Gerald Menson v. City of Baton Rouge, et al, No. 13-30091 (5th Cir. 2013)

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Case: 13-30091 Document: 00512351879 Page: 1 Date Filed: 08/23/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 13-30091 Summary Calendar August 23, 2013 Lyle W. Cayce Clerk GERALD MENSON, Plaintiff - Appellant, v. CITY OF BATON ROUGE; DEPARTMENT OF PUBLIC WORKS, Defendants - Appellees. Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:12-CV-131 Before KING, DAVIS, and ELROD, Circuit Judges. PER CURIAM:* Gerald Menson ( Menson ) appeals the district court s dismissal of his federal and state law claims against the City of Baton Rouge and its Department of Public Works ( DPW ). For the reasons stated below, we AFFIRM. I. Menson filed this claim on March 2, 2012, alleging that his former employers, the City of Baton Rouge and the DPW, unlawfully terminated him * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 13-30091 Document: 00512351879 Page: 2 Date Filed: 08/23/2013 No. 13-30091 on the basis of age and race. After filing multiple charges of discrimination and retaliation with the Equal Employment Opportunity Commission ( EEOC ) and the Louisiana Commission on Human Rights ( LCHR ), Menson received a final Dismissal and Notice of Rights from the EEOC on September 6, 2011. The Notice informed Menson that he must file suit within ninety days of receipt of the Notice in order to retain his right to sue on that charge. On November 28, 2011, Menson requested a ninety-day extension. The EEOC denied this request verbally in a telephone call. This denial was further confirmed in an undated letter that stated as follows: This will confirm our telephone conversation of today wherein you were advised that the EEOC could not extend the ninety days to file a lawsuit in the subject charge of employment discrimination. Menson filed this complaint against the City of Baton Rouge and the DPW on March 2, 2012, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act of 1969 ( ADEA ), 29 U.S.C. § 621 et seq., and the Louisiana Employment Discrimination Law ( LEDL ), La. Rev. Stat. § 23:301 et seq., La. Rev. Stat. 23:967 (Louisiana Whistleblower Statute, and La. Rev. Stat. 30:2027 (Louisiana Environmental Whistleblower Statute). The district court dismissed his claims on the basis of prescription. This appeal followed. II. Menson s claims under Title VII and the ADEA have prescribed. Once a plaintiff has received a right to sue letter from the EEOC, he has ninety days to file a suit or he loses the right to pursue his claims. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002); St. Louis v. Texas Worker s Comp. Comm n, 65 F.3d 43, 47 (5th Cir. 1995). We strictly construe the ninetyday limitation period. Taylor, 296 F.3d at 379. Menson argues that the letter confirming the denial of his extension of time request was ambiguous and constituted his actual right to sue letter, with the ninety-day deadline starting upon its receipt. However, the letter clearly 2 Case: 13-30091 Document: 00512351879 Page: 3 Date Filed: 08/23/2013 No. 13-30091 explains, your dismissal and notice of rights was issued on September 6, 2011. It then provides a copy of the instructions that were attached to the September 6th letter, explaining the ninety-day deadline. Menson is correct that the equitable tolling doctrine can, in rare circumstances, serve to suspend prescription. Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). We apply this doctrine, however, only sparingly, Irwin v. Dep t of Veterans Affairs, 498 U.S. 89, 96 (1990). It is not appropriate here, where Menson knew of his rights and failed to act. It is also undisputed that more than one year has passed between the last act of which Menson complained and the time he filed the complaint; therefore, his state claims have also prescribed. See, e.g., Rubinstein v. Adm rs of Tulane, 58 F. Supp. 2d 702, 708 (E.D. La. 1998) aff'd in part, remanded sub nom. Rubinstein v. Adm rs of Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000); Langley v. Pinkerton s Inc., 220 F. Supp. 2d 575, 581 (M.D. La. 2002). III. For the reasons stated herein, we AFFIRM the district court s dismissal of Menson s claims. 3