Lozano v. Ashcroft

• Decision Date: 10 July 2001
• Docket Number: No. 98-1474,98-1474
• Citation: 258 F.3d 1160
• Parties: (10th Cir. 2001) ANTHONY LOZANO, Plaintiff-Appellant, v. JOHN ASHCROFT, Attorney General, U.S. Department of Justice; FEDERAL BUREAU OF PRISONS; OFFICE OF PERSONNEL MANAGEMENT, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1160

258 F.3d 1160 (10th Cir. 2001)

ANTHONY LOZANO, Plaintiff-Appellant, v. JOHN ASHCROFT, Attorney General, U.S. Department of Justice; FEDERAL BUREAU OF PRISONS; OFFICE OF PERSONNEL MANAGEMENT, Defendants-Appellees.

No. 98-1474

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 10, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-WM-2661) [Copyrighted Material Omitted] Charlotte N. Sweeney (Richard C. LaFond with her on the briefs) of LaFond & Sweeney, L.L.C., for Plaintiff-Appellant.

Michael E. Hegarty, Assistant United States Attorney (Thomas L. Strickland, United States Attorney; and Stacey Ross, Assistant United States Attorney, with him on the brief), Denver, Colorado, for Defendants-Appellees.

Before SEYMOUR, McKAY and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff Anthony Lozano appeals a judgment in favor of his former employer on claims of national origin employment discrimination. The Equal Employment Opportunity Commission (EEOC) found discrimination existed, but Mr. Lozano's employer, the Department of Justice (DOJ), officially rejected those findings. Mr. Lozano then brought this suit in district court, and the court determined he had not proven discrimination. On appeal, we hold the DOJ failed to provide admissible evidence that its rejection of the EEOC decision was timely. The EEOC decision was therefore binding, and accordingly we reverse the decision of the district court and remand with directions to enter judgment in favor of Mr. Lozano.

I

Anthony Lozano was hired as a corrections officer for the Colorado Bureau of Prisons in late 1990. Shortly after beginning his employment, he received a series of harassing phone calls from a caller imitating a strong Mexican accent and speaking broken English. Mr. Lozano later learned these calls were made by his supervisor at the prison. He filed a complaint with the EEOC, and the supervisor was disciplined. Mr. Lozano alleges this led to a series of retaliatory actions, including one incident in which the supervisor told other officers not to respond to Mr. Lozano's body alarm during a confrontation with an inmate.

Several months later, Mr. Lozano was terminated from his job for failing to disclose information in his pre-employment security clearance questionnaire and "integrity interview." He was denied a chance to explain the application irregularities to the warden--a privilege routinely granted to other employees threatened with dismissal. Mr. Lozano filed a second complaint with the EEOC, alleging ethnic bias led to the termination and infected the review proceedings. He averred he had adequate explanations for his failure to include the information in his application, that he told the interviewer about the challenged facts during his interview, and that non-Hispanic employees who failed to disclose similar information were not terminated. The EEOC conducted a full evidentiary hearing before an administrative judge, who found in Mr. Lozano's favor on the discrimination claim and ordered injunctive and remunerative relief.

The EEOC issued an official decision and mailed it to both parties on September 29, 1993. Pursuant to 29 C.F.R. 1614.109(g), the Department of Justice had sixty days from the date it received the decision to modify or reject the EEOC's discrimination findings.¹ The DOJ rejected the EEOC findings and denied relief on December 10, seventy-two days after the EEOC decision letter was mailed. The DOJ alleges it did not receive the EEOC findings until October 14, however, which would place its response within the allotted sixty-day window.

After receiving the DOJ's rejection letter, Mr. Lozano filed this action in federal district court. He moved for summary judgment, arguing the DOJ's rejection of the EEOC findings was not timely and thus the discrimination findings should be considered binding. In support, he submitted evidence that his own attorney received the EEOC decision letter on October 5. He argued the DOJ's claimed receipt date of October 14 was inherently unbelievable and contended that a presumption of five-day mailing time should be applied because the actual receipt date was unknown or disputed. He also filed a motion requesting the district court to take judicial notice of the EEOC's discrimination findings.

