Payan v. Aramark Management ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA E. PAYAN, 
Plaintiff-Appellant,
v. No. 05-15978
ARAMARK MANAGEMENT SERVICES
LIMITED PARTNERSHIP, Aramark  D.C. No.
CV-04-00002-SRB
Service Master Facility Services,
OPINION
Inc., aka/Aramark Service Master
Facility Services, Inc.,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
October 20, 2006—San Francisco, California
Filed August 2, 2007
Before: Andrew J. Kleinfeld and Jay S. Bybee,
Circuit Judges, and Robert H. Whaley,* District Judge.
Opinion by Judge Bybee
*The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
9241
9244 PAYAN v. ARAMARK MANAGEMENT SERVICES
COUNSEL
Mark E. McKane, Kirkland & Ellis LLP, San Francisco, Cali-
fornia, for the plaintiff-appellant.
Thomas L. Hudson, Esq., Meghan H. Grabel, Osborn Male-
don PA, Phoenix, Arizona, for the defendant-appellee.
OPINION
BYBEE, Circuit Judge:
Martha E. Payan (“Payan”) appeals the district court’s dis-
missal of her Title VII claims against Aramark Management
Services L.P. (“Aramark”). This appeal turns upon one nar-
row and discrete issue—how to determine whether a Title VII
action brought in district court after the receipt of an EEOC
right-to-sue letter has been timely filed when the actual date
of receipt by the litigant is unknown. Although we have
addressed this question in a handful of previous cases, our
earlier holdings fail to provide sufficient clarity to resolve the
current case. Here, we seek to establish a coherent rule to
PAYAN v. ARAMARK MANAGEMENT SERVICES 9245
apply to Payan’s case. Under that rule, we hold that in the
absence of evidence of actual receipt, we will apply a three-
day mailing presumption to determine notice of a right-to-sue
letter. We conclude that Payan’s claims are untimely and
affirm the district court’s decision granting summary judg-
ment for Aramark.
I
Payan’s term of employment with Aramark began on
August 8, 2002, and ended on July 11, 2003, when she was
terminated. On July 30, 2003, Payan submitted a charge of
discrimination to the Equal Employment Opportunity Com-
mission (“EEOC”) asserting sex discrimination and retaliation
against Aramark. The EEOC dismissed Payan’s charge and
issued a right-to-sue notice letter dated September 26, 2003.1
As Payan noted in her opening brief, “[t]he actual date
[Payan] received the notice is unknown.” However, the fact
of receipt itself is undisputed. Payan filed this lawsuit on Jan-
uary 2, 2004, ninety-eight days after the EEOC letter was
issued, alleging claims for sexual harassment, retaliation, and
discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e (“Title VII”) and deprivation of civil
rights under 42 U.S.C. § 1983 against Aramark.2
In response, Aramark filed a motion for summary judg-
ment, contending that Payan’s complaint was untimely
because it was filed after the ninety-day period within which
a litigant must file suit after receiving notice of dismissal from
the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The district court
concluded that Payan’s complaint was untimely and granted
Aramark’s motion for summary judgment. This appeal fol-
lowed.
1
When presented with the notice letter at her deposition, Payan identi-
fied the letter and its date of September 26, 2003.
2
The district court subsequently dismissed Payan’s § 1983 claims.
9246 PAYAN v. ARAMARK MANAGEMENT SERVICES
II
We review a district court’s ruling that a Title VII action
is barred by the statute of limitations de novo. See Hernandez
v. Spacelabs Med. Inc., 343 F.3d 1107, 1108-09, 1112 (9th
Cir. 2003). We also review a district court’s grant of summary
judgment de novo. See id.
III
[1] Title VII provides that upon dismissing a charge of dis-
crimination, the EEOC must notify the claimant and inform
her that she has ninety days to bring a civil action. See 42
U.S.C. § 2000e-5(f)(1) (“If a charge filed with the [EEOC]
. . . is dismissed by the [EEOC], . . . the [EEOC or otherwise
appropriate entity] shall so notify the person aggrieved and
within ninety days after the giving of such notice a civil
action may be brought.”). As we have previously explained,
this ninety-day period operates as a limitations period. See
Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). If
a litigant does not file suit within ninety days “[of] the date
EEOC dismisses a claim,” then the action is time-barred. Id.
