Filed: Feb. 20, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 2-20-2007 DiCroce v. Secretary Interior Precedential or Non-Precedential: Non-Precedential Docket No. 06-2117 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "DiCroce v. Secretary Interior" (2007). 2007 Decisions. Paper 1590. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1590 This decision is brought to you for free and open access by
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 2-20-2007 DiCroce v. Secretary Interior Precedential or Non-Precedential: Non-Precedential Docket No. 06-2117 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "DiCroce v. Secretary Interior" (2007). 2007 Decisions. Paper 1590. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1590 This decision is brought to you for free and open access by ..
More
Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-20-2007
DiCroce v. Secretary Interior
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2117
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"DiCroce v. Secretary Interior" (2007). 2007 Decisions. Paper 1590.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1590
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2117
____________
NICHOLAS F. DICROCE, JR.,
Appellant
v.
GALE A. NORTON,
SECRETARY, DEPARTMENT OF INTERIOR
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cv-06275)
District Judge: Honorable Edmund V. Ludwig
____________
Submitted Under Third Circuit LAR 34.1(a)
February 15, 2007
Before: SMITH and FISHER, Circuit Judges, and DOWD,* District Judge.
(Filed February 20, 2007)
____________
OPINION OF THE COURT
____________
*
The Honorable David D. Dowd, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
FISHER, Circuit Judge.
This case comes to us on appeal from the District Court’s February 28, 2006 order
dismissing Nicholas DiCroce’s discrimination and retaliation complaint as time-barred.
On appeal, DiCroce argues that the ninety-day limitation on the filing of his complaint
should be equitably tolled. For the reasons set forth below, we will affirm the decision of
the District Court.
I.
Because we write only for the parties who are familiar with the legal and factual
background of this case, we will recite only those facts necessary to our analysis.
DiCroce, a thirty-year employee of the National Park Service, filed a formal Equal
Employment Opportunity (“EEO”) complaint with the Department of the Interior on
May 20, 2003, claiming discrimination based on national origin and retaliation for his
assistance in a co-worker’s EEO complaint. On November 17, 2003, after the
Department of the Interior did not provide a report on its investigations of his claims
within 180 days, DiCroce, acting pro se, filed a motion in the District Court for leave to
proceed in forma pauperis. He attached to this motion a proposed civil complaint and
requested the appointment of an attorney. On November 25, 2003, the District Court
denied DiCroce’s motion and ordered that DiCroce pay the $150 filing fee or his case
would be dismissed. The District Court’s docket reflects that a copy of the order was
mailed to DiCroce on November 25, 2003, to the same address at which DiCroce has
lived since he first instituted the EEO complaint.
2
In the meantime, DiCroce’s initial EEO complaint continued through the
administrative process. The Department of the Interior issued a final agency decision on
January 30, 2004, finding that the Park Service had not discriminated against DiCroce.
DiCroce appealed the decision to the Equal Employment Opportunity Commission
(“EEOC”). The EEOC affirmed the decision of the Department of the Interior on
May 14, 2004, and issued DiCroce a right to sue letter, which notified DiCroce that he
must file in a federal district court within ninety days. DiCroce paid his fee to proceed in
forma pauperis on April 25, 2005, approximately seventeen months after he was first
ordered to do so, and served the Department of the Interior with his pro se complaint on
May 5, 2005, nearly a year after he received the right to sue letter.
Secretary of the Department of the Interior, Gale Norton, moved to dismiss the
action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim or, in the
alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. In
reply, DiCroce argued that the ninety-day filing requirement, which is treated like a
statute of limitations, should be equitably tolled because he did not receive the District
Court’s denial of his motion to proceed in forma pauperis until March 28, 2005, and
immediately ordered his attorney to pay the filing fee. The District Court disagreed,
finding that the docket sheet showing the November 25, 2003 mailing was prima facie
evidence that DiCroce received the notice and dismissed DiCroce’s complaint as
time-barred.
This timely appeal followed.
