Zamora v. GC Services, LP

Filing 38

ORDER GRANTING DEFENDANT'S 6 Motion to Dismiss for Failure to State a Claim Signed by Judge David C Guaderrama. (lc3)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ALEX ZAMORA,
Plaintiff,

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GC SERVICES, LP,
Defendant.

EP-15-CV-00048-DCG

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ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Presently before the Court is Defendant GC Services, LP's ("Defendant") "Motion to
Dismiss for Failure to State a Claim" ("Motion") (ECF No. 6), filed on March 12, 2015.

Plaintiff Alex Zamora ("Plaintiff) filed a Response (ECF No. 7) on March 30, 2015, and

Defendant filed a Reply (ECF No. 10) on April 23, 2015. On April 24, 2015, in light of the
parties' filings and pursuant to Federal Rule of Civil Procedure 12(d), the Court converted
Defendant's Motion into a motion for summary judgment under Federal Rule of Civil Procedure
56. See Notice to the Parties Pursuant to Federal Rule of Civil Procedure 12(d) ("Rule 12(d)
Notice"), ECF No. 11.

Beginning on May 4, 2015, and pursuant to the Court's Rule 12(d) Notice, the parties
supplemented the record by filing additional evidence in support of and in opposition to the
Motion. See ECF No. 12 ("Supplemental Response"); ECF No. 15 ("First Supplemental

Reply"); ECF No. 28 ("Second Supplemental Reply"); ECF No. 30 ("Third Supplemental
Reply"). On July 8, 2015, the Court held a hearing, during which Plaintiff testified about the
factual matters raised in the Motion. After careful consideration of the Motion, the supplemental

filings, the hearing, and the applicable law, the Court GRANTS Defendant's Motion.

I.

BACKGROUND

Plaintiff filed an Original Petition in the 210th Judicial District Court, located in El Paso
County, Texas, on November 21, 2014. See Notice of Removal, Ex. A at 2-8 ("Original

Petition"),1 ECF No. 1. In it, Plaintiff alleged that inor about August 2012 Defendant committed
an unlawful employment practice against Plaintiff because of Plaintiffs alleged disabilities. See
Original Pet. 1-6. On December 29, 2014, Defendant filed an Answer generally denying the
allegations in Plaintiffs Original Petition. See Notice of Removal, Ex. A at 9-10. On January
15, 2015, Defendant moved for summary judgment. See id, Ex. A at 11-14. On February 18,

2015, the day scheduled for a hearing on Defendant's motion for summary judgment, Plaintiff
filed a First Amended Petition pleading the allegations in the Original Petition explicitly under

the Americans Disabilities Act ("ADA"). See id, Ex. A at 15-24.2 On February 19, 2015,
Defendant removed the state action to this Court. See id. On March 12, 2015, after an extension

of time in which to file a responsive pleading, Defendant moved to dismiss Plaintiffs Amended
Petition on the grounds that the ADA claims alleged therein were time-barred "because Plaintiff
failed to file his ADA claims within ninety days of his receipt of the [Equal Employment

Opportunity Commission]'s Notice of Right to Sue." See Mot. 4. Defendant then extended this
argument—that Plaintiffs ADA claims were untimely filed—to the allegations in Plaintiffs
Original Petition. See Reply 2. Plaintiff has addressed both arguments in his responses. See
Resp. 2-5; Suppl. Resp. 5-8.

1The Court cites to the ECF pagination when referring to Defendant's Exhibit A.
2Defendant maintains that PlaintiffsOriginal Petition did not plead any federal claims, and that
the Amended Petition was the first time Plaintiff pleaded claims under the ADA. See Reply 1. The Court
does not reach this issue. As discussed more fully below, even if the Original Petition pleaded claims
under the ADA, those claims were brought untimely.
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II.

