Wagher v. Guy's Foods, Inc., 91-1015-C.

• Decision Date: 31 July 1991
• Docket Number: No. 91-1015-C.,91-1015-C.
• Citation: 768 F. Supp. 321
• Court: U.S. District Court — District of Kansas
• Parties: Deborah A. WAGHER, Plaintiff, v. GUY'S FOODS, INC., Defendant.

768 F. Supp. 321

Deborah A. WAGHER, Plaintiff, v. GUY'S FOODS, INC., Defendant.

No. 91-1015-C.

United States District Court, D. Kansas.

July 31, 1991.

Mark Fern, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., for plaintiff.

Thomas J. Lasater, Susan P. Selvidge, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., Eileen A. Groves, Columbus, Ohio, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

In its order dated May 9, 1991, 765 F.Supp. 667, this court converted the defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure into a motion for summary judgment pursuant to Rule 56 because both parties submitted evidentiary materials outside of the pleadings. Since plaintiff filed several affidavits and exhibits, the court allowed the following:

The record does not suggest that other evidence or facts exist that defendant could present to refute the plaintiff's facts. Even so, the defendant will be given the opportunity to present any such evidence within ten days of this order. If no additional facts and evidence are submitted, this order will automatically become the final order of the court on the Title VII issues raised in defendant's motion. If evidence is submitted, the court will consider it in rendering a final decision on defendant's contentions.

(Dk. 19 at p. 3). The defendant has submitted a pleading captioned "Defendant's Suggestion of Additional Evidence and Request for Reconsideration" (Dk. 26), and the plaintiff has filed a reply (Dk. 31) to that pleading.

In its first memorandum, defendant argued the plaintiff had failed to file her Title VII suit within ninety days of her constructive receipt of the right-to-sue letter at her former address in July of 1990. The EEOC had mailed the letter to plaintiff's former address on July 9, 1990, and it was not claimed because the plaintiff had since moved and had not informed the EEOC of her address change. Based on the evidence and arguments of record, the court held that the ninety-day period did not commence until the plaintiff actually received the right-to-sue letter on October 11, 1990. The court stressed that plaintiff's counsel in the letter of June 21, 1990, specifically requested the EEOC to send the right-to-sue letter to him and that the EEOC had failed to do that in July. The court reasoned:

When the complainant, as in the instant case, takes the steps necessary to insure the right-to-sue letter is sent to her legal counsel, who she has charged with the responsibility of acting upon this letter, the complainant should be able to rely on her request as a means to insure the timely prosecution of her case. Furthermore, it is apparent that the EEOC respects those requests and even encourages reliance upon it to meet the requests. This does not take away from the complainant's duty to report a change in address but only provides an alternative way for the complainant to protect her interest in the potential lawsuit. Indeed, the complainant should be able to set up a safeguard, as she did in this instance, against the possibility of her non-receipt of the letter for any number of reasons including those caused by her own neglect. For this reason, the court will not use the dates associated with the first right-to-sue letter in counting the ninety-day period.

(Dk. 19 at pp. 6-7). Implicit in the court's ruling and reasoning is the assumption that plaintiff's attorney also did not receive written notice of the right-to-sue letter before October 11, 1990.¹ Defendant has since proved the assumption to be erroneous.

Defendant has submitted the affidavit of Richard Schuetz, the enforcement manager with the EEOC's office in St. Louis, Missouri, in which he states that a right-to-sue letter was issued to plaintiff and her attorney on October 2, 1990, that on October 9, 1990, the plaintiff's attorney or someone from plaintiff's attorney's office called and gave him the plaintiff's new address, and that the right-to-sue letter was mailed the third time on October 9, 1990. Defendant also draws the court's attention to exhibit I attached to plaintiff's first response (Dk. 15), which is the copy of a envelope addressed to plaintiff's attorney from the EEOC bearing a postmark of October 3, 1990. From the affidavit of plaintiff's attorney (Dk. 15, Ex. G), defendant argues it can be inferred the plaintiff's counsel received the right-to-sue letter sometime after October 3, 1990, discovered that his client had not received the second mailing, deduced that the EEOC was mailing the letters to the client's former address, and then called the EEOC on October 9, 1990, and gave the current address of his client. Utilizing the presumption that receipt occurs within five-days of mailing, defendant contends the plaintiff's counsel received the right-to-sue letter on October 7 or 8, 1990; therefore, the plaintiff filed suit more than ninety days after constructive receipt of notice by her attorney.

In response, plaintiff alerts the court that the defendant's present argument is new to these motions. The court appreciates that fact and has allowed the plaintiff to file her response to that argument. Denying the argument on this basis alone would only delay a decision on it since nothing apparently prevents the defendant from raising this matter in another dispositive motion.

Plaintiff next contends the defendant's argued inferences on when her counsel received the right-to-sue letter are mere conjecture. There is nothing conjectural in following a common-law presumption of receipt after mailing if the addressee does not offer any evidence to rebut the presumption. See Banks v. Rockwell Intern. N. Am. Air. Operations, 855 F.2d 324, 326 (6th Cir.1988); Cook v. Providence Hosp., 820 F.2d 176, 179 n. 3 (6th Cir.1987); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir.1986) (citing Accord 20 C.F.R. § 422.210(c) (1985) presumes social security claimant receives notice of right-to-sue five days after notice first enters the mail)). Exhibit G establishes receipt by plaintiff's counsel, and the presumption is needed only to provide a reasonable and workable five-day framework. Plaintiff does not rebut the five-day presumption with evidence, such as her counsel's denial that he received the EEOC letter on or before October 7 or 8, 1990. The presumption stands uncontroverted.

The Supreme Court recently enforced in a Title VII case the well-established rule that notice to an attorney is imputed to the client. Irwin v. Veterans Administration, ___ U.S. ___, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The Court said:

There is no question but that petitioner appeared by his attorney in the EEOC proceeding. Under our system of representative litigation, "each party is deemed bound by the acts of his lawyer-agent and is considered to have `notice of all facts, notice of which can be charged upon the attorney.'" Link v. Wabash R. Co., 370 U.S. 626, 634 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326 25 L.Ed. 955 (1880)). Congress has endorsed this sensible practice in the analogous provisions of the Federal Rules of Civil Procedure, which provide that "whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court." Fed.R.Civ.P. 5(b). To read the term "receipt" to mean only "actual receipt by the claimant" would render the practice of notification through counsel a meaningless exercise. If Congress intends to depart from the common and established practice of providing notification through counsel, it must do so expressly. (citation omitted).

111 S.Ct. at 456. Although the Court in Irwin was construing 42 U.S.C. § 2000e-16(c), "within thirty days of receipt of notice of final action taken ... an employee or applicant," this court believes that same rationale is equally applicable and compelling in construing 42 U.S.C. § 2000e-5(f), "shall so notify the person aggrieved and within ninety days after the giving of such notice...." Section 2000e-5(f) does not expressly eliminate the common practice of giving notice through an attorney. For these reasons, the court finds the plaintiff Wagher received the right-to-sue letter on October 7 or 8, 1990, through her attorney so as to trigger the running of the ninety-day period. Plaintiff's suit is untimely unless saved by the principles of equitable tolling.

In its May 9th order, this court held, in the alternative, that the case was "well-suited for applying the doctrine of equitable tolling." (Dk. 19 at p. 8). The court focused on the fact that the EEOC had told the plaintiff that the ninety-day period would not commence until the plaintiff actually received the right-to-sue letter. The court believed the EEOC's statement actively misled and lulled the plaintiff's counsel into inaction. Presumed in the court's discussion and finding is that the only question before it was the equity of tolling the 90-day period from the July mailing to plaintiff's former address until the plaintiff actually received the letter on October 11, 1990. At no time did the court consider or weigh the factor of plaintiff's counsel having received the right-to-sue letter on October 7 or 8, 1990. Indeed, this additional factor decidedly tips the balance against any equitable tolling.

On several occasions, the Tenth Circuit has used equitable tolling when the complainant was misled by what the EEOC did or did not represent. In Gray v. Phillips Petroleum Co., 858 F.2d 610, 615-16 (10th Cir.1988), the court equitably tolled the 180-day limitations period² under the Age Discrimination in Employment Act (ADEA) as the EEOC had actively misled the employees by setting up a meeting to discuss the proposed discrimination charge after the 180-days expired. In reaching its decision, the court relied on Title VII cases on equitable...