Case: 17-13076 Date Filed: 07/31/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13076 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cv-02139-CEM-TBS
STUART WINSOR,
Plaintiff - Appellant,
versus
THE HOME DEPOT U.S.A., INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 31, 2018)
Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-13076 Date Filed: 07/31/2018 Page: 2 of 8
Stuart Winsor, proceeding pro se, appeals the district court’s dismissal of his
employment discrimination complaint filed under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. § 12101 et seq. On appeal, Winsor argues that the
district court erred by dismissing his complaint as untimely and by failing to apply
equitable tolling. After careful review, we affirm.
I.
Winsor filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) after store officials at Home Depot, U.S.A., Inc. failed to
hire him. On July 5, 2016, the EEOC issued Winsor a right-to-sue letter, notifying
him that he had 90 days from receipt to file a civil action against Home Depot. On
October 14, 2016, Winsor filed suit against Home Depot in Florida state court.
Home Depot removed the action to federal court and filed a motion to
dismiss. In its motion, Home Depot argued that Winsor’s lawsuit was untimely
because it had been filed past the 90-day deadline. Winsor failed to respond, and
the district court granted Home Depot’s motion. The district court, assuming
Winsor had received the right-to-sue letter on July 8, 2016—three days after it was
issued on July 5, 2016—found that Winsor had filed his complaint on the 98th day,
making it untimely.
2 Case: 17-13076 Date Filed: 07/31/2018 Page: 3 of 8
After the district court dismissed his complaint, Winsor filed a “Petition for
Permission to Appeal,” which the district court construed as a motion for
reconsideration. In the motion, Winsor explained the following: The United
States Postal Service (“USPS”) had attempted to deliver the right-to-sue letter on
July 7, 2016. Winsor signed the delivery notice on July 8, 2016, requesting that
USPS deliver the letter to his apartment management staff, who were authorized to
sign for delivery. USPS delivered the letter to the leasing office for Winsor’s
apartment on July 11, 2016, but did not leave a notice in Winsor’s mailbox or on
the door of his residence that the letter had been delivered. In addition, the
apartment management staff does not notify residents when their mail is received.
Winsor picked up the letter from the office on July 16, 2016, when he happened to
be at the leasing office for an unrelated reason.
Winsor also asserted in the motion that he had responded to Home Depot’s
motion to dismiss by filing—before the district court’s ruling on the motion to
dismiss—a “Production of Documents” to which he had attached copies of the
delivery notices and a description of the delivery attempts. 1 The district court
denied the motion. This is Winsor’s appeal.
1 There is no indication on the district court docket that Winsor’s “Production of Documents” or any associated exhibits ever were filed. Winsor asserts for the first time in his brief on appeal that he also filed a “Second Production of Documents,” but that filing does not appear on the district court docket, either.
3 Case: 17-13076 Date Filed: 07/31/2018 Page: 4 of 8
II.
We review de novo the grant of a motion to dismiss, accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).
III.
On appeal, Winsor argues that the district court erred by dismissing his
complaint as untimely and by failing to apply equitable tolling.2 For the reasons
that follow, we disagree.
A plaintiff has 90 days to file an employment discrimination lawsuit after
receiving the EEOC’s notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). Under the
ADA, a plaintiff must comply with the same procedural requirements to sue that
exist under Title VII. 42 U.S.C. § 12117(a). We analyze whether a plaintiff has
complied with the 90-day deadline “on a case-by-case basis to fashion a fair and
reasonable rule for the circumstances of each case.” Kerr v. McDonald’s Corp.,
427 F.3d 947, 952 (11th Cir. 2005) (internal quotation marks omitted).
We have declined to impose a requirement of “actual receipt” of the right-to-
sue letter where it might foster a “manipulable open-ended time extension which
would render the statutory limitation meaningless.” Law v. Hercules, Inc., 713 2 Winsor also argues that the district court erred by dismissing his complaint for failure to plead specific facts showing that he exhausted his administrative remedies. This argument is without merit. Although the district court mentioned its ability to dismiss a plaintiff’s complaint for failure to plead conditions precedent to filing suit, the court actually dismissed Winsor’s suit because it was untimely. 4 Case: 17-13076 Date Filed: 07/31/2018 Page: 5 of 8
F.2d 691, 692-93 (11th Cir. 1983) (internal quotation marks omitted). A plaintiff
must assume “some minimum responsibility . . . for an orderly and expeditious
resolution of [his] claims.” Kerr, 427 F.3d at 952 (internal quotation marks
omitted). If a right-to-sue letter was mailed to the plaintiff’s address and the
plaintiff “did not receive it either because another person signed for it or because
[he] failed to retrieve it from the post office or mail box,” then “[r]eceipt is
presumed” unless the plaintiff can show that failure to receive the letter was “in no
way” his fault. Id.; see Law, 713 F.2d at 692-93 (affirming dismissal of Title VII
complaint as untimely where plaintiff’s son, at the direction of plaintiff’s wife,
picked up the right-to-sue letter at the post office and left it on the kitchen table,
but plaintiff did not actually receive the letter until one or two days later); Bell v.
