Banks v. Rockwell Intern. N. Am. Aircraft Operations

Decision Date04 August 1987
Docket NumberNo. C-2-84-1119.,C-2-84-1119.
Citation666 F. Supp. 1053
CourtU.S. District Court — Southern District of Ohio

Donald W. Conley, Columbus, Ohio, for plaintiff.

Thomas V. Williams, Trial Atty., Columbus, Ohio (Porter, Wright, Morris & Arthur, of counsel), and Gibson, Dunn & Crutcher, Stephen E. Tallen, Wayne A. Schrader and Kathy D. Ireland, Washington, D.C., for defendant.


GRAHAM, District Judge.


This case is before the Court on defendant, Rockwell International Corporation's ("Rockwell") renewal of its motion for partial summary judgment pursuant to Fed.R. Civ.P. 56. Rockwell moves for summary judgment on the grounds that this action was not timely filed within the ninety (90) day period from the notice of right to sue, as required by Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e-5(f)(1) (1982). Plaintiff Banks has alleged jurisdiction under Title VII and 42 U.S.C. § 1981.

On August 7, 1986, Judge Holschuh denied Rockwell's motion for partial summary judgment because the defendant "failed to produce any evidence concerning the date the right to sue notice was mailed to the address that the plaintiff had provided to the Equal Employment Opportunity Commission ("E.E.O.C."). It is undisputed that the claimant no longer resided at the address that the E.E.O.C. had for him or that he or his counsel had failed to notify the E.E.O.C. of his new address.

Rockwell in its renewed motion for partial summary judgment has attached photocopies of both sides of the envelope enclosing the September 7, 1983 right to sue letter showing that letter was returned to the E.E.O.C. on September 12. The letter was returned because the claimant had moved without leaving a forwarding address. Copies of mail receipts were also provided showing that a copy of the notice was sent to Respondent Rockwell. The authenticity of the copies of the envelope and correspondence from the E.E.O.C. has been supported by an affidavit and is not challenged by the claimant. Claimant's attorney has submitted copies of letters that he mailed to the E.E.O.C. indicating that he repeatedly requested the issuance of a right to sue letter. However, there are no affidavits in support of the authenticity of the letters as required by Rule 56. Nevertheless, the Court has considered the letters in reaching its decision. His first letter was dated August 29, 1983. That letter states:

"I have been retained to represent Mr. Leon Banks in the above referenced matter. He dual sic filed his charge with the Ohio Civil Rights Commission on October 29, 1982. On February 17, 1983, the O.C.R.C. entered a finding of no probable cause.
The purpose of this letter is to request the E.E.O.C. issue a right to sue letter to Mr. Banks as soon as possible.
If anything further is needed to cause the right to sue letter to issue please let me know."

There is no evidence before the Court that the E.E.O.C. ever received claimant's counsel's letter or that it was received prior to issuance of the September 7 right to sue letter despite his counsel's assurances in his memorandum that supporting affidavits from the E.E.O.C. would be provided. (See plaintiff's memorandum contra defendant's motion for partial summary judgment at page 2.) On January 3, 1984, claimant's counsel sent a follow-up letter to the E.E.O.C. Another follow-up letter was sent on March 12, 1984 in which claimant's counsel stated:

"I have made written requests for a right to sue letter but have not received any responses ...
. . . . .
"I am requesting that you cause the right to sue letter to be reissued to Mr. Banks. The current address for Mr. Banks is 1501 Mt. Vernon Avenue, Columbus, Ohio, 43203." (Emphasis added.)

Defendants submitted a letter from Mr. Gray of the Cleveland E.E.O.C. office as Exhibit E to their motion. In his letter to respondent Rockwell he stated:

Our records show that Mr. Banks, through his attorney, Mr. Donald W. Conley, notified us that his client did not receive the Notice of Right to Sue in the above matter issued September 7, 1983. A review of our file discloses that the material sent Mr. Banks on September 7, 1983 was returned to our office by the Post Office on September 12, 1983. Accordingly, we reissued the Notice of Right to Sue to the Charging Party on March 15, 1984.

The parties do not dispute any of the above facts.


Fed.R.Civ.P. 56(c) provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

"This standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ___, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).

Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, at ___, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 1). Anderson, 477 U.S. at ___, 106 S.Ct. at 2511.

In a motion for summary judgment, the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the evidence submitted must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970) (footnote omitted); accord, Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.1984), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985).

The Court has carefully considered the briefs, affidavits, depositions and other material filed in support of and in opposition to the motion and finds that there are no genuine issues of material fact and that the defendant is entitled to summary judgment.


The ninety day limit in which to file is not jurisdictional but rather is akin to a statute of limitations which is subject to equitable tolling. Crown Cork and Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); Brown v. Mead Corp., 646 F.2d 1163 (6th Cir.1981). The issue in this case is whether the claimant's counsel's two unanswered letters to the E.E.O.C. and the failure of the E.E.O.C. to send a copy of the September 7, 1983 letter to claimant's counsel is sufficient to toll the running of the statute of limitations and excuses the failure of the claimant and/or his counsel to keep the E.E.O.C. informed of the claimant's correct address as is required by the applicable regulations.

In Trinkle v. Bell Litho, Inc., 627 F.Supp. 764 (N.D.Ill.1986), the court divided the problems with notice of right to sue into three categories. If the right to sue letter has been sent to the proper residence but has been signed for by someone else, the ninety day period in which to sue starts to run on the date that the letter is delivered.

When the ninety day limitation was held to be jurisdictional rather than a statute of limitations subject to tolling, receipt was held to occur only when the claimant actually received the notice letter. Archie v. Chicago Truck Drivers Union, 585 F.2d 210 (7th Cir.1978); 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). In Archie, the claimant's wife waited ten days to deliver the notice to her husband while in Franks the claimant's nephew received and subsequently lost the notice letter.

More recent cases have analyzed the factual situations differently. In Espinoza v. Missouri R. Co., 754 F.2d 1247 (5th Cir. 1985), with facts identical to Archie, the Fifth Circuit held that notice is given as required by the language of the statute and the statutory ninety days starts to run "on the date that notice is received at the address supplied to the E.E.O.C. by the claimant." Id., at 1249. Effective notice can be made on the claimant's attorney or the claimant. Id. If the claimant has moved, he is nevertheless bound by his neglect to notify the E.E.O.C. of his change of address. St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir.1984); Hibbard v. Don Love, Inc., 584 F.Supp. 2 (D.C.Tex. 1984); Ringgold v. National Maintenance Corp., 796 F.2d 769 (5th Cir.1986).

Receipt has been held to include actual notice of the information that a right to sue letter had been issued, rather than receipt of the letter. The Sixth Circuit affirmed the granting of summary judgment in the case of Cook v. Providence Hospital, 820 F.2d 176 (6th Cir.1987), wherein there was a factual dispute as to whether the claimant actually received the right to sue letter; however, there was no dispute that the claimant had actual knowledge, for the one year prior to suit, that the E.E.O.C. had given her the right to sue. The ninety day period was found to start from the date of claimant's actual knowledge.

The second category is constructive notice which occurs when the claimant's attorney has received a copy of the right to sue letter. Constructive notice is not favored under Title VII, but the danger that a person will remain ignorant of his rights is "not present when the third party is the claimant's attorney, the individual in charge of proceeding with the litigation and aware, perhaps more aware than the claimant, of the importance of such notice." Jones v. Madison Service Corp., 744 F.2d...

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