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United States Court of Appeals,
Fifth Circuit.
No. 94-50445.
Alfred ST. LOUIS, Plaintiff-Appellant,
v.
TEXAS WORKER'S COMPENSATION COMMISSION, et al., Defendants,
Texas Worker's Compensation Commission, Defendant-Appellee.
Sept. 26, 1995.
Appeal from the United States District Court for the Western
District of Texas.
Before WISDOM, GARWOOD and DAVIS, Circuit Judges.
WISDOM, Circuit Judge:
The plaintiff/appellant, Alfred St. Louis ("plaintiff" or "St.
Louis"), appeals from the district court's dismissal of his
complaint for failure to comply with the applicable statute of
limitations. We affirm.
I
When he was 47 years old, St. Louis was hired by the Texas
Worker's Compensation Commission ("TWCC") as a systems analyst. He
was fired on May 29, 1991, ten months after he began working at the
TWCC. On July 8, 1991, St. Louis filed a Charge of Discrimination
with the Texas Commission on Human Rights and the Equal Employment
Opportunity Commission ("EEOC"), alleging that he was terminated
based on his age in violation of the Age Discrimination in
Employment Act ("ADEA").1
129 U.S.C.A. § 621-34 (West 1985 & Supp.1995).
1

Both the Texas Commission on Human Rights and the EEOC
concluded that there was no reasonable cause to believe that the
TWCC had violated the ADEA in firing St. Louis. On July 17, 1992,
the EEOC sent St. Louis a right-to-sue letter that included the
following language:
A lawsuit under the Age Discrimination in Employment Act
(ADEA) ordinarily must be filed within two years of the date
of discrimination alleged in the charge. On November 21,
1991, the ADEA was amended to eliminate this two year limit.
An ADEA lawsuit may now be filed any time after 60 days after
a charge is filed until 90 days after the receipt of notice
that EEOC has completed action on the charge. Because it is
not clear whether this amendment applies to instances of
alleged discrimination occurring before November 21, 1991, if
Charging Party decides to sue, a lawsuit should be brought
within 2 years of the date of alleged discrimination and
within 90 days of receipt of this letter, whichever is
earlier, in order to assure the right to sue.2
In spite of this warning, St. Louis did not file suit against
the TWCC until May 28, 1993, which was within two years of the
allegedly discriminatory act, but nearly 300 days after he received
the right-to-sue letter from the EEOC. The case was referred to a
magistrate judge, who recommended that the TWCC's motion to dismiss
be granted on the ground that the plaintiff failed to comply with
the statute of limitations under the ADEA as amended by the Civil
Rights Act of 1991 ("1991 Act") in filing his ADEA action. The
district court adopted the report and recommendation of the
magistrate, and dismissed with prejudice the complaint. St. Louis
appeals.
II
We review de novo a dismissal under Rule 12(b)(6) of the
2Record at 375 (emphasis in the original).
2

Federal Rules of Civil Procedure.3
Before Congress passed the 1991 Act, the ADEA provided that
the statute of limitations for suits filed under the ADEA was two
years from the date the allegedly discriminatory act took place.
For willful age discrimination, the limitations period was three
years. The ADEA established these limitations periods by
incorporating Section 6 of the Portal-to-Portal Pay Act into the
ADEA at 29 U.S.C. § 626(e) (superseded 1991).
Congress then passed the 1991 Act, which altered the statute
of limitations for ADEA claims. Section 115 of the 1991 Act is
titled "Notice of Limitations Period under the Age Discrimination
in Employment Act of 1967", and is codified at 29 U.S.C. § 626(e).4
It provides:
If a charge filed with the Commission under this chapter is
dismissed or the proceedings of the Commission are otherwise
terminated by the Commission, the Commission shall notify the
person aggrieved. A civil action may be brought under this
section by a person defined in section 630(a) of this title
against the respondent named in the charge within 90 days
after the date of the receipt of such notice.
A
The plaintiff's first argument on appeal contends that the
applicable statute of limitations is not the one in effect when the
complaint was filed, but the one in effect when the claim accrued,
and that the district court erred in dismissing his complaint. The
applicable statute of limitations, St. Louis argues, is the
3F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th
Cir.1992).
429 U.S.C.A. § 626(e) (West Supp.1995).
3

