Franklin v. Burlington Northern

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 1, 2002
• Docket: 01-11383
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 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