     Case: 15-20096      Document: 00513190673         Page: 1    Date Filed: 09/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20096                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 11, 2015
RICHARD GAMEL,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

GRANT PRIDECO, L.P.,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CV-2636


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Richard Gamel appeals the district court’s order
granting a motion to dismiss made by Defendant–Appellee Grant Prideco, L.P.
Gamel argues that the district court erred by finding that his employment
discrimination lawsuit was not timely filed. For the following reasons, we
AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 47.5.4.
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               I. FACTUAL AND PROCEDURAL BACKGROUND
      Grant Prideco, L.P., hired Richard Gamel in 2008 to work as a machinist.
Grant Prideco terminated Gamel’s employment in May 2009, re-hired him in
October 2010, and terminated him again in January 2012. Gamel alleges that
beginning in the summer of 2011 and continuing throughout the remainder of
his time at Grant Priedco, the Hispanic employees with whom he worked
singled him out because he was white and, on several occasions, attempted to
sabotage his work. After reporting these incidents to human resources, Gamel
alleges that his supervisors suggested that if he reported anything further, he
would lose his job.
      During the latter part of 2011, Gamel’s work schedule changed so that
his start and end times shifted on several occasions. Around this time, Gamel
began to experience sleep disturbances. On January 6, 2012, a physician
diagnosed Gamel with a sleep disorder and issued a note to Grant Prideco
advising it to allow Gamel to work a more consistent schedule. Gamel contends
that Grant Prideco used the physician’s note as an excuse to prevent him from
working. Gamel’s physician later issued a second note clarifying how Grant
Prideco should accommodate Gamel’s condition. After receiving this second
note, Grant Prideco terminated Gamel’s employment because, Gamel alleges,
it could not accommodate his disability.
      Following his termination in January 2012, Gamel filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) on February 7, 2012, alleging race and disability discrimination and
retaliation.     The EEOC reviewed and dismissed Gamel’s charge and
subsequently issued a Dismissal and Notice of Rights (the “right-to-sue letter”)
on May 20, 2014. This letter advised Gamel that he could file a lawsuit against
Grant Prideco but must do so within ninety days of receipt of the notice.


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      The right-to-sue letter reflected May 20, 2014, as the “Date Mailed,” and
an internal EEOC log indicates that the letter was mailed to Gamel on this
date. Additionally, Tremayne Severin, an EEOC employee whose job includes
mailing right-to-sue letters, stated in a sworn affidavit that her records show
she mailed the right-to-sue letter on May 20, 2014. However, in a sworn
declaration, Gamel denied receiving a right-to-sue letter in May 2014.
      On June 20, 2014, Gamel sent an e-mail to an EEOC investigator,
inquiring about the status of his case. The investigator responded on June 23,
informing Gamel that his case had been dismissed and that the right-to-sue
letter had been issued. The investigator also offered to send Gamel a copy of
the right-to-sue letter and mailed that copy to the same address as the original
on June 26, 2014. Gamel claimed that this letter was the first right-to-sue
letter he received and submitted an envelope with a postmark of “June 26,
2014” as evidence that he did not receive a right-to-sue letter until late June.
      Gamel filed this discrimination lawsuit on September 12, 2014—115
days after the EEOC log and the right-to-sue letter itself indicate the letter
was mailed and seventy-eight days after the postmarked date on the letter
Gamel received in June 2014.       Grant Prideco moved to dismiss Gamel’s
complaint. The district court granted the motion, holding that Gamel’s lawsuit
was untimely because the ninety-day window, within which Gamel was
required to file his lawsuit, began on May 27, 2014, seven days after the right-
to-sue letter and EEOC log indicate the letter was mailed. Gamel timely
appealed.
                        II. STANDARD OF REVIEW
      The district court dismissed Gamel’s complaint for failure to state a
claim upon which relief could be granted under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. However, Gamel correctly points out that the district
court considered evidence outside the pleadings when ruling on Grant
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Prideco’s motion to dismiss. The district court considered three important
pieces of evidence: the affidavit of Severin stating that her records indicated
the right-to-sue letter was mailed on May 20, 2014, the EEOC log indicating
the same, and Gamel’s sworn declaration stating that he did not receive a
right-to-sue letter until late June 2014. Gamel argues that because the district
court considered matters outside the pleadings, this court should review the
district court’s decision as one for summary judgment. We agree.
      Rule 12(d) of the Federal Rules of Civil Procedure states that “[i]f, on a
motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one
for summary judgment under Rule 56.” 1 Fed. R. Civ. P. 12(d). Therefore, when
the district court considered the affidavit, sworn declaration, and EEOC log, it
converted the motion to dismiss into a motion for summary judgment. See
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1284 (5th Cir. 1990) (“When the
district court considered [matters outside the pleadings], he in fact converted
the motion to dismiss into a motion for summary judgment.”). Rule 12(d) also
requires that if a court treats a motion to dismiss as one for summary
judgment, “[a]ll parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Nowhere
does the record indicate that either party was not given a reasonable
opportunity to present material or that the procedural safeguards embodied in
Rule 56 were not observed. Furthermore, both parties rely on evidence outside
the pleadings. Therefore, this court “may review the lower court’s decision as
one for summary judgment even if the [district] court mislabeled it as a
dismissal.” Washington, 901 F.2d at 1284.


