Smith v. Flagship Intern.

• Decision Date: 22 January 1985
• Docket Number: Civ. A. No. CA 3-83-0692-G.
• Citation: 609 F. Supp. 58
• Parties: Sandi D. SMITH, Plaintiff, v. FLAGSHIP INTERNATIONAL, a Delaware Corporation, d/b/a Sky Chefs, Defendant.
• Court: U.S. District Court — Northern District of Texas

609 F. Supp. 58

Sandi D. SMITH, Plaintiff, v. FLAGSHIP INTERNATIONAL, a Delaware Corporation, d/b/a Sky Chefs, Defendant.

Civ. A. No. CA 3-83-0692-G.

United States District Court, N.D. Texas, Dallas Division.

January 22, 1985.

John W. Walker and Lazar M. Palnick, John W. Walker, P.A., Little Rock, Ark., Samuel Biscoe, Dept. of Agriculture, Austin, Tex., for plaintiff.

David A. Schwarte, Dallas/Fort Worth Airport, Tex., Thomas L. Case, St. Claire & Case, Dallas, Tex., for defendant.

MEMORANDUM ORDER

FISH, District Judge.

Sandi Smith brought this action seeking individual relief under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq., and individual and class relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1981). Smith asserts these claims on behalf of herself and all females employed by the defendant since January 1, 1979, who have suffered sex discrimination in the terms and conditions of their employment.

The defendant, referred to herein as "Flagship," moves for partial summary judgment dismissing all of Smith's individual and class claims under Title VII on the ground that these claims are time-barred by section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1).¹ For the reasons stated below, the court is of the opinion that Flagship is entitled to summary judgment on the class claims but not on Smith's individual claims.

Factual Background

The events relevant to this motion began on October 1, 1982, when Smith's attorney filed an earlier action in this court. That case, styled Benita T. Jones v. Flagship International, d/b/a Sky Chefs and docketed as Civil Action No. 3-82-1611-G, presented claims on behalf of putative nationwide classes of female and black employees of Flagship. Smith was not named as a class representative.

The next significant event, the timing of which is disputed, was the receipt by Smith of her statutory notice of right to sue under Title VII. Flagship contends that the Equal Employment Opportunity Commission ("EEOC") issued and mailed the notice on November 3, 1982, and that Smith received it on November 4, 1982. Smith counters that she first received official notice of her right to sue after March 23, 1983.

Smith filed her complaint initiating the present action on April 21, 1983. Under Flagship's version of the facts, then, Smith brought this suit 167 days after she received her right-to-sue letter from the EEOC. Under Smith's version, however, she brought suit no more than 29 days after the day she received notice.

Meanwhile, on March 24, 1983, Flagship filed in the Jones action a motion to dismiss the class allegations from the plaintiff's complaint. The plaintiff therein then, on June 9, 1983, filed a motion for certification of classes of female and black employees of Flagship. The former class, which is relevant to this motion, was alleged to consist of "female employees who are subjected to a discriminatory work environment which includes pervasive practices of sexual harassment, and females who have been denied promotions, equal working conditions and/or have been discharged due to their sex...."

In a memorandum order in Jones issued on November 8, 1983, this court denied the motion for class certification and granted the motion to dismiss. The court found the "conclusory assertions" of the plaintiff's affidavits to be insufficient to satisfy the numerosity requirement for class actions found in Federal Rule of Civil Procedure 23(a)(1). Also insufficient was the plaintiff's showing that her personal grievances would be typical of or common to those of the putative class. See Fed.R. Civ.P. 23(a)(2) and (3). Finally, the court noted that the plaintiff's counsel had been dilatory in prosecuting the action² and that the plaintiff herself must be disqualified from representing the class because of conflicts of interest;³ therefore, the plaintiff had failed to show that she would adequately represent the class. See Fed.R. Civ.P. 23(a)(4).

I. Plaintiff's Compliance Vel Non With the 90-Day Filing Limitation

The first question presented by Flagship's motion for summary judgment is whether a genuine issue exists for trial concerning the timeliness of the filing of Smith's complaint in this court after receipt of her statutory notice of right to sue.

