The opinion of the court was delivered by: GEORGE MAROVICH, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Balenciaga Stavrou ("Stavrou") filed a one-count
Complaint against Mercy Hospital and Medical Center ("Mercy")
(originally misnamed as Mercy Home Health Care), on April 9,
2001. Stavrou alleges that Mercy discriminated against her on the
basis of race in violation of Title VII of the Civil Rights Act
of 1964 ("Title VII"). 42 U.S.C. § 2000(e) et seq. In response,
Mercy now moves to dismiss pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (6). For the reasons set forth below, the
Motion to Dismiss is granted.
On March 30, 2000, Stavrou filed a charge with the Equal
Employment Opportunity Commission ("EEOC"), alleging that her
former employer, Mercy, discriminated against her. The EEOC
investigated and issued a Dismissal and Notice of Rights document
("right to sue letter") on November 7, 2000. The EEOC sent a copy
of the document to Stavrou through the United States Postal
Service ("Postal Service") via certified mail. A copy of the
envelope shows that re-delivery was to be attempted on November
9, 2000. Stavrou, however, never obtained this mailing, thus the
Postal Service labeled the letter "unclaimed" and returned it to
the EEOC some time before January 5, 2001. On that date, the EEOC
resent the same letter to Stavrou through the Postal Service via regular mail. Stavrou actually
received this second delivery of the letter on January 8, 2001.
She proceeded to file a complaint on April 9, 2001, which
asserted one count of racial discrimination by Mercy in violation
of Title VII. Mercy responded on September 19, 2003 by filing a
motion to dismiss on the basis that Stavrou's Complaint was not
filed within Title VII's ninety-day limitation period.
Specifically, Mercy argues that the ninety-day filing period
began in November when the letter was first delivered to Stavrou.
Mercy further contends that the action should be dismissed
because Stavrou's Complaint included a charge of a hostile work
environment which was beyond the scope of the EEOC's
I. Standard for a Motion to Dismiss
When considering a motion to dismiss, a court must view the
complaint's allegations in the light most favorable to the
plaintiff, and all well-pleaded facts in the complaint must be
accepted as true. Wilson v. Formigoni, 42 F.3d 1060, 1062
(7th Cir. 1994). Dismissal is proper only if it appears
beyond a doubt that plaintiff can prove no set of facts in
support of a claim which would entitle her to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). When evaluating the motion to
dismiss, the court may consider documents that are referred to in
the complaint and are considered central to the claim. Albany
Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971
(7th Cir. 2002).
In its Motion to Dismiss, Mercy contends that Stavrou failed to
file her Complaint within ninety days of receiving her
right-to-sue notice from the EEOC. Stavrou is entitled to bring a
civil action within ninety days of receiving such notice,
however, failure to raise her claim within that time period
results in loss of her right to sue. 42 U.S.C. § 2000(e)-(f)(1).
In this Circuit, "the 90-day period begins to run when the claimant receives
actual notice of her right to sue." Houston v. Sidley & Austin,
185 F.3d 837, 839 (7th Cir. 1999). The actual notice rule,
however, does not apply when the claimant fails to receive notice
because of her own fault. St. Louis v. Alverno College,
744 F.2d 1314, 1317 (7th Cir. 1984). In circumstances of fault,
the ninety-day period begins to run when the letter is delivered
to the intended recipient's most recent address. Bond v.
American Medical Association, 764 F. Supp. 122, 125 (N.D. Ill.
1991). As the plaintiff is the person in possession of the facts
regarding why she did not receive the letter within the specified
date, she has the burden of producing those facts. Houston, 185
F.3d at 840. In the absence of evidence proving dates of
delivery, the "the law presumes timely delivery of a properly
addressed piece of mail." McPartlin v. Comm'r. of the Internal
Revenue Serv., 653 F.2d 1185, 1191 (7th Cir. 1981). The
Seventh Circuit further extended this rule to include the
presumption that the Postal Service timely notifies people that
certified mail is being held for their collection. Bobbitt v.
Freeman Companies, 268 F.3d 535, 538 (7th Cir. 2001).
By applying these rules to the current case, it is apparent
that Stavrou was at fault for not collecting her right-to-sue
letter and therefore the original delivery date in November is
used to establish the beginning of the ninety-day filing period.
In the instant case, the Postal Service attempted to deliver the
letter on several occasions, however, Stavrou offers no
explanation as to why she did not receive it at the time of
original delivery in November. Without providing any discussion
or support regarding fault, Stavrou simply asserts that the
Postal Service failed to successfully serve her. Although Stavrou
did include as evidence the original envelope used to deliver the
letter, the notation on the envelope states that redelivery was
to be made on November 9, 2001. This notation seems to indicate
that the Postal Service made at least two attempts to deliver the
letter. Stavrou offers no explanation as to why she was unable to
receive mail at that address in November. In the absence of a valid
justification, it is reasonable to believe that no fortuitous
events prevented Stavrou from collecting mail at that address.
This conclusion is supported by the fact that Stavrou actually
received the subsequent letter on January 8, 2001, at the same
Stavrou's continued silence on the issue of the notification
that the Postal Service was holding certified mail for her
collection further supports the conclusion that she was at fault.
In the absence of any allegations to the contrary, this Court
applies the established presumption that Stavrou was notified
that the Postal Service was holding certified mail for her
receipt. Bobbitt, 268 F.3d at 538. When a claimant is notified
that certified mail is waiting, she will be at fault for not
picking up the letter within the time before the Postal Service
returns it to the sender. Id.; Bond, 764 F. Supp at 125.
Stavrou did not collect the letter before it was returned to the
EEOC and only received it when it was redelivered.*fn1 As
such, Stavrou is at fault for not obtaining the letter and is
unable to take advantage of the actual notice rule. Accordingly
the ninety-day period began to run when original delivery was
attempted some time between November 7, 2000 and November 9,
2000, thus Stavrou's April 9, 2001 occurred between 151 and 153
days after notice was delivered and thus beyond Title VII's
ninety-day filing period. CONCLUSION
For the reasons set forth above, Mercy's Motion to ...