625 F. App'x 690
5th Cir.2015Background
- Gamel, a machinist, was employed by Grant Prideco, terminated in Jan 2012; he alleged race-based harassment and disability discrimination after a physician diagnosed a sleep disorder and advised schedule accommodations.
- Gamel filed an EEOC charge on Feb 7, 2012 alleging race, disability discrimination, and retaliation; the EEOC dismissed and issued a right-to-sue letter dated May 20, 2014.
- EEOC records and an affidavit from the EEOC mailer indicate the right-to-sue letter was mailed May 20, 2014; Gamel swore he did not receive any right-to-sue letter until late June 2014 and produced a June 26, 2014 postmarked envelope and an EEOC email offering to re-mail the letter.
- Gamel filed suit on Sept 12, 2014 — beyond ninety days from the EEOC mailing date if the May mailing is presumed received.
- The district court considered the EEOC affidavit, log, and Gamel’s declaration (thus converting a Rule 12(b)(6) motion to summary judgment) and held the ninety-day period began May 23, 2014 (three days after the May 20 mailing), dismissing the suit as untimely.
- The Fifth Circuit affirmed, applying the mailbox presumption of receipt, finding Grant Prideco’s evidence sufficient to create the presumption and Gamel’s sworn denial and postmarked copy insufficient to rebut it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gamel timely filed within 90 days of EEOC notice | Gamel: he did not receive the right-to-sue letter until June 26, 2014, so his Sept 12 suit was timely | Prideco: EEOC mailed the letter May 20, 2014; mailbox rule presumes receipt 3 days later, so suit was late | Court: Presumed receipt on May 23, 2014; Gamel failed to rebut; suit untimely — affirmed |
| Whether the district court’s consideration of extra-pleading evidence required treating the motion as summary judgment | Gamel: district court should have treated as summary judgment and applied summary-judgment safeguards | Prideco: court properly considered affidavits and records; parties had opportunity to present evidence | Court: converted to summary judgment review was appropriate; Rule 56 standard applies |
| Applicability of mailbox rule / presumption of receipt | Gamel: his sworn declaration and postmarked June envelope show nonreceipt in May | Prideco: affidavit and EEOC log/letter stamping show mailing; presumption applies | Court: mailbox rule applies; three-day presumption of receipt; May mailing presumed received May 23 |
| Whether Gamel’s evidence rebuts the presumption of receipt | Gamel: sworn affidavit + June postmark + EEOC email suffice to create a genuine issue | Prideco: plaintiff’s bare assertion insufficient; circumstantial evidence showed mailing | Court: bare assertion and June copy do not rebut presumption; Ekong and Custer control; presumption stands |
Key Cases Cited
- Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990) (treating a Rule 12(b)(6) motion as summary judgment when court considered matters outside the pleadings)
- Test Masters Educ. Servs., Inc. v. State Farm Lloyds, 791 F.3d 561 (5th Cir. 2015) (standard of appellate review for summary judgment)
- Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010) (construe facts and inferences favorably to nonmovant)
- McFaul v. Valenzuela, 684 F.3d 564 (5th Cir. 2012) (unsupported assertions or scintilla of evidence cannot defeat summary judgment)
- Dao v. Auchan Hypermarket, 96 F.3d 787 (5th Cir. 1996) (exhaustion of administrative remedies before filing Title VII suit)
- Duron v. Albertson's LLC, 560 F.3d 288 (5th Cir. 2009) (90-day filing rule from EEOC right-to-sue letter governs timing)
- Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) (statutory 90-day period begins when right-to-sue letter is received)
- United States v. Ekong, 518 F.3d 285 (5th Cir. 2008) (mailbox rule presumption of receipt; bare denial of receipt insufficient to rebut)
- Custer v. Murphy Oil USA, Inc., 503 F.3d 415 (5th Cir. 2007) (mailing may be proved circumstantially; plaintiff’s bare assertion of nonreceipt insufficient)
- Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d 263 (5th Cir. 2015) (when date of receipt unknown, presumption that notice received in three days)
- Morgan v. Potter, 489 F.3d 195 (5th Cir. 2007) (presumption can be overcome with evidence of nonreceipt)
- Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956 (9th Cir. 2001) (sworn statement is credible evidence of mailing for mailbox rule)