Loubriel v. Fondo del Seguro del Estado

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [11-1555]

Case: 11-1555

Document: 00116434396

Page: 1

Date Filed: 09/21/2012

Entry ID: 5676915

United States Court of Appeals
For the First Circuit

No. 11-1555
ADVILDA LOUBRIEL,
Plaintiff, Appellant,
v.
FONDO DEL SEGURO DEL ESTADO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Thompson, Selya and Lipez, Circuit Judges.

Aníbal Lugo-Miranda, with whom Lugo-Miranda Law Offices was on
brief, for appellant.
Ivonne Cruz-Serrano, with whom Maymi Rivera & Rotger, P.S.C.
was on brief, for appellee.

September 21, 2012

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SELYA, Circuit Judge.

Date Filed: 09/21/2012

Entry ID: 5676915

The issue in this case concerns a

procedural requirement that must be satisfied in order to file suit
under Title I of the Americans with Disabilities Act of 1990 (ADA),
42 U.S.C. §§ 12101-12117. Pursuant to this requirement, a claimant
must exhaust administrative remedies and file her Title I suit
within 90 days after receiving a right-to-sue notice from the Equal
Employment Opportunity Commission (EEOC).

A failure to abide by

the 90-day requirement renders the suit untimely.
The court below, citing this requirement, concluded that
the plaintiff's Title I suit was brought too late.1
appeals.

The plaintiff

Although our reasoning differs from that of the district

court, we affirm.
We rehearse the facts in the light most favorable to the
summary judgment loser (here, the plaintiff), consistent with
record support.
In Puerto Rico, the State Insurance Fund (the Fund),
formally

known

as

Fondo

del

Seguro

del

Estado,

is

a

public

corporation that provides medical services to workers injured on
the job. P.R. Laws Ann. tit. 11, §§ 1b, 1b-1.

Plaintiff-appellant

Advilda Loubriel, a physician, began working for the Fund in 1995.
Loubriel suffers from a degenerative arthritic condition that has

1

In this case, the parties consented to proceed before a
magistrate judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a).
Maintaining an institutional perspective, we refer throughout to
the rulings of the magistrate judge as those of the district court.
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reduced her workload to part-time and has caused frequent absences
from work.
In January of 2008, the plaintiff requested 45 days of
"Advanced Non-Occupational Sick Leave."
request.

The Fund denied her

After an unsuccessful attempt to appeal the denial

internally,

the

plaintiff

filed

a

complaint

with

the

antidiscrimination unit of the Puerto Rico Department of Labor and
Human Resources.
leave

In her complaint, she alleged that the denial of

constituted

unlawful

discrimination

and

an

unwarranted

refusal to make a reasonable accommodation for her disability.
The local agency eventually referred the matter to the
EEOC.

See 29 C.F.R. § 1601.13(b)(2)(ii).

On May 8, 2009, the

EEOC, without resolving the merits of the claim, issued a right-tosue notice and mailed copies of it to the plaintiff, her attorney,
and the Fund. The notice clearly stated that the plaintiff's Title
I action against her employer had to be filed within 90 days of
receipt.

See 42 U.S.C. § 2000e-5(f)(1).

The plaintiff asserts

that she did not receive her copy of the notice until September 10,
2009.2
2

In her complaint, the plaintiff actually claims that she
received her copy on September 10, 2008.
The district court
presumed that this was a typographical error, as the EEOC issued
the letter on May 8, 2009. See Loubriel v. Fondo del Seguro del
Estado, 772 F. Supp. 2d 367, 373 (D.P.R. 2011). We too give the
plaintiff the benefit of the doubt and assume that she meant
September 10, 2009.
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The plaintiff sued the Fund in the federal district court
on September 29, 2009 — 144 days after the EEOC sent the notice.
In pertinent part, her complaint alleged that the denial of her
request for an extended leave of absence violated her rights under
Title I of the ADA.

The Fund denied liability and, in due course,

moved for summary judgment on the ground that the plaintiff had
failed to file her Title I suit within the 90-day window.
The plaintiff opposed the motion but the district court
granted it.

See Loubriel v. Fondo del Seguro del Estado, 772 F.

Supp. 2d 367, 377

(D.P.R. 2011).

The court ruled that the

plaintiff had furnished no evidence to establish timely filing.
Id. at 373-74.

This appeal followed.

Our standard of review is familiar.

"We review orders

granting or denying summary judgment de novo, considering the
record and all reasonable inferences therefrom in the light most
favorable to the non-moving part[y]."

Estate of Hevia v. Portrio

Corp., 602 F.3d 34, 40 (1st Cir. 2010).

"We will affirm only if

the record reveals 'that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.'" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011) (quoting
Fed. R. Civ. P. 56(a)).
"This standard of review permits us to embrace or reject
the rationale employed by the lower court and still uphold its
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order for summary judgment.