Therefore, ascertaining the date on which the limitations
period begins is crucial to determining whether an action was
timely filed.
[2] We measure the start of the limitations period from the
date on which a right-to-sue notice letter arrived at the claim-
ant’s address of record. See Nelmida v. Shelly Eurocars, Inc.,
112 F.3d 380, 384 (9th Cir. 1997); Scholar, 963 F.2d at 267.
Where that date is known, we will deem the claimant to have
received notice on that date, regardless of whether the claim-
ant personally saw the right-to-sue letter. See Nelmida, 112
F.3d at 384 (measuring the limitations period from the post
office’s first attempted delivery at the claimant’s address);
Scholar, 963 F.2d at 267 (calculating the ninety-day period
from the date on which the EEOC letter was “received and
signed for by [the petitioner’s] daughter”).
PAYAN v. ARAMARK MANAGEMENT SERVICES 9247
Here, Payan does not dispute having received the letter, but
does not claim to know when the letter arrived at her address
of record. As Payan noted in her opening brief, “[t]he actual
date [Payan] received the notice is unknown.” In her deposi-
tion, Payan suggested that “[the letter] could have been
delayed” and that “[she’d] gotten mail that’[d] been delayed
before . . . [s]ometimes about a week.” However, she does not
claim to know when the letter was delivered to her address of
record.
[3] Where the date of actual receipt is unknown, we will
estimate that date based on the date of EEOC disposition and
issuance of notice, with some compensation for mailing time.
See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
148 & n.1 (1984) (per curiam); Ortez v. Wash. County, 88
F.3d 804, 807 (9th Cir. 1996) (approximating notice based on
when the EEOC letter was apparently mailed). In accordance
with that logic, the district court here used the issuance date
of the EEOC letter, September 26, 2003, as a starting date,
and presumed receipt of the letter at Payan’s address of record
three days later.
Payan maintains that the district court erred in basing its
presumption on the EEOC letter issuance date without requir-
ing Aramark to prove the circumstances of mailing, including
proper address and postage. Payan offers two alternative argu-
ments in this regard. First, Payan asserts that as the non-
moving party, she is entitled to have all evidence construed in
her favor. She claims that by not requiring Aramark to prove
the circumstances of mailing, the district court erroneously
construed these material facts against Payan. Second, Payan
argues that Aramark had the burden to prove that the statute
of limitations had expired, as an affirmative defense, and
failed to meet that burden by not establishing the circum-
stances of mailing. Payan maintains that, for either reason,
necessary predicate facts were not established to justify the
district court’s presumption.
9248 PAYAN v. ARAMARK MANAGEMENT SERVICES
[4] Payan’s arguments are unsupported by law. Where the
actual date of receipt is unknown but receipt itself is not dis-
puted, we have not demanded proof of actual receipt but have
applied a presumption to approximate receipt. See Ortez v.
Wash. County, 88 F.3d 804, 807 (9th Cir. 1996). Payan is cor-
rect that because the statute of limitations is an affirmative
defense, the defendant bears the burden of proving that the
plaintiff filed beyond the limitations period. See Tovar v.
U.S.P.S., 3 F.3d 1271, 1284 (9th Cir. 1993) (“In every civil
case, the defendant bears the burden of proof as to each ele-
ment of an affirmative defense.”); Wyatt v. Terhune, 315 F.3d
1108, 1117-18 (9th Cir. 2003) (“[I]t is well-settled that stat-
utes of limitations are affirmative defenses, not pleading
requirements.”). See also Ebbert v. DaimlerChrysler Corp.,
319 F.3d 103, 108 (3d Cir. 2003) (holding that the burden to
prove expiration of statute of limitations, as an affirmative
defense, rests on the employer); Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997); Donnelly v. Yellow Freight
Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989) (stating that the
defendant has burden of proof regarding its affirmative
defenses in Title VII actions).3 Contrary to Payan’s argument,
however, the defendant may do so by raising the limitations
defense and providing sufficient evidence to support the pre-
sumption. Here, Aramark has raised the defense and offered
proof of the right-to-sue letter. Thus, the undisputed facts
established in Payan’s case are that the EEOC issued a right-
to-sue notice letter to Payan on September 26, 2003, that the
EEOC mailed the letter to Payan’s address of record, and that
Payan received the notice letter at this address. From that
basis, we must calculate Payan’s date of receipt.
