Million v. Frank

• Decision Date: 07 February 1995
• Docket Number: No. 92-6255,92-6255
• Citation: 47 F.3d 385
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 254, 66 Empl. Prac. Dec. P 43,513, 8 A.D.D. 781 Tedder R. MILLION, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, U.S. Postal Service, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 385

47 F.3d 385

67 Fair Empl.Prac.Cas. (BNA) 254,

66 Empl. Prac. Dec. P 43,513, 8 A.D.D. 781

Tedder R. MILLION, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, U.S. Postal Service Defendant-Appellee.

No. 92-6255.

United States Court of Appeals Tenth Circuit.

Feb. 7, 1995.

Steven M. Angel, Law Offices of Steven M. Angel, Oklahoma City, OK, for plaintiff-appellant.

Stuart M. Gerson, Frank W. Hunger, Asst. Attys. Gen., Washington, DC, Joe L. Heaton, U.S. Atty., Oklahoma City, OK, Marleigh D. Dover and Jennifer H. Zachs, Dept. of Justice, Washington, DC, for defendant-appellee.

Before TACHA, Circuit Judge, SETH, Senior Circuit Judge and LUNGSTRUM, District Judge. ^*

LUNGSTRUM, District Judge.

Plaintiff, Tedder R. Million, appeals the district court's grant of summary judgment in favor of defendant, Anthony M. Frank, Postmaster General of the United States Postal Service. We conclude that the district court properly granted defendant's motion and affirm. ¹

The facts relevant to this appeal are straightforward and not in dispute. Mr. Million was employed by the United States Postal Service as a rural letter carrier until January 23, 1989 when he was given a notice of removal. He subsequently filed a formal complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of an alleged handicap and reprisal. The EEOC determined that no discrimination had occurred and sent a letter to Mr. Million informing him of his right to file a civil action in district court within thirty days. Plaintiff's wife received and signed for the notification letter at plaintiff's address on August 10, 1991. The decision was also mailed to plaintiff's counsel and was received at counsel's office on August 14, 1991. Plaintiff did not actually see the document until August 16, 1991, when he reviewed his mail. Plaintiff states that his regular practice was to review his mail on a weekly basis because of his hectic work schedule and that his review of the EEOC letter was in accord with this general practice. Plaintiff filed suit in district court on September 13, 1991, thirty-four days after his wife signed for the right to sue letter.

Plaintiff's first amended complaint alleged discrimination under the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. Sec. 2000e et seq. ("Title VII"), and the Rehabilitation Act of 1973, as amended by the Civil Rights Act of 1991, 29 U.S.C. Sec. 791. The Civil Rights Act of 1991 went into effect roughly six weeks after plaintiff filed his suit in the district court.

The district court dismissed plaintiff's suit as time-barred. The court rejected plaintiff's argument that the thirty-day period for filing his action did not begin to run until the date plaintiff actually opened and read the EEOC's notification and it determined, instead, that the time period for filing his civil action began to run on the date that the EEOC's letter was received by plaintiff's wife. In addition, the district court found that the Civil Rights Act of 1991 ("1991 Act"), which extended the applicable filing period from thirty to ninety days, did not apply retroactively to save plaintiff's claim. We review the district court's grant of summary judgment de novo, applying the same standard used by the trial court. Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990); Building & Constr. Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1492 (10th Cir.1993).

In September of 1991 when plaintiff filed this action, section 2000e-16(c) of Title VII authorized a federal employee to file a civil action in federal district court "within thirty days of receipt of notice of final action taken by ... the Equal Employment Opportunity Commission." 42 U.S.C. 2000e-16(c) (1988); 29 U.S.C. 794a(a)(1). The first issue to be addressed on this appeal is whether receipt of the letter at plaintiff's home by his wife constitutes "receipt of notice" for purposes of section 2000e-16(c). Plaintiff concedes that if the time period began to run upon receipt of the notice by his wife, his action was untimely. However, if we find that he did not receive notice until he actually looked at his mail several days later, the period began to run the date his attorney received the letter and his action was timely filed. See Irwin v. Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 455-56, 112 L.Ed.2d 435 (1990) (thirty-day period runs from date letter is received by attorney); Noe v. Ward, 754 F.2d 890, 892 (10th Cir.1985) (notice to attorney is imputed to client). This issue has not been addressed previously in our circuit.

