     Case: 13-30261      Document: 00512449158         Page: 1    Date Filed: 11/21/2013




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


                                    No. 13-30261
                                                                                     FILED
                                                                             November 21, 2013
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
AMY KIRKLAND,

                                                 Plaintiff-Appellant,
v.

BIG LOTS STORE, INC.,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             U.S.D.C. No. 3:12-CV-7


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Amy Kirkland (“Kirkland”) appeals the district
court’s dismissal of her employment discrimination law suit against
Defendant-Appellee Big Lots Store, Inc. (“Big Lots”). We AFFIRM.
            I.     FACTUAL AND PROCEDURAL BACKGROUND
       Kirkland worked as a cashier/stocker for Big Lots in West Monroe,
Louisiana from September 2008 until June 2009. Kirkland alleges that during


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 13-30261
the latter stages of her employment, she experienced constant harassment by
fellow employees and, despite her complaints, Big Lots management never
made efforts to remedy the situation.               Kirkland claims that the work
environment was unbearable because a fellow employee spread rumors that
Kirkland engaged in an extra-marital sexual relationship with one of Big Lots’
managers. Kirkland also claims that this employee told other employees that
Kirkland and her husband were “swingers” and that Kirkland’s husband had
“diseases.” Kirkland alleges that the stress and anxiety she experienced as a
result of these purportedly false allegations culminated in her resignation from
Big Lots on June 11, 2009.
       In an effort to seek relief for what she considers a constructive discharge,
Kirkland initiated contact with the Louisiana Commission on Human Rights
(“LCHR”) 1 by submitting an intake questionnaire detailing allegations of sex
discrimination on the part of Big Lots. Kirkland claims that she mailed the
intake questionnaire on March 2, 2010, but the LCHR’s records indicate that
it received the intake questionnaire on May 6, 2010. On June 2, 2010, the
LCHR sent a letter to Kirkland acknowledging receipt of the intake
questionnaire. On September 15, 2011, the LCHR sent Kirkland a “Dismissal
and Notice of Rights” stating that “[b]ased upon its investigation, the LCHR
[was] unable to conclude that the information obtained establishe[d] violations
of the statutes.” The EEOC also reviewed Kirkland’s claims of discrimination
and issued its own “Dismissal and Notice of Rights” on October 4, 2011, making
the same findings as the LCHR.


       1The LCHR is a state agency that has authority to remedy employment discrimination
pursuant to a work sharing agreement with the Equal Employment Opportunity Commission
(“EEOC”). Conner v. La. Dep’t. of Health & Hosp., 247 F. App’x 480, 481 (5th Cir. 2007) (per
curiam) (unpublished); La. Rev. Stat. Ann. §§ 51:2231─51:2265. Because the LCHR exists,
Louisiana is considered a “deferral state.” Conner, 247 F. App’x at 481.
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                                       No. 13-30261
       On January 4, 2012, Kirkland filed suit in the district court alleging
federal and state claims of employment discrimination on the basis of sex
pursuant to 42 U.S.C. §§ 2000e─2000e1 (“Title VII”) and La. Rev. Stat. Ann
§ 23:301. Big Lots moved to dismiss Kirkland’s suit arguing that it was time
barred and failed to state a claim upon which relief could be granted. The
district court granted Big Lots’ motion to dismiss on the grounds that
Kirkland’s claims to the LCHR were not timely filed. 2 Kirkland appeals the
dismissal herein.
                                    II.    DISCUSSION
       A. Standard of Review
       We review the district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) de novo. Elsensohn v. St. Tammany Parish Sheriff’s Office,
530 F.3d 368, 371 (5th Cir. 2008). “A statute of limitations may support
dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings
that the action is barred and the pleadings fail to raise some basis for tolling
or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (citations
omitted).
       B. Timeliness of Kirkland’s Filing with the LCHR
       Kirkland argues that the district court erred in finding that her
complaint to the LCHR was untimely.                  Kirkland acknowledges that the
deadline for a timely filing in her case was April 7, 2010, 300 days from the day
she resigned from Big Lots.               She claims that she mailed an intake




