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.

FrancisElaine Hood appealsthe grant ofsummaryjudgment to SearsRoebuck andCompany.

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

Employment Opportunity Commission (“EEOC”) defeated her sexual harassment claim. 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.
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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.” FED. R. CIV. 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].” Johnson, 160 F.3d

at 1063.

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

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

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. See 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. See Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302 (5thCir. 1979). We

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

F.2d at 644-45. 

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

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

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

2 Equityoperatesto estop the affirmative defense offailure to file a timelyEEOCcharge

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

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

between equitable estoppel and equitable tolling).

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. . . 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 mentalstate 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, 1996) (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 point 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 plaintiff incapable of pursuing any remedy”).

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

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

for tolling the period than [equitable] estoppelor equitable tolling based on the plaintiff’signorance.”2

Moody, 664 F. Supp. at 235.

We hold that, assuming the correctness of the approach Hood advocates, equitable tolling is
3 AsinKerver 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. Owens-Corning Fiberglas Corporation,

575 F.2d 1115, 1117-19 (5thCir. 1978), that a barebones allegation of “emotional and mentalshock”

was insufficient to support equitable tolling jibes with the 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 ifBassett was consistent with Quina). (Although Quina involved a claimunder

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

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

banc) (finding Title VII and 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 ofthe supervisor she had accused ofsexual harassment served asthe event triggering

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

then. Regardless of the legal viability 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.

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inapplicable in this case.3 See Kerver v. Exxon Prod. Research Co., Civ. A. No. H-85-1525, 1986

WL8872, at *2-3 (S.D. Tex. May 15, 1986) (finding claimfor 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 summaryjudgment evidence, viewed in the light most favorable to Hood, disclosesthat 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 indicates 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 timelyEEOC charge. See Moody, 664 F. Supp.

at 236 (refusing to apply equitable tolling, in part, because “plaintiff 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
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limitations, we find that it cannot do so where a plaintiff 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 ofthe EEOC charge), aff’d, 69 F.3d 550 (11th Cir. 1995). That is what the district

court held. Accordingly, we affirm.