           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0122P (6th Cir.)
                    File Name: 00a0122p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                 ;
                                  
 GWENDOLYN T. GRAHAM-
                                  
 HUMPHREYS,
                                  
        Plaintiff-Appellant/
                                  
                                      Nos. 98-5971/6098
            Cross-Appellee,
                                  
                                   >
            v.                    
                                  
                                  
                                  
 MEMPHIS BROOKS MUSEUM

          Defendant-Appellee/ 
 OF ART, INC.,

                                  
               Cross-Appellant. 
                                 1
       Appeal from the United States District Court
    for the Western District of Tennessee at Memphis.
   No. 96-02639—Jon Phipps McCalla, District Judge.
                  Argued: September 22, 1999
                Decided and Filed: April 6, 2000
  Before: KRUPANSKY* and NORRIS, Circuit Judges;
              GWIN, District Judge.




    *
     The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
2    Graham-Humphreys v. Memphis Nos. 98-5971/6098                Nos. 98-5971/6098 Graham-Humphreys v. Memphis                             19
     Brooks Museum of Art                                                                   Brooks Museum of Art

                    _________________                             suffered by the plaintiff were self-induced and solely the
                                                                  product(s) of her own neglect, carelessness, inattentiveness,
                         COUNSEL                                  indifference, dereliction, and/or remissness in the exercise of
                                                                  minimal diligence.12        See Banks, 855 F.2d at 327
ARGUED: G. Hite McLean, Jr., Memphis, Tennessee, for              (propounding that a litigant who seeks equitable tolling “must
Appellant. Martin F. Thompson, ALLEN, SCRUGGS,                    come with clean hands.”).
SOSSAMAN & THOMPSON, Memphis, Tennessee, for
Appellee. ON BRIEF: G. Hite McLean, Memphis,                        Accordingly, because the district court correctly dismissed
Tennessee, for Appellant. Martin F. Thompson, Kirk A.             Graham-Humphreys’ complaint as time barred, this review
Caraway, ALLEN, SCRUGGS, SOSSAMAN &                               has no occasion to address the defendant museum’s alternate
THOMPSON, Memphis, Tennessee, for Appellee.                       argument, advanced via cross-appeal, that her complaint
                                                                  should have been dismissed for insufficiency of process.
                    _________________
                                                                    Therefore, in case no. 98-5971 (the plaintiff’s appeal), the
                        OPINION                                   district court’s dismissal of the plaintiff’s complaint as barred
                    _________________                             by limitations is AFFIRMED. Case no. 98-6098 (the
                                                                  defendant’s cross-appeal) is DISMISSED AS MOOT.
  KRUPANSKY, Circuit Judge. In case no. 98-5971, the
plaintiff-appellant Gwendolyn T. Graham-Humphreys
(“Graham-Humphreys”) has appealed the district court’s
summary dismissal, as barred by statutory limitations, of her
gender-based employment discrimination complaint anchored
in Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (“Title VII”). In case no. 98-6098, the
defendant-appellee Memphis Brooks Museum of Art, Inc.
(“Brooks” or “the museum”) has cross-appealed the trial
court’s rejection of its motions (1) to quash the plaintiff’s
summons for technical defects and (2) to dismiss the action
for failure to timely serve valid process; and has concordantly
challenged the trial court’s retroactive curative amendment of
the deficient summons.
  On March 4, 1994, Brooks retained the plaintiff, an                 12
                                                                          The arguable absence of any significant prejudice to the defendant
unmarried woman, to serve as its Deputy Director of               if this court were to permit the plaintiff’s filing out of rule is immaterial,
Corporate Relations. In that capacity, Graham-Humphreys           because no other factor supports the plaintiff’s equitable tolling posture.
was responsible for promoting corporate financial                 See Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (“although
sponsorship of the museum. While so employed and still            absence of prejudice is a factor to be considered in determining whether
single, the plaintiff became pregnant. Subsequently, on           the doctrine of equitable tolling should apply once a factor that might
                                                                  justify tolling is identified, it is not an independent basis for invoking the
January 3, 1995, she married Anderson Humphreys. Three            doctrine.”) (brackets and ellipse omitted) (quoting Baldwin County
days later, on January 6, 1995, Graham-Humphreys gave birth       Welcome Center v. Brown, 466 U.S. 147, 152 (1984)).
18   Graham-Humphreys v. Memphis Nos. 98-5971/6098                 Nos. 98-5971/6098 Graham-Humphreys v. Memphis                3
     Brooks Museum of Art                                                                    Brooks Museum of Art