3
We note that our holding diverges from the Eleventh Circuit, which
holds that, if contested by defendant, the plaintiff must demonstrate filing
within the 90-day limitations period. See Green v. Union Foundry Co.,
281 F.3d 1229, 1233-34 (11th Cir. 2002) (“[F]or [a claimant] to maintain
his Title VII claims . . . , he has the initial burden of establishing that he
filed his Complaint within ninety days of his receipt of the EEOC’s right-
to-sue letter.”); see also Kerr v. McDonald’s Corp., 427 F.3d 947, 952
(11th Cir. 2005).
PAYAN v. ARAMARK MANAGEMENT SERVICES 9249
[5] We begin with the presumption that the letter issuance
date is also the date on which the letter was mailed. See id.;
see also Baldwin County Welcome Ctr. v. Brown, 466 U.S.
147, 148 & n.1 (1984) (per curiam); Taylor v. Books A Mil-
lion, Inc., 296 F.3d 376, 379-80 (5th Cir. 2002); Seitzinger v.
Reading Hosp. & Med. Ctr., 165 F.3d 236, 238-39 (3d Cir.
1999); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26
(2d Cir. 1996); Jarrett v. U.S. Sprint Commc’ns Co., 22 F.3d
256, 259 (10th Cir. 1994); Banks v. Rockwell Int’l N. Am. Air-
craft Operations, 855 F.2d 324, 326 (6th Cir. 1988). While
occasionally courts may have more evidence surrounding the
facts of mailing, see, e.g., Nelmida, 112 F.3d at 382 (describ-
ing the “envelope containing the original right-to-sue notice”),
we know of no rule requiring such proof. Indeed, in Baldwin,
the Supreme Court based its mailing date on the letter issu-
ance date, without additional proof. See 466 U.S. at 148 & n.1
(“A notice of right to sue was issued to [the petitioner] on Jan-
uary 27, 1981.”). Other federal courts have done the same.
See, e.g., Taylor, 296 F.3d at 380 (noting that “[t]he EEOC
issued a right-to-sue letter on September 29, 2000” and calcu-
lating the limitations based on that date); Sherlock, 84 F.3d at
526 (“[N]ormally it may be assumed, in the absence of chal-
lenge, that a notice provided by a government agency has
been mailed on the date shown on the notice.” (referring to
Baldwin, 466 U.S. at 148 & n. 1)); Coleman v. Potomac Elec.
Power Co., 310 F. Supp. 2d 154, 158 (D. D.C. 2004),
affirmed 2004 WL 2348144 (D.C. Cir. 2004) (per curiam)
(“The presumed date of a party’s receipt of a right-to-sue let-
ter from the EEOC is three days after issuance.”). This prac-
tice also accords with that in other federal areas, see, e.g., 20
C.F.R. § 422.210(c) (“[T]he date of receipt of notice . . . shall
be presumed to be 5 days after the date of such notice.”), to
which courts have analogized in the EEOC context, see, e.g.,
Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th
Cir. 1986) (relying on § 422.210(c) to support a five-day
mailing presumption). The cases Payan cites to suggest that
courts have required additional proof involved claims where
9250 PAYAN v. ARAMARK MANAGEMENT SERVICES
the fact of receipt was disputed, not—as here—where the
issue is the timing of receipt.4
These assumptions may be rebutted with evidence to the
contrary. See infra at 9254-55. As a initial matter, however,
the district court here properly used the issuance date of Sep-
tember 26, 2003, as presumptive evidence of the mailing date.
IV
[6] Having established the mailing date, we next calculate
Payan’s receipt of her right-to-sue notice. In Baldwin, the
Supreme Court presumed, without discussion, that a right-to-
sue letter was received three days after its issuance date. See
466 U.S. at 148 & n.1 (citing FED. R. CIV. P. 6(e)). While
instructive, Baldwin may not settle the issue. Some courts
have not adhered to a three-day rule, perhaps viewing Bal-
dwin as setting only a minimum allowance for mailing time,
see, e.g., Graham-Humphreys v. Memphis Brooks Museum of
Art, Inc., 209 F.3d 552, 557 n.9 (6th Cir. 2000) (“The Sixth
Circuit allots two days for postal delivery of a [right-to-sue]
notice beyond the three day period allowed by Federal Rule
of Civil Procedure 6(e).” (referring to Baldwin, 466 U.S. at
148 n.1)), or interpreting Baldwin as establishing no holding
whatsoever as to mailing time, see, e.g., Carrasco v. City of
Monterey Park, 18 F. Supp. 2d 1072, 1076 (C.D. Cal. 1998)
4
In the cases cited by Payan, claimants sought to prove (or disprove) the
fact of mailing. See, e.g., Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1009-
10 (9th Cir. 2003) (finding an incorrect zip code sufficient proof of
improper mailing to dispute that receipt occurred); Schikore v.