LEGAL STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine

dispute as to any material fact and the movant isentitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable

jury to return a verdict for the non-moving party, and a fact is material if it might affect the
outcome of the suit." Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citation and

quotation marks omitted). A "party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
portions of the record which it believes demonstrate the absence of a genuine issue of material
fact." EEOC v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting Celotex Corp. v.
Catrett, All U.S. 317, 323 (1986)). If the moving party meets this initial burden, "the onus shifts

to 'the nonmoving party to go beyond the pleadings and by her own affidavits, or by the

depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.'" Id. (quoting Celotex Corp., All U.S. at 324). The Court
must draw all reasonable inferences in favor of the nonmoving party. Id. (quoting Turner v.

BaylorRichardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)).
III.

DISCUSSION

"[A]n employee must comply with the ADA's administrative prerequisites prior to
commencing an action in federal court against her employer for violation of the ADA.... [T]he
ADA incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. §
2000e, et seq" Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam).
Accordingly, an employee suing her employer pursuant to the ADA must commence a civil
action "within ninety days" of receiving a right-to-sue letter from the Equal Employment

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Opportunity Commission ("EEOC") or state or local agency. Id. (citing 42 U.S.C. § 2000e5(f)(1); Nilsen v. City ofMoss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980)). "This
requirement to file a lawsuit within the ninety-day limitation period is strictly construed."

Taylor v. Books AMillion, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (citing Ringgold v. Nat 7
Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986); Espinoza v. Mo. Pac. R.R. Co., 754 F.2d 1247,
1251 (5th Cir. 1985)); see also Duron v. Albertson's LLC, 560F.3d288, 290 (5th Cir. 2009) (per
curiam) ("The ninety-day window is 'strictly construed' and is 'a precondition to filing suit in
district court.'" (quoting Taylor, 296 F.3d at 379)). "Courts within this Circuit have repeatedly
dismissed cases in which the plaintiff did not file a complaint until after the ninety-day

limitation period had expired." Taylor, 296 F.3d at 379 (citationomitted). Defendant avers that
Plaintiff filed his case after the ninety-day limitation period and that the instant action fails as a
result. See Mot. 4; Reply 2. Therefore, the question before the Court is relatively simple: did
Plaintiff file his Original Petition within the applicable limitation period? The answer is no.
A. Presumption ofReceipt

The parties' dispute centers on the date on which Plaintiff received his right-to-sue letter
from the EEOC. As explained above, an ADA action "must be commenced 'within ninety days'

after the charging party has received a 'right-to-sue' letter from the EEOC or state or local
agency." Dao, 96 F.3d at 789 (citations omitted). Plaintiff argues that he received a right-tosue letter from the EEOC "in early November, 2014," and that his lawsuit, filed on November
21, 2014, was therefore timely filed within the ninety-day limitation period. See Resp. 2; id,

Ex. A H9. That right-to-sue letter, however, bears a stamp indicating that it was mailed on
"Aug 19 2014." See Resp. 2; Mot., Ex. G. Defendant's counsel, who was copied on the rightto-sue letter, received the letter on August 21, 2014. See Reply, Exs. A, A-l. In light of this,

Defendant argues that Plaintiff must have received the right-to-sue letter before "early
November, 2014." .See Reply 2.

"Whenthe date on which a right-to-sue letterwas actually received is either unknown

ordisputed, courts have presumed various receipt dates ranging from three to seven days after
the letterwas mailed." Taylor, 296 F.3d at 379 (citations omitted). The exact number of

presumed days was an open question in this Circuit. See Morgan v. Potter, 489 F.3d 195, 196
(5th Cir. 2007) (citation omitted) ("The exact number of days is ... an open question in this
Circuit, but we have expressed satisfaction with a range between three and seven days.").
However, the Fifth Circuit recently joined the majority of circuit courts and held that a

presumption of receipt within three days of mailing is the rule in this jurisdiction. See Jenkins v.
City ofSanAntonio Fire Dep't, 784 F.3d 263, 266-67 (5th Cir. 2015). This is significant
because the right-to-sue letter at issue here indicates it was mailed on August 19, 2014. See
Mot., Ex. G. Therefore, if the three-day presumption adopted in Jenkins applies, Plaintiff is

presumed to have received the letter by August 22, 2014, and was required to file his ADA suit
no later than November 20, 2014. See Jenkins, 784 F.3d at 267 (applying three-day presumption

and finding that plaintiffs discrimination claims, filed three days after limitation period expired,
were brought untimely).
1. Evidence of Mailing

