United States Court of Appeals

For the Eighth Circuit

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No. 17-1737

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Porfirio Rodriguez

lllllllllllllllllllll Plaintiff - Appellant

v.

Wal-Mart Stores, Inc.

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: February 13, 2018

 Filed: June 11, 2018

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Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

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LOKEN, Circuit Judge.

On November 12, 2013, Wal-Mart Stores, Inc. (Walmart), terminated Porfirio

Rodriguez from his position as Senior Marketing Manager in Bentonville, Arkansas. 

On June 30, 2014, Rodriguez filed a charge with the Equal Employment Opportunity

Commission (EEOC) alleging that Walmart violated the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12101, et. seq., by discriminating and retaliating against

himdue to his disability and refusing to reasonably accommodate his disability. After
receiving a right to sue letter fromthe EEOC, Rodriguez commenced this ADA action

in October 2016. The district court granted Walmart summary judgment because

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Rodriguez failed to file a charge of discrimination with the EEOC within 180 days

of the alleged ADA violation, as the statute requires. 42 U.S.C. §§ 2000e-5(e)(1),

12117(a). Rodriguez appeals. He concedes his discrimination charge was untimely

but argues the district court erred in not concluding that Walmart is equitably

estopped to assert this statute of limitations defense because its pre-deadline

settlement discussions lulled Rodriguez into not filing a timely charge. Reviewing

the grant of summary judgment de novo, we affirm. 

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The governing legal principles are well established and undisputed. As each

wrongful act alleged in Rodriguez’s complaint occurred on or before November 12,

2013, when he was terminated, the 180-day period in which to file a charge with the

EEOC ended on May 12, 2014. See 42 U.S.C. § 2000e-5(e)(1); Henderson v. Ford

Motor Co., 403 F.3d 1026, 1032 (8th Cir. 2005). Thus, his charge, filed on June 30,

2014, was untimely. However, the statutory requirement to file a timely EEOC

charge is not jurisdictional; it is subject to equitable tolling and equitable estoppel. 

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). This appeal concerns

equitable estoppel, which applies if “the employee’s failure to file in timely fashion

is the consequence of either a deliberate design by the employer or of actions that the

employer should unmistakably have understood would cause the employee to delay

The Honorable Timothy L. Brooks, United States District Judge for the

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Western District of Arkansas. 

It seems to be widely understood that equitable estoppel is an issue for the

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court, not the jury. The standard of appellate review isseldom discussed, and the few

circuit decisions that address the issue are inconsistent. Compare O’Donnell v.

Vencor, Inc., 466 F.3d 1104, 1109 (9th Cir. 2006) (abuse of discretion), with Ramirez

v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (de novo). Our court has

apparently not addressed the question. As it has not been briefed and argued and

would not affect our decision, we leave it for another day. 

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filing his charge.” Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir.

1995), quoting Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357, 358-59 (8th

Cir.), cert. denied, 469 U.S. 1036 (1984). Equitable relief froma statute oflimitations

“is an exception to the rule, and should therefore be used only in exceptional

circumstances.” Id. at 1330.

Rodriguez argues that Walmart should be equitably estopped to assert that his

charge was untimely because it lured him into missing the deadline through the

settlement negotiations. In response to Walmart’s motion to dismiss, Rodriguez

submitted letters and emails reflecting the settlement negotiations at issue. The

district court converted the motion to dismiss to a motion for summary judgment, and

the parties stipulated that the letters and emails were the only evidence of their

negotiations. Thus, there are no issues of disputed fact on appeal. The issue is

whether these documents satisfy the strict requirements of equitable estoppel. 

By late March 2014, counsel for Rodriguez had notified Walmart that it had

violated the ADA through actions culminating in Rodriguez’s termination; Walmart

had disputed the allegations but expressed a willingness “to determine whether we

can resolve this dispute amicably.” The parties discussed the matter by phone. On

May 2, counsel for Rodriguez made a settlement demand, stating he intended to file

a charge with the EEOC and then sue if the matter could not be settled. Walmart did

not respond. Counsel for Rodriguez sent another letter on May 30, noting that

Walmart had stated in a May 23 phone call it would respond by May 30, and stating

that Rodriguez would “move forward with filing [the] charge” if Walmart did not

respond by June 4. On June 4, Walmart rejected Rodriguez’s settlement demand and

made a counteroffer. On June 30, Rodriguez filed a charge with the EEOC. On July

2, Rodriguez rejected Walmart’s counteroffer, made a counteroffer, and advised that

the EEOC charge had been filed. On July 16, Walmart responded that it had received

the EEOC charge and would prepare to defend against Rodriguez’s claims.

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After summarizing these negotiations in even greater detail, the district court

granted Walmart summary judgment on the equitable estoppel issue:

None of the letters in the record create a genuine, material

question of fact as to the issue of equitable estoppel. The letters

manifest only a general, good faith intent by Walmart to engage in

settlement negotiations. Mr. Rodriguez’s counsel sent a demand letter

ten days before the EEOC filing deadline and did not receive a response

until after the deadline had passed. Under these facts, Walmart’s silence

cannot be construed as anything but silence. Walmart made no promise

to settle, nor did it encourage that settlement was imminent through its

silence.

We agree with the district court’s analysis. Rodriguez’s failure to file his

EEOC claim within 180 days was not the result of any misconduct by Walmart. As

Rodriguez’s counsel admitted during the district court hearing, “nothing [Walmart]

said per se” caused Rodriguez to miss the deadline. Rodriguez argues the pattern of

“delay in responding to any settlement demand that we made” was deceptive. But

failing to respond to a settlement demand made ten days before the statutory deadline,

and accompanied by a statement that the employee would file a charge with the

EEOC if the matter could not be settled, is not conduct that the employer “should

unmistakably have understood” would cause the employee to miss the filing deadline. 

Dring, 58 F.3d at 1329. Thus, equitable estoppel does not apply, and summary

judgment was properly granted. 

The order of the district court is affirmed. 

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