Graham-Humphreys v. Memphis Brooks

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0122P (6th Cir.)

File Name: 00a0122p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



GWENDOLYN T. GRAHAM-



HUMPHREYS,



Plaintiff-Appellant/



Nos. 98-5971/6098

Cross-Appellee,



>

v. 







MEMPHIS BROOKS MUSEUM

Defendant-Appellee/ 

OF ART, INC.,



Cross-Appellant. 

1

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 96-02639—Jon Phipps McCalla, District Judge.

Argued: September 22, 1999

Decided and Filed: April 6, 2000

Before: KRUPANSKY* and NORRIS, Circuit Judges;

GWIN, District Judge.

*

The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

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Brooks Museum of Art Brooks Museum of Art

_________________ suffered by the plaintiff were self-induced and solely the

product(s) of her own neglect, carelessness, inattentiveness,

COUNSEL indifference, dereliction, and/or remissness in the exercise of

minimal diligence.12 See Banks, 855 F.2d at 327

ARGUED: G. Hite McLean, Jr., Memphis, Tennessee, for (propounding that a litigant who seeks equitable tolling “must

Appellant. Martin F. Thompson, ALLEN, SCRUGGS, come with clean hands.”).

SOSSAMAN & THOMPSON, Memphis, Tennessee, for

Appellee. ON BRIEF: G. Hite McLean, Memphis, Accordingly, because the district court correctly dismissed

Tennessee, for Appellant. Martin F. Thompson, Kirk A. Graham-Humphreys’ complaint as time barred, this review

Caraway, ALLEN, SCRUGGS, SOSSAMAN & has no occasion to address the defendant museum’s alternate

THOMPSON, Memphis, Tennessee, for Appellee. argument, advanced via cross-appeal, that her complaint

should have been dismissed for insufficiency of process.

_________________

Therefore, in case no. 98-5971 (the plaintiff’s appeal), the

OPINION district court’s dismissal of the plaintiff’s complaint as barred

_________________ by limitations is AFFIRMED. Case no. 98-6098 (the

defendant’s cross-appeal) is DISMISSED AS MOOT.

KRUPANSKY, Circuit Judge. In case no. 98-5971, the

plaintiff-appellant Gwendolyn T. Graham-Humphreys

(“Graham-Humphreys”) has appealed the district court’s

summary dismissal, as barred by statutory limitations, of her

gender-based employment discrimination complaint anchored

in Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq. (“Title VII”). In case no. 98-6098, the

defendant-appellee Memphis Brooks Museum of Art, Inc.

(“Brooks” or “the museum”) has cross-appealed the trial

court’s rejection of its motions (1) to quash the plaintiff’s

summons for technical defects and (2) to dismiss the action

for failure to timely serve valid process; and has concordantly

challenged the trial court’s retroactive curative amendment of

the deficient summons.

On March 4, 1994, Brooks retained the plaintiff, an 12

The arguable absence of any significant prejudice to the defendant

unmarried woman, to serve as its Deputy Director of if this court were to permit the plaintiff’s filing out of rule is immaterial,

Corporate Relations. In that capacity, Graham-Humphreys because no other factor supports the plaintiff’s equitable tolling posture.

was responsible for promoting corporate financial See Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (“although

sponsorship of the museum. While so employed and still absence of prejudice is a factor to be considered in determining whether

single, the plaintiff became pregnant. Subsequently, on the doctrine of equitable tolling should apply once a factor that might

justify tolling is identified, it is not an independent basis for invoking the

January 3, 1995, she married Anderson Humphreys. Three doctrine.”) (brackets and ellipse omitted) (quoting Baldwin County

days later, on January 6, 1995, Graham-Humphreys gave birth Welcome Center v. Brown, 466 U.S. 147, 152 (1984)).

18 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 3

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action prior to the June 10, 1996 expiration of limitations. to a daughter. Immediately thereafter, the plaintiff began a

See Scholar v. Bell, 963 F.2d 264, 268 (9th Cir. 1992) company-authorized voluntary twelve-week unpaid maternity

(denying equitable tolling because the plaintiff had 75 days leave of absence.

after actual receipt of her RTS notice to file a civil

complaint). During the second week of February, 1995, while on

maternity leave, Graham-Humphreys received a telephone

At any rate, even a pro se litigant, whether a plaintiff or a call from Chuck Beegle (“Beegle”), the museum’s Chief

defendant, is required to follow the law. In particular, a Operations Officer. He informed her that, because available

willfully unrepresented plaintiff volitionally assumes the risks funding had been exhausted, her position with the museum

and accepts the hazards which accompany self-representation. had been eliminated. Nonetheless, on April 3, 1995, upon the

