1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-19-1999

Seitzinger v. Reading Hospital

Precedential or Non-Precedential:

Docket 97-1698

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Recommended Citation

"Seitzinger v. Reading Hospital" (1999). 1999 Decisions. Paper 10.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/10
Filed January 15, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-1698 

SHARYN L. SEITZINGER, 

 Appellant 

v. 

THE READING HOSPITAL AND 

MEDICAL CENTER 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 95-cv-05926) 

District Judge: Honorable E. Mac Troutman 

Argued: November 16, 1998 

Before: BECKER, Chief Judge, GREENBERG, Circuit Judges 

and McLAUGHLIN, District Judge.* 

(Filed January 15, 1999) 

_________________________________________________________________ 

*Honorable Sean J. McLaughlin, United States District Judge for the 

Western District of Pennsylvania, sitting by designation. 
 STEPHEN M. LATIMER, ESQUIRE 

 (ARGUED) 

 LUCILLE M. ROSANO, ESQUIRE 

 Loughlin & Latimer 

 131 Main Street 

 Suite 235 

 Hackensack, NJ 07601 

 Counsel for Appellant 

 VINCENT CANDIELLO, ESQUIRE 

 (ARGUED) 

 Morgan, Lewis & Bockius LLP 

 One Commerce Square 

 417 Walnut Street 

 Harrisburg, PA 17101 

 Counsel for Appellee 

OPINION OF THE COURT 

BECKER, Chief Judge. 

This appeal by plaintiff Sharyn Seitzinger in a Title VII 

case alleging gender and age discrimination by her former 

employer, defendant Reading Hospital and Medical Center, 

requires us to decide when the circumstances surrounding 

an attorney's misconduct are sufficient to merit equitable 

tolling of the statute of limitations. The appeal perforce 

centers on the timeliness of the complaint. The District 

Court granted summary judgment for the Hospital, 

believing the complaint to be time-barred under 42 U.S.C. 

S 2000e-5(f)(1) because it was not filed within ninety days of 

the receipt of the EEOC's right-to-sue letter. The Court 

rejected Seitzinger's fall-back position that the time 

deadline should have been extended under the doctrine of 

equitable tolling because of the defalcations of her lawyer, 

who missed the filing deadline, albeit only by one day. 

We agree with the district court's basic timeliness

determination and affirm on that point. However, we

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disagree on equitable tolling. The district court proceeded 

on the theory that an attorney's delinquency is chargeable 

to the client and, at all events, is not a basis for equitable 

tolling. This is generally true, consistent with the rule that 

equitable tolling is to be used sparingly, particularly in the 

context of attorney default. However, where -- as here -- 

the allegation is that a diligent client persistently 

questioned the lawyer as to whether he had filed the 

complaint in time, and he affirmatively misrepresented to 

her that he had, we think there is a sufficient claim of 

attorney abandonment to bring the case within the narrow 

line of cases in which lawyer misconduct justifies equitable 

tolling. 

Because the District Court erroneously thought that

equitable tolling could not be justified here, we will reverse. 

Because the equitable tolling determination turns on a 

weighing and balancing of factors, including the extent of 

attorney misconduct, the diligence of the client, and 

prejudice to the defendant, we think it preferable to offer 

the District Court the opportunity to exercise its discretion 

and make the tolling determination in the first instance. 

Hence, we will remand for further consideration. 

I. 

Seitzinger started work at Reading Hospital in 1984. In 

May, 1993, she had an argument with her office manager 

and was suspended. She later was given the option to 

resign or be fired, and she opted to resign. A few months 

later, she filed a complaint with the EEOC, alleging age and 

gender discrimination. The EEOC concluded that there was 

sufficient evidence of a gender discrimination claim. At this 

point, Seitzinger retained an attorney named David Sloane 

to help her with her case. However, after attempts at 

reconciliation between Seitzinger and the Hospital failed, 

the EEOC declined to transfer Seitzinger's case to its Legal 

Unit and, in a letter dated May 30, 1995, notified Seitzinger 

of its intention to issue to her, under separate cover, a 

right-to-sue letter. The letter also stated that she could file 

a lawsuit within ninety days of receiving the right-to-sue 

letter. 

