Opinion
Civil Action No: 00-0994 SECTION: "T"(3)
December 20, 2000
On March 31, 2000, plaintiff, Edgar Peters, filed this lawsuit against Transocean Offshore, Inc., pursuant to "Title VII of the Civil Rights Act of 1964, amended by the Equal Employment Opportunity Act of 1972, as amended by the Civil Rights Act of 1991." Plaintiff contends that he was subjected to racially discriminatory conduct, including verbal abuse, harassment and retaliation. On April 24, 2000, defendant filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Rule 12(c). Defendant argued that this Court did not have subject matter jurisdiction in this case because of plaintiff's failure to file an EEOC charge within the 180 days required by 42 U.S.C. § 2000e-5(e) and because of plaintiff's failure to file this lawsuit within 90 days of receiving his right to sue letter as required by 42 U.S.C. § 2000e-5(f)(1). Alternatively, defendant requested judgment on the pleadings pursuant to F.R.C.P. 12(c).
Rec. Doc. No. 1, ¶ 1.
Rec. Doc. No. 1, ¶¶ 4, 9-14.
On June 27, 2000, the Court denied defendant's Rule 12(b)(6) motion because the Court was unable to conclude from the evidence presented that this lawsuit was not filed within the jurisdictional prerequisites. This Court also denied defendant's Rule 12(c) motion. On July 7, 2000, the. Court denied defendant's motion for reconsideration reiterating the fact that pursuant to Rule 12(b)(6). the Court must take the factual allegations of the complaint as true and resolve any ambiguities regarding the sufficiency of the claim in plaintiffs favor. The Court left open the possibility that defendant could file a motion for summary judgment and resolve the issue presented in the Rule 12(b)(6) motion.
Rec. Doc. 11.
Rec. Doc. 13.
Rec. Doc. 13.
Before the Court is defendant's motion for summary judgment. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.C.P 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case.
Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999)(citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53,quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of her claim. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).
Id. (citing Celotex Corp., 477 U.S. at 321-23, 106 S.Ct. at 2551-53).
Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." This Court does not, "however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts."
Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)( en banc).
Little at 1075 (emphasis in original).
The issue raised is whether plaintiff timely filed his lawsuit within the statutory requirements. Title VII provides a specific statute of limitations within which a plaintiff must file a lawsuit after receiving a right-to-sue letter from the EEOC. As previously stated by this Court:
42 U.S.C. § 2000e-5(f)(1) provides that a civil action must be commenced within ninety days after the charging party has received a right-to-sue letter from the EEOC or state or local agency. "A Title VII claimant must file suit within 90 days of receipt of the right-to-sue letter or that right to sue will be lost." "The ninety-day limitations period begins to run 'on the date the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant.'" "Failure to file the suit timely can be grounds for its dismissal and has been strictly enforced." "The Fifth Circuit has interpreted this ninety-day limitations requirement as akin to a statute of limitations rather than as a jurisdictional prerequisite."
Rec. Doc. 11, p. 6, (citations omitted).
On December 23, 1999, the EEOC sent plaintiff a right-to-sue letter by certified mail to plaintiffs residence. On December 31, 1999, the United States Postal Service attempted to deliver the EEOC letter at the address that plaintiff provided the EEOC. Because no one was available to sign for the certified letter at that address, the Postal Service left a notice indicating that plaintiff should pick up the letter at the post office. Postal records show that the letter was retrieved by Emelda Peters, plaintiffs wife, later that day. Defendant has also submitted affidavits of Gary Thomas, Postal Service Manager of Consumer Affairs in the New Orleans District Office. Those affidavits confirm the fact that the Postal Service attempted delivery on December 31, 2000, and that the letter was retrieved on that same date.
Defendant's motion for summary judgment, exh. A.
Defendant's motion for summary judgment, exh. B.
Id.
Id.
Id. See also Defendant's reply memorandum, exh. C.
Plaintiff does not dispute the fact that his wife received the delivery notification and picked up the letter at the post office on or about December 31, 1999. Instead, plaintiff argues that he did not actually receive the right-to-sue letter from his wife until after the holidays, either on January 3, or January 4, 2000. Therefore, plaintiff argues that he filed this lawsuit within ninety days of the date when he actually saw the right-to-sue letter, although not within ninety days of the date that the U.S. Postal Service delivered the letter or the date that plaintiffs wife picked up the right to sue letter.
Plaintiff's opposition for summary judgment, p. 3. Plaintiff erroneously refers to December 31, 2000, instead of December 31, 1999.
Id. In an affidavit attached to plaintiffs opposition, plaintiff stated that, "[h]e received his Notice of Right to Sue after the Christmas Holidays on or about January 3rd, or 4th, 2000."
The Fifth Circuit has determined that the ninety-day period commences "on the date that notice is received at the address supplied to the EEOC by the claimant." In computing this ninety-day limitations period, the first day is omitted and the last day is counted. Prophet v. Armco Steel, Inc., 575 F.2d 579, 580 n. 1 (5th Cir. 1978). "The Court may not extend this period. . . . and an action filed within 91 days is still time barred." Id at 580. (citations omitted). F.R.C.P. 6 also provides that, "the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday[.]"
Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, 1249 (5th Cir. 1985); See also Ringold v. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986).
"When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays, shall be excluded in the computation." F.R.C.P. 6.
The Fifth Circuit does not apply an "actual receipt" rule which holds that the statutory period does not begin to run until the claimant actually receives the letter. The Fifth Circuit applies a flexible rule which requires a case-by-case examination to determine if equitable tolling of the filing period is appropriate.
Harvey v. City of New Bern Police Dept., 813 F.2d 652, 653 (4th Cir. 1987).
Id., referring to Espinoza, supra.
In Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247 (5th Cir. 1985), the EEOC mailed plaintiff his right-to-sue letter at the address provided by the plaintiff. The letter was received by plaintiffs wife because the plaintiff was out of town. The plaintiff did not actually see the letter until he arrived back in town, eight days after his wife received the right-to-sue letter. The plaintiff filed his lawsuit ninety-two days after the letter was delivered to the plaintiffs home. The Espinoza court determined that:
the giving of notice to the claimant at the address designated by him suffices to start the ninety-day period unless the claimant, through no fault of his own, failed to receive the right-to-sue letter or unless, for some other equitable reason, the statute should be tolled until he actually receives notice.
Espinoza at 1250.
The Espinoza court also looked to several circumstances identified by the Supreme Court which might justify equitable tolling of the ninety-day period:
(1) where notice from the EEOC does not adequately inform plaintiff of the requirement that suit be commenced within the statutory period; (2) where a motion for appointment of counsel is pending; (3) where the court itself has led plaintiff to believe that [he] has satisfied all statutory prerequisites to suit; and (4) where the defendant has, through affirmative misconduct, lulled the plaintiff into inaction.
Espinoza at 1251.
Because the Espinoza court found no facts which would justify equitable tolling of the filing period, the court held that the filing of plaintiffs suit was untimely. The Espinoza court also considered that the plaintiff failed to allege that fortuitous circumstances beyond his control prevented him from learning of his right to sue and that the plaintiff offered no explanation for his failure to file a lawsuit within the eighty-two day period that remained following his return home.
In Thomas v. Exxon U.S.A., 943 F. Supp. 751 (S.D. Tex. 1996), the EEOC sent by certified mail a right-to-sue letter directed to the address provided by the plaintiff. The return receipt was signed by the plaintiff's daughter. The plaintiff contended in an affidavit that she did not physically receive the notice until five days later. However, the plaintiff conceded that someone in her household had signed for the letter prior to the date that plaintiff saw the notice. The Thomas court found that the filing of plaintiffs lawsuit, ninety-five days after plaintiffs daughter acknowledged receipt of the notice, was untimely. The plaintiff in Thomas, like the plaintiff in Espinoza, proffered no equitable reasons which would justify tolling the statutory time period. The Thomas court also found that the plaintiff offered no explanation for her failure to file her lawsuit within the 85 days that remained following her physical receipt of the right to-sue letter.
Thomas at 757.
Id.
Id.
Similarly, in this case, plaintiff is not entitled to equitable relief. This is not a case in which the plaintiff received inadequate notice and plaintiff has not argued that there are any other extenuating circumstances which would justify tolling the limitations period. Plaintiff's only argument presented in his opposition memorandum is that there is an issue of material fact as to the date he actually received the right-to-sue letter. Plaintiff argues that defendant offers no documentation to establish that he actually received the letter on December 31, 1999.
The Postal Service attempted to deliver the letter to the plaintiff at the address plaintiff designated on December 31, 1999. Furthermore, it is undisputed that plaintiff's wife picked up the letter on that same day. Therefore, the next day, January 1, 2000, was the first day of the statutory ninety-day period and March 30, 2000, was the last day that plaintiff could timely file his lawsuit. Because plaintiff did not file his lawsuit until March 31, 2000, ninety-one days after the notice was received at his address, the Court finds that plaintiff's lawsuit was not timely filed.
The Court notes that the year 2000 was a leap year and the month of February consisted of 29 days.
Furthermore, the Court determines that there is no evidence before it that suggests that the equitable tolling doctrine should be applied in order to extend the time within which plaintiff could file his lawsuit. For example, although plaintiff represents that he did not receive the letter until three to four days after the letter was received by his wife, plaintiff has not alleged that fortuitous circumstances beyond his control prevented him from learning of his right to sue. Plaintiff has not offered any explanation for his failure to tile his lawsuit within the eighty-six to eighty-seven day time period following his receipt of the EEOC notice from his wife. Although it may be argued that the Court is forced to arrive at to an unfortunate result, it is bound to apply the law as set forth by Congress and the Fifth Circuit.
See Espinoza at 1251.
Id.
See Avie v. Marley Cooling Tower Co., 952 F. Supp. 492, 494 (S.D.Tex. 1997).
For the reasons set forth above, defendant's motion for summary judgment is GRANTED and all claims are hereby DISMISSED with prejudice.