See McNeil v. United States, 508 U.S. 106 (1993), wherein expiration of her scheduled twelve-week absence, Graham-

the Supreme Court commented that “we have never suggested Humphreys reported for work at the museum. Brooks’

that procedural rules in ordinary civil litigation should be Director, E.A. Carmean (“Carmean”), then personally

interpreted so as to excuse mistakes by those who proceed confirmed that her former post at the museum no longer

without counsel.” Id. at 113. This circuit has remarked that existed. Nevertheless, within several days of that

“[i]t is well-settled that ignorance of the law alone is not conversation, Beegle counseled Graham-Humphreys, via

sufficient to warrant equitable tolling.” Rose v. Dole, 945 telephone, that she should “sit tight” while the museum

F.2d 1331, 1335 (6th Cir. 1991) (per curiam). Accord, resolved whether she would eventually be recalled from

United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999) “layoff” status.

(reaffirming, in sustaining a criminal defendant-appellant’s

conviction, “the centuries-old maxim that ‘ignorance of the On approximately April 16, 1995, Graham-Humphreys

law is no excuse’” and remarking that, in most circumstances, discovered, at the front door of her residence, a copy of an

“[t]o allow an ignorance of the law excuse would encourage unfavorable written assessment of her job performance, which

and reward indifference to the law.”), cert. denied, 2000 WL had been executed by Carmean, purportedly on December 30,

189836 (U.S. Feb. 28, 2000) (No. 99-8027). 1994. That report revealed that the plaintiff had scored only

27 quality points on a 60 point scale. The reviewer had

In conclusion, the plaintiff’s knowledge or suspicion that opined that “deficiencies [were] evident” in the plaintiff’s

the EEOC had issued an RTS letter which the Postal Service judgment, initiative, reliability, perseverance, and stability;

attempted to deliver to her on March 8, 1998, her actual and additionally noted her failure to recruit new commercial

knowledge that ninety-day limitations began running upon her donors. At no time thereafter did Brooks restore the

receipt of notice from the EEOC of her right to sue, her plaintiff’s employment.

perplexing failure to inaugurate her lawsuit within the 74 days

remaining on her limitations term following her physical On August 24, 1995, Graham-Humphreys instigated a

acceptance of her RTS letter, her unexcused dilatory retrieval formal administrative charge of employment discrimination

of that document from the post office, her listless efforts to against the museum before the United States Equal

secure and retain a continuity of necessary professional legal Employment Opportunity Commission (“EEOC”) and the

assistance, and her apparent contempt for proper court Tennessee Human Rights Commission (“THRC”), wherein

procedures and other legal requisites, marshaled to forestall she alleged that “I believe I have been discriminated against

equitable tolling, because any disadvantage(s) allegedly because of my sex, female and pregnancy in violation of Title

4 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 17

Brooks Museum of Art Brooks Museum of Art

VII of the Civil Rights Act of 1964, as amended.” However, statute of limitations: 1) lack of notice of the filing

the EEOC/THRC took no action on her complaint. On requirement; 2) lack of constructive knowledge of the

February 28, 1996, the claimant requested, in writing, that the filing requirement; 3) diligence in pursuing one’s rights;

EEOC issue her a Right-to-Sue (“RTS”) notice. 42 U.S.C. 4) absence of prejudice to the defendant; and 5) the

§ 2000e-5(f)(1). The plaintiff has conceded that she expected plaintiff’s reasonableness in remaining ignorant of the

to receive that official document via United States mail. particular legal requirement.

Additionally, her February 28, 1996 letter to the EEOC

disclosed that her attorney, Gail Mathes, would soon request Truitt, 148 F.3d at 648 (citation omitted).

a copy of her claim file.

However, the Truitt court did not indicate that its list was

In response to her request, the EEOC on March 7, 1996 comprehensive, nor that each of the five considerations would

generated Graham-Humphreys’ RTS memorial, and posted it, be material in all cases. Rather, “[t]he propriety of equitable

via United States certified mail, to her residential address of tolling must necessarily be determined on a case-by-case

record at 4741 Mint Drive, Memphis, Tennessee 38117 basis.” Id. (citation omitted).

