Ortega v. Alamo Commty Clge

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50471
Summary Calendar
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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
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Conrad Ortega appeals a summary
judgment in favor of Alamo Community
College District (“Alamo”) disposing of his
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determined that this opinion should not be
published and is not precedent except under the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.

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

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3
addresses and delivers mail to a post office.4
The presumption is useful where, as here, the
parties dispute the date of receipt. Although
the presumption may be rebutted, Ortega has
done nothing to reply other than to offer his
own statement that he did not receive the
letter. The presumption of delivered mail
cannot be rebutted simply by denying receipt;
the very purpose of a presumption would be
undercut if all that were necessary to defeat a
presumed fact were a party’s uncorroborated
statement.
The length of the delivered mail
presumption is not definite. In dictum, the
Supreme Court has suggested using the
general three-day limit in FED. R. CIV. P. 6(e).
See Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 148 n.1 (1984). Some courts
have adopted a period as long as seven days.
See, e.g., Roush v. Kartridge Pak, Inc., 838 F.
Supp 1328, 1335 (S.D. Iowa. 1993). We need
not decide on a specific length, because the
twenty-four days by which Ortega’s filing
exceeded the last day of the ninety-day limit is
obviously beyond any reasonable time for a
letter to be delivered.
The limitations period for title VII is
couched in terms of the “giving of such notice”
to the plaintiff. 42 U.S.C. §2000e-5(f)(1).
Thus, the plaintiff’s actual, physical receipt of
the notice is not the relevant trigger for the ini-
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);
Espinoza, 754 F.2d at 1249. Even if we were
to employ a seven-day presumption, Ortega is
a full seventeen days late.
B.
Because the ninety-day limit is not
jurisdictional, it is subject to equitable tolling.
See Espinoza, 754 F.2d at 1250. If Ortega
had offered a compelling reason for us to toll
limitations, the ninety-day clock would not run
continuously from late September. Ortega has
offered no such argument. There is,
accordingly, no tolling in this case.
The ninety-day limit for bringing title VII
actions serves an important policy judgment by
Congress that courts not entertain suits filed
after that time, absent extraordinary
circumstances. The presumption of delivery of
mail exists to address the very problem in this
caseSSa dispute between parties as to when a
letter arrived. Here, the letter did in fact arrive
at Ortega’s address some time between
September 17 and October 19. Ortega offers
no explanation why the letter was so slow to
arrive, or why it may have been at his address
but not actually “received” by him for so many
days.
On these facts, we are unwilling to use Or-
tega’s self-serving statement to overcome the
presumption. Accordingly, the summary judg-
ment is AFFIRMED.
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).

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