     Case: 12-60926       Document: 00512289576         Page: 1     Date Filed: 06/27/2013




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

                                                                            FILED
                                                                           June 27, 2013

                                     No. 12-60926                          Lyle W. Cayce
                                   Summary Calendar                             Clerk




LUCKY HULL, JR.,

                                                  Plaintiff–Appellant

versus

EMERSON MOTORS/NIDEC,

                                                  Defendant–Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 2:11-CV-145




Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*


       Lucky Hull, Jr., was fired by his employer, Nidec Motor Corporation


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-60926    Document: 00512289576        Page: 2   Date Filed: 06/27/2013



                                 No. 12-60926

(“NMC”), and sued under Title VII, claiming discrimination based on race. The
district court found that the claim was time-barred and granted summary judg-
ment to NMC. We affirm.


                                       I.
      Hull, a black male, was employed by NMC as an inventory clerk. On the
morning of October 21, 2010, he had a verbal altercation with a coworker, Cortez
Broom, also a black male. The incident involved shouting and some physical
contact. Hull was suspended that afternoon pending investigation and was ter-
minated three days later; Broom was not fired.
      On February 25, 2011, 124 days later, Hull filed an intake questionnaire
with the Equal Employment Opportunity Commission (“EEOC”) alleging that
he had been discriminated against based on race. He noted his intent to file a
charge but did not file one, and the EEOC declined to pursue the matter further,
finding that there was not likely a valid claim.
      On June 3, 2011, 222 days after his termination, Hull filed a charge with
the EEOC. He explained that he had recently learned that a white employee
had been in an altercation at work and was not fired and that that constituted
proof that Hull had been treated differently because of his race. He was given
a notice of a right to sue, but the EEOC declined to pursue the matter, having
determined again that there was likely not a violation of Title VII and that the
claim was untimely.
      NMC moved for dismissal, and then for summary judgment based on the
untimeliness of the EEOC charge. Hull argued that he had been misled by the
EEOC and that he had expected it to file a charge on February 25. The district
court allowed limited discovery, considered whether equitable tolling should
apply, and ultimately concluded that Hull’s charge was untimely.



                                       2
    Case: 12-60926     Document: 00512289576      Page: 3    Date Filed: 06/27/2013



                                  No. 12-60926

                                        II.
      We review summary judgments de novo. Newman v. Guedry, 703 F.3d
757, 761 (5th Cir. 2012). Summary judgment is appropriate where, considering
the evidence in the light most favorable to the nonmoving party, “there is no gen-
uine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). We review a district court’s decision regarding equitable
tolling for abuse of discretion. See Granger v. Aaron’s, Inc., 636 F.3d 708, 712
(5th Cir. 2011).

                                        III.
      A charge under Title VII must be filed with the EEOC within 180 days of
the date of discrimination. 42 U.S.C. § 2000e-5(e)(1). The period begins running
once the plaintiff knows or should have known of the unlawful employment
action. See Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 455 (5th Cir. 2011)
(applying the EEOC filing requirement in the ADEA context). Hull was fired,
allegedly based on his race, on October 24. Although he filed a preliminary
intake questionnaire on February 25, he did not file a charge as required by
§ 2000e-5 until June 3, which was 222 days after he had knowledge of the alleg-
edly discriminatory event. His claim was thus time-barred.
      Hull’s sole contention on appeal is that equity demands that limitations
be tolled between February 25 and June 3. Hull suggests that he relied on
EEOC representations that he had properly filed a charge in February and that
he was waiting for the EEOC to complete its investigation.
      “Filing a timely charge of discrimination with the EEOC is not a jurisdic-
tional prerequisite to suit in federal court, but a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable tolling.” Taylor v.
United Parcel Serv., Inc., 554 F.3d 510, 521 (5th Cir. 2008) (citation omitted).


                                         3
     Case: 12-60926        Document: 00512289576           Page: 4     Date Filed: 06/27/2013



                                        No. 12-60926

Equitable tolling is disfavored and should be applied only in exceptional cases,
such as where purposeful misrepresentations misled a party or where a party
could not have vindicated its rights even by exercising diligence.1
       We have identified three possible bases for equitable tolling in the context
of a Title VII action: “(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, 636 F.3d at
712. Hull vaguely suggests that he was misled about his rights and was diligent
in filling out the intake questionnaire. He makes much of that fact and argues
that only the EEOC’s “negligence” prevented him from suing timely.
       Hull’s assertions are insufficient to cast doubt on the district court’s deci-
sion not to exercise its discretion and toll limitations. The February intake ques-
tionnaire indicates that Hull “would like to file a charge,” but the questionnaire
does not say that, by completing it, a charge has been filed. It states that the
purpose of the questionnaire is to provide the EEOC with information for inves-
tigating discrimination and for counseling.
       Hull did not fill out or file a charge, and there is no evidence that the
EEOC told him he had done so. Indeed, Hull was told by the EEOC on that date
that it did not think he had a claim. He claims that he “thought it was filed,” but
he does not show how the EEOC misled him in any way. After that day, he took
no further steps for almost three months. He did not file a charge, check to see
whether a charge had been filed, or communicate with the EEOC at all. Only



       1
         See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (explaining
that equitable tolling should be used “sparingly”); Rashidi v. Am. President Lines, 96 F.3d 124,
128 (5th Cir. 1996) (“Equitable tolling applies principally where the plaintiff is actively misled
by the defendant about the cause of action or is prevented in some extraordinary way from
asserting his rights.”); Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir. 1990) (explaining that
equitable tolling should be applied only in “rare cases”).

                                                4
     Case: 12-60926       Document: 00512289576         Page: 5    Date Filed: 06/27/2013



                                      No. 12-60926

after he learned that a white employee had not been terminated after instigating
a workplace conflict did Hull return to the EEOC and file a charge, well after the
180-period had expired.
       Though it is possible that Hull did not understand the intake question-
naire, and though the EEOC could have clarified that he needed to file a charge
beyond the questionnaire, there is no evidence that the EEOC misled Hull or
made an affirmative misrepresentation.2 There is no indication that he relied
on statements of the EEOC at all. Instead, he assumed he had done what he
needed to, based on his own conclusions, and took no further action until after
the expiration of the limitations period when new “evidence” came to light.
       Hull’s circumstances are not “exceptional,” and this is not one of the “rare
cases” in which the equities demand tolling. The district court did not abuse its
discretion.
       The summary judgment is AFFIRMED.




       2
        See, e.g., Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (“This court has held
that such extraordinary circumstances exist where a petitioner is misled by an affirmative,
but incorrect, representation of a district court on which he relies to his detriment.”).

                                             5