two-year period, because that was the statute of limitations in
effect when the allegedly discriminatory act took place.
The defendant responds that because St. Louis failed to file
suit within 90 days of receiving the right-to-sue letter from the
EEOC, his claim is barred. The defendant argues, and the district
court agreed, that the statute of limitations applicable to this
case is the one in effect when the civil suit was filed--the 90-day
period in § 626(e).
This is a case of first impression in our circuit; we are
asked to decide whether the limitations period in § 626(e) applies
to ADEA suits that are filed after the effective date of the 1991
Act but stem from allegedly discriminatory acts that occur before
the effective date. We conclude that it does.
In this case, the defendant's allegedly discriminatory conduct
occurred before the 1991 Act became effective, but the plaintiff
filed suit after the 1991 Act became effective. The 1991 Act was
in effect throughout the time that St. Louis received his
right-to-sue letter from the EEOC to the time he filed his cause of
action. The 90-day limitations period was the law in effect when
he filed his complaint, and it is the law that applies in this
case.5
5Many courts that have faced the same issue agree. See,
e.g., Garfield v. Nichols Real Estate, 57 F.3d 662 (8th
Cir.1995); Anderson v. Unisys Corp., 52 F.3d 764, 765 n. 1 (8th
Cir.1995), petition for cert. filed, (U.S. July 18, 1995);
Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 889 (2d
Cir.1995); Smith v. Zeneca Inc., 820 F.Supp. 831, 832-24
(D.Del.1993), aff'd, 37 F.3d 1489 (3d Cir.1994) (table); Hartig
v. Safelite Glass Corp., 819 F.Supp. 1523, 1529 (D.Kan.1993);
McConnell v. Thomson Newspapers, Inc., 802 F.Supp. 1484, 1495-96
4

This conclusion is supported by the Supreme Court's recent
decision in Landgraf v. USI Film Products, in which the Court
considered whether the amendment to § 102 of the 1991 Act applies
to conduct that occurred before the passage of the amendment.6
Before the amendment, plaintiffs were able to obtain only equitable
relief in Title VII cases, and the amendment permits recovery of
compensatory and punitive damages. After noting that each section
of the 1991 Act must be considered separately, the Court held that
absent clear Congressional intent to make legislation retroactive,
legislation that would impair substantive rights should apply only
to conduct occurring after the statute's effective date.7 In
contrast, changes in procedural rules "may often be applied in
suits arising before their enactment without raising concerns about
retroactivity" due to the diminished reliance interests in matters
of procedure, and because procedural rules govern secondary, rather
than primary conduct.8 The Court warned, however, that
retroactivity concerns can have application to procedural rules in
some circumstances and that not all changed procedural rules should
be applied automatically to every pending case.9
To determine whether retroactivity concerns bar application of
an intervening statute to any given case, therefore, we must decide
(E.D.Tex.1992).
6--- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
7Id. at ----, 114 S.Ct. at 1500.
8Id. at ----, 114 S.Ct. at 1502.
9Id. at ---- n. 29, 114 S.Ct. at 1502 n. 29.
5

whether the intervening statute has a genuinely "retroactive"
effect. In Shipes v. Trinity Industries, we explained the Landgraf
analysis as follows:
An intervening statute should not apply to a pending case if
application of the statute would impair rights a party
possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions
already completed.10
In this case, the change in the statute of limitations for
filing ADEA claims does not have a retroactive effect; it governs
the secondary conduct of filing suit, not the primary conduct of
the defendants.11 Nor does the statute of limitations alter either
party's liability or impose new duties with respect to transactions
already completed. Section 626(e) does not operate retroactively
in the manner Landgraf censured.
Indeed, although the defendant frames the issue as one of
retroactivity, the issue is not technically one of retroactivity,
where a change in the law overturns a judicial adjudication of
rights that has already become final.12 In this case, the statute
of limitations is applied to conduct that occurred after the
statute's enactment--the plaintiff's filing of the complaint--not to
the allegedly discriminatory acts of the defendant. The only issue
1031 F.3d 347, 348-49 (5th Cir.1994) (quoting Landgraf, ---
U.S. at ----, 114 S.Ct. at 1503).
11See, e.g., Vernon, 49 F.3d at 890.
12Smith v. Zeneca, 820 F.Supp. at 833; Vernon, 49 F.3d at
889; McConnell, 802 F.Supp. at 1494 n. 12.
6

is which law to apply to the plaintiff's acts.13
There is no inequity in applying § 626(e) to St. Louis's cause
of action. We hold that the 90-day statute of limitations in §
626(e) applies to claims filed after the 1991 Act became effective.
B
The plaintiff's second argument on appeal contends that § 115
is not the exclusive statute of limitations for ADEA claims, but
that the 1991 Act establishes two separate statutes of limitation
under the ADEA: (1) two years from the date of the last act of age
discrimination, and (2) 90 days after final notice from the EEOC,
whichever is later. The word "may" in § 115, St. Louis argues,
evinces the intent of Congress to supplement, rather than replace,
the two-year limitations period. Because he filed his complaint
within two years of the date of the act of alleged age
discrimination, St. Louis contends that the claim is timely. One
district court agrees by published opinion with St. Louis's
interpretation of § 115.14
The other courts to have faced the issue, however, read § 115
as providing the exclusive limitations period for claims brought
under the ADEA.15 We agree those courts and hold that under § 115,
13We also note that in this case, we do not face, and
therefore do not address, the situation in which applying an
amended statute of limitations would save an otherwise
time-barred claim or would extinguish claims timely filed under a
superseded statute of limitations.
14Simmons v. Al Smith Buick Co., Inc., 841 F.Supp. 168, 169-
70 (E.D.N.C.1993).
15Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463, 464 n. 1
(3d Cir.1994); Crivella v. Urban Redevelopment Auth. of
7

