[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11788

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D.C. Docket No. 3:13-cv-00079-BJD-JRK

TYQUISHA M. STAMPER,

 Plaintiff-Appellant,

versus

DUVAL COUNTY SCHOOL BOARD,

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_______________________

(July 18, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and 

MOORE,* District Judge.

WILLIAM PRYOR, Circuit Judge: 

 * Honorable K. Michael Moore, United States District Chief Judge for the Southern District of 

Florida, sitting by designation. 

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This appeal requires us to decide whether the Equal Employment 

Opportunity Commission revived an employee’s claim of discrimination—

otherwise barred by the statute of limitations—when it vacated a two-year-old 

dismissal of the employee’s administrative charge and the Department of Justice 

issued the employee a new notice of the right to sue her employer. If the 

Commission cannot, we must also decide whether the employee’s mental health 

condition equitably tolled the limitations period for her claim of discrimination. In 

2007, Tyquisha Stamper filed with the Commission a charge of race and disability 

discrimination against her employer, the Duval County School Board, 42 U.S.C. 

§§ 2000e-2, 12112. In 2009, the Commission dismissed Stamper’s charge and 

provided her notice of her right to sue the Board within 90 days, but Stamper failed 

to file suit within that period. In 2011, she filed a request for reconsideration with 

the Commission, which then vacated the dismissal of her first charge. The 

Department of Justice later granted Stamper’s request for a new notice of her right 

to sue about the same allegations of discrimination, and she filed suit within 90 

days of the second notice. But the district court dismissed Stamper’s complaint as 

untimely because she failed to file it within 90 days of receiving the first notice of 

her right to sue and failed to establish that she was entitled to equitable tolling of 

the limitations period. Because the Commission lacked the authority to issue the 

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second notice of the right to sue and Stamper failed to establish she was entitled to 

equitable tolling, we affirm.

I. BACKGROUND

In 2007, Stamper filed with the Commission a charge of race and disability 

discrimination against the Board. On February 26, 2009, the Commission 

dismissed her charge because it could not “conclude that the information obtained 

[in its investigation] establishe[d] violations of the statutes.” The Commission also

provided Stamper notice that she could file a lawsuit against the Board based on 

the conduct alleged in her charge within 90 days of her receipt of the notice.

Stamper failed to file suit within that period. 

More than two years later, on July 19, 2011, Stamper filed a request for 

reconsideration with the Commission. On December 15, 2011, the Commission 

sent Stamper a “Notice of Revocation” that “vacate[d] th[e] dismissal [of 

Stamper’s first charge] and revoke[d] the letter terminating processing of th[at]

charge.” The Commission stated that it issued the notice under a regulation that 

permits the Commission to reconsider a decision to dismiss a charge. See 29 C.F.R. 

§ 1601.19(b). 

Stamper then filed a second charge against the Board based on the same 

allegations in her first charge, and she requested another notice of her right to sue, 

which the Department of Justice sent her on November 5, 2012. The Department of 

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Justice, instead of the Commission, issued the second notice of Stamper’s right to 

sue based on a regulation that requires that the Attorney General issue the notice of 

the right to sue when a party files a charge against a government, governmental 

agency, or political subdivision and requests a notice of the right to sue. See 29 

C.F.R. § 1601.28(d)(2). Whether the Commission or the Department of Justice

issued the second notice of the right to sue makes no difference in this appeal. 

On January 18, 2013, Stamper filed a pro se complaint against the Board 

that alleged that it had discriminated against her on the basis of race and disability

in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and 

Title I of the Americans with Disabilities Act, id. § 12111, et seq., and caused her 

to develop catatonic schizophrenia. The Board moved to dismiss the complaint as 

untimely because Stamper failed to sue within 90 days of receiving the first notice 

of her right to sue. The district court agreed that Stamper’s complaint was 

untimely, but denied the motion to dismiss without prejudice to permit limited 

discovery about whether equitable tolling was warranted. After discovery, the 

district court granted summary judgment in favor of the Board. It found that

Stamper could have pursued her lawsuit within the original 90-day period, and 

even if she could not have done so, she failed to justify her more than three-year 

delay in filing suit.

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II. STANDARD OF REVIEW

“This Court reviews de novo summary judgment rulings and draws all 

inferences and reviews all evidence in the light most favorable to the non-moving 

party.” Craig v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011) (quoting Moton 

v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)). 

III. DISCUSSION

We divide our discussion in two parts. First, we explain that Stamper’s 

complaint is untimely because the second notice of her right to sue—issued after 

her original limitations period expired—failed to revive the limitations period.

Second, we explain that Stamper failed to establish that she is entitled to equitable 

tolling based on her psychiatric condition.