       2Kirkland’s arguments on appeal focus on her Title VII claim and do not allege error
in the district court’s dismissal of the state law claim. For that reason, we consider any
argument with respect to the state law claim waived. See Cutrera v. Bd. of Sup’rs of La. State
Univ., 429 F.3d 108, 114 (5th Cir. 2005).
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questionnaire 3 to the LCHR on March 2, 2010 and offers her attorney’s “log” 4
as proof of this fact. Big Lots, conversely argues that Kirkland’s complaint was
not filed until May 6, 2010. As evidence, the LCHR offers the cover letter that
accompanied Kirkland’s intake questionnaire which is stamped as received by
the LCHR on May 6, 2010.
       When an employment discrimination claim is brought in a deferral state,
an aggrieved employee must file a claim with the designated state agency or
the EEOC within 300 days of the alleged unlawful employment action. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). “A claim is
time barred if it is not filed within these limits.” Id. Mailing is not filing for
the purposes of Title VII. See Taylor v. Gen. Tel. Co. of Sw. 759 F.2d 437, 440
(5th Cir. 1985). A claim is considered filed when it is received by the EEOC or
the state agency responsible for the administration of complaints of
employment discrimination.           Id.; 29 C.F.R. § 1601.13(a)(4)(2)(a)(A) (2010).
Accordingly, Kirkland’s claim was not filed until it was received by the LCHR
on May 6, 2010. Again, the deadline for a timely filing in Kirkland’s case was
April 7, 2010. Because Kirkland’s intake questionnaire was not filed within
the 300-day period required by Title VII, her claims are time barred. See Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that in this
context, the filing deadline is tantamount to a statute of limitations).




       3The   submission of an intake questionnaire is “sufficient to set[] the administrative
machinery in motion” and may constitute a filing for the purposes of Title VII. See Conner,
247 F.App’x at 481 (citation and internal quotation marks omitted); Fed. Exp. Corp. v.
Holowecki, 552 U.S. 389, 404 (2008).
        4In opposition to Big Lots’ motion to dismiss, Kirkland offered her attorney’s log of

activities related to this matter as evidence that the intake questionnaire was mailed to the
LCHR on March 2, 2010.
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       Generally, when an employment discrimination charge is untimely filed
with the EEOC or designated state agency, a suit based upon the untimely
charge should be dismissed. Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473,
476─77 (5th Cir. 1991). In limited circumstances, the filing deadline is subject
to equitable doctrines such as tolling or estoppel. Zipes, 455 U.S. at 393. The
plaintiff has the burden of providing a sufficient factual basis for tolling the
filing deadline. Conway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir.
1992). We have recognized at least three circumstances where failure to timely
file may be excused under the equitable tolling doctrine: (1) a suit is pending
between the parties in the incorrect forum; (2) the claimant is unaware of facts
supporting her claim because the defendant intentionally concealed them; and
(3) the claimant is misled by the EEOC or designated state agency about her
rights. See Manning v. Chevron Chemical Co. 332 F.3d 874, 880 (5th Cir.
2003). 5
       Kirkland argues that the equitable tolling doctrine should apply in this
case for reasons we find unavailing. Kirkland does not provide arguments
under the Manning factors or cite any case law that would otherwise support
equitable tolling in this case. Instead, she relies on the fact that despite her
untimely filing, the EEOC “nevertheless investigated [her] claim as if it had
been filed in a timely manner.” With respect to the EEOC’s investigation, the
record does not indicate that the EEOC made a finding as to the timeliness of



       5This  is not to say that the factors listed in Manning constitute an exhaustive list of
circumstances that justify equitable tolling. Situations other than those listed in Manning
could justify tolling. For example, we have stated that equitable tolling may be appropriate
“in rare and exceptional circumstances when a plaintiff is actively misled by the defendant
about the cause of action or is prevented in some extraordinary way from asserting his
rights.” Lovett v. Barbour Intern., Inc., 211 F. App’x 281, 284 (5th Cir. 2006) (per curiam)
(unpublished) (citation and internal quotation marks omitted).
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                                 No. 13-30261
Kirkland’s claim.    It simply provided a “Dismissal and Notice of Rights”
indicating that based on its review, Kirkland’s claims lacked merit. Morever,
the EEOC’s investigation of an untimely filed claim does not safeguard that
claim from dismissal pursuant to 12(b)(6). The EEOC’s decision to investigate
an untimely filed claim is its own prerogative, and, contrary to Kirkland’s
assertion, federal courts are expected to make “an independent determination”
as to a claimant’s “compliance with Title VII’s filing requirements.” Burrell v.
Brown, 228 F.3d 410, *4 (5th Cir. 2000) (per curiam) (unpublished) (citing
Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1304 (5th Cir. 1979)).
Accordingly, we hold that equitable tolling of the 300-day filing deadline is not
appropriate in this case.
      Because Kirkland’s charges of discrimination were not timely filed, we
do not reach the merits of those charges to determine whether they state a
claim upon which relief can be granted.
                              III.   CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Kirkland’s claims.




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