Martin v. Alamo Community College District

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

December 30, 2003

FOR THE FIFTH CIRCUIT

_____________________ Charles R. Fulbruge III

Clerk

No. 02-51272

_____________________

ROBIN MARTIN,

Plaintiff - Appellant-Cross-Appellee,

versus

ALAMO COMMUNITY COLLEGE DISTRICT,

Defendant - Appellee-Cross-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Robin Martin (“Martin”) appeals the district court’s dismissal

of her claim as time barred. Alamo Community College District

(“Alamo”) cross-appeals the district court’s denial of Eleventh

Amendment immunity and attorney’s fees. We REVERSE the district

court’s dismissal of Martin’s claim as time barred and DISMISS

Alamo’s appeal of the district court’s denial of its claim of

Eleventh Amendment immunity.

I

The procedural facts in this case are slightly offbeat. This

appeal arises from the second lawsuit filed by Martin. The first

lawsuit arose -- as indeed does this second lawsuit -- in 1999,

from Martin’s charge with the Equal Employment Opportunity

Commission (“EEOC”) against Alamo, her employer. Her complaint

stated claims for failure to accommodate her disability, for

harassment, and for retaliation. The EEOC investigated and, after

deciding not to file suit on Martin’s behalf, it issued Martin a

“Notice of Right to Sue” on September 17, 1999, allowing 90 days fo

file suit. Accordingly, Martin filed her first suit (“Martin I”)

on December 17, 1999. On the same day, however, the EEOC mailed a

second letter to Martin, which informed her that it had re-opened

its investigation and thus had rescinded the original notice of

right to sue. Based on this letter, Martin took no steps to serve

Alamo. She did not dismiss her complaint, however.

Five months later, Alamo still had not been served with the

complaint. Consequently, the district court ordered Martin to show

cause why she had not served Alamo. Martin responded that she had

not served Alamo based upon her belief that she did not have the

right to do so until she received another notice of right to sue

from the EEOC. The district court dismissed Martin’s complaint

without prejudice on June 22, 2000.

On August 18, 2000, the United States Department of Justice

(“DOJ”) decided not to sue on Martin’s behalf and issued another

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right to sue letter.1 Martin then re-filed the instant suit

(“Martin II”) against Alamo on November 16, 2000.

On November 27, 2001, Alamo filed a Motion to Dismiss for Want

of Jurisdiction or, in the Alternative, Motion for Summary

Judgment. On August 9, 2002, the district court denied Alamo’s

motion, ruling that Alamo was not entitled to Eleventh Amendment

immunity.

Finally, on August 21, 2002, the district court granted

Alamo’s motion for summary judgment on the ground that Martin’s

claim was time barred. Martin filed a motion to reconsider, which

was denied on November 1, 2002, and on November 19, 2002, Martin

filed her notice of appeal. Alamo also cross-appealed and filed a

notice of appeal with this Court on December 10, 2002.2

1

This is the first letter issued by the DOJ. The EEOC had

forwarded the complaint to the DOJ which then decided not to sue.

“[I]t is the Justice Department that may sue state and local

governments” under the Americans with Disabilities Act. 2 BARBARA

LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 1532 (3d ed. 1996).

2

Alamo mailed its notice of cross-appeal to the Clerk of the

Fifth Circuit Court of Appeals, Mr. Charles Fulbruge, III, on

December 6, 2002 and this letter was received on December 10, 2002.

Alamo then properly mailed notice of cross-appeal to the district

court on December 10, 2002 which was received on December 11, 2002.

“If a notice of appeal in either a civil or a criminal case is

mistakenly filed in the court of appeals, the clerk of that court

must note on the notice the date when it was received and send it

to the district clerk. The notice is then considered filed in the

district court on the date so noted.” FED. R. APP. P. 4(d). Thus,

because Alamo’s notice was stamped by the Fifth Circuit Court of

Appeals clerk as being received on December 10, the notice will be

considered filed as of this date.

3

Martin challenges the district court’s dismissal of her claim

as time barred. Alamo, in its cross-appeal, challenges the

district court’s denial of its motion to dismiss based on Eleventh

Amendment immunity.

II

A

As all who are familiar with this field of law know, if the

EEOC determines that there is no reasonable cause to believe that

an unlawful employment practice has occurred, the EEOC issues a

letter informing the aggrieved party that it has the right to sue

in federal district court (“right to sue letter”) within 90 days of

the receipt of the letter. 29 C.F.R. § 1601.19(a). This letter is

prerequisite to a lawsuit.