(“Mint Drive”). Graham-Humphreys resided at that location

at least between February 1996 through March 1996. On The district court did not abuse its discretion by rejecting

Friday, March 8, 1996, Postal Carrier Danny Stafford the plaintiff’s request for equitable tolling. As developed

unsuccessfully attempted delivery of the complainant’s RTS above, the record evidence on summary judgment review,

letter at her Mint Drive address. The mailman then deposited, when construed most favorably on behalf of the plaintiff (see

at that residence, a form Postal Service attempt-to-deliver note 7 above), reflected that she had constructive notice,

notification, which stated that a certified letter addressed to within the March 8 through March 13, 1996 mailing period,

the plaintiff could be claimed at the local post office. That that the EEOC had issued her RTS letter. Moreover, as

postal notice related the address, telephone number, and previously illustrated, the plaintiff’s employment obligations

business hours of the nearby branch facility. Graham- did not impede her ability, in the exercise of reasonable

Humphreys received Stafford’s advisory notice on March 8, diligence, to promptly accept her RTS notice.

1996, but she took no responsive action.

Prior to retrieving her RTS document, Graham-Humphreys

Five days later, on Wednesday, March 13, 1996, in knew that she was required to commence her judicial

conformity with standard Postal Service practices, the letter complaint within a finite period. Irrespective of whether the

handler deposited a second, and final, notice of attempted plaintiff had the benefit of legal counsel or was proceeding

delivery at Mint Drive. That document explicitly cautioned pro se, a reasonably cautious and prudent Title VII claimant

that failure to claim the certified envelope on or prior to in Graham-Humphreys’ posture would, as a modest

Saturday, March 23, 1996, would prompt its return to the precaution, assume that limitations began passing on or near

sender. Graham-Humphreys received that notification on the earliest potential date, and would consequently initiate her

March 13, 1996. Ignoring that message as well, the civil action within ninety days of her receipt of the postman’s

complainant neglected to retrieve her certified letter by the note which had apprized her of the certified letter which later

stated March 23, 1996 deadline. proved to be her RTS notice. The claimant had abundant time

(74 days) following the EEOC’s March 28, 1996 actual

release to her of the RTS notice in which to institute her court

16 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 5

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[an] erroneous legal standard.” Romstadt v. Allstate Ins. Co., Accordingly, on Tuesday, March 26, 1996, the Postal

59 F.3d 608, 615 (6th Cir. 1995) (quotations and citations Service returned it, stamped “unclaimed,” to the issuing

omitted). EEOC office. Two days later, on Thursday, March 28, 1996,

as a courtesy, an EEOC employee alerted Graham-Humphreys

Graham-Humphreys has protested that the lower court by telephone that her RTS document had been issued and

abused its discretion by declining to toll limitations, because posted, but had been returned as an unclaimed certified

(1) her employment commitments allegedly contributed to her dispatch.1 Later that day, the plaintiff personally appeared at

failure to timely collect her certified mail; (2) both the the EEOC district headquarters to accept her RTS

EEOC’s RTS notice, and the EEOC-composed memorial of authorization.2 Upon the EEOC’s release of that document to

her acceptance of that document, pronounced that the ninety-

day filing timetable commenced to accrue upon her “receipt”

of the RTS notification, which she understood to mean her 1

Three days earlier, on Monday, March 25, 1996, at Graham-

taking actual physical custody of that document; and (3) she Humphreys’ behest, her attorney Mathes had in writing requested the

had purportedly acted without professional legal advice EEOC’s Memphis office to send her all documents within the plaintiff’s

regarding the limitations question. claim file. In response, the EEOC promptly forwarded the requested

documentation to Mathes, which included a reproduction of its March 7,

The federal courts sparingly bestow equitable tolling. Irwin 1996 certified RTS notice addressed to the plaintiff.

v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); 2

Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); Brown v. The plaintiff has not denied that she had numerous opportunities to

Mead Corp., 646 F.2d 1163, 1165 (6th Cir. 1981). Typically, take possession of her certified delivery prior to its return to the EEOC’s

Memphis office. During March 1996, the local postal depot operated

equitable tolling applies only when a litigant’s failure to meet from 8:30 a.m. to 5 p.m. on weekdays and from 10 a.m. to 2 p.m. on

a legally-mandated deadline unavoidably arose from Saturdays. During that same period, Graham-Humphreys typically

circumstances beyond that litigant’s control. See Baldwin worked from 10 a.m. to 4 p.m. on weekdays and did not work on

