                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0760n.06

                                            No. 08-5365

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED
ROBIN GORDON,                                                                        Dec 03, 2009
                                                                               LEONARD GREEN, Clerk
        Plaintiff-Appellant,

v.                                                      ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
GORDON R. ENGLAND, Secretary of the                     WESTERN DISTRICT OF TENNESSEE
Navy; DEPARTMENT OF THE NAVY,

        Defendants-Appellees.

                                                 /


BEFORE:         GUY, CLAY, and WHITE, Circuit Judges.

        CLAY, Circuit Judge. Plaintiff Robin Gordon appeals the dismissal of her Title VII claim

of race and sex discrimination against Gordon England, the Secretary of the Navy, and the United

States Department of the Navy. The district court dismissed the case for lack of subject matter

jurisdiction based on Gordon’s failure to file suit within 90 days of the dismissal of Gordon’s EEOC

complaint. Gordon argues on appeal that she is entitled to equitable tolling due to the inadequate

performance of her attorney. For the reasons set forth in this opinion, we REMAND the case to

provide Plaintiff an opportunity to amend her complaint to sufficiently allege facts that would entitle

her to equitable tolling and to permit the district court to decide whether Plaintiff should be entitled

to equitable tolling.

                                PROCEDURAL BACKGROUND
        Robin Gordon was a civilian employee of the United States Department of the Navy in

Millington, Tennessee. On October 27, 2000, Gordon filed an Equal Employment Opportunity

complaint against her supervisor, Ron Rossman, alleging racial harassment and reprisal (EEO

Complaint I). On June 19, 2001, while EEO Complaint I was still pending, Gordon filed a second

EEO complaint that restated her earlier claims and added a claim for sex discrimination based on

sexual harassment (EEO Complaint II). The New Orleans EEO office entered an acceptance of EEO

Complaint II and investigated the sexual harassment charge. The case was assigned to an

Administrative Law Judge (“ALJ”) in the Memphis EEOC office.

        On October 21, 2002, the Navy issued a final agency decision (“FAD”) on EEO Complaint

I, denying the complaint. The FAD advised Gordon that she had thirty days to file an appeal with

the EEOC and/or ninety days to file suit under Title VII. On June 27, 2003, 249 days after the FAD,

Gordon did file a suit (Title VII Complaint I) in the United States District Court for the Western

District of Tennessee. The complaint, filed by attorney J.M. Bailey, named Secretary of the Navy

Gordon England and the Department of the Navy as defendants. The case was dismissed without

prejudice on November 8, 2003 for failure to provide effective service on Defendants within 120

days. The district court also noted that Gordon failed to respond to an order to show cause.

        On April 22, 2004, the EEOC dismissed EEO Complaint II because it had received from Mr.

Bailey a letter dated April 21, 2004 “indicating that this action has been filed in Federal Court and

that it will be pursued in Federal Court.” No copy of the letter allegedly sent by Gordon’s former

attorney is in the record.

        On July 27, 2004, Gordon filed a second complaint (Title VII Complaint II) making nearly

identical claims. The complaint was again filed by Mr. Bailey. That case was dismissed on August

22, 2006 based on a motion for voluntary non-suit. On February 27, 2007, Gordon sent a letter to
the presiding judge stating that she had moved to Columbia, South Carolina and was unable to reach

Mr. Bailey. Furthermore, Mr. Bailey did not inform Gordon that he had dismissed her case. On

March 6, 2007, Gordon filed a motion for reconsideration of the dismissal of Title VII Complaint

II. She subsequently filed a motion to withdraw the request for reconsideration, and on March 19,

2007 she filed the present suit pro se (Title VII complaint III). This complaint includes the same

defendants and grounds for recovery as the previous suits but includes some additional facts.

Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). The motion was granted on March 7, 2008. Gordon timely filed a notice of appeal on

March 17, 2008 and has been assigned current counsel by this court.

                                            DISCUSSION

I.      Standard of Review

        At the district court, Defendants moved under Federal Rule of Civil Procedure 12(b)(1) and

12(b)(6) to dismiss based on two theories: Plaintiff failed to file within ninety days; and this case was

merely an attempt to “re-litigate” the previous actions. The district court ruled only on the ninety

day requirement and dismissed under Rule 12(b)(1). Technically, the district court should have

dismissed under Rule 12(b)(6). See Mitchell v. Chapman, 343 F.3d 811, 820 n.10 (6th Cir. 2003)

(“It is well-settled that the ninety day right to sue provision is an administrative condition precedent,

rather than a jurisdictional prerequisite. Consequently, the court should dismiss the action pursuant

to Rule 12(b)(6), for failure to state a claim, rather than Rule 12(b)(1) for lack of subject matter

jurisdiction.”) (internal citation omitted). When a district court improperly dismisses under Rule

12(b)(1), we may review the record under the Rule 12(b)(6) standard. See Truitt v. County of

Wayne, 148 F.3d 644, 647 (6th Cir. 1998) (“As it does not make any difference to the outcome of

the case, we shall construe the district court’s dismissal of Truitt’s claims under Rule 12(b)(1) for
lack of subject matter jurisdiction as a dismissal under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted.”).

