United States District Court, N.D. Illinois
February 9, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Cleophus Tell, filed a pro se complaint on
Tuesday, September 24, 2002, alleging a violation of the Americans With
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., based on
his termination from his job. Plaintiff was subsequently appointed
Defendant filed a combined motion to dismiss pursuant to Fed.R. Civ.
P. 12b(6) and motion for summary judgment under Fed.R.Civ.P. 56.
Defendant asserted that it is entitled to summary judgment because
plaintiff failed to file a charge of discrimination with the EEOC within
300 days of his termination and because he failed to file his complaint
in this court within 90 days of receiving actual notice of his right to
sue from the EEOC. Defendant submitted factual matters outside the
complaint in support of its motion, including a document from the U.S.
Postal Service showing that plaintiff received his right-to-sue letter on
June 24, 2002. The court will consider the motion as one brought under
In his response to defendant's motion, plaintiff submitted evidentiary
matters and also admitted that he received the right-to-sue letter on
June 24, 2002. He contended that he filed his complaint within 90 days of
receiving the notice, however, asserting that "[w]ith the holiday and
Sunday being the 22nd of September, the 24 of September
would be ninety days."
In its reply brief, defendant essentially abandons its argument that
plaintiff did not file his initial charge with the EEOC in a timely
manner and relies on its contention that the complaint was not timely
Under the ADA and Title VII, a plaintiff must file suit within 90 days
from the date the plaintiff receives actual notice of his right to sue.
Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir.
1999). Based on both plaintiffs admission and the other evidence, it is
undisputed that plaintiff here received actual notice of his right to sue
on June 24, 2002.
Based on the date of June 24, 2002, plaintiff had until Monday,
September 23, 2002, to file his complaint. Under Rule 6(a), when the tune
period for filing is 11 days or longer, intermediate Saturdays, Sundays,
and legal holidays are included except if the last day of the period
falls on a Saturday, Sunday, or legal holiday. In that event, the filing
period runs to the next day which is not a Saturday, Sunday, or legal
holiday. Fed.R.Civ.P. 6(a). In this case, the last day of the 90-day
period fell on Sunday, September 22, 2002. Thus, plaintiff had until the
next day, Monday, September 23, 2002, to file his complaint. He did not
file, however, until Tuesday, September 24, 2002. Accordingly, his
complaint is time-barred.
Curiously, plaintiff asserts that a holiday extended the 90-day filing
period. For that to have been the case, Monday, September 23, 2002, would
have to have been a legal holiday as any other legal holiday during the
90-day period would have counted toward the 90-days. The court is not
aware of any legal holiday occurring on Monday, September 23, 2002.
Therefore, the court grants summary judgment in favor of defendant and
dismisses this cause in its entirety.
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