County, 466 U.S. at 151 (“One who fails to act diligently Saturdays. Additionally, record proof disclosed that Graham-Humphreys’

cannot invoke equitable principles to excuse that lack of flexible schedule during March 1996 permitted her, on occasion, to begin

work later than 10 a.m., or to depart her workplace earlier than 4 p.m..

diligence.”); see also Johnson v. United States Postal Service, Furthermore, her immediate retrieval of the certified mailing on March 28,

64 F.3d 233, 238 (6th Cir. 1995), which directed that a 1996, the same day as the EEOC’s telephonic advisory that her RTS letter

petitioner’s failure to satisfy a deadline caused by “garden had been returned to the district headquarters, strongly implies that, if she

variety neglect” cannot be excused by equitable tolling. had so elected, she could have claimed that letter within the five day grace

(Citing Irwin, 498 U.S. at 96). Absent compelling equitable period for mailing. At deposition, the plaintiff conceded that no

emergency or other impediment obstructed her ability to claim her mail

considerations, a court should not extend limitations by even within the designated time frame.

a single day. Johnson v. United States Postal Service, 863

F.2d 48 (Table), 1988 WL 122962, at *3 (6th Cir. Nov. 6, Moreover, the plaintiff acknowledged that she knew, or at least

1988). suspected, upon receiving the first advisory of attempted delivery on

March 8, 1996 that the certified package which awaited her contained her

The Sixth Circuit has decreed: RTS notice, and candidly admitted that she had no justification or excuse

for not retrieving it. She testified, “they attempted to deliver it to me.

And I don’t know why I didn’t go over there and get it.” Graham-

We have identified five factors to consider when Humphreys also admitted that she knew that the legally-allotted time

determining the appropriateness of equitably tolling a within which she was required to commence her legal action had started

to expire prior to her personal acceptance her RTS notice at the EEOC

6 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 15

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her, Graham-Humphreys executed an acknowledgment of Accordingly, the deposit of a postal attempt-to-deliver

receipt, which stated: “I, Gwendolyn Tabb Graham- advisory at the claimant’s last known residential address of

Humphreys received my copy of the Notice of Right to Sue record within the five-day mailing interval ordinarily will

dated 3/7/96 for my charge #250952044 today in the constitute constructive receipt of the RTS notice by the

Memphis District Office of EEOC.” In turn, the subject RTS claimant.

letter advised, in part:

Any more lenient rule would illicitly license a Title VII

This is your NOTICE OF RIGHT TO SUE. It is issued claimant to indefinitely extend limitations by avoiding

at your request. If you intend to sue the respondent(s) acceptance of an RTS notice, thereby circumventing the

named in your charge, YOU MUST DO SO WITHIN Congressional mandate that private Title VII lawsuits should

NINETY (90) DAYS OF YOUR RECEIPT OF THIS be initiated within ninety days of the EEOC’s “giving” of

NOTICE: OTHERWISE YOUR RIGHT TO SUE IS official authorization to sue. 42 U.S.C. § 2000e-5(f)(1). That

LOST. precise rationale has undergirded the established rule,

illustrated herein, that the mailing and delivery, presumptively

(Capitalizations in original). accomplished within the five-day period to accommodate

delivery, of an RTS announcement to the plaintiff’s address

Between March 28, 1996 and mid-June, 1996, attorney of record, even if erroneous, actuates the limitations period

Mathes endeavored, unsuccessfully, to negotiate a resolution after expiration of the five day grace period, even if the RTS

of Graham-Humphreys’ claim, by means which included a notice was ultimately returned to the EEOC as undeliverable

June 4, 1996 settlement proposal letter addressed to Carmean. or unclaimed.

On June 21, 1996, the plaintiff, purportedly acting pro se,

inaugurated the instant Title VII action in federal district The plaintiff, in rebuttal, has proposed that, even if the

court. The record disclosed that Timothy Smith, an attorney passage of ninety-day limitations actuated five days following

in Mathes’ firm, had drafted the complaint that initiated her the Postal Service’s March 7, 1996 mailing of her RTS notice,

federal lawsuit, for which Graham-Humphreys had paid $500. those temporal bounds nevertheless should be extended, as

Two lawyers from Mathes’ firm continued to advise Graham- equitably tolled, beyond June 10, 1996, to validate her June

Humphreys following the filing of her complaint, for which 21, 1996 court complaint. See Zipes v. Trans World Airlines,

services she paid an additional $700 fee. On July 3, 1996, via Inc., 455 U.S. 385 (1982), which explained that violation of

