Opinion
No. C97-2008 MJM
April 23, 1999.
ORDER
Introduction
This matter involves claims of sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, by the plaintiff, Kathleen Ingalls, against the defendants, Heritage Cablevision (a/k/a TCI of Northern Iowa) and Westmarc Cable Holding, Inc. ("Heritage"). The matter is now before the court on Heritage's motion for summary judgment. (Doc. #28). Heritage argues that Ingalls did not file her complaint in this court within ninety days of receiving notice of her right to sue from the Equal Employment Opportunity Commission (EEOC), as required by 42 U.S.C. § 2000e-5(f)(1), and that there is no basis in the record to support equitable tolling of the ninety-day limitations period. Ingalls contends that although the EEOC mailed the right to sue letter more than ninety days before she filed her complaint, her lawsuit is nonetheless timely because she did not receive the EEOC notice until mid-November, 1996 — less than ninety days before she filed suit.
Standard of Review
Summary judgment may be granted only when the record, viewed in the light most favorable to the non-moving party, shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Shempert v. Harwick Chem. Co., 151 F.3d 793, 795 (8th Cir. 1998), cert. denied, 119 S. Ct. 1028 (1999). The non-moving party is entitled to have all reasonable inferences from the record drawn in her favor. Roth v. G.D. Searle Co., 27 F.3d 1303, 1306 (8th Cir. 1994).
Factual Background
Ingalls was terminated by Heritage on December 31, 1993. Shortly thereafter, Ingalls filed a charge of discrimination with the Iowa Civil Rights Commission (ICRC) alleging sex discrimination and retaliation. Ingalls cross-filed this charge with the EEOC. In a determination dated October 24, 1996, the EEOC found — based on previous findings by the ICRC — that there was no reasonable cause to believe the charge was true. The EEOC's determination also notified Ingalls of her right to sue in federal district court "within 90 days of the receipt of this Determination." (Def. Ex. B). Ingalls commenced her lawsuit against Heritage on February 6, 1997. (Doc. #1).
Although Ingalls filed a charge of discrimination with the ICRC, she did not sue under the Iowa Civil Rights Act, Iowa Code ch. 216, (Doc. #1), and the record does not contain the findings made by the ICRC.
The main factual issue in this case is when did Ingalls receive the right-to-sue letter from the EEOC. In her complaint, Ingalls alleged that she "received it via regular mail from the EEOC in mid-November 1996." (Compl. ¶ 7). In response to a request for production of documents, Ingalls represented that she "has no documentation as to the date she received the EEOC determination letter other than her word that she has her mail delivered to a P.O. Box and she picks up her mail approximately every 10 to 15 days, weather depending." (Def. Ex. C). Similarly, in an affidavit, Ingalls states she did not receive the EEOC determination until she picked up mail in "mid-November 1996" from her post office box. (Ingalls Aff. ¶ 28).
In her affidavit, Ingalls explains that she maintained a post office box because of her fear that people would steal her mail, that she had the "habit" of picking up her mail "only every week or every other week when [she] was in [Waterloo] for other reasons," and that she did not pick up her mail more often because she lived about 20 to 30 minutes north of the Waterloo post office where she maintained the post office box. ( Id. ¶¶ 12, 16, 23, 24). Ingalls' affidavit is the only evidence in the record about the timing of the mailing, delivery, and receipt of the right to sue letter.
Analysis
Heritage argues that Ingalls did not comply with the ninety-day filing requirement in 42 U.S.C. § 2000e-5(f)(1). That section provides that when the EEOC decides not to take any administrative action on a charge of discrimination, it "shall so 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[.]" Although this statutory language could be subject to different interpretations, courts have consistently held the ninety-day period commences on the date the plaintiff receives the right to sue letter, not on the date that the EEOC issues the letter. See Begay v. St. Joseph's Indian Sch., 922 F. Supp. 270, 272 (D.S.D. 1996) (citing Mosel v. Hills Dep't Store, 789 F.2d 251, 252 (3d Cir. 1986), and Norris v. Florida Dep't of Health Rehabilitative Serv., 730 F.2d 682, 683 (11th Cir. 1984)). As the Eighth Circuit has stated, "[o]nce an individual receives notice of the right to sue, she has 90 days in which to file suit." Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994) (emphasis added).
