Espinoza v. Missouri Pacific R. Co.

• Decision Date: 11 March 1985
• Docket Number: No. 84-2469,84-2469
• Citation: 754 F.2d 1247
• Parties: 37 Fair Empl.Prac.Cas. 415, 36 Empl. Prac. Dec. P 35,062 Richard G. ESPINOZA, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1247

754 F.2d 1247

37 Fair Empl.Prac.Cas. 415,

36 Empl. Prac. Dec. P 35,062

Richard G. ESPINOZA, Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD CO., Defendant-Appellee.

No. 84-2469

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 11, 1985.

Deyeso, Manka & Deyeso, Frederick J. Deyeso, San Antonio, Tex., for plaintiff-appellant.

Sewell & Riggs, Gordon A. Holloway, Teresa W. Fogler, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

Richard G. Espinoza appeals the district court's dismissal for lack of subject matter jurisdiction of his suit against his employer, Missouri Pacific Railroad Co., alleging racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court concluded that it lacked jurisdiction because Espinoza did not file suit within ninety days after notice of his right to sue Missouri Pacific was given by the Equal Employment Opportunity Commission. We affirm.

The statute, 42 U.S.C. Sec. 2000e-5(f)(1), provides that, if the Commission dismisses a charge or if, within 180 days after a charge is filed, the Commission has not filed a civil action, "the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." (Emphasis added.) The facts about the right-to-sue letter in this case are established by affidavits of Espinoza, Espinoza's wife and the district director and are not contested. ¹ The letter was issued by the EEOC on May 3, 1983, and mailed to Espinoza at the address that he provided to the EEOC--his home address. The notice was actually received at that address by Espinoza's wife on May 4, 1983. Espinoza was out of town at that time and did not actually see the letter until he returned home on May 12, 1983. The suit was filed on August 3, 1983, ninety-two days after the letter was delivered to Espinoza's home. The district court held that the ninety-day period within which suit must be filed was triggered by receipt of the notice at Espinoza's residence and that Espinoza's suit was therefore untimely.

On appeal, Espinoza argues that the ninety-day period does not begin to run until the person aggrieved actually receives the right-to-sue letter because it is only then that the person becomes aware of his or her right to sue. As authority for that proposition, Espinoza cites the Seventh Circuit's decision in Archie v. Chicago Truck Drivers, 585 F.2d 210 (7th Cir.1978), and our decision in Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir.1974), rev'd on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), on which the Seventh Circuit relied heavily in Archie. There is no question but that Archie squarely supports Espinoza's position. The facts involved in Archie are, for all practical purposes, identical to the facts in this case, and the Seventh Circuit ruled that receipt by Archie's wife at his residence did not trigger the ninety-day period, holding instead that "the ninety-day period of limitation set forth in 42 U.S.C. Sec. 2000e-5(f)(1) begins to run on the date on which a claimant actually receives from the EEOC his notice of right-to-sue." Archie, 585 F.2d at 216.

In Franks, the right-to-sue letter was received at Franks' mailing address by Franks' nine-year old nephew, who lost the letter before Franks saw or read it. Approximately a year later, Franks contacted the EEOC and learned that the right-to-sue letter had been issued and forwarded to his residence. A new letter was issued by the EEOC, and suit was filed by Franks shortly thereafter. The court held that, although receipt at Franks' mailing address constituted prima facie evidence of notification, statutory notification, on these facts, took place only upon actual receipt by Franks. Construing the Act liberally, the court refused to apply the "constructive receipt" doctrine. The court expressed the view that "Congress did not intend to condition a claimant's right to sue ... on fortuitous circumstances or events beyond his control." 495 F.2d at 404. The court concluded that where "it is shown that the claimant through no fault of his own has failed to receive the suit letter ... the delivery of the letter to the mailing address cannot be considered to constitute statutory notification." Id. at 405 (emphasis added).

