UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 98-60196

(Summary Calendar)

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FRANCES ELAINE HOOD,

Plaintiff - Appellant,

versus

SEARS ROEBUCK AND COMPANY,

Defendant - Appellee.

Appeal from the United States District Court

for the Southern District of Mississippi

March 4, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge.

Francis Elaine Hood appeals the grant of summary judgment to Sears Roebuck and Company.

The district court held that Hood’s untimely filing of a charge with the Unit ed States Equal

Employment Opportunity Commission (“EEOC”) defeated her sexual harassment c l aim. In doing

so, it rejected the argument that equity required tolling the period during which Hood’s mental

incapacity rendered her unable to pursue her legal rights under Title VII. We affirm.-2-

We review a grant of summary judgment de novo. See United States v. Johnson, 160 F.3d

1061, 1063 (5th Cir. 1998). Summary judgment occurs when “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” F ED

. R. C IV

. P. 56(c). “After consulting applicable law in order to ascertain the material

factual issues, we consider the evidence bearing on those issues, viewing the facts and the inferences

to be drawn therefrom in the light most favorable to the non-mov[ing] [party ].” J ohnson, 160 F.3d

at 1063.

A Title VII claimant must file charges with the EEOC within 180 days after the alleged illegal

conduct. S ee 42 U.S.C. § 2000e-5(e)(1). This time limit operates as a statute of limitations. S ee

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234,

___

(1982). As such, it is subject to equitable tolling. S ee id. The claimant bears the burden of justifying

equitable tolling. See Blumberg v. HCA Management Co., 848 F.2d 642, 644 (5th Cir. 1988).

We have held equitable tolling to apply in the following situations: (1) during the pendency

of an action before a state court that has jurisdiction over the subject matter of the suit, but that is

the wrong forum under state law; (2) until the claimant knows or should know the facts giving rise

to her Title VII claim; and (3) when the EEOC misleads the claimant about the nature of her rights

under Title VII. S ee Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302 (5th Cir. 1979). We

have indicated that circumstances besides these might merit equitable tollin g. See Blumberg, 848

F.2d at 644-45.

Hood urges us to adopt “the traditional rule that mental illness tolls a statute of limitations1 Another district court has adopted a narrower rule, limit ing equitable tolling to when

the claimant has been institutionalized or adjudicated mentally incompetent. S ee Bassett v. Sterling

Drug, Inc., 578 F. Supp. 1244, 1248 (S.D. Ohio 1984).

2 Equity operates to estop the affirmative defense of failure to file a t imely EEOC charge

when the tardiness was caused by the defendant concealing facts or misleading the claimant. S ee

Rhodes v. Guiberson Oil Tools Co., 927 F.2d 876, 878-79 (5th Cir. 1991) (explaining the difference

between equitable estoppel and equitable tolling).

-3- . . . if the illness

. . . prevents the sufferer from managing his affairs and thus from understanding his

legal rights and acting upon them.” Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (emphasis

deleted); accord Speiser v. U.S. Dep’t of Health and Human Servs., 670 F. Supp. 380, 384 (D.D.C.

1986), aff’d, 818 F.2d 95 (D.C. Cir. 1987). Some district courts have resorted to this rule to decide

whether or not a Title VII claimant’s poor mental state supports tolling the 180-day period for filing

an EEOC charge. 1 See, e.g., Pulitzer v. Middleberg, Civ. A. No. 95-4004, 1996 WL 469689, at *5

(E.D. La. Aug. 16, 1 9 96) (adopting magistrate judge’s report and recommendation) (denying

equitable tolling because t he plaintiff failed to provide evidence showing “that she was mentally

incapacitated to the po int of being unable for 354 days to take the few steps necessary to file an

EEOC charge”); Moody v. Bayliner Corp., 664 F. Supp. 232, 235 (E.D.N.C. 1987) (“the period for

filing a charge with the EEOC in Title VII cases may be tolled, in the discretion of the court, for that

period of time which mental incapacity rendered the plaint iff incapable of pursuing any remedy”).

They have embraced it because “[s]uch a rule is clearly consistent with the remedial purposes of Title

VII” and “mental incompetence may in the proper circumstances be an even more compelling reason

for tolling the period than [equitable] estoppel or equitable tolling based on the plaint iff’s ignorance.” 2

Moody, 664 F. Supp. at 235.

We hold that, assuming the correctness of the approach Hood advocates, equitable tolling is3 As in Kerver v. Exxon Production Research Company, Civ. A. No. H-85-1525, 1986

WL 8872 (S.D. Tex. May 15, 1986), aff’d, 810 F.2d 196 (5th Cir. 1987), our decision makes

unnecessary consideration of how our holding in Quina v. Ow ens-Corning Fiberglas Corporation,

575 F.2d 1115, 1117-19 (5th Cir. 1978), that a barebones allegation of “emotional and mental shock”

was insufficient to support equitable tolling ji bes wit h t he view that equity may necessitate tolling

when the claimant is mentally incapacitated during the 180-day filing period. See id. at *3 (finding

no need to determine if Bassett was consistent with Quina ). (Although Q uina involved a claim under

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, it is relevant as to Title

VII. S ee Coke v. General Adjustment Bur. , Inc., 640 F.2d 584, 587, 594-95 (5th Cir. 1981) (en

banc) (finding Title VII an d ADEA cases interchangeable on the issue of timely filing of an

administrative charge).)

4 Hood says that ostracism and criticism suffered at the hands of co-workers unhappy

about the firing of the supervisor she had accused of sexual harassment served as the event triggering

the 180-day period. As that mistreatment ended in June, 1996, Hood posits that the clock started

then. Regardless of the legal viabilit y of Hood’s argument, we find it unavailing. Hood’s evidence

is insufficient to show that her co-workers ostracized and criticized her as late as June, 1996.

5 Hood hired her attorney on July 25, 1996.

-4- inapplicable in this case. 3 S ee K erver v. Exxon Prod. Research Co., Civ. A. No. H-85-1525, 1986

WL 8872, at *2-3 (S.D. Tex. May 15, 1986) (finding claim for equitable tolling unavailing even under

a rule allowing for equitable tolling based on mental incapacity), aff’d, 810 F.2d 196 (5th Cir. 1987).

The summary judgment evidence, viewed in the light most favorable to Hood, discloses that the event

triggering the period for filing an EEOC charge occurred no later than May 11, 1996. 4 Hood retained

counsel before the following 180 days passed. 5 This fact indicat es that her mental state did not

prevent her from pursuing her legal rights under Title VII during the filing period. Hood offers no

reason for arriving at a contrary conclusion. She, therefore, cannot justify equitable tolling and her

Title VII claim must be dismissed for failure to file a t imely EEOC charge. S ee Moody, 664 F. Supp.

at 236 (refusing to apply equitable tolling, in part, because “plaint iff had retained counsel before the

expiration of the EEOC filing period”); see also Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.

1987) (“assuming for the sake of argument that mental illness might sometimes toll the statute of-5-

limitations, we find that it cannot do so where a pla int iff has presented no strong reason for why

,

despite the assistance of counsel, he was unable to bring suit”); Cox v. Sears, Roebuck & Co., No.

91-259-CIV-T-17, 1994 WL 143019, at *3 (M.D. Fla. Mar. 31, 1994) (finding the facts insufficient

to justify equitable tolling for mental incapacity because counsel represented the claimant during the

filing period and the claimant did not give a reasonable explanation for why counsel could not have

handled the filing of the EEOC charge), aff’d, 69 F.3d 550 (11th Cir. 1995). That is what the district

court held. Accordingly, we affirm.