Stambaugh v. Kansas Dept. of Corrections

• Decision Date: 27 January 1994
• Docket Number: No. 92-4297-SAC.,92-4297-SAC.
• Citation: 844 F. Supp. 1431
• Parties: Jacqueline C. STAMBAUGH, et al., Plaintiffs, v. KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

844 F. Supp. 1431

Jacqueline C. STAMBAUGH, et al., Plaintiffs, v. KANSAS DEPARTMENT OF CORRECTIONS, et al., Defendants.

No. 92-4297-SAC.

United States District Court, D. Kansas.

January 27, 1994.

William S. Robbins, Jr., Jon A. Blongewicz, Fairchild, Stang, Beal, Barber & Sanders, Kansas City, MO, for plaintiffs.

Timothy G. Madden, Topeka, KS, for defendants.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendants' motion for dismissal or summary judgment (Dk. 25). The plaintiffs are employees with the Kansas Department of Corrections ("KDOC"). They allege discrimination on the basis of sex while working at the Ellsworth Correctional Facility. The defendants argue in their motion that the plaintiffs' Title VII claims are untimely and that KDOC must be dismissed as not having the capacity to sue or be sued.¹ The plaintiffs deny any untimeliness with their Title VII claims and offer to amend their complaint to name the State of Kansas in lieu of KDOC.

Title VII, specifically 42 U.S.C. § 2000e-5(f)(1), provides that if the Equal Employment Opportunity Commission ("EEOC") dismisses a discrimination charge or takes no action within a specified period then the EEOC "shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge...." In this circuit and district, this provision has been liberally construed so that the ninety-day period for filing commences on the date that the complainant actually receives the EEOC's right-to-sue letter. Williams v. Southern U. Gas. Co., 529 F.2d 483, 487 (10th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976); Wagher v. Guy's Foods, Inc., 765 F.Supp. 667, 668 (D.Kan. 1991). A different commencement date "would unnecessarily penalize private litigants for mistakes in delivery and other delays in the mail." Plunkett v. Roadway Express, Inc., 504 F.2d 417, 418-19 (10th Cir. 1974).

It is uncontroverted that the plaintiffs filed their action on December 31, 1992, ninety-two days after the EEOC issued the right-to-sue letter on September 30, 1992. The defendants contend the plaintiffs' suits are untimely unless the plaintiffs can show they received the right-to-sue letters on or after October 2, 1992.² In response, the plaintiffs take no position on when they actually received the EEOC's letter and offer no evidence regarding that date. Instead, the plaintiffs call on a presumption borrowed from Fed.R.Civ.P. 6(e) that the right-to-sue letter is received three days after it is mailed. In reply, the defendants argue that the plaintiffs are misapplying the presumption and that the plaintiffs have the burden of coming forward with evidence regarding the date of actual receipt.

Courts have looked to Fed.R.Civ.P. 6(e) as some basis for presuming that a plaintiff receives the EEOC's letter within three days of its mailing. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 1724 n. 1, 80 L.Ed.2d 196 (1984); Williams v. Mississippi Action for Progress, Inc., 824 F.Supp. 621, 622 n. 1 (S.D.Miss.1993); White v. Union Pacific R.R., 805 F.Supp. 883, 886-87 (D.Kan.1992). What triggers this presumption and its operation are the issues here. The defendants do not take issue with whether a court has the authority to use a common-law presumption of receipt. Cf. Washington v. Foresman, 148 F.R.D. 241, 244 (N.D.Ind.1993), and Wagher v. Guy's Foods, Inc., 768 F.Supp. 321, 323 (D.Kan.1991) (both cases applied a common-law presumption that receipt occurs within five days of the right-to-sue letter's mailing date).

