Loubriel v. Fondo del Seguro del Estado

United States Court of Appeals
For the First Circuit

No. 11-1555

ADVILDA LOUBRIEL,

Plaintiff, Appellant,

v.

FONDO DEL SEGURO DEL ESTADO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Justo Arenas, U.S. Magistrate Judge]

Before

Thompson, Selya and Lipez, Circuit Judges.

Aníbal Lugo-Miranda, with whom Lugo-Miranda Law Offices was on
brief, for appellant.
Ivonne Cruz-Serrano, with whom Maymi Rivera & Rotger, P.S.C.
was on brief, for appellee.

September 21, 2012
 SELYA, Circuit Judge. The issue in this case concerns a

procedural requirement that must be satisfied in order to file suit

under Title I of the Americans with Disabilities Act of 1990 (ADA),

42 U.S.C. §§ 12101-12117. Pursuant to this requirement, a claimant

must exhaust administrative remedies and file her Title I suit

within 90 days after receiving a right-to-sue notice from the Equal

Employment Opportunity Commission (EEOC). A failure to abide by

the 90-day requirement renders the suit untimely.

The court below, citing this requirement, concluded that

the plaintiff's Title I suit was brought too late.1 The plaintiff

appeals. Although our reasoning differs from that of the district

court, we affirm.

We rehearse the facts in the light most favorable to the

summary judgment loser (here, the plaintiff), consistent with

record support.

In Puerto Rico, the State Insurance Fund (the Fund),

formally known as Fondo del Seguro del Estado, is a public

corporation that provides medical services to workers injured on

the job. P.R. Laws Ann. tit. 11, §§ 1b, 1b-1. Plaintiff-appellant

Advilda Loubriel, a physician, began working for the Fund in 1995.

Loubriel suffers from a degenerative arthritic condition that has

1
In this case, the parties consented to proceed before a
magistrate judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a).
Maintaining an institutional perspective, we refer throughout to
the rulings of the magistrate judge as those of the district court.

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reduced her workload to part-time and has caused frequent absences

from work.

In January of 2008, the plaintiff requested 45 days of

"Advanced Non-Occupational Sick Leave." The Fund denied her

request. After an unsuccessful attempt to appeal the denial

internally, the plaintiff filed a complaint with the

antidiscrimination unit of the Puerto Rico Department of Labor and

Human Resources. In her complaint, she alleged that the denial of

leave constituted unlawful discrimination and an unwarranted

refusal to make a reasonable accommodation for her disability.

The local agency eventually referred the matter to the

EEOC. See 29 C.F.R. § 1601.13(b)(2)(ii). On May 8, 2009, the

EEOC, without resolving the merits of the claim, issued a right-to-

sue notice and mailed copies of it to the plaintiff, her attorney,

and the Fund. The notice clearly stated that the plaintiff's Title

I action against her employer had to be filed within 90 days of

receipt. See 42 U.S.C. § 2000e-5(f)(1). The plaintiff asserts

that she did not receive her copy of the notice until September 10,

2009.2

2
In her complaint, the plaintiff actually claims that she
received her copy on September 10, 2008. The district court
presumed that this was a typographical error, as the EEOC issued
the letter on May 8, 2009. See Loubriel v. Fondo del Seguro del
Estado, 772 F. Supp. 2d 367, 373 (D.P.R. 2011). We too give the
plaintiff the benefit of the doubt and assume that she meant
September 10, 2009.

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 The plaintiff sued the Fund in the federal district court

on September 29, 2009 — 144 days after the EEOC sent the notice.

In pertinent part, her complaint alleged that the denial of her

request for an extended leave of absence violated her rights under

Title I of the ADA. The Fund denied liability and, in due course,

moved for summary judgment on the ground that the plaintiff had

failed to file her Title I suit within the 90-day window.

The plaintiff opposed the motion but the district court

granted it. See Loubriel v. Fondo del Seguro del Estado, 772 F.

Supp. 2d 367, 377 (D.P.R. 2011). The court ruled that the

plaintiff had furnished no evidence to establish timely filing.

Id. at 373-74. This appeal followed.

Our standard of review is familiar. "We review orders

granting or denying summary judgment de novo, considering the

record and all reasonable inferences therefrom in the light most

favorable to the non-moving part[y]." Estate of Hevia v. Portrio

Corp., 602 F.3d 34, 40 (1st Cir. 2010). "We will affirm only if

the record reveals 'that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law.'" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011) (quoting

Fed. R. Civ. P. 56(a)).