      1  Prior to 2007, the language in Rule 12(d) requiring that motions to dismiss under
Rule 12(b)(6) be treated as motions for summary judgment under Rule 56 was included in
rule 12(b).
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                                  No. 15-20096
      Because we review Grant Prideco’s motion to dismiss as a motion for
summary judgment, the Rule 56 standard of review applies.             “This court
reviews a district court’s grant of summary judgment de novo, applying the
same standards as the district court.” Test Masters Educ. Servs., Inc. v. State
Farm Lloyds, 791 F.3d 561, 564 (5th Cir. 2015).            Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “A genuine dispute as to a material fact exists ‘if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.’”
Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “We construe all
facts and inferences in the light most favorable to the nonmoving party.”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks
omitted). However, “[s]ummary judgment may not be thwarted by conclus[ory]
allegations, unsupported assertions, or presentation of only a scintilla of
evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
                              III. DISCUSSION
      Prior to pursuing claims in federal court, a plaintiff alleging employment
discrimination must exhaust his administrative remedies. Dao v. Auchan
Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (per curiam). A plaintiff must
timely file a charge of discrimination with the EEOC, and if the EEOC
dismisses this charge, it must “notify the person aggrieved and within ninety
days after the giving of such notice a civil action may be brought against the
respondent named in the charge.” 42 U.S.C. § 2000e-5(f)(1). Plaintiffs have
ninety days from the date they receive this notice from the EEOC, i.e., a right-
to-sue letter, to file a lawsuit. Duron v. Albertson’s LLC, 560 F.3d 288, 290 (5th
Cir. 2009) (per curiam) (“A plaintiff alleging employment discrimination must
file a civil action no more than ninety days after she receives statutory notice
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of her right to sue from the EEOC.”); Taylor v. Books A Million, Inc., 296 F.3d
376, 379 (5th Cir. 2002) (“Title VII provides in no uncertain terms that the
ninety-day period of limitations begins to run on the date that the EEOC right-
to-sue letter is received . . . .”). The requirement that a plaintiff file a lawsuit
within this ninety-day period is “strictly construed.” Taylor, 296 F.3d at 379;
see also Butler v. Orleans Parish Sch. Bd., No. CIV. A-00-0845, 2001 WL
1135616, *2–3 (E.D. La. Sept. 25, 2001) (dismissing Title VII claims when
plaintiff filed her complaint one day beyond the ninety-day period). “Although
filing of an EEOC charge is not a jurisdictional prerequisite, it ‘is a
precondition to filing suit in district court.’” Taylor, 296 F.3d at 379 (quoting
Dao, 96 F.3d at 789). Thus, whether the district court properly dismissed
Gamel’s lawsuit as untimely depends on whether Gamel received notice of the
right to sue from the letter mailed May 20, 2014, or the letter mailed June 26,
2014.
        In concluding that Gamel received the right-to-sue letter in May 2014,
the district court presumed that he received it seven days after the EEOC log,
and the letter itself, indicated it was mailed. The court held that Gamel failed
to rebut the presumption of receipt by simply stating that he did not receive a
right-to-sue letter in May 2014. The court also ruled that the envelope Gamel
provided with the postmark “June 26, 2014” was not sufficient to rebut the
presumption because it could have easily contained a copy of the original right-
to-sue letter.   We agree with the district court and address whether the
presumption of receipt applies in this case and whether Gamel rebutted that
presumption in turn.
   A. Gamel Is Presumed to Have Received the Right-to-Sue Letter
                                on May 23, 2014
        When doubt exists as to whether an addressee received a letter, we have
previously applied the mailbox rule, which provides that “[p]roof that a letter
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                                 No. 15-20096
properly directed was placed in a U.S. post office mail receptacle creates a
presumption that it reached its destination in the usual time and was actually
received by the person to whom it was addressed.” United States v. Ekong, 518
F.3d 285, 287 (5th Cir. 2007) (per curiam) (quoting Beck v. Somerset Techs.,
Inc., 882 F.2d 993, 996 (5th Cir. 1989)); see also Taylor, 296 F.3d at 379
(applying presumption of receipt in Title VII context). Placing a letter in the
mail may be proved by circumstantial evidence, such as evidence of the
sender’s standard mailing practices. Custer v. Murphy Oil USA, Inc., 503 F.3d
415, 420 (5th Cir. 2007).    Furthermore, “[a] sworn statement is credible
evidence of mailing for the purposes of the mailbox rule.” Id. (quoting Schikore
v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 964 (9th Cir. 2001)).
      In this case, Grant Prideco submitted the affidavit of the EEOC
employee responsible for mailing right-to-sue letters in which she stated that
her records indicated she mailed the right-to-sue letter on May 20, 2014.
Additionally, Grant Prideco provided circumstantial evidence in the form of an
internal EEOC log and the stamped date on the letter itself reflecting May 20,
2014, as the mailing date. This evidence is more than sufficient to create a
presumption that Gamel received the right-to-sue letter. See Ekong, 518 F.3d
at 287. Consistent with Jenkins v. City of San Antonio Fire Department, which
held that when “the date of receipt is not known, courts should apply a
presumption that the plaintiff received the notice in three days,” the evidence
submitted by Grant Prideco creates a presumption that Gamel received the
right-to-sue letter from the EEOC on May 23, 2014. 784 F.3d 263, 267 (5th Cir.
2015) (footnote omitted).
      In Jenkins, however, we noted that a presumption of receipt “is
unnecessary and inappropriate, of course, if there is other evidence showing a
date of receipt earlier or later, such as postal evidence or testimony from the
plaintiff or other persons with personal knowledge.” Id. at 267 n.3. Gamel
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argues that because he submitted a sworn declaration stating that he did not
receive a right-to-sue letter until late June 2014, he has provided enough
evidence to prevent the creation of a presumption of receipt. However, Gamel’s
argument is unpersuasive for two reasons. First, in Jenkins, the dispute
concerned when the plaintiff received a right-to-sue letter, not whether he received it
at all. Id. at 265–67. In this case, the parties dispute whether Gamel received
the May 2014 letter at all, not simply the date on which he received it, so the
statement in Jenkins is not applicable here. Second, while evidence that a
letter was never mailed could prevent a court from presuming receipt, in
Custer we refused to adopt a rule “such that a plaintiff’s bare assertion of non-
receipt could create a genuine issue of material fact to survive summary
judgment.” 503 F.3d at 421.
      Gamel also contends that the envelope with a postmark of “June 26,
2014” and an e-mail from the EEOC offering to send him another copy of the
right-to-sue letter along with his sworn declaration were sufficient to prevent
the district court from presuming receipt in May 2014. However, the district
court correctly concluded that both the e-mail and envelope are consistent with
Gamel receiving a copy of the right-to-sue letter in June 2014, 2 and the receipt
of the copy does not imply the non-receipt of the original. Thus, with only his
sworn declaration as evidence that he did not receive the right-to-sue letter in
May 2014, Gamel has not provided sufficient evidence to prevent the
application of a presumption of receipt.
          B. Gamel has Not Rebutted the Presumption of Receipt
      Once the presumption of receipt applies, “[i]f a particular plaintiff can
offer some evidence to demonstrate that he or she did not receive the letter