        In reviewing a dismissal under Rule 12(b)(6), we “must accept all well-pleaded factual

allegations of the complaint as true and construe the complaint in the light most favorable to the

plaintiff.” Inge v. Rock Financial Corp., 281 F.3d 613, 619 (6th Cir.2002). It is “well established

that conditions precedent are similar to statutes of limitations.” Mitchell, 343 F.3d at 820. “The

determination that a complaint was filed outside of the applicable statute of limitations is a

conclusion of law that this court reviews de novo.” Kelly v. Burks, 415 F.3d 558, 560 (6th Cir.

2005). “A court that is ruling on a Rule 12(b)(6) motion may consider materials in addition to the

complaint if such materials are public records or are otherwise appropriate for the taking of judicial

notice.” New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495,

501 (6th Cir. 2003).

        Gordon does not contest the fact that her current suit was filed more than ninety days after

the dismissal of her second EEO claim by the Equal Employment Opportunity Commission. She

argues, however, that the district court erred by failing to apply equitable tolling to her claim. “In

this Circuit, we hold that where the facts are undisputed or the district court rules as a matter of law

that equitable tolling is unavailable, we apply the de novo standard of review to a district court’s

refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of discretion

standard.” Dunlap v. United States, 250 F.3d 1001, 1007 n.2 (6th Cir. 2001). “Because this court

must assume all factual allegations in [Plaintiff’s] complaint are true, there are no factual disputes

in this case that would preclude de novo review of the equitable tolling issue.” Amini v. Oberlin

College, 259 F.3d 493, 498 (6th Cir. 2001).

II.     Equitable Tolling
       Gordon’s complaint makes serious allegations against her former supervisor and other

employees of the United States Navy. Gordon alleges that she was racially discriminated against and

that she was retaliated against for filing a complaint with the United States Equal Employment

Opportunity Commission (the “EEOC”). She alleges that her supervisor promoted all employees

in the work unit besides Gordon, cut her lunch time, and subjected her to other indignities.

       Even more troubling, Gordon asserts that on March 9, 2001, she suffered an unprovoked

physical assault by a co-worker, Nathan Edwards. Edwards put Gordon into a restraint hold position

with his hands wrapped around her breasts. Edwards had another worker take a picture of the

groping, despite Gordon’s protests. Edwards’ supervisor was present at the incident and encouraged

Edwards in this behavior. The multiple people who witnessed the incident denied it took place until

the picture was developed. Despite the presence of the picture, and the subsequent recantation of

the witnesses, nobody who participated suffered any disciplinary action, and only Edwards was

required to attend sexual harassment training.

       Despite many attempts by Gordon to litigate these issues, no court or administrative body has

ever reached the merits of Gordon’s claims. In large part, this appears to be the result of wholly

incompetent legal representation. Since Gordon has proceeded pro se, service has been effectuated,

deadlines have been met, and this suit was litigated to a final judgment. These seemingly mundane

accomplishments achieved by a pro se litigant were apparently beyond the abilities of Mr. Bailey,

Gordon’s retained attorney. Gordon’s attorney was indisputably late with filings in multiple actions,

failed to properly effectuate service, and abandoned Gordon’s suit for no apparent reason. To

compound these errors, Mr. Bailey failed in an attorney’s most basic responsibility, that of

communicating with his client and keeping her informed of the status of her case.
        At this point, the Court only has allegations, but if true, the allegations of deficient attorney

performance are extremely troubling. Gordon filed two separate EEO complaints. She received a

right to sue letter on the first complaint on October 21, 2002. The second charge, which included

the sexual harassment allegations and was filed on June 19, 2001, was pending before an ALJ when

Gordon first filed suit in federal court. It is unclear when Gordon hired Mr. Bailey, but it was at least

as early as the filing of the first Title VII action. That very first Title VII suit was filed late and was

dismissed on November 28, 2003 for failure to properly serve Defendants. Even though Gordon’s

first Title VII suit had been dismissed, Mr. Bailey sent a letter to the EEOC indicating on April 21,

2004 that the action had been filed in federal court and would be pursued in federal court. Not only

was no case currently pending, but no Title VII complaint on the sexual harassment charges had ever

been properly filed. In response to this letter, the EEOC dismissed the second complaint on April

22, 2004. Gordon asserts that the letter was sent to the EEOC without her knowledge or approval.