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On June 15, 1995, the EEOC sent the right-to-sue letter 

to Seitzinger, Sloane, and Reading Hospital. The Hospital 

received its copy of the right-to-sue letter on June 19. 

Seitzinger does not know when she and Sloane received 

their copies of the letter; she does not recall receiving her 

letter, and Sloane had recently changed his address. The 

first postmark on Sloane's letter was June 15, and the 

second postmark, on the "change of address" label, was 

June 17. Soon after receiving the letter, Seitzinger decided 

to bring a Title VII suit against the Hospital. On July 2, 

1995, Sloane wrote to Seitzinger, advising her that he was 

in the process of drafting the complaint. Seitzinger called 

Sloane in early September to make sure that he hadfiled 

the complaint on time. Sloane assured Seitzinger that he 

had done so. However, Sloane did not actually file the 

complaint until September 19, 1995. 

On June 7, 1996, the District Court dismissed 

Seitzinger's complaint without prejudice for failure to serve 

Reading Hospital with the complaint. At some point that 

spring, Sloane told Seitzinger, who had repeatedly called 

him to ask for a copy of the complaint and to inquire about 

the status of her case, that he was giving up his law 

practice. In fact, Sloane had been suspended from the 

practice of law in October 1995. After picking up her file 

from Sloane, Seitzinger called the Clerk of the District 

Court to check on the status of her case and was told that 

her complaint had been dismissed. 

On September 22, 1996, Seitzinger moved to vacate the 

dismissal because her attorney had failed to serve the 

complaint and had been disbarred in July 1996. Although 

the District Court granted her motion to vacate, and 

Seitzinger timely served the Hospital with a notice of the 

complaint, the District Court subsequently granted the 

Hospital's motion for summary judgment on the ground 

that the complaint was not timely filed. This appeal 

followed. We have jurisdiction pursuant to 28 U.S.C. 

S 1291. Our review of the district court's grant of the 

Hospital's motion for summary judgment is plenary, see 

Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 

1990), and we must construe the facts in the light most 

favorable to the non-moving party, see Gallo v. City of 

Philadelphia, 161 F.3d 217, 219 (3d Cir. 1998). 

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II. 

We must initially decide whether Seitzinger has 

introduced sufficient evidence to identify the date on which 

she or Sloane received the EEOC's right-to-sue letter, for it 

is from that date that we determine whether Seitzinger's 

complaint was timely filed in federal court. If Seitzinger has 

failed to do so, we will apply the Federal Rules' 

presumption that a party receives a document three days 

after it was mailed, see Fed. R. Civ. P. 6(e), in which case 

we would begin to count from June 18, 1995, and 

Seitzinger's complaint would not be timely. Even if she has 

produced some evidence that we should begin to count 

from June 19, we conclude that there is still no genuine 

issue of material fact bearing on timeliness because the 

ninety-day period still expired before she filed her claim.1 

42 U.S.C. S 2000e-5(f)(1) provides that if the EEOC takes 

no action on a complaint within a specified period of time, 

the agency "shall so notify the person aggrieved and within 

ninety days after the giving of such notice a civil action may 

be brought . . . ." Id. We have construed this provision to 

mean that the time for the filing of a complaint begins to 

run when the plaintiff has notice of the EEOC's decision, 

which usually occurs on the date he receives a right-to-sue 

letter from the agency. See Mosel v. Hills Dep't Store, Inc., 

789 F.2d 251, 252 (3d Cir. 1986). The EEOC's right-to-sue 

letter also informs the claimant that he or she has ninety 

days after receipt in which to file suit. See id. at 252-53. 

Therefore, the date on which Seitzinger received the letter 

becomes critical. 

When the actual date of receipt is known, that date

controls. Dixon v. Digital Equip. Corp., 1992 WL 245867, *1 

(4th Cir. Sept. 30, 1992) (unpublished disposition); Peete v. 

