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Mosel v. Hills Dept. Store, Inc.

United States Court of Appeals, Third Circuit
May 1, 1986
789 F.2d 251 (3d Cir. 1986)

Summary

holding plaintiff's complaint untimely because filed 91 days after receipt of right-to-sue letter

Summary of this case from Conway v. Davey Tree Expert Co.

Opinion

No. 85-3567.

May 1, 1986.

Stephen D. Wicks, Altoona, Pa., for appellant.

James B. Brown, Pittsburgh, Pa., for appellee.

Appeal from the United States District Court for the Western District of Pennsylvania.

Before ADAMS, GIBBONS and WEIS, Circuit Judges.


OPINION OF THE COURT


In this employment discrimination case, the district court granted defendant's motion to dismiss the complaint as untimely filed. We will affirm.

The relevant facts are not in dispute. On April 17, 1984, plaintiff Gary K. Mosel filed a charge against defendant Hills Department Store, Inc. with the Equal Employment Opportunity Commission (EEOC), alleging that he was terminated from his job in retaliation for filing earlier sex discrimination complaints against defendant. On December 3, 1984, plaintiff, through his attorney, requested that the EEOC issue a right-to-sue letter permitting suit in federal court pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3, 2000e-5 (1982).

The EEOC issued the requested letter on December 31, 1984, and plaintiff's attorney received it on January 2, 1985. Plaintiff's Title VII complaint was filed on April 3, 1985, ninety-one days after receipt of the right-to-sue letter. Defendant filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint as well as plaintiff's amended complaint. Defendant averred that the district court lacked subject matter jurisdiction because of plaintiff's failure to comply with the requirement that a Title VII complaint be filed within ninety days after the plaintiff receives notice of the EEOC's decision not to take action itself. 42 U.S.C. § 2000e-5(f)(1) (1982). The district court granted the motion, and plaintiff filed a timely appeal.

Other courts have held that, absent equitable considerations not present here, counsel's receipt of a right-to-sue letter is imputed to plaintiff. See, e.g., Josiah-Faeduwor v. Communications Satellite Corp., 785 F.2d 344 (D.C.Cir. 1986) (per curiam). In this matter, plaintiff does not dispute this proposition and concedes that he received effective notice on January 2, 1985.

Plaintiff, who was represented by counsel at every stage of these proceedings, offers no excuse for the delay in filing. Rather, he insists that the ninety-day period detailed in § 2000e-5(f)(1) should be extended pursuant to the Federal Rules of Civil Procedure provision concerning service by mail. See Fed.R.Civ.P. 6(e).

Section 2000e-5(f)(1) provides that if the EEOC dismisses a charge or takes no action within a specified period of time it "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. . . ." This provision has been construed liberally such that the time for filing a complaint begins to run when the plaintiff has notice of the EEOC decision; this usually occurs on the date he receives a right-to-sue letter. See, e.g., Law v. Hercules, Inc., 713 F.2d 691 (11th Cir. 1983); see also Hornsby v. United States Postal Service, 787 F.2d 87, at 89-90 n. 3 (3d Cir. 1986). Indeed, the EEOC's form right-to-sue letter itself states that a plaintiff has ninety days after receiving the letter in which to file suit.

Federal Rule of Civil Procedure 6(e) states:

Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.

This rule is plainly inapposite to the present case. It applies only where a time period is measured from the date of service by mail, and allows a party so served additional time to respond, in order to account for the time required for delivery of the mail. The Title VII provision, in contrast, requires that a complaint be filed within ninety days after the plaintiff actually receives notice of the EEOC's decision. An additional period to compensate for mailing time is irrelevant and inappropriate.

The Supreme Court has suggested that Rule 6(e) is applicable in the present context if the parties dispute the date on which the plaintiff received notice of the EEOC's determination. In that situation, Rule 6(e) would create a presumption that the notice was received three days after it was mailed. 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). In this matter, however, the parties agree as to the actual date of receipt of the EEOC letter. Cf. Hornsby, supra (concerning acts that constitute notice by mail).

Plaintiff's complaint, filed over ninety days after receipt of the right-to-sue letter, was therefore untimely, and he has failed to state any equitable reason for disregarding the statutory requirement. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). "While the 90-day rule is not a jurisdictional predicate, `in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.'" Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)).

In concluding that the district court did not err in dismissing plaintiff's complaint as untimely and in refusing to apply Rule 6(e) in this case, we agree with the decision reached in an identical situation in Norris v. Florida Department of Health and Rehabilitative Services, 730 F.2d 682 (11th Cir. 1984), and decline to follow Tavernaris v. Beaver Area School District, 453 F. Supp. 355 (W.D.Pa. 1978) (applying Rule 6(e) by "analogy" to extend the statutory period for filing a Title VII complaint).

The order of the district court will be affirmed.


