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. e du/thir dc ir c uit_1999/10Filed 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 Jud ges and McLAUGHLIN, District Judge.*

(Filed January 15, 1999)

___________________________________________________ ______________

*Honorable Sean J. McLaughlin, United States Distri ct Judge for the Western District of Pennsylvania, sitting by design ation.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 Tit le VII case alleging gender and age discrimination by her former employer, defendant Reading Hospital and Medical Ce nter, requires us to decide when the circumstances surrou nding an attorney's misconduct are sufficient to merit eq uitable tolling of the statute of limitations. The appeal p erforce centers on the timeliness of the complaint. The Dis trict 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 nin ety days of the receipt of the EEOC's right-to-sue letter. The Court rejected Seitzinger's fall-back position that the t ime
deadline should have been extended under the doctri ne of equitable tolling because of the defalcations of he r 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

2disagree on equitable tolling. The district court p roceeded

on the theory that an attorney's delinquency is cha rgeable to the client and, at all events, is not a basis fo r equitable tolling. This is generally true, consistent with th e rule that equitable tolling is to be used sparingly, particul arly in the context of attorney default. However, where -- as h ere -- the allegation is that a diligent client persistent ly questioned the lawyer as to whether he had filed th e complaint in time, and he affirmatively misrepresen ted to her that he had, we think there is a sufficient cla im of attorney abandonment to bring the case within the n arrow 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 w ill reverse. Because the equitable tolling determination turns o n a weighing and balancing of factors, including the ex tent of attorney misconduct, the diligence of the client, a nd 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 ins tance. 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 mana ger and was suspended. She later was given the option t o resign or be fired, and she opted to resign. A few months later, she filed a complaint with the EEOC, allegin g age and gender discrimination. The EEOC concluded that ther e was sufficient evidence of a gender discrimination clai m. 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 co ver, a right-to-sue letter. The letter also stated that sh e could file a lawsuit within ninety days of receiving the right -to-sue
letter.

3On June 15, 1995, the EEOC sent the right-to-sue le tter

to Seitzinger, Sloane, and Reading Hospital. The Ho spital received its copy of the right-to-sue letter on Jun e 19. Seitzinger does not know when she and Sloane receiv ed their copies of the letter; she does not recall rec eiving 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, Seitzinge r 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. Seitzinge r called Sloane in early September to make sure that he hadf iled the complaint on time. Sloane assured Seitzinger th at 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 failur e 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 inqui re about the status of her case, that he was giving up his l aw practice. In fact, Sloane had been suspended from t he practice of law in October 1995. After picking up h er file from Sloane, Seitzinger called the Clerk of the Dis trict

Court to check on the status of her case and was to ld that her complaint had been dismissed.

On September 22, 1996, Seitzinger moved to vacate t he dismissal because her attorney had failed to serve the complaint and had been disbarred in July 1996. Alth ough the District Court granted her motion to vacate, an d 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 groun d that the complaint was not timely filed. This appea l 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. Cit y of Philadelphia, 161 F.3d 217, 219 (3d Cir. 1998).

4II.

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 lett er, for it
is from that date that we determine whether Seitzin ger's complaint was timely filed in federal court. If Sei tzinger 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 w hich 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 coun t from June 19, we conclude that there is still no ge nuine issue of material fact bearing on timeliness becaus e the ninety-day period still expired before she filed he r 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 an d within ninety days after the giving of such notice a civil action may be brought . . . ." Id. We have construed this prov ision to mean that the time for the filing of a complaint be gins to run when the plaintiff has notice of the EEOC's dec ision, which usually occurs on the date he receives a righ t-to-sue letter from the agency. See Mosel v. Hills Dep't St ore, 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. a t 252-53. Therefore, the date on which Seitzinger received th e letter
becomes critical.

When the actual date of receipt is known, that date controls. Dixon v. Digital Equip. Corp., 1992 WL 24 5867, *1 (4th Cir. Sept. 30, 1992) (unpublished disposition) ; Peete v. American Standard Graphic, 885 F.2d 331 (6th Cir. 1 989).

___________________________________________________ ______________

1. The statutorily-created ninety-day period starts when either the claimant or her attorney receives a right-to-sue le tter, whichever is earlier. See Irwin v. Department of Veterans Affair s, 498 U.S. 89, 92-93 (1990) (notice is received when the EEOC delivers i ts letter to a claimant or the claimant's attorney). Because we conclude th at Seitzinger received the letter no later than June 19, the date on which her attorney received
his letter is irrelevant.

5However, in the absence of other evidence, courts w ill

presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it. See Fed. R. Ci v. 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 t hree-day presumption attempts to ensure that the plaintiff h as the benefit of the full ninety-day period when the date of actual receipt is unknown.

Seitzinger states that she does not recall receivin g a right-to-sue letter directly from the EEOC. Neverth eless, the right-to-sue letter was addressed to her at the add ress at
which she has received information from the EEOC si nce 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 th e letter on June 19. While this evidence may not be of sufficie nt weight to rebut Rule 6(e)'s presumption, we need no t decide
this issue: even if we were to assume that the date the Hospital received its copy of the right-to-sue lett er was the date on which Seitzinger received hers, she still f ailed to file her complaint within ninety days of June 19. Ninety days from June 19 is September 17. Since September 17 wa s a Sunday, Seitzinger had until September 18 to file h er complaint. Because she, through her attorney, did n ot file the complaint until September 19, she failed to mee t 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 th at her suit would be deemed timely filed. The Court refuse d to do so, concluding that dereliction of counsel was an insufficient reason to invoke equitable tolling. Th e law is clear that courts must be sparing in their use of e quitable tolling. There are, however, narrow circumstances i n which the misbehavior of an attorney may merit such equit able relief. See, e.g., Cantrell v. Knoxville Community Dev. Corp., 60 F.3d 1177, 1180 (6th Cir. 1995) (equitable tolli ng may be appropriate where attorney has abandoned client)

.

