Kerr v. McDonald's Corp.

• Decision Date: 06 October 2005
• Docket Number: No. 04-14465.,04-14465.
• Citation: 427 F.3d 947
• Parties: Christine KERR, Pat Green Smith, Plaintiffs-Appellants, v. McDONALD'S CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

427 F.3d 947

Christine KERR, Pat Green Smith, Plaintiffs-Appellants, v. McDONALD'S CORPORATION, Defendant-Appellee.

No. 04-14465.

United States Court of Appeals, Eleventh Circuit.

October 6, 2005.

Harlan S. Miller, III, Miller, Billips & Ates, P.C., Atlanta, GA, for Plaintiffs-Appellants.

Kenneth L. Dobkin, Beth Threadgill Paxton, Jerry C. Newsome, Hunton & Williams, LLP, Atlanta, GA, for McDonald's Corp.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, CARNES and FAY, Circuit Judges.

PER CURIAM:

This appeal requires us to address whether the limitations period for filing an action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 20 U.S.C. §§ 621-34, begins to run only upon actual receipt of a written notice of the right to sue or whether, under the test established in our circuit, a complainant's actual knowledge that investigation of her claim has been terminated may be sufficient to cause the time for filing to begin running within a reasonable time after notice of the complainant's requested right-to-sue notice has been mailed. The district court determined that a claim filed nearly 120 days after right-to-sue letters were mailed, although within 90 days of the time complainants claimed first to have received them, was untimely. We AFFIRM the district court's order.

I. BACKGROUND

Christine Kerr and Pat Green Smith, plaintiffs-appellants in this case, both over fifty years old, were terminated from their employment with defendant-appellee, McDonald's Corporation, in October 2001. They filed a class-action, age-discrimination claim against McDonald's. McDonald's moved to dismiss on the ground that the complaint was time-barred because right-to-sue ("RTS") letters issued by the Equal Employment Opportunity Commission ("EEOC") were dated 31 December 2002, but the complaint was not filed until 15 May 2003 (well over 90 days later). Kerr and Green Smith assert that their complaint was timely because they did not receive the letters until 15 February 2003.¹

In April 2002, Kerr and Green Smith filed age discrimination charges with the EEOC. At the time, Brenda Webb was a unit supervisor at the Atlanta office of the EEOC. April Sims was the investigator assigned to investigate Kerr and Green Smith's claims. Both Kerr and Green Smith communicated with Sims about their respective charges at least once a month throughout the course of the investigation.

Near the end of December 2002, during a telephone conversation, Sims told Kerr that the EEOC investigation of her claim was finished and gave a tentative conclusion, subject to the approval of her supervisor, that there was not enough evidence to issue a finding in Kerr's favor. Sims also explained that the EEOC would issue an RTS letter without making any official finding if Kerr requested such a notice. Kerr admits that by early January 2003, at the latest, she knew that the EEOC had ended its investigation and processing of her charge. Sims had a similar telephone conversation with Green Smith in December 2002.

A few days before 30 December 2002, by telephone in each case, both Kerr and Green Smith orally requested RTS letters. According to Webb, an RTS letter can be issued by the EEOC based upon an oral request by a charging party.² Still, the EEOC has a practice of following up all oral requests and sent a letter each to Kerr and Green Smith on 30 December 2002, asking for written confirmation. Each of them was instructed to fill out an enclosed RTS letter request form and return it to the EEOC by 8 January 2003. Kerr signed hers and sent it back on 3 January 2003. Green Smith signed hers on 2 January 2003 and mailed it on 3 January 2003. According to an EEOC log sheet, the forms were received by the EEOC on 7 January 2003. The letter accompanying each form clearly explains that issuance of an RTS letter represents the end of any formal EEOC action in the matter.

Kerr and Green Smith both assert that they did not receive any right to sue letters until sometime in February.³ Despite having made the requests in early January, despite the importance of these letters to the federal claims they intended to file and despite Green Smith's testimony that her RTS letter was important to her and that she was "looking for and waiting for" it to arrive in the mail, neither Kerr nor Green Smith contacted Sims or anyone else at the EEOC after 3 January 2003 to inquire about the apparently missing letters.