A. The Law

While compliance with the 90-day filing period is not a prerequisite to a federal court's subject-matter jurisdiction under Title VII, such compliance is a statutory precondition to the maintenance of any action under Title VII. Sessions v. Rusk State Hospital, 648 F.2d 1066, 1070 (5th Cir.1981); see Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 592 n. 15 (5th Cir.1981) (en banc) (recent decisions of the Fifth Circuit indicate that the 90-day period is "more in the nature of a statute of limitations subject to equitable modification than a jurisdictional prerequisite"); see also, e.g., Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (claim barred where claimant filed suit 91 days after son signed certified mailing receipt for notice of right to sue, even though notice did not come to claimant's attention until "one or two days later"). Dismissal of Title VII claims is proper where the plaintiff fails to meet his or her burden of proving that the complaint was timely filed in court. Cf. Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1306 (5th Cir.1980) (district court correctly dismissed Title VII claims where plaintiffs offered no proof that they had timely filed complaint with EEOC).

B. The Evidence

In support of her contention that she received no notice of right to sue before March 23, 1983, Smith submits a copy of a "Notice of Conciliation Conference" dated September 14, 1982, and mailed to her by the EEOC. The notice states that the conference was to be held on September 28, 1982, and specifies the time and place and indicates that a copy was sent to her lawyer.

Smith also offers a copy of a letter dated March 17, 1983, from her lawyer to the director of the Dallas EEOC office asking for information concerning whether the EEOC had ever sent Smith her statutory notice of right to sue and stating that his office had no record that such notice had been mailed to or received by Smith.

In addition Smith submits a third letter, this one dated March 23, 1983, and mailed to her lawyer from the EEOC. According to the letter, the EEOC's records reflected that the notice was sent on or about November 3, 1982. The letter also states that the notice "should have been sent by certified mail" but that the EEOC had no certified mail numbers or receipts to prove that the letter had been mailed to Smith. The EEOC had attached to the letter a copy of the right-to-sue notice that the EEOC's records showed was mailed in November 1982. The notice is addressed to Smith and is dated November 3, 1982.

Smith also calls the court's attention to the record to take notice that the complaint in this cause was filed on April 21, 1983.

Finally, Smith attaches to her responsive papers an affidavit supplementing her deposition testimony that she does not remember receiving a notice of right to sue in November 1982. Smith further avers in the affidavit that she does not remember if she received any right-to-sue notice other than a copy of the notice sent along with the March 1983 letter to her lawyer.

In its motion for partial summary judgment, Flagship offers various pieces of evidence to show that there is no genuine issue that the EEOC mailed the right-to-sue notice to Smith on November 3, 1982; that Smith received the letter on November 4, 1982; and, therefore, that Smith failed to bring suit within the 90-day period prescribed in Title VII.

First, Flagship points out that the copy of the November 3, 1982, right-to-sue letter indicates on its face that a copy was sent to David A. Schwarte, one of the attorneys for Flagship. Schwarte states in his affidavit that he received his copy of the notice of right to sue on November 5, 1982, in an EEOC envelope postmarked November 3, 1982, and bearing a return receipt number of P204-993-278. Schwarte has submitted as attachments to his affidavit copies of the right-to-sue notice and the envelope.

Second, Flagship submits the affidavit of Wanda Pulliam, a letter carrier for the United States Post Office in Keller, Texas, which was Smith's town of residence in November 1982. Pulliam's affidavit evinces that she delivered a letter bearing return receipt number P204-993-279 to Smith at her address in Keller on November 4, 1982, and that Smith signed the return receipt in Pulliam's presence. Attached as an exhibit to the affidavit is a copy of the return receipt with a signature purporting to be Smith's. A copy of the same return receipt is also attached to an affidavit by Jean Cain, Postmaster for the United States Post Office in Keller, Texas. This affidavit shows that the receipt is contained in a public register of all certified mail return receipts going through the Keller post office.

Finally, Flagship shows to the court that the return receipt indicates that the letter's ZIP code of origin was 75201. The return address on the November 3, 1982, right-to-sue notice reflects that 75201 is also the ZIP code of the EEOC's Dallas office.

C. Analysis

In considering Flagship's motion for partial summary judgment, this court is aware of its duties to view the movant's summary judgment evidence and the inferences therefrom "in the light most favorable to the party opposing the motion," United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), and to "indulge every reasonable inference from the underlying facts in favor of the party opposing the motion," American Telephone & Telegraph Co. v. Delta Communications Corporation, 590 F.2d 100, 102 (5th Cir.), cert. denied, 444 U.S. 926, 100 S.Ct. 265, 62 L.Ed.2d 182 (1979) (emphasis in original)....