Abels v. Braithwaite

United States Court of Appeals
for the Fifth Circuit

No. 20-60118
Summary Calendar

Shirley Abels,

Plaintiff—Appellant,

versus

Kenneth J. Braithwaite, Secretary of the Navy,
Department of the Navy
1
,

Defendant—Appellee.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC 1:18-CV-196

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Shirley Abels appeals the district court’s dismissal of her 42 U.S.C.
§ 2000e et seq. (“Title VII”) action. The case was dismissed because her

1
Kenneth J. Braithwaite has been automatically substituted as a party as successor
to Richard V. Spencer. Fed. R. Civ. P. 25(d).
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 29, 2020

Lyle W. Cayce
Clerk
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No. 20-60118
2
claim was time barred under 29 C.F.R. § 1614.105(a)(1), as she failed to
initiate contact with an EEO counselor within 45 days of the alleged
discriminatory action.
In 2016, Abels was employed as a financial technician for Naval
Construction Group Two in Gulfport, Mississippi, with a GS-7 paygrade. On
September 18, 2016, Abels’s paygrade was reclassified to GS-6. Several
months later, on December 22, 2016, Abels learned information that led her
to believe her reclassification had been made on the basis of discriminatory
animus. She contacted an EEO counselor on January 30, 2017.
We review a district court’s grant of a motion to dismiss de novo. In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). It is
undisputed that Abels learned, on August 8, 2016, that her paygrade would
be reclassified. Nor is it disputed that her paygrade was downgraded on
September 18, 2016. But, Abels argues that the limitations period should have
begun on December 22, 2016, the date she became aware of the possibility
that animus motivated her paygrade reclassification.
The discovery rule is inapplicable to Abels’s discrimination claim.
“This Circuit has . . . consistently focused on the date that plaintiff knew of
the discriminatory act.” Merrill v. S. Methodist Univ., 806 F.2d 600, 605 (5th
Cir. 1986); see id. (“[The leading case on this subject] emphasizes that the
limitations period starts running on the date the discriminatory act occurs.”);
see also Miller v. Potter, 359 F. App’x 535, 537 (5th Cir. 2010) (per curiam)
(“To allow plaintiffs to raise employment discrimination claims whenever
they begin to suspect that their employers had illicit motives would
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No. 20-60118
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effectively eviscerate the time limits prescribed for filing such complaints.”
(quoting Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992))).
2

Furthermore, even viewing the allegations in the light most favorable
to Abels, as this court must, Abels fails to assert sufficient factual details to
avail herself of any of the equitable doctrines that could keep her claim alive.
See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 521 (5th Cir. 2008)
(“[F]iling a timely charge of discrimination with the EEOC is . . . a
requirement that, like a statute of limitations, is subject to waiver, estoppel,
and equitable tolling.” (quoting Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982))); see also Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 457
(5th Cir. 2011) (providing three bases for equitable tolling that are to be
“applied sparingly” (quoting Ramirez v. City of San Antonio, 312 F.3d 178,
183 (5th Cir. 2002))). Therefore, none of the equitable doctrines apply here.
“Thus, it is immaterial when [Abels] became suspicious of the reasons
behind her [reclassification]” because she did not contact an EEO counselor
within 45 days of her paygrade reclassification. Miller, 359 F. App’x at 537.
Accordingly, the district court did not err when it found that Abels’s claim
was time barred.
AFFIRMED.

2
The Third Circuit agrees with our interpretation. After initially recognizing the
discovery rule in Title VII cases, the Third Circuit later determined that its earlier decision
could not “be reconciled with the Supreme Court’s mandate that when ‘the text [of a
statute] and reasonable inferences from it give a clear answer,’ that is ‘the end of the
matter.’” Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (quoting Brown v. Gardner,
513 U.S. 115, 120 (1994)) (overruling Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380 (3d Cir. 1994)). Although the Seventh Circuit has arguably extended the discovery
rule to the context of actions for employment discrimination, its analysis does not overcome
our precedent. See, e.g., Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990)
(Posner, J.).
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