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Childers v. Brennan

United States District Court, E.D. Missouri, Eastern Division

January 12, 2017

MEGAN J. BRENNAN, Postmaster General of the United States, Defendant.



         This 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.

         I. BACKGROUND

         Plaintiff 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).

         Ninety-one 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).

         The 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.)

         On 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 Representative.

(Id. at Ex. 4).

         Mr. 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)

         Later, 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).


         Defendant 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.

         A. Le ...

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