Gwendolyn T. Graham- Humphreys v. Memphis Brooks Museum of Art , Inc.

*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0122P (6th Cir.)
File Name: 00a0122p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GWENDOLYN T. GRAHAM-
HUMPHREYS,
Plaintiff-Appellant/
Cross-Appellee,
v.
M EMPHIS BROOKS M USEUM
OF ART , INC.,
Defendant-Appellee/
Cross-Appellant.
;>

1
Nos. 98-5971/6098
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 96-02639—Jon Phipps McCalla, District Judge.
Argued: September 22, 1999
Decided and Filed: April 6, 2000
Before: KRUPANSKY and NORRIS, Circuit Judges;
GWIN,* District Judge.

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2 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
_________________
COUNSEL
ARGUED: G. Hite McLean, Jr., Memphis, Tennessee, for
Appellant. Martin F. Thompson, ALLEN, SCRUGGS,
SOSSAMAN & THOMPSON, Memphis, Tennessee, for
Appellee. ON BRIEF: G. Hite McLean, Memphis,
Tennessee, for Appellant. Martin F. Thompson, Kirk A.
Caraway, ALLEN, SCRUGGS, SOSSAMAN &
THOMPSON, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. In case no. 98-5971, the
plaintiff-appellant Gwendolyn T. Graham-Humphreys
(“Graham-Humphreys”) has appealed the district court’s
summary dismissal, as barred by statutory limitations, of her
gender-based employment discrimination complaint anchored
in Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (“Title VII”). In case no. 98-6098, the
defendant-appellee Memphis Brooks Museum of Art, Inc.
(“Brooks” or “the museum”) has cross-appealed the trial
court’s rejection of its motions (1) to quash the plaintiff’s
summons for technical defects and (2) to dismiss the action
for failure to timely serve valid process; and has concordantly
challenged the trial court’s retroactive curative amendment of
the deficient summons.
On March 4, 1994, Brooks retained the plaintiff, an
unmarried woman, to serve as its Deputy Director of
Corporate Relations. In that capacity, Graham-Humphreys
was responsible for promoting corporate financial
sponsorship of the museum. While so employed and still
single, the plaintiff became pregnant. Subsequently, on
January 3, 1995, she married Anderson Humphreys. Three
days later, on January 6, 1995, Graham-Humphreys gave birth
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
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12The arguable absence of any significant prejudice to the defendant
if this court were to permit the plaintiff’s filing out of rule is immaterial,
because no other factor supports the plaintiff’s equitable tolling posture.
See Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (“although
absence of prejudice is a factor to be considered in determining whether
the doctrine of equitable tolling should apply once a factor that might
justify tolling is identified, it is not an independent basis for invoking the
doctrine.”) (brackets and ellipse omitted) (quoting Baldwin County
Welcome Center v. Brown, 466 U.S. 147, 152 (1984)).
suffered by the plaintiff were self-induced and solely the
product(s) of her own neglect, carelessness, inattentiveness,
indifference, dereliction, and/or remissness in the exercise of
minimal diligence.12 See Banks, 855 F.2d at 327
(propounding that a litigant who seeks equitable tolling “must
come with clean hands.”).
Accordingly, because the district court correctly dismissed
Graham-Humphreys’ complaint as time barred, this review
has no occasion to address the defendant museum’s alternate
argument, advanced via cross-appeal, that her complaint
should have been dismissed for insufficiency of process.
Therefore, in case no. 98-5971 (the plaintiff’s appeal), the
district court’s dismissal of the plaintiff’s complaint as barred
by limitations is AFFIRMED. Case no. 98-6098 (the
defendant’s cross-appeal) is DISMISSED AS MOOT.

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18 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
action prior to the June 10, 1996 expiration of limitations.
See Scholar v. Bell, 963 F.2d 264, 268 (9th Cir. 1992)
(denying equitable tolling because the plaintiff had 75 days
after actual receipt of her RTS notice to file a civil
complaint).
At any rate, even a pro se litigant, whether a plaintiff or a
defendant, is required to follow the law. In particular, a
willfully unrepresented plaintiff volitionally assumes the risks
and accepts the hazards which accompany self-representation.