Mathes’ office, the plaintiff lodged an amendment to her the Title VII ninety-day filing mandate erected no

complaint in which she requested $100,000 in compensatory comprehensive jurisdictional impediment to a civil action but

damages and demanded a jury trial. The plaintiff has instead merely raised a limitations barrier which “is subject to

acknowledged that she knew that her court case had to be waiver, estoppel, and equitable tolling.” Id. at 392-98. A

instituted within a legally prescribed period, although she district court’s application or rejection of equitable tolling is

“just relied on [her] attorneys to kind of guide [her] along on scrutinized for abuse of discretion. Truitt v. County of Wayne,

that.” 148 F.3d 644, 648 (6th Cir. 1998). Generally, an abuse of

discretion is evident “when the reviewing court is firmly

convinced that a mistake has been made. A district court

office, by avowing at deposition that “[s]omehow or another I found out abuses its discretion when it relies on clearly erroneous

that I needed to get down there [the EEOC headquarters] before the time findings of fact, or when it improperly applies the law or uses

deadline.”

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191322 (6th Cir. March 17, 1999) (per curiam) (unpub’d); Mathes and Graham-Humphreys did not memorialize their

Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. attorney-client relationship in writing. At some point after the

1997). filing of the July 3, 1996 amended complaint, the Mathes firm

stopped performing legal services for Graham-Humphreys.

Even assuming, arguendo, that Graham-Humphreys had Subsequently, during September or October 1996, the

not conceded that she suspected that the certified notice at plaintiff consulted Deborah Pagan, another counselor, who

issue was her EEOC lawsuit authorization, she would determined that service of the summons and amended

nonetheless properly be charged with such knowledge, complaint upon the museum had not yet been accomplished.

because she indisputably knew that her RTS notice would be Pagan furnished Graham-Humphreys with a completed

proximately arriving by United States mail. Beyond original summons and several photocopies, and directed her

contravention, most adult Americans are cognizant that to file the summons with the district court clerk’s office for

critical, time-sensitive official communications are frequently processing, and then to provide copies of all documents to a

dispatched via certified mail. Fed. R. Evid. 201. In the professional process server, Theresa Moses, for service upon

implicated scenario, the requisites of reasonable diligence a museum representative. At deposition, Graham-Humphreys

demanded that the plaintiff promptly discharge her less-than- did not relate Pagan’s precise instructions, nor did she recall

demanding obligation to retrieve her certified delivery. Cf. exactly what actions she (the plaintiff) had taken in the court

Hunter, which observed that a plaintiff’s delayed actual clerk’s office or which paper(s) she subsequently deposited in

receipt of an RTS apprisal caused by a lapse in the discharge Moses’ courthouse message box; she simply attested that she

of a minimal burden to inform the EEOC of new address presented the documents at the courthouse and then “gave

would not overcome the presumption of receipt of the RTS [Moses] whatever I was told I was supposed to give her.” In

letter within five days of mailing. 790 F.2d at 474-75. any event, the summons which Moses served upon Director

Carmean on October 18, 1996 (119 days following the

Because the plaintiff in this action received imputed notice complaint’s filing)34had not been properly conformed by the

of her right to sue on March 8, 1996, which was within five court clerk’s office.

days of the March 7, 1996 mailing of the EEOC’s advisory

notice, her litigation inauguration threshold had been On November 7, 1996, Brooks, pursuant to Fed. R. Civ. P.

activated on March 13, 1996; it expired ninety days later, on 12(b)(4), moved to quash the summons for insufficiency and

June 10, 1996. Thus, her June 21, 1996 judicial complaint dismiss the action for failure to serve valid process within 120

was foreclosed. Generally, when the EEOC posts an RTS days of the complaint’s filing. After receiving the defendant’s

notice by United States certified mail to a Title VII claimant, moving papers, the plaintiff telephoned Pagan, who referred

the ninety-day limitations clock begins to tick five days her to a specialist in employment law identified simply as

thereafter, if, within that five-day passage, the Postal Service

had deposited, at the plaintiff’s address of record, a written

notification that a mail carrier had unsuccessfully attempted 3

Because Graham-Humphreys filed her complaint on June 21, 1996,

a certified delivery. That rule governs even if that attempt-to- Fed. R. Civ. P. 4(m) required service upon the defendant or before

deliver advisory notice did not identify the EEOC as the October 19, 1996. See also Fed. R. Civ. P. 6(a).

originator of the letter in question, because a reasonable Title

4

VII claimant should know that the implicated certified That summons bore neither the court clerk’s signature, the district

document may be the awaited RTS authorization. court’s official seal, nor the deadline by which the defendant was required

to respond. See Fed. R. Civ. P. 4(a) & (b).