The EEOC mailed Martin’s right to sue letter on September 17,

1999. We will presume that Martin received this letter three days

later, on September 20, 1999. See Taylor v. Books A Million, 296

F.3d 376, 379-80 (5th Cir. 2002); see also Baldwin County Welcome

Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (citing FED. R. CIV. P.

6(e)). Thus, since Martin filed her suit on December 17, 1999 --

88 days later -- her first lawsuit was timely. The dispute in the

case arises from the fact that on the same day -- December 17, 1999

-- the EEOC mailed its Notice of Intent To Reconsider to Martin.

Title 29 of the Code of Federal Regulations § 1601.19(b),

allows the EEOC to reconsider its determination. If it decides to

reconsider, the EEOC is required to notify the parties of its

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intent to reconsider. Crucial to this case, the regulation further

provides:

If such notice of intent to reconsider is

issued within 90 days of receipt of the final

no cause determination, and the person

claiming to be aggrieved or the person on

whose behalf a charge was filed has not filed

suit . . . the notice of intent to reconsider

shall vacate the letter of determination and

shall revoke the charging party's right to

bring suit within 90 days. If the 90 day suit

period has expired, [or] the charging party

has filed suit . . . the notice of intent to

reconsider shall vacate the letter of

determination, but shall not revoke the

charging party's right to sue in 90 days.

Id. (emphasis added).

Thus, Martin's right to sue under the first letter remained in

effect if Martin had filed suit at the time the notice of

reconsideration was issued.

The dilemma presented by this lawsuit and this appeal arises,

as we have noted, because the filing of the complaint and the

issuance of the notice to reconsider occurred on the same day. The

district court held, however, that although Martin filed her suit

on the same day that the notice to reconsider was mailed, the

notice to reconsider did not become effective until receipt of the

notice, presumed to be three days later, on December 20, 1999;

because Martin filed her complaint on December 17, 1999, her

lawsuit preceded the notice to reconsider. The notice had,

therefore, not revoked her first right to sue. It followed that

the second right to sue letter of August 18, 2000 was unauthorized

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and thus invalid -- meaning that no lawsuit could be predicated on

this second letter. The district court further reasoned that the

legally correct 90-day limitations period, which had begun to

accrue when the first right to sue letter was received on September

17, 1999, had expired long before Martin re-filed this lawsuit on

November 16, 2000. The district court then concluded that this

suit was time barred and granted Alamo’s motion for summary

judgment.

B

We review summary judgments de novo, applying the same

standards as the district court. Performance Autoplex II Ltd. v.

Mid-Continent Casualty Co., 322 F.3d 847, 853 (5th Cir. 2003). A

grant of summary judgment is proper when there is no genuine issue

of material fact such that the moving party is entitled to judgment

as a matter of law. Id.; FED. R. CIV. P. 56(c). In evaluating the

propriety of a defendant’s motion for summary judgment based upon

the statute of limitations, the court must draw all reasonable

inferences in favor of the non-moving party. Chaplin v.

NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986));

Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.

2001). “To obtain summary judgment, ‘if the movant bears the

burden of proof on an issue . . . because . . . as a defendant he

is asserting an affirmative defense, he must establish beyond

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peradventure all of the essential elements of the . . . defense to

warrant judgment in his favor.’" Chaplin, 307 F.3d at 372 (quoting

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986))

(emphasis supplied).

The question presented in this appeal focuses on the

interpretation of the term “issued” as used in 29 C.F.R. §

1601.19(b). Specifically, Martin contends that the date on which

the notice of intent to reconsider “issued” is not the date on

which the notice was presumed to be received -- December 20, 1999

-- as held by the district court. Instead, Martin argues the

notice was “issued” on the day it was mailed from the EEOC’s office

-- December 17, 1999.

The term “issued” is not defined by the applicable

regulations. Thus, to resolve this case we must ascertain its

definition.

When the applicable statute or regulation has left a word

undefined, “the most basic principle of statutory construction”

requires us to give that word its ordinary meaning. Thompson v.

Goetzmann, 337 F.3d 489, 497 (5th Cir. 2003). This meaning must be

determined “from the context in which [the words] are used.” Id.

(quoting United States v. Lyckman, 235 F.3d 234, 238 (5th Cir.

