Gordon v. Acosta Sales and Marketing, Inc.

Filing 9

ORDER DENYING 7 Motion to Dismiss for Lack of Jurisdiction having been converted to a motion for summary judgment. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JEFFERY R. GORDON,

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Plaintiff,
VS.
ACOSTA SALES & MARKETING,
INC.
Defendant.

Civil Action No. SA-13-CA-662-XR

ORDER
On this date, the Court considered Defendant’s Motion to Dismiss for Lack of Jurisdiction
(docket no. 7). Defendant contends that Plaintiff’s lawsuit was untimely filed. After careful
consideration, the Court will deny the motion.
I. Background
Plaintiff filed this lawsuit on July 22, 2013, alleging employment discrimination and
retaliation under the Americans with Disabilities Act (“ADA”) and the 2008 Americans with
Disabilities Act Amendments. Docket no. 2. Defendant moves to dismiss the action as untimely
because Plaintiff failed to file the initial complaint within ninety days of receiving his Notice of
Right to Sue Letter from the EEOC. The issue presented is when Plaintiff received the notice, and
thus whether he filed this lawsuit within ninety days of that receipt.
II. Applicable Law
An ADA lawsuit must be filed within ninety days of receipt of the EEOC’s right-to-sue
letter. Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (the ADA incorporates by
reference the administrative procedures and prerequisites applicable to Title VII actions); 42 U.S.C.
§ 2000e-5(f)(1), 42 U.S.C. § 12117(a). The requirement to file a lawsuit within the ninety-day
limitation period is strictly construed and is a condition precedent to filing suit in district court.
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Stokes v. Dolgencorp, Inc., 367 F. App’x 545, 547 (5th Cir. 2010); Taylor v. Books A Million, Inc.,
296 F.3d 376, 379 (5th Cir. 2002).
Defendant cites cases from the 1970's stating that the requirement is jurisdictional. Pacheco
v. Phelps Dodge Ref’g Corp., 531 F.2d 709, 711 (5th Cir. 1976) (“This Court and the other circuits
that have considered the issue have generally held that the 90 day filing period is jurisdictional and
mandatory.”); Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978). However, those cases are
no longer good law, and recent precedent holds that it is not jurisdictional. Harris v. Boyd Tunica,
Inc., 628 F.3d 237, 239 (5th Cir. 2010) (“The ninety-day filing requirement is not a jurisdictional
prerequisite, but more akin to a statute of limitations.”); see also Giles v. City of Dallas, __ F. App’x
__, 2013 WL 4779690 (5th Cir. Sept. 6, 2013). Therefore, the Court must convert the motion to
dismiss for lack of jurisdiction into a motion for summary judgment. The Court notes that Plaintiff
has already responded as though the motion is a summary judgment motion and has provided
evidence, and therefore Plaintiff needs no additional notice or opportunity to marshal evidence.
Summary judgment is appropriate when the pleadings, viewed in the light most favorable
to the non-moving party, “show that there is no genuine issue as to any material fact.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 247 (1986); FED. R. CIV. P. 56(a). A genuine issue of material
fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving
party.” Anderson, 477 U.S. at 249.
When the plaintiff fails to allege a specific date on which he actually received the letter and
the date is unknown, a presumption of receipt is appropriate. Taylor v. Books A Million, Inc., 296
F.3d 376, 379-80 (5th Cir 2002). In Taylor, the Fifth Circuit noted that the maximum number of
days that courts had allowed under the presumption of receipt doctrine was seven days after the
EEOC mailed the letter. Id. at 380; see also Washington v. City of Gulfport, Miss., 351 F. App’x
916, 918 (5th Cir. 2009) (“in determining a date for presumption of receipt we should use a range
of three to seven days after mailing”).
III. Analysis
It is undisputed that the Notice of Right to Sue Letter issued by the EEOC indicates that it
was mailed on April 8, 2013, and that Plaintiff filed this lawsuit on July 22, 2013, 106 days later.
Plaintiff did not allege a date of receipt in his Complaint. Accordingly, Defendant moved to dismiss
the lawsuit as untimely. In response, Plaintiff presented the following evidence to show that this
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lawsuit was timely filed: Plaintiff’s Affidavit and his neighbor Anthony Sabino’s Affidavit.
In his Affidavit, Plaintiff states that he resides at 13606 Oak Cabin, San Antonio. He states
that he received his notice letter on the afternoon of April 22, 2013 “from a individual claiming to
live in my neighborhood with a similar address.” He continues,
The individual claimed that the letter was mistakenly delivered to them, and they
delivered the envelope personally. The letter had been post marked April 9, 2013.
I immediately realized the importance of the document and inquired why they had
not placed it back into the mail to be redelivered, I then explained to them that the
letter was important due to legal matters. After hearing this individual made it clear
they did not wish to be involved, and left without leaving any way to identify or
contact them.
Plaintiff states that he informed his attorney “as to the situation” on April 23, and that he sent the
copy of the letter to him via email, apparently on April 27, 2013. Plaintiff states that, in his
neighborhood, there are at least two other “13606 Oak” labeled addresses, but he does not know
whether the individual who delivered the letter lives at one of them since they chose not to be
identified. He also states that, “[d]ue to the nature in which they claimed not to wish to be involved,
I have not sought them out.” Last, he states that since this event he on several occasions received
mail for his neighbor, Anthony Sabino, who lives at 13607 Oak Cabin.
Anthony Sabino states that he and Gordon “have been delivering misdirected mail to each
other for two or three weeks now” and “[w]e have a cluster mailbox for our cul-de-sac and the mail
has been mishandled.” He states he gave Gordon “many pieces of his mail October 17th of 2013"
and, to his knowledge and from his own experience, “this has been an ongoing issue with our postal
carrier for a period of time.”
Plaintiff asserts that his evidence raises a material issue of fact as to when he received the
notice letter. He asserts that the ninety-day time period began to run on April 22, 2013, and because
the ninetieth day fell on Sunday, July 21, 2013, his deadline to file this lawsuit was July 22, 2013,
the date he filed it.
The Court agrees that Plaintiff’s evidence raises a material fact issue on the date of receipt.
The presumption applies when the plaintiff does not allege or specify a date of receipt, and can be
overcome with competent evidence of the date of the receipt. See Morgan v. Potter, 489 F.3d 195,
197 n.1 (5th Cir. 2007) (noting that the presumption is only that and if a particular plaintiff can offer
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some evidence to demonstrate that he or she did not receive the letter within the presumed time, the
presumption “can certainly be overcome”). Plaintiff has provided some evidence that he received
the notice letter on April 22, and Defendant has not refuted this evidence. Defendant’s motion for
summary judgment must therefore be denied.
Conclusion
For the reasons explained above, Defendant’s motion to dismiss for lack of jurisdiction,
having been converted to a motion for summary judgment, (docket no. 7) is DENIED.
It is so ORDERED.
SIGNED this 25th day of November, 2013.

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XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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