8 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 13

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“Kathleen.” Graham-Humphreys consulted Kathleen on F.2d at 474-75. Accord, Johnson v. United States Postal

several occasions. Subsequently, during a December 30, Service, 64 F.3d 233, 237-38 (6th Cir. 1995); Johnson-Brown

1996 status conference, the plaintiff, represented by yet v. Wayne State University, 173 F.3d 855 (Table), 1999 WL

another attorney, Hite McLean, Jr.,5 moved to amend the

summons to correct its fatal defects. Fed. R. Civ. P. 4(a). On

January 13, 1997, the trial court granted the plaintiff’s motion

to amend the summons and concurrently overruled the conformity therewith, the EEOC charge form executed on August 24,

defendant’s motions to quash the summons and dismiss the 1995 by Graham-Humphreys recited that “I will advise the agencies if I

change my address or telephone number and cooperate fully with them in

case.6 the processing of my charge in accordance with their procedures.” The

plaintiff has urged that, because the Regulations compel a Title VII

Thereafter, on January 30, 1998, the defendant moved, claimant to provide the EEOC with an accurate address, the courts punish

under Fed. R. Civ. P. 56, for summary judgment, charging failure to do so; whereas no such penalty is warranted against claimants

that the plaintiff had commenced her action more than ninety like Graham-Humphreys who have furnished a valid address to the

days following the RTS notification, in violation of EEOC.

limitations. 42 U.S.C. § 2000e-5(f)(1). On April 29, 1998, Graham-Humphreys’ contention is misconceived. Because a Title

the lower court7sustained that motion, and dismissed the case VII plaintiff has a manifest common sense obligation to exercise ordinary

with prejudice. On May 5, 1998, the plaintiff moved, under diligence in prosecuting his or her claim, even in the absence of an

explicit official directive, sister circuits have resolved that a Title VII

claimant has constructive notice of his or her right to litigate on the day

that the post office has delivered the RTS letter to his or her correct

5 address, even though the claimant had not actually received that writing

The plaintiff retained McLean on December 27, 1996, three days

prior to the hearing. until a later date. See Million v. Frank, 47 F.3d 385, 387-88 (10th Cir.

1995), which concluded that the limitations period began to accrue upon

6 the plaintiff’s wife’s acceptance of his certified EEOC notification at his

On January 17, 1997, Brooks moved for reconsideration of that residence, even though he had not reviewed that document until six days

ruling. The trial court denied that motion on January 28, 1997. after its delivery; Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir.

7 1992), which ruled that the acceptance of delivery of an RTS notice by the

A court may grant summary judgment under Fed. R. Civ. P. 56 only plaintiff’s daughter comprised constructive receipt by the plaintiff, even

if, after construing the record evidence, and the reasonable inferences though the plaintiff did not attain actual notice of her right to sue until

which may be drawn therefrom, most favorably for the party opposing the several days later, noting that the law must preclude “a manipulable open-

motion, the proof could not support a judgment in favor of the nonmoving ended time extension which could render the statutory limitation

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, meaningless” (citation omitted); and Espinoza v. Missouri Pacific R. Co.,

587-88 (1986). “Credibility determinations, the weighing of the evidence, 754 F.2d 1247, 1248-50 (5th Cir. 1985), which directed that delivery of

and the drawing of legitimate inferences from the facts are jury functions, the RTS notice to the plaintiff’s home activated the limitations period

not those of a judge . . . . The evidence of the non-movant is to be even if the plaintiff did not actually receive that notice until some later

believed, and all justifiable inferences are to be drawn in his favor.” date because he was out of town). Accord, St. Louis v. Alverno College,

Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted). 744 F.2d 1314, 1316-17 (7th Cir. 1984); Law v. Hercules, Inc., 713 F.2d

See also Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 691, 692-93 (11th Cir. 1983) (per curiam). As developed herein, the

451, 456 (1992); Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994). same rationale supports the deposit of an attempt-to-deliver notice at the

complainant’s record address within five days of the EEOC’s mailing of

All legal conclusions by lower courts are scrutinized de novo. Grider the RTS letter as an event which triggered the accrual of the ninety-day

v. Abramson, 180 F.3d 739, 746 n.7 (6th Cir.), cert. denied, 120 S. Ct. limitations period on the fifth day after mailing, in conformity with

528 (1999); Brennan v. Township of Northville, 78 F.3d 1152, 1154, 1156 prevailing Sixth Circuit standards. Cf. Watts-Means v. Prince George’s

(6th Cir. 1996). Hence, a lower court's summary judgment award is Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993).

