                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        January 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 CHARLES A. M ARQUEZ,
               Plaintiff–Appellant,                      No. 06-2136
          v.                                    (D.C. No. 05-CIV-414 JH/RLP)
 STA TE OF N EW M EX IC O,                                 (D .N.M .)
 GEN ERA L SERVICES
 DEPARTM ENT,
               Defendant–Appellee.



                           OR D ER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).

The case is therefore ordered submitted without oral argument.

      Plaintiff filed an action against the State of New M exico, its General

Services Department, and numerous individuals, alleging that he was

constructively discharged and that he was retaliated against for filing a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
discrimination claim when the defendants refused to rehire him for various

positions. He asserted claims of age discrimination in violation of the Age

Discrimination in Employment Act, national origin discrimination in violation of

Title VII of the Civil Rights A ct of 1964 (“Title VII”), sex discrimination in

violation of Title VII; disability discrimination in violation of the Americans w ith

Disabilities Act, and retaliation in violation of Title VII.

      The case was originally filed in state court but was removed to federal

court. The United States District Court for the District of New M exico concluded

that the retaliation claim was not yet exhausted, as a decision from the Equal

Employment Opportunity Commission (“EEOC”) remained pending. By

agreement of the parties, the court entered an order dismissing the entire case

without prejudice in order to give Plaintiff an opportunity to exhaust the

retaliation claim. The dismissal order included a tolling agreement allowing

Plaintiff to refile his complaint within ninety days of receiving a right-to-sue

letter from the EEOC on the pending retaliation claim.

      The EEOC issued and mailed the right-to-sue letter on December 28, 2004.

A dispute arose over when Plaintiff actually received the letter, and thus over

when the ninety-day filing deadline was triggered. Plaintiff asserted— without

presenting any evidence— that he did not receive the triggering document until

January 10, 2005, some thirteen days after it was mailed. His subsequent

complaint was filed on April 12, 2005. On Defendant’s M otion for Summary

                                          -2-
Judgment, the trial court dismissed the case as time-barred. It analyzed the time

alternatively under the Supreme Court’s presumption under Fed. R. Civ. P. 6(e)

that in absence of contrary evidence a document is received three days after

mailing as well as under the common-law presumption of receipt within five days

of mailing. The trial court held that Plaintiff had failed to present sufficient

evidence to overcome either of these presumptions. Finally, the trial court

concluded that, even accepting Plaintiff’s claimed receipt date, the refiled

complaint was still untimely.

      As a precaution, the trial court considered Defendant’s M otion for

Summary Judgment on the merits, applying the standard M cDonnell Douglas

burden-shifting rationale. See McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The trial court concluded that Plaintiff had not met his burden of proving

that Defendant’s proffered business reason for its action was pretextual. It also

concluded that the State was immune from certain of the claims under the

Eleventh Amendment to the Constitution.

      W e need not reach the merits decision alternatively supporting the trial

court’s order dismissing the case with prejudice. Plaintiff had ninety days after

receipt of his right-to-sue letter to refile his case. Under any version of the time

of receipt of that letter, Plaintiff’s complaint was untimely filed and therefore

barred by the agreed-upon statute of limitations.




                                          -3-
The judgment of the trial court is AFFIRM ED.

                                            Entered for the Court



                                            M onroe G. M cKay
                                            Circuit Judge




                                      -4-