Eagle Motor Lines, Inc., 693 F.2d 1086, 1086-87 (11th Cir. 1982) (affirming
dismissal of Title VII complaint as untimely where plaintiff’s wife received the
right-to-sue letter while plaintiff was out of town, but plaintiff did not actually
receive the letter until a week later). Additionally, “[w]hen the date of receipt is in
dispute, this court has applied a presumption of three days for receipt by mail.”
Kerr, 427 F.3d at 953 n.9.
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Case: 17-13076 Date Filed: 07/31/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13076 Non-Argument Calendar ________________________
D.C. Docket No. 6:16-cv-02139-CEM-TBS
STUART WINSOR,
Plaintiff - Appellant,
versus
THE HOME DEPOT U.S.A., INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(July 31, 2018)
Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-13076 Date Filed: 07/31/2018 Page: 2 of 8
Stuart Winsor, proceeding pro se, appeals the district court’s dismissal of his
employment discrimination complaint filed under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. § 12101 et seq. On appeal, Winsor argues that the
district court erred by dismissing his complaint as untimely and by failing to apply
equitable tolling. After careful review, we affirm.
I.
Winsor filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) after store officials at Home Depot, U.S.A., Inc. failed to
hire him. On July 5, 2016, the EEOC issued Winsor a right-to-sue letter, notifying
him that he had 90 days from receipt to file a civil action against Home Depot. On
October 14, 2016, Winsor filed suit against Home Depot in Florida state court.
Home Depot removed the action to federal court and filed a motion to
dismiss. In its motion, Home Depot argued that Winsor’s lawsuit was untimely
because it had been filed past the 90-day deadline. Winsor failed to respond, and
the district court granted Home Depot’s motion. The district court, assuming
Winsor had received the right-to-sue letter on July 8, 2016—three days after it was
issued on July 5, 2016—found that Winsor had filed his complaint on the 98th day,
making it untimely.
2 Case: 17-13076 Date Filed: 07/31/2018 Page: 3 of 8
After the district court dismissed his complaint, Winsor filed a “Petition for
Permission to Appeal,” which the district court construed as a motion for
reconsideration. In the motion, Winsor explained the following: The United
States Postal Service (“USPS”) had attempted to deliver the right-to-sue letter on
July 7, 2016. Winsor signed the delivery notice on July 8, 2016, requesting that
USPS deliver the letter to his apartment management staff, who were authorized to
sign for delivery. USPS delivered the letter to the leasing office for Winsor’s
apartment on July 11, 2016, but did not leave a notice in Winsor’s mailbox or on
the door of his residence that the letter had been delivered. In addition, the
apartment management staff does not notify residents when their mail is received.
Winsor picked up the letter from the office on July 16, 2016, when he happened to
be at the leasing office for an unrelated reason.
Winsor also asserted in the motion that he had responded to Home Depot’s
motion to dismiss by filing—before the district court’s ruling on the motion to
dismiss—a “Production of Documents” to which he had attached copies of the
delivery notices and a description of the delivery attempts. 1 The district court
denied the motion. This is Winsor’s appeal.
1 There is no indication on the district court docket that Winsor’s “Production of Documents” or any associated exhibits ever were filed. Winsor asserts for the first time in his brief on appeal that he also filed a “Second Production of Documents,” but that filing does not appear on the district court docket, either.
3 Case: 17-13076 Date Filed: 07/31/2018 Page: 4 of 8
II.
We review de novo the grant of a motion to dismiss, accepting the
allegations in the complaint as true and construing them in the light most favorable
to the plaintiff. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).
III.
On appeal, Winsor argues that the district court erred by dismissing his
complaint as untimely and by failing to apply equitable tolling.2 For the reasons
that follow, we disagree.
A plaintiff has 90 days to file an employment discrimination lawsuit after
receiving the EEOC’s notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). Under the