In response, the DOJ submitted evidence that it received the EEOC decision letter on October 14. It relied on a photocopy of the letter showing a partially unintelligible date stamp from October 14 and a declaration by Joyce Carson, an employee of the DOJ Complaint Adjudication Office, stating that DOJ records showed the letter was received at its mail room on October 14. The referenced records were not attached to the declaration, and the declaration contained no foundational facts establishing its evidentiary admissibility. Mr. Lozano requested that the DOJ produce the original date-stamped copy of the EEOC decision, arguing the authenticity of the photocopy was in question. The attorney for the DOJ promised to obtain it. That original was never produced.

The court denied Mr. Lozano's motion for summary judgment, reserving its ruling on both the timeliness question and the motion to take judicial notice of the EEOC discrimination findings. The parties then tried the discrimination claim to the court. Neither party presented additional evidence on the timeliness issue. Before ruling on the merits, the court took judicial notice that the EEOC decision letter had been received at the DOJ on October 14, as shown by Joyce Carson's affidavit and the photocopy of the date-stamped decision. The court accordingly declined to take judicial notice of the discrimination findings made by the EEOC administrative judge. Turning to the merits, the court found Mr. Lozano had not established a discriminatory reason for his termination and granted judgment to the DOJ.

On appeal, Mr. Lozano argues the court erred in taking judicial notice of an October 14 receipt date because that date was in dispute. He contends the actual date of receipt was not proven at trial and thus a five-day mailing presumption should apply. Alternatively, he argues the court should have taken judicial notice of the EEOC's discrimination findings at trial.² After reviewing the evidence of receipt, we agree the DOJ's rejection was untimely and we reverse the decision of the district court.

II

Mr. Lozano argues that, if the actual date of receipt of a mailed document is unknown or disputed, federal law will presume the document arrived at its destination within five days. He contends it is inherently unbelievable that the EEOC findings could have taken fifteen days to reach the DOJ and, since the actual receipt date was not proven at trial, a five-day presumption should apply. This timing question is pivotal: the sixty-day window for the DOJ to reject or modify the EEOC findings began when the DOJ received the decision letter. Because its rejection came seventy-two days after that letter was mailed, the rejection was untimely unless the letter took more than twelve days to reach the DOJ. If the rejection was untimely, the EEOC discrimination findings and recommendations for remedy remain the definitive ruling on Mr. Lozano's claims.³

The DOJ counters that federal law does not provide for a presumption of mailing time. It further contends that, even if a five-day presumption were applied, it sufficiently rebutted that presumption by presenting evidence of the actual date of receipt. We review the district court's legal findings de novo and its factual findings for clear error. See Pierce v. Underwood, 487 U.S. 552, 558 (1988). The court's decision whether to take judicial notice of facts is reviewed for abuse of discretion. See United States v. Wolny, 133 F.3d 758, 764-65 (10th Cir. 1998).

The first question is whether, lacking evidence of an actual date of receipt, federal law presumes an EEOC decision was received within a certain time after it was mailed. Mr. Lozano contends the regulatory scheme for bringing discrimination claims against a federal agency includes a five-day presumption of receipt. He relies upon 29 C.F.R. 1614.604(b), which provides that a complaint will be considered timely filed if, "in the absence of a legible postmark, it is received by mail within five days of the expiration of the applicable filing period." We have found no precedent dealing with the particular facts of this case, i.e., delivery of an EEOC decision to a federal employer. However, courts routinely apply a presumption of receipt in the analogous situation of mailing EEOC right-to-sue letters to potential claimants. There, as here, the date of receipt is significant because a claimant must bring the action within ninety days of receiving the right-to-sue letter.

When the receipt date for an EEOC right-to-sue letter is unknown or disputed, federal courts have presumed various receipt dates ranging from three to seven days after the letter was mailed. See, e.g., Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (presuming receipt three days after delivery based upon Fed. R. Civ. P. 6(e)⁴); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (same); Sherlock v. Montefiore Med. Montefiore Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996) (finding three-day presumption rebutted); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (applying five-day presumption for social security right-to-sue letter, based upon 20 C.F.R. 422.210(c) (1985)). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C. Cir. 1990) (explaining EEOC interprets "receipt . . . of final decision" to include "a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision") (citing 44 Fed. Reg. 34,494 (1979)) (internal quotations and...