Houdeshell v. Artery Property ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WINFORD T. HOUDESHELL,
Plaintiff-Appellant,
v.
No. 96-1355
ARTERY PROPERTY MANAGEMENT,
INCORPORATED; FAIRLAND GARDENS
ASSOCIATES, LIMITED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-2939-PJM)
Submitted: February 13, 1997
Decided: February 27, 1997
Before WIDENER and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Sheldon L. Gnatt, REICHELT, NUSSBAUM, LAPLACA & MIL-
LER, Greenbelt, Maryland, for Appellant. William J. Chen, Jr., John
B. Walsh, Jr., CHEN, WALSH, TECLER & MCCABE, L.L.P.,
Rockville, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Winford T. Houdeshell sued his employer alleging a violation of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102-
12213 (1994). After a hearing, the district court granted summary
judgment to the employer because it found that Houdeshell had failed
to timely file suit within ninety days of the Equal Employment
Opportunity Commission's ("EEOC") "right-to-sue" letter and
because the court found no grounds meriting the application of the
doctrine of equitable tolling. For the reasons that follow, we affirm.
An ADA claimant who fails to file a complaint within the ninety-
day statutory time period mandated by Title VII, 42 U.S.C. § 2000e-
5(f) (1994),* generally forfeits the right to pursue his claim. See
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-51
(1984). Although the ninety-day time period is subject to equitable
tolling, one who fails to act diligently cannot invoke equitable princi-
ples to excuse lack of diligence. Id. at 151. We have held that the
actual receipt of the right to sue letter is not necessary to trigger the
limitations period, because to do so would allow for manipulation of
the limitations period. See Watts-Means v. Prince George's Family
Crisis Ctr., 7 F.3d 40, 42 (4th Cir. 1993) (delivery of a notice to pick
up a certified letter at the post office triggers the ninety-day limita-
tions period--not the date when the letter is actually picked up);
Harvey v. City of New Bern Police Dep't., 813 F.2d 652, 654 (4th Cir.
1987) (90-day period began when wife received letter not six days
later when she informed claimant of letter).
_________________________________________________________________
*ADA claims utilize the powers, remedies and procedures outlined in
Title VII discrimination actions so that an ADA claimant has 90 days
after the EEOC's issuance of a right-to-sue letter to file suit. 42 U.S.C.
§ 12117(a); 42 U.S.C. § 2000e-5(f)(1).
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Reviewing the facts and inferences in the light most favorable to
the nonmoving party, we review a district court's grant of summary
judgment de novo. Donmar Enters., Inc. v. Southern Nat'l Bank of
N.C., 64 F.3d 944, 946 (4th Cir. 1995). Accordingly, the record
reveals that on July 8, 1994, the EEOC mailed its right-to-sue letter
to the address Houdeshell had provided. Because, however, Houde-
shell moved and failed to provide the EEOC with his new address, he
did not actually receive the letter until July 26. Notwithstanding the
fact that Houdeshell, who was represented by counsel, had seventy-
two days in which to timely file suit, he did not file suit in the district
court until October 24, 1994.
We find that the district court performed a thorough hearing and
correctly found no grounds which would require an equitable tolling
of the filing period. Houdeshell, himself, was responsible for the
eighteen-day delay in actual receipt of the EEOC letter. See Baldwin
County Welcome Ctr. v. Brown, 466 U.S. at 151 (one who fails to act
diligently cannot invoke equitable principles to excuse lack of dili-
gence). Further, Houdeshell failed to show why the remaining
seventy-two days was not sufficient time in which to file his action.
Harvey, 813 F.3d at 654; see also Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990) (noting that principles of equitable
tolling do not generally extend to garden variety claims of excusable
neglect). Accordingly, we affirm the order of the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court argument
would not aid the decisional process.
AFFIRMED
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