Witt v. Roadway Exp., 41

• Decision Date: 27 February 1998
• Docket Number: No. 96-3147,No. 41,41,96-3147
• Parties: 157 L.R.R.M. (BNA) 3147, 76 Fair Empl.Prac.Cas. (BNA) 1705, 72 Empl. Prac. Dec. P 45,208 Charles James WITT, Plaintiff-Appellant, v. ROADWAY EXPRESS, Jim Kasperski, Teamsters Local, and Warren Stevens, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1424

136 F.3d 1424

157 L.R.R.M. (BNA) 3147, 76 Fair

Empl.Prac.Cas. (BNA) 1705,

72 Empl. Prac. Dec. P 45,208

Charles James WITT, Plaintiff-Appellant, v. ROADWAY EXPRESS, Jim Kasperski, Teamsters Local No. 41, and Warren Stevens, Defendants-Appellees.

No. 96-3147.

United States Court of Appeals Tenth Circuit.

Feb. 27, 1998.

Robert S. Ukeiley, Boulder, CO, for Plaintiff-Appellant.

Donald R. Aubry (John P. Hurley and Steven A. Fehr, with him on the brief), Kansas City, MO, for Defendants-Appellees Teamsters Local No. 41 and Warren Stevens.

Daniel B. Denk (Carl A. Gallagher with him on the brief), Kansas City, KS, for Defendants-Appellees Roadway Express and Jim Kasperski.

Before ANDERSON, EBEL, and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Charles James Witt brought this action against Defendants-Appellees Roadway Express and the Teamsters, alleging racial discrimination in violation of Title VII and § 1981, common law harassment, and unfair representation by the union. The district court disposed of Mr. Witt's claims as follows: (1) it granted summary judgment against Mr. Witt on the Title VII claims against both Roadway and the Teamsters, on the basis that they were untimely; (2) it applied a six-month limitation period to Mr. Witt's fair representation claim, and granted summary judgment against Mr. Witt because the claim was time-barred; (3) it dismissed Mr. Witt's state law harassment claims under Fed.R.Civ.P. 12(b)(6), on the ground that the members of the Teamsters who harassed Mr. Witt were not acting as agents or representatives of the union; and (4) after allowing the § 1981 claims to proceed to a jury trial, at the close of the plaintiff's evidence the court granted judgment as a matter of law in favor of defendants, ruling that the instances of discrimination proved at trial were not sufficiently race-based or pervasive to support a verdict in Mr. Witt's favor. See Witt v. Roadway Express, 880 F.Supp. 1455, 1461-65 (D.Kan.1995). Mr. Witt appeals each ruling. We exercise jurisdiction under 28 U.S.C. § 1291, affirm in part, reverse in part, and remand.

Background

Our review of each of the district court's rulings requires us to view the allegations and evidence in the light most favorable to the non-movant. See Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.1997) (reviewing grant of summary judgment); Grossman v. Novell, Inc., 120 F.3d 1112, 1118 (10th Cir.1997) (reviewing Rule 12(b)(6) dismissal); Taylor v. Cooper Tire & Rubber Co., 130 F.3d 1395, 1399 (10th Cir.1997) (reviewing judgment as a matter of law). Accordingly we present the factual background in the light most favorable to the plaintiff, drawing all reasonable inferences in his favor.

Mr. Witt, an African-American, worked for Roadway Express as a truck driver from 1987 to 1993. After a move from Memphis to Kansas City, his work situation began to deteriorate. Mr. Witt attempted to discuss with the local Teamsters business agent a problem he had had in Memphis, but was told by Mr. Stevens, the shop steward, not to bring his problems to the business agent. When Mr. Witt requested that the Teamsters in Kansas City recognize his previous time in the union in Memphis, Mr. Stevens told Mr. Witt to forget about his previous time and start over by paying his initiation fee again. Mr. Witt testified that good trucking runs were consistently given to drivers more junior than he because of his color. When he approached Mr. Stevens about this he was told to "leave it alone." R. Doc. 128 at 119. Mr. Stevens refused to question Roadway or to file a grievance on Mr. Witt's behalf.

Dissatisfied with union representation, Mr. Witt revoked his authorization to have his union dues deducted from his paycheck. Mr. Stevens and other union members began pressuring Mr. Witt to have his dues deducted. On two separate occasions he found notes on the windshield of his car at work, written on letterhead of the Knights of the Ku Klux Klan. One said, "Pay your dues, n--." II Supp. R. 91. The words of the second note on Klan letterhead were washed away by rain. Mr. Witt's car was vandalized on seven or eight occasions in the Roadway parking lot. His home was burglarized, but the only things taken were papers having to do with his problems with Roadway and the Teamsters. He received threats and racial slurs from other named drivers on occasion between 1990 and 1992. In one incident in Burlington, Colorado, several drivers called him into a motel room and attempted to coerce him into dropping his complaints against the union, calling him a n---- and referring to his being black and needing to leave things alone.