"This standard of review permits us to embrace or reject

the rationale employed by the lower court and still uphold its

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order for summary judgment. In other words, we may affirm such an

order on any ground revealed by the record." Houlton Citizens'

Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

Although the plaintiff's discrimination claim is brought

under the ADA, it is nonetheless governed by the procedural

requirements of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-5 to -9. See 42 U.S.C. § 12117(a) (making certain

procedural requirements of Title VII applicable to ADA suits). One

of these requirements contemplates that, upon a claimant's

exhaustion of administrative remedies, the EEOC will inform the

claimant that she has 90 days within which to bring a civil action.

Id. § 2000e-5(f)(1). This notification is commonly termed a right-

to-sue notice. See id. If the claimant does not bring suit within

the prescribed 90-day period, the action is time-barred. See id.;

see also Chico-Vélez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st

Cir. 1998).

In the case at hand, the EEOC mailed the right-to-sue

notice on May 8, 2009, yet the plaintiff did not file her suit

until September 29 of that year. To explain this delay, the

plaintiff suggests that she did not receive the right-to-sue notice

until September 10. She argues that because the filing period does

not begin to run until the notice is received, her suit is not

time-barred.

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 The district court rejected this argument. It concluded

that there is a presumption of timely receipt of a mailed notice

and that the plaintiff did not furnish sufficient record evidence

to rebut this presumption.

We are loath to accept the district court's conclusion.

While the plaintiff did not directly state in her affidavit when

she received the right-to-sue notice, she did mention in the

unsworn statement of contested material facts that accompanied her

opposition to summary judgment, see D.P.R.R. 56(c), that she

received it "on or about September of 2009." Her affidavit

attested generally, "to the best of my knowledge," that the facts

set forth in the statement of contested material facts were true.

This combination of oblique references may or may not be sufficient

to create a genuine issue of material fact. Compare, e.g., Tiberio

v. Allergy Asthma Immun. of Rochester, 664 F.3d 35, 37 (2d Cir.

2011) (stating that a claimant's sworn testimony would effectively

rebut the initial presumption that the right-to-sue notice was

received in a timely fashion), with, e.g., Fed. R. Civ. P. 56(e)(1)

(requiring that an affidavit supporting or opposing summary

judgment be based on "personal knowledge"). But, we need not

decide this vexing issue; the plaintiff's claim fails for another

reason.

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 It is undisputed that the right-to-sue notice was mailed

simultaneously to the plaintiff and to her attorney, Aníbal Lugo-

Miranda (Attorney Lugo), who represented the plaintiff then and

now. In contemplation of law, notice to the attorney is notice to

the claimant. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,

92-93 (1990).

In Irwin, the Supreme Court held that receipt of an EEOC

notification letter by a claimant's designated representative is

sufficient to begin the running of the filing period. Id.

Although Irwin involved a different genre of right-to-sue notice,

its core holding applies with equal force here: "[E]ach party

. . . is considered to have notice of all facts, notice of which

can be charged upon the attorney." Id. at 92. Consequently, the

plaintiff had constructive notice of the 90-day filing period

through Attorney Lugo's receipt of the right-to-sue notice. See

id.; cf. Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410

F.3d 41, 48-49 (1st Cir. 2005) (stating that "constructive

knowledge" is presumed "when an employee has retained an attorney

. . . regardless of whether the plaintiff in fact is aware of his

rights").

The fact that the summary judgment record contains no

evidence concerning the actual date of Attorney Lugo's receipt of

the right-to-sue notice does not help the plaintiff. The EEOC

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right-to-sue notice itself indicates (and the plaintiff does not

dispute) that the "date mailed" was May 8, 2009. There is a

presumption that, in the absence of evidence to the contrary, a

notice provided by a government agency is deemed to have been

placed in the mail on the date shown on the notice and received

within a reasonable time thereafter. See Me. Med. Ctr. v. United

States, 675 F.3d 110, 114 (1st Cir. 2012); Sherlock v. Montefiore

Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996).3 Attorney Lugo,

therefore, is presumed to have received the right-to-sue notice

within a reasonable time after May 8.

The phrase "reasonable time" has some elasticity — but it

also has limits. In this case, the EEOC sent the right-to-sue

notice by first-class mail. Courts have held that, in the context

of first-class mailings, a reasonable time may encompass anything

from three to five days. See, e.g., Seitzinger v. Reading Hosp. &

Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (presuming that receipt

is 3 days after mailing); Sherlock, 84 F.3d at 526 (same); Banks v.