The three-day presumption is rebuttable, and a threshold question for its application is
"whether there is sufficient evidence that the letter was actually mailed." See Duron, 560 F.3d at

290 (quoting Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007)). In Duron, the
court found that the presumption did not apply where a defendant provided insufficient evidence
of mailing. See id. at 291. Unlike the defendant in Duron, Defendant provides ample evidence

that the right-to-sue letter was mailed on August 19, 2014, as the letter indicates. In addition to
the stamp on the letter itself—which the Duron court found insufficient standing alone—
Defendant provides a declaration indicating that its attorneys received the right-to-sue letter on

August 21, 2014—two days after August 19, 2014. See Reply, Exs. A, A-l.3 Moreover,
Defendant provides a declaration from Belinda McCallister, the Area Director for the EEOC El
PasoArea Office, stating that the EEOC presumes the mailing "occurred on the date that appears
on the document," i.e., August 19, 2014. See Second Suppl. Reply, Ex. A ("McCallister
Declaration") 1) 6. Defendant also provides a copy of the EEOC's Case Log for Plaintiffs
administrative charge of discrimination, which shows that the right-to-sue letter was "issued" on

August 18, 2014. See Reply, Ex. A-2 at 3.4 The Court finds that this evidence is sufficient to
apply the three-day presumption of receipt.
2. Evidence Rebutting Presumption of Receipt

The evidence shows that the right-to-sue letter was mailed on August 19, 2014. To rebut

the presumption of receipt within three days of this date, Plaintiff "must show that [he] did not
receive the EEOC's right-to-sue letter in the ordinary course." See Payan v. Aramark Mgmt.

Servs. Ltd. P 'ship, 495 F.3d 1119, 1126 (9th Cir. 2007). Plaintiff attempts to do this by
submitting an affidavit stating that he did not receive the right-to-sue letter until "early

3Defendant's copy of the right-to-sue letter bears a stamp in the top right corner tending to
corroborate that Defendant's counsel received the document on August 21, 2014. See Reply, Ex. A-l.

4Plaintiff objects to consideration ofthe EEOC's Case Log on the ground that it contains
hearsay. •See Suppl. Resp. 3-5. That objection is overruled. The Court is satisfied that Defendant has
sufficiently authenticated the Case Log as a public record. See Reply Ex. A ^j 4. As such, the statements
therein fall under the hearsay exception for these kinds of documents, because the Case Log sets out the
EEOC's activities in relation to Plaintiffs administrative charge. See Fed. R. Evid. 803(8). Indeed,
Plaintiffs counsel himself appears to have received a copy of this same Case Log from the EEOC in
response to a FOIA request. See Second Suppl. Reply, Ex. C. In any event, the Court finds sufficient
evidence that the letter was mailed on August 19, 2014, even without considering the proffered Case Log.

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November, 2014," in an envelope postmarked October 31, 2014. See Resp, Ex. A H9. Indeed,
the evidence shows that the EEOC mailed Plaintiffa right-to-sue letter on October 31, 2014, but
this is insufficientto rebut the presumption that the letter mailed on August 19, 2014, was not
received within three days.

