            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-20282
                                          Summary Calendar
                                          _______________

                                            DARRELL JOE,
                                                             Plaintiff-Appellant,
                                               VERSUS

          CITY OF HOUSTON FIRE DEPARTMENT/CIVIL SERVICE COMMISSION,
                                                             Defendant-Appellee.
                                    _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                         (H-98-CV-134)
                                 _________________________
                                          March 1, 2000


Before SMITH, BARKSDALE, and
  PARKER, Circuit Judges.                                                     I.
                                                         After learning that Joe had been arrested on
JERRY E. SMITH, Circuit Judge:*                      September 1, 1995, the fire chief held a
                                                     predisciplinary meeting with him on December
   Darrell Joe, once a firefighter for the City      6, 1995, and sometime thereafter informed him
of Houston, was suspended indefinitely for           that he would be indefinitely suspended, which
having been arrested for the purchase and use        is tantamount to dismissal. The chief provided
of crack cocaine, an arrest he contends to have      Joe official notification of this indefinite
been false. He filed a complaint with the            suspension on January 3, 1996, and explained
Texas Commission on Human Rights                     that Joe needed to appeal to the Civil Service
(“TCHR”) and the Equal Employment                    Commission (the “Commission”) within fifteen
Opportunity Commission (“EEOC”), charging            days. Joe did so, and on June 5, 1996, the
race discrimination because other employees          Commission upheld the suspension.
who had committed crimes had not been
suspended indefinitely. He sued under title             The EEOC filing period functions as a
VII, but the district court found the action         statute of limitations, barring suits not
time barred and dismissed. Finding no error,         preceded by a timely complaint. Zipes v.
we affirm.                                           Trans World Airlines, Inc., 455 U.S. 385,
                                                     393-94 (1982). Joe filed complaints with the
                                                     TCHR and EEOC on March 11, 1997. The
   *
      Pursuant to 5TH CIR. R. 47.5, the court has    city argued, and the district court agreed, that
determined that this opinion should not be           this was more than 300 days after the alleged
published and is not precedent except under the      discriminatory conduct had ended, and was
limited circumstances set forth in 5TH CIR.          therefore untimely. Joe, on the other hand,
R. 47.5.4.
asserted that the discriminatory conduct                hold that the filing period did not commence
continued until the Commission denied his               until the Commission made its decision, we
appeal, so his complaint was timely.                    would have to find that Joe had pleaded and
                                                        provided evidentiary support for the
                        II.                             proposition1 that the Commission had
   The time for filing a complaint with the             reviewed his suspension in a manner different
EEOC “will commence when the employee                   from that it employed when reviewing the
receives unequivocal notice of his termination          indefinite suspensions of other employees and
or when a reasonable person would know of               that it had done so on account of race. Even
the termination.” Burfield v. Brown, Moore &            applying the liberal standards of interpretation
Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995);          generally granted to pro se pleadings,2 we see
see also Delaware State College v. Ricks,               no such claim in Joe’s complaint, nor any
449 U.S. 250, 261 (1980). This limitation               evidence to support it.
“reflects a value judgment concerning the
point at which the interests in favor of                   The statutory period in which Joe was
protecting valid claims are outweighed by the           required to file a complaint with the EEOC,
interests in prohibiting the prosecution of stale       therefore, began at the latest on January 3,
ones.” Id. at 260.                                      1996, so his March 11, 1997, complaint to the
                                                        EEOC was untimely. The law, without more,
   That Joe received review by the                      demands dismissal.
Commission does not alter the date for
beginning the filing-deadline period. In Ricks,                                 III.
the plaintiff was a professor who had been                  In certain situations, however, the doctrines
denied tenure, had been offered a one-year              of equitable estoppel and equitable tolling may
“terminal contract,” which he accepted, had             apply. “Equitable tolling focuses on the
appealed his denial of tenure, and had been             plaintiff’s excusable ignorance of the
denied. Id. at 252-55. Upon filing a civil              employer’s discriminatory act. Equitable
rights act ion, he found himself barred by his          estoppel, in contrast, examines the defendant’s
tardy application to the EEOC and argued that           conduct and the extent to which the plaintiff
his filing period should not have begun to run          has been induced to refrain from exercising his
until his actual date of termination, or at the         rights.” Clark v. Resistoflex Co., 854 F.2d
earliest on rejection of his appeal. Id. The            762, 769 n. 4 (5th Cir. 1988) (quoting Felty v.
Court disagreed.                                        Graves-Humphreys, 785 F.2d 516, 519 (4th
                                                        Cir. 1986)). These doctrines primarily are the
   Ricks would have had to allege and                   province of the district court and are applied at
   prove that the manner in which his                   its discretion; we therefore review for abuse of
   employment was terminated differed                   discretion that court’s determination that these
   discriminatorily from the manner in
   which the College terminated other
                                                              1
   professors who also had been denied                         While the city initially filed a motion to
   tenure. . . . In sum, the only alleged               dismiss under FED. R. CIV. P. 12(b)(6), the court
   discrimination occurredSSand the filing              converted that motion, sua sponte, into a motion
   limitations periods therefore                        for summary judgment under FED. R. CIV. P. 56(c)
   commencedSSat the time the tenure                    10 days after both parties had submitted matters
   decision was made and communicated                   outside the pleadings.
   to Ricks.                                              2
                                                            See, e.g., Rodriguez v. Holmes, 963 F.2d 799,
                                                        801 (5th Cir. 1992) (noting that “the allegations of
Id. at 258.                                             a pro se complaint . . . must be read in a liberal
                                                        fashion, and however inartfully pleaded must be
   Joe presents a similar situation. The city           held to less stringent standards than formal
discriminated against him, if at all, when the          pleadings drafted by lawyers” (internal citations
chief suspended him indefinitely. For us to             and quotations omitted)).