Summaries of

Mosel v. Hills Dept. Store, Inc.

United States Court of Appeals, Third Circuit
May 1, 1986
789 F.2d 251 (3d Cir. 1986)

holding plaintiff's complaint untimely because filed 91 days after receipt of right-to-sue letter

Summary of this case from Conway v. Davey Tree Expert Co.

holding plaintiff's complaint untimely because filed 91 days after receipt of right-to-sue letter

Summary of this case from Conway v. Davey Tree Expert Co.

holding Title VII plaintiff's complaint untimely because it was filed 91 days after receipt of EEOC right-to-sue letter

Summary of this case from McGowan v. State

holding plaintiff's complaint untimely because filed 91 days after receipt of right-to-sue letter

Summary of this case from Joritz v. Edinboro University of Pennsylvania

holding plaintiff's complaint untimely because it was filed 91 days after receipt of right-to-sue letter

Summary of this case from Rhodes v. Sci-Somerset

holding that Rule 6(e) was inapplicable to determining the actual receipt date of a EEOC right-to-sue letter

Summary of this case from Dunlap v. Boeing Helicopter Division

holding that a claim filed one day after the ninety-day requirement is untimely and may be dismissed absent an equitable reason for disregarding this statutory requirement

Summary of this case from Scott v. Commonwealth of Pennsylvania Dept. of Publ. Welf.

finding that § 2000e-5(f) "has been construed liberally such that time for filing compaint begins to run when plaintiff has notice of EEOC decision; this usually occurs on the date he receives a right-to-sue letter"

Summary of this case from Ebbert v. DaimlerChrysler Corporation

affirming dismissal of complaint brought 91 days after plaintiff's counsel received right to sue letter

Summary of this case from Rockmore v. Harrisburg Prop. Serv.

noting that the statutory limitations period remains fixed at ninety days and runs from the date of receipt of the right-to-sue letter; the three-day mailing rule only serves to provide a presumptive date for commencement of the limitations period when the actual date of receipt of the right-to-sue letter is disputed or unknown

Summary of this case from Stogdill v. Douglas Cnty. Sch. Dist. No. 17,

noting the rigidity of the 90 day period in which a plaintiff must file suit after receiving a right-to-sue letter from the EEOC

Summary of this case from Washington-Morris v. Bucks Cnty. Transp., Inc.

stating that what is now Federal Rule 6(d) "applies only where a time period is measured from the date of service by mail, and allows a party so served additional time to respond, in order to account for the time required for delivery of the mail"

Summary of this case from English v. Energy Future Holdings Corp. (In re Energy Future Holdings Corp.)

In Mosel v. Hills Dep't Store, 789 F.2d 251 (3d Cir. 1986) (per curiam), the plaintiff received a right-to-sue letter on January 2, 1985, and filed his complaint on April 3 — also 91 days later.

Summary of this case from Bridges v. Kilkenny

stating that what is now Federal Rule 6(d) "applies only where a time period is measured from the date of service by mail, and allows a party so served additional time to respond, in order to account for the time required for delivery of the mail."

Summary of this case from Ness v. Samson Res. Corp. (In re Samson Res. Corp.)

interpreting 42 U.S.C. § 2000e-5(f)

Summary of this case from Purdy v. Pennsylvania Public Utility Commission

refusing to apply FED. R. CIV. P. 6(e) and therefore extend a Title VII limitation period

Summary of this case from Castillo v. United States Postal Service

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.

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

dismissing plaintiff's employment discrimination complaint when filed ninety-one days after receipt of right-to-sue letter

Summary of this case from Moore v. Kennedy Memorial Hospital

In Mosel, the court did not apply the Rule 6(e) presumption because the parties agreed as to the actual date of receipt of the right-to-sue letter.

Summary of this case from Holmes v. NBC/GE

In Mosel, the Court of Appeals was asked to review the district court's dismissal of a lawsuit as having been filed untimely.

Summary of this case from In re Antell

In Mosel v. Hills Department Store, Inc., 789 F.2d 251 (3d Cir. 1986), the plaintiff-appellant filed suit 91 days after receiving a right-to-sue letter from the Equal Opportunity Commission; the relevant legislation mandated filing the suit within 90 days of receiving such letter.

Summary of this case from In re Allegheny Intern., Inc.

In Mosel, the court of appeals held that Fed.R.Civ.P. 6(e) was inapplicable to a statutory requirement to commence a lawsuit within a specified period of time.

Summary of this case from In re Allegheny Intern., Inc.
Case details for

Mosel v. Hills Dept. Store, Inc.

Case Details

Full title:GARY K. MOSEL, APPELLANT, v. HILLS DEPARTMENT STORE, INC., APPELLEE

Court:United States Court of Appeals, Third Circuit

Date published: May 1, 1986

Citations

789 F.2d 251 (3d Cir. 1986)

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