*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opinion should not be published and is not precedent except under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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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-50491

DARRYL S. STORBECK,

Plaintiff-Appellant,

VERSUS

SAKS FIFTH AVENUE, JOHN DOE CORPS, 1-5

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas, San Antonio

(SA-99-CV-70-HG)

June 20, 2000

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

Darryl S. Storbeck appeals the dismissal of the sexual

harassment claim he brought against his former employer Saks Fifth

Avenue (“Saks”). We affirm.

FACTS AND PROCEDURAL HISTORY

Storbeck was discharged from employment with Saks in May 1996.

On October 7, 1998, over two years after his termination, Storbeck
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filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). Storbeck filed his pro se

complaint in this suit on January 25, 1999, alleging that he had

been unlawfully harassed because of his gender between February

1996 and July 1996 in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e (1994).

Saks moved to dismiss because Storbeck failed to exhaust

administrative remedies within the required time frame. In

response, Storbeck sought equitable tolling of the period for

filing with the EEOC alleging that he had been incapacitated due to

mental illness from July 1996 until October 6, 1998. He attached

medical records to his response documenting the treatment he had

received for his mental illness during this time. The district

court found that the evidence submitted, while indicating that

Storbeck suffered from mental illness, did not rise to the level of

establishing that he had a mental disability that incapacitated him

from filing a timely Charge of Discrimination with the EEOC. 

DISCUSSION

The only issue on appeal is whether Storbeck was entitled to

equitable tolling of the time period for filing his EEOC complaint.

Initially, we note that in states such as Texas, that have an

administrative agency with the authority to address complaints of

employment discrimination, the 180-day period is extended to 300

days. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).
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This time limit operates as a statute of limitations. See Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). As such, it

is subject to equitable tolling. See id. The claimant bears the

burden of justifying equitable tolling. See Hood v. Sears Roebuck

and Co., 168 F.3d 231, 232 (5th Cir. 1999). 

The Fifth Circuit has never expressly recognized mental

illness as a basis for equitable tolling of the time limits for

filing EEOC complaints. See id. at 233 & n.3. While such a rule

is clearly consistent with the remedial purposes of Title VII, and

some district courts have employed it, see Moody v. Bayliner Marine

Corp., 664 F. Supp. 232, 235 (E.D.N.C. 1987), thus far, no clear

consensus has been reached on the appropriate breadth of relief.

Compare Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 1248

(S.D. Ohio 1984)(limiting equitable tolling to cases where the

claimant has been institutionalized or adjudicated incompetent)

with Pulitzer v. Middleberg, 1996 WL 469689, at *5 (E.D. La.

1996)(for equitable tolling, plaintiff must show that she was

mentally incapacitated to the point of being unable to take the few

steps necessary to file an EEOC charge.) The district court,

noting the unsettled state of the law on this point, found that the

evidence did not support a finding that Storbeck suffered from

mental illness that would justify equitable tolling of the

limitations period within even the most generous paradigm.

On appeal, Storbeck argues that he was hospitalized several
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times for treatment of major depressive episodes, paranoid

schizophrenia, schizophrenic disorder and psychotic episodes which

conditions rendered him incapable of pursuing this matter with the

EEOC between July 1996 and October 1998. Storbeck relies on

evidence that he was hospitalized in 1996 for psychiatric disorders

for ten days in September, eleven days in October and four days in

December. His December 1996 discharge papers indicate that he was

released to return to work. In fact, Storbeck did work at a series

of jobs for approximately 21 months between his last

hospitalization and the date he filed his complaint. The district

court inferred from Storbeck’s spotty employment history that he

had ongoing difficulties during this time. However, the district

court concluded that the evidence does not support a finding that

he suffered from a mental disability that would justify equitable

tolling. We agree. Assuming that incapacitating mental illness

allows equitable tolling of the 300-day period within which

complainants are required to file EEOC complaints, the evidence

does not show that Storbeck suffered from such illness after his

December 1996 release from the hospital.

CONCLUSION

Based on the foregoing, we affirm the dismissal of Storbeck’s

case.

AFFIRMED.