Summary
stating that in Irwin "[t]he Fifth Circuit held that notice to the attorney was sufficient to impute notice to the plaintiff, and this holding was affirmed by the United States Supreme Court."
Summary of this case from Sivertson v. ClintonOpinion
Civil Action No. SA-99-CA-0521-EP
October 20, 1999.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On this date the Court considered Defendant's motion for summary judgment, filed September 29, 1999, in the above-numbered and styled cause. The Court has also considered Plaintiffs response to that motion. After careful consideration, the Court will grant Defendant's motion. Plaintiffs counter-motion for summary judgment will be denied as moot.
This is a suit brought under Title VII. Plaintiff alleges that she was sexually harassed by her immediate supervisor, Marlin Sweigart, of Roy Weston, Inc., Plaintiffs employer and the Defendant in this suit. Plaintiff also alleges that, in the summer of 1998, after she had left Weston, she applied for admission to the San Antonio Fire Department, and because of a bad reference by Sweigart, she was not admitted. Plaintiff argues that Sweigart gave the bad reference in retaliation for her on-the-job complaints about his sexual harassment. Plaintiffs last day of employment with Weston was May 16, 1997.
Plaintiff filed a complaint with the Equal Employment Opportunity Commission on June 3, 1998, 410 days after her date of separation. A prerequisite to a Title VII lawsuit is that an EEOC complaint be filed within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(1). Because the alleged sexual harassment occurred on the job, undeniably more than 300 days before the filing of the complaint, Plaintiffs claim of actionable sexual harassment under section 703(a) of Title VII is time barred and must be dismissed.
However, Plaintiffs claim of retaliation, pursuant to section 704(a) of Title VII was filed within the 300-day limitations period. The United States Supreme Court has held that such claims against former employers are viable under section 704(a). See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Therefore, the claim will not be dismissed on the basis that the EEOC complaint was untimely. However, there are grounds for dismissing the claim.
Defendant argues that Plaintiff failed to file her lawsuit within ninety days from the date she received her EEOC right-to-sue-letter. See 42 U.S.C. § 2000e-5 (f)(1). The Court finds that Plaintiff has not demonstrated that a fact issue exists on this question. The right to sue letter issued by the EEOC indicates on its face that it was mailed to the Plaintiff herself, not to her attorney, on January 26, 1999. Defendant is correct that the law presumes Plaintiff received the notice on January 29, 1999, or at least within a reasonable time of mailing. See FED. R. Civ. P. 6(e); Hagner v. United States, 285 U.S. 427, 430 (1932). Plaintiff filed her lawsuit on May 20, 1999, 111 days after she is presumed to have received the right to sue letter.
Plaintiff responds that her attorney did not "receive" the letter until February 22, 1999, which would render the filing of the lawsuit timely. As evidence, Plaintiff has attached an affidavit by her attorney and a copy of the EEOC letter, which has been date-stamped February 22, 1999. There is no evidence, however, that the EEOC mailed its right to sue letter to Plaintiffs counsel. The law cited by Plaintiff for the proposition that the time is counted from the receipt of the EEOC letter by a plaintiffs attorney is not directly on point. See Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990); Irwin v. Veterans Admin., 874 F.2d 1092 (5th Cir. 1989), Aff'd, 498 U.S. 89 (1990). In that case, the plaintiff attempted to argue that, even though her lawsuit was untimely filed, judged from the date her attorney received the right to sue letter, it was timely as judged from the date the plaintiff actually received the letter, which was later. The Fifth Circuit held that notice to the attorney was sufficient to impute notice to the plaintiff, and this holding was affirmed by the United States Supreme Court. Irwin, 874 F.2d at 1094; Irwin, 498 U.S. at 92. However, that case does not stand for the proposition that a plaintiff can receive actual notice by the EEOC and fail to act until such time as she decides to provide that notice to her attorney. Rather, the Court believes the case stands for the proposition that the time runs from the date the attorney or the plaintiff receives the letter, whichever occurs first.
Indeed, the headnote to the case states that it stands for this proposition, and it is cited for that proposition by the Supreme Court, which affirmed the holding. See Irwin, 874 F.2d 1092, headnote 1; Irwin, 498 U.S. at 92; see also Brown v. Secretary of the Army, 86 F.3d 225, 226 (D.C. Cir. 1996).
Plaintiff here has provided no evidence that the EEOC mailed the letter to her attorney rather than to her or that her attorney received the EEOC notice before she received it. In fact, the uncontroverted evidence is that notice was sent to her directly on January 26. The law presumes she received such notice within a reasonable time period, and thus the evidence before the Court establishes as a matter of law that she untimely filed her lawsuit.
ACCORDINGLY, it is ORDERED that Defendant's summary judgment motion is GRANTED and this case is DISMISSED. It is further ORDERED that Plaintiffs cross-motion is DENIED as MOOT.