See McNeil v. United States, 508 U.S. 106 (1993), wherein
the Supreme Court commented that “we have never suggested
that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.” Id. at 113. This circuit has remarked that
“[i]t is well-settled that ignorance of the law alone is not
sufficient to warrant equitable tolling.” Rose v. Dole, 945
F.2d 1331, 1335 (6th Cir. 1991) (per curiam). Accord,
United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999)
(reaffirming, in sustaining a criminal defendant-appellant’s
conviction, “the centuries-old maxim that ‘ignorance of the
law is no excuse’” and remarking that, in most circumstances,
“[t]o allow an ignorance of the law excuse would encourage
and reward indifference to the law.”), cert. denied, 2000 WL
189836 (U.S. Feb. 28, 2000) (No. 99-8027).
In conclusion, the plaintiff’s knowledge or suspicion that
the EEOC had issued an RTS letter which the Postal Service
attempted to deliver to her on March 8, 1998, her actual
knowledge that ninety-day limitations began running upon her
receipt of notice from the EEOC of her right to sue, her
perplexing failure to inaugurate her lawsuit within the 74 days
remaining on her limitations term following her physical
acceptance of her RTS letter, her unexcused dilatory retrieval
of that document from the post office, her listless efforts to
secure and retain a continuity of necessary professional legal
assistance, and her apparent contempt for proper court
procedures and other legal requisites, marshaled to forestall
equitable tolling, because any disadvantage(s) allegedly
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
3
to a daughter. Immediately thereafter, the plaintiff began a
company-authorized voluntary twelve-week unpaid maternity
leave of absence.
During the second week of February, 1995, while on
maternity leave, Graham-Humphreys received a telephone
call from Chuck Beegle (“Beegle”), the museum’s Chief
Operations Officer. He informed her that, because available
funding had been exhausted, her position with the museum
had been eliminated. Nonetheless, on April 3, 1995, upon the
expiration of her scheduled twelve-week absence, Graham-
Humphreys reported for work at the museum. Brooks’
Director, E.A. Carmean (“Carmean”), then personally
confirmed that her former post at the museum no longer
existed. Nevertheless, within several days of that
conversation, Beegle counseled Graham-Humphreys, via
telephone, that she should “sit tight” while the museum
resolved whether she would eventually be recalled from
“layoff” status.
On approximately April 16, 1995, Graham-Humphreys
discovered, at the front door of her residence, a copy of an
unfavorable written assessment of her job performance, which
had been executed by Carmean, purportedly on December 30,
1994. That report revealed that the plaintiff had scored only
27 quality points on a 60 point scale. The reviewer had
opined that “deficiencies [were] evident” in the plaintiff’s
judgment, initiative, reliability, perseverance, and stability;
and additionally noted her failure to recruit new commercial
donors. At no time thereafter did Brooks restore the
plaintiff’s employment.
On August 24, 1995, Graham-Humphreys instigated a
formal administrative charge of employment discrimination
against the museum before the United States Equal
Employment Opportunity Commission (“EEOC”) and the
Tennessee Human Rights Commission (“THRC”), wherein
she alleged that “I believe I have been discriminated against
because of my sex, female and pregnancy in violation of Title

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4 Graham-Humphreys v. Memphis
Brooks Museum of Art
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VII of the Civil Rights Act of 1964, as amended.” However,
the EEOC/THRC took no action on her complaint. On
February 28, 1996, the claimant requested, in writing, that the
EEOC issue her a Right-to-Sue (“RTS”) notice. 42 U.S.C.
§ 2000e-5(f)(1). The plaintiff has conceded that she expected
to receive that official document via United States mail.
Additionally, her February 28, 1996 letter to the EEOC
disclosed that her attorney, Gail Mathes, would soon request
a copy of her claim file.
In response to her request, the EEOC on March 7, 1996
generated Graham-Humphreys’ RTS memorial, and posted it,
via United States certified mail, to her residential address of
record at 4741 Mint Drive, Memphis, Tennessee 38117
(“Mint Drive”). Graham-Humphreys resided at that location
at least between February 1996 through March 1996. On
Friday, March 8, 1996, Postal Carrier Danny Stafford
unsuccessfully attempted delivery of the complainant’s RTS
letter at her Mint Drive address. The mailman then deposited,
at that residence, a form Postal Service attempt-to-deliver
notification, which stated that a certified letter addressed to
the plaintiff could be claimed at the local post office. That
postal notice related the address, telephone number, and
business hours of the nearby branch facility. Graham-
Humphreys received Stafford’s advisory notice on March 8,
1996, but she took no responsive action.