6As 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 rath er than a jurisdictional bar. Therefore, the time limit is su bject to tolling. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that time limits in T itle VII are not jurisdictional but are instead like statute s of limitations); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994) (stating that tim e 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 t he statutory time period for filing a complaint has ex pired if they have been prevented from filing in a timely ma nner due to sufficiently inequitable circumstances. Elli s v. General Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998); Naton v. Bank of California, 649 F.2d 6 91, 696 (9th Cir. 1981); Mathews v. Little, Civ. A. No. 92- CV-1114, 1992 WL 192542, *2 (E.D. Pa. July 31, 1992). The ca selaw is instructive. The Supreme Court has held that equ itable 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 ha d done everything required of her. See Baldwin County Welc ome 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 misl ed the plaintiff; when the plaintiff "in some extraordinar y way" was prevented from asserting her rights; or when the pl aintiff timely asserted her rights in the wrong forum. See id. at 179; Oshiver, 38 F.3d at 1387. See also Miller v. N ew Jersey State Dep't of Corrections, 145 F.3d 616, 61 8 (3d Cir. 1998) (equitable tolling is an appropriate rem edy 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 recognize d the equitable tolling doctrine, it also has caution ed that

7"[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 abse nce of a recognized equitable consideration, the court canno t extend the limitations period by even one day." 789 F.2d a t 253 (citations omitted). We therefore approach the doct rine warily, so as to guard against possible misuse.

Seitzinger alleges that the facts of her case fit i nto Midgley's second category: namely, that this is an "extraordinary" case where she was prevented from t imely asserting her rights because of gross attorney erro r. The usual rule is that attorney errors will be attribut ed 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 (196 2) (client must suffer the consequence of dismissal of his lawsuit where his attorney failed to attend pretria l conference).

Nonetheless, some courts have found it appropriate to
toll the statute of limitations in cases of attorne y 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 "irresponsib ly
abandoned his client and the case and left town." F inding that the plaintiff had been diligent in pursuing hi s claim, that the defendant's interest in prompt notice of c laims against it had not been substantially damaged by th e delay, and that to penalize the plaintiff in this case wou ld defeat the remedial purpose of Title VII, the court tolled the EEOC's filing deadline. Id. Likewise, in Volk v. Mu lti-Media, Inc., 516 F. Supp. 157, 161-62 (S.D. Ohio 1981), th e plaintiff's attorney failed to timely inform the De partment of
Labor that his client intended to sue his former em ployer under the Age Discrimination in Employment Act. The

8court took into account the fact that the plaintiff 's attorney

was inept and sloppy, that the defendant suffered n o prejudice, and that the plaintiff was diligent infi nding 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 Co urt 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 countr y when the right-to-sue letter was delivered to his office. Al though the statute of limitations in that case was thirty days , the lawyer filed suit forty-four days later, albeit onl y 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 tollin g. 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 misbehavi or went well beyond the garden variety, because Sloane affirmatively lied to his client. When she called S loane in early September to check on the status of the compl aint, Sloane assured her that he had filed it, when in fa ct 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 time ly manner probably constitutes garden variety neglect. But hi s 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 at torney neglect is an insufficient reason to invoke equitab le tolling
therefore does not control the outcome in this case

.

We conclude that Seitzinger has adduced facts suffi cient to overcome summary judgment on the equitable tolli ng 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 mo re forgiving of late filings where claimant exercised due

9diligence in preserving his rights); New Castle Cou nty 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 investiga ting and bringing its claims). She hired an attorney to help her file her civil complaint. She contacted him before thefi ling deadline, which she knew about in broad terms, to e nsure that he had filed the complaint. In addition, she r epeatedly called him, requesting a copy of the complaint and seeking information on how her case was progressing.2 We th ink that these examples of her consistent assiduousness , if true, would weigh heavily in favor of equitable tol ling.

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 fr om the
facts before us that she lacked notice of the exact date on which her complaint had to be filed, although she h ad a general idea that her complaint had to be filed tow ards the end of September. It may be that her lack of knowle dge of the specific filing date was not reasonable, since she received the EEOC's letter, but then again her puta tive knowledge may have been eroded by her attorney's misrepresentations. Moreover, the defendants have proffered no evidence of prejudice as a result of t he one- or two-day delay in filing. Although courts may not re ly 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 facto rs, we believe that the District Court was mistaken in con cluding that Seitzinger has not presented material issues o f fact
such that a reasonable factfinder could conclude th at 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 st atus 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.

10whether he had filed her complaint and an absence o f

prejudice to the defendant, created a situation app ropriate 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 w eighing and balancing (and possibly further factual develop ment), we will leave the decision of whether to apply equi table tolling to the discretion of the District Court in the first instance. The judgment of the District Court will b e reversed and the case remanded for further proceedi ngs consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

11