As a result, a potentially meritorious sexual harassment claim by Gordon was removed from the

administrative process.

        Mr. Bailey did not respond to the dismissal by immediately filing a second suit. Instead, he

waited more than 90 days to file a second Title VII complaint. That case proceeded in federal court

until Mr. Bailey filed a voluntary nonsuit that led to a dismissal on August 22, 2006. Plaintiff states

that she was never informed that her case was dismissed and only learned of it after contacting the

court directly following repeated failures to reach her attorney.

        Nothing in the record on appeal indicates a reason for Gordon’s attorney’s decision to file

a motion for voluntary non-suit. The district court docket shows that a status conference was held

before the district judge in the case on June 30, 2006. The minute entry states that Plaintiff’s

attorney advised the court that his supplemental response was prepared and would be filed that day
and that Plaintiff’s Rule 26 disclosures would be filed by July 3, 2006. The next filing by Gordon’s

attorney was neither the response nor the Rule 26 disclosures but instead the voluntary non-suit on

July 17, 2006. Gordon asserts that Mr. Bailey never informed her of his decision to file a motion

for voluntary non-suit and that he refused to return her repeated phone calls.1 Eventually, she

contacted the district court directly, and the court informed her that her suit had been dismissed.

Gordon subsequently wrote a letter to the trial judge alleging misconduct by her attorney before

dismissing that case and filing the present action pro se.

       The Supreme Court has stated that equitable tolling is not appropriate in the case of poor

attorney performance for a “garden variety claim of excusable neglect.” Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990). We have previously recognized, however, that an attorney’s conduct

can be the basis for equitable tolling. Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177 (6th Cir.

1995). In Cantrell, we held that equitable tolling may be appropriate where a plaintiff “was

abandoned by his attorney.” Id. at 1180. The attorney in Cantrell was suffering from a mental

illness, but the Court cited with approval Burton v. United States Postal Service, 612 F. Supp. 1057

(N.D. Ohio 1985). The district court in Burton equitably tolled the statute of limitations where the

attorney failed to contact the client following an EEOC interview. The court reasoned that the

attorney “seems to have irresponsibly abandoned his client and the case and left town without

informing his client.” Id at 1059; see also Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236




       1
         Given Mr. Bailey’s alleged conduct in this case, it is hardly surprising that he has a lengthy
disciplinary history in Tennessee. Bailey lost his license to practice law in the late 1990s. He was
publicly censured as recently as 2007 based on four separate complaints of failures similar to those
in Gordon’s case, including failure to properly serve process, failure to appear at a scheduling
conference, failure to notify a client for six months that the case had been dismissed, and failure to
respond to written discovery.
(3d Cir. 1999) (finding a “sufficient claim of attorney abandonment” and applying equitable tolling

where an attorney had affirmatively misrepresented that he timely filed a Title VII complaint).

       If Gordon’s allegations are correct, her attorney’s conduct went well beyond “garden variety”

neglect. He completely failed Gordon every step of the way in his failure to file the proper

documents with the courts, in his failure to timely perform his duties, and in his failure to keep

Gordon abreast of the status of her case. Even worse, he aborted an EEO investigation by falsely

stating that a Title VII case was proceeding. Then, when he again appeared to be missing deadlines,

he filed a voluntary non-suit, effectively aborting Gordon’s claim. He took many of these actions

without notifying Gordon. On the limited record before this Court, we do not know exactly what

the attorney was telling Gordon, but she states that she repeatedly tried to contact him, and she has

diligently pursued this case proceeding pro se.

       The district court considered the possibility of equitable tolling but barely mentioned the

issue of Gordon’s attorney’s conduct. The lack of discussion is not surprising since Gordon’s

allegations about her attorney’s grossly deficient performance were not properly set forth in her

complaint. In her brief before the district court, she merely stated that she “was represented and had

ineffective Counsel but now the Plaintiff is Pro Se,” but made no explicit argument for equitable

tolling. The district court had access to Gordon’s November 27, 2007 letter to the previous district

judge, but it does not appear to have been a part of this record, and the decision made no explicit

mention of it in the court’s discussion of equitable tolling.2 The court merely stated that Gordon

“mentions” she was “previously represented by ineffective counsel.” The issue of Gordon’s counsel

       2
          The letter in the previous case discusses many of the allegations of Mr. Bailey’s poor
performance that have been brought before this Court. It mentions that before Gordon moved from
Memphis, Mr. Bailey informed her that he was working on the case. After she moved, he failed to
return her phone calls and never informed her that her case was dismissed. She was also surprised
to see that Mr. Bailey had failed to comply with discovery requests.
that was the sole basis for the argument before this Court was barely, if at all, presented to the district

court. Therefore, the district court did not have an opportunity to rule on whether Gordon’s

attorney’s deficient performance warranted equitable tolling.

