
USCA1 Opinion

	




          October 25, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1801                                    AKRAM AL-WARDI,                                Plaintiff, Appellant,                                          v.                           COMMAND AIRWAYS/AMERICAN EAGLE,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Akram Al-Wardi on brief pro se.            ______________            John C. Kane, Jr., Robert B. Gordon  and Ropes & Gray on brief for            _________________  ________________      ____________        appellee.                                 ____________________                                 ____________________                      Per Curiam.   Akram Al-wardi, a  pilot with Command                      __________            Airways/American Eagle, was terminated from his employment on            February 1, 1991.  He had failed to report to work on January            22,  1991 and falsely claimed  that he timely  called in sick            prior  to his reporting time.   He filed a complaint with the            United States Equal Employment Opportunity Commission (EEOC),            alleging that his discharge was a pretext for  discrimination            on  the  basis  of  his  national  origin.    Al-wardi  is  a            naturalized United States citizen, who was born in Iraq.  The            EEOC found no violation of Title VII  of the Civil Rights Act            of 1964, as  amended, 42 U.S.C.   2000e  et seq. (Title VII).            It issued  a right-to-sue letter, which  Al-wardi received on            May  3, 1993.   That  letter unambiguously  informed Al-wardi            that he had 90 days in which to file a federal lawsuit.                 The  90-day period expired on Sunday, August 1, 1993.  A            lawsuit, therefore,  would  have  been  timely  if  filed  on            Monday,  August 2.   Al-wardi  filed a  complaint  in federal            district  court on Tuesday, August 3.  Timeliness was not Al-            wardi's only problem.   The lawsuit alleged only a  violation            of 42 U.S.C.    1981, which Al-wardi  now concedes is  not an            appropriate basis for his claim.  Section 1981 reaches racial                                                                   ______            discrimination.    While  racial  discrimination  encompasses            discrimination  based on  ancestry or  ethnic characteristics            for purposes of    1981 protection, Saint  Francis College v.                                                ______________________            Al-Khazraji,  481  U.S. 604,  613  (1987),  Al-wardi did  not            ___________            allege discrimination based  on his being  an Arab.   Rather,            his  claim of discrimination was solely based on his place of            origin, Iraq - a claim not covered by   1981.  Id.1                                                           ___                 Command Airways  moved to dismiss and,  in response, Al-            wardi  moved for  leave to  amend his  complaint to  assert a            Title VII claim.  The district court held a hearing, at which            time  it concluded that amendment to assert a Title VII claim            would  be futile  because the  complaint, in  any  event, was            untimely and there were no equitable grounds  for tolling the            90-day  filing period.  It denied Al-wardi leave to amend and            granted  Command Airways'  motion to  dismiss.   Al-wardi has            appealed.  We affirm.                 The district  court correctly recognized that the 90-day            filing  period  is  not  jurisdictional  and  is  subject  to            equitable tolling.   Irwin v. Dep't of  Veterans Affairs, 498                                 _____    __________________________            U.S. 89, 95 (1990).  During the period between receipt of the            EEOC right-to-sue letter and the filing of his complaint, Al-            wardi  says that he attempted  to obtain an  attorney but was            unable  to pay the  fees quoted and  that he then  mailed his            complaint  pro  se on  Monday,  August 2,  believing  that if            mailed within 90 days the complaint would be timely.                                            ____________________            1.  Further, as Al-wardi was discharged from employment prior            to the  effective date of    101 of the Civil  Rights Acts of            1991, which defines the term "make  and enforce contracts" as            used  in   1981 to include the termination of contracts, that            provision  is inapplicable  to him.    See Rivers  v. Roadway                                                   ___ ______     _______            Express, Inc., 114 S. Ct. 1510 (1994).            _____________                                         -3-                 The  district court  was not  clearly erroneous  when it            concluded   that  those  factors   do  not  carry  sufficient            equitable weight.   "One who  fails to act  diligently cannot            invoke  equitable   principles  to   excuse   that  lack   of            diligence."  Baldwin  County Welcome Ctr. v.  Brown, 466 U.S.                         ____________________________     _____            147,  151   (1984)  (declining  to  find   equitable  tolling            applicable  where pro se Title  VII claimant failed timely to            file  complaint  despite being  informed by  the right-to-sue            letter and twice by  the district court of the  90-day filing            period).     The  Court   in  Baldwin  County   Welcome  Ctr.                                          _______________________________            distinguished  cases where a claimant had received inadequate            notice, a  motion for appointment  of counsel is  pending and            equity would  justify tolling the statutory  period until the            motion  is acted  upon, the  court had  led the  plaintiff to            believe  that she  had  done everything  required of  her, or            where  affirmative  misconduct on  the  part  of a  defendant            lulled  the plaintiff into inaction.   Id.   That a defendant                                                   ___            may  not have  been  prejudiced  by  an  untimely  filing  is            irrelevant in the absence  of any factor justifying equitable            tolling.  Id. at 152.                      ___                 We, too, "hew to a 'narrow view' of equitable exceptions            to Title VII limitations periods."  Rys v. U.S. Postal Serv.,                                                ___    _________________            886  F.2d 443,  446 (1st  Cir. 1989)  (quoting Mack  v. Great                                                           ____     _____            Atlantic and Pacific  Tea Co.,  871 F.2d 179,  185 (1st  Cir.            _____________________________            1989)).   In Rys, we found  no error in the  district court's                         ___                                         -4-            refusal to  toll the  (then applicable 30-day)  filing period            and permit  amendment of  complaint where a  pro se  claimant            filed  a timely complaint, but  one which failed  to name the            proper defendant.  Rys v. U.S. Postal Serv., 886 F.2d at 444-                               ___    _________________            48.  We  were unpersuaded that the claimant was misled by the            notice in the right-to-sue letter and unconvinced that he had            acted with  diligence in  pursuing his  claim when he  waited            until  the final day of the 30-day filing period to institute            the  action and  until the  final day  of the  120-day period            provided in Fed. R. Civ. P. 4 to effect service.  Id. at 447-                                                              ___            48.                 In the instant case,  the district court concluded that,            as Al-wardi conceded, this  case is not one where  either the            court or  the defendant  misled or  lulled him  into inaction            during  the 90-day period and the  notice in the right-to-sue            letter is clear  and adequate.   In light  of precedent,  the            district court correctly dismissed the complaint.                 Al-wardi  raises  one additional  point.   The  district            court apparently did not  consider, presumably because no one            pointed it out, that the  90th day fell on Sunday, August  1,            so the complaint would have been timely in this case if filed            on the 91st day, which was Monday, August 2. It was not filed            on  Monday, however.   Rather,  it was  mailed on  Monday and            filed on Tuesday.                                         -5-                  Al-wardi, for  the first  time in his  appellate brief,            points out that the 90th  day was a Sunday and  suggests that            the district court would not  have dismissed his complaint if            it had realized  this.  This  is not so.   The complaint  was            untimely  filed.   Despite  this,  the  court considered  the            existence of  equitable tolling  factors and  correctly found            none.  The  equities do not change even  if the complaint was            only  one day late, rather  than two days  late as apparently            assumed  by the  court.   "In  the  absence of  a  recognized            equitable   consideration,  the   court  cannot   extend  the            limitations period by  even one  day."  Rice  v. New  England                                                    ____     ____________            College, 676 F.2d 9, 11 (1st Cir. 1982).            _______                 For the reasons stated herein, the order of the district            court dismissing the complaint is affirmed.                                              _________                                         -6-
