Payan v. Aramark Management Services Ltd.

• Decision Date: 02 August 2007
• Docket Number: No. 05-15978.,05-15978.
• Citation: 495 F.3d 1119
• Parties: Martha E. PAYAN, Plaintiff-Appellant, v. ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP, Aramark Service Master Facility Services, Inc., aka/Aramark Service Master Facility Services, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

495 F.3d 1119

Martha E. PAYAN, Plaintiff-Appellant, v. ARAMARK MANAGEMENT SERVICES LIMITED PARTNERSHIP, Aramark Service Master Facility Services, Inc., aka/Aramark Service Master Facility Services, Inc., Defendant-Appellee.

No. 05-15978.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2006.

Filed August 2, 2007.

Mark E. McKane, Kirkland & Ellis LLP, San Francisco, CA, for the plaintiff-appellant.

Thomas L. Hudson, Esq., Meghan H. Grabel, Osborn Maledon PA, Phoenix, AZ, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona; Susan R. Bolton, District Judge, Presiding. D.C. No. CV-04-00002-SRB.

Before: ANDREW J. KLEINFELD and JAY S. BYBEE, Circuit Judges, and ROBERT H. WHALEY,^* District Judge.

BYBEE, Circuit Judge:

Martha E. Payan ("Payan") appeals the district court's dismissal of her Title VII claims against Aramark Management Services L.P. ("Aramark"). This appeal turns upon one narrow and discrete issue—how to determine whether a Title VII action brought in district court after the receipt of an EEOC right-to-sue letter has been timely filed when the actual date of receipt by the litigant is unknown. Although we have addressed this question in a handful of previous cases, our earlier holdings fail to provide sufficient clarity to resolve the current case. Here, we seek to establish a coherent rule to apply to Payan's case. Under that rule, we hold that in the absence of evidence of actual receipt, we will apply a three-day mailing presumption to determine notice of a right-to-sue letter. We conclude that Payan's claims are untimely and affirm the district court's decision granting summary judgment for Aramark.

I

Payan's term of employment with Aramark began on August 8, 2002, and ended on July 11, 2003, when she was terminated. On July 30, 2003, Payan submitted a charge of discrimination to the Equal Employment Opportunity Commission ("EEOC") asserting sex discrimination and retaliation against Aramark. The EEOC dismissed Payan's charge and issued a right-to-sue notice letter dated September 26, 2003.¹ As Payan noted in her opening brief, "[t]he actual date [Payan] received the notice is unknown." However, the fact of receipt itself is undisputed. Payan filed this lawsuit on January 2, 2004, ninety-eight days after the EEOC letter was issued, alleging claims for sexual harassment, retaliation, and discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") and deprivation of civil rights under 42 U.S.C. § 1983 against Aramark.²

In response, Aramark filed a motion for summary judgment, contending that Payan's complaint was untimely because it was filed after the ninety-day period within which a litigant must file suit after receiving notice of dismissal from the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The district court concluded that Payan's complaint was untimely and granted Aramark's motion for summary judgment. This appeal followed.

II

We review a district court's ruling that a Title VII action is barred by the statute of limitations de novo. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1108-09, 1112 (9th Cir.2003). We also review a district court's grant of summary judgment de novo. See id.

III

Title VII provides that upon dismissing a charge of discrimination, the EEOC must notify the claimant and inform her that she has ninety days to bring a civil action. See 42 U.S.C. § 2000e-5(f)(1) ("If a charge filed with the [EEOC] . . . is dismissed by the [EEOC], . . . the[EEOC or otherwise appropriate entity] shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought."). As we have previously explained, this ninety-day period operates as a limitations period. See Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir.1992). If a litigant does not file suit within ninety days "[of] the date EEOC dismisses a claim," then the action is time-barred. Id. Therefore, ascertaining the date on which the limitations period begins is crucial to determining whether an action was timely filed.

We measure the start of the limitations period from the date on which a right-to-sue notice letter arrived at the claimant's address of record. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir.1997); Scholar, 963 F.2d at 267. Where that date is known, we will deem the claimant to have received notice on that date, regardless of whether the claimant personally saw the right-to-sue letter. See Nelmida, 112 F.3d at 384 (measuring the limitations period from the post office's first attempted delivery at the claimant's address); Scholar, 963 F.2d at 267 (calculating the ninety-day period from the date on which the EEOC letter was "received and signed for by [the petitioner's] daughter").