        Absent specific allegations in the complaint that would give rise to a claim for equitable

tolling, the district court did not necessarily err in dismissing Gordon’s initial complaint. See Amini

v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (dismissing a complaint that contained “no

allegations of wrongdoing on the part of [Defendant] that could have caused him to miss his filing

deadline”). Gordon may bear some responsibility for the failure to properly present her attorney

misconduct arguments to the district court, but she was proceeding pro se after having been deceived

and abandoned by her attorney, and “it is clear that leniency in the strictures of pleading should be

shown to pro se plaintiffs.” Lawler v. Marshall, 898 F.2d 1196, 1200 (6th Cir. 1990) (reversing as

an abuse of discretion a district court’s denial of a pro se plaintiff’s motion for leave to amend his

complaint). “When determining whether to dismiss a pro se complaint, these complaints are held

to less stringent standards than formal pleadings drafted by lawyers.” Wagenknecht v. United States,

533 F.3d 412, 415 (6th Cir. 2008) (citations and quotations omitted).

        In view of the egregious conduct of Gordon’s attorney and her status as a pro se litigant, we

will remand the case to the district court and allow Gordon an opportunity to amend her initial

complaint. When Gordon learned through Defendants’ motion to dismiss that her complaint was

untimely, her proper recourse was to file an amended complaint that included allegations sufficient

to find equitable tolling. Again, Gordon was proceeding pro se and was likely to have been unaware

of the requirements of Rule 15 of the Federal Rules of Civil Procedure. Therefore, Gordon should

be permitted an opportunity to amend her complaint to make the necessary showing to satisfy the

standards for equitable tolling.
          This course of action may deviate from the default rule, but it is supported by our precedent.

Generally, a district court does not abuse its discretion in failing to grant a party leave to amend

where such leave is not sought. Sinay v. Lamson & Sessions, 948 F.2d 1037, 1042 (6th Cir. 1991).

However, we previously remanded a case to allow a pro se plaintiff leave to amend where it was not

requested in the district court. Berndt v. Tennessee, 796 F.2d 879, 882-83 (6th Cir. 1986). Berndt

expressed “no opinion on whether a remand will be appropriate in every conceivable instance where

a pro se complainant fails to request for leave to amend, but we feel that a case, such as this, where

the claims are of such a serious nature demands that the complaint be closely scrutinized by the

district court before it is dismissed in the pleading stage of litigation.” Id. at 883. In this case,

Gordon has raised serious allegations of racial discrimination, retaliation and sexual harassment that

include offensive touching witnessed and approved of by her supervisors. These serious allegations

merit an opportunity for Gordon to amend her complaint and possibly have the case litigated on the

merits.

          For a variety of reasons, it is uncertain whether Gordon can maintain a claim for equitable

tolling upon further development of the record.3 For instance, Defendants contest the issue of

prejudice, and that argument would have to be weighed and balanced in the context of all the

circumstances by the district court on remand. The district court should also consider whether

Gordon exercised the necessary personal diligence that courts that have granted equitable tolling



          3
         In general, this Circuit has identified five factors to consider when determining whether to
toll an applicable statute of limitations: 1) lack of notice of the filing requirement; 2) lack of
constructive knowledge of the filing requirement; 3) diligence in pursuing one’s rights; 4) absence
of prejudice to the defendant; and 5) the plaintiff’s reasonableness in remaining ignorant of the
particular legal requirement. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d
552, 561 (6th Cir. 2000). This list is not exhaustive, and the “propriety of equitable tolling must
necessarily be determined on a case-by-case basis.” Truitt v. County of Wayne, 148 F.3d 644, 648
(6th Cir. 1998).
based on attorney performance consider necessary. See Seitzinger, 165 F.3d at 241 (noting that

plaintiff “appears to have been extremely diligent in pursuing her claim”); Burton, 612 F. Supp. at

1059 (finding that “plaintiff indeed pursued his claim as diligently as possible”). Since “lack of

diligence by a claimant acts to defeat h[er] claim for equitable tolling, [Plaintiff] should be required

to present evidence of h[er] diligence in pursuing the claim.” Cantrell, 60 F.3d at 1180.