action prior to the June 10, 1996 expiration of limitations.       to a daughter. Immediately thereafter, the plaintiff began a
See Scholar v. Bell, 963 F.2d 264, 268 (9th Cir. 1992)             company-authorized voluntary twelve-week unpaid maternity
(denying equitable tolling because the plaintiff had 75 days       leave of absence.
after actual receipt of her RTS notice to file a civil
complaint).                                                           During the second week of February, 1995, while on
                                                                   maternity leave, Graham-Humphreys received a telephone
   At any rate, even a pro se litigant, whether a plaintiff or a   call from Chuck Beegle (“Beegle”), the museum’s Chief
defendant, is required to follow the law. In particular, a         Operations Officer. He informed her that, because available
willfully unrepresented plaintiff volitionally assumes the risks   funding had been exhausted, her position with the museum
and accepts the hazards which accompany self-representation.       had been eliminated. Nonetheless, on April 3, 1995, upon the
See McNeil v. United States, 508 U.S. 106 (1993), wherein          expiration of her scheduled twelve-week absence, Graham-
the Supreme Court commented that “we have never suggested          Humphreys reported for work at the museum. Brooks’
that procedural rules in ordinary civil litigation should be       Director, E.A. Carmean (“Carmean”), then personally
interpreted so as to excuse mistakes by those who proceed          confirmed that her former post at the museum no longer
without counsel.” Id. at 113. This circuit has remarked that       existed.     Nevertheless, within several days of that
“[i]t is well-settled that ignorance of the law alone is not       conversation, Beegle counseled Graham-Humphreys, via
sufficient to warrant equitable tolling.” Rose v. Dole, 945        telephone, that she should “sit tight” while the museum
F.2d 1331, 1335 (6th Cir. 1991) (per curiam). Accord,              resolved whether she would eventually be recalled from
United States v. Baker, 197 F.3d 211, 218 (6th Cir. 1999)          “layoff” status.
(reaffirming, in sustaining a criminal defendant-appellant’s
conviction, “the centuries-old maxim that ‘ignorance of the          On approximately April 16, 1995, Graham-Humphreys
law is no excuse’” and remarking that, in most circumstances,      discovered, at the front door of her residence, a copy of an
“[t]o allow an ignorance of the law excuse would encourage         unfavorable written assessment of her job performance, which
and reward indifference to the law.”), cert. denied, 2000 WL       had been executed by Carmean, purportedly on December 30,
189836 (U.S. Feb. 28, 2000) (No. 99-8027).                         1994. That report revealed that the plaintiff had scored only
                                                                   27 quality points on a 60 point scale. The reviewer had
   In conclusion, the plaintiff’s knowledge or suspicion that      opined that “deficiencies [were] evident” in the plaintiff’s
the EEOC had issued an RTS letter which the Postal Service         judgment, initiative, reliability, perseverance, and stability;
attempted to deliver to her on March 8, 1998, her actual           and additionally noted her failure to recruit new commercial
knowledge that ninety-day limitations began running upon her       donors. At no time thereafter did Brooks restore the
receipt of notice from the EEOC of her right to sue, her           plaintiff’s employment.
perplexing failure to inaugurate her lawsuit within the 74 days
remaining on her limitations term following her physical             On August 24, 1995, Graham-Humphreys instigated a
acceptance of her RTS letter, her unexcused dilatory retrieval     formal administrative charge of employment discrimination
of that document from the post office, her listless efforts to     against the museum before the United States Equal
secure and retain a continuity of necessary professional legal     Employment Opportunity Commission (“EEOC”) and the
assistance, and her apparent contempt for proper court             Tennessee Human Rights Commission (“THRC”), wherein
procedures and other legal requisites, marshaled to forestall      she alleged that “I believe I have been discriminated against
equitable tolling, because any disadvantage(s) allegedly           because of my sex, female and pregnancy in violation of Title
4    Graham-Humphreys v. Memphis Nos. 98-5971/6098                Nos. 98-5971/6098 Graham-Humphreys v. Memphis                17
     Brooks Museum of Art                                                                   Brooks Museum of Art