12 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 9

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her at the nearby postal station. Graham-Humphreys has Fed. R. Civ. P. 59(e) & 60(b), to alter or amend the final

conceded that she knew, or suspected, that the certified judgment. On July 8, 1998, the district judge overruled those

delivery contained her RTS notice. See generally Friedman motions. The plaintiff noticed a timely appeal from the

v. Estate of Presser, 929 F.2d 1151 (6th Cir. 1991), which judgment. The defendant instituted a seasonable cross-

posited that “[a]ny fact that should excite the plaintiff’s appeal, by which it contested (1) the trial forum’s January 13,

suspicion is the same as actual knowledge[.]” Id. at 1160 1997 denial of its motions (A) to quash the defective

(citations and brackets omitted). summons and (B) to dismiss the case for insufficient process,

and (2) the initial court’s associated allowance of the

Because Graham-Humphreys “received” imputed notice of retroactive curative amendment of the summons.

her right to litigate during the five-day mailing period

(March 8 through March 13, 1996), the ninety-day limitations This reviewing court shall initially consider the district

countdown began on March 13, 1996, the fifth day following court’s summary dismissal of the action as initiated outside

the EEOC’s March 7, 1996 mailing. The Sixth Circuit has limitations.8 The Civil Rights Act of 1964, Title VII, posits

ruled that the EEOC’s misdirection of a certified RTS notice that, if the EEOC has elected not to prosecute a citizen’s

caused by the claimant’s failure to furnish the EEOC with an employment discrimination charge, it shall notify the

accurate address did not stay opening the ninety-day filing petitioner of his or her right to initiate a private enforcement

window five days following mailing, even though the post lawsuit. “ [W]ithin ninety days after the giving of such notice

office ultimately returned the RTS letter to the EEOC a civil action may be brought against the respondent named in

undelivered. Banks, 855 F.2d at 326-27. This circuit has the charge.” 42 U.S.C. § 2000e-5(f)(1) (emphases added).

remarked that it has not been “inclined toward an inflexible

rule requiring actual receipt of notice by a claimant before the The federal courts have strictly enforced Title VII’s ninety-

time period begins to run,” and has resolved that a claimant day statutory limit. In Baldwin County Welcome Center v.

who neglected to inform the EEOC of his change of address

had constructively received his RTS notification because it

had been certified by mail to his record address, despite his

denial of receipt of that mailing, allegedly because his nine- subject to plenary review, because the sufficiency of the record evidence,

year-old nephew, who accepted the certified letter at the construed most favorably for the opponent of summary judgment, poses

a question of law. See Doe v. Claiborne County, 103 F.3d 495, 505 (6th

claimant’s record address, misplaced it.11 Hunter, 790 Cir. 1996). The touchstone is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Booker v. Brown &

11 Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting

Graham-Humphreys has argued that the absence of an EEOC

regulation, and/or language on the EEOC charge forms, which explicitly Anderson, 477 U.S. at 251-52).

instructs the complaining party to promptly retrieve any certified envelope 8

which he or she suspects, or reasonably should suspect, might contain an If the undisputed facts, and/or the record evidence viewed most

RTS notice, materially distinguished her case from one in which a favorably for the plaintiff, demonstrates as a matter of law that the

plaintiff had failed to supply the EEOC with his or her proper address. plaintiff commenced her lawsuit beyond the ambit of limitations, in the

The EEOC Regulations dictate that “[t]he person claiming to be aggrieved absence of a waiver, estoppel, or compelling justification or excuse which

has the responsibility to provide the Commission with notice of any tolls limitations (developed further below), a summary dismissal of the

change in address and with notice of any prolonged absence from that complaint should be sustained. See Zipes v. Trans World Airlines, Inc.,

current address so that he or she can be located when necessary during the 455 U.S. 385, 393-94 (1982); Mounts v. Grand Trunk Western R.R., 198

Commission’s consideration of the charge.” 29 C.F.R. § 1601.7(b). In F.3d 578, 580 (6th Cir. 2000) .