A. Stamper’s Complaint Is Untimely.

An employee must exhaust administrative remedies before filing a complaint 

of discrimination under Title VII of the Civil Rights Act and Title I of the 

Americans with Disabilities Act. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 

(11th Cir. 2001) (Title VII); see Maynard v. Pneumatic Prods. Corp., 256 F.3d 

1259, 1262 (11th Cir. 2001) (Americans with Disabilities Act). “The first step 

down th[e] path [to exhaustion] is filing a timely charge of discrimination with the 

[Commission].” Wilkerson, 270 F.3d at 1317. If the Commission determines after 

an investigation “that there is not reasonable cause to believe that the charge is 

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true, it shall dismiss the charge and promptly notify” the employee. 42 U.S.C. 

§ 2000e-5(b). When the employee receives a notice of dismissal from the 

Commission, she has 90 days to file a civil action against the employer. Id.

§ 2000e-5(f)(1). 

A regulation permits the Commission to reconsider a decision to dismiss a 

charge, 29 C.F.R. § 1601.19(b), but the effect of that decision on the timing for 

filing a civil action depends on when the Commission issues its notice of intent to 

reconsider. If the Commission issues a notice of intent to reconsider “within 90 

days of [the charging party’s] receipt of the final no cause determination,” then the 

issuance of the notice “revoke[s] the charging party’s right to bring suit within 90 

days” so long as the charging party has not yet filed suit and has not requested and 

received a notice of her right to sue. Id. But “[i]f the 90 day suit period has 

expired,” then “the notice of intent to reconsider . . . shall not revoke the charging

party’s right to sue in 90 days.” Id. When, after reconsideration, the Commission 

issues a new determination, only “[i]n those circumstances where the charging 

party’s right to bring suit in 90 days was revoked . . . shall [the determination]

include notice that a new 90 day suit period shall begin upon the charging party’s 

receipt of the determination.” Id.

The regulation makes clear that the Commission lacked the authority to 

revive Stamper’s claim of discrimination; that is, neither the Commission nor the 

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Department of Justice had the authority to issue Stamper a new notice of her right 

to sue the Board. Stamper’s original notice of her right to sue was not revoked 

when the Commission reconsidered dismissal of her administrative charge. The 

regulation contemplates the issuance of a new notice of the right to sue only when 

the original notice was revoked, which means that the regulation does not allow the 

Department of Justice to issue a new notice of the right to sue when the original 

notice was not revoked. See Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 107 (2012) (“The expression of one thing implies the 

exclusion of others . . . .”). When the Commission issued Stamper a notice of intent 

to reconsider after her original limitations period for filing suit had expired, the 

notice of intent to reconsider failed to revoke Stamper’s original notice of her right 

to sue within 90 days. 

The regulation codified an equitable rule followed by our predecessor court 

that the Commission could restart the running of the limitations period by issuing a 

second notice of the right to sue only if the Commission issued a notice of intent to 

reconsider before the expiration of the original limitations period. In Gonzalez v.

Firestone Tire & Rubber Co., the Fifth Circuit balanced two competing 

considerations that concerned whether the Commission had the authority to issue a 

second notice of the right to sue. 610 F.2d 241, 246 (5th Cir. 1980). On the one 

hand, the court explained that granting authority to the Commission to issue a 

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second right to sue “would vitiate the limitation periods mandated by Congress in 

favor of ad-hoc determinations by the [Commission].” See id. On the other, the 

court considered the fairness of allowing reconsideration “prior to the expiration of 

the period in which the plaintiff could permissibly file suit under the first right-tosue notice.” Id. Our predecessor court held that a notice of intent to reconsider 

issued by the Commission had no effect on the running of the limitations period

unless issued before the expiration of that period. Id. Two of our sister circuits 

adopted that reasoning, see Lute v. Singer Co., 678 F.2d 844, 846 (9th Cir. 1982) 

(holding that the Commission has the authority to rescind a notice to sue only 

when it “decides to reconsider and notifies all parties of its decision within 90 days 

after it first issues a Notice of Right to Sue”); Trujillo v. Gen. Elec. Co., 621 F.2d 

1084, 1086–87 (10th Cir. 1980) (same).

A decision of the District of Columbia Circuit, issued after the Commission 

codified section 1601.19(b) and authored by then-Judge Ruth Bader Ginsburg, also 

supports our interpretation. Dougherty v. Barry involved a group of firemen who 

filed a charge of racial discrimination. 869 F.2d 605, 606–07 (D.C. Cir. 1989).

