            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 01-50471
                                          Summary Calendar
                                          _______________



                                       CONRAD A. ORTEGA,

                                                             Plaintiff-Appellant,

                                               VERSUS

                           ALAMO COMMUNITY COLLEGE DISTRICT,

                                                             Defendant-Appellee.



                                    _________________________

                            Appeal from the United States District Court
                                 for the Western District of Texas
                                          (SA-00-CV-25)
                                  _________________________
                                         December 6, 2001



Before JONES, SMITH, and                                 Conrad Ortega appeals a summary
  EMILIO M. GARZA, Circuit Judges.                   judgment in favor of Alamo Community
                                                     College District (“Alamo”) disposing of his
PER CURIAM:*                                         title VII sex discrimination claim. Finding no
                                                     error, we affirm.

   *
                                                                           I.
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
                                                        *
limited circumstances set forth in 5TH CIR. R.           (...continued)
                                   (continued...)    47.5.4.
   Ortega was employed by Alamo as a                   district court granted summary judgment for
patrolman and later a corporal. His duties             Alamo on the ground that Ortega had failed to
involved security detail and some supervisory          establish a prima facie case. Specifically, the
work when more senior staff was absent.                court found Ortega had not shown he was
Ortega worked a second job on bike patrol for          treat ed differently from a female employee
the VIA Metropolitan Transit System                    who had engaged in nearly identical conduct.
(“VIA”).
   One day, Ortega did not report to work for                                 III.
Alamo. He explained he had car trouble, but,               Title VII requires a complainant to sue
after fixing the problem, he reported to his job       within ninety days of receiving a right to sue
with VIA instead of to Alamo. He worked his            letter. 42 U.S.C. § 2000e-5(f)(1). Although
shift for VIA with officer Cliff Morgan.               this requirement is not jurisdictional,2 failure to
During their patrol, Ortega and Morgan                 satisfy it is ground for dismissal, absent some
chanced upon officer Arriaga, who worked for           reason to toll the limitations period.3
Alamo. Ortega and Morgan followed Arriaga
to Alamo’s headquarters.                                  The district court declined to address
                                                       limitations and granted summary judgment on
   Arriaga used his key to open the building,          other grounds. Although the limitations ques-
and all three went inside, where Morgan used           tion is not jurisdictional, we elect to decide the
one of the computers to check stock prices             case on that ground instead of reaching the
and view pornographic images. All three con-           merits.
sumed snacks and drinks while at the
workstation, then left and returned to their                                 A.
jobs.                                                     It is undisputed that Ortega failed to sue
                                                       within ninety days. His only explanation is
   The following Monday, the office worker             that he did not receive the right to sue letter
whose computer had been used arrived to find           until October 19.        The only evidence
snack refuse on her desk. Upon checking her            supporting this claim is his own affidavit
computer, she discovered some of the                   testimony.
pornographic images viewed by some or all of
the men. A resulting investigation by the                There is a well-settled presumption
Texas Department of Public Safety led to               operating in favor of a party who properly
interviews with all three officers, whereupon
Ortega was terminated from his job with
Alamo on recommendation of the chief of the
campus police department.                                 2
                                                            See Zipes v. Trans World Airlines, Inc., 455
                                                       U.S. 385, 393 (1982) (time for filing with EEOC
                     II.
                                                       not jurisdictional); Espinoza v. Mo. Pac. R.R., 754
   Ortega filed a complaint with the Equal             F.2d 1247, 1248 n.1 (5th Cir. 1985).
Employment Opportunity Commission
(“EEOC”), which sent him a right-to-sue letter            3
                                                            See, e.g., St. Louis v. Tex. Worker’s
on September 17, 1999. He sued Alamo for               Compensation Comm’n, 65 F.3d 43, 47 (5th Cir.
sex discrimination on January 10, 2000. The            1995) (case brought under Age Discrimination in
                                                       Employment Act).

                                                   2
addresses and delivers mail to a post office.4            Espinoza, 754 F.2d at 1249. Even if we were
The presumption is useful where, as here, the             to employ a seven-day presumption, Ortega is
parties dispute the date of receipt. Although             a full seventeen days late.
the presumption may be rebutted, Ortega has
done nothing to reply other than to offer his                                      B.
own statement that he did not receive the                    Because the ninety-day limit is not
letter. The presumption of delivered mail                 jurisdictional, it is subject to equitable tolling.
cannot be rebutted simply by denying receipt;             See Espinoza, 754 F.2d at 1250. If Ortega
the very purpose of a presumption would be                had offered a compelling reason for us to toll
undercut if all that were necessary to defeat a           limitations, the ninety-day clock would not run
presumed fact were a party’s uncorroborated               continuously from late September. Ortega has
statement.                                                offered no such argument.              There is,
                                                          accordingly, no tolling in this case.
    The length of the delivered mail
presumption is not definite. In dictum, the                   The ninety-day limit for bringing title VII
Supreme Court has suggested using the                     actions serves an important policy judgment by
general three-day limit in FED. R. CIV. P. 6(e).          Congress that courts not entertain suits filed
See Baldwin County Welcome Ctr. v. Brown,                 after that time, absent extraordinary
466 U.S. 147, 148 n.1 (1984). Some courts                 circumstances. The presumption of delivery of
have adopted a period as long as seven days.              mail exists to address the very problem in this
See, e.g., Roush v. Kartridge Pak, Inc., 838 F.           caseSSa dispute between parties as to when a
Supp 1328, 1335 (S.D. Iowa. 1993). We need                letter arrived. Here, the letter did in fact arrive
not decide on a specific length, because the              at Ortega’s address some time between
twenty-four days by which Ortega’s filing                 September 17 and October 19. Ortega offers
exceeded the last day of the ninety-day limit is          no explanation why the letter was so slow to
obviously beyond any reasonable time for a                arrive, or why it may have been at his address
letter to be delivered.                                   but not actually “received” by him for so many
                                                          days.
    The limitations period for title VII is
couched in terms of the “giving of such notice”              On these facts, we are unwilling to use Or-
to the plaintiff. 42 U.S.C. §2000e-5(f)(1).               tega’s self-serving statement to overcome the
Thus, the plaintiff’s actual, physical receipt of         presumption. Accordingly, the summary judg-
the notice is not the relevant trigger for the ini-       ment is AFFIRMED.
tiation of the ninety-day window; instead, the
appropriate trigger is the delivery of the notice
to the address the plaintiff supplied to the
EEOC. See Ringgold v. Nat’l Maintenance
Corp., 796 F.2d 769, 770 (5th Cir. 1986);


   4
    See Hagner v. United States, 285 U.S. 427,
430 (1932); Rosenthal v. Walker, 111 U.S. 185,
193 (1884); Beck v. Sommerset Techs., Inc., 882
F.2d 993, 996 (5th Cir. 1989).

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