3
Some courts, including the court below, have employed Rule
6(d) of the Federal Rules of Civil Procedure (formerly Rule 6(e))
to establish a presumption that a first-class mailing is received
three days after dispatch. See, e.g., Smith-Haynie v. Dist. of
Columbia, 155 F.3d 575, 578 n.3 (D.C. Cir. 1998); Sherlock, 84 F.3d
at 526; Loubriel, 772 F. Supp. 2d at 373. Although we do not
regard this as the correct approach — there is nothing in the text
of the Rule that suggests it can be used to fix a starting date for
measuring the passage of a period of time — the result here would
be the same if Rule 6(d) applied.

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Rockwell Int'l N. Am. Aircraft Oper'ns, 855 F.2d 324, 326 (6th Cir.

1988) (presuming that receipt occurs 5 days after mailing); see

also Taylor v. Books A Million, Inc., 296 F.3d 376, 379-80 (5th

Cir. 2002) (suggesting that courts have presumed receipt dates

ranging from 3 to 7 days after mailing); Abraham v. Woods Hole

Oceanographic Inst., 553 F.3d 114, 121 n.10 (1st Cir. 2009)

(assuming in dictum that receipt occurred 3 days after the issue

date). Even allowing for weekends and holidays, a reasonable time

would have elapsed here by the middle of May. This would have been

far earlier than 90 days before the date on which the plaintiff

commenced her action.

That ends this aspect of the matter. Although a party

moving for summary judgment must initially allege that no

trialworthy dispute exists, the burden then shifts to the nonmovant

to demonstrate, through materials of evidentiary quality, that a

genuine issue of material fact remains open. See Borges ex rel.

S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Garside

v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). The

plaintiff, as the nonmoving party, failed to carry that burden

here: the presumption of Attorney Lugo's timely receipt of the

right-to-sue notice no later than mid-May is unimpugned by any

probative evidence in the record. Consequently, the plaintiff had

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constructive notice of the 90-day filing requirement, yet her suit

was commenced well after the expiration of that filing period.

In an effort to dodge this bullet, the plaintiff argues

that the Fund committed a "continuing violation" sufficient to toll

the 90-day filing period. Although this period is subject to

equitable tolling, see Rice v. New England Coll., 676 F.2d 9, 10

(1st Cir. 1982), the plaintiff's argument is a non-sequitur.

The continuing violation doctrine "is an equitable

exception that allows an employee to seek damages for otherwise

time-barred allegations if they are deemed part of an ongoing

series of discriminatory acts and there is some violation within

the statute of limitations period that anchors the earlier claims."

O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001)

(internal quotation marks omitted); see Cordero-Suárez v.

Rodríguez, ___ F.3d ___, ___ (1st Cir. 2012) [No. 11-1991, slip op.

at 12]. The existence of a continuing violation may toll the

limitations period for filing an initial claim with either the EEOC

or a local antidiscrimination agency. See 42 U.S.C. § 2000e-

5(e)(1). Such tolling is an equitable means of ensuring that

meritorious discrimination claims are not pretermitted because the

claimant needed to experience a pattern of repeated acts before she

could be expected to realize that the individual acts were

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discriminatory in nature. See Thomas v. Eastman Kodak Co., 183

F.3d 38, 54 (1st Cir. 1999).

This purpose would not be served by extending the 90-day

filing period (which follows the filing of an administrative claim

with the EEOC or a local agency). By the time that she receives a

right-to-sue notice, a claimant is necessarily aware of the

defendant's discriminatory conduct; she has by then already

recognized the occurrence of discrimination and filed her

administrative claim. It follows inexorably that the existence of

a continuing violation does not relax the requirement that a

plaintiff file her judicial action within 90 days of the receipt of

the EEOC's right-to-sue notice.4 See Wade v. Knoxville Utils. Bd.,

259 F.3d 452, 461 (6th Cir. 2001); Brown v. Hartshorne Pub. Sch.

Dist. No. 1, 926 F.2d 959, 962 (10th Cir. 1991).

At oral argument in this court, the plaintiff suggested

that the existence of a continuing violation might be relevant to

whether or not she could file a new discrimination claim with

either the local agency or the EEOC. Nothing in this opinion

precludes the plaintiff from pursuing claims for alleged

discrimination occurring subsequent to the events at issue.

4
The district court rejected this argument on a different
ground; it found that there was no competent proof of a continuing
violation. Loubriel, 772 F. Supp. 2d at 375. We do not reach this
issue.

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 We need go no further. For the reasons elucidated above,

we agree with the district court that this action is time-barred.

Affirmed.

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