No. 07-30290 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________ MARGARITA DURON, Plaintiff-Appellant, v. ALBERTSON'S, LLC, Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Eastern District of Louisiana __________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT MARGARITA DURON AND IN FAVOR OF REVERSAL __________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, NW, Room 7034 Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 GAIL S. COLEMAN gail.coleman@eeoc.gov Attorney TABLE OF CONTENTS Table of Authorities . . . .. . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . 1 A. Statement of Facts . . . . . . . . . . . . . . . . 1 B. District Court's Opinion . . . . . . . . . . . . . . . 3 Summary of Argument . . . . . . . . . . . . . . . . . . . . 5 Argument . . . . . . . . . . . . . . . . . . . . . . . . 5 A Plaintiff's Sworn Testimony That She Did Not Receive an EEOC Notice of Right to Sue Is Sufficient to Defeat a Presumption to the Contrary . . . . . . . . . . . . . . . . . . . . . . . . 5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 9 Certificate of Service TABLE OF AUTHORITIES Cases Espinoza v. Mo. Pac. R., 754 F.2d 1247 (5th Cir. 1985). . . . 7-8 Lozano v. Ashcroft, 258 F.3d 1160 (10th Cir. 2001) . . . . 7 McKee v. McDonnell Douglas Tech. Servs. Co., 700 F.2d 260 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 8 Morgan v. Potter, ___ F.3d ___, No. 06-30419, 2007 WL 1620506 (5th Cir. June 6, 2007) . . . . . . . . . . . 7 Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 7 Sherlock v. Montefiore Med. Ctr., 84 F.3d 522 (2d Cir. 1996). . 6 Taylor v. County Bancshares, Inc., 325 F. Supp. 2d 755 (E.D. Tex. 2004). . . . . . . . . . . . . . . . . . . . 4, 6-7 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . 1 § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . 5-6 Rules and Regulations 29 C.F.R. § 1601.28(e)(1) . . . . . . . . . . . . . . . . 6 Fed. R. App. P. 29(a) . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. P. 11(b)(3) . . . . . . . . . . . . . . . . 8 Miscellaneous EEOC Compliance Manual § 82.6(a), available at EEOCCM § 82.6 (Westlaw) . . . . . . . . . . . . 8 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court ruled that this Title VII case was time-barred because it held that the plaintiff had introduced insufficient evidence of her failure to receive the EEOC's notice of right to sue. The EEOC believes that a plaintiff's sworn testimony is sufficient to create a genuine issue of material fact about whether she did or did not receive a notice of right to sue. Because this issue is critical to enforcement of Title VII, the EEOC offers its views to this Court. The EEOC has authority to file this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Is a plaintiff's sworn testimony sufficient to create a genuine issue of material fact about whether she did or did not receive a notice of right to sue? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of Albertson's. A. Statement of Facts In March 2004, Margarita Duron filed a retaliation and national origin discrimination charge with the EEOC. (R.10, Ex. 1-B, EEOC Charge.) The EEOC deferred initial processing to the Louisiana Commission on Human Rights ("LCHR") pursuant to a worksharing agreement. The LCHR dismissed the charge on September 24, 2004, and mailed a copy of the dismissal notice to Duron and to Duron's attorney. (R.10, Ex. 1-A, LCHR Dismissal.) On Monday, October 4, 2004, the EEOC adopted the findings of the LCHR, dismissed the charge, and mailed Duron a notice of right to sue. (R.10, Ex. 1-F, EEOC Dismissal.) This letter advised Duron that she would have to file a lawsuit, if at all, within 90 days of receipt. (Id.) The EEOC sent the letter through regular, not certified, mail. Duron testified that she did not receive the EEOC's notice. (R.10, Ex. 1, Decl. 16.) Her attorney, through his pleadings in this case, likewise denies having received the notice. (R.10, Memo at 3.) The notice reflects that the EEOC mailed a copy to the defendant but does not state that the EEOC also mailed a copy to Duron's attorney. (R.10, Ex. 1-F, EEOC Dismissal at 1.) Duron testified that she and her attorney repeatedly contacted the EEOC requesting information about the status of her charge. (R.10, Ex. 1, Decl. 9, 11- 14.) On August 23, 2006 - nearly two years after the EEOC initially issued the notice of right to sue - the EEOC mailed a copy of the notice to Duron's attorney. (Id. 6; R.10, Ex. 1-F, EEOC Dismissal at 2.) The attorney received the notice on August 24, 2006. "This was the first time," Duron testified, "I or my attorney had ever seen this notice of right to sue letter, which was dated October 4, 2004." (R.10, Ex. 1, Decl. 16; see also R.10, Memo at 