Wednesday, April 30, 2008
Here's a bit more on the dismissal of Nathaniel Abraham's lawsuit against the Woods Hole Oceanographic Institution, already discussed by Timothy Sandefur at The Panda's Thumb and PZ Myers at Pharyngula.
Abraham failed to bring his suit within 90 days following the dismissal of his administrative complaint of discrimination. He sought to invoke the doctrine of "equitable tolling," essentially a judicial forgiveness of a missed deadline. To get the benefit of the tolling, however, the party seeking it must have been pursuing his remedies "diligently." The following is from the motion papers of Wood's Hole's counsel (footnotes and references omitted), that were cited by the judge as the basis of the dismissal:
Evidently in an effort to excuse his lack of diligence, Dr. Abraham makes repeated references in his Response that he was proceeding on a pro se basis [without a lawyer]. However, in light of Mr. Johnson's [Michael Johnson, an attorney with the Alliance Defense Fund] communication to the [Massachusetts Commission Against Discrimination] on Dr. Abraham's behalf, it was reasonable for the MCAD to assume that Dr. Abraham was represented by Mr. Johnson. In any event, Dr. Abraham's current counsel appeared at the MCAD and presented oral argument on his behalf on January 11, 2007. This is at odds with the statement in Plaintiff's Response at p. 4 that "Dr. Abraham represented himself as a pro se litigant through July 31, 2007." Regardless of how that statement can be explained, it is plain that Dr. Abraham had assistance of counsel well before the 90-day right to sue period expired. Since Dr. Abraham had the assistance of counsel during the right to sue period, he cannot excuse that failure by the curious assertion that he was proceeding on a pro se basis.