American Standard Graphic, 885 F.2d 331 (6th Cir. 1989). 

_________________________________________________________________ 

1. The statutorily-created ninety-day period starts when either the 

claimant or her attorney receives a right-to-sue letter, whichever is 

earlier. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92-93 

(1990) (notice is received when the EEOC delivers its letter to a claimant 

or the claimant's attorney). Because we conclude that Seitzinger received 

the letter no later than June 19, the date on which her attorney received 

his letter is irrelevant. 

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However, in the absence of other evidence, courts will 

presume that a plaintiff received her right-to-sue letter 

three days after the EEOC mailed it. See Fed. R. Civ. P. 

Rule 6(e); Mosel, 789 F.2d at 253 n.2 (stating that the 

Supreme Court has suggested that Rule 6(e) applies when 

parties dispute the date of receipt). Rule 6(e)'s three-day 

presumption attempts to ensure that the plaintiff has the 

benefit of the full ninety-day period when the date of actual 

receipt is unknown. 

Seitzinger states that she does not recall receiving a 

right-to-sue letter directly from the EEOC. Nevertheless, the 

right-to-sue letter was addressed to her at the address at 

which she has received information from the EEOC since 

this action began. Seitzinger offers only one piece of 

evidence to suggest that she may have received her letter 

after June 18: the Hospital received its copy of the letter on 

June 19. While this evidence may not be of sufficient 

weight to rebut Rule 6(e)'s presumption, we need not decide 

this issue: even if we were to assume that the date the 

Hospital received its copy of the right-to-sue letter was the 

date on which Seitzinger received hers, she still failed to file 

her complaint within ninety days of June 19. Ninety days 

from June 19 is September 17. Since September 17 was a 

Sunday, Seitzinger had until September 18 to file her 

complaint. Because she, through her attorney, did not file 

the complaint until September 19, she failed to meet the 

EEOC's ninety-day filing period. 

III. 

Anticipating that the District Court might conclude that 

her complaint was not timely, Seitzinger asked the District 

Court to equitably toll the ninety-day period so that her 

suit would be deemed timely filed. The Court refused to do 

so, concluding that dereliction of counsel was an 

insufficient reason to invoke equitable tolling. The law is 

clear that courts must be sparing in their use of equitable 

tolling. There are, however, narrow circumstances in which 

the misbehavior of an attorney may merit such equitable 

relief. See, e.g., Cantrell v. Knoxville Community Dev. Corp., 

60 F.3d 1177, 1180 (6th Cir. 1995) (equitable tolling may 

be appropriate where attorney has abandoned client). 

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As a preliminary matter, we note that it is settled that the 

ninety-day time limit in which a plaintiff mustfile a Title 

VII action is akin to a statute of limitations rather than a 

jurisdictional bar. Therefore, the time limit is subject to 

tolling. See, e.g., Zipes v. Trans World Airlines, Inc., 455 

U.S. 385, 393 (1982) (holding that time limits in Title VII 

are not jurisdictional but are instead like statutes of 

limitations); Oshiver v. Levin, Fishbein, Sedran & Berman, 

38 F.3d 1380, 1387 (3d Cir. 1994) (stating that time limits 

set forth in Title VII are analogous to statutes of limitations 

and are subject to equitable modifications). 

Under equitable tolling, plaintiffs may sue after the 

statutory time period for filing a complaint has expired if 

they have been prevented from filing in a timely manner 

due to sufficiently inequitable circumstances. Ellis v. 

General Motors Acceptance Corp., 160 F.3d 703, 706 (11th 

Cir. 1998); Naton v. Bank of California, 649 F.2d 691, 696 

(9th Cir. 1981); Mathews v. Little, Civ. A. No. 92-CV-1114, 

1992 WL 192542, *2 (E.D. Pa. July 31, 1992). The caselaw 

is instructive. The Supreme Court has held that equitable 

tolling may be appropriate when a claimant received

inadequate notice of her right to file suit, where a motion 

for appointment of counsel is pending, or where the court 

has misled the plaintiff into believing that she had done 

everything required of her. See Baldwin County Welcome 

Ctr. v. Brown, 466 U.S. 147, 151 (1984). In United States v. 