Both RTS letters were signed by Webb and dated 31 December 2002.⁴ General EEOC practice is to mail them out the day they are dated, or within the following two days, at the latest. Because such letters are mailed by a clerk, however, the exact date of mailing is not confirmable. Evidence in the record about specific EEOC office procedures related to the preparation and mailing of RTS letters and the closure of files sheds some light on the issue. First, as a rule, files are not submitted for closure until the RTS letters have been sent out. Second, the normal practice of the EEOC is to send out RTS letters to the charging party and the respondent at the same time. Finally, the majority of RTS letters are sent out tri-folded in regular white business envelopes. Investigation files are returned to charging parties by a wholly different department, in large manilla envelopes marked "CRTIU," and only after the file has been closed. See 29 C.F.R. § 1610.17(g) (request for copy of investigation file in an ADEA case will be denied unless case has been closed).

Dates on the routing sheets for both Kerr and Green Smith indicate that Webb instructed the clerk to copy and mail the RTS letters on 31 December 2002.⁵ Kerr's file was submitted for closure on 8 January 2003.⁶ As to Green Smith's file, the date it was submitted for closure is somewhat illegible, though it is clearly a date before 8 January 2003 (it appears to be 30 December 2002). Thus, per EEOC office procedure, even if the RTS letters were not mailed as early as 31 December 2002, they could not have been mailed any later than 9 January 2003, the day after Kerr's file was submitted for closure. After receiving copies of letters dated 31 December 2002 in mid February, neither Kerr nor Green Smith called to inquire about the discrepancy in dates.

The district court granted summary judgment in favor of McDonald's and found that Kerr and Green Smith had failed to file their employment discrimination claims within the applicable 90-day limitations period. Kerr and Green Smith argue that a genuine issue of material fact remains as to when they actually received the letters, and that, because the court failed to construe this disputed evidence in their favor, summary judgment was improperly granted. McDonald's argues that, because Kerr and Green Smith had knowledge of their right to sue and had requested official notice thereof, the time for filing should begin within a reasonable time after the letters were mailed, rather than with their actual receipt of file copies.

II. DISCUSSION

We review a district court's grant of summary judgment de novo viewing the evidence in the light most favorable to the party opposing the motion. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.2004). Under the ADEA, "a civil action may be brought . . . within 90 days after the date of the receipt of . . . notice [of dismissal of the charge]." 29 U.S.C. § 626(e). As we have explained, the 90 days commence at the time the "complainant has adequate notice that the EEOC has dismissed the Charge." Santini v. Cleveland Clinic Florida, 232 F.3d 823, 825 (11th Cir.2000). Once a defendant contests the issue of whether the complaint was filed timely, the plaintiffs bear the burden of showing that they have met the requirement. Green v. Union Foundry Company, 281 F.3d 1229, 1233-34 (11th Cir.2002).⁷ To determine whether the complaint in this case was timely, we first will review the record for any remaining disputed issues of fact and then examine the law in our circuit as to the appropriate trigger for the 90-day limitations period.

A. Remaining Issues of Disputed Fact

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.1990). A fact is material for the purposes of summary judgment only if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Kerr and Green Smith have clearly demonstrated a dispute as to exactly when (between 31 December 2002 and 9 January 2003) the RTS letters were mailed and as to when they each first received copies thereof. Summary judgment in favor of McDonald's would thus be improper if facts assumed as to these issues were material to the analysis.

The record establishes, however, that both Kerr and Green Smith knew for certain no later than 3 January 2003 that the EEOC had completed its investigation of their claims and would either issue determinations (most likely finding no violation) or, should Kerr and Green Smith so request, issue RTS letters. Understanding that issuance of those letters would represent the end of EEOC involvement, both Kerr and Green Smith chose to request letters. They filled out the forms they had received accompanied by letters explaining the process, and returned the forms to the EEOC on 3 January 2003. No genuine dispute of fact has been raised as to this point.

Neither has any genuine dispute been raised as to whether the original copies of the RTS letters were mailed. Testimony concerning specific office...