Because Ingalls brought her lawsuit on February 6, 1997, she complied with the ninety-day requirement only if she had received notice of the EEOC's determination on or after November 8, 1996. In her affidavit, Ingalls states she did not receive notice of the EEOC's right to sue letter until she picked up her mail at her post office box in "mid-November." (Ingalls Aff. ¶ 28). Viewing this evidence in the light most favorable to Ingalls, as the court must for purposes of summary judgment, a jury could reasonably find that Ingalls did not actually receive notice of the right to sue until after November 8, 1996. See Witt v. Roadway Exp., 136 F.3d 1424, 1429-30 (10th Cir.) (finding a fact issue where the plaintiff stated he did not receive the right to sue letter "until the middle of March," even though the EEOC mailed the letter on January 28, and the lawsuit was not filed until June 13 — 136 days after the letter was mailed), cert. denied, 119 S. Ct. 188 (1998).
Despite the evidence that Ingalls did not actually receive the right to sue letter until after November 8, 1996, Heritage argues that it is entitled to summary judgment. First, Heritage contends there is a legal presumption that the right to sue letter, dated October 24, 1996, would have arrived at Ingalls' post office box before November 8, 1996. Second, Heritage argues that once the letter was deemed to have arrived at her post office box, Ingalls had constructively received the right to sue letter for purposes of the 90-day filing period. Although this argument has merit, the court rejects it for several reasons in this case.
First, the presumption of normal mail delivery arises only upon evidence showing that the document at issue was actually mailed or that the EEOC followed procedures in the ordinary course of operations that would "give rise to a strong inference that an item was properly addressed and mailed." Roush v. Kartridge Pak Co., 838 F. Supp. 1328, 1335 n. 7 (S.D. Iowa 1993) (citing Godfrey v. United States, 997 F.2d 335, 338 (7th Cir. 1993)). In this case, Heritage has not offered any evidence that the EEOC determination was actually mailed to Ingalls near the date of the determination, nor that the EEOC followed routine procedures at that time which would provide a strong inference of delivery.
Second, even if Heritage made a sufficient factual showing to support a presumption of normal mail delivery, Ingalls has submitted evidence which tends to rebut the presumption. Specifically, Ingalls' affidavit shows that she checked her post office box every week or two, but did not find the EEOC notice until "mid-November." Accepting this affidavit as true, a jury could infer that Ingalls checked her mail in early November but did not find the right to sue letter. This fact would mean that normal mail delivery did not occur. Therefore, drawing all reasonable inferences from the current record in favor of Ingalls, the court finds that Ingalls has made a sufficient showing to withstand the motion for summary judgment on the record currently before the court.
Although some courts have applied a three- or seven-day presumption of delivery, this case is distinguishable. For example, in Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 (E.D. Va. 1989), the court held that the plaintiff's "apparent" two-week delay in checking her mailbox was irrelevant because it was the plaintiff's duty to notify the EEOC about any "prolonged absences." Applying a presumption that the right to sue letter was received three days after mailing, the court held that the plaintiff's Title VII claim was untimely. Id. In this case, by contrast, there is specific evidence about how often Ingalls checked her mailbox and why she did not check it more often.
Third, even if the jury concluded that the EEOC right to sue letter was delivered to Ingalls' post office box before November 8, 1996, but not picked up by Ingalls until after November 8, 1996, the court believes that the concept of "constructive receipt" would allow Ingalls a reasonable period of time to pick up her mail from the post office box. In Sousa v. NLRB, 817 F.2d 10, 11 (2d Cir. 1987), the Second Circuit held that the limitations period commenced on the day the plaintiff picked up his right to sue letter from his post office box, even though the letter, sent via certified mail, had been available five days earlier. The Second Circuit reversed the district court on the basis that "[a] 5-day delay, which included a weekend, is not an unreasonable time for Sousa to have failed to visit the box." Id. Based on this determination, the court held that the complaint was timely and remanded for further proceedings. Id.
Although the court has some doubt about whether Ingalls' "delay" in checking her post office box was reasonable, the court believes that there is a fact issue based on the record before it at this stage of the proceedings. Viewed in the light most favorable to Ingalls, she lived a significant distance from the post office where she maintained a post office box. She checked the mailbox regularly when she went to Waterloo for other business. Because her discrimination charge had been pending for more than two years, she had no particular reason to check the mail for the right to sue letter. Compare Watt-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 n. 1 (4th Cir. 1993) (delay in picking up certified mail not excusable where plaintiff suspected that certified mail waiting at the post office was right to sue letter). Under these circumstances, a jury could find that Ingalls' "delay" in checking her post office box was reasonable. Although there is some point at which an "unexplained failure to visit a post office box for a long period of time might result in a different result," Sousa, 817 F.2d at 11, such as the three-year delay in Bond v. American Medical Ass'n, 764 F. Supp. 122, 125 (N.D. Ill. 1991), the court believes that Ingalls has adequately explained the "delay" in checking her post office box to survive Heritage's motion for summary judgment.
Two leading constructive receipt cases, Million v. Frank, 47 F.3d 385 (10th Cir. 1995), and Hill v. John Chezik Imports, Inc., 869 F.2d 1122 (8th Cir. 1989), are not to the contrary. In Million, the right to sue letter was mailed to the plaintiff's residence. The plaintiff's wife received the letter on the day it was delivered and placed it in a stack for the plaintiff. There was no question about the date on which the letter was delivered to the plaintiff's address of record. The plaintiff explained he did not know the notice was received because he checked his stack of mail only once a week. However, he never asked his wife when the letter had arrived. In those circumstances, the Tenth Circuit found there was a real danger that the plaintiff was manipulating the limitations period under Title VII. 47 F.3d at 387. In this case, by contrast, Ingalls has offered a reasonable explanation why she does not know the precise date the right to sue letter was delivered to her post office box. (Ingalls Aff. ¶¶ 23-24).
The court rejects Heritage's argument that Ingalls should not be allowed to manipulate the filing period by failing to check her post office box more frequently. First, accepting Ingalls' affidavit as true, there is no factual basis to believe that Ingalls was manipulating the filing deadline. Second, by failing to file within 90 days of the issuance of the EEOC's determination, Ingalls runs the risk that a jury will not believe her testimony about when she received the right to sue letter. The risk that a jury will not believe a plaintiff's testimony about when the plaintiff received the right to sue letter guards against intentional delays in checking mail boxes or filing Title VII complaints.
In Hill, the Eighth Circuit held that the plaintiff constructively received the right to sue letter when it was delivered to the plaintiff's address of record and was actually received by her former co-tenants. 869 F.2d at 1123-24. Again, there was no question about the date on which the letter was delivered to the plaintiff's address of record. The plaintiff argued she did not know the notice was received at her address of record because she had moved. The Eighth Circuit held that this was not a reasonable explanation because she should have notified the EEOC she had moved. See 29 C.F.R. § 1601.7(b) (an aggrieved party is responsible to notify EEOC about change of address). Unlike the plaintiff in Hill, the plaintiff did not violate any EEOC regulations by failing to check her post office box more frequently. Again, as stated above, Ingalls has offered a reasonable explanation for why she does not know the precise date the letter was delivered to her post office box.
ORDER
For the foregoing reasons, the defendants' motion for summary judgment (Doc. #28) is denied.