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In other words, we may affirm such an

order on any ground revealed by the record."

Houlton Citizens'

Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
Although the plaintiff's discrimination claim is brought
under the

ADA,

it

is nonetheless

governed

by

the

procedural

requirements of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-5 to -9.

See 42 U.S.C. § 12117(a) (making certain

procedural requirements of Title VII applicable to ADA suits). One
of

these

requirements

contemplates

that,

upon

a

claimant's

exhaustion of administrative remedies, the EEOC will inform the
claimant that she has 90 days within which to bring a civil action.
Id. § 2000e-5(f)(1). This notification is commonly termed a rightto-sue notice.

See id.

If the claimant does not bring suit within

the prescribed 90-day period, the action is time-barred.

See id.;

see also Chico-Vélez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st
Cir. 1998).
In the case at hand, the EEOC mailed the right-to-sue
notice on May 8, 2009, yet the plaintiff did not file her suit
until September 29 of that year.

To explain this delay, the

plaintiff suggests that she did not receive the right-to-sue notice
until September 10. She argues that because the filing period does
not begin to run until the notice is received, her suit is not
time-barred.
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The district court rejected this argument.

Entry ID: 5676915

It concluded

that there is a presumption of timely receipt of a mailed notice
and that the plaintiff did not furnish sufficient record evidence
to rebut this presumption.
We are loath to accept the district court's conclusion.
While the plaintiff did not directly state in her affidavit when
she received the right-to-sue notice, she did mention in the
unsworn statement of contested material facts that accompanied her
opposition to summary judgment, see D.P.R.R. 56(c), that she
received it "on or about September of 2009."

Her affidavit

attested generally, "to the best of my knowledge," that the facts
set forth in the statement of contested material facts were true.
This combination of oblique references may or may not be sufficient
to create a genuine issue of material fact. Compare, e.g., Tiberio
v. Allergy Asthma Immun. of Rochester, 664 F.3d 35, 37 (2d Cir.
2011) (stating that a claimant's sworn testimony would effectively
rebut the initial presumption that the right-to-sue notice was
received in a timely fashion), with, e.g., Fed. R. Civ. P. 56(e)(1)
(requiring

that

an

affidavit

supporting

or

judgment be based on "personal knowledge").

opposing

summary

But, we need not

decide this vexing issue; the plaintiff's claim fails for another
reason.

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It is undisputed that the right-to-sue notice was mailed
simultaneously to the plaintiff and to her attorney, Aníbal LugoMiranda (Attorney Lugo), who represented the plaintiff then and
now.

In contemplation of law, notice to the attorney is notice to

the claimant.

See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,

92-93 (1990).
In Irwin, the Supreme Court held that receipt of an EEOC
notification letter by a claimant's designated representative is
sufficient to begin the running of the filing period.

Id.

Although Irwin involved a different genre of right-to-sue notice,
its core holding applies with equal force here: "[E]ach party
. . . is considered to have notice of all facts, notice of which
can be charged upon the attorney."

Id. at 92.

Consequently, the

plaintiff had constructive notice of the 90-day filing period
through Attorney Lugo's receipt of the right-to-sue notice.

See

id.; cf. Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410
F.3d

41,

48-49

(1st

Cir.

2005)

(stating

that

"constructive

knowledge" is presumed "when an employee has retained an attorney
. . . regardless of whether the plaintiff in fact is aware of his
rights").
The fact that the summary judgment record contains no
evidence concerning the actual date of Attorney Lugo's receipt of
the right-to-sue notice does not help the plaintiff.
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The EEOC

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right-to-sue notice itself indicates (and the plaintiff does not
dispute) that the "date mailed" was May 8, 2009.

There is a

presumption that, in the absence of evidence to the contrary, a
notice provided by a government agency is deemed to have been
placed in the mail on the date shown on the notice and received
within a reasonable time thereafter.

See Me. Med. Ctr. v. United

States, 675 F.3d 110, 114 (1st Cir. 2012); Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996).3

Attorney Lugo,

therefore, is presumed to have received the right-to-sue notice
within a reasonable time after May 8.
The phrase "reasonable time" has some elasticity — but it
also has limits.

In this case, the EEOC sent the right-to-sue

notice by first-class mail.

Courts have held that, in the context

of first-class mailings, a reasonable time may encompass anything
from three to five days.

See, e.g., Seitzinger v. Reading Hosp. &

Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (presuming that receipt
is 3 days after mailing); Sherlock, 84 F.3d at 526 (same); Banks v.