Midgley, 142 F.3d 174 (3d Cir. 1998), we expressed a 

willingness to invoke equitable tolling in a number of other 

circumstances: when the defendant has actively misled the 

plaintiff; when the plaintiff "in some extraordinary way" was 

prevented from asserting her rights; or when the plaintiff 

timely asserted her rights in the wrong forum. See id. at 

179; Oshiver, 38 F.3d at 1387. See also Miller v. New 

Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d 

Cir. 1998) (equitable tolling is an appropriate remedy when 

principles of equity would make a rigid application of the 

statute of limitations unfair); Shendock v. Office of Workers' 

Compensation Programs, 893 F.2d 1458, 1462 (3d Cir.

1990) (same). 

Although the Supreme Court has repeatedly recognized 

the equitable tolling doctrine, it also has cautioned that 

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"[p]rocedural requirements established by Congress for 

gaining access to the federal courts are not to be 

disregarded by courts out of a vague sympathy for 

particular litigants." Baldwin, 466 U.S. at 152. We too have 

exercised caution in using the doctrine. In Mosel, we 

emphasized the importance of adhering to the EEOC's

ninety-day filing period, holding that "in the absence of a 

recognized equitable consideration, the court cannot extend 

the limitations period by even one day." 789 F.2d at 253 

(citations omitted). We therefore approach the doctrine 

warily, so as to guard against possible misuse. 

Seitzinger alleges that the facts of her case fit into 

Midgley's second category: namely, that this is an 

"extraordinary" case where she was prevented from timely 

asserting her rights because of gross attorney error. The 

usual rule is that attorney errors will be attributed to their 

clients. See United States v. Boyle, 469 U.S. 241, 252 

(1985) (client may be penalized for counsel's tardy filing of 

tax return); Link v. Wabash, 370 U.S. 626, 633 (1962) 

(client must suffer the consequence of dismissal of his 

lawsuit where his attorney failed to attend pretrial 

conference). 

Nonetheless, some courts have found it appropriate to 

toll the statute of limitations in cases of attorney mistake. 

See, e.g., Cantrell, 60 F.3d at 1180 (holding that where 

client was abandoned by attorney due to attorney's mental 

illness, equitable tolling may be appropriate). In Burton v. 

United States Postal Serv., 612 F. Supp. 1057, 1059 (N.D. 

Ohio 1985), the court applied equitable tolling to the 

plaintiff's claim because his attorney "irresponsibly 

abandoned his client and the case and left town." Finding 

that the plaintiff had been diligent in pursuing his claim, 

that the defendant's interest in prompt notice of claims 

against it had not been substantially damaged by the delay, 

and that to penalize the plaintiff in this case would defeat 

the remedial purpose of Title VII, the court tolled the 

EEOC's filing deadline. Id. Likewise, in Volk v. Multi-Media, 

Inc., 516 F. Supp. 157, 161-62 (S.D. Ohio 1981), the 

plaintiff's attorney failed to timely inform the Department of 

Labor that his client intended to sue his former employer 

under the Age Discrimination in Employment Act. The

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court took into account the fact that the plaintiff's attorney 

was inept and sloppy, that the defendant suffered no 

prejudice, and that the plaintiff was diligent infinding out 

about the ADEA and hiring an attorney. The court 

concluded that it was unwilling to visit the errors of that 

lawyer on his client. Id. at 162. 

In the context of a Title VII claim, the Supreme Court has 

warned, "[T]he principles of equitable tolling . . . do not 

extend to what is at best a garden variety claim of

excusable neglect" by an attorney. Irwin, 498 U.S. at 96. In 

Irwin, the plaintiff's lawyer was out of the country when the 

right-to-sue letter was delivered to his office. Although the 

statute of limitations in that case was thirty days, the 

lawyer filed suit forty-four days later, albeit only twentynine days after his client received his copy of the letter. 