On October 30, 2014, Meaghan Shepard, an attorney with the EEOC Dallas Office,
emailed the El Paso Area Office requesting thatthe El Paso Office "resend" Plaintiffs right-to-

sue letter. See McCallister Decl. 19; id., Ex. D.5 Ms. Shepard sent this email in response to
Plaintiffs communication with the Dallas Office that he had not yet received his right-to-sue

letter. See id. %9; id, Ex. D. Following the instruction in Ms. Shepard's email, an employee
with the El Paso Office forwarded the request to Gilberto Rodriguez-Torres, an employee with
the EEOC San Antonio Field Office who was in possession of Plaintiff s file. See id. ^ 10;

Second Suppl. Reply, Ex. B ("Rodriguez-Torres Declaration") at 1. Mr. Rodriguez-Torres
understood this email as a request that he "re-mail" Plaintiffs right-to-sue letter, which he did.
See Rodriguez-Torres Decl. 1-2; McCallister Decl. *[ 11. Mr. Rodriguez-Torres believes that he
complied with this request within a day of receiving it, or October 31, 2014. See RodriguezTorres Decl. 2-3.6
Although "[e]vidence of non-receipt can be used to establish that the notice was never

5Ms. McCallister's testimony is based on her review of an email, Exhibit D to herdeclaration,
which is partofthe EEOC's official government file for Plaintiffs administrative charge with the agency.
See McCallister Decl. ffl| 9, 16. Ms. McCallister is the "custodian of records in charge of the original
file." Id. U 16. The Court considers the email in question and its content a "public record" in accordance
with Federal Rule of Evidence 803(8). Plaintiff did not object to consideration of this document.

6Attempting to rebut the presumption of receipt within three days of the original mailing,
Plaintiff also claims that he contacted the EEOC several times during June and July of 2014, "inquiring as
to when [he] would be receiving the [right-to-sue letter]." Resp., Ex. A ^ 7. But the evidence shows that
the right-to-sue letter was not mailed until August 19,2014. See supra Section III.A. That Plaintiff
made several phone calls to the EEOC before August 19, 2014, cannot rebut the presumption that the
letter was mailed on that date or establish that it was not received after that date for circumstances beyond
Plaintiffs control.

mailed," the Fifth Circuit has rejected the notion that "a plaintiffs bare assertion of non-receipt

[can] create a genuine issue of material fact to survive summary judgment." Custer, 503 F.3d at
420-21. Here, the claim that Plaintiffdid not receive the August 19, 2014, letter but did receive
the October 31, 2014, letter is particularly suspect because both letters were addressed to the

same residence. Compare Reply, Ex. A-l (right-to-sue letter received by Defendant's counsel

on August 22, 2014), with Suppl. Resp, Ex. B (October 31, 2014 envelope in which Plaintiff
received the second right-to-sue letter). Moreover, other courts in this Circuit have found
evidence similar to Plaintiffs too tenuous to rebut the presumption of receipt. See Arroyo v.

iGate Americas, Inc., No. EP-13-CV-136-PRM, 2014 WL 2091247, at *5 (W.D. Tex. Feb. 25,

2014) (finding that plaintiff did not rebutthe presumption of receipt where he offered (1) his and
his counsel's affidavits stating that they did not receive the right-to-sue letter within the

presumptive period and (2) evidence that plaintiff requested the letter from the EEOC three
months after the original mailing date); Abano v. Chertoff Civ. A. No. L-06-CV-23, 2007 WL
2086673, at *4 (S.D. Tex. July 18, 2007) (finding that plaintiff did not rebut the presumption of
receipt where plaintiff offered (1) his own affidavit swearing to a receipt date different from the
presumptive date and (2) the affidavit of a professional letter carrier that did not address the
delivery of the specific letter at issue in that case), aff'd, 269 Fed. App'x 445 (5th Cir. 2008).
Notably, Plaintiffs counsel, Enrique Chavez, also represented the plaintiff in Arroyo, where the
allegations of non-receipt were very similar to those made in the instant case. See Arroyo, 2014