3

Some courts, including the court below, have employed Rule
6(d) of the Federal Rules of Civil Procedure (formerly Rule 6(e))
to establish a presumption that a first-class mailing is received
three days after dispatch. See, e.g., Smith-Haynie v. Dist. of
Columbia, 155 F.3d 575, 578 n.3 (D.C. Cir. 1998); Sherlock, 84 F.3d
at 526; Loubriel, 772 F. Supp. 2d at 373.
Although we do not
regard this as the correct approach — there is nothing in the text
of the Rule that suggests it can be used to fix a starting date for
measuring the passage of a period of time — the result here would
be the same if Rule 6(d) applied.
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Rockwell Int'l N. Am. Aircraft Oper'ns, 855 F.2d 324, 326 (6th Cir.
1988) (presuming that receipt occurs 5 days after mailing); see
also Taylor v. Books A Million, Inc., 296 F.3d 376, 379-80 (5th
Cir. 2002) (suggesting that courts have presumed receipt dates
ranging from 3 to 7 days after mailing); Abraham v. Woods Hole
Oceanographic

Inst.,

553

F.3d

114,

121

n.10 (1st

Cir.

2009)

(assuming in dictum that receipt occurred 3 days after the issue
date).

Even allowing for weekends and holidays, a reasonable time

would have elapsed here by the middle of May.

This would have been

far earlier than 90 days before the date on which the plaintiff
commenced her action.
That ends this aspect of the matter.
moving

for

summary

judgment

must

Although a party

initially

allege

that

no

trialworthy dispute exists, the burden then shifts to the nonmovant
to demonstrate, through materials of evidentiary quality, that a
genuine issue of material fact remains open.

See Borges ex rel.

S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Garside
v.

Osco Drug,

Inc.,

895

F.2d

46, 48

(1st Cir.

1990).

The

plaintiff, as the nonmoving party, failed to carry that burden
here: the presumption of Attorney Lugo's timely receipt of the
right-to-sue notice no later than mid-May is unimpugned by any
probative evidence in the record.

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Consequently, the plaintiff had

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constructive notice of the 90-day filing requirement, yet her suit
was commenced well after the expiration of that filing period.
In an effort to dodge this bullet, the plaintiff argues
that the Fund committed a "continuing violation" sufficient to toll
the 90-day filing period.

Although this period is subject to

equitable tolling, see Rice v. New England Coll., 676 F.2d 9, 10
(1st Cir. 1982), the plaintiff's argument is a non-sequitur.
The

continuing

violation

doctrine

"is

an

equitable

exception that allows an employee to seek damages for otherwise
time-barred allegations if they are deemed part of an ongoing
series of discriminatory acts and there is some violation within
the statute of limitations period that anchors the earlier claims."
O'Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001)
(internal

quotation

marks

omitted);

see

Cordero-Suárez

v.

Rodríguez, ___ F.3d ___, ___ (1st Cir. 2012) [No. 11-1991, slip op.
at 12].

The existence of a continuing violation may toll the

limitations period for filing an initial claim with either the EEOC
or a local antidiscrimination agency.
5(e)(1).

See 42 U.S.C. § 2000e-

Such tolling is an equitable means of ensuring that

meritorious discrimination claims are not pretermitted because the
claimant needed to experience a pattern of repeated acts before she
could

be

expected

to

realize

that

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the

individual

acts

were

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discriminatory in nature.

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See Thomas v. Eastman Kodak Co., 183

F.3d 38, 54 (1st Cir. 1999).
This purpose would not be served by extending the 90-day
filing period (which follows the filing of an administrative claim
with the EEOC or a local agency).

By the time that she receives a

right-to-sue

is

defendant's
recognized

notice,

a

claimant

discriminatory
the

occurrence

administrative claim.

conduct;
of

necessarily
she

has

discrimination

by

aware
then

and

of

the

already

filed

her

It follows inexorably that the existence of

a continuing violation does not relax the requirement that a
plaintiff file her judicial action within 90 days of the receipt of
the EEOC's right-to-sue notice.4

See Wade v. Knoxville Utils. Bd.,

259 F.3d 452, 461 (6th Cir. 2001); Brown v. Hartshorne Pub. Sch.
Dist. No. 1, 926 F.2d 959, 962 (10th Cir. 1991).
At oral argument in this court, the plaintiff suggested
that the existence of a continuing violation might be relevant to
whether or not she could file a new discrimination claim with
either the local agency or the EEOC.
precludes

the

plaintiff

from

Nothing in this opinion

pursuing

claims

for

alleged

discrimination occurring subsequent to the events at issue.

4

The district court rejected this argument on a different
ground; it found that there was no competent proof of a continuing
violation. Loubriel, 772 F. Supp. 2d at 375. We do not reach this
issue.
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We need go no further. For the reasons elucidated above,
we agree with the district court that this action is time-barred.

Affirmed.

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