Five days later, on Wednesday, March 13, 1996, in
conformity with standard Postal Service practices, the letter
handler deposited a second, and final, notice of attempted
delivery at Mint Drive. That document explicitly cautioned
that failure to claim the certified envelope on or prior to
Saturday, March 23, 1996, would prompt its return to the
sender. Graham-Humphreys received that notification on
March 13, 1996. Ignoring that message as well, the
complainant neglected to retrieve her certified letter by the
stated March 23, 1996 deadline.
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
17
statute of limitations: 1) lack of notice of the filing
requirement; 2) lack of constructive knowledge of the
filing requirement; 3) diligence in pursuing one’s rights;
4) absence of prejudice to the defendant; and 5) the
plaintiff’s reasonableness in remaining ignorant of the
particular legal requirement.
Truitt, 148 F.3d at 648 (citation omitted).
However, the Truitt court did not indicate that its list was
comprehensive, nor that each of the five considerations would
be material in all cases. Rather, “[t]he propriety of equitable
tolling must necessarily be determined on a case-by-case
basis.” Id. (citation omitted).
The district court did not abuse its discretion by rejecting
the plaintiff’s request for equitable tolling. As developed
above, the record evidence on summary judgment review,
when construed most favorably on behalf of the plaintiff (see
note 7 above), reflected that she had constructive notice,
within the March 8 through March 13, 1996 mailing period,
that the EEOC had issued her RTS letter. Moreover, as
previously illustrated, the plaintiff’s employment obligations
did not impede her ability, in the exercise of reasonable
diligence, to promptly accept her RTS notice.
Prior to retrieving her RTS document, Graham-Humphreys
knew that she was required to commence her judicial
complaint within a finite period. Irrespective of whether the
plaintiff had the benefit of legal counsel or was proceeding
pro se, a reasonably cautious and prudent Title VII claimant
in Graham-Humphreys’ posture would, as a modest
precaution, assume that limitations began passing on or near
the earliest potential date, and would consequently initiate her
civil action within ninety days of her receipt of the postman’s
note which had apprized her of the certified letter which later
proved to be her RTS notice. The claimant had abundant time
(74 days) following the EEOC’s March 28, 1996 actual
release to her of the RTS notice in which to institute her court

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16 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
[an] erroneous legal standard.” Romstadt v. Allstate Ins. Co.,
59 F.3d 608, 615 (6th Cir. 1995) (quotations and citations
omitted).
Graham-Humphreys has protested that the lower court
abused its discretion by declining to toll limitations, because
(1) her employment commitments allegedly contributed to her
failure to timely collect her certified mail; (2) both the
EEOC’s RTS notice, and the EEOC-composed memorial of
her acceptance of that document, pronounced that the ninety-
day filing timetable commenced to accrue upon her “receipt”
of the RTS notification, which she understood to mean her
taking actual physical custody of that document; and (3) she
had purportedly acted without professional legal advice
regarding the limitations question.
The federal courts sparingly bestow equitable tolling. Irwin
v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990);
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); Brown v.
Mead Corp., 646 F.2d 1163, 1165 (6th Cir. 1981). Typically,
equitable tolling applies only when a litigant’s failure to meet
a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control. See Baldwin
County, 466 U.S. at 151 (“One who fails to act diligently
cannot invoke equitable principles to excuse that lack of
diligence.”); see also Johnson v. United States Postal Service,
64 F.3d 233, 238 (6th Cir. 1995), which directed that a
petitioner’s failure to satisfy a deadline caused by “garden
variety neglect” cannot be excused by equitable tolling.
(Citing Irwin, 498 U.S. at 96). Absent compelling equitable
considerations, a court should not extend limitations by even
a single day. Johnson v. United States Postal Service, 863
F.2d 48 (Table), 1988 WL 122962, at *3 (6th Cir. Nov. 6,
1988).
The Sixth Circuit has decreed:
We have identified five factors to consider when
determining the appropriateness of equitably tolling a
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
5
1Three days earlier, on Monday, March 25, 1996, at Graham-
Humphreys’ behest, her attorney Mathes had in writing requested the
EEOC’s Memphis office to send her all documents within the plaintiff’s
claim file. In response, the EEOC promptly forwarded the requested
documentation to Mathes, which included a reproduction of its March 7,
1996 certified RTS notice addressed to the plaintiff.
