IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2009
No. 07-30290 Charles R. Fulbruge III
Clerk
MARGARITA DURON,
Plaintiff–Appellant,
v.
ALBERTSON’S LLC,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARZA, STEWART, and OWEN, Circuit Judges.
PER CURIAM:
Margarita Duron brought this suit against Albertson’s LLC (Albertson’s)
alleging discrimination on the basis of national origin in violation of Title VII of
the Civil Rights Act of 1964. 1 The district court granted summary judgment for
Albertson’s, concluding that Duron’s suit was untimely because she failed to
rebut the presumption that she received a right-to-sue letter in the mail in due
course. We vacate and remand to the district court for further proceedings.
1
42 U.S.C. § 2000e, et seq.
No. 07-30290
I
Duron filed a discrimination charge with the Equal Employment
Opportunity Commission (EEOC) asserting that Albertson’s discriminated on
the basis of her Hispanic national origin. Albertson’s subsequently terminated
Duron. She then filed a second charge with the EEOC alleging that her
termination was in retaliation for her earlier EEOC charge and that Albertson’s
discriminated against her based on her national origin.
The Louisiana Commission on Human Rights (LCHR) reviewed and
dismissed Duron’s charge on September 24, 2004. Duron’s counsel then asked
the EEOC to conduct a substantial weight review. The EEOC subsequently
issued a “Dismissal and Notice of Rights” adopting the LCHR’s findings and
advising Duron that she would have to file a lawsuit, if at all, within ninety days
of receipt.
The letter reflected October 4, 2004, as the “Date Mailed” and was
addressed from the EEOC’s New Orleans District Office to Duron in Metairie,
Louisiana. There is no evidence that the EEOC mailed a copy of the letter to
Duron’s attorney. The letter reflects that a copy of the letter was sent to Lyol
Brumby of Albertson’s employee-relations department. However, Albertson’s did
not produce any evidence of receipt by Brumby or anyone else at Albertson’s.
In a sworn affidavit, Duron denied receipt of this notice. She stated that
she and her attorney made several calls to the EEOC to inquire as to the status
of her case both prior to Hurricane Katrina in August 2005 and in the first half
of 2006—all without a response. On July 18, 2006, her attorney wrote a letter
to the EEOC’s regional attorney and subsequently delivered a copy of that letter.
The letter indicates that Duron’s attorney had discussed her case with an EEOC
official before and advised the EEOC that Duron wanted to pursue her rights in
this case. Duron’s attorney also emailed that EEOC official. On August 24,
2
No. 07-30290
2006, Duron’s attorney received a copy of the EEOC right-to-sue letter dated
October 4, 2004. In her affidavit, Duron stated that this was “the first time I or
my attorney had ever seen this right to sue letter.” Her counsel represented to
the court that he did not receive a copy of this letter until August 24, 2006.
Duron then filed this discrimination suit. Albertson’s moved for dismissal
or, alternatively, summary judgment. The district court granted Albertson’s
motion for summary judgment, holding, as a matter of law, that Duron’s
affidavit was insufficient to rebut the presumption of receipt of the EEOC right-
to-sue letter, thus rendering her lawsuit untimely. Further, the district court
declined to apply the doctrine of equitable tolling.
Duron appealed, and the EEOC submitted an amicus curiae brief pursuant
to Federal Rule of Appellate Procedure 29(a) supporting Duron’s contention that
her affidavit was sufficient to raise a fact question.
II
A plaintiff alleging employment discrimination must file a civil action no
more than ninety days after she receives statutory notice of her right to sue from
the EEOC.2 The ninety-day window is “strictly construed” 3 and is “a
precondition to filing suit in district court.”4
Relying on the presumption that government notices are mailed on the
date stated in the notice and received within seven days thereafter, the district
court found that Duron’s lawsuit was untimely. As stated by the Supreme
Court, “[t]he rule is well settled that proof that a letter properly directed was
2
42 U.S.C. § 2000e–5(f)(1); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-
50 (1984); see also Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (“Title VII
provides that claimants have ninety days to file a civil action after receipt of such a notice from
the EEOC.” (citing Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381 (5th Cir. 1982))).
3
Taylor, 296 F.3d at 379.
4
Id. (quoting Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996)).