      2  A second right-to-sue letter does not restart the ninety-day window in which a
claimant may file a lawsuit. Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827,
828 (2d Cir. 1986) (per curiam).
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within the allotted time, the presumption can certainly be overcome.” Morgan
v. Potter, 489 F.3d 195, 197 n.1 (5th Cir. 2007). Gamel offers the same evidence
to rebut the presumption of receipt as he does to prevent its application in the
first place.   However, “[t]he addressee’s ‘bare assertion of non-receipt’ is
insufficient to rebut the [presumption].” Ekong, 518 F.3d at 287 (quoting
Custer, 503 F.3d at 421). In Ekong, the government established a presumption
that the defendant received a letter by submitting the affidavit of the employee
responsible for mailing the letter, in which she stated she mailed it, as well as
business records indicating the letter had been mailed. Id. The defendant
submitted only her own affidavit, in which she stated she never received the
letter, and the court held that this affidavit was not sufficient to rebut the
presumption of receipt. Id. We are bound by the court’s decision in Ekong, and
the relevant facts of this case are similar.         Therefore, Gamel’s sworn
declaration is not sufficient to overcome the presumption of receipt. We note
that while the circumstantial evidence submitted by Gamel shows that he
received a copy of the right-to-sue letter in late June 2014, that evidence does
not show that he did not receive the original right-to-sue letter on May 23,
2014.
        Gamel argues that this court’s decision in Duron, which vacated a
summary judgment when the plaintiff stated that she did not receive a right-
to-sue letter until two years after the date reflected in the letter, supports his
ability to rebut a presumption of receipt with only a sworn declaration. 560
F.3d at 290–91. However, in Duron the defendant did not “produce[] any
business records or other physical evidence that the EEOC sent the notice of
the right to sue [and] . . . submitted no affidavits in support of the mailing,”
while in this case the defendant has produced both an affidavit and an internal
log showing the EEOC mailed the letter. Id. at 291. Therefore, this case offers


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                                 No. 15-20096
no support for Gamel’s position that a sworn declaration can rebut the
presumption, and Ekong positively refutes that position. 518 F.3d at 287.
      Because Grant Prideco submitted sufficient evidence to create a
presumption that Gamel received the right-to-sue letter from the EEOC on
May 23, 2014, and because Gamel failed to rebut this presumption, Gamel’s
lawsuit was not timely. Gamel filed this lawsuit 112 days after he is presumed
to have received the right-to-sue letter, or twenty-two days after his ninety-day
window closed.
                              IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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