3
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. While the District Court
termed its order one dismissing the case, it is more properly termed an order granting
summary judgment, as it looked beyond the complaint to affidavits to make its
determination. Hughes v. United States, 263 F.3d 272, 278 (3d Cir. 2001) (finding that
the district court should have termed an order one granting summary judgment rather than
one dismissing the case where it considered information outside the complaint when
determining whether equitable tolling should apply). Therefore, we exercise plenary
review. Huber v. Taylor,
469 F.3d 67, 73 (3d Cir. 2006). Summary judgment shall be
granted “if 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). The moving party has the burden to prove there is no genuine issue of material
fact. Once it has met this burden, the burden shifts to the opposing party who must “make
a showing sufficient to establish the existence of [each] element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett,
477 U.S. 317, 322 (1986). We are satisfied that the District Court properly
granted summary judgment.
III.
Under Title VII, once a complainant has exhausted his administrative remedies and
received his right to sue letter, he has ninety days in which to file a complaint in a federal
4
district court. 42 U.S.C. § 2000e-5(f)(1). The ninety-day filing period is treated as a
statute of limitations. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d
465, 470 (3d Cir. 2001). DiCroce does not dispute that he did not file his complaint in the
District Court until nearly a year after he received his right to sue letter, suggesting his
claims are automatically time-barred. However, because Title VII’s exhaustion
requirements are not jurisdictional, Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393
(1982), they are subject to the doctrines of waiver, estoppel and equitable tolling. On this
appeal, DiCroce argues that the limitations period should be equitably tolled.
Equitable tolling is appropriate in Title VII cases where “the defendant has
actively misled the plaintiff; when the plaintiff ‘in some extraordinary way’ was
prevented from asserting her rights; or when the plaintiff timely asserted her rights in the
wrong forum.” Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir.
1999) (internal citations omitted). District courts are to apply equitable tolling sparingly.
Id. at 237. DiCroce argues that his case is one of the rare circumstances when equitable
tolling should apply because he believed he had appropriately filed a complaint with his
motion to proceed in forma pauperis and was not aware until well after the deadlines for
both his filing fee and complaint had passed that the District Court had denied that motion
and dismissed the attendant complaint.
If DiCroce could prove that he failed to receive the notice denying the District
Court’s order denying his motion to proceed in forma pauperis, his claim may fall under
our equitable tolling provision. However, he can make no such showing. In Title VII
5
cases, the plaintiff bears the burden of proving that equitable tolling applies. Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir. 2005). If DiCroce cannot provide sufficient
evidence that he did not receive the District Court’s notice, we will apply the presumption
of the Federal Rules that a party receives a document three days after it was mailed and
assume he received notice on November 28, 2003. See Fed. R. Civ. P. 6(e);
Seitzinger,
165 F.3d at 239; Bobbitt v. Freeman Cos.,
268 F.3d 535, 538 (7th Cir. 2001) (“The law
presumes timely delivery of a properly addressed piece of mail.”).
In support of his contention, DiCroce has provided an affidavit asserting that he
did not receive the District Court’s notice and that he followed up with the Clerk’s Office
monthly to request information on the status of his motion. However, DiCroce has failed
to provide any evidence of who he spoke to at the Clerk’s Office, what days he called, or
what the specific responses to his requests were. The docket sheet shows that the letter
was mailed to the address at which DiCroce had lived since the filing of his EEO
complaint. Further, there is no record of a second mailing or any other evidence to
explain why the letter would have arrived sixteen months later on March 28, 2005.
DiCroce’s unsupported assertion, based on the premise that a letter was misplaced in the
mail for sixteen months and finally arrived, is insufficient evidence to withstand summary
judgment. N.L.R.B. v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (unsupported, conclusory
statements are insufficient proof on summary judgment); Ness v. Marshall,
660 F.2d 517,
519 (3d Cir. 1981) (same).
6
Because DiCroce has provided insufficient evidence to prove that the filing period
should be equitably tolled, his claim is time-barred. He did not file his complaint until
nearly a year after he received his right to sue letter.
V.
For the reasons set forth above, we will affirm the decision of the District Court.
7
