

The timely-filing requirements of Title VII of the Civil Rights Act and Title I of

the Americans with Disabilities Act are non-jurisdictional and subject to equitable

tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Zillyette v.


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Capital One Fin. Corp., 179 F.3d 1337, 1342 (11th Cir. 1999). “Equitable tolling

is appropriate when a movant untimely files because of extraordinary

circumstances that are both beyond [her] control and unavoidable even with

diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Mental

incompetence can be an extraordinary circumstance that warrants equitable tolling

if a plaintiff “establish[es] a causal connection between his alleged mental

incapacity and his ability to file a timely petition.” Lawrence v. Florida, 421 F.3d

1221, 1226 (11th Cir. 2005) (emphasis added), aff’d 549 U.S. 327 (2007). But

Stamper bears the burden of proving that equitable tolling of the limitations period

is appropriate. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir.

1993).

      Stamper has failed to establish a causal connection between her

schizophrenia and her delay in filing a complaint. Because Stamper stated that she

received the letter “at or about” March 2, 2009, the 90-day limitations period began

to run on that date and expired on June 1, 2009. The record belies any assertion

that Stamper’s medical condition prevented her from filing suit within the

limitations period. Stamper testified at her deposition that when she received the

notice of her right to sue from the Commission, she called an attorney hotline. She

stated that she understood that she had four years to file in state court and 90 days

to file in federal court. On April 6, 2009, during the limitations period, she drove



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herself to an appointment with her psychiatrist, who noted in Stamper’s medical

record that although Stamper “had a blunted affect and a dysphoric mood,” she

was “oriented,” “happy,” “alert,” and spoke at a “normal rate.” And Stamper

collected disability benefits in March 2009 and cashed her disability checks herself

until April 2009, when her mother was put in charge of her finances. The record

also contradicts Stamper’s assertion that her medical condition prevented her from

filing suit until January 18, 2013. The last medical record Stamper submitted to the

district court, dated August 23, 2010, describes Stamper as “cooperative,” speaking

at a normal rate, “alert,” “oriented” and “present.” We cannot infer from this record

that Stamper’s medical condition prevented her from filing suit. Stamper failed to

establish she is entitled to equitable tolling.

                                 IV. CONCLUSION

      We AFFIRM the judgment dismissing Stamper’s complaint with prejudice.




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