3.) Duron filed the instant lawsuit on September 26, 2006, 33 days after she received the notice of right to sue but almost two years after the EEOC first mailed it. (R.1, Complaint.) Albertson's moved to dismiss the complaint or, in the alternative, for summary judgment. (R.7, Motion.) Albertson's argued that Duron had not filed the action within 90 days of her presumed receipt of the notice of right to sue and emphasized that she "provides no explanation as to the reason for her purported non-receipt of the letter." (R.7, Ex. 1, Memo at 5 n.14, 8-9.) B. District Court's Opinion The district court granted Albertson's motion for summary judgment. (R.20, Order.) The court noted that Title VII requires a claimant to file a lawsuit no more than 90 days after receiving a notice of right to sue. (Id. at 6.) Observing that the Fifth Circuit applies a "presumption of receipt when the date of receipt of a plaintiff's right to sue letter is unknown or disputed," (id. at 7), the court asked "whether plaintiff has produced sufficient evidence to rebut this presumption . . . ." (Id.) The court held that the plaintiff's sworn declaration was inadequate for this purpose. (Id. at 8-9.) The court explained: "If this Court were to find the presumption of receipt rebutted by plaintiff's self-serving declaration that she never received the notice which the EEOC states it mailed, the procedural requirements established by Congress would too easily be rendered devoid of meaning. Establishing such a low bar for rebutting the presumption would create an unacceptable invitation for fraud, abuse, and plain neglect by plaintiffs. . . . The Court finds, as a matter of law, that plaintiff's evidence is insufficient to rebut the presumption of receipt of her right to sue letter." (Id.) Distinguishing Taylor v. County Bancshares, Inc., 325 F. Supp. 2d 755 (E.D. Tex. 2004), which held that the plaintiff had raised a fact issue about whether she had received a right to sue notice, the court emphasized that in County Bancshares, the plaintiff had relied on more than her own affidavit. Because the EEOC had sent the right to sue notice in that case by certified mail, the plaintiff was able to produce independent corroborating evidence of non-receipt. "Plaintiff in this case," the court said, "has produced no independent corroborating evidence and the Court, therefore, finds County Bancshares distinguishable." (R.20, Order at 8 n.17.) Having held that Duron's filing was untimely, the court then refused to apply equitable tolling to render the complaint valid. (Id. at 9-12.) The court rejected Duron's argument that the EEOC had violated its own policy of copying attorneys on correspondence, thereby failing to give her adequate notice of her right to sue, because "plaintiff has not provided any specific EEOC regulation or policy supporting such argument." (Id. at 10.) The court also held that Duron had not acted with sufficient diligence to protect her rights because "she recounts only a vague and self-serving outline of these efforts." (Id. at 11.) SUMMARY OF ARGUMENT The district court erred by concluding that Duron's declaration was insufficient to defeat a presumption that she had received the EEOC's notice of right to sue several days after the EEOC mailed it. The presumption of receipt is rebuttable and applies only in the absence of contrary evidence. A plaintiff's sworn testimony that she received the EEOC's notice on a specific date much later than the original mailing is sufficient to rebut the presumption that she received it shortly after the initial mailing. By rebutting the presumption, the plaintiff raises a genuine issue of material fact. A court may not resolve such an issue on summary judgment. ARGUMENT A Plaintiff's Sworn Testimony That She Did Not Receive an EEOC Notice of Right to Sue Is Sufficient to Defeat a Presumption to the Contrary Duron has raised a genuine issue of material fact over whether she filed this Title VII lawsuit within the statute of limitations. Title VII provides that an individual who receives a notice of right to sue from the EEOC may bring an action "within ninety days after the giving of such notice." 42 U.S.C. § 2000e- 5(f)(1). The EEOC's implementing regulations direct that an individual may file suit within 90 days from "receipt of such [notice]." 29 C.F.R. § 1601.28(e)(1). Duron's declaration, in which she testified that she did not receive the EEOC's notice of right to sue until August 24, 2006, was sufficient to raise a genuine issue of material fact over whether she received the notice in October 2004. In holding to the contrary, the district court relied on a presumption that government notices are mailed on the date stated in the notice, and that mailed documents are received within a few days after mailing. (Order at 7.) "Although such presumptions are convenient and reasonable in the absence of evidence to the contrary . . . [i]f a claimant presents sworn testimony . . . from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is not dispositive." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996). The district court imposed an impossible burden in requiring Duron to present "independent corroborating evidence" of her non-receipt of the notice of right to sue. (R.20, Order at 8 n.17.) Although it is true that the plaintiff was able to present such evidence in County Bancshares, 325 F. Supp. 2d 755, the notice in that case was sent by certified mail. The EEOC investigator was able to give the plaintiff the certified mail tracking number and the plaintiff was thereby able to show that the post office had lost track of any certified mail associated with that number. Id. at 765. In the instant case, by contrast, the EEOC sent the notice of right to sue by regular mail. If an item sent by regular mail fails to arrive at its destination, there can be no proof of its non-arrival other than the sworn testimony of the would-be recipient. For this reason, "[i]n determining the date of actual receipt, a court may rely upon affidavits stating personal knowledge of the receipt date." Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir. 2001); see also Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664 (7th Cir. 2006) ("We have long held that a plaintiff may defeat summary judgment with his or her own deposition."). The presumption upon which the district court relied is not irrebuttable. "If a particular plaintiff can offer some evidence to demonstrate that he or she did not receive the letter within the allotted time, the presumption can certainly be overcome." Morgan v. Potter, ___ F.3d ___, No. 06-30419, 2007 WL 1620506, at * 2 n.1 (5th Cir. June 5, 2007). Here, Duron offered a sworn statement that she received the notice of right to sue on August 23, 2006. The district court therefore erred in applying a presumption that she received the notice in October 2004. The court should have started counting 90 days from August 23, 2006, which would have rendered Duron's lawsuit timely. See Espinoza v. Mo. Pac. R., 754 F.2d 1247, 1250 (5th Cir. 1985) ("the giving of notice to the claimant at the address designated by him suffices to start the ninety-day period unless the claimant, through no fault of his own, failed to receive the right-to-sue letter) (emphasis added). The EEOC also notes that it was the EEOC's fault, not Duron's, that Duron's attorney did not receive a copy of the notice of right to sue until August 2006. EEOC policy requires the agency to send a notice of right to sue directly to a charging party with a copy to her attorney. EEOC Compliance Manual § 82.6(a), available at EEOCCM § 82.6 (Westlaw). Notwithstanding this policy, Duron's notice contains no indication that the EEOC mailed a copy to her attorney. (R.10, Ex. 1-F, EEOC Dismissal.) The attorney has confirmed that he did not receive the notice of right to sue until August 2006. (R.10, Memo at 3.) Although the attorney did not submit a declaration to this effect, his assertion in a signed pleading should carry some weight because he is an officer of the court, bound to tell the truth. See Fed. R. Civ. P. 11(b)(3). Duron should not be penalized because of the EEOC's error in not originally sending a copy of the notice to her attorney. See McKee v. McDonnell Douglas Tech. Servs. Co., 700 F.2d 260, 264 (5th Cir. 1983) ("The complainant is not to be prejudiced by the EEOC's failure to fulfill its duty."). CONCLUSION The district court wrongly discredited Duron's sworn declaration, which is sufficient to raise a genuine issue of material fact over whether she did or did not receive the EEOC's notice of right to sue in October 2004. For the reasons stated above, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _______________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, hereby certify that I filed this brief with the Court by sending, via first-class mail, postage pre-paid, seven copies together with a computer disk containing a PDF version of the brief. I also certify that I served two copies of the brief, as well as a computer disk containing a PDF version of the brief, this 12th day of June, 2007, by first-class mail, postage pre-paid, to the following counsel of record: Victor Roma Farrugia 228 St. Charles Ave., Suite 1100 New Orleans, LA 70130 Jeffrey A. Schwartz Jackson Lewis 245 Peachtree Center Ave. NE Marquis 1 Tower Atlanta, GA 30303 _______________________________ CAROLYN L. WHEELER Acting Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507