2The plaintiff has not denied that she had numerous opportunities to
take possession of her certified delivery prior to its return to the EEOC’s
Memphis office. During March 1996, the local postal depot operated
from 8:30 a.m. to 5 p.m. on weekdays and from 10 a.m. to 2 p.m. on
Saturdays. During that same period, Graham-Humphreys typically
worked from 10 a.m. to 4 p.m. on weekdays and did not work on
Saturdays. Additionally, record proof disclosed that Graham-Humphreys’
flexible schedule during March 1996 permitted her, on occasion, to begin
work later than 10 a.m., or to depart her workplace earlier than 4 p.m..
Furthermore, her immediate retrieval of the certified mailing on March 28,
1996, the same day as the EEOC’s telephonic advisory that her RTS letter
had been returned to the district headquarters, strongly implies that, if she
had so elected, she could have claimed that letter within the five day grace
period for mailing. At deposition, the plaintiff conceded that no
emergency or other impediment obstructed her ability to claim her mail
within the designated time frame.
Moreover, the plaintiff acknowledged that she knew, or at least
suspected, upon receiving the first advisory of attempted delivery on
March 8, 1996 that the certified package which awaited her contained her
RTS notice, and candidly admitted that she had no justification or excuse
for not retrieving it. She testified, “they attempted to deliver it to me.
And I don’t know why I didn’t go over there and get it.” Graham-
Humphreys also admitted that she knew that the legally-allotted time
within which she was required to commence her legal action had started
to expire prior to her personal acceptance her RTS notice at the EEOC
Accordingly, on Tuesday, March 26, 1996, the Postal
Service returned it, stamped “unclaimed,” to the issuing
EEOC office. Two days later, on Thursday, March 28, 1996,
as a courtesy, an EEOC employee alerted Graham-Humphreys
by telephone that her RTS document had been issued and
posted, but had been returned as an unclaimed certified
dispatch.1 Later that day, the plaintiff personally appeared at
the EEOC district headquarters to accept her RTS
authorization.2 Upon the EEOC’s release of that document to

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6 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
office, by avowing at deposition that “[s]omehow or another I found out
that I needed to get down there [the EEOC headquarters] before the time
deadline.”
her, Graham-Humphreys executed an acknowledgment of
receipt, which stated: “I, Gwendolyn Tabb Graham-
Humphreys received my copy of the Notice of Right to Sue
dated 3/7/96 for my charge #250952044 today in the
Memphis District Office of EEOC.” In turn, the subject RTS
letter advised, in part:
This is your NOTICE OF RIGHT TO SUE. It is issued
at your request. If you intend to sue the respondent(s)
named in your charge, YOU MUST DO SO WITHIN
NINETY (90) DAYS OF YOUR RECEIPT OF THIS
NOTICE: OTHERWISE YOUR RIGHT TO SUE IS
LOST.
(Capitalizations in original).
Between March 28, 1996 and mid-June, 1996, attorney
Mathes endeavored, unsuccessfully, to negotiate a resolution
of Graham-Humphreys’ claim, by means which included a
June 4, 1996 settlement proposal letter addressed to Carmean.
On June 21, 1996, the plaintiff, purportedly acting pro se,
inaugurated the instant Title VII action in federal district
court. The record disclosed that Timothy Smith, an attorney
in Mathes’ firm, had drafted the complaint that initiated her
federal lawsuit, for which Graham-Humphreys had paid $500.
Two lawyers from Mathes’ firm continued to advise Graham-
Humphreys following the filing of her complaint, for which
services she paid an additional $700 fee. On July 3, 1996, via
Mathes’ office, the plaintiff lodged an amendment to her
complaint in which she requested $100,000 in compensatory
damages and demanded a jury trial. The plaintiff has
acknowledged that she knew that her court case had to be
instituted within a legally prescribed period, although she
“just relied on [her] attorneys to kind of guide [her] along on
that.”
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
15
Accordingly, the deposit of a postal attempt-to-deliver
advisory at the claimant’s last known residential address of
record within the five-day mailing interval ordinarily will
constitute constructive receipt of the RTS notice by the
claimant.
Any more lenient rule would illicitly license a Title VII
claimant to indefinitely extend limitations by avoiding
acceptance of an RTS notice, thereby circumventing the
Congressional mandate that private Title VII lawsuits should
be initiated within ninety days of the EEOC’s “giving” of
official authorization to sue. 42 U.S.C. § 2000e-5(f)(1). That
precise rationale has undergirded the established rule,
illustrated herein, that the mailing and delivery, presumptively
accomplished within the five-day period to accommodate
delivery, of an RTS announcement to the plaintiff’s address
of record, even if erroneous, actuates the limitations period
after expiration of the five day grace period, even if the RTS
notice was ultimately returned to the EEOC as undeliverable
or unclaimed.