BankAmerica Supp’l Ret’t Plan, 269 F.3d 956, 963-64 (9th Cir. 2001)
(accepting a sworn statement that claimant mailed the requisite form suffi-
cient proof to presume receipt). This question implicates the mailbox rule,
a long-established principle which presumes that, upon a showing of pred-
icate facts that a communication was sent, the communication reached its
destination in regular time. See Rosenthal v. Walker, 111 U.S. 185, 193
(1884). However, the mailbox rule applies only where the fact of receipt
is disputed. It is inapplicable here, where Payan acknowledges she
received the right-to-sue letter.
PAYAN v. ARAMARK MANAGEMENT SERVICES 9251
(“Baldwin made no holding, however, as to the time period in
which a letter should be presumed to arrive.”). In addition,
one court has treated Baldwin as establishing a presumption,
but without deciding whether the presumption may be rebut-
ted. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526
(2d Cir. 1996) (citing Baldwin, 466 U.S. at 148 & n.1, 150
n.4).
Our cases similarly do not resolve the question of approxi-
mating receipt in Payan’s case. It appears that in one case we
used the issuance date as the receipt date. See Edwards v.
Occidental Chem. Corp., 892 F.2d 1442, 1444-45 (9th Cir.
1990) (concluding that the petitioner “recei[ved] her right to
sue letter on August 14, 1986” where “the [EEOC] issued a
right to sue letter on August 14, 1986”). In another case we
found timely an action filed 94 days after the EEOC letter was
apparently mailed. See Ortez v. Wash. County, 88 F.3d 804,
807 (9th Cir. 1996). Neither case establishes a rule that clearly
governs Payan’s case. The issue in Edwards was whether an
amended complaint related back to a timely filed complaint.
See Edwards, 892 F.2d at 1446-47. Because the court found
that it did, id. at 1447, the court’s approximated receipt date
of the second complaint was irrelevant to court’s central hold-
ing and thus may reflect some inexactness. And in Ortez, the
defendants did not object to the late filing where the letter was
issued on a Friday and the 90-day period, with an allowance
for Friday, then ended on a weekend. See Ortez, 88 F.3d at
807.
[7] With no clearly applicable rule in our own precedent,
we may look to other federal courts for insight. Most courts,
including the Supreme Court, have presumed a receipt date of
three days after EEOC letter issuance. See, e.g., Baldwin, 466
U.S. at 148 n.1; Seitzinger, 165 F.3d at 238-39; Sherlock, 84
F.3d at 525-26; Jarrett, 22 F.3d at 259. At least one court, the
Sixth Circuit, has used a five-day presumption. See, e.g.,
Banks, 855 F.2d at 326.5 In addition, some courts have sug-
5
At least two district courts in our circuit have also applied a five-day
presumption, apparently under the authority of Nelmida v. Shelly Euro-
9252 PAYAN v. ARAMARK MANAGEMENT SERVICES
gested, though not applied, a seven-day presumption. See,
e.g., Taylor, 296 F.3d at 379 (noting that courts have pre-
sumed receipt dates ranging from three to seven days after
mailing); Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir.
2001) (same); Carrasco, 18 F. Supp. 2d at 1076 (same); Elli-
son v. Northwest Airlines, 938 F. Supp. 1503, 1509 (D. Haw.
1996) (“The [c]ourt need not decide however whether 3, 5 or
7 days is the appropriate period of time, although it finds that
the appropriate period should be no greater than 7 days.”).
