USCA1 Opinion
October 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1801
AKRAM AL-WARDI,
Plaintiff, Appellant,
v.
COMMAND AIRWAYS/AMERICAN EAGLE,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Akram Al-Wardi on brief pro se.
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John C. Kane, Jr., Robert B. Gordon and Ropes & Gray on brief for
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appellee.
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Per Curiam. Akram Al-wardi, a pilot with Command
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Airways/American Eagle, was terminated from his employment on
February 1, 1991. He had failed to report to work on January
22, 1991 and falsely claimed that he timely called in sick
prior to his reporting time. He filed a complaint with the
United States Equal Employment Opportunity Commission (EEOC),
alleging that his discharge was a pretext for discrimination
on the basis of his national origin. Al-wardi is a
naturalized United States citizen, who was born in Iraq. The
EEOC found no violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. 2000e et seq. (Title VII).
It issued a right-to-sue letter, which Al-wardi received on
May 3, 1993. That letter unambiguously informed Al-wardi
that he had 90 days in which to file a federal lawsuit.
The 90-day period expired on Sunday, August 1, 1993. A
lawsuit, therefore, would have been timely if filed on
Monday, August 2. Al-wardi filed a complaint in federal
district court on Tuesday, August 3. Timeliness was not Al-
wardi's only problem. The lawsuit alleged only a violation
of 42 U.S.C. 1981, which Al-wardi now concedes is not an
appropriate basis for his claim. Section 1981 reaches racial
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discrimination. While racial discrimination encompasses
discrimination based on ancestry or ethnic characteristics
for purposes of 1981 protection, Saint Francis College v.
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Al-Khazraji, 481 U.S. 604, 613 (1987), Al-wardi did not
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allege discrimination based on his being an Arab. Rather,
his claim of discrimination was solely based on his place of
origin, Iraq - a claim not covered by 1981. Id.1
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Command Airways moved to dismiss and, in response, Al-
wardi moved for leave to amend his complaint to assert a
Title VII claim. The district court held a hearing, at which
time it concluded that amendment to assert a Title VII claim
would be futile because the complaint, in any event, was
untimely and there were no equitable grounds for tolling the
90-day filing period. It denied Al-wardi leave to amend and
granted Command Airways' motion to dismiss. Al-wardi has
appealed. We affirm.
The district court correctly recognized that the 90-day
filing period is not jurisdictional and is subject to
equitable tolling. Irwin v. Dep't of Veterans Affairs, 498
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U.S. 89, 95 (1990). During the period between receipt of the
EEOC right-to-sue letter and the filing of his complaint, Al-
wardi says that he attempted to obtain an attorney but was
unable to pay the fees quoted and that he then mailed his
complaint pro se on Monday, August 2, believing that if
mailed within 90 days the complaint would be timely.
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1. Further, as Al-wardi was discharged from employment prior
to the effective date of 101 of the Civil Rights Acts of
1991, which defines the term "make and enforce contracts" as
used in 1981 to include the termination of contracts, that
provision is inapplicable to him. See Rivers v. Roadway
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Express, Inc., 114 S. Ct. 1510 (1994).
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The district court was not clearly erroneous when it
concluded that those factors do not carry sufficient
equitable weight. "One who fails to act diligently cannot
invoke equitable principles to excuse that lack of
diligence." Baldwin County Welcome Ctr. v. Brown, 466 U.S.
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147, 151 (1984) (declining to find equitable tolling
applicable where pro se Title VII claimant failed timely to
file complaint despite being informed by the right-to-sue
letter and twice by the district court of the 90-day filing
period). The Court in Baldwin County Welcome Ctr.
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distinguished cases where a claimant had received inadequate
notice, a motion for appointment of counsel is pending and
equity would justify tolling the statutory period until the
motion is acted upon, the court had led the plaintiff to
believe that she had done everything required of her, or
where affirmative misconduct on the part of a defendant
lulled the plaintiff into inaction. Id. That a defendant
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may not have been prejudiced by an untimely filing is
irrelevant in the absence of any factor justifying equitable
tolling. Id. at 152.
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We, too, "hew to a 'narrow view' of equitable exceptions
to Title VII limitations periods." Rys v. U.S. Postal Serv.,
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886 F.2d 443, 446 (1st Cir. 1989) (quoting Mack v. Great
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Atlantic and Pacific Tea Co., 871 F.2d 179, 185 (1st Cir.
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1989)). In Rys, we found no error in the district court's
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refusal to toll the (then applicable 30-day) filing period
and permit amendment of complaint where a pro se claimant
filed a timely complaint, but one which failed to name the
proper defendant. Rys v. U.S. Postal Serv., 886 F.2d at 444-
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48. We were unpersuaded that the claimant was misled by the
notice in the right-to-sue letter and unconvinced that he had
acted with diligence in pursuing his claim when he waited
until the final day of the 30-day filing period to institute
the action and until the final day of the 120-day period
provided in Fed. R. Civ. P. 4 to effect service. Id. at 447-
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48.
In the instant case, the district court concluded that,
as Al-wardi conceded, this case is not one where either the
court or the defendant misled or lulled him into inaction
during the 90-day period and the notice in the right-to-sue
letter is clear and adequate. In light of precedent, the
district court correctly dismissed the complaint.
Al-wardi raises one additional point. The district
court apparently did not consider, presumably because no one
pointed it out, that the 90th day fell on Sunday, August 1,
so the complaint would have been timely in this case if filed
on the 91st day, which was Monday, August 2. It was not filed
on Monday, however. Rather, it was mailed on Monday and
filed on Tuesday.
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Al-wardi, for the first time in his appellate brief,
points out that the 90th day was a Sunday and suggests that
the district court would not have dismissed his complaint if
it had realized this. This is not so. The complaint was
untimely filed. Despite this, the court considered the
existence of equitable tolling factors and correctly found
none. The equities do not change even if the complaint was
only one day late, rather than two days late as apparently
assumed by the court. "In the absence of a recognized
equitable consideration, the court cannot extend the
limitations period by even one day." Rice v. New England
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College, 676 F.2d 9, 11 (1st Cir. 1982).
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For the reasons stated herein, the order of the district
court dismissing the complaint is affirmed.
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