10 Graham-Humphreys v. Memphis Nos. 98-5971/6098 Nos. 98-5971/6098 Graham-Humphreys v. Memphis 11

Brooks Museum of Art Brooks Museum of Art

Brown, 466 U.S. 147 (1984) (per curiam), an opinion that the RTS notice to her record residential address), which

dismissed a pro se Title VII complaint filed outside of precluded her June 21, 1996 court action, unless she could

limitations, the Supreme Court stated that “[p]rocedural prove that she did not “receive” the EEOC’s March 7, 1996

requirements established by Congress for gaining access to alert within the five-day mailing period.10

the federal courts are not to be disregarded by courts out of a

vague sympathy for particular litigants.” Id. at 152. In As developed above, the plaintiff took personal possession

Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court of her RTS notification at the EEOC’s area office on

further explained that “experience teaches that strict March 28, 1996. Accordingly, she has contended that she

adherence to the procedural requirements specified by the “received” her RTS authorization on that date; thus her

legislature is the best guarantee of evenhanded administration statutory filing period purportedly commenced to expire on

of the law.” Id. at 826. See also Zipes v. Trans World March 29, 1996. See Fed. R. Civ. P. 6(a). Consequently,

Airlines, Inc., 455 U.S. 385, 398 (1982). because her ninety-day term allegedly did not expire until

June 26, 1996, she argues that her complaint filed on June 21,

In the instant case, the EEOC issued, and posted, an RTS 1996 complaint was within rule.

notice to Graham-Humphreys on March 7, 1996. The Sixth

Circuit has resolved that notice is given, and hence the ninety- Nevertheless, even if the plaintiff did not physically attain

day limitations term begins running, on the fifth day actual “receipt” of her RTS notice until March 28, 1996, she

following the EEOC’s mailing of an RTS notification to the had constructively “received” her RTS notification on

claimant’s record residential address, by virtue of a March 8, 1996, the day that the letter carrier deposited the

presumption of actual delivery and receipt within that five- first of two official notifications at the plaintiff’s last known

day duration,9 unless the plaintiff rebuts that presumption official address which advised that a certified letter awaited

with proof that he or she did not receive notification within

that period. Banks v. Rockwell Intern. N. Am. Aircraft

Operations, 855 F.2d 324, 325-27 (6th Cir. 1988); Cook v. 10

Because, as evolved herein, this circuit has previously mandated

Providence Hospital, 820 F.2d 176, 179 & n.3 (6th Cir. that, ordinarily, an EEOC notice is “given” five days following its mailing

1987); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, to the claimant’s address of record, which rule is founded upon the

474-75 (6th Cir. 1986). See 29 C.F.R. § 1601.28(e) (“The rebuttable presumption that said notice was “received” by the aggrieved

notice of right to sue shall include (1) Authorization to the party within that period, EEOC Regulation § 1601.28(e)’s directive that

aggrieved person to bring a civil action under title VII . . . ninety-day limitations is activated upon the claimant’s receipt of the RTS

within 90 days from receipt of such authorization.”) notice is consistent with 42 U.S.C. § 2000e-5(f)(1)’s pronouncement that

the ninety-day clock begins ticking upon the EEOC’s giving of such

(emphasis added). Accordingly, Graham-Humphreys’ notice. In most circumstances, the nuance between the EEOC’s

litigation initiation window closed on Monday, June 10, 1996 “giving,”and the complainant’s “receiving,” an RTS authorization will be

(ninety-five days after the EEOC’s March 7, 1996 mailing of immaterial, because most notices will be “given” and

“received”simultaneously, or at least within the legally recognized

extension of time to accommodate mailing. See McDonnell Douglas

9 Corp. v. Green, 411 U.S. 792, 798 (1973), wherein the Supreme Court

The Sixth Circuit allots two days for postal delivery of a RTS notice remarked that a Title VII civil action predicate is satisfied upon the

beyond the three day period allowed by Federal Rule of Civil Procedure plaintiff “receiving and [timely] acting upon the Commission’s statutory

6(e). See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 notice of the right to sue;” the Court apparently presumed that the

& n.1 (1984) (presuming that an RTS notice was received by the plaintiff “receipt” of notice would ordinarily coincide with, or proximately follow,

within three days of posting) (citing Fed. R. Civ. P. 6(e)). the “giving” of notice. (Emphasis added).