VII of the Civil Rights Act of 1964, as amended.” However,          statute of limitations: 1) lack of notice of the filing
the EEOC/THRC took no action on her complaint. On                   requirement; 2) lack of constructive knowledge of the
February 28, 1996, the claimant requested, in writing, that the     filing requirement; 3) diligence in pursuing one’s rights;
EEOC issue her a Right-to-Sue (“RTS”) notice. 42 U.S.C.             4) absence of prejudice to the defendant; and 5) the
§ 2000e-5(f)(1). The plaintiff has conceded that she expected       plaintiff’s reasonableness in remaining ignorant of the
to receive that official document via United States mail.           particular legal requirement.
Additionally, her February 28, 1996 letter to the EEOC
disclosed that her attorney, Gail Mathes, would soon request      Truitt, 148 F.3d at 648 (citation omitted).
a copy of her claim file.
                                                                    However, the Truitt court did not indicate that its list was
   In response to her request, the EEOC on March 7, 1996          comprehensive, nor that each of the five considerations would
generated Graham-Humphreys’ RTS memorial, and posted it,          be material in all cases. Rather, “[t]he propriety of equitable
via United States certified mail, to her residential address of   tolling must necessarily be determined on a case-by-case
record at 4741 Mint Drive, Memphis, Tennessee 38117               basis.” Id. (citation omitted).
(“Mint Drive”). Graham-Humphreys resided at that location
at least between February 1996 through March 1996. On               The district court did not abuse its discretion by rejecting
Friday, March 8, 1996, Postal Carrier Danny Stafford              the plaintiff’s request for equitable tolling. As developed
unsuccessfully attempted delivery of the complainant’s RTS        above, the record evidence on summary judgment review,
letter at her Mint Drive address. The mailman then deposited,     when construed most favorably on behalf of the plaintiff (see
at that residence, a form Postal Service attempt-to-deliver       note 7 above), reflected that she had constructive notice,
notification, which stated that a certified letter addressed to   within the March 8 through March 13, 1996 mailing period,
the plaintiff could be claimed at the local post office. That     that the EEOC had issued her RTS letter. Moreover, as
postal notice related the address, telephone number, and          previously illustrated, the plaintiff’s employment obligations
business hours of the nearby branch facility. Graham-             did not impede her ability, in the exercise of reasonable
Humphreys received Stafford’s advisory notice on March 8,         diligence, to promptly accept her RTS notice.
1996, but she took no responsive action.
                                                                    Prior to retrieving her RTS document, Graham-Humphreys
   Five days later, on Wednesday, March 13, 1996, in              knew that she was required to commence her judicial
conformity with standard Postal Service practices, the letter     complaint within a finite period. Irrespective of whether the
handler deposited a second, and final, notice of attempted        plaintiff had the benefit of legal counsel or was proceeding
delivery at Mint Drive. That document explicitly cautioned        pro se, a reasonably cautious and prudent Title VII claimant
that failure to claim the certified envelope on or prior to       in Graham-Humphreys’ posture would, as a modest
Saturday, March 23, 1996, would prompt its return to the          precaution, assume that limitations began passing on or near
sender. Graham-Humphreys received that notification on            the earliest potential date, and would consequently initiate her
March 13, 1996. Ignoring that message as well, the                civil action within ninety days of her receipt of the postman’s
complainant neglected to retrieve her certified letter by the     note which had apprized her of the certified letter which later
stated March 23, 1996 deadline.                                   proved to be her RTS notice. The claimant had abundant time
                                                                  (74 days) following the EEOC’s March 28, 1996 actual
                                                                  release to her of the RTS notice in which to institute her court
16   Graham-Humphreys v. Memphis Nos. 98-5971/6098                 Nos. 98-5971/6098 Graham-Humphreys v. Memphis                              5
     Brooks Museum of Art                                                                    Brooks Museum of Art