We disagree with Archie 's characterization of the issue involved in this case as one of constructive receipt or notice. The statute does not establish the beginning of the ninety-day period as the date when the plaintiff "receives" notice but starts the period at the "giving of such notice." While, as noted by Judge Rubin in his dissent in the vacated opinion in Decker v. Anheuser-Busch, 632 F.2d 1221 (5th Cir.1980), vacated en banc, 670 F.2d 506 (5th Cir.1982), this contemplates that the notice be given in such manner as to be received, it does not exact that the EEOC assure that the notice is actually read. We believe that ordinarily the purposes of the Act will be served by commencement of the ninety-day period on the date that notice is received at the address supplied to the EEOC by the claimant. Notice was "given" to Espinoza at the place he indicated. It was received there, albeit by Espinoza's wife. We deal here, therefore, with actual, not constructive notice, given to Espinoza in the manner he directed.

We also are unconvinced by Espinoza's analogy to Franks. Franks involved the very different situation of a claimant who, through no fault of his own, never received the right-to-sue notice. Later decisions have characterized the discussion of constructive receipt in Franks as dicta. See Cooper v. Lewis, 644 F.2d 1077, 1085 (5th Cir.1981). ² We need not, however, embrace the constructive receipt doctrine or repudiate Franks in order to decide this case. Both Franks and Archie were decided at a time when there was considerable uncertainty whether compliance with the ninety-day period was a jurisdictional prerequisite to suit and whether the period was subject to waiver and tolling. That uncertainty has since been eliminated. See note 1, supra. Now that we recognize that the ninety-day period is akin to a statute of limitations, and is subject to equitable tolling, we may adopt a rule which serves the purpose of the statute while at the same time providing relief in extreme cases like Franks. We hold 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. Cf. Bell v. Eagle Motor Lines, Inc., 693 F.2d 1086 (11th Cir.1982); Mouriz v. Avondale Shipyard, Inc., 428 F.Supp. 1025 (E.D.La.1977). ³

In this case, Espinoza has alleged no grounds for equitable relief from this rule. Unlike the claimant in Franks, Espinoza actually learned of his right to sue shortly after notice was received at his mailing address. The only basis urged by Espinoza for equitable tolling of the ninety-day period is the conclusory claim that "[i]n the present case, there exists the elements necessary to establish and invoke the doctrine of equitable tolling." Appellant's Brief at 13. Apparently, Espinoza's position is that, simply because he was out of town when notice arrived at his home, the equities demand tolling. We heartily disagree. Espinoza has not alleged that fortuitous circumstances beyond his control prevented him from learning of his right to sue. In fact, he has offered absolutely no explanation for his failure to file suit within the eighty-two day period that remained following his return home. Clearly, he has not even come close to the kind of showing required to invoke the doctrine of equitable tolling. The Supreme Court in Baldwin County Welcome Center, 104 S.Ct. at 1725-26, listed some of the circumstances in which equitable tolling of the ninety-day period might be justified: (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 she has satisfied all statutory prerequisites to suit; and (4) where the defendant has, through affirmative misconduct, lulled the plaintiff into inaction. Our cases involving equitable tolling of the 180-day period for filing an initial charge of discrimination with the EEOC, see 42 U.S.C. Sec. 2000e-5(e), have demanded a similar showing. See, e.g., Chappell v. EMCO Machine Works Co., 601 F.2d 1295, 1302 (5th Cir.1979) (equitable tolling of 180-day period appropriate where (1) suit pending in state court; (2) claimant is unaware of facts giving rise to Title VII claim; or (3) EEOC misleads claimant about the nature of his Title VII rights). In this case, Espinoza has made no showing that he was misled by the court, the EEOC or the defendant or that he took any action within the ninety-day period to commence his lawsuit. Clearly, he is not entitled to equitable tolling. See Baldwin County Welcome Center, 104 S.Ct. at 1726 ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence."); Cruce v. Brazosport Independent School Dist., 703 F.2d 862, 864 (5th Cir.1983) (same); Hibbard v. Don Love, Inc., 584 F.Supp. 2, 3 (S.D.Tex.1984) (fact that plaintiff was moving during the ninety-day period does not justify tolling).

For the reasons set forth above, we affirm.

AFFIRMED.

1 At this point, a brief detour is in order to clarify the nature of 42 U.S.C. Sec. 2000e-5(f)(1)'s ninety-day requirement and...