WL 2091247, at *5.7

7The Court also finds noteworthy thatthe EEOC mailed a copy of the right-to-sue letter to
Plaintiffs counsel in response to a FOIA request on October 24, 2014, approximately twenty days before
the limitation period expired. See Third Suppl. Reply, Ex. A at 1-2. Like his client, however, Mr.
Chavez asserts that he did not receive the right-to-sue letter from the EEOC in the agency's October 24
FOIA response. See Hr'g Tr. 40:5^14:18 July 8, 2015.
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Insum, Defendant has provided ample evidence that the right-to-sue letter was mailed

on August 19, 2014. Plaintiff istherefore presumed to have received the letter no later than
August 22, 2014. Plaintiffs proffered evidence to the contrary is insufficient to rebut this
presumption. Thus, the Original Petition, filed on November 21, 2014, was untimely byone day

and Defendant isentitled tojudgment as a matter oflaw.8 In reaching this conclusion, the Court
heeds the Fifth Circuit's admonitionthat a plaintiffdisputing receipt of his EEOC right-to-sue

letter "should not 'enjoy a manipulable open-ended time extension which could render the
statutory limitation meaningless.'" See Espinoza, 754 F.2d at 1250 n.3 (quoting Bell v. Eagle
Motor Lines, 693 F.2d 1086, 1087 (11th Cir. 1982)); see also Baldwin Cty Welcome Ctr. v.

Brown, 466 U.S. 147, 152 (1984) (per curiam) ("Procedural requirements established by

Congress for gaining access to the federal courts are not to be disregarded by the courts out of a
vague sympathy for particular litigants.").
B. The EEOC Should Mail Right-to-Sue Letters via Certified Mail

Sympathetic or not, plaintiffs seeking to vindicate their rights under federal anti
discrimination statutes are in an unenviable position. At issue in this case was one of several
hurdles that these plaintiffs must overcome before they are even permitted to file a lawsuit. This
hurdle, filing a claim within ninety days of receiving a right-to-sue letter, is particularly
challenging because it creates a "condition precedent" that depends on the actions of two thirdparties: the EEOC, which mails the letter, and the United States Postal Service, which delivers
it.

8Plaintiff neither requested nor argued that he was entitled to equitable tolling or waiver of the
ninety-day limitation period. See Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999) ("The
claimant bears the burden ofjustifying equitable tolling." (citing Blumberg v. HCA Mgmt. Co., 848 F.2d
642, 644 (5th Cir. 1988))).

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Relying on the efficiency ofthese two government agencies, the law then presumes that

the right-to-sue letter is received within three days ofits mailing. What ifa plaintiff swears it
was not? Well, he or she is required prove a negative. A plaintiff must be mindful, however,
that his or herown sworn statement is not enough, see Custer, 503 F.3d at 421, even though mail

delivery issues are not uncommon, see Payan, 495 F.3d at 1126. This condition precedent is at
least subject to equitable tolling, Espinoza, 754 F.2d at 1248 n.l, so plaintiffs are not completely
without recourse. But here the law adds yet anotherhurdle: "[a]bsent compelling equitable
considerations, a court should not extend limitations by even a single day." Graham-Humphreys

v. Memphis Brooks Museum ofArt, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (emphasis added)
(citation omitted); accord Hood, 168 F.3d at 232; Espinoza, 754 F.2d at 1251. In light of these
considerations, the Court echoes the Fifth Circuit and notes "that if the EEOC had followed its

former practice of sending right-to-sue letters by certified mail, this dispute would, in all
likelihood, have never arisen." See Duron, 560 F.3d at 291; see also Turner v. Dep't ofEduc,
CIV. No. 10-00707 ACK-BMK, 2011 WL 1637333, at *6 n.7 (D. Haw. Apr. 28, 2011) (citation
omitted) ("Even if there is no requirement [that the right-to-sue letter be sent via certified mail],

using certified mail can prevent the kind of dispute that has arisen here.").
IV.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Defendant GC Services, LP's "Motion to

Dismiss for Failure to State a Claim" (ECF No. 6), converted by the Court into a motion for
summary judgment, is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court TERMINATE Defendant GC

Services, LP, from the above-captioned case.

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IT IS FINALLY ORDERED that the Clerk of the Court CLOSE the above-captioned
case.

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So ORDERED and SIGNED this *f day of August, 2015

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DAVID C. GUADERRAMA
UNITED STATES DISTRICT JUDGE

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