the statute of limitations for an age discrimination action is 90
days after receipt of a notice that a charge filed with the EEOC
has been dismissed or otherwise terminated.
Both the language and legislative history of § 626(e) support
this conclusion. Section 626(e) states clearly that a complainant
may file suit within 90 days after the date of the receipt of a
right-to-sue letter from the EEOC.16 The legislative history also
indicates that the two-year statute of limitations incorporated
into the former § 626(e) does not survive the passage of the 1991
Act. In the 1991 Act, Congress deleted from § 626(e) the express
reference to § 255 of the Portal-to-Portal Pay Act. We agree with
the interpretation of the legislative history of § 626(e) set forth
in McCray v. Corry Mfg. Co., where the court concluded that the
legislative history "demonstrates that the purpose of the 1991
amendment to § 626(e) was to create a ninety-day window within
which plaintiffs must file suit under the ADEA or lose their right
to do so".17
Pittsburgh, No. 93-1811, 1994 WL 121609 (W.D.Pa. Feb. 10, 1994);
McCray v. Corry Mfg. Co., 872 F.Supp. 209, 215 (W.D.Pa.1994);
Adams v. Burlington N. R.R. Co., 838 F.Supp. 1461, 1467-68
(D.Kan.1993); Weaver v. Ault Corp., 859 F.Supp. 256, 258
(N.D.Tex.1993).
16The section provides: "A civil action may be brought
under this section by a person defined in section 630(a) of this
title against the respondent named in the charge within 90 days
after the date of the receipt of such notice". 29 U.S.C.A. §
626(e) (West Supp.1995); see also McCray, 872 F.Supp. at 214.
17The McCray court cited House Report No. 102-40(I), which
states that the amendment to § 626(e):
makes clear that the claimant may commence a civil
action at any time after 60 days from the time the
8

We hold that § 626(e)'s 90-day limitations period is the
exclusive statute of limitations under the ADEA. St. Louis did not
file his complaint within that period, and his cause of action,
therefore, is not timely.
C
The plaintiff's final argument on appeal contends that the
Court should apply equitable tolling, which allows for tolling of
a limitations period when a plaintiff's unawareness of his or her
ability to bring a claim is due to the defendant's misconduct.18
In Baldwin County Welcome Center v. Brown, the Supreme Court
outlined several criteria to consider when evaluating a request for
equitable tolling: first, whether the EEOC provided adequate
notice of the complainant's right to sue; second, whether a motion
for appointment of counsel is pending and equity would justify
tolling the statutory period until the motion is acted upon;
third, whether the court itself has led the plaintiff to believe
that she has done everything required of her; and fourth, whether
affirmative misconduct on the part of the defendant lulled the
charge was filed until the expiration of the 90 day
period following receipt of notice from the Commission
that it has dismissed the charge or otherwise completed
its consideration of the charge, whichever is later.
872 F.Supp. at 216 (quoting H.R.Rep. No. 102-40(I), 102d
Cong., 1st Sess. 97, reprinted in 1991 U.S.C.C.A.N. 549,
635) (emphasis added).
18See, e.g., Rhodes v. Guiberson Oil Tools Division, 927
F.2d 876, 878 (5th Cir.), cert. denied, 502 U.S. 868, 112 S.Ct.
198, 116 L.Ed.2d 158 (1991).
9

plaintiff into inaction.19
None of these criterion are present in this case. The letter
from the EEOC informing St. Louis of his right to sue stated in
specific language that he should file suit within 90 days to
safeguard his right to sue. The letter told St. Louis what he must
do to preserve his claim, but he did not follow the instructions;
he waited nearly 300 days to file his complaint. "One who fails to
act diligently cannot invoke equitable principles to excuse that
lack of diligence."20 The district court properly declined to apply
equitable tolling to St. Louis's claim.
The plaintiff failed to file his ADEA complaint within the 90-
day statute of limitations, and his cause of action is therefore
time-barred. The judgment of the district court is AFFIRMED.

19466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196
(1984).
20Id.
10