alternative, summary judgment on the claim that plaintiff had not commenced the instant action in a timely fashion. At oral argument, the court directed plaintiff to provide an affidavit setting forth the date the right-to-sue letter was actually received. Defendants were afforded an opportunity to reply to this supplemental affidavit. Plaintiff had ample notice that the court could consider defendants' motion for summary judgment: defendants originally sought summary judgment in the alternative and the parties were afforded an opportunity to submit additional evidence concerning the motion. Accordingly, the court hereby considers defendants' alternative request for summary judgment. Groden v. Random House, Inc., 61 F.3d 1045, 1052-1053 (2d Cir. 1995).
A motion for summary judgment shall only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. Proc. 56(c). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the inferences to be drawn from the facts in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987). The non-moving party may defeat the motion for summary judgment by producing sufficient specific facts to establish a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
II. Timeliness of the Complaint.
In accordance with 42 U.S.C. s 2000e-5(f)(1)), a Title VII action "must be commenced within ninety days of the receipt of an EEOC right-to-sue letter." Sherlock v. Montefiore Medical Ctr., 95 Civ. 3839, 1995 U.S. Dist. LEXIS 13143, *2, 1995 WL 542458 at *2 (S.D.N.Y. Sept. 12, 1995); Spira v. Ethical Culture School, 888 F. Supp. 601, 602 (S.D.N.Y. 1995). This requirement should be strictly enforced and not extended "'by even one day.'" Johnson v. AL Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (quoting Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982)). See also, Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994) (finding action untimely where filed ninety-one days after receipt of the right-to-sue letter).
The 90-day filing rule is not a jurisdictional prerequisite to suit in federal court, but rather "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127, reh'g denied, 456 U.S. 940, 72 L. Ed. 2d 461, 102 S. Ct. 2001 (1982)); see also, Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 349 n.3, 76 L. Ed. 2d 628, 103 S. Ct. 2392 (1983); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d at 146.
To determine when a party has received the right-to-sue letter, courts can apply Fed. Rule Civ. Proc. 6(e)
to find that such notice is deemed to have been received within three days of its mailing. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984) (per curiam).
This presumption is often invoked when the parties fail to set forth information concerning the actual date of receipt of the right-to-sue letter. See, e.g., Williams v. Mississippi Action for Progress, Inc., 824 F. Supp. 621, 622-623 (S.D. Miss. 1993) (utilizing Rule 6(e) presumption where motion to dismiss considered without a statement from plaintiff concerning date of receipt); White v. Union Pacific R.R., 805 F. Supp. 883, 886-887 (D. Kan. 1992) (utilizing Rule 6(e) presumption where the parties failed to set forth the date the right-to-sue letter was received); Pacheco v. International Business Machines Corp., 90 Civ. 1173, 1991 WL 87538 at *3-4 (N.D.N.Y. May 24, 1991) (utilizing Rule 6(e) presumption where plaintiff failed to recall date upon which right-to-sue letter was actually received); cf. Smith v. Local Union 28 Sheet Metal Workers, 877 F. Supp. 165, 172 (S.D.N.Y. 1995) (noting that "under any view of the facts," whether accepting Rule 6(e) presumption or plaintiff's allegations concerning the date of receipt of the right-to-sue letter, matter was untimely filed). In Minetos v. City University of New York, 875 F. Supp. 1046 (S.D.N.Y. 1995), this court took into account the Rule 6(e) presumption to calculate the filing deadline where plaintiff had failed to pick up her right-to-sue letter from the post office until several days after receiving postal notice that the letter was being held for her there. Id. at 1050-1051.
Where a party may dispute receipt of the right-to-sue letter, courts have also relied on the presumption of receipt of a letter within five days of its mailing. See, e.g., Cook v. Providence Hosp., 820 F.2d 176, 179 n. 3 (6th Cir.1987) (invoking presumption of receipt within five days of mailing absent convincing denial of receipt); Tadros v. Coleman, 717 F. Supp. 996, 1008 (S.D.N.Y. 1989) (holding court would apply five day presumption where plaintiff's denial of receipt was unsubstantiated), aff'd 898 F.2d 10 (2d Cir.), cert. denied 498 U.S. 869, 112 L. Ed. 2d 149, 111 S. Ct. 186 (1990); Wagher v. Guy's Foods, Inc., 768 F. Supp. 321 (D. Kan. 1991) (holding five day presumption of receipt would be applied to provide a "reasonable and workable . . . framework" where plaintiff's counsel clearly received right-to-sue letter and failed to supply specific facts concerning receipt to rebut this presumption); cf. Hunter v. Stephenson Roofing, Inc., 790 F.2d 472 (6th Cir.1986)(invoking five day presumption of receipt where plaintiff had failed to notify the EEOC of a change of address); Janneh v. CSH-1 Hotel Limited Partnership, 93 Civ. 836, 1994 U.S. Dist. LEXIS 11645, 1994 WL 447492 (N.D.N.Y. Aug. 15, 1994) (same). One court has even found that it is "not unreasonable" to assume the right-to-sue letter was received within seven days of its mailing where the facts surrounding receipt thereof were not supplied. Roush v. Kartridge Pak Co., 838 F. Supp. 1328, 1335 (S.D. Iowa 1993).
The court considers these precedents and finds them inapposite given the facts and circumstances of the instant case: plaintiff has neither denied receipt of the right-to-sue letter (in which case the five day presumption described above might apply), nor has she failed to set forth a date of receipt thereof (which would otherwise trigger application of the Rule 6(e) presumption).
It is alleged that plaintiff's attorney, whose office is in Bronx County, received the right-to-sue letter on Sunday, October 2, 1994, which is the date he retrieved it from his mailbox. Based on this allegation, the court finds that plaintiff is deemed to have received such notice the day it was received at his office, five days after it was mailed: i.e. October 1, 1995.
Although defendants have submitted an affidavit from a United States Postal Service employee stating that the "expected" delivery time for first class mail from Manhattan (where, it is assumed, the EEOC letter was mailed) to the Bronx is two days (See Affidavit of Clifton Branch, dated June 26, 1995, at P 3), the court, in considering the facts in the light most favorable to plaintiff, finds that it is not unreasonable that such mail could take five days from the date of mailing, even where it is sent borough-to-borough within New York City. Moscowitz v. Brown, 850 F. Supp. at 1191-1192 (construing facts in light most favorable to plaintiff and accepting plaintiff's allegation that letter received six days after mailing as opposed to presumption of receipt within three days under Rule 6(e)); Kelly v. Kidder Peabody & Co., Inc., 88 Civ. 8694, 1993 U.S. Dist. LEXIS 3751, 1993 WL 97288 at *2 (S.D.N.Y. 1993) (permitting plaintiff to proceed in action where arguable delay in filing complaint was no fault of plaintiff, but rather her attorney); McKenzie v. Amtrak M of E, 777 F. Supp. 1119, 1122 (S.D.N.Y. 1990) (holding case timely filed where earliest date plaintiff could have received letter fell within 90-day filing period: i.e., date plaintiff first received notice from post office that certified letter was being held there).
Accordingly, because a triable issue of fact exists concerning the date of receipt of the right-to-sue letter, the motion for summary judgment on this matter must be denied. See Zachery v. Whalen, 93 Civ. 36, 1994 U.S. Dist. LEXIS 11177, 1994 WL 411526 at *2 (N.D.N.Y. July 26, 1994).
For the reasons set forth above, defendants' motion for summary judgment is denied.
Dated: February 8, 1996
New York, New York
Constance Baker Motley
United States District Judge