Lydell C. Smith v.  J. B. Hunt Transport, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 LYDELL C. SMITH,
Plaintiff-Appellant,
v. No. 01-2457 
J. B. HUNT TRANSPORT,
INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-01-1729-MJG)
Submitted: September 10, 2002
Decided: October 9, 2002
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
C. William Michaels, Baltimore, Maryland; Norris C. Ramsey, NOR-
RIS C. RAMSEY, P.A., Baltimore, Maryland, for Appellant. Roger
D. Meade, Traci L. Burch, LITTLER MENDELSON, P.C., Balti-
more, Maryland, for Appellee.

-- 1 of 2 --

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
On June 13, 2001, Lydell C. Smith filed this action pursuant to the
Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West
1999 & Supp. 2002). The district court dismissed his complaint, find-
ing that Smith received his notice of right to sue from the Equal
Employment Opportunity Commission (EEOC) on March 12, 2001,
and so failed to file his complaint within ninety days as required by
federal law. See 29 U.S.C.A. § 626(e) (West 1999). Smith appeals,
and we affirm.
After Smith’s former employer, J.B. Hunt Transport, Inc., moved
to dismiss Smith’s complaint on timeliness grounds and Smith filed
a reply asserting that he did not receive the right to sue letter until
March 16, 2001 and so did timely file suit, the district court set the
case in for an evidentiary hearing on this issue. No party objected to
this procedure. Rather Smith and J.B. Hunt appeared and offered evi-
dence at the hearing supporting their respective positions.
The district court carefully considered this evidence and then spe-
cifically found that Smith was not a credible witness, that Smith’s
notation on his calender that he received the notice at issue on March
16 was a "fabrication" added "after the fact in order to bolster a
story," and that the objective facts and preponderance of the evidence
demonstrated that Smith received the right to sue notice on March 12,
2001.
Ample evidence supports the district court’s determination that
Smith received the notice of right to sue on March 12, 2001; accord-
ingly, the court did not clearly err in so finding. See Mylan Laborato-
ries, Inc. v. Akzo, 2 F.3d 56, 60 (4th Cir. 1993). We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
2 SMITH v. J. B. HUNT TRANSPORT

-- 2 of 2 --