[an] erroneous legal standard.” Romstadt v. Allstate Ins. Co.,        Accordingly, on Tuesday, March 26, 1996, the Postal
59 F.3d 608, 615 (6th Cir. 1995) (quotations and citations         Service returned it, stamped “unclaimed,” to the issuing
omitted).                                                          EEOC office. Two days later, on Thursday, March 28, 1996,
                                                                   as a courtesy, an EEOC employee alerted Graham-Humphreys
  Graham-Humphreys has protested that the lower court              by telephone that her RTS document had been issued and
abused its discretion by declining to toll limitations, because    posted, but   had been returned as an unclaimed certified
(1) her employment commitments allegedly contributed to her        dispatch.1 Later that day, the plaintiff personally appeared at
failure to timely collect her certified mail; (2) both the         the EEOC district      headquarters to accept her RTS
EEOC’s RTS notice, and the EEOC-composed memorial of               authorization.2 Upon the EEOC’s release of that document to
her acceptance of that document, pronounced that the ninety-
day filing timetable commenced to accrue upon her “receipt”
of the RTS notification, which she understood to mean her              1
                                                                        Three days earlier, on Monday, March 25, 1996, at Graham-
taking actual physical custody of that document; and (3) she       Humphreys’ behest, her attorney Mathes had in writing requested the
had purportedly acted without professional legal advice            EEOC’s Memphis office to send her all documents within the plaintiff’s
regarding the limitations question.                                claim file. In response, the EEOC promptly forwarded the requested
                                                                   documentation to Mathes, which included a reproduction of its March 7,
   The federal courts sparingly bestow equitable tolling. Irwin    1996 certified RTS notice addressed to the plaintiff.
v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990);             2
Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); Brown v.              The plaintiff has not denied that she had numerous opportunities to
Mead Corp., 646 F.2d 1163, 1165 (6th Cir. 1981). Typically,        take possession of her certified delivery prior to its return to the EEOC’s
                                                                   Memphis office. During March 1996, the local postal depot operated
equitable tolling applies only when a litigant’s failure to meet   from 8:30 a.m. to 5 p.m. on weekdays and from 10 a.m. to 2 p.m. on
a legally-mandated deadline unavoidably arose from                 Saturdays. During that same period, Graham-Humphreys typically
circumstances beyond that litigant’s control. See Baldwin          worked from 10 a.m. to 4 p.m. on weekdays and did not work on
County, 466 U.S. at 151 (“One who fails to act diligently          Saturdays. Additionally, record proof disclosed that Graham-Humphreys’
cannot invoke equitable principles to excuse that lack of          flexible schedule during March 1996 permitted her, on occasion, to begin
                                                                   work later than 10 a.m., or to depart her workplace earlier than 4 p.m..
diligence.”); see also Johnson v. United States Postal Service,    Furthermore, her immediate retrieval of the certified mailing on March 28,
64 F.3d 233, 238 (6th Cir. 1995), which directed that a            1996, the same day as the EEOC’s telephonic advisory that her RTS letter
petitioner’s failure to satisfy a deadline caused by “garden       had been returned to the district headquarters, strongly implies that, if she
variety neglect” cannot be excused by equitable tolling.           had so elected, she could have claimed that letter within the five day grace
(Citing Irwin, 498 U.S. at 96). Absent compelling equitable        period for mailing. At deposition, the plaintiff conceded that no
                                                                   emergency or other impediment obstructed her ability to claim her mail
considerations, a court should not extend limitations by even      within the designated time frame.
a single day. Johnson v. United States Postal Service, 863
F.2d 48 (Table), 1988 WL 122962, at *3 (6th Cir. Nov. 6,                Moreover, the plaintiff acknowledged that she knew, or at least
1988).                                                             suspected, upon receiving the first advisory of attempted delivery on
                                                                   March 8, 1996 that the certified package which awaited her contained her
  The Sixth Circuit has decreed:                                   RTS notice, and candidly admitted that she had no justification or excuse
                                                                   for not retrieving it. She testified, “they attempted to deliver it to me.
                                                                   And I don’t know why I didn’t go over there and get it.” Graham-
  We have identified five factors to consider when                 Humphreys also admitted that she knew that the legally-allotted time
  determining the appropriateness of equitably tolling a           within which she was required to commence her legal action had started
                                                                   to expire prior to her personal acceptance her RTS notice at the EEOC
6      Graham-Humphreys v. Memphis Nos. 98-5971/6098                      Nos. 98-5971/6098 Graham-Humphreys v. Memphis                 15
       Brooks Museum of Art                                                                         Brooks Museum of Art