There has been some debate in the courts over the triggering of the thirty-day period, as well as the comparable ninety-day period found at 42 U.S.C. 2000e-5(f)(1) ², for filing suit in a Title VII action. Plaintiff here asks us to follow those decisions which have required actual receipt by the plaintiff as the trigger to the running of the time period, even though the notice was earlier received by another member of plaintiff's household at plaintiff's residence. See Archie v. Chicago Truck Drivers, 585 F.2d 210 (7th Cir.1978) (where letter was received by plaintiff's wife who delayed nine days before giving it to plaintiff, trigger date was that day plaintiff received the letter); Sousa v. N.L.R.B., 817 F.2d 10, 10-11 (2d Cir.1987) (time period began to run when plaintiff picked up his mail at post office, although letter was received at his post-office box five days earlier); Killingham v. Board of Governors of State Colleges and Universities, 549 F.Supp. 225 (N.D.Ill.1982) (where letter received by plaintiff's mother, time period began to run the following day when she gave it to plaintiff). We decline to do so.

Numerous other courts have held that the period for filing begins to run when there has been receipt by a member of plaintiff's household at plaintiff's address, unless the plaintiff establishes equitable considerations which would justify tolling. See Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 (4th Cir.1993) (filing period triggered by delivery of notice to plaintiff that she could pick up her right to sue letter at post office, rather than by her picking up the letter five days later); Scholar v. Pacific Bell, 963 F.2d 264, 266-68 (9th Cir.) (ninety-day period for filing discrimination action ran from date right to sue letter was received and signed by plaintiff's daughter at plaintiff's residence rather than when plaintiff read the letter a few days later), cert. denied, --- U.S. ----, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992); Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir.1987) (court held ninety-day period began when EEOC's right to sue letter was received by plaintiff's wife even though claimant did not learn of the letter until six days later); Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1248-50 (5th Cir.1985) (court held ninety-day period began when EEOC's right to sue letter was received by plaintiff's wife even though plaintiff did not see the letter until he returned from out of town eight days later) ³; Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (court held ninety-day period began when claimant's seventeen year-old son signed receipt for EEOC's right to sue letter in spite of plaintiffs contention he did not see the letter until one or two days later); Bell v. Eagle Motor Lines, Inc., 693 F.2d 1086, 1087 (11th Cir.1982) (receipt by wife started running of the time period). ⁴ We agree with the approach adopted by the Fourth, Fifth, Ninth and Eleventh Circuits.

In the absence of equitable considerations demanding a different result, receipt at a plaintiff's address of the right to sue letter constitutes receipt sufficient to start the running of the time period for filing a discrimination action. If the rule were otherwise, a plaintiff would be permitted to "enjoy a manipulable, open-ended time extension which could render the statutory limitation meaningless...." Lewis v. Connors Steel Co., 673 F.2d 1240, 1242 (11th Cir.1982). There is no reason to invite abuse of a very clear Title VII provision, especially where the flexibility to consider equitable factors would obviate any potential unfairness to a litigant.

The existence of the relatively short filing period is "clear evidence that Congress intended to require claimants to act expeditiously, without unnecessary delay." Harvey, 813 F.2d at 654. The rule adopted here is consistent with this intent. A plaintiff " 'should be required to assume some minimum responsibility himself for an orderly and expeditious resolution of his dispute.' " Bell, 693 F.2d at 1087 (citing Lewis, 673 F.2d at 1242). Thus, notice received by plaintiff's wife in the instant case triggered the start of the thirty-day period unless plaintiff has brought forth equitable considerations which would justify tolling that time period. ⁵

Compliance with the filing requirements of Title VII is not a jurisdictional prerequisite, rather it is a condition precedent to suit that functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-93, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982)). Equitable tolling is applicable to suits against private defendants as well as suits against the United States. Irwin, 498 U.S. at 92, 111 S.Ct. at 455-56. The propriety of equitable tolling must be determined on a case-by-case basis. Gonzalez-Aller Balseyro, 702 F.2d at 859. Equitable tolling may be appropriate where "the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights...." Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d...