1

Ward maintains that he received the notice on December 25,

2001. P. Br. 3. The court accepts this assertion as true in

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MOSES C. WARD, §

 §

Plaintiff, §

 § Civil Action No. 3:06-CV-0145-D

VS. §

 §

THE CITY OF DALLAS, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The dispositive question presented by defendant’s motion for

summary judgment is whether plaintiff’s lawsuit is time-barred.

Concluding that it is, the court grants defendant’s motion and

dismisses this case with prejudice.

I

Plaintiff Moses C. Ward (“Ward”) sues defendant City of Dallas

(the “City”), contending that the City discriminated against him

based on his race and sex, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and

retaliated against him when it discharged him from employment in

the Code Compliance Department in January 2001. Ward filed his

only charge of discrimination with the Equal Employment

Opportunities Commission (“EEOC”) on or about April 18, 2001. The

EEOC issued Ward a notice of right to sue on or about December 18,

2001, and Ward received it on December 25, 2001.1

 

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deciding the City’s motion.

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In March 2002 Ward filed his first suit against the City

arising from his termination. Proceeding pro se, he sued the City

under Title VII for sex discrimination, retaliation, and hostile

work environment. See Ward v. City of Dallas, Tex., No. 3:02-CV0549-K (Kinkeade, J.) (“Ward I”). Judge Boyle, then a magistrate

judge, granted him leave to proceed in forma pauperis and engaged

in the usual screening process. In August 2003 Judge Kinkeade

granted the City’s motion to dismiss and dismissed Ward I without

prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state

a claim on which relief could be granted. Id. 

Ward also filed suit against the City in 2002 in Texas state

court. Although the underlying facts were the same as in his

federal lawsuit, he asserted only a claim for intentional

infliction of emotional distress. The state court granted the

City’s plea to the jurisdiction and dismissed the case in July

2003.

In November 2004 Ward filed in this court a second pro se

action against the City. See Ward v. City of Dallas, No. 3:04-CV2413-K (Kinkeade, J.) (“Ward II”). Ward alleged in Ward II that

the City had discriminated against him based on his sex, in

violation of Title VII, and had retaliated against him and

subjected him to a hostile work environment. Although Ward

eventually retained an attorney to represent him in Ward II, he

 

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2

Because the court is dismissing Ward’s lawsuit as timebarred, it need not address the City’s res judicata argument.

3

The City also moves to strike Ward’s response to the City’s

motion because it was filed nine days after it was due and Ward did

not file a motion for leave to extend time to file a response.

Because Ward’s tardiness has not interfered with the decisional

process of the court and has not unduly prejudiced the City——the

court is granting its motion for summary judgment despite the late

response——the court declines to strike Ward’s response.

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failed to effect service on the City. Consequently, in August 2005

Judge Kinkeade again dismissed the case without prejudice, this

time under Fed. R. Civ. P. 4(m). 

On January 20, 2006, represented by the same attorney who

represented him in Ward II, Ward filed the instant lawsuit. The

City moves for summary judgment based on the affirmative defenses

of res judicata2

 and limitations.3 

II

The court need only consider the City’s contention that Ward’s

lawsuit is time-barred. 

A

Because limitations is an affirmative defense as to which the

City will have the burden of proof at trial, to obtain summary

judgment it “must establish ‘beyond peradventure all of the

essential elements of the . . . defense.’” Bank One, Tex., N.A. v.

Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995)

(Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190,

1194 (5th Cir. 1986)).

 

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B 

Title VII actions are governed by a statute of limitations

that requires that suit be brought within 90 days of the

plaintiff’s receipt from the EEOC of a notice of the right to sue.

42 U.S.C. § 2000e-5(f)(1). A court will dismiss a Title VII action

when the plaintiff files his claim after the 90-day statute of

limitations has expired. See Taylor v. Books A Million, Inc., 296

F.3d 376, 379 (5th Cir. 2002) (“Courts within this Circuit have

repeatedly dismissed cases in which the plaintiff did not file a

complaint until after the ninety-day limitation period had

expired.”). “This requirement to file a lawsuit within the ninetyday limitation period is strictly construed.” Id.

If a complaint is filed within the 90-day period but is

subsequently dismissed, the statute of limitations will bar a

second complaint that does not also fall within the 90-day period.

Carter v. Tex. Dep’t of Health, 119 Fed. Appx. 577, 579 (5th Cir.

2004) (per curiam); see also Price v. Digital Equip. Corp., 846

F.2d 1026, 1027 (5th Cir. 1988) (per curiam) (upholding dismissal

as untimely of Title VII claim filed outside 90-day limitations

period, even though original lawsuit was timely filed). For

example, in Carter the plaintiff timely filed his first Title VII

action within 90 days of receipt of his right to sue letters from

the EEOC. Carter, 119 F. Appx. at 579. The case was dismissed

without prejudice, and when the plaintiff filed a subsequent case

 

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on the same facts, more than 90 days had expired since the date he

had received his right to sue letters. Id. He argued that the

filing of his second case “related back” to the date of his

original pleading under Rule 15(c). Id. at 581. The court

disagreed, holding that the second complaint could not relate back

to the original complaint in another case because Rule 15(c)

applies only to pleadings within the same case. Id. The court

therefore upheld the dismissal of the plaintiff’s second action as

time-barred. Id. 

Ward received his notice of right to sue on December 25, 2001.

He filed the instant lawsuit against the City on January 20, 2006,

well after the 90-day period had expired. The City has therefore

shown beyond peradventure that this suit is barred by limitations.