The plaintiff, in rebuttal, has proposed that, even if the
passage of ninety-day limitations actuated five days following
the Postal Service’s March 7, 1996 mailing of her RTS notice,
those temporal bounds nevertheless should be extended, as
equitably tolled, beyond June 10, 1996, to validate her June
21, 1996 court complaint. See Zipes v. Trans World Airlines,
Inc., 455 U.S. 385 (1982), which explained that violation of
the Title VII ninety-day filing mandate erected no
comprehensive jurisdictional impediment to a civil action but
instead merely raised a limitations barrier which “is subject to
waiver, estoppel, and equitable tolling.” Id. at 392-98. A
district court’s application or rejection of equitable tolling is
scrutinized for abuse of discretion. Truitt v. County of Wayne,
148 F.3d 644, 648 (6th Cir. 1998). Generally, an abuse of
discretion is evident “when the reviewing court is firmly
convinced that a mistake has been made. A district court
abuses its discretion when it relies on clearly erroneous
findings of fact, or when it improperly applies the law or uses

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14 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
191322 (6th Cir. March 17, 1999) (per curiam) (unpub’d);
Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir.
1997).
Even assuming, arguendo, that Graham-Humphreys had
not conceded that she suspected that the certified notice at
issue was her EEOC lawsuit authorization, she would
nonetheless properly be charged with such knowledge,
because she indisputably knew that her RTS notice would be
proximately arriving by United States mail. Beyond
contravention, most adult Americans are cognizant that
critical, time-sensitive official communications are frequently
dispatched via certified mail. Fed. R. Evid. 201. In the
implicated scenario, the requisites of reasonable diligence
demanded that the plaintiff promptly discharge her less-than-
demanding obligation to retrieve her certified delivery. Cf.
Hunter, which observed that a plaintiff’s delayed actual
receipt of an RTS apprisal caused by a lapse in the discharge
of a minimal burden to inform the EEOC of new address
would not overcome the presumption of receipt of the RTS
letter within five days of mailing. 790 F.2d at 474-75.
Because the plaintiff in this action received imputed notice
of her right to sue on March 8, 1996, which was within five
days of the March 7, 1996 mailing of the EEOC’s advisory
notice, her litigation inauguration threshold had been
activated on March 13, 1996; it expired ninety days later, on
June 10, 1996. Thus, her June 21, 1996 judicial complaint
was foreclosed. Generally, when the EEOC posts an RTS
notice by United States certified mail to a Title VII claimant,
the ninety-day limitations clock begins to tick five days
thereafter, if, within that five-day passage, the Postal Service
had deposited, at the plaintiff’s address of record, a written
notification that a mail carrier had unsuccessfully attempted
a certified delivery. That rule governs even if that attempt-to-
deliver advisory notice did not identify the EEOC as the
originator of the letter in question, because a reasonable Title
VII claimant should know that the implicated certified
document may be the awaited RTS authorization.
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
7
3Because Graham-Humphreys filed her complaint on June 21, 1996,
Fed. R. Civ. P. 4(m) required service upon the defendant or before
October 19, 1996. See also Fed. R. Civ. P. 6(a).
4That summons bore neither the court clerk’s signature, the district
court’s official seal, nor the deadline by which the defendant was required
to respond. See Fed. R. Civ. P. 4(a) & (b).
Mathes and Graham-Humphreys did not memorialize their
attorney-client relationship in writing. At some point after the
filing of the July 3, 1996 amended complaint, the Mathes firm
stopped performing legal services for Graham-Humphreys.
Subsequently, during September or October 1996, the
plaintiff consulted Deborah Pagan, another counselor, who
determined that service of the summons and amended
complaint upon the museum had not yet been accomplished.
Pagan furnished Graham-Humphreys with a completed
original summons and several photocopies, and directed her
to file the summons with the district court clerk’s office for
processing, and then to provide copies of all documents to a
professional process server, Theresa Moses, for service upon
a museum representative. At deposition, Graham-Humphreys
did not relate Pagan’s precise instructions, nor did she recall
exactly what actions she (the plaintiff) had taken in the court
clerk’s office or which paper(s) she subsequently deposited in
Moses’ courthouse message box; she simply attested that she
presented the documents at the courthouse and then “gave
[Moses] whatever I was told I was supposed to give her.” In
any event, the summons which Moses served upon Director
Carmean on October 18, 1996 (119 days following the
complaint’s filing)3 had not been properly conformed by the
court clerk’s office.4
On November 7, 1996, Brooks, pursuant to Fed. R. Civ. P.
