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Sousa v. N.L.R.B

United States Court of Appeals, Second Circuit
Apr 23, 1987
817 F.2d 10 (2d Cir. 1987)

Summary

holding that the then applicable 30-day statute of limitations period began to run on the date plaintiff picked up the certified letter from the post office and not on the date the notice of a certified letter was placed in plaintiff's post-office box

Summary of this case from Celestino v. Montauk Club

Opinion

No. 893, Docket 86-6215.

Argued March 6, 1987.

Decided April 23, 1987.

Edward Ramos Sousa, pro se.

Pamela R. Perron, Asst. U.S. Atty., E.D. N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., Robert L. Begleiter, Asst. U.S. Atty., E.D.N.Y., on the brief), for defendants-appellees.

Appeal from the United States District Court for the Eastern District of New York.

Before OAKES and WINTER, Circuit Judges, and METZNER, District Judge.

The Honorable Charles M. Metzner of the United States District Court for the Southern District of New York, sitting by designation.


Edward Ramos Sousa, appearing pro se, filed a complaint with the Equal Employment Opportunity Commission ("EEOC") charging his employer, the National Labor Relations Board ("NLRB") with discriminatory action. The complaint was ultimately dismissed by the EEOC, and notice thereof given by letter dated August 16, 1985. The court below held that Sousa had constructive notice of the letter as of August 31, 1985, and that his complaint filed on October 8, 1985, was untimely.

The letter advised Sousa that he had a right to file a civil action in the federal district court within thirty days of receipt of the notice of dismissal. 42 U.S.C. § 2000e-16(c). The letter was sent by certified mail to a post office box maintained by Sousa.

The usual claim check for certified mail (PS Form 3849) was attached to the envelope. The check consists of two parts separated by a perforation. The main part identifies the letter, its addressee, etc., and provides space for the addressee's signature which acknowledges receipt of the letter. The second part is stapled to the letter, and under the word "Date," appears a stamped notation of "AUG 31 1985." Under the heading "1st Notice," the date "9/5" appears in ink, obviously written over the stamp. "AUG 31 1985" represents the date the letter was received at the post office. When delivery of certified mail cannot be personally effected, the main part of the form is placed in the addressee's mailbox, whether at home or at a post office, notifying him that the certified mail can be picked up at the post office. See Hornsby v. United States Postal Service, 787 F.2d 87, 91 (3d Cir. 1986). "9/5" represents the date the first attempted delivery was made. Consequently, only the main part of the check was available for Sousa at his box on Thursday, September 5, 1985. In order to get the letter, Sousa would have had to take the notice to the proper counter in the post office and sign it before receiving the letter. This was done on Tuesday, September 10.

Sousa filed his complaint on October 8, 1985, which would be timely filing if September 10 is considered "the receipt date of the decision." The filing is three days late if Sousa is considered to have had constructive possession of the letter on September 5.

There are cases discussing constructive possession in connection with 42 U.S.C. § 2000e-5(f)(1) which requires that actions by nongovernmental employees for Title VII relief must be commenced within ninety days "after the giving of [such] notice." In Archie v. Chicago Truck Drivers, etc., 585 F.2d 210 (7th Cir. 1978), the court eschewed constructive notice when the claimant's wife failed to tell her husband of the receipt of the letter. The same court, however, found constructive notice when the attorney for the claimant received the notice. Jones v. Madison Service Corp., 744 F.2d 1309, 1312 (1984). In Espinoza v. Missouri Pacific R.R., 754 F.2d 1247, 1250 (5th Cir. 1985), the court disagreed with the reasoning in the Archie case, supra, and said that notice was given to the claimant at the place he indicated, and since it was received at that place by the claimant's wife, there was actual, not constructive, notice. The court held that the giving of this notice sufficed to start the ninety days unless the claimant, through no fault of his own, failed to receive the letter, "or unless, for some other equitable reason, the statute should be tolled until he actually receives the notice."