2001)). “Dictionaries are a principal source for ascertaining the

ordinary meaning of statutory language[.]” Id. at 498 n.20 (citing

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Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,

515 U.S. 687 (1995)).

Black’s Law Dictionary defines the term “issue” as “1. To

accrue 2. To be put forth officially 3. To send out or distribute

officially.” BLACK’S LAW DICTIONARY 836 (7th ed. 1999) (examples

omitted). Similarly, the American Heritage Dictionary’s definition

of “issued” includes “4. To be circulated or published.” THE

AMERICAN HERITAGE DICTIONARY 695 (New Coll. Ed. 1981). Contrary to the

district court’s interpretation of the term, none of these

definitions imply the mere passive act of receipt by the addressee.

Instead, both of these definitions require an act of “putting

forth”, “distributing”, “circulating” or “publishing” on the part

of the issuer.

We hold, based on the ordinary meaning of the word “issued” in

29 C.F.R. § 1601.19(b), that circulation or distribution of the

Notice of Intent To Reconsider by the EEOC is required. Thus, the

date that the notice was “issued” in this case is the date on which

the notice was deposited in the mail by the EEOC.

The district court therefore erred in holding that the notice

to reconsider was issued on December 20, 1999. The letter was

postmarked December 17. This is the date that the letter was put

forth, distributed, circulated, and published, that is, “issued.”

Thus, Martin filed her suit on the same day that the EEOC revoked

her right to sue.

8

So, where does that leave us if the notice and the complaint

are filed simultaneously? It is clear that Alamo moved for summary

judgment: Alamo had the burden to establish that there was no

material issue of fact on its affirmative defense. Ebbert v.

DaimlerChrysler Corp., 319 F.3d 103, 108 (3d Cir. 2003). Thus,

Alamo had to establish that the applicable 90-day period within

which to file suit had expired when, on November 16, 2000, Martin

filed the complaint before us; it could do so only by showing that

the August 18 -- or second -- right to sue letter was invalid; to

establish this point Alamo had to show that the first complaint was

filed before the notice of reconsideration (revoking Martin’s right

to sue) was issued. Alamo has failed to carry this burden. We

hold that, under 29 C.F.R. § 1601.19(b), when the notice to

reconsider is issued on the same day that the complaint is filed,

the issuance and filing are simultaneous (irrespective of the hours

and minutes) and, consequently, the complaint has not been filed

before the issuance of the notice.3

Because Martin filed the complaint before us within 90 days of

her receipt of a valid right to sue letter -- the second letter --

3

Because some offices register the hour and minute of pleading

receipts and others do not, and because mail is deposited at

different times during the day, the rule is more nearly uniform

and more easily manageable when time is calculated by the day.

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her suit was timely. We therefore REVERSE and vacate the district

court’s judgment to the contrary.4

III

Alamo cross-appeals the district court’s denial of its motion

to dismiss on grounds of Alamo’s Eleventh Amendment immunity.

Martin argues that we are precluded from considering the merits of

this issue because Alamo did not file a timely notice of appeal.

We need not decide whether Alamo’s notice of appeal was timely

because Alamo inadequately briefed the issue and, thus, abandoned

its Eleventh Amendment arguments. Southwestern Bell Tel. Co. v.

City of El Paso, 243 F.3d 936, 940 (5th Cir. 2001) (dismissing

appeal as abandoned because the Appellant failed to challenge the

district court’s application of the applicable test for Eleventh

Amendment immunity); Dardar v. Lafourche Realty Co., 985 F.2d 824,

831 (5th Cir. 1993); L & A Contracting Co. v. Southern Concrete

Servs., 17 F.3d 106, 113 (5th Cir. 1994)(holding appeal to be

abandoned because appellant cited no authority in a one-page

argument); FED. R. APP. P. 28(a)(9)(A) (requiring argument to

contain “appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on which the

appellant relies”). The appeal on this issue is DISMISSED.5

4

Based upon our disposition of this issue, we need not

consider Martin’s equitable tolling argument.

5

Alamo requests attorney’s fees in this appeal. In the light

of this opinion it is clearly not entitled to attorney’s fees at

this juncture of the case; its request is therefore denied without

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IV

Based on the reasons stated above, we REVERSE and VACATE the

district court’s dismissal of the case as time barred. We DISMISS

Alamo’s appeal of the district court’s denial of its motion to

dismiss on Eleventh Amendment immunity grounds. Finally, we DENY

Alamo’s request for fees and costs. The case is REMANDED to the

district court for further proceedings not inconsistent with this

opinion.

prejudice.

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