*1 employer liability vulnerable to under Title
VIL support of Jackson’s contention that reasonable,
her opposition was Jackson highlights parts deposition of her and the BAZZO, Amanda as next friend of teacher, deposition of another in which the M.B., Minor, Plaintiff- allege McKissick-Larry made Appellant, “racist statements.” Jackson alleges that
McKissick-Larry stated that she does not “deal with Black doctors or dentists be- America, UNITED STATES of always go cause Whites to school more.” Defendant-Appellee These statements do not substantially as- sist satisfying Jackson in her burden to show opposition September that her Williams, Christa Defendant. statements, was reasonable. These No. 11-1914. true, even if do not show McKissick- United States of Appeals, Larry treated her African-American staff Sixth Circuit. any differently than her White staff when gave she Jackson a verbal admonishment Aug. Further, being out of the classroom. there is no indication that alleged these
comments were made at or near the time
that Jackson was admonished. com- showing
ments also do little in that McKis-
sick-Larry harbored racial animus to-
ward her 97% African-American staff. alleges
Jackson also that McKissick-Larry article,” magazine
distributed “offensive
titled, “Why Do Black Despise Women
Each Accepting Other?” Jackson’s allega-
tion McKissick-Larry distributed this true,
article to be we still find the use of particular article as indicia of McKis-
sick-Larry’s hostility similarly racial to be
flawed.
III.
Jackson has not shown that she reason-
ably opposed protected activity, and she prima
thus has not made a facie showing
under the Douglas McDonnell framework. judgment therefore AFFIRM the
the district court.
546 2401(b)’s § question
The
ex
whether
jurisdiction
haustion
constitute
provisions
requirements
al
divides circuit courts and
rulings
even
inconsistent
within
prompts
v.
Compare Rogers
United
this circuit.
States,
(6th Cir.1982)
128, 124
675 F.2d
curiam)
(jurisdictional), Humphrey v.
(per
Attorney
Office,
U.S.
Gen. ’s
Fed.Appx.
279
Cir.2008)
328,
(6th
(same, addressing
332
requirement
of
other
exhaustion
rel.
v.
Lampkins
Sullivan ex
2401(b)),
§
Co., 208
Cmty.
Am.
Mut. Ins.
F.3d 215
(6th Cir.2000) (table) (same,
noting that
allowing for the
later enactment
substitu
tion of
States as a
the Unitеd
defendant
STRANCH,
Before:
and
Circuit
COOK
2401(b)’s
§
jurisdictional
did not disturb
STAMP,
Judges;
District Judge.*
and
permit
exceptions),
bar or
COOK,
States,
(6th
v.
Willis
F.2d
United
972
350
Cir.1992) (table) (same), with Glarner v.
Bazzo,
Plaintiff-Appellant Amanda
as
U.S.,
Admin.,
Dep’t Veterans
30 F.3d
M.B.,
next
appeals
friend of
(6th Cir.1994)
697,
(relying
701
pre-
case for
district court’s dismissal
sumption
availability of equitable
of the
jurisdiction.
lack
that
concedes
Irwin v. Veterans
tolling
by
established
she failed to file an administrative claim
89, 95,
Affairs,
453,
111 S.Ct.
112
498 U.S.
years
within two
of the
of her
accrual
(1990),
L.Ed.2d
action,
holding
435
that
by
cause
required
as
the Federal
2401(b)’s
§
requirements may
exhaustion
(FTCA),
Tort Claims Act
28 U.S.C.
-
tollеd).
be
The
2401(b),1
equitably
§
asks
argues
reconsider Glarner
light
us to
in
of the
applied equitable
have
should
John
Supreme
recent decision in
untimely
claim.
Court’s
allow her
The United
States,
R. Sand
v.
& Gravel Co. United
2401(b),
§
responds
juris-
States
as a
750,
130,
552 U.S.
169
requirement,
permit eq-
dictional
128 S.Ct.
L.Ed.2d
(2008),
591
tolling,
alternatively
emerging
uitable
and an
trend disfa
voring
properly
application
equitable tolling
district court
denied
2401(b).2
§
presented.
Specifically,
on the facts
affirm.
the context of
*
Jr.,
2401(b).
appeal
The
Stamp,
Honorable Frederick P.