12(b)(4), moved to quash the summons for insufficiency and
dismiss the action for failure to serve valid process within 120
days of the complaint’s filing. After receiving the defendant’s
moving papers, the plaintiff telephoned Pagan, who referred
her to a specialist in employment law identified simply as

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8 Graham-Humphreys v. Memphis
Brooks Museum of Art
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5The plaintiff retained McLean on December 27, 1996, three days
prior to the hearing.
6On January 17, 1997, Brooks moved for reconsideration of that
ruling. The trial court denied that motion on January 28, 1997.
7A court may grant summary judgment under Fed. R. Civ. P. 56 only
if, after construing the record evidence, and the reasonable inferences
which may be drawn therefrom, most favorably for the party opposing the
motion, the proof could not support a judgment in favor of the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). “Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge . . . . The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted).
See also Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S.
451, 456 (1992); Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
All legal conclusions by lower courts are scrutinized de novo. Grider
v. Abramson, 180 F.3d 739, 746 n.7 (6th Cir.), cert. denied, 120 S. Ct.
528 (1999); Brennan v. Township of Northville, 78 F.3d 1152, 1154, 1156
(6th Cir. 1996). Hence, a lower court's summary judgment award is
“Kathleen.” Graham-Humphreys consulted Kathleen on
several occasions. Subsequently, during a December 30,
1996 status conference, the plaintiff, represented by yet
another attorney, Hite McLean, Jr.,5 moved to amend the
summons to correct its fatal defects. Fed. R. Civ. P. 4(a). On
January 13, 1997, the trial court granted the plaintiff’s motion
to amend the summons and concurrently overruled the
defendant’s motions to quash the summons and dismiss the
case.6
Thereafter, on January 30, 1998, the defendant moved,
under Fed. R. Civ. P. 56, for summary judgment, charging
that the plaintiff had commenced her action more than ninety
days following the RTS notification, in violation of
limitations. 42 U.S.C. § 2000e-5(f)(1). On April 29, 1998,
the lower court sustained that motion, and dismissed the case
with prejudice.7 On May 5, 1998, the plaintiff moved, under
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
13
conformity therewith, the EEOC charge form executed on August 24,
1995 by Graham-Humphreys recited that “I will advise the agencies if I
change my address or telephone number and cooperate fully with them in
the processing of my charge in accordance with their procedures.” The
plaintiff has urged that, because the Regulations compel a Title VII
claimant to provide the EEOC with an accurate address, the courts punish
failure to do so; whereas no such penalty is warranted against claimants
like Graham-Humphreys who have furnished a valid address to the
EEOC.
Graham-Humphreys’ contention is misconceived. Because a Title
VII plaintiff has a manifest common sense obligation to exercise ordinary
diligence in prosecuting his or her claim, even in the absence of an
explicit official directive, sister circuits have resolved that a Title VII
claimant has constructive notice of his or her right to litigate on the day
that the post office has delivered the RTS letter to his or her correct
address, even though the claimant had not actually received that writing
until a later date. See Million v. Frank, 47 F.3d 385, 387-88 (10th Cir.
1995), which concluded that the limitations period began to accrue upon
the plaintiff’s wife’s acceptance of his certified EEOC notification at his
residence, even though he had not reviewed that document until six days
after its delivery; Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir.
1992), which ruled that the acceptance of delivery of an RTS notice by the
plaintiff’s daughter comprised constructive receipt by the plaintiff, even
though the plaintiff did not attain actual notice of her right to sue until
several days later, noting that the law must preclude “a manipulable open-
ended time extension which could render the statutory limitation
meaningless” (citation omitted); and Espinoza v. Missouri Pacific R. Co.,
754 F.2d 1247, 1248-50 (5th Cir. 1985), which directed that delivery of
the RTS notice to the plaintiff’s home activated the limitations period
even if the plaintiff did not actually receive that notice until some later
date because he was out of town). Accord, St. Louis v. Alverno College,
744 F.2d 1314, 1316-17 (7th Cir. 1984); Law v. Hercules, Inc., 713 F.2d
691, 692-93 (11th Cir. 1983) (per curiam). As developed herein, the
same rationale supports the deposit of an attempt-to-deliver notice at the
complainant’s record address within five days of the EEOC’s mailing of
the RTS letter as an event which triggered the accrual of the ninety-day
limitations period on the fifth day after mailing, in conformity with
prevailing Sixth Circuit standards. Cf. Watts-Means v. Prince George’s
Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993).
