Ish v. Arlington County Virginia, 90-2433

• Decision Date: 21 November 1990
• Docket Number: No. 90-2433,90-2433
• Citation: 918 F.2d 955
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Marye Elizabeth ISH, Plaintiff-Appellant, v. ARLINGTON COUNTY VIRGINIA, William L. Hughes, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 955

918 F.2d 955

18 Fed.R.Serv.3d 124

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Marye Elizabeth ISH, Plaintiff-Appellant, v. ARLINGTON COUNTY VIRGINIA, William L. Hughes, Defendants-Appellees.

No. 90-2433.

United States Court of Appeals, Fourth Circuit.

Submitted Sept. 28, 1990.

Decided Nov. 21, 1990.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, District Judge. (CA-90-855-A)

Marye Elizabeth Ish, appellant pro se.

Peter Harlan Maier, Assistant County Attorney, Arlington, Va., for appellees.

E.D.Va.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Before SPROUSE and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Marye Elizabeth Ish appeals the district court's order granting the defendant's motion for summary judgment in her employment discrimination action.

In June 1989 she filed a complaint with the EEOC claiming defendants had violated 42 U.S.C. Sec. 2000(e). Ish was sent a right to sue letter dated March 19, 1990. The return receipt indicates that a receptionist in Ish's apartment building signed for the letter on March 20, 1990. The receptionist's log verifies this date. Ish later signed the log to acknowledge receipt of the letter, but there was no place provided to indicate the date of her signature. A different receptionist actually gave Ish the letter but does not recall when that event occurred. Ish claims she received the letter on or about March 21, 1990.

Ish appeared to file her complaint pro se on June 19, 1990. She was told by the court staff to delay paying the filing fee until the magistrate ruled on her application to proceed in forma pauperis. As instructed, she called the next afternoon and the court staff informed her that the magistrate had denied her application. The staff directed her to come to court and pay her filing fee the next day, which she did.

The district court equitably tolled the 90-day statute of limitations in 42 U.S.C. Sec. 2000e-5(f)(1) to exclude any time after Ish first appeared on June 19, 1990. Although the district court found that Ish received the letter on or about March 21, it ruled that the statute of limitations had expired.

I

We affirm the district court's equitable tolling of the 90-day period to exclude any time after June 19, 1990. The defendants concede that the court should consider June 19 to be the date Ish filed her complaint. The facts in this case seem to be exactly the type suitable for the equitable tolling allowed under Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

II

We reverse the district court's decision in part, however, because Federal Rule of Civil Procedure 6(e) provides the presumption that if the date of receipt is unknown or in dispute, courts presume receipt three days after mailing. Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir.1975). The United States Supreme Court applied this rule to the receipt of an EEOC notice in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1 (1984). Three circuits have held that Rule 6(e) does not automatically extend Sec. 2000e-5(f)(1) by an additional three days if the date of receipt is undisputed because the 90 days begins on receipt of the right to sue letter, not on mailing. Peete v. American Standard Graphic, 885 F.2d 331 (6th Cir.1989); Mosel v. Hills Dep't Store, Inc., 789 F.2d 251 (3d Cir.1986); Norris v. Florida Dep't of Health and Rehabilitative Services, 730 F.2d 682 (11th Cir.1984). We adopt the reconciliation of these positions suggested in Griffin v. Prince William Hosp. Corp., 716 F.Supp. 919, 921 n. 7 (E.D.Va.1989), which held that although Rule 6(e) does not automatically provide a three-day extension to Sec. 2000e-5(f)(1), it does provide a presumption of receipt three days after mailing if the parties dispute the date of receipt. See also Mosel, 789 F.2d at 253 n. 2 (recognizing that Rule 6(e) is applicable if parties dispute date of receipt); Robinson v. City of Fairfield, 750 F.2d 1507, 1510 n. 4 (11th Cir.1985) (recognizing that Baldwin County Welcome Center may undercut Norris).

Defendants argue that Harvey v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir.1987), holds that the 90-day period begins on delivery to the plaintiff's residence. Hence, they argue, because the apartment building receptionist indisputably received the letter on March 20, the 90 days began to run then.

Harvey, however, purports only to adopt a "flexible" rule, requiring specific factual inquiries as to the appropriateness of equitable tolling. 813 F.2d at 654. Moreover, the facts in Harvey and all the cases therein cited involve a member of the plaintiff's immediate household receiving the right to sue letter. Such is not ...