When Mr. Witt complained to officials at Roadway and the Teamsters, he received no response. Toward the end of 1992, when Mr. Witt complained about an unfair trucking assignment, a Roadway coordinator said, "F--that n----, he don't have no rights." R. Doc. 128 at 111. On another occasion in 1993, when Mr. Kasperski telephoned Mr Witt's home, Mr. Witt's girlfriend took the call. When she told Mr. Kasperski that Mr. Witt was not home, Mr. Kasperski became hostile and said, "Huh. Well where's this n--at?" III Supp. R. 366.

Mr. Witt filed a complaint with the Kansas Human Rights Commission, which forwarded it to the Equal Employment Opportunity Commission (EEOC). The EEOC sent Mr. Witt separate right-to-sue letters, both dated January 27, 1994, regarding Roadway and the Teamsters. They were mailed January 27 and 28, respectively, without return receipts requested. Although Mr. Witt received the Roadway right-to-sue letter in late January or early February, 1994, he stated in an affidavit that he did not receive the right-to-sue letter regarding the Teamsters "until the middle of March." I R. doc. 38, exh. A, p 10.

Mr. Witt's Title VII suit against the Teamsters was deemed to have been filed June 13, 1994. The Teamsters moved for summary judgment, arguing the district court should apply a presumption that Mr. Witt received the right-to-sue letter within five days of its mailing. If Mr. Witt received the letter five days after January 28, 1994, then his ninety day period to file suit expired May 3, 1994, and his June 13 lawsuit against the Teamsters was untimely. See 42 U.S.C. § 2000e-5(f)(1) (1994). If, however, Mr. Witt received the right-to-sue letter in mid-March, as his affidavit states, then his suit was timely. The district court applied a five-day presumption of receipt and found that the Title VII claim against the Teamsters was filed beyond the ninety-day limit of 42 U.S.C. § 2000e5(f)(1). The district court refused to equitably toll the ninety-day limitations period for both the Teamsters and the Roadway Title VII claims.

Discussion

We review each issue in this appeal de novo. See Bell, 127 F.3d at 1228; Grossman, 120 F.3d at 1118; Coleman v. B-G Maintenance Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.1997).

Summary judgment is appropriate only when the evidence, including any affidavits, viewed in the light most favorable to the non-movant, demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "material" fact is one "that might affect the outcome of the suit under the governing law," and a "genuine" issue is one for which "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In applying these standards we draw all reasonable inferences from the evidence in favor of the non-movant. See Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir.1997).

A. Title VII

Under 42 U.S.C. § 2000e-5(f)(1) a complainant has ninety days in which to file suit after receipt of an EEOC right-to-sue letter. Mr. Witt argues that his affidavit, stating that he received the right-to-sue letter regarding the Teamsters in mid-March, creates a genuine issue of material fact precluding summary judgment. We agree. The ninety-day limit begins to run on the date the complainant actually receives the EEOC right-to-sue notice, see Williams v. Southern Union 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), making that date a material fact. Mr. Witt has created a genuine issue as to the date of receipt by submitting evidence on which a reasonable jury could return a verdict for him. He is entitled to the reasonable inference that "the middle of March" means the 15th of March, which is a month with thirty-one days. If he received the right-to-sue letter March 15, then his complaint was due June 13, the day it was deemed filed. Even if he received the letter on March 13 or 14, his complaint would still have been timely on June 13, because June 11 and 12 were a Saturday and Sunday. See Fed.R.Civ.P. 6(a).

Teamsters Local No. 41 argues that its certified mail receipt, indicating the right-to-sue letter was mailed January 28, 1994, entitles it to a presumption that Mr. Witt received the letter within five days. A rebuttable presumption of receipt does arise on evidence that a properly addressed piece of mail is placed in the care of the postal service. See Nikwei v. Ross School of Aviation, 822 F.2d 939, 941 (10th Cir.1987); Godfrey v. United States, 997 F.2d 335, 338 (7th Cir.1993); Anderson v. United States, 966 F.2d 487, 491 (9th Cir.1992). Because the presumption is rebuttable, however, evidence denying receipt creates a credibility issue that must be resolved by the trier of fact. See Rosenthal v. Walker, 111 U.S. 185, 193-94, 4 S.Ct. 382, 386-87, 28 L.Ed. 395 (1884); Anderson, 966 F.2d at 491-92; 9 Wigmore, Evidence § 2519 (Chadbourn rev.1981 and Best Supp.1997). Mr. Witt has presented evidence which could reasonably be found to rebut the presumption.

The district court wrote, "Plaintiff has not presented any evidence...