Ortega v. Alamo Commty Clge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-50471 Summary Calendar _______________

CONRAD A. ORTEGA,

Plaintiff-Appellant,

VERSUS

ALAMO COMMUNITY COLLEGE DISTRICT,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Western District of Texas (SA-00-CV-25) _________________________ December 6, 2001

Before JONES, SMITH, and Conrad Ortega appeals a summary EMILIO M. GARZA, Circuit Judges. judgment in favor of Alamo Community College District (“Alamo”) disposing of his PER CURIAM:* title VII sex discrimination claim. Finding no error, we affirm.

* I. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the * limited circumstances set forth in 5TH CIR.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. (...continued) (continued...) 47.5.4.

Ortega was employed by Alamo as a district court granted summary judgment for patrolman and later a corporal. His duties Alamo on the ground that Ortega had failed to involved security detail and some supervisory establish a prima facie case. Specifically, the work when more senior staff was absent. court found Ortega had not shown he was Ortega worked a second job on bike patrol for treat ed differently from a female employee the VIA Metropolitan Transit System who had engaged in nearly identical conduct. (“VIA”). One day, Ortega did not report to work for III. Alamo. He explained he had car trouble, but, Title VII requires a complainant to sue after fixing the problem, he reported to his job within ninety days of receiving a right to sue with VIA instead of to Alamo. He worked his letter. 42 U.S.C. § 2000e-5(f)(1). Although shift for VIA with officer Cliff Morgan. this requirement is not jurisdictional,2 failure to During their patrol, Ortega and Morgan satisfy it is ground for dismissal, absent some chanced upon officer Arriaga, who worked for reason to toll the limitations period.3 Alamo. Ortega and Morgan followed Arriaga to Alamo’s headquarters. The district court declined to address limitations and granted summary judgment on Arriaga used his key to open the building, other grounds. Although the limitations ques- and all three went inside, where Morgan used tion is not jurisdictional, we elect to decide the one of the computers to check stock prices case on that ground instead of reaching the and view pornographic images. All three con- merits. sumed snacks and drinks while at the workstation, then left and returned to their A. jobs. It is undisputed that Ortega failed to sue within ninety days. His only explanation is The following Monday, the office worker that he did not receive the right to sue letter whose computer had been used arrived to find until October 19. The only evidence snack refuse on her desk. Upon checking her supporting this claim is his own affidavit computer, she discovered some of the testimony. pornographic images viewed by some or all of the men. A resulting investigation by the There is a well-settled presumption Texas Department of Public Safety led to operating in favor of a party who properly interviews with all three officers, whereupon Ortega was terminated from his job with Alamo on recommendation of the chief of the campus police department. 2 See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (time for filing with EEOC II. not jurisdictional); Espinoza v. Mo. Pac. R.R., 754 Ortega filed a complaint with the Equal F.2d 1247, 1248 n.1 (5th Cir. 1985). Employment Opportunity Commission (“EEOC”), which sent him a right-to-sue letter 3 See, e.g., St. Louis v. Tex. Worker’s on September 17, 1999. He sued Alamo for Compensation Comm’n, 65 F.3d 43, 47 (5th Cir. sex discrimination on January 10, 2000. The 1995) (case brought under Age Discrimination in Employment Act).

addresses and delivers mail to a post office.4 Espinoza, 754 F.2d at 1249. Even if we were The presumption is useful where, as here, the to employ a seven-day presumption, Ortega is parties dispute the date of receipt. Although a full seventeen days late. the presumption may be rebutted, Ortega has done nothing to reply other than to offer his B. own statement that he did not receive the Because the ninety-day limit is not letter. The presumption of delivered mail jurisdictional, it is subject to equitable tolling. cannot be rebutted simply by denying receipt; See Espinoza, 754 F.2d at 1250. If Ortega the very purpose of a presumption would be had offered a compelling reason for us to toll undercut if all that were necessary to defeat a limitations, the ninety-day clock would not run presumed fact were a party’s uncorroborated continuously from late September. Ortega has statement. offered no such argument. There is, accordingly, no tolling in this case. The length of the delivered mail presumption is not definite. In dictum, the The ninety-day limit for bringing title VII Supreme Court has suggested using the actions serves an important policy judgment by general three-day limit in FED. R. CIV. P. 6(e). Congress that courts not entertain suits filed See Baldwin County Welcome Ctr. v. Brown, after that time, absent extraordinary 466 U.S. 147, 148 n.1 (1984). Some courts circumstances. The presumption of delivery of have adopted a period as long as seven days. mail exists to address the very problem in this See, e.g., Roush v. Kartridge Pak, Inc., 838 F. caseSSa dispute between parties as to when a Supp 1328, 1335 (S.D. Iowa. 1993). We need letter arrived. Here, the letter did in fact arrive not decide on a specific length, because the at Ortega’s address some time between twenty-four days by which Ortega’s filing September 17 and October 19. Ortega offers exceeded the last day of the ninety-day limit is no explanation why the letter was so slow to obviously beyond any reasonable time for a arrive, or why it may have been at his address letter to be delivered. but not actually “received” by him for so many days. The limitations period for title VII is couched in terms of the “giving of such notice” On these facts, we are unwilling to use Or- to the plaintiff. 42 U.S.C. §2000e-5(f)(1). tega’s self-serving statement to overcome the Thus, the plaintiff’s actual, physical receipt of presumption. Accordingly, the summary judg- the notice is not the relevant trigger for the ini- ment is AFFIRMED. tiation of the ninety-day window; instead, the appropriate trigger is the delivery of the notice to the address the plaintiff supplied to the EEOC. See Ringgold v. Nat’l Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986);

4 See Hagner v. United States, 285 U.S. 427, 430 (1932); Rosenthal v. Walker, 111 U.S. 185, 193 (1884); Beck v. Sommerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989).