More than 90 days after the Commission dismissed the charge and provided the 

firemen notice of their right to sue, the Commission issued a notice of intent to 

reconsider. Id. at 607–08. When the Justice Department later decided not to pursue 

litigation, it issued the firemen a second notice of their right to sue, and the firemen 

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sued within 90 days. Id. at 608. Judge Ginsburg explained that reconsideration of a 

charge under section 1601.19(b) “reopens the door to a private action only when 

the reconsideration itself occurs within ninety days of the issuance of a right to sue 

notice.” Id. at 610. Because the Commission notified the fireman of its intent to 

reconsider more than 90 days after the issuance of the first right to sue notice, “the 

Commission’s reconsideration did not revive [the] right to sue.” Id. And although 

the regulation “does not advert to the effect of a second right to sue letter,” Judge 

Ginsburg explained that “the regulation contemplates . . . that second notices shall 

issue only when the [Commission] notifies complainants of its intent to reconsider 

within ninety days of the first notice of right to sue.” Id. at 610–11. As a result, the 

second notice of the right to sue failed to start a new limitations period. Id. at 611. 

As in this appeal, the “issuance of a second right to sue letter do[es] not alter the 

fact that the [Commission] did not notify [the firemen] of its intent to reconsider 

the[] charges within ninety days of the first notice.” Id. For that reason, the D.C. 

Circuit concluded that “[t]he second notice . . . should not work to recover a lost 

right to sue.” Id.

Stamper argues that the notice she received was not a notice of intent to 

reconsider but instead was a “notice of revocation” that explicitly revoked her first 

notice of the right to sue, but we disagree. Stamper received a notice of intent to 

reconsider. The notice stated that it was issued “[u]nder the authority vested” by 

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section 1601.19(b), which governs notices of intent to reconsider. And it stated that 

it “vacate[d]” the earlier dismissal of Stamper’s charge and “revoke[d] the letter 

terminating processing of the charge,” which is consistent with the authority 

granted to the Commission by section 1601.19(b) to “vacate the letter of 

determination.” Stamper also fails to cite any statute or regulation that grants the 

Commission the authority to issue a “notice of revocation” or otherwise vacate a 

notice of the right to sue outside of the circumstances provided in section 

1601.19(b). 

We agree with the district court that the second notice of the right to sue 

failed to revive Stamper’s limitation period. Section 1601.19(b) permits the 

issuance of a new notice of a right to sue only after the Commission issues a notice 

of intent to reconsider before the expiration of the original limitations period. 

Because the Commission issued Stamper a notice of intent to reconsider years after 

her limitations period expired, the notice failed to revive her right to sue. 

B. Stamper’s Psychiatric Condition Did Not Equitably Toll the Limitations

Period.

Stamper argues that even if her complaint is untimely, she is entitled to 

equitable tolling because her catatonic schizophrenia prevented her from filing suit. 

The timely-filing requirements of Title VII of the Civil Rights Act and Title I of 

the Americans with Disabilities Act are non-jurisdictional and subject to equitable 

tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Zillyette v. 

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Capital One Fin. Corp., 179 F.3d 1337, 1342 (11th Cir. 1999). “Equitable tolling 

is appropriate when a movant untimely files because of extraordinary 

circumstances that are both beyond [her] control and unavoidable even with 

diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Mental 

incompetence can be an extraordinary circumstance that warrants equitable tolling 

if a plaintiff “establish[es] a causal connection between his alleged mental 

incapacity and his ability to file a timely petition.” Lawrence v. Florida, 421 F.3d 

1221, 1226 (11th Cir. 2005) (emphasis added), aff’d 549 U.S. 327 (2007). But 

Stamper bears the burden of proving that equitable tolling of the limitations period 

is appropriate. Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 661 (11th Cir. 

1993).

Stamper has failed to establish a causal connection between her 

schizophrenia and her delay in filing a complaint. Because Stamper stated that she 

received the letter “at or about” March 2, 2009, the 90-day limitations period began 

to run on that date and expired on June 1, 2009. The record belies any assertion 

that Stamper’s medical condition prevented her from filing suit within the 

limitations period. Stamper testified at her deposition that when she received the 

notice of her right to sue from the Commission, she called an attorney hotline. She 

stated that she understood that she had four years to file in state court and 90 days 

to file in federal court. On April 6, 2009, during the limitations period, she drove 

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herself to an appointment with her psychiatrist, who noted in Stamper’s medical 

record that although Stamper “had a blunted affect and a dysphoric mood,” she 

was “oriented,” “happy,” “alert,” and spoke at a “normal rate.” And Stamper 

collected disability benefits in March 2009 and cashed her disability checks herself 

until April 2009, when her mother was put in charge of her finances. The record 

also contradicts Stamper’s assertion that her medical condition prevented her from 

filing suit until January 18, 2013. The last medical record Stamper submitted to the 

district court, dated August 23, 2010, describes Stamper as “cooperative,” speaking 

at a normal rate, “alert,” “oriented” and “present.” We cannot infer from this record 

that Stamper’s medical condition prevented her from filing suit. Stamper failed to

establish she is entitled to equitable tolling. 

IV. CONCLUSION

We AFFIRM the judgment dismissing Stamper’s complaint with prejudice. 

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