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No. 07-30290
placed in a post office, creates a presumption that it reached its destination in
usual time and was actually received by the person to whom it was addressed.”5
In Custer v. Murphy Oil USA, Inc., we stated that “[b]ecause th[e] mailbox
rule functions merely to create a presumption of receipt, it only comes into play
when there is a material question as to whether a document was actually
received.”6 “A threshold question for the application of the mailbox rule is
whether there is sufficient evidence that the letter was actually mailed.” 7 In
that vein, this court opined that “[a] sworn statement is credible evidence of
mailing for the purposes of the mailbox rule.” 8 Further, we have recognized that
“[p]lacing letters in the mail may be proved by circumstantial evidence,
including customary mailing practices used in the sender’s business.” 9 On the
other hand, “[e]vidence of non-receipt can be used to establish that the notice
was never mailed.” 10
As in Custer, Albertson’s has not produced any business records or other
physical evidence that the EEOC sent the notice of the right to sue. Albertson’s
submitted no affidavits in support of the mailing. Additionally, Albertson’s has
5
Hagner v. United States, 285 U.S. 427, 430 (1932) (citing Rosenthal v. Walker, 111
U.S. 185, 193 (1884)); see also Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989).
6
503 F.3d 415, 419 (5th Cir. 2007) (determining that the mailbox rule did not apply
because the question at issue was whether the plan administrator used measures reasonably
calculated to ensure actual receipt and not whether the plaintiffs actually received the
document).
7
Id.
8
Id. at 420 (quoting Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956,
964 (9th Cir. 2001)). But see Sorrentino v. IRS, 383 F.3d 1187, 1194-95 (10th Cir. 2004)
(stating that “[a]llegations of mailing are easy to make and hard to disprove” and holding that
an affidavit claiming that a tax return was mailed, without more, was not enough to invoke
the mailbox rule’s rebuttable presumption).
9
Custer, 503 F.3d at 420 (alteration in original) (quoting Wells Fargo Bus. Credit v. Ben
Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983)).
10
Id.
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No. 07-30290
not produced any evidence that it received the copy of the notice the EEOC
allegedly sent. Instead, the only evidence of mailing that Albertson’s provided
was a copy of the EEOC notice of right to sue with “10/4/04” written in the “Date
Mailed” field. In contrast, Duron provided a sworn affidavit that she did not
receive the EEOC’s notice until August 2006, and she provided evidence that she
and her attorney made several attempts to contact the EEOC to inquire as to the
status of her case. Further, her attorney’s July 2006 letter indicated that
Duron’s attorney had discussed her case with an EEOC official before and
advised the EEOC that Duron wanted to pursue her rights in this case.
In Alton v. Texas A&M University, we stated that “[w]here critical
evidence is so weak or tenuous on an essential fact that it could not support a
judgment in favor of the nonmovant, or where it is so overwhelming that it
mandates judgment in favor of the movant, summary judgment is appropriate.”11
As in Custer, “[o]n the issue of mailing, it cannot be said that either of Alton’s
grounds are satisfied, and thus summary judgment is improper.”12
In closing, we note that if the EEOC had followed its former practice of
sending right-to-sue letters by certified mail, this dispute would, in all
likelihood, have never arisen.13
11
168 F.3d 196, 199 (5th Cir. 1999).
12
Custer, 503 F.3d at 421.
13
We also note that the parties did not raise, and we do not consider, a claimant’s duty
to monitor the status of her proceedings in the EEOC. The governing statute requires the
EEOC to notify the charging party “within [180] days from the filing of such charge” if it or a
state enforcement agency has not filed an action. 42 U.S.C. § 2000e-5(f)(1). Should a state or
local agency initiate an enforcement action, under 42 U.S.C. § 2000e-5(c) or § 2000e-5(d), the
period for EEOC notification may be longer. Accordingly, a lack of diligence on the part of a
claimant, e.g. failure to file a suit or contact the EEOC within 270 days of filing a charge with
the EEOC (the 90-day period in addition to the 180-day period for action), may support a
conclusion that an action is barred as untimely as a matter of law.
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No. 07-30290
* * *
For the foregoing reasons, we VACATE the judgment of the district court
and REMAND for further proceedings.
6