Three circuits have held that this presumption does not automatically extend the ninety-day period by three days if the date of receipt is undisputed. Peete v. American Standard Graphic, 885 F.2d 331, 331-32 (6th Cir.1989); Mosel v. Hills Dept. Store, Inc., 789 F.2d 251, 253 (3rd Cir.1986); Norris v. Florida Dept. of Health and Rehabilitative Services, 730 F.2d 682, 683 (11th Cir.1984). These decisions rest on sound reasoning. Rule 6(e) functions only when the prescribed period commences upon service by mail, and the ninety-day period of Title VII commences upon receipt, not mailing. Peete, 885 F.2d at 331-32; Mosel, 789 F.2d at 253. These decisions can be reconciled with decisions from other courts that have looked to Rule 6(e) in allowing a plaintiff three more days to file the suit. Rule 6(e) does not automatically allow a three-day extension to § 2000e-5(f)(1), but it does afford upon general reference a presumption of receipt three days after mailing if the date of receipt is unknown or in dispute. See Mosel, 789 F.2d at 253 n. 2; Ish v. Arlington County Virginia, 918 F.2d 955, unpub. op., 18 Fed. R.Serv.3d 124, 126, 1990 WL 180127 at *1, 1990 U.S.App. LEXIS 20374 at *3 (4th Cir. 1990); Griffin v. Prince William Hosp. Corp., 716 F.Supp. 919, 921 n. 7 (E.D.Va. 1989). This court adopts this reconciled approach as the one most in keeping with the terms and purposes of § 2000e-5(f)(1) and Rule 6(e). Literally, Rule 6(e) cannot extend the ninety-day period, but it can serve as a logical basis for ensuring that the plaintiff has the benefit of the full ninety-day period when the date of actual receipt is unknown or in dispute. If the Rule 6(e) presumption was available even in the absence of an unknown or disputed receipt date, then it would transform the statutory ninety-day period into a ninety-three day period because the EEOC's practice is to mail right-to-sue letters.

Compliance with the ninety-day filing requirement is not a jurisdictional prerequisite, but it is a statutory precondition to suit that functions like a statute of limitations. Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983). The burden rests with the plaintiff to prove this condition precedent when the defendant denies that the condition has been fulfilled. Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir.1982).³ "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." Smith v. Flagship Intern., 609 F.Supp. 58, 61 (N.D.Tex.1985) (citation omitted).

In short, the receipt presumption is triggered by the right-to-sue letter being mailed and, more importantly for this case, by the fact that the date of actual receipt is either unknown or in dispute. Who should have the burden of proving these two conditions for the presumption? Typically, both conditions can be easily proved and determined from the briefs and record. See, e.g., Dixon v. Digital Equipment Corp., 976 F.2d 725, unpub. op., 1992 WL 245867, 1992 U.S.App. LEXIS 24923 (4th Cir.1992) (no presumption — EEOC affidavit established that the plaintiff received the letter on a certain date and the plaintiff miscalculated the ninety-day period relying on that date); Peete, 885 F.2d at 331 (no presumption — date of receipt is not disputed); Mosel, 789 F.2d at 253 n. 2 (no presumption — parties agree to actual date of receipt); Ish v. Arlington County Virginia, 18 Fed.R.Serv. at 126, 1990 WL 180127 at *1, *2, 1990 U.S.App.Lexis 20374 at *1, *5 (presumption — receipt date disputed because the plaintiff claimed she actually received the letter the day after it was signed for by her apartment building's receptionist); Griffin, 716 F.Supp. at 921 (presumption — unclear when the plaintiff's attorney first received notice); Pacheco v. International Business Machines Corp., No. 90-CV-1173, 1991 WL 87538, 1991 U.S.Dist. LEXIS 6937 (N.D.N.Y. May 24, 1991) (presumption — plaintiff averred he could not recall the actual date of receipt and the court observed the unlikelihood that the letter was received on the same day that it was mailed). Nor is it unusual for a court to resort to the presumption without specific proof of both conditions when the plaintiff appears pro se and circumstances favor the presumption or when the defendant relies on the presumption and calls for the plaintiff to rebut it with proof of actual receipt. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. at 148, 104 S.Ct. at 1724 (pro se); White v. Union Pacific R.R., 805 F.Supp. at 886-87 (pro se); Rich v. Bob Downes Chrysler Plymouth, Inc., 831 F.Supp. 733, 735 (E.D.Mo.1993) (plaintiff unable to rebut presumption); Wagher v. Guy's Foods, Inc., 768 F.Supp. at 323 (plaintiff did not rebut presumption). Allowing the defendant to use the presumption without proof of its conditions⁴ is consistent with the rule that the plaintiff has the burden of proving this condition precedent and with the fact that the plaintiff is in the best position to know and prove whether the right-to-sue letter was actually...