UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
*fn*: October 2, 1984.
ALFRED ST. LOUIS, PLAINTIFF-APPELLANT,
ALVERNO COLLEGE, DEFENDANT-APPELLEE
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 82 C 770 -- Robert W. Warren, Judge.
Woods, Eschbach and Flaum, Circuit Judges.
ESCHBACH, Circuit Judge
Plaintiff Alfred St. Louis brought this action against his former employer, Alverno College, after he was discharged from his teaching position at the College in 1973. Plaintiff filed a timely charge of sex discrimination with the Equal Employment Opportunity Commission ("EEOC" or "Commission"); the EEOC deferred acting on his charge until the Equal Rights Division ("ERD") of the Wisconsin Department of Industry, Labor and Human Relations completed its investigation. In 1979 the ERD dismissed plaintiff's complaint on the merits. St. Louis exhausted his state administrative remedies after which the EEOC, on June 30, 1981, determined that no reasonable cause existed to believe that plaintiff's charge was true. The same day, the EEOC sent St. Louis by certified mail a notice of right-to-sue which stated that St. Louis had ninety days from the date of receipt of the notice to seek judicial review of the EEOC's determination.*fn1 The right-to-sue letter and the no-reasonable-cause determination were mailed to a Milwaukee address but were returned to the EEOC because St. Louis no longer lived at that address. St. Louis moved from Milwaukee to Texas in 1975 but did not inform the EEOC of his change of address.
In March 1982, an attorney contacted the EEOC on behalf of the plaintiff and was informed that the right-to-sue letter had been issued the previous June. Copies of the determination letter and right-to-sue letter were sent to plaintiff in Texas and he filed a pro se complaint within ninety days of his receipt of those documents.
St. Louis asserts that his failure to file this action for nearly a year after the right-sue-letter was issued should be excused because he never received the EEOC's first mailing. Plaintiff admits that he did not notify the EEOC formally that he had moved to Texas, but claims that the EEOC had this information anyway: the EEOC file contained two documents from the Wisconsin administrative proceedings which had plaintiff's Texas address.
The district court held that St. Louis was responsible for informing the EEOC of his current address and that the delay in filing this action resulted from plaintiff's own negligence in fulfilling that responsibility. Accordingly, the court dismissed plaintiff's complaint.
This court held in Archie v. Chicago Truck Drivers Union, 585 F.2d 210 (7ty Cir. 1978),*fn2 that the ninety-day limit of 42 U.S.C. § 2000e-5(f)(1) begins running on the date a claimant actually receives the notice of right-to-sue issued by the EEOC. St. Louis contends essentially that the first notice mailed by the EEOC here should be treated as a nullity since he never received it; under Archie, he argues, the filing deadline did not begin to run until plaintiff actually received the notice in March 1982. We disagree.
Both Archie and the case it relied on heavily in arriving at the holding just stated, Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976),*fn3 involved the issue of constructive receipt. In Archie, the plaintiff's wife received the notice of right-to-sue ten days before she gave it to him. In Franks, the notice was received and subsequently lost by plaintiff's nine-year-old nephew. Both courts held that the doctrine of constructive receipt did not apply; the time period did not begin running until the plaintiff actually received the right-to-sue letter.*fn4 The rationale for the holdings was that a plaintiff should not lose the right to sue because of fortuitous circumstances or events beyond his or her control which delay receipt of the EEOC's notice. Archie, 585 F.2d at 215; Franks, 495 F.2d at 404. Plaintiff seeks to fit within these cases by asserting that the EEOC's negligence (an event beyond his control) caused his delayed receipt of the notice of right-to-sue.
Since 1977 people who have filed charges with the EEOC have been required to notify the Commission of any change of address. 42 Fed. Reg. 47,833 (Sept. 22, 1977). The regulation, 29 C.F.R. § 1601.7(b) (1981), makes mandatory that which was dictated already by common sense. The regulation provides that a person who has filed a Title VII charge "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." Id.
The burden of providing the EEOC with changes of address is minimal. It is unreasonable to expect the EEOC to pore over its files, and those of state administrative agencies, in an effort to ascertain which of the addresses contained therein is correct. We would then undoubtedly hear cases in which the EEOC had made a good-faith effort to find a claimant's current address but had guessed wrong and sent the notice to the wrong place. The claimant is obviously in a far better position to ensure that the Commission has current, accurate information and to provide that information in much less time than it would take an EEOC employee to go through the claimant's file. Other courts facing this issue have arrived at the same conclusion. See Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982) (per curiam); Fields v. Hoerner Waldorf Corp., 33 Fair Empl. Prac. Cas. (BNA) 1471, 1472 (N.D. Ala. 1980); Epstein v. Armstrong Cork Co., 21 Fair Empl. Prac. Cas. (BNA) 161 (D. Mass. 1979). Cf. Harper v. Burgess, 701 F.2d 29, 30 (4th Cir. 1983); Pole v. Citibank, N.A., 556 F. Supp. 822, 823 (S.D.N.Y. 1983).
Our holding today is consistent with Archie. If plaintiff had notified the EEOC that he had moved or had taken reasonable steps to ensure that he would receive mail delivered to the Milwaukee address, see, e.g., Pole, 556 F. Supp. at 823, his failure to receive the notice might come within the holding of Archie. But the basis for our decision there, and the Fifth Circuit's decision in Franks, was that claimants who do not receive actual knowledge of their right-to-sue letter through no fault of their own should not be penalized. In this case, however, plaintiff's failure to tell the EEOC that he had moved was not an event beyond his control. Accordingly, we hold that the ninety-day limit began running on the date the notice was delivered to the most recent address plaintiff provided the EEOC. Cf. Lewis, 673 F.2d at 1243; Franks, 495 F.2d at 405. Under the circumstances of this case, the district court did not err in dismissing the case for failure to file suit within the ninety days provided in the statute.
Plaintiff's pro se complaint contained two claims: a Title VII claim which we have already discussed and a claim under 42 U.S.C. § 1981. The district court correctly dismissed the latter because claims of sex discrimination are not cognizable under § 1981; the section applies only to alleged discrimination on the basis of race or alienage. Runyon v. McCrary, 427 U.S. 160, 167, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976); Bell v. City of Milwaukee, 746 F.2d 1205, slip op. at 91 (7th Cir. 1984).*fn5
The judgment of the district court is AFFIRMED.