her, Graham-Humphreys executed an acknowledgment of                       Accordingly, the deposit of a postal attempt-to-deliver
receipt, which stated: “I, Gwendolyn Tabb Graham-                         advisory at the claimant’s last known residential address of
Humphreys received my copy of the Notice of Right to Sue                  record within the five-day mailing interval ordinarily will
dated 3/7/96 for my charge #250952044 today in the                        constitute constructive receipt of the RTS notice by the
Memphis District Office of EEOC.” In turn, the subject RTS                claimant.
letter advised, in part:
                                                                             Any more lenient rule would illicitly license a Title VII
    This is your NOTICE OF RIGHT TO SUE. It is issued                     claimant to indefinitely extend limitations by avoiding
    at your request. If you intend to sue the respondent(s)               acceptance of an RTS notice, thereby circumventing the
    named in your charge, YOU MUST DO SO WITHIN                           Congressional mandate that private Title VII lawsuits should
    NINETY (90) DAYS OF YOUR RECEIPT OF THIS                              be initiated within ninety days of the EEOC’s “giving” of
    NOTICE: OTHERWISE YOUR RIGHT TO SUE IS                                official authorization to sue. 42 U.S.C. § 2000e-5(f)(1). That
    LOST.                                                                 precise rationale has undergirded the established rule,
                                                                          illustrated herein, that the mailing and delivery, presumptively
(Capitalizations in original).                                            accomplished within the five-day period to accommodate
                                                                          delivery, of an RTS announcement to the plaintiff’s address
  Between March 28, 1996 and mid-June, 1996, attorney                     of record, even if erroneous, actuates the limitations period
Mathes endeavored, unsuccessfully, to negotiate a resolution              after expiration of the five day grace period, even if the RTS
of Graham-Humphreys’ claim, by means which included a                     notice was ultimately returned to the EEOC as undeliverable
June 4, 1996 settlement proposal letter addressed to Carmean.             or unclaimed.
On June 21, 1996, the plaintiff, purportedly acting pro se,
inaugurated the instant Title VII action in federal district                 The plaintiff, in rebuttal, has proposed that, even if the
court. The record disclosed that Timothy Smith, an attorney               passage of ninety-day limitations actuated five days following
in Mathes’ firm, had drafted the complaint that initiated her             the Postal Service’s March 7, 1996 mailing of her RTS notice,
federal lawsuit, for which Graham-Humphreys had paid $500.                those temporal bounds nevertheless should be extended, as
Two lawyers from Mathes’ firm continued to advise Graham-                 equitably tolled, beyond June 10, 1996, to validate her June
Humphreys following the filing of her complaint, for which                21, 1996 court complaint. See Zipes v. Trans World Airlines,
services she paid an additional $700 fee. On July 3, 1996, via            Inc., 455 U.S. 385 (1982), which explained that violation of
Mathes’ office, the plaintiff lodged an amendment to her                  the Title VII ninety-day filing mandate erected no
complaint in which she requested $100,000 in compensatory                 comprehensive jurisdictional impediment to a civil action but
damages and demanded a jury trial. The plaintiff has                      instead merely raised a limitations barrier which “is subject to
acknowledged that she knew that her court case had to be                  waiver, estoppel, and equitable tolling.” Id. at 392-98. A
instituted within a legally prescribed period, although she               district court’s application or rejection of equitable tolling is
“just relied on [her] attorneys to kind of guide [her] along on           scrutinized for abuse of discretion. Truitt v. County of Wayne,
that.”                                                                    148 F.3d 644, 648 (6th Cir. 1998). Generally, an abuse of
                                                                          discretion is evident “when the reviewing court is firmly
                                                                          convinced that a mistake has been made. A district court
office, by avowing at deposition that “[s]omehow or another I found out   abuses its discretion when it relies on clearly erroneous
that I needed to get down there [the EEOC headquarters] before the time   findings of fact, or when it improperly applies the law or uses
deadline.”
14   Graham-Humphreys v. Memphis Nos. 98-5971/6098                 Nos. 98-5971/6098 Graham-Humphreys v. Memphis                            7
     Brooks Museum of Art                                                                    Brooks Museum of Art

191322 (6th Cir. March 17, 1999) (per curiam) (unpub’d);              Mathes and Graham-Humphreys did not memorialize their
Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir.      attorney-client relationship in writing. At some point after the
1997).                                                