       We acknowledge that Gordon’s litigation has not been diligently pursued to date, but whether

the failures were the result of Gordon’s inaction, her attorney’s incompetence, or a combination of

the two is unclear on this record. We simply do not know to what extent Gordon’s attorney assured

her that deadlines were met or did not apply to her case, or that she should simply trust him to attend

to any problems or pending legal notices. In fact, if her attorney misrepresented his compliance with

the statutory deadlines, it would further bolster Gordon’s claim for equitable tolling. In Seitzinger,

the Third Circuit applied equitable tolling based in part on an attorney’s single failure to comply with

a deadline that plaintiff knew about “in broad terms” because the attorney affirmatively

misrepresented what he had done. The plaintiff in that case had also received the EEOC’s letter

advising her of her rights, but the court noted that plaintiff’s “putative knowledge may have been

eroded by her attorney’s misrepresentations.” Seitzinger, 165 F.3d at 241.

       Gordon has made serious allegations against Defendants that, at this stage of the litigation,

must be accepted as true. She has been unable to reach the merits of those claims in multiple actions

as a result of the egregious conduct of her attorney. Her attorney went so far as to file a voluntary

non-suit in pending federal litigation without Gordon’s assent and without even notifying her that

her case was dismissed. It is to her credit that Gordon has diligently pursued her claim since she

began pursuing her case pro se. Under these somewhat unique circumstances, Gordon has raised

sufficiently serious claims about her attorney’s malfeasance that, in the interest of justice, the case
should be remanded to provide Gordon an opportunity to amend her complaint so that the district

court could then determine whether she is entitled to equitable tolling. See Berndt, 796 F.2d at 882

(remanding to allow plaintiff leave to amend where dismissal “would be a miscarriage of justice”).

                                           CONCLUSION

        For the foregoing reasons, we REMAND the case to the district court to allow Plaintiff leave

to amend her complaint to allege equitable tolling and to permit the district court to decide whether

Plaintiff should be entitled to equitable tolling.
        Ralph B. Guy, Jr., concurring in the result.             I concur in the judgment remanding this

case for further consideration of equitable tolling, but cannot join in the opinion because I disagree

with the majority’s characterization of the admittedly unknown facts1; improper emphasis on the

seriousness of the allegations made in plaintiff’s complaint2; and statements that could erroneously

be interpreted as findings concerning a) the significance of the withdrawal of the second EEO

complaint,3 b) the alleged egregiousness of counsel’s conduct,4 and c) the asserted diligence on the

part of plaintiff.5     Also, even in Seitzinger, relied upon by the majority, the affirmative

misrepresentations of counsel were weighed along with the plaintiff’s diligence and her putative

knowledge of the filing requirements. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 241

(3d Cir. 1999). Despite the majority’s focus on allegations of attorney incompetence, this court has

consistently considered the following factors in determining the appropriateness of equitable tolling:

“‘1) lack of notice of the filing requirement; 2) lack of constructive knowledge of the filing


        1
          The plaintiff’s pro se letter filed in February 2007, indicated only that plaintiff had moved from
the area, had been promised that her attorney would prosecute the case, had tried unsuccessfully to contact
her attorney at some point, and had learned of the dismissal by calling the court.
        2
       While the seriousness of the claim is not a factor we consider, I note that plaintiff indicated that
Edwards was discharged when he refused to attend sexual harassment training.
        3
          Counsel’s letter withdrawing the complaint was not part of the record, nor is it clear that the second
Title VII action was untimely given the presumption that receipt of notice occurs within five days after the
mailing of the final administrative decision. Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 557 (6th Cir. 2000). Also, the first Title VII complaint specifically alleged sexual harassment
in violation of Title VII. (Dkt. No. 03-2482, Compl., Para. 14.)
        4
           Notwithstanding the speculation concerning attorney malfeasance, the majority acknowledges that
it is for plaintiff to prove on remand. Indeed, plaintiff, who was represented by counsel on appeal, argued
only that her attorney had “lapses in communication” and “made tactical decisions that were not in her best
interest.” In fact, when the second Title VII complaint was voluntarily dismissed on the eve of a decision
on the merits, the case had been pending two years.
        5
        Although the majority suggests that plaintiff showed diligence in pursuing her third Title VII
complaint pro se, the record is silent concerning whether she diligently pursued her claims in earlier
proceedings.
requirement; 3) diligence in pursuing one’s rights; 4) absence of prejudice to the defendant; and 5)

the plaintiff’s reasonableness in remaining ignorant of the particular legal requirement.” Graham-

Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (citation

omitted).
