Franklin v. Burlington Northern

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-11383
Summary Calendar
_____________________
RICHARD FRANKLIN,
Plaintiff-Counter Defendant-Appellant,
versus
BURLINGTON NORTHERN SANTA FE CORPORATION,
Defendant-Counter Claimant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:00-CV-1508-A)
March 29, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Richard Franklin appeals the summary judgment granted
Burlington Northern Santa Fe Corporation on several bases against
his retaliation claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e—2000e-17. Franklin contends the district
court erred in holding, inter alia, that his complaint is time-
barred.
“We review a grant of summary judgment de novo, applying the
same standard as the district court ... [and] view[ing] the
*
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this opinion should not be published and is not precedent except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.
evidence in a light most favorable to the non-movant”. Vela v.
City of Houston, 276 F.3d 659, 666 (5th Cir. 2001) (internal
citations omitted). “Summary judgment is proper when ‘there is no
genuine issue as to any material fact and [] the moving party is
entitled to judgment as a matter of law.’” Id. (quoting FED. R.
CIV. P. 56(c)).
Franklin filed a retaliation charge with the EEOC on 17
September 1999. It dismissed the charge and, on 20 September 1999,
sent a notice-of-right-to-sue letter (letter) to the address in San
Antonio Franklin had provided. Franklin was in Fort Worth during
the week of 20 September. He recalls receiving the letter on a
Friday, which he concludes was 24 September. Franklin did not file
his complaint until 23 December (1999).
A plaintiff, however, must do so “within ninety days after the
giving of such notice [of right to sue by the EEOC]”. 42 U.S.C. §
2000e-5(f)(1). A plaintiff is presumed to have received the notice
three days after issuance. See Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 148 n.1 (1984) (per curiam); FED. R. CIV. P.
6(e). Thus, Franklin is presumed to have received the letter on 23
September. He did not file his complaint until 91 days later.
Accordingly, the district court held it time-barred.
Franklin maintains he rebutted the presumption of notice by
providing evidence he filed his complaint within 90 days of
actually receiving the letter. He also asserts that the EEOC
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letter did not inform him that he would be presumed to have
received the letter three days after it was mailed.
In Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247(5th Cir. 1985), however, our court held:
[T]he giving of notice to the claimant at the
address designated by him suffices to start
the ninety-day period unless the claimant,
through no fault of his own, failed to receive
the right-to-sue letter or unless, for some
other equitable reason, the statute should be
tolled until he actually receives notice.
Id. at 1250 (emphasis added). Because the letter is presumed to
have been received on 23 September at the address designated by
Franklin, and because he has failed to rebut that presumption, his
complaint was untimely.
To the extent Franklin’s brief may be read to suggest the
filing period ought to be equitably tolled (he never expressly
requests such relief), such assertion is waived. See Jernigan v.
Collins, 980 F.2d 292, 297 n.1 (5th Cir. 1992), cert. denied, 508
U.S. 978 (1993). Moreover, as the district court noted:
“[Franklin] ma[de] no argument that equitable tolling should apply.
Nor d[id] he offer any evidence that would support such tolling”.
AFFIRMED
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