C

Ward seeks to avoid the limitations bar on two principal

grounds. First, he contends that because he timely filed Ward I

within the 90-day period and Title VII does not contain a statute

of limitations, the court must look to Texas law and apply a twoyear limitations period and Texas tolling rules. Ward posits that

there is no authority that provides that, if a timely-filed lawsuit

is dismissed without prejudice, the plaintiff must comply again

with the 90-day period or file a second charge of discrimination

with the EEOC so that a new 90-day period can begin. The court

disagrees.

 

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Ward’s initial assertion lacks force because it is contrary to

settled law. Title VII claims are subject to a “ninety-day

limitation period.” Taylor, 296 F.3d at 379. The court therefore

applies a 90-day limitations period, not a two-year Texas statute

of limitations. And federal, not state, equitable tolling

principles apply. See, e.g., Neal v. Xerox Corp., 991 F. Supp.

494, 499 (E.D. Va. 1998) (holding that federal, not state,

equitable tolling principles applied to whether Title VII claim was

barred by limitations).

The court also rejects Ward’s contention regarding the effect

of the dismissal without prejudice of his timely-filed Title VII

lawsuit. Ward maintains that there is no authority for the premise

that, if a timely-filed lawsuit is dismissed without prejudice, the

plaintiff must comply again with the 90-day period or file a second

charge of discrimination with the EEOC so that a new 90-day period

can begin. This assertion, even if literally true as phrased, is

beside the point, because neither option is available to the

plaintiff to revive a time-barred claim. The plaintiff does not

get a second bite at the 90-day limitations period under either

scenario. 

In Price the Fifth Circuit held that a timely-filed Title VII

suit that was dismissed for want of prosecution did not toll the

90-day limitations period. Price, 846 F.2d at 1027 (citing Taylor

v. Bunge Corp., 775 F.2d 617, 618 (5th Cir. 1985) (per curiam)

 

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4

Ward’s contention that a plaintiff need not comply with the

90-day period once he has filed a timely Title VII lawsuit is at

least somewhat inconsistent with the rationale for equitable

tolling. If it were unnecessary to comply with the original 90-day

period, i.e., if a new 90-day period commenced following the

dismissal of each lawsuit, there would be no need to consider

whether the 90-day limitations period that was tied to receipt of

notice of the right to sue was equitably tolled.

- 7 -

(addressing voluntary dismissal)). Therefore, at least some Title

VII suits——those that were dismissed for want of prosecution or

dismissed voluntarily——did not toll the limitations period even

when they were dismissed without prejudice. In Berry v. CIGNA/RSICIGNA, 975 F.2d 1188 (5th Cir. 1992), the Fifth Circuit held more

broadly in the context of a Rule 41(b) involuntary dismissal that

“[i]f a Title VII complaint is timely filed pursuant to an EEOC

right-to-sue letter and is later dismissed, the timely filing of

the complaint does not toll the ninety-day limitations period.”

Id. at 1191. Applying these principles to Ward’s case, it is clear

that he can only obtain relief from the 90-day limitations period

if equitable tolling applies.4 See, e.g., Carmicheal v. Ingram

Ready-Mix, 2006 WL 505735, at *2 (W.D. Tex. Jan. 18, 2006) (holding

that where pro se plaintiff’s first Title VII case was dismissed

without prejudice for failure to prosecute and his second suit was

filed after 90-day limitations period, his suit was time-barred,

and noting that dismissal of timely-filed Title VII complaint did

not toll limitations period for subsequent suit and, barring some

equitable basis for tolling limitations period, failure to file

 

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5

See Diggs v. Cunningham, 2005 WL 2174956, *2 (N.D. Tex. 2005)

(Kaplan, J.) (“The Fifth Circuit has allowed equitable tolling

‘where the claimant has actively pursued his judicial remedies by

filing a defective pleading during the statutory period, or where

the complainant has been induced or tricked by his adversary’s

misconduct into allowing the filing deadline to pass.’” (quoting

Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. 1992)).

- 8 -

suit within 90 days precluded plaintiff from recovering for any

alleged discrimination that was the subject of the EEOC charge). 

Ward argues, second, that under the doctrine of equitable

tolling, the statute of limitations period was tolled while his

prior lawsuits were pending. He calculates that the non-excluded

time between January 20, 2001——the date of his discharge——and

January 20, 2006——the date he filed the instant lawsuit——does not

exceed two years, so this suit is timely. The court disagrees.

Even accepting the premise that the statute of limitations was

equitably tolled during the periods when his lawsuits were pending

in federal and state court,5 Ward’s argument assumes a two-year

limitations period, which the court has already rejected. When the

court applies the 90-day limitations period, it is clear that more

than 90 days of non-tolled time have elapsed. More than 14 months

elapsed between the time Ward I was dismissed and Ward filed Ward

II. Almost five months elapsed between the time Ward II was

dismissed and Ward filed this lawsuit. Consequently, even if based

on the doctrine of equitable tolling the court excludes from the

90-day calculation the periods when litigation was pending, Ward

still filed the instant suit well beyond the 90-day limitations

 

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period.

Accordingly, the City has established beyond peradventure that

Ward’s claim is barred by the statute of limitations, and it is

entitled to summary judgment.

* * * 

For the reasons explained, the court grants the City’s August

9, 2006 motion for summary judgment and dismisses this case with

prejudice by judgment filed today.

SO ORDERED.

December 6, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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