Senior
28
This
involves
U.S.C.
only
two-year
period
filing
for
Judge
District
Northern District of
claim.
administrative
Virginia, sitting by designation.
West
quirements:
Section
be forever barred unless [1] it is
cy
six months after the
crues or unless
which
certified or
A tort claim
final denial of the claim
writing
within two
it was
2401(b) provides
to the
against
presented.
registered
[2]
apprоpriate
action is
the United States shall
after
date
mail,
such
exhaustion
Federal
begun
of notice
mailing, by
agency
claim ac-
presented
within
agen-
re-
2.
ment,
rel.
Marley
F.3d
T.L.
cuit
37
223 F.3d
Trailer
(1st Cir.2003);
E.g.,
(9th
United
ex
split
959-60
but still
Skwira v. United
rel.
Formaldehyde
Cir.2009);
275,
in favor of a
Ingram
189
(resolving intracir-
(8th Cir.2006) 278
allowing
(5th
Kokotis
(4th Cir.2000);
v. United
Hart v.
Cir.2011)
Prods.
States,
567 F.3d
v. U.S.
Dep’t
equitable tolling);
Liab.
States,
344
(per
Postal
In re FEMA
F.3d
1339
Litig.,
443 F.3d
Labor ex
curiam);
require
64,
1034-
Serv.,
646
71
R. Sand &
John
Grav-
government notes
Chomic
neglect.”
el’s discussion of “more
Cir.2004) (citations
absolute” limita-
F.3d
provisions,
including
those like the
omitted).
quotation
internal
marks
the scope
govern-
FTCA
of a
“limit[ ]
party seeking equitable tolling bears the
*3
sovereign immunity,”
mental waiver of
as
proving
burden of
to it. Rob
entitlement
2401(b)’s
§
reason to treat
exhaustion re-
ertson v. Simpson, 624 F.3d
781,
784
quirement
“jurisdictional”
as a
prerequi-
Cir.2010). That showing generally encom
impervious
site
excеptions.
passes
(1)
the following considerations:
See
Alcona Citizens for Inc. amounting to neglect, excusable at worst.” a federally funded medical facility. Bazzo Characterizing counsel’s efforts as a “be- dispute that these facts renderеd investigation,” low-the-radar the court Dr. Williams and Alcona federal employees found that counsel had plenty of time to Federally under the Supported Health investigate Dr. Williams’s sta- Centers Assistance Act bringing Alcona, tus with and that attempted no one her purview clаim within the of the FTCA. to mislead Bazzo partic- about either one’s See § 42 233(g)(1)(A); U.S.C. 28 U.S.C. ipation in programs. federal Bazzo resists 1346(b)(1). § Nor does she contest her conclusion, diligence court’s ar- failure to file an administrative claim with- guing procedures none of the or medi- 2401(b). required § twо as Alcona, cal records linked Dr. Rather, she asks us to excuse this over- opposed as to the medical facilities where sight because counsel exercised reasonable procedures took place. sug- The record diligence in assessing possible defendants. gests otherwise. The district disagreed, so do we. government presented 2401(b) § docu-
Because provides a limited linking ments M.B.’s waiver medical care to Alco- of the United sovereign States’ im- (1) na in munity, support of its motion apply courts to dismiss: “sparingly, and not when a release of medical only there has records to the Health garden been a variety Bazzo; (2) claim of signed by excusable Center a medical Cir.1997); rymple lowing equitable tolling); A.Q.C. ex rel. Dal (11th Cir.2006). F.3d 1324-26 But see Castillo v. United 656 F.3d (2d Cir.2011) issue, Santos ex rel. Beato v. (declining to decide thе (3d Cir.2009) (treating 194-96 denying equitable tolling exhaus on the facts of case). requirement nonjurisdictional tion as and al- STRANCH, JANE B. at Gen- diagnosis of M.B.’s record Alcona. which references Hospital, eral dissent. respectfully matter, claims that threshold As a matter, I think a preliminary As these her with ambushed correctly assumes the opinion majority hearing. On at the motion documents though not availability equitable tolling, merits, had access to having Bazzo denies but because our argument for the sake pe- during the these documents Supreme requires. Until so precedent records release riod, speculates holds sitting en banc or our Court when she listed Alcona may not have of 28 provisions U.S.C. that the exhaustion (but what other suggest signed it does 2401(b) requirements, records), have received entity would *4 the court’s decision would affirm district I Alpe- of thе significance the and dismisses and is not the statute event, any the district na record. In based tolling may applied be documents, and nei- rely on these did not decision in Glarner United prior on our accepting Bazzo’s factu- Even ther do we. Admin., 30 F.3d Dep’t Veterans States argument, purposes allegation al Cir.1994). 