Opinion
No. 2:04-CV-698 TS.
December 15, 2004
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' DISCRIMINATION CLAIMS
This matter is before the court on Defendant's Motion to Dismiss Plaintiffs' Discrimination Claims. Plaintiffs bring several claims, including claims under Title VII against Defendant, their former employer. Defendant brings this Motion pursuant to Fed.R.Civ.P. 12(b)(6), seeking to dismiss Plaintiffs' Title VII claims as untimely filed.
Plaintiff Lynn Spencer brings claims of violation of the Age Discrimination in Employment Act (ADEA), retaliation under Title VII, Defamation, Fair Labor Standards Act (FLSA), Utah Anti-discrimination Act (UADA), and wrongful termination. Plaintiff Carmen Spencer brings claims of violation of the ADEA, race and sex discrimination under Title VII, FLSA, UADA, and violation of the Equal Pay Act.
Defendant moves to dismiss the Title VII claims on the basis that they were untimely filed. This Motion to Dismiss does not cover any of Plaintiffs' other claims. The parties agree that Carmen Spencer filed her Charge of Discrimination on January 29, 2004, and Lynn Spencer filed his Charge of Discrimination on February 18, 2004. Defendants have submitted evidence, uncontroverted by Plaintiffs, that the EEOC mailed a Notice of Right to Sue to Lynn Spencer on April 23, 2004 and a Notice of Right to Sue to Carmen Spencer on April 28, 2004. Both Notices of Right to Sue provided the recipient's lawsuit under Title VII, the ADA and the ADEA must be filed: "within 90 days of your receipt of this Notice." They further provide: "In order to avoid any question that you did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date this Notice was mailed to you (as indicated where the notice is signed) or the date of the postmark, if later." Id. The Notices of Right to Sue were mailed from the EEOC's Phoenix, Arizona Division.
The parties dispute the dates that Plaintiffs received their Notices. Defendant initially relied upon a presumption of receipt of the Notices three days following their mailing and supported that presumption with evidence of a test mailing that took three days from Phoenix to Salt Lake City, Utah. Aff. of E. Brinkerhoff.
In opposition, Plaintiffs submitted their sworn affidavits stating that Lynn Spencer received his Notice on April 30, 2004, (Pl.'s Ex. A ¶ 4) and Carmen Spencer received her Notice on May 4, 2004 (Pl.'s Ex. B at ¶ 7). Plaintiffs' Affidavits also state that their Saratoga Springs, Utah home is located outside of Lehi, Utah and is served by a rural mail contractor. Plaintiffs also contend that while the Notices were signed as of certain dates, there is no evidence that the Notices were in fact mailed on those dates.
Defendant replied with (1) an affidavit from the Lehi, Utah, Post Master stating that the Postal Service provides regular, and not contract, mail service to Plaintiff's address and that such mail is delivered to homes in Saratoga Springs the same day it is received from its postal distributors; and (2) an affidavit from the Acting District Director of the Phoenix District Office of the EEOC stating that in the ordinary course of business the EEOC places Notices of Right to Sue in the mail the same day they are date stamped.
The parties agree that the dispositive period is ninety days from Plaintiffs' receipt of their Notices of Right to Sue. Ninety days from April 23, 2004, would be Thursday, July 22, 2004. Allowing three additional days would be Sunday, July 25, 2004. The next business day would be Monday, July 26, 2004. This action was filed on July 29, 2004. However, ninety days from April 30, 2004, the day Mr. Spencer states he received the Notice would be July 29, 2004, the date this action was filed.
[C]ommencing an action within ninety days of receipt of a right-to-sue letter is not a jurisdictional prerequisite; rather, the ninety-day requirement is akin to a statute of limitations . . . This distinction is important . . . [T]he issue of subject matter jurisdiction may be resolved by the district court in a manner fundamentally different from the defense of limitations. On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a district court may itself resolve disputed fact questions. On a Rule 12(b)(6) motion to dismiss for failure to state a claim, on the other hand, the district court must accept the truth of plaintiff's allegations or rely upon only those matters outside of the pleadings with respect to which there is no genuine issue of fact.Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, 1249 n. 1 (5th Cir. 1985) (citations omitted).
