In cases under the federal employment discrimination statutes that require filing with the EEOC (Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act), the claimant will eventually receive from the EEOC a right-to-sue letter, and then the claimant has ninety days after receipt of the right-to-sue letter to file in court. See 29 U.S.C. § 626(e), 42 U.S.C. § 2000e-5(f).
In Miller v. Bristol Compressors, Chief Judge Jones of the W.D. Va. found that the plaintiff filed sued on the 91st day, and granted the defendant's motion to dismiss.
The facts were these: (1) the EEOC mailed the right-to-sue on May 31, (2) the complaint alleged on its face that the right-to-sue was received "on or about June 3," (3) in a late-filed affidavit, the plaintiff said that he was on vacation when the letter arrived in his mailbox and first saw it on June 5 (a Sunday), (4) suit was filed electronically on September 2 and the filing fee was paid on September 6.
Chief Judge Jones ruled as follows: (1) a motion to dismiss may be the proper means of asserting the statute of limitations, where the untimeliness is shown on the face of the complaint (2) in applying the 90-day limitations period, the Fourth Circuit does not follow an "actual receipt" rule, because of the potential for abuse, (3) in determining the date of receipt, the Court can apply the presumption underlying Rule 6(e), that the time from mailing to receipt is three days, (4) the Court did not need to decide whether the filing date was September 6 (the Tuesday after Labor Day, when the filing fee was paid) as opposed to September 2 (the Friday before Labor Day, when the complaint was e-filed), (5) plaintiff's motion for extra time to file his response was denied, because no excusible neglect or no particular reason at all was shown; (6) even with the affidavit, the Court would find that the date of receipt was June 3 and not June 5, applying the three-day rule, and not the date when the plaintiff got back from vacation, (7) September 2, when suit was e-filed, was the 91st day after June 3.
On the application of the three-day presumption, there is some diversity of opinion among the other circuits. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) ("When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed."); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (deciding on five days, citing 20 CFR § 422.210(c), the five-day presumption for receipt of right-to-sue notices in Social Security cases). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C. Cir. 1990) (explaining EEOC interprets "receipt ... of final decision" to include "a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision") (citing 44 Fed. Reg. 34,494 (1979)).
The Fourth Circuit, in unpublished opinions, has recognized the three day presumption. See Nguyen v. Inova Alexandria Hosp., 1999 WL 556446, *3 (4th Cir.) ("If the date is unknown, however, it is presumed that service by regular mail is received within three days pursuant to Rule 6(e) of the Federal Rules."); Dixon v. Digital Equipment Corp., 1992 WL 245867, *1(4th Cir.) ("Rule 6(e) only provides a presumption regarding when notice was received. . . . Title VII claimants may only claim this presumption if the date of receipt of the right to sue letter is disputed."); Ish v. Arlington County, 1990 WL 180127, *1 (4th Cir.) ("We adopt the reconciliation of these positions suggested in Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 n.7 (E.D. Va. 1989), which held that although Rule 6(e) does not automatically provide a three-day extension to § 2000e-5(f)(1), it does provide a presumption of receipt three days after mailing if the parties dispute the date of receipt.").