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Parler v. Hood Packaging, Inc. : US District Court : EMPLOYMENT - telling EEOC not to use one mailing address insufficent without new one

Christian Parler )
v. ) 07-CV-4288(JMR/FLN)
Hood Packaging, Inc. )
Christian Parler )
v. ) 07-CV-4284(JMR/FLN)
Adecco )
These related matters are before the Court on defendants
separate motions to dismiss based on the statute of limitations.
In each case, plaintiff, Christian Parler, appearing pro se, filed
Title VII actions. He sued defendant Hood Packaging, Inc.,
claiming harassment and discrimination. His claims against Adecco
alleged harassment, discrimination, and retaliation. Defendants
motions to dismiss are granted.
I. Background
Plaintiff was employed by Adecco USA (Adecco), a jobplacement
agency. On December 28, 2006, Adecco assigned him to
work at Hood Packaging, Inc. (Hood), in Woodbury, Minnesota.
His assignment at Hood was terminated on February 16, 2007, six
weeks later. Plaintiff thereafter filed Title VII charges against
each defendant with the United States Equal Employment Opportunity
Commission (EEOC). He claimed he was subjected to
discrimination, harassment, and later retaliation after his
complaints of mistreatment.
The EEOC investigated and dismissed plaintiffs complaints as
unsubstantiated. Prior to the EEOCs decision, but while
plaintiffs complaints were pending, he moved from Minnesota
without having obtained a new mailing address. Plaintiff sent a
letter dated July 9, 2007, and claims he called the EEOC saying he
had no mailing address, but that he could be reached by cell phone.
After its finding of no probable cause, the EEOC issued its
Notice of Right to Sue (Notice) dated July 13, 2007. The Notice
told plaintiff of the dismissal, and notified him of his right to
further pursue his claims in federal district court. The EEOCs
Notice was sent to Stanley, Wisconsin, the address plaintiff had
initially provided.
Plaintiff claims he received the Notice on July 27, 2007,
after it was forwarded from the Wisconsin address to plaintiffs
newly-established Colorado address. Plaintiff filed these pro se
actions on October 18, 2007.
Defendants claim plaintiffs cases were untimely filed beyond
the statute of limitations. Defendants ask the Court to dismiss
the actions, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure (Fed. R. Civ. P), for failure to state a claim
upon which relief may be granted. Plaintiff counters that he wrote
the EEOC a letter, dated July 9, 2007, informing it he was moving
and was no longer living at his previously submitted Stanley,
Wisconsin address. His letter called the Wisconsin address his
non-residential mailing address, and gave no other address to
which correspondence could be directed. He also claims he wrote
the EEOC a letter, dated July 18, 2007, informing the Commission of
a new Colorado mailing address.
II. Analysis
The Court construes the facts in the light most favorable to
plaintiff, Vainer v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir.
2004), and relies only on facts contained in the complaint in
reaching its decision. Fed. R. Civ. P. 12(b)(6).
Under Rule 12(b)(6), a case can be dismissed for failure to
meet a statute of limitations if it appears from the face of the
complaint that the statute of limitations has run. Vainer, 371
F.3d at 1016. A Title VII claim must be filed within 90 days of
receipt of the EEOCs Notice of Right to Sue. 42 U.S.C. 2000e-
5(f)(1). Claims filed thereafter are time barred. Williams v.
Thomson Corp., 383 F.3d 789, 790 (8th Cir. 2004).
The 90-day period begins to run from the day the Notice is
received at the most recent address provided to the EEOC. Hill v.
John Cazique Imports, 869 F.2d 1122, 1124 (8th Cir. 1989). Absent
a challenge, a court presumes the letter was mailed on the date
shown on the notice and received three days after mailing. Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 148 n.1 (1984).
The EEOCs Notice is dated July 13, 2007. Following the
presumptions specified above, the letter was received at the
Wisconsin address on July 16, 2007. Absent evidence to the
contrary, the statute of limitations began to run on July 16, 2007,
and ended 90 days later - October 15, 2007.
Plaintiff does not challenge the EEOC mailed its Notice of
Right to Sue on July 13, 2007, nor that the Notice presumptively
arrived at the Wisconsin address on July 16, 2007, three days
later. He claims, instead, that in light of his July 9, 2007,
correspondence saying he no longer lived at the Wisconsin address,
the EEOC should not have sent correspondence to that address or
should have called him. His argument is unavailing.
The law provides that the statute of limitations begins to run
upon receipt of the Notice at the most recent address provided to
the EEOC. See Hill, 869 F.2d at 1124. It is incumbent upon an
EEOC complainant to provide a current address to the Commission.
Plaintiffs July 9, 2007, letter claims the Wisconsin address is a
non-residential mailing address. Neither the law, nor any
regulation cited by plaintiff recognizes the concept of a nonresidential
mailing address. See 42 U.S.C. 2000e-5. The
Wisconsin address was the last one provided by plaintiff, and that
is where mailings were to be sent. Plaintiff admits he did not
give the EEOC his Colorado address until July 18, 2007, five days
after the EEOC mailed its Notice.
While, perhaps, facially appealing, the Court cannot credit
plaintiffs theory that either his letter indicating Wisconsin was
no longer a mailing address, or his claimed call to the EEOC saying
they should call his cell phone must extend Congresss statute of
limitations. As an initial matter, if the Court allowed a party to
write a letter saying an old address was no longer a place to mail
notices pending a new location, it would perversely place the
limitations period in plaintiffs own hand. Imagine the plaintiff
writes a letter, and does not take a few weeks to find a new
address, but takes a year. If plaintiffs position were accepted,
the statute would not begin to run until he notified the EEOC of
his new location - if he chose to write the EEOC at all.
Similarly, his claimed telephone call, saying the EEOC could
call him, does not satisfy the limitations requirement. The
Commission operates under carefully crafted statutes and
regulations. The written notice requirement provides a recognized,
verifiable record of the Commissions decisions. A telephone call
to plaintiff does not provide these protections to a potential
defendant. There would be no proper and cognizable record upon
which a putative defendant could rely in availing itself of the
limitations period Congress has written into the law.
The Court well-recognizes that this statute of limitations may
be equitably tolled when a late-filing is due to exceptional
circumstances truly beyond the control of the plaintiff. Hill,
869 F.2d at 1124. This is not such a case. Plaintiffs voluntary
travels and change of address are not such circumstances. See
Williams, 383 F.3d at 791; Hill, 869 F.2d at 1124. Plaintiffs
move is solely his decision. His wish or assumption that a letter
or call would obviate the statute of limitations is, again, his
own. Nor does plaintiffs pro se status warrant a loose
construction of the statute of limitations or an application of
equitable tolling. See Than v. Minn. Dept. Of Transp., 06-CV-108,
2006 WL 2917037, at *3 (D. Minn. Oct. 11, 2006). The Court finds
no basis to equitably toll the time limitation set by Congress.
Accordingly, the Court finds, based on the information in the
Complaint, and absent evidence to the contrary: (1) the EEOCs
Notice was received on July 16, 2007; (2) the statute of
limitations expired on October 15, 2007; and (3) plaintiffs
claims, filed October 18, 2007, are, therefore, time-barred.
III. Conclusion
For these reasons, defendants motions for dismissal [Case No.
07-CV-4288, Docket No. 12; Case No. 07-CV-4284, Docket No. 11] are
Dated: June 4, 2008
s/James M. Rosenbaum
United States Chief District Judge


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