F.2d at 474-75. Accord, Johnson v. United States Postal
Service, 64 F.3d 233, 237-38 (6th Cir. 1995); Johnson-Brown
v. Wayne State University, 173 F.3d 855 (Table), 1999 WL

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12 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
11Graham-Humphreys has argued that the absence of an EEOC
regulation, and/or language on the EEOC charge forms, which explicitly
instructs the complaining party to promptly retrieve any certified envelope
which he or she suspects, or reasonably should suspect, might contain an
RTS notice, materially distinguished her case from one in which a
plaintiff had failed to supply the EEOC with his or her proper address.
The EEOC Regulations dictate that “[t]he person claiming to be aggrieved
has the responsibility to provide the Commission with notice of any
change in address and with notice of any prolonged absence from that
current address so that he or she can be located when necessary during the
Commission’s consideration of the charge.” 29 C.F.R. § 1601.7(b). In
her at the nearby postal station. Graham-Humphreys has
conceded that she knew, or suspected, that the certified
delivery contained her RTS notice. See generally Friedman
v. Estate of Presser, 929 F.2d 1151 (6th Cir. 1991), which
posited that “[a]ny fact that should excite the plaintiff’s
suspicion is the same as actual knowledge[.]” Id. at 1160
(citations and brackets omitted).
Because Graham-Humphreys “received” imputed notice of
her right to litigate during the five-day mailing period
(March 8 through March 13, 1996), the ninety-day limitations
countdown began on March 13, 1996, the fifth day following
the EEOC’s March 7, 1996 mailing. The Sixth Circuit has
ruled that the EEOC’s misdirection of a certified RTS notice
caused by the claimant’s failure to furnish the EEOC with an
accurate address did not stay opening the ninety-day filing
window five days following mailing, even though the post
office ultimately returned the RTS letter to the EEOC
undelivered. Banks, 855 F.2d at 326-27. This circuit has
remarked that it has not been “inclined toward an inflexible
rule requiring actual receipt of notice by a claimant before the
time period begins to run,” and has resolved that a claimant
who neglected to inform the EEOC of his change of address
had constructively received his RTS notification because it
had been certified by mail to his record address, despite his
denial of receipt of that mailing, allegedly because his nine-
year-old nephew, who accepted the certified letter at the
claimant’s record address, misplaced it.11 Hunter, 790
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
9
subject to plenary review, because the sufficiency of the record evidence,
construed most favorably for the opponent of summary judgment, poses
a question of law. See Doe v. Claiborne County, 103 F.3d 495, 505 (6th
Cir. 1996). The touchstone is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting
Anderson, 477 U.S. at 251-52).
8If the undisputed facts, and/or the record evidence viewed most
favorably for the plaintiff, demonstrates as a matter of law that the
plaintiff commenced her lawsuit beyond the ambit of limitations, in the
absence of a waiver, estoppel, or compelling justification or excuse which
tolls limitations (developed further below), a summary dismissal of the
complaint should be sustained. See Zipes v. Trans World Airlines, Inc.,
455 U.S. 385, 393-94 (1982); Mounts v. Grand Trunk Western R.R., 198
F.3d 578, 580 (6th Cir. 2000) .
Fed. R. Civ. P. 59(e) & 60(b), to alter or amend the final
judgment. On July 8, 1998, the district judge overruled those
motions. The plaintiff noticed a timely appeal from the
judgment. The defendant instituted a seasonable cross-
appeal, by which it contested (1) the trial forum’s January 13,
1997 denial of its motions (A) to quash the defective
summons and (B) to dismiss the case for insufficient process,
and (2) the initial court’s associated allowance of the
retroactive curative amendment of the summons.
This reviewing court shall initially consider the district
court’s summary dismissal of the action as initiated outside
limitations.8 The Civil Rights Act of 1964, Title VII, posits
that, if the EEOC has elected not to prosecute a citizen’s
employment discrimination charge, it shall notify the
petitioner of his or her right to initiate a private enforcement
lawsuit. “ [W]ithin ninety days after the giving of such notice
a civil action may be brought against the respondent named in
the charge.” 42 U.S.C. § 2000e-5(f)(1) (emphases added).