                                                    2
facts do not warrant application of either             statute.” Id. Similarly, the record here
doctrine. See Fisher v. Johnson, 174 F.3d              suggests nothing the city did to cause it to
710, 713 (5th Cir. 1999).                              forfeit the benefits of the limitation period.

   Considering equitable estoppel first, we can            What remains to Joe, then, is equitable
find nothing in the pleadings or the record to         tolling, which looks to him rather than to the
suggest that Joe was “induced to refrain from          city to see whether his tardiness can be
exercising his rights” by any party. We have           excused. “The plaintiff has the burden of
“described the level of employer culpability           demonstrating a factual basis to toll the
required to trigger equitable estoppel in terms        period,” Blumberg, 848 F.2d at 644, and we
of a recklessness standard: The doctrine may           attempt by liberal construction of Joe’s
properly be invoked when the employee’s                pleadings to find the sort of “rare and
untimeliness in filing his charge results from         exceptional circumstances” that will allow for
either the employer’s deliberate design to delay       equitable tolling. Fisher, 174 F.3d at 713.
the filing or actions that the employer should         Too, “a garden variety claim of excusable
unmistakably have understood would result in           neglect does not support equitable tolling.”
the employee’s delay.” Id. at 769 (internal            Coleman v. Johnson, 184 F.3d 398, 402 (5th
quotations and citations omitted).                     Cir. 1999).

   The record does not indicate that anything             The record presents no facts that have not
of the kind occurred here. Joe was informed            previously been considered and dismissed by
by the chief of the reasons for his discharge,         this court as insufficient excuses for failure to
that the letter of January 3, 1996, officially         meet a statute of limitations. Joe proceeds pro
enacted his suspension, and that the available         se and in forma pauperis, but an “argument[]
appeal process worked as the appeal of a final         that he is a ‘layman-at-law,’ a pauper without
decision rather than as the decision itself. Joe       legal assistance . . . afford[s] him no defense to
does not allege that any representative of the         the absolute bar of the statute of limitations.”
city suggested t hat he should refrain from            Kissinger v. Foti, 544 F.2d 1257, 1258 (5th
complaining to the EEOC or that his rights             Cir. 1977). See also Fisher, 174 F.3d at 714
would remain intact during the pendency of his         (opining that “ignorance of the law, even for
appeal; neither does he claim that the city kept       a[] . . . pro se petitioner, generally does not
relevant information from him.                         excuse prompt filing”). This result springs
                                                       from necessity rather than dearth of
    In Blumberg v. HCA Management Co.,                 generosity; though forgiven his failures of art,
848 F.2d 642, 645 (5th Cir. 1988), we heard            the pauper no less than the practitioner must
the complaint of an employee who had failed            vigorously and swiftly pursue his claims of
to file a timely complaint and who argued that         right lest quietude and repose, so necessary to
her employer was “estopped from invoking her           the rule of law and ordered society, succumb
failure to file . . . because it concealed the         to his delayed attack.
reason for her termination.” We held that
because the plaintiff had been “advised at the             Neither does Joe benefit from a claim that
time of her termination that she was being             third parties hindered his pursuit of justice. He
discharged for cause, and she was able to              included with his pleadings a copy of the
evaluate the propriety of the reasons for her          complaint that he eventually filed with the
dismissal immediately,” her employer was not           EEOC, which complaint noted that
estopped from pleading the passage of the              “discrimination took place” from January 3,
filing period merely “by not expressly declaring       1996, until June 5, 1996. He might have
that her di scharge was due to                         understood this notation to work an
[discrimination].” Id. Such a holding, we              endorsement of his contention that the 300-
thought, would be “tantamount to asserting             day limitation period began on June 5. We
that an employer is equitably estopped                 note, however, that he did not file the relevant
whenever it does not disclose a violation of the       complaint until March 11, 1997, after the
                                                   3
correctly calculated limitation period had
ended; thus, any representation by the EEOC               The central bar to any attempt to invoke the
that discrimination had occurred until June 5,        doctrine of equitable tolling, though, must be
1996, did not come in time for Joe                    Joe’s lack of diligence. “In order for equitable
meaningfully to have relied on it.                    tolling to apply, the applicant must diligently
                                                      pursue his . . . relief. . . . As this court has
    Meanwhile, we could not hear                      noted, equity is not intended for those who
complaintSSeven if Joe had made itSSthat the          sleep on their rights.” Coleman, 184 F.3d
EEOC had made more evanescent                         at 403.
representations to him about the running of the
filing period. As we have explained in the                We have refused to apply the doctrine in
context of age-discrimination filings with the        cases in which the plaintiff might have stated a
EEOC,                                                 reasonable claim to toll a small portion of the
                                                      limitations period, even when that small period
   [i]t would be virtually impossible for the         would prove “outcome determinative,” if he
   EEOC or a defendant to rebut a                     has not generally prosecuted his case
   plaintiff's unsupported allegation that the        diligently. Fisher, 174 F.3d at 715; see also
   EEOC provided incomplete information               Coleman, 184 F.3d at 403. Joe did not
   in a telephone conversation. Allowing a            prosecute his case for more than a year after
   plaintiff equitably to toll a time                 he was indefinitely suspended or for nearly 300
   limitation based on incomplete                     days after his appeal was denied.
   information provided in a telephone
   conversation would create a great                     AFFIRMED.
   potential for abuse. Thus, we hold that
   . . . alleged incomplete oral statements
   made by the EEOC to [a complainant]
   during a telephone conversation will not
   support equitable tolling.

Conaway v. Control Data Corp., 955 F.2d
358, 363 (5th Cir. 1992).




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