United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
D. NOCE UNITED STATES MAGISTRATE JUDGE.
action is before the court on the motion of defendant for
summary judgment. (ECF No. 6). The parties have consented to
the exercise of plenary authority by the undersigned
Magistrate Judge under 28 U.S.C. § 636(c). For the
reasons discussed below, the court denies the motion.
David Childers is an automotive technician for the United
States Postal Service (“USPS”) facility in St.
Louis, Missouri. (ECF No. 1). He alleges that he is disabled
due to certain impairments, including permanent nerve damage
impairing his left arm and right shoulder, dyslexia, and a
hearing impairment. Id. Between June 2013 and
October 2014, he filed three formal complaints with the USPS
Equal Employment Opportunity (“EEO”) alleging
discrimination on the basis of physical disability, a hostile
work environment, and retaliation. (ECF No. 7, Exs. 2-8). The
EEO transmitted the investigative file for his third
complaint to plaintiff on December 16, 2014. (Id. at
Ex. 9). Plaintiff requested a hearing and was represented by
Jerald A. Hochsztein. (Id. at Ex. 10). The hearing
request was dismissed on February 1, 2016, after
plaintiff's counsel failed to respond to discovery and a
show cause order. (Id. at Ex. 11). The USPS EEO
issued a final agency decision on March 11, 2016, addressing
all three of plaintiff's complaints and concluding that
the evidence did not support a finding that plaintiff was
subjected to the alleged discrimination. (Id. at Ex.
12). This was delivered to plaintiff on Thursday, March 17,
2016. (Id. at Ex. 13).
days later, on June 16, 2016, plaintiff filed a complaint
against Megan Brennan, the Postmaster General of the United
States, alleging employment discrimination, a hostile work
environment, and retaliation under Title VII of the Civil
Rights Acts. (ECF No. 1, Ex. 2). Defendant moved for
summary judgment on August 22, 2016, arguing that the
complaint was outside the filing deadline and must be
dismissed as untimely. (ECF Nos. 6 and 7).
parties appeared before the court for a Rule 16 scheduling
conference on October 18, 2016. (ECF No. 11). At this
hearing, plaintiff, appearing pro se, alleged that
his attorney, Jerald Hochsztein, dropped him off in front of
the courthouse on June 16, 2016, and instructed him to go
inside and file the complaint alone. (Id.) When
plaintiff asked his attorney to accompany him inside, the
attorney declined. Plaintiff stated that his attorney told
him he had tried to submit the complaint the night of June
15, 2016, but it had been kicked back, though the attorney
did not tell plaintiff why. (Id.) Relying on the
advice of his counsel, plaintiff understood June 16th to be
the ninetieth day. Plaintiff reported that he later learned
his attorney was disbarred. (Id.) Counsel for the
defendant stated she had no direct knowledge of these
allegations, but she had no reason to dispute these facts or
think that plaintiff was misstating the truth. (Id.)
November 16, 2016, the court conferred with the parties and
plaintiff Childers reported he had retained counsel. (ECF No.
16). On December 16, 2016, plaintiff's counsel filed a
response to defendant's motion for summary judgment,
including an affidavit from plaintiff. (ECF No. 19).
According to plaintiff's affidavit, he had extensive
phone and email communication with Mr. Hochsztein in the
ninety-day period between March 17, 2016, and June 15, 2016.
(Id. at Ex. 1). Specifically, plaintiff emailed Mr.
Hochsztein the day after receiving the agency decision
letter, tracked the agency decision letter that was sent to
Mr. Hochsztein, followed up with Mr. Hochsztein several times
via email and phone to ensure he had the necessary paperwork
to file the complaint, and spoke with Mr. Hochsztein several
times on the phone once he received the paperwork to
ascertain the status of the filing. Plaintiff attests that on
June 2, 2016, he emailed Mr. Hochsztein the following:
Jerry, Since I received the agency decision you have told me
you were going to file for a jury trial. Time is almost up
would you please go ahead and file this. We have spoken on
the phone 3 times and you have assured me each time that you
were going to do this and told me not to worry but time is
slipping by. Please let me know when you have filled this.
Thanks Dave Childers APWU Central Region Safety/Health
(Id. at Ex. 4).
Hochsztein replied on Monday, June 13, 2016 with a draft of
the complaint to be filed in federal court. (Id. at
Ex. 5). Plaintiff replied the same day with one minor edit
and requested that Mr. Hochsztein file the complaint.
(Id. at Ex. 6). Plaintiff sent Mr. Hochsztein an
email on June 16, 2016, asking Mr. Hochsztein to send him an
email or text when he electronically filed the case.
(Id. at Ex. 7). Mr. Hochsztein replied saying he
filed the case electronically the day before (on June 15,
2016). (Id.) However, later on June 16, plaintiff
received a phone call at work from Mr. Hochsztein asking
plaintiff to meet him outside so that he could take plaintiff
to the courthouse. (Id. at Ex. 1). Mr. Hochsztein
reported to plaintiff that he had tried to file the complaint
electronically the day before, but it had not worked, so
plaintiff needed to file the complaint in person.
(Id.) According to plaintiff, Mr. Hochsztein then
drove plaintiff to the courthouse, gave him the necessary
paperwork and filing fee, and pointed him in the direction of
the Clerk's Office. (Id.) At that time, Mr.
Hochsztein drove away, leaving plaintiff to file the
complaint pro se. (Id.) Plaintiff did so.
(ECF No. 1)
plaintiff discovered that his attorney had been disbarred,
and this is, apparently, why he was unable to submit the
complaint electronically on June 15 and why he declined to
accompany plaintiff inside the courthouse. (ECF No. 19, Ex.
1). According to Missouri Supreme Court case No. SC95557,
Jerald Hochsztein was disbarred on February 29, 2016. See
also In Re: Jerald A. Hochsztein, 4:16 mc 275 RWS (E.D.
Mo. filed Apr. 26, 2016, ordered June 30, 2016) (disbarring
Jerald Hochsztein from this court). Plaintiff attests that
Mr. Hochsztein never told him he had been disbarred, and
plaintiff only discovered this fact about a week after the
filing of his complaint. (ECF No. 19, Ex. 1). Defendant did
not dispute any of these facts, but filed a reply to
plaintiff's response on January 6, 2017. (ECF No. 22).
MOTION FOR SUMMARY JUDGMENT
alleges that Plaintiff's complaint was untimely and that
Defendant is therefore entitled to judgment as a matter of
law. Plaintiff responds that his attorney's
misrepresentations satisfy the equitable tolling exception.
The court agrees.