Smith v. Jackson Pub Sch Dist ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 15, 1997
_____________________________ Charles R. Fulbruge III
Clerk
No. 96-60719
(Summary Calendar)
_____________________________
MARY CAROL SMITH,
Plaintiff-Appellant,
versus
JACKSON PUBLIC SCHOOL DISTRICT; CANTON
CITY SCHOOLS; HOLMES COUNTY SCHOOLS,
Defendants-Appellees.
__________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(3:93-CV-554)
___________________________________________________
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Pro se Petitioner-Appellant Mary Carol Smith appeals the
district court’s dismissal of her former employers, Defendants-
Appellees Jackson Public School District (Jackson), Canton City
Schools (Canton), and Holmes County Schools (Holmes), for Smith’s
failure to comply with the ninety-day filing requirements of Title
VII1 and the Age Discrimination in Employment Act (ADEA).2 Finding
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
42 U.S.C. §2000e et seq. (1994).
2
29 U.S.C. §621 et seq. (1994).
no error, we affirm.
I.
FACTS AND PROCEEDINGS
Smith, an over-forty black female, was formerly employed as a
school teacher successively by Canton, Holmes, and Jackson.
Following her termination from Canton in January 1990, Smith filed
a written charge with the Equal Employment Opportunity Commission
(EEOC), alleging discrimination based on sex, race, and age. The
EEOC granted her the right to sue in October 1990, but she pursued
no action against Canton for years.
After her job with Canton, Smith was employed by Holmes. In
May 1992, she resigned from Holmes but did not file an EEOC charge
against Holmes.
Smith next worked for Jackson, but in December 1992 Jackson
terminated Smith. Shortly thereafter, Smith filed another charge
with the EEOC, again alleging sex, race, and age discrimination,
this time against Jackson. The EEOC determined that her claims
were without merit and sent her a right-to-sue letter by certified
mail on May 27, 1993. The certified mail receipt indicates that
Smith signed for and received the letter on May 29, 1993.3 Ninety-
two days later, on August 30, 1993, Smith filed the instant action
against Canton, Holmes, and Jackson.
3
Smith does not recall receiving the letter until June 1,
1993.
2
Jackson and Holmes filed motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6) for Smith’s failure to comply with the
ninety-day filing requirements of Title VII and the ADEA. The
district court held an evidentiary hearing to determine when in
1993 Smith received the right-to-sue letter for purposes of
establishing the ninety-day filing window. That court found as a
matter of fact that Smith had received the letter on May 29, 1993.
Concluding that Smith’s complaint was untimely and that the
circumstances did not warrant application of the doctrine of
equitable tolling, the district court dismissed Jackson, Holmes,
and Canton.4 Smith timely appealed.
II.
ANALYSIS
To assert a Title VII or ADEA violation successfully, a
claimant must file his complaint within ninety days following the
receipt of a right-to-sue letter from the EEOC.5 Applying a de
4
Following Jackson’s dismissal, but before the district court
had dismissed Holmes or Canton, Smith filed a notice of appeal
which we dismissed as untimely for lack of a certification of
judgment as required by Federal Rule of Civil Procedure 54(b).
Holmes then filed a second motion to dismiss and, in the
alternative, for summary judgment. The district court dismissed
Holmes in November 1995. Canton filed a motion to dismiss for the
first time in March 1996, and the district court dismissed Canton
that September.
5
See Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir.
1992)(citing 42 U.S.C. §2000e-5(f)) and 29 U.S.C. §626(e)(Supp.
1997).
3
novo review,6 we conclude that Smith failed to comply with the
ninety-day filing requirement and that her claims against Jackson
are time barred.7
Following a series of plaintiff-friendly rulings, the district
court generously granted Smith an evidentiary hearing —— at which
she was represented by counsel —— to determine when she actually
received the 1993 right-to-sue letter from the EEOC. That court
found as a matter of fact that Smith had received the letter on May
29, 1993 and had filed suit in the district court ninety-two days
later. Based on the record before us, which includes a copy of the
signed and dated postal receipt for that letter, we are convinced
that the district court’s findings are not clearly erroneous. We
conclude therefore that Smith’s filing in the district court was
untimely and that the circumstances do not warrant application of
the doctrine of equitable tolling.8
The district court properly dismissed Canton also, as Smith
received her right-to-sue-Canton letter in October 1990, some
thirty-four months prior to filing suit in the district court, and
6
F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992).
7
In her appellate brief, Smith argues for the first time that
she is entitled to the benefit of the three day mail rule of
Federal Rule of Civil Procedure 6(e). We need not consider on
appeal arguments that were not presented to the district court. See
Elliott v. Tilton, 89 F.3d 260, 264 (5th Cir. 1996).
8
See Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir.
1992)(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96,
111 S. Ct. 453, 457-58 (1990))(stating when equitable tolling is
appropriate).
4
offered no explanation which would justify tolling the ninety-day
period.
Finally, the district court properly dismissed Holmes. Smith
resigned from Holmes, did not file an EEOC charge against Holmes
prior to filing suit in the district court, and failed to respond
to the district court’s directive to reply to Holmes’s motion to
dismiss on penalty of dismissal.
III.
CONCLUSION
For the foregoing reasons, the district court’s dismissals of
Smith’s actions against Jackson, Canton, and Holmes are
AFFIRMED.
5