The choice of a three-, five-, or seven-day presumption is
critical here. As the district court noted, Payan’s claim would
have been untimely under either a three- or five-day rule. The
EEOC issued a right-to-sue letter on September 26, 2003, and
mailed the letter to Payan’s address of record. Under a three-
day rule, we would presume Payan received the right-to-sue
letter on, or prior to, September 29, 2003. Because ninety
days after that date was December 28, 2003, a Sunday, Fed-
eral Rule of Civil Procedure 6(a) extends the ninety-day
period to December 29, 2003. See FED. R. CIV. P. 6(a); Sain
v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002) (apply-
cars, Inc., 112 F.3d 380 (9th Cir. 1997). See Stimson v. Potter, 2006 WL
449133, at *3 (N.D. Cal. 2006); Carrasco v. City of Monterey Park, 18 F.
Supp. 2d 1072, 1076 (C.D. Cal. 1998). One district court characterized
Nelmida as “not[ing] the applicability of the five-day period in dicta” and
adopted a five-day presumption on that basis. Carrasco, 18 F. Supp. 2d
at 1076. Another district court then applied the five-day presumption with-
out any discussion or explanation. See Stimson, 2006 WL 449133, at *3.
It would be erroneous to read our decision in Nelmida as establishing
a five-day presumption. In Nelmida, the post office had attempted to
deliver the right-to-sue letter and left several notices for pick up, but when
unclaimed, the post office returned the letter to the EEOC. See 112 F.3d
at 384. We concluded that the ninety-day limitations period begins to run
when “delivery of the right-to-sue notice was attempted at the address of
record.” Id. Although we discussed other courts’ approaches to receipt
issues, see id. at 383-84, this discussion was dicta. The Nelmida Court did
not apply a mailing presumption; indeed, such a presumption was unnec-
essary given the facts of the case.
PAYAN v. ARAMARK MANAGEMENT SERVICES 9253
ing Rule 6(a) in the § 1983 context); Hart v. United States,
817 F.2d 78, 80 (9th Cir. 1987) (applying Rule 6(a) to a claim
brought under the Federal Tort Claims Act). Under a five-day
rule, the presumed date of receipt would be October 1, 2003.
Ninety days after that date would be December 30, 2003.
However, Payan did not file suit until January 2, 2004. There-
fore, Payan’s claim would have been untimely under either
rule. By contrast, Payan’s claim would be timely under a
seven-day rule. Under a seven-day rule, we would presume
that Payan received the right-to-sue letter on, or prior to,
October 3, 2003. Ninety days after that date would be January
1, 2004, a holiday, which Rule 6(a) would extend to January
2, 2004, the date on which Payan filed suit. See FED. R. CIV.
P. 6(a).
[8] We adopt the three-day presumption. The three-day pre-
sumption accords with Federal Rule of Civil Procedure 6(e),
which provides that “[w]henever a party must or may act
within a prescribed period after service and service is made
[by mail], 3 days are added after the prescribed period would
otherwise expire.” FED. R. CIV. P. 6(e); see also Baldwin, 466
U.S. at 148 n.1 (citing Rule 6(e)); Seitzinger, 165 F.3d at 239
(same). This rule is well-known, and is reasonable in this con-
text as in other aspects of civil litigation. The five-day pre-
sumption has been explained as according with 20 C.F.R.
§ 422.210(c) (provision of Social Security Act presuming
receipt of notice five days after the date of a denial or a deci-
sion), see Hunter v. Stephenson Roofing, Inc., 790 F.2d 472,
475 (6th Cir. 1986), and alternatively, as an additional two-
day allotment beyond the mailing time allowed in Rule 6(e),
see Graham-Humphreys, 209 F.3d at 557 n. 9 (referring to
Baldwin, 466 U.S. at 148 n.1). We see no basis for adopting
such a presumption in this context. And although courts have
suggested the possibility of a seven-day rule, we can find no
articulated reason for allowing seven days for mailing.6 Based
6
The seven-day rule may have originated in Roush v. Kartridge Pak
Co., 838 F. Supp. 1328, 1335 (S.D. Iowa 1993), in which the defendants
9254 PAYAN v. ARAMARK MANAGEMENT SERVICES
on the Supreme Court’s use of the three-day presumption in
Baldwin, its adoption by an overwhelming number of circuits,
and its basis in Federal Rule of Civil Procedure 6(e), we adopt
the three-day presumption as the governing standard for this
circuit.