ADA, a plaintiff must comply with the same procedural requirements to sue that
exist under Title VII. 42 U.S.C. § 12117(a). We analyze whether a plaintiff has
complied with the 90-day deadline “on a case-by-case basis to fashion a fair and
reasonable rule for the circumstances of each case.” Kerr v. McDonald’s Corp.,
427 F.3d 947, 952 (11th Cir. 2005) (internal quotation marks omitted).
We have declined to impose a requirement of “actual receipt” of the right-to-
sue letter where it might foster a “manipulable open-ended time extension which
would render the statutory limitation meaningless.” Law v. Hercules, Inc., 713 2 Winsor also argues that the district court erred by dismissing his complaint for failure to plead specific facts showing that he exhausted his administrative remedies. This argument is without merit. Although the district court mentioned its ability to dismiss a plaintiff’s complaint for failure to plead conditions precedent to filing suit, the court actually dismissed Winsor’s suit because it was untimely. 4 Case: 17-13076 Date Filed: 07/31/2018 Page: 5 of 8
F.2d 691, 692-93 (11th Cir. 1983) (internal quotation marks omitted). A plaintiff
must assume “some minimum responsibility . . . for an orderly and expeditious
resolution of [his] claims.” Kerr, 427 F.3d at 952 (internal quotation marks
omitted). If a right-to-sue letter was mailed to the plaintiff’s address and the
plaintiff “did not receive it either because another person signed for it or because
[he] failed to retrieve it from the post office or mail box,” then “[r]eceipt is
presumed” unless the plaintiff can show that failure to receive the letter was “in no
way” his fault. Id.; see Law, 713 F.2d at 692-93 (affirming dismissal of Title VII
complaint as untimely where plaintiff’s son, at the direction of plaintiff’s wife,
picked up the right-to-sue letter at the post office and left it on the kitchen table,
but plaintiff did not actually receive the letter until one or two days later); Bell v.
Eagle Motor Lines, Inc., 693 F.2d 1086, 1086-87 (11th Cir. 1982) (affirming
dismissal of Title VII complaint as untimely where plaintiff’s wife received the
right-to-sue letter while plaintiff was out of town, but plaintiff did not actually
receive the letter until a week later). Additionally, “[w]hen the date of receipt is in
dispute, this court has applied a presumption of three days for receipt by mail.”
Kerr, 427 F.3d at 953 n.9.
Here, the district court did not err in dismissing Winsor’s complaint as
untimely because it was filed after the 90-day deadline. The right-to-sue letter was
issued on July 5, 2016. Winsor failed to allege in the complaint when he received
5 Case: 17-13076 Date Filed: 07/31/2018 Page: 6 of 8
the letter. Accordingly, when the district court granted the motion to dismiss, it did
not err in presuming, consistent with Kerr, that the letter was received three days
later, on July 8, 2016. See id. Winsor filed suit on October 14, 2016, 98 days after
presumed receipt. He thus failed to file timely his complaint.
Even if we consider the facts Winsor alleged in his “Petition for Permission
to Appeal”—filed after the district court dismissed his complaint—the dismissal
was proper. Winsor admitted that he signed a delivery notice on July 8, 2016,
authorizing USPS to leave the right-to-sue letter with his apartment management.
There is no dispute that USPS did so on July 11, 2016. Winsor argues that because
he did not pick up the letter from management until July 16, 2016, the 90-day
period started running on that date, but we cannot agree. The 90-day period began
to run, at the latest, on July 11, 2016, when Winsor’s apartment management
received the right-to-sue letter according to his authorization. See Law, 713 F.2d at
693; Bell, 693 F.2d at 1086-87. Winsor knew USPS had attempted to deliver a
letter on July 8, yet he failed to check with the office for eight days, only then
discovering the letter by chance.3 He thus failed to assume “some minimum
3 In his briefing on appeal, Winsor asserts that he had no way of knowing that the letter was from the EEOC until he actually received it on July 16, 2016 because the sender had been identified only as “Miami District” on the delivery notice. Appellant’s Br. at 11. Winsor did not include this fact in his construed motion for reconsideration filed in the district court. The district court thus did not have the opportunity to consider this fact, nor is it part of the record on appeal, so we cannot consider it. See Fed. R. App. P. 10(a); Access Now Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332-35 (11th Cir. 2004) (explaining that absent exceptional circumstances, we will not consider arguments that are raised for the first time on appeal). 6 Case: 17-13076 Date Filed: 07/31/2018 Page: 7 of 8
responsibility . . . for an orderly and expeditious resolution of [his] claims.” Kerr,
427 F.3d at 952 (internal quotation marks omitted). Even if we accept the facts
Winsor alleged in his motion and count the 90-day period from July 11, when
USPS delivered it to the office, his complaint properly was dismissed as untimely
because it was filed 95 days later.
Winsor also argues on appeal that the district court erred by failing to
consider equitable tolling of the 90-day limitation period. But Winsor failed to
raise equitable tolling before the district court, so he has not preserved the issue for
appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (“This [c]ourt has repeatedly held that an issue not raised in the district court
and raised for the first time in an appeal will not be considered by this court.”
(internal quotation marks omitted)). Were we to consider Winsor’s argument,
however, we would conclude that the circumstances do not warrant equitable
tolling. A party seeking equitable tolling must prove that (1) he has been pursuing
his rights diligently and (2) some extraordinary circumstance stood in his way and
prevented him from timely filing. Villareal v. R.J. Reynolds Tobacco Co., 839
F.3d 958, 971 (11th Cir. 2016) (en banc), cert denied, 137 S. Ct. 2292 (2017).
Winsor has failed to show that either requirement has been met.
7 Case: 17-13076 Date Filed: 07/31/2018 Page: 8 of 8
IV.
For the foregoing reasons, we affirm the district court’s dismissal of
Winsor’s complaint.
AFFIRMED.