The federal courts have strictly enforced Title VII’s ninety-
day statutory limit. In Baldwin County Welcome Center v.

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10 Graham-Humphreys v. Memphis
Brooks Museum of Art
Nos. 98-5971/6098
9The Sixth Circuit allots two days for postal delivery of a RTS notice
beyond the three day period allowed by Federal Rule of Civil Procedure
6(e). See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148
& n.1 (1984) (presuming that an RTS notice was received by the plaintiff
within three days of posting) (citing Fed. R. Civ. P. 6(e)).
Brown, 466 U.S. 147 (1984) (per curiam), an opinion that
dismissed a pro se Title VII complaint filed outside of
limitations, the Supreme Court stated that “[p]rocedural
requirements established by Congress for gaining access to
the federal courts are not to be disregarded by courts out of a
vague sympathy for particular litigants.” Id. at 152. In
Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court
further explained that “experience teaches that strict
adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration
of the law.” Id. at 826. See also Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 398 (1982).
In the instant case, the EEOC issued, and posted, an RTS
notice to Graham-Humphreys on March 7, 1996. The Sixth
Circuit has resolved that notice is given, and hence the ninety-
day limitations term begins running, on the fifth day
following the EEOC’s mailing of an RTS notification to the
claimant’s record residential address, by virtue of a
presumption of actual delivery and receipt within that five-
day duration,9 unless the plaintiff rebuts that presumption
with proof that he or she did not receive notification within
that period. Banks v. Rockwell Intern. N. Am. Aircraft
Operations, 855 F.2d 324, 325-27 (6th Cir. 1988); Cook v.
Providence Hospital, 820 F.2d 176, 179 & n.3 (6th Cir.
1987); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472,
474-75 (6th Cir. 1986). See 29 C.F.R. § 1601.28(e) (“The
notice of right to sue shall include (1) Authorization to the
aggrieved person to bring a civil action under title VII . . .
within 90 days from receipt of such authorization.”)
(emphasis added). Accordingly, Graham-Humphreys’
litigation initiation window closed on Monday, June 10, 1996
(ninety-five days after the EEOC’s March 7, 1996 mailing of
Nos. 98-5971/6098 Graham-Humphreys v. Memphis
Brooks Museum of Art
11
10Because, as evolved herein, this circuit has previously mandated
that, ordinarily, an EEOC notice is “given” five days following its mailing
to the claimant’s address of record, which rule is founded upon the
rebuttable presumption that said notice was “received” by the aggrieved
party within that period, EEOC Regulation § 1601.28(e)’s directive that
ninety-day limitations is activated upon the claimant’s receipt of the RTS
notice is consistent with 42 U.S.C. § 2000e-5(f)(1)’s pronouncement that
the ninety-day clock begins ticking upon the EEOC’s giving of such
notice. In most circumstances, the nuance between the EEOC’s
“giving,”and the complainant’s “receiving,” an RTS authorization will be
immaterial, because most notices will be “given” and
“received”simultaneously, or at least within the legally recognized
extension of time to accommodate mailing. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 798 (1973), wherein the Supreme Court
remarked that a Title VII civil action predicate is satisfied upon the
plaintiff “receiving and [timely] acting upon the Commission’s statutory
notice of the right to sue;” the Court apparently presumed that the
“receipt” of notice would ordinarily coincide with, or proximately follow,
the “giving” of notice. (Emphasis added).
the RTS notice to her record residential address), which
precluded her June 21, 1996 court action, unless she could
prove that she did not “receive” the EEOC’s March 7, 1996
alert within the five-day mailing period.10
As developed above, the plaintiff took personal possession
of her RTS notification at the EEOC’s area office on
March 28, 1996. Accordingly, she has contended that she
“received” her RTS authorization on that date; thus her
statutory filing period purportedly commenced to expire on
March 29, 1996. See Fed. R. Civ. P. 6(a). Consequently,
because her ninety-day term allegedly did not expire until
June 26, 1996, she argues that her complaint filed on June 21,
1996 complaint was within rule.
Nevertheless, even if the plaintiff did not physically attain
actual “receipt” of her RTS notice until March 28, 1996, she
had constructively “received” her RTS notification on
March 8, 1996, the day that the letter carrier deposited the
first of two official notifications at the plaintiff’s last known
official address which advised that a certified letter awaited

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