Since the lawyer's only excuse was his absence from the 

office, the Court refused to apply equitable tolling. See id. 

We therefore must decide whether Sloane's behavior, as 

reflected by the present record, is of a type that goes 

beyond garden variety neglect. 

We conclude that it is. Sloane's level of misbehavior went 

well beyond the garden variety, because Sloane 

affirmatively lied to his client. When she called Sloane in 

early September to check on the status of the complaint, 

Sloane assured her that he had filed it, when in fact he had 

not. In addition, he promised her a number of times that he 

would send or had sent her a copy of the complaint, yet he 

never did. We agree with the Hospital that the mere fact 

that counsel failed to file the complaint in a timely manner 

probably constitutes garden variety neglect. But his 

affirmative misrepresentations to his client about the very 

filing at issue here rise above that standard. The Supreme 

Court's declaration in Irwin that garden variety attorney 

neglect is an insufficient reason to invoke equitable tolling 

therefore does not control the outcome in this case. 

We conclude that Seitzinger has adduced facts sufficient 

to overcome summary judgment on the equitable tolling 

issue. First (and importantly), Seitzinger appears to have 

been extremely diligent in pursuing her claim. See Irwin, 

498 U.S. at 96 (implying that the Court has been more 

forgiving of late filings where claimant exercised due 

 9 
diligence in preserving his rights); New Castle County v. 

Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) 

(stating that to invoke equitable tolling, a party must show 

that it exercised reasonable diligence in investigating and 

bringing its claims). She hired an attorney to help her file 

her civil complaint. She contacted him before thefiling 

deadline, which she knew about in broad terms, to ensure 

that he had filed the complaint. In addition, she repeatedly 

called him, requesting a copy of the complaint and seeking 

information on how her case was progressing.2 We think 

that these examples of her consistent assiduousness, if 

true, would weigh heavily in favor of equitable tolling. 

In addition to Seitzinger's diligence as a client, it is 

important to consider whether she had actual or 

constructive notice of the filing requirement, and whether 

her lack of knowledge was reasonable. It appears from the 

facts before us that she lacked notice of the exact date on 

which her complaint had to be filed, although she had a 

general idea that her complaint had to be filed towards the 

end of September. It may be that her lack of knowledge of 

the specific filing date was not reasonable, since she 

received the EEOC's letter, but then again her putative 

knowledge may have been eroded by her attorney's 

misrepresentations. Moreover, the defendants have 

proffered no evidence of prejudice as a result of the one- or 

two-day delay in filing. Although courts may not rely on 

lack of prejudice as a determinative factor, once a factor 

that might justify equitable tolling is identified, prejudice is 

a factor to be considered. See Baldwin, 466 U.S. at 152. 

Given this welter of material, countervailing factors, we 

believe that the District Court was mistaken in concluding 

that Seitzinger has not presented material issues of fact 

such that a reasonable factfinder could conclude that her 

diligence, coupled with her attorney's direct lies about 

_________________________________________________________________ 

2. We note that she continued to be diligent after she learned that her 

attorney had effectively abandoned her. She picked up her files from him 

and contacted the District Court to check on the status of her case. She 

consulted with ten to fifteen attorneys, trying to determine whether there 

was a way to get her case reinstated by the Court. Finally, she moved 

(successfully) for the District Court to vacate the dismissal of her case. 

 10 
whether he had filed her complaint and an absence of 

prejudice to the defendant, created a situation appropriate 

for tolling. We must therefore reverse the grant of summary 

judgment. However, since the sensitive decision as to 

whether to equitably toll the time limit involves weighing 

and balancing (and possibly further factual development), 

we will leave the decision of whether to apply equitable 

tolling to the discretion of the District Court in the first 

instance. The judgment of the District Court will be 

reversed and the case remanded for further proceedings 

consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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