697, 701 Alcona does identifying absence of records Nonetheless, the district I would reverse court’s core not undermine declining grant equita- to decision (1) court’s to opportunity a sufficient findings: agree in this case. While ble employment sta- Dr. invеstigate Williams’s applied sparing- be (2) should tus, of efforts to con- the absence accept information. the characterization ly, I cannot ceal that counsel as a “be- plaintiffs efforts of steps what counsel Bazzo does not detail “gar- a investigation” or as low-the-radar employ- Dr. to determine Williams’s took discover variety instance of failure to den thus, and, explain ment status to excus- identity party amounting of a federally funded how her affiliation with The record shows neglect.” able reasonably have eluded Alcona would diligently ap- counsel acted plaintiffs that, reflects in The record diligent party. times, diligence their at all propriately Bazzo’s counsel found October any that Dr. Chris- not unveil evidence did in the physician Dr. entry for Williams em- government was a federal ta Williаms Regional Medical directory Alpena of the ployee. to Bazzo’s own ac- According Center.
count, no that counsel made appears it of limitations can- a state statute While identify Dr. Williams’s attempts further limita- two-year statute of supplant not status, сenter’s or the medical governed by to a case applicable status, prepared until he corporate (FTCA), Act an un- Federal Tort Claims in March Intent to File Claim Notice of helps statute derstanding Michigan’s years after 2010—more than for counsel’s ac- illuminаte the reasons Fur- M.B. and hired counsel. delivered period Michigan’s statute allows tions. ther, cen- review of the medical counsel’s malpractice a medical years ten to file him the have alerted ter’s website could of a minor child. M.C.L. suit on behalf status. “[f|ederаlly-designated” center’s 600.5851(7). in taking the case Upon for these explanation no Counsel offers attorneys re- January oversights. Re- records from quested medical Center, Health Women’s facts, gional Medical the district court
Faced with these
Center,
Munson Medical
deny-
Alpena,
Care of
its discretion
properly exercised
University Michigan
Medical
AFFIRM.
and the
tolling. We
ing equitable
records,
None
Center.
of the medical
es-
Partners,
defect.” Ruth v.
CCR
Unifund
pecially
from
Cir.2010)
those
Women’s Health Care
(citing
Santos,
of Alpena
Alpena Regiоnal
201).
Medical
559 F.3d at
This is such
where Dr.
prac-
Center
Christa Williams
a case where equitable tolling
appropri
is
ticed,
raised
suspicion that Dr.
Santos,
ate. As in
Dr. Williams’ “federal
was a
federál
em-
status,
covert,
if not
was at
oblique.”
least
Bazzo,
ployee. Amanda
the child’s mоth- Santos,
from court referred trap to which chil- vehicle to ensnare perfect is a
Valdez Id. at 204.
dren.” court, think I do not
Like the Santos pre- in the circumstances Congress, here, want to bar the
sented would prove her opportunity
M.B. from an grant would See I
claim. id. dis- respectfully Accordingly,
tolling.
sent. AUTO INSURANCE
STATE
COMPANY, Plaintiff-
Appellee, *6 LANDSCAPING &
THOMAS
CONSTRUCTION, INC.,
Defendant-Appellant.
No. 11-3921. Appeals,
United States
Sixth Circuit. 15,
Aug. CLAY,
BEFORE: GUY HOOD, Judge.* District Judges; HOOD, District PAGE DENISE Company State Auto Insurance Plaintiff (“State Auto”) seeking a Complaint filed a duty no it had declaratory judgment * Hood, designation. Michigan, sitting by Page Denise The Honorable Judge District for the Eastern States District