[9] This presumption—that the plaintiff received the right-
to-sue letter by the date presumed under a three-day rule—is
a rebuttable one. See, e.g., Issa v. Comp USA, 354 F.3d 1174,
1178-79 (10th Cir. 2003); Ebbert v. DaimlerChrysler Corp.,
319 F.3d 103, 108 n.5 (3d Cir. 2003); Green v. Union
Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002); Lozano
v. Ashcroft, 258 F.3d 1160, 1165-67 (10th Cir. 2001);
Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 557-58 (6th Cir. 2000); Sherlock v. Montefiore
Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996); Coleman v. Poto-
mac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D. D.C.
2004), affirmed, 2004 WL 2348144 (D.C. Cir. 2004) (per
curiam). In reviewing whether the presumption has been
rebutted, courts look for evidence suggesting that receipt was
delayed beyond the presumed period. See Kerr v. McDonald’s
Corp., 427 F.3d 947, 952 (11th Cir. 2005) (adding that the
events causing delay must be “in no way [a complainant’s]
fault”). The Second Circuit, for example, found that “[i]f a
claimant presents sworn testimony or other admissible evi-
dence from which it could reasonably be inferred either that
the notice was mailed later than its typewritten date or that it
took longer than three days to reach her by mail, the initial
presumption is not dispositive.” Sherlock, 84 F.3d at 526 (not-
ing evidence of a copy of the letter with “stamps indicat[ing]
the timing of [the petitioner’s] own receipt of the letter,” but
argued that the plaintiff filed well beyond what even a seven-day pre-
sumption would allow. See McNeill v. Atchison, Topeka & Santa Fe Ry.
Co., 878 F. Supp. 986, 990 (S.D. Tex. 1995) (citing Roush); Ellison, 938
F. Supp. at 1509 (citing Roush). The courts of appeals that have referred
to a seven-day presumption have offered no source for the rule. See Tay-
lor, 296 F.3d at 379; Lozano, 258 F.3d at 1164-65.
PAYAN v. ARAMARK MANAGEMENT SERVICES 9255
rejecting that “self-serving” evidence as insufficient without
additional support such as an affidavit from the petitioner).
However, general claims that mail is sometimes delayed will
not be sufficient to rebut the presumption. We have all experi-
enced mail delays on occasion; but a general claim of occa-
sional delay is not sufficient to prove that a particular letter
was not delivered on time. Rather, to rebut a mailing pre-
sumption, the plaintiff must show that she did not receive the
EEOC’s right-to-sue letter in the ordinary course.
[10] Here, Payan has offered insufficient evidence to rebut
the three-day presumption. Although Payan suggested that
“[the notice letter] could have been delayed” and that “[she’d]
gotten mail that’[d] been delayed before . . . [s]ometimes
about a week,” none of these comments are sufficiently defi-
nite, without corroborating evidence, to conclude that the
right-to-sue letter arrived more than three days after issuance
by the EEOC. Payan also suggested that “[m]any reasonable
and logical reasons exist[ ] why . . . the EEOC may not have
mailed the right-to-sue notice until [after] September 29.”
However, Payan’s unsupported conjectures are insufficient to
suggest delayed receipt. Accord Cook v. Providence Hosp.,
820 F.2d 176, 178-179 & n.3 (6th Cir. 1987) (“[The petition-
er’s] denials are not sufficient to support a reasonable conclu-
sion that the letter was not received.”). Lastly, Payan has
proffered that she can “produce a witness that will testify that
the delivery of mail is not always within 3 days . . . and will
show mail that was delivered (1) month after being sent out.”
Such evidence, however, shows nothing with respect to the
receipt of the right-to-sue letter specifically, nor does it sug-
gest a routine mail failure that necessarily would affect the
right-to-sue letter. Without sufficient evidence to the contrary
from Payan, we presume that the right-to-sue notice arrived
at Payan’s address of record in accordance with the three-day
rule.
[11] Payan, therefore, had until December 29, 2003 to file
her complaint. Because Payan did not file her complaint until
9256 PAYAN v. ARAMARK MANAGEMENT SERVICES
January 2, 2004, three days beyond the ninety-day period, the
district court properly dismissed her claims as untimely.
Payan’s pro se status does not afford her different treatment
under these standards. See Baldwin, 466 U.S. 147 (dismissing
a pro se Title VII complaint filed outside of limitations).
V
For those reasons, we affirm the district court’s decision
granting summary judgment for Aramark on Payan’s claims.
AFFIRMED.