The ninety-day limit begins to run on the date the complainant actually receives the EEOC right-to-sue notice making that date a material fact. A rebuttable presumption of receipt does arise on evidence that a properly addressed piece of mail is placed in the care of the postal service. Because the presumption is rebuttable, however, evidence denying receipt creates a credibility issue that must be resolved by the trier of fact.Witt v. Roadway Exp., 136 F.3d 1424, 1430 (10th Cir. 1998) (citations omitted).
Both parties have relied upon matters outside the pleadings to establish their positions on the statute of limitations argument. Ordinarily, consideration of such evidence requires that the court treat the motion as one for summary judgment and provide the parties of notice and an opportunity for the parties to present relevant evidence. David v. City County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). The required notice may be actual or constructive, such as when the party opposing files its own affidavits. Id. "[T]he court cannot convert a motion to dismiss to a motion for summary judgment without notice, unless the opposing party has responded . . . by filing his own affidavits." Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004) (quoting Ketchum v. Cruz, 961 F.2d 916, 919 (10th Cir. 1992).
In the present case, although Defendant brought its Motion under Rule 12(b)(6), it filed an Affidavit and several other exhibits in support of its Motion. Plaintiffs did not object, and instead filed their own exhibits, including affidavits. Defendant responded with two additional affidavits. Thus, the parties by filing and relying on materials outside of the pleadings were on notice that the court would treat this motion as one for summary judgment in order to consider the extensive materials outside the pleadings filed by both parties and the court will do so.
Considering those materials, the court finds that Plaintiff Lynn Spencer has shown a material issue of fact regarding the date of his receipt of his Notice of Right to Sue. The court finds that Defendant's arguments that the Plaintiffs' Affidavits should be disregarded go to the weight of the evidence, not the existence of a material issue of fact. Witt, 136 F.3d at 1430 (finding trial court erroneously disregarding plaintiff's affidavit, based on personal knowledge of date of receipt of notice, in favor of presumption that claimant received notice within five days of mailing). Because Plaintiff Lynn Spencer has shown a material issue of fact on the date of his actual receipt of his notice, he has rebutted the presumption of receipt with a certain number of days of mailing. Id. Because the presumption is rebutted, the court need not determine whether a three-day or five-day presumption is appropriate. Lozano v. Ashcroft, 258 F.3d 1160, (10th Cir. 2001) (considering analogous presumption of a five-day receipt period for delivery of an EEOC decision to a federal employer set by federal regulation). The court will deny the Motion regarding dismissal of his discrimination claims on the statute of limitations grounds.
Defendant also contends the court should construe the Notice of Intent to Sue issued to Plaintiff Lynn Spencer as constructive notice to Plaintiff Carmen Spencer of the time to file her complaint because the Spencers are married, reside at the same address, and planned to file a joint Complaint in this court. For the reasons stated above, the court has found that there is an issue of fact as to the date of Lynn Spencer's Notice of Right to Sue.
Further, the court rejects Defendant's argument that receipt by Lynn Spencer of a Notice of Right to Sue in any way affected the 90-period afforded by statute for Carmen Spencer to bring her separate claims. The Charges of Discrimination were separate, the Notices were separate, and were mailed on different days. The notice and limitation statute is plain on its face. 42 U.S.C. § 2000e-5(1) (". . . 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 . . ."). The court will not rewrite the clear statute to diminish the notice right and limitations period on the grounds of marital status.
Using Defendant's asserted three-day presumption of mailing, Carmen Spencer's lawsuit was filed within ninety days from the date of receipt of her Notice of Right to Sue.
Based on the foregoing, it is therefore
ORDERED that Defendant's Motion to Dismiss Plaintiff's Claims of Discrimination is treated as one for summary judgment and it is hereby DENIED.