In this case the statute, Section 2000e-16(c), requires that a complaint by a government employee be filed "[w]ithin thirty days of receipt of notice of final action. . . ." We have here a pro se litigant proceeding under a remedial statute of broad social and economic import. In Bell v. Brown, 557 F.2d 849, 857 (D.C.Cir. 1977), the court, after finding that claimant was not represented by counsel, held "that the 30-day period for filing suit did not begin to run until appellant actually received the board's decision...." In that case notice was mailed on August 27, but was not received by the claimant until he returned from vacation on September 3. See also Craig v. Department of Health, Education and Welfare, 581 F.2d 189 (8th Cir. 1978).

The receipt by Sousa of the notice on September 10 is the effective date for measuring the 30-day period. A 5-day delay, which included a weekend, is not an unreasonable time for Sousa to have failed to visit the box.

It may be that unexplained failure to visit a post office box for a long period of time might result in a different conclusion. This court is not prepared to go as far as did the court in Hornsby, supra at 91, when it held:

"Should the government on remand establish no more than that the Postal Service on two occasions deposited Form 3849 in Hornsby's mailbox, it will have failed, as a matter of law, to establish that the thirty-day time limit in section 2000e-16(c) bars Hornsby's complaint."

The complaint was timely filed.

The order of dismissal is reversed and the case remanded to the district court for further proceedings.


Summaries of

Sousa v. N.L.R.B

United States Court of Appeals, Second Circuit
Apr 23, 1987
817 F.2d 10 (2d Cir. 1987)

holding that the then applicable 30-day statute of limitations period began to run on the date plaintiff picked up the certified letter from the post office and not on the date the notice of a certified letter was placed in plaintiff's post-office box

Summary of this case from Celestino v. Montauk Club

finding that plaintiff's failure to check his mailbox for five days was not unreasonable and thus holding that the ninety day period began running only once he found the Right to Sue Letter in his mailbox, not when it was delivered

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In Sousa v. NLRB, 817 F.2d 10 (2d Cir. 1987), for example, the plaintiff received notice of the certified letter from his post office box five days after it was delivered, and immediately retrieved the letter.

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In Sousa v. NLRB, 817 F.2d 10 (2d Cir. 1987), the court likewise refused to hold that delivery of Form 3849 alone triggered the running of the limitation period.

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equating Bell to pro se litigant since court had found Bell was not represented by counsel

Summary of this case from Rao v. Baker

In Sousa, the Second Circuit held that the statute of limitations began when the pro se plaintiff took his attempted delivery notification to the post office counter where he signed it and received his right-to-sue letter, not on the date when the attempted delivery notification was placed in his post office box. 817 F.2d at 11.

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In Martin Marietta, the Court was faced with a large jury award in a negligence claim against an employer for debilitating back injuries the employee suffered when he fell on the job.

Summary of this case from Government of Virgin Islands v. Adams-Tutein

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.

Summary of this case from Ingalls v. Heritage Cablevision, Inc.

In Sousa v. NLRB, 817 F.2d 10, 11 (2d Cir. 1987), the Second Circuit held that the 30-day statute of limitations period then applicable to claims against government entities ran from the date when the plaintiff picked up the certified letter from the post office and not on the date when a notice was placed in his post office box alerting him that the post office was holding certified mail.

Summary of this case from Rasmussen v. Sigma Corp. of America

construing 42 U.S.C. § 2000e-16(c) in holding plaintiff's five day delay in retrieving certified letter held at post office, where such period included a weekend, was not unreasonable time period for purposes of determining date upon which notice was actually received by plaintiff

Summary of this case from Holmes v. NBC/GE

resolving dispute over exactly when plaintiff received EEOC letter where EEOC sent the letter by certified mail, but the letter remained in plaintiff's mailbox for 5 days before he picked up his mail

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Case details for

Sousa v. N.L.R.B

Case Details

Full title:EDWARD RAMOS SOUSA, PLAINTIFF-APPELLANT, v. NATIONAL LABOR RELATIONS BOARD…

Court:United States Court of Appeals, Second Circuit

Date published: Apr 23, 1987

Citations

817 F.2d 10 (2d Cir. 1987)

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