Banks v. Rockwell Intern. N. Am. Aircraft Operations, No. C-2-84-1119.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtGRAHAM
Citation666 F. Supp. 1053
PartiesAlexander Leon BANKS, Plaintiff, v. ROCKWELL INTERNATIONAL NORTH AMERICAN AIRCRAFT OPERATIONS, Defendant.
Docket NumberNo. C-2-84-1119.
Decision Date04 August 1987

666 F. Supp. 1053

Alexander Leon BANKS, Plaintiff,
v.
ROCKWELL INTERNATIONAL NORTH AMERICAN AIRCRAFT OPERATIONS, Defendant.

No. C-2-84-1119.

United States District Court, S.D. Ohio, E.D.

August 4, 1987.


666 F. Supp. 1054

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.

MEMORANDUM AND ORDER

GRAHAM, District Judge.

I. INTRODUCTION

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

666 F. Supp. 1055
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.

II. THE STANDARD FOR SUMMARY JUDGMENT

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

666 F. Supp. 1056
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.

III. LAW AND DISCUSSION

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...

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36 practice notes
  • Riedel v. Acutote of Colorado, No. C2-88-1194.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • September 5, 1991
    ...the burden of proof at trial." Id. at 322, 106 S.Ct. at 2550. In Banks v. Rockwell International North American Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as f......
  • Marietta Franklin Securities Co. v. Muldoon, No. 90-CV-565.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 25, 1991
    ...will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. In Banks v. Rockwell International N.Am. Aircraft Operations, 666 F.Supp. 1053 (S.D. Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as......
  • Ellison v. Northwest Airlines, Inc., Civil No. 94-00891 ACK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 8, 1996
    ...receives notice of right to sue 5 days after notice first enters mail)); Banks v. Rockwell Int'l North American Aircraft Operations, 666 F.Supp. 1053, 1059 (S.D.Ohio 1987) (same, citing Hunter), aff'd, 855 F.2d 324 (6th Cir.1988); Witt v. Roadway Express, 880 F.Supp. 1455, 1461 (D.Kan. 1995......
  • Castle v. Central Benefits Mut. Ins. Co., No. C2-87-0030.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 1990
    ...will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552. In Banks v. Rockwell International N. Am. Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (J. Graham), this district enunciated the importance of granting summary judgments in appropriate situations by stating that......
  • Request a trial to view additional results
36 cases
  • Riedel v. Acutote of Colorado, No. C2-88-1194.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • September 5, 1991
    ...the burden of proof at trial." Id. at 322, 106 S.Ct. at 2550. In Banks v. Rockwell International North American Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as f......
  • Marietta Franklin Securities Co. v. Muldoon, No. 90-CV-565.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 25, 1991
    ...will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. In Banks v. Rockwell International N.Am. Aircraft Operations, 666 F.Supp. 1053 (S.D. Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as......
  • Ellison v. Northwest Airlines, Inc., Civil No. 94-00891 ACK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • May 8, 1996
    ...receives notice of right to sue 5 days after notice first enters mail)); Banks v. Rockwell Int'l North American Aircraft Operations, 666 F.Supp. 1053, 1059 (S.D.Ohio 1987) (same, citing Hunter), aff'd, 855 F.2d 324 (6th Cir.1988); Witt v. Roadway Express, 880 F.Supp. 1455, 1461 (D.Kan. 1995......
  • Castle v. Central Benefits Mut. Ins. Co., No. C2-87-0030.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 21, 1990
    ...will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552. In Banks v. Rockwell International N. Am. Aircraft Operations, 666 F.Supp. 1053 (S.D.Ohio 1987) (J. Graham), this district enunciated the importance of granting summary judgments in appropriate situations by stating that......
  • Request a trial to view additional results

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