Covington v. Illinois Security Service

• Citation: 269 F.3d 863
• Decision Date: 22 October 2001
• Docket Number: No. 01-1119,01-1119
• Parties: (7th Cir. 2001) Marshall Covington, Plaintiff-Appellant, v. Illinois Security Service, Incorporated, Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 863

269 F.3d 863 (7th Cir. 2001)

Marshall Covington, Plaintiff-Appellant, v. Illinois Security Service, Incorporated, Defendant-Appellee.

No. 01-1119

United States Court of Appeals, Seventh Circuit

Argued September 5, 2001

Decided October 22, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 1986--William J. Hibbler, Judge.

Before Flaum, Chief Judge, and Posner, and Ripple, Circuit Judges.

Flaum, Chief Judge.

Marshall Covington appeals the district court's decision which dismisses his lawsuit against the appellee. For the reasons stated herein, we reverse the decision of the district court and remand this case for further proceedings not inconsistent with this opinion.

I. BACKGROUND

Marshall Covington ("Covington") was employed as a security guard for Illinois Security Service, Incorporated ("ISS"). After he allegedly had been found sleeping on the job, ISS terminated Covington. On May 24, 1999, Covington filed a charge against ISS with the EEOC, claiming that he had been subjected to racial slurs while on the job and that his discharge had been racially motivated.

After an EEOC mediation process failed to resolve the matter, Covington was verbally informed by an EEOC investigator that his charge would likely be dismissed and that he would receive a Right-to-Sue letter in short order. Covington was also informed that he would have ninety days from the receipt of the Right-to-Sue letter to file suit against ISS. On October 20, 1999, the EEOC sent Covington a letter, via certified mail, dismissing his charge. In that letter, the EEOC informed Covington that he would have ninety days to file a lawsuit against ISS. A copy of Covington's Right-to-Sue letter was received by ISS on October 22, 1999.

This appeal centers around the Right-to- Sue letter which was sent to Covington via certified mail. The postal service unsuccessfully attempted to deliver that letter to Covington's address. Covington asserts that he received no notice that the postal service had attempted delivery. According to postal procedures, when a recipient is not present to sign for a certified piece of mail, notice is left at the recipient's address, informing him that the letter is being held at the post office. After five days, a second notice is left at the recipient's address, and ten days after that, if the letter has not been picked up by the recipient, it is returned to the sender. Covington's Right-to-Sue letter remained unclaimed and was eventually returned to the EEOC on December 27, 1999. The following day, the EEOC sent Covington a copy of the letter via first class mail. Covington acknowledges that he received the first class letter on January 4, 2000. The first class letter received by Covington was stamped with the following notation: "Received EEOC Dec 27 1999 Chicago District Office." On March 31, 2000, eighty-seven days after he had received the first class letter from the EEOC, Covington filed suit against ISS, alleging that he was discharged in violation of Title VII of the Civil Rights Act.

ISS filed a motion to dismiss Covington's complaint as untimely, pursuant to Federal Rule of Civil Procedure 12(b)(6). In response to ISS's motion, Covington filed a brief stating that he had acted diligently in bringing his lawsuit. In support of this responsive pleading, Covington attached an affidavit in which he swore that he "first received notice of the Right-to-Sue letter by regular mail on or about January 4, 2000," and that he "was never told by anyone at the EEOC or by Defendant that service had been previously attempted." See Covington Affidavit ¶ ¶ 8, 13.

The district court granted ISS's motion to dismiss and concluded that Covington had been negligent in his failure to retrieve his certified letter from the post office.

II. DISCUSSION

When a district court is presented with a 12(b)(6) motion to dismiss a plaintiff's complaint, "if . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary...