In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3326

Pamela Bobbitt,

Plaintiff-Appellant,

v.

The Freeman Companies, Dan Camp,
Larry Arnaudet, et al,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 8418--Milton I. Shadur, Judge.

Argued April 4, 2001--Decided October 11, 2001



  Before Coffey, Manion, and Diane P. Wood,
Circuit Judges.

  Coffey, Circuit Judge. Plaintiff-
appellant Pamela Bobbitt filed suit
against her former employer, Freeman
Companies, and a number of its employees,
alleging they discriminated against her
on the basis of her gender. The district
court dismissed Bobbitt’s complaint,
ruling that it was without jurisdiction
because the complaint had been filed more
than 90 days after the United States
Equal Employment Opportunities Commission
(EEOC) notified Bobbitt of her right to
sue, 42 U.S.C. sec. 2000e-5(f)(1).
Bobbitt appeals, and we affirm.

I.   Factual Background

  On July 1, 1999, Pamela Bobbitt filed a
charge with the EEOC against the Freeman
Companies, alleging employment-related
discrimination on the basis of her gender
in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. sec. 2000e-
2. On August 11, 1999, the EEOC denied
Bobbitt’s claim and issued a right-to-sue
notice via certified mail to Bobbitt’s
home address. The notice informed Bobbitt
that if she wished to sue the Freeman
Companies she "MUST DO SO WITHIN NINETY
(90) DAYS OF YOUR RECEIPT OF THIS NOTICE:
OTHERWISE YOUR RIGHT TO SUE IS LOST."
  On December 28, 1999, 139 days after the
EEOC issued the notice, Bobbitt filed
suit in the district court against the
Freeman Companies and seven of its
employees, alleging gender discrimination
pursuant to Title VII and other
supplemental state law claims. Bobbitt
alleged that her complaint was timely
because she had not received the EEOC
notice until September 29, 1999, "due to
her extensive travel schedule." Bobbitt
never did contend that the EEOC had
failed to mail the notice or that the
post office had failed to deliver it
timely.

  The trial judge reviewed the complaint
to determine whether Bobbitt had complied
with the jurisdictional requirement that
claims be filed within 90 days after the
EEOC issues the right-to-sue notice. See
Wisconsin Knife Works v. National Metal
Crafters, 781 F.2d 1280, 1282 (7th Cir.
1986); 42 U.S.C. sec. 2000e-5(f)(1). The
judge noticed a seven-week gap between
the date the EEOC issued the notice
(August 11) and the date Bobbitt alleged
she received the notice (September 29).
Because Bobbitt’s complaint was filed on
the 90th day following September 29, it
would only be timely if the 90-day filing
period commenced on September 29.

  The trial judge thus issued a order
directing Bobbitt to file an amended
complaint to address the specific circum
stances regarding her allegedly tardy
receipt of the EEOC notice. The order
directed Bobbitt to state: (1) the actual
date the EEOC notice was issued; (2) the
postmark identifying the date the notice
was mailed; (3) the date or dates on
which the post office notified Bobbitt
that she had received certified mail or
that she had need to pick up certified
mail; (4) photocopies of all relevant
documents; and (5) any other relevant
particulars bearing on the timeliness
issue.

  In an effort to comply with the court’s
order, Bobbitt filed a First Amended
Complaint on March 28, 2000./1 In the
First Amended Complaint, Bobbitt alleged
that the EEOC issued the right-to-sue
letter on August 11, 1999 and that she
received the right-to-sue letter on
September 29, 1999. Bobbitt further
alleged that she was single, had no
children, and that her job required
extensive travel. Bobbitt claimed that
she had been out of town on September 13,
14, 15, 17, 18, 23, and 24 1999. Bobbitt,
however, failed to include any
information regarding notification she
received from the post office regarding
the certified mail as well as photocopies
of any relevant documents. In essence,
the First Amended Complaint merely
repeated the vague allegation that
Bobbitt had not received the notice until
September 29, 1999 and offered seven
dates during which Bobbitt claimed to
have been away from home. Bobbitt never
explained whether the notice was
delivered to her residence or whether she
retrieved it from the post office; nor
did she ever explain when the post office
first notified her that it had certified
mail to be delivered to her. Nowhere did
Bobbitt attempt to explain why she had
been unable to pick up the notice on any
of the 42 other days between August 11,
1999 and September 29, 1999 during which
she had been at home.

  In response to Bobbitt’s vague
explanation regarding her absence from
home on seven days scattered throughout a
seven-week period, the defendants moved
to dismiss the complaint on June 29, 2000
because it was untimely. The trial court
granted the motion, holding that
Bobbitt’s Title VII claims were not filed
in a timely manner:

It cannot be gainsaid that a total
failure to check one’s mail for more than
a six-week period (the time between
EEOC’s transmittal and Bobbitt’s claimed
receipt) is patently irresponsible. After
all, even apart from the resulting
delinquency in paying any bills that may
come in during such an extended period,
no even arguable justification exists for
taking the risk that important notices or
other mailings may demand attention. And
importantly here, Bobbitt’s [complaint]
para. 12 [regarding the dates Bobbitt was
out of town] is singularly lacking in
even a word of explanation as to
Bobbitt’s not having checked her mail
during the entire four weeks that elapsed
between (say) August 16 or so (which
allows several days for transit [of the
notice] in the mails) and September 13,
1999. Hence none of the circumstances
that led Houston to distinguish St. Louis
(while still confirming its holding) are
present here.

  Bobbitt filed a notice of voluntary
dismissal of her remaining state law
claims on August 10, 2000, and shortly
thereafter the district court entered a
final judgment in favor of all
defendants. Bobbitt appeals the district
court’s finding that her suit was not
filed in a timely manner.

II.   Discussion

  We review de novo the trial court’s
dismissal of the complaint. Hanania v.
Loren-Maltese, 212 F.3d 353, 356 (7th
Cir. 2000). A Title VII plaintiff must
file her suit within 90 days from the
date the EEOC "gives notice" of her right
to sue. Houston v. Sidley & Austin, 185
F.3d 837, 838-39 (7th Cir. 1999); 42
U.S.C. sec. 2000e-5(f)(1). In most
situations, the statutory 90-day filing
period commences when the plaintiff
receives actual notice of her right to
sue. Houston, 185 F.3d at 839. However,
when the claimant does not receive the
notice in a timely fashion due to her own
fault, the "actual notice" rule does not
apply. St. Louis v. Alverno College, 744
F.2d 1314, 1316-17 (7th Cir. 1984). For
example, if a claimant fails to notify
the EEOC of a change of address, then the
claimant cannot later rely on the "actual
notice" rule. Id. at 1317. The rational
behind the "actual notice" rule, as well
as the limitation to it discussed above,
is that a claimant should not lose the
right to sue because of "events beyond
his or her control which delay receipt of
the EEOC’s notice." Id. at 1316.
Bobbitt’s case, however, does not fit
within the parameters of the rule.

  Bobbitt attempts to blame her untimely
receipt of the right-to-sue notice on her
"extensive travel schedule." Her argument
is without merit. The notice was issued
on August 11, 1999. According to the very
facts pleaded by Bobbitt, she did not
begin her "extensive travel schedule"
until September 13, 1999. This leaves 33
days, nearly five weeks, for which
Bobbitt offers no explanation whatsoever
for her failure to receive the notice.
The law presumes timely delivery of a
properly addressed piece of mail.
McPartlin v. Commissioner, 653 F.2d 1185,
1191 (7th Cir. 1981). Nowhere in her
amended complaint did Bobbitt ever assert
that the post office failed at least to
attempt to timely deliver the certified
right-to-sue notice some time shortly
after August 11 (and certainly well
before September 13), and so we presume
that the post office timely notified
Bobbitt in some manner that it had
certified mail to deliver to her. Bobbitt
simply makes no effort to explain why she
was unable to retrieve the certified mail
for the more than one-month period
between August 11 (the date the notice
was issued) and September 13 (the date
her travels began), and so her claim is
doomed by her own allegations.

  Moreover, even if Bobbitt could account
for the time period between August 11 and
September 13 (which she cannot), she was
away from home on only seven days over
the course of the next 16 days. Nowhere
does she explain why she was unable to
retrieve the certified mail on one of the
nine days during which she was at home
between September 13 and September 29. We
agree with the trial court that "a total
failure to check one’s mail for more than
a six-week period . . . is patently
irresponsible." To invoke the "actual
notice" rule set forth in Houston,
Bobbitt was required to pick up her
letter "within the time that the Post
Office’s notice gives her before it will
be returned to the sender." Houston, 185
F.3d at 839. Bobbitt’s failure to monitor
her mail, for 49 days, precludes her from
relying on the "actual notice rule."
Houston, 185 F.3d at 839; St. Louis, 744
F.2d at 1317. Indeed, her claim that she
should be excused from her failure to
timely file suit because of her
"extensive travel schedule," which kept
her away from home on only 7 out of 49
possible days, is patently frivolous.

AFFIRMED.

FOOTNOTE

/1 Bobbitt later filed a Second Amended Complaint on
June 1, 2000. The Second Amended Complaint did
not contain any additional allegations regarding
her receipt of the EEOC notice.