Here, Payan does not dispute having received the letter, but does not claim to know when the letter arrived at her address of record. As Payan noted in her opening brief, "[t]he actual date [Payan] received the notice is unknown." In her deposition, Payan suggested that "[the letter] could have been delayed" and that "[she'd] gotten mail that'[d] been delayed before . . . [s]ometimes about a week." However, she does not claim to know when the letter was delivered to her address of record.

Where the date of actual receipt is unknown, we will estimate that date based on the date of EEOC disposition and issuance of notice, with some compensation for mailing time. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 & n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam); Ortez v. Wash. County, 88 F.3d 804, 807 (9th Cir.1996) (approximating notice based on when the EEOC letter was apparently mailed). In accordance with that logic, the district court here used the issuance date of the EEOC letter, September 26, 2003, as a starting date, and presumed receipt of the letter at Payan's address of record three days later.

Payan maintains that the district court erred in basing its presumption on the EEOC letter issuance date without requiring Aramark to prove the circumstances of mailing, including proper address and postage. Payan offers two alternative arguments in this regard. First, Payan asserts that as the non-moving party, she is entitled to have all evidence construed in her favor. She claims that by not requiring Aramark to prove the circumstances of mailing, the district court erroneously construed these material facts against Payan. Second, Payan argues that Aramark had the burden to prove that the statute of limitations had expired, as an affirmative defense, and failed to meet that burden by not establishing the circumstances of mailing. Payan maintains that, for either reason, necessary predicate facts were not established to justify the district court's presumption.

Payan's arguments are unsupported by law. Where the actual date of receipt is unknown but receipt itself is not disputed, we have not demanded proof of actual receipt but have applied a presumption to approximate receipt. See Ortez v. Wash. County, 88 F.3d 804, 807 (9th Cir. 1996). Payan is correct that because the statute of limitations is an affirmative defense, the defendant bears the burden of proving that the plaintiff filed beyond the limitations period. See Tovar v. U.S.P.S., 3 F.3d 1271, 1284 (9th Cir.1993) ("In every civil case, the defendant bears the burden of proof as to each element of an affirmative defense."); Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th Cir.2003) ("[I]t is well-settled that statutes of limitations are affirmative defenses, not pleading requirements."). See also Ebbert v. Daimler-Chrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003) (holding that the burden to prove expiration of statute of limitations, as an affirmative defense, rests on the employer); Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997); Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411 (7th Cir.1989) (stating that the defendant has burden of proof regarding its affirmative defenses in Title VII actions).³ Contrary to Payan's argument, however, the defendant may do so by raising the limitations defense and providing sufficient evidence to support the presumption. Here, Aramark has raised the defense and offered proof of the right-to-sue letter. Thus, the undisputed facts established in Payan's case are that the EEOC issued a right-to-sue notice letter to Payan on September 26, 2003, that the EEOC mailed the letter to Payan's address of record, and that Payan received the notice letter at this address. From that basis, we must calculate Payan's date of receipt.

We begin with the presumption that the letter issuance date is also the date on which the letter was mailed. See id.; see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 & n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam); Taylor v. Books A Million, Inc., 296 F.3d 376, 379-80 (5th Cir.2002); Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 238-39 (3d Cir.1999); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.1996); Jarrett v. U.S. Sprint Commc'ns Co., 22 F.3d 256, 259 (10th Cir. 1994); Banks v. Rockwell Int'l N. Am. Aircraft Operations, 855 F.2d 324, 326 (6th Cir.1988). While occasionally courts may have more evidence surrounding the facts of mailing, see, e.g., Nelmida, 112 F.3d at 382 (describing the "envelope containing the original right-to-sue notice"), we know of no rule requiring such proof. Indeed, in Baldwin, the Supreme Court based its mailing date on the letter issuance date, without additional proof. See 466 U.S. at 148, 104 S.Ct. 1723 & n. 1 ("A notice of right to sue was issued to [the petitioner] on January 27, 1981."). Other federal courts have done the same. See, e.g., Taylor, 296 F.3d at 380 (noting that "[t]he EEOC issued a right-to-sue letter on September 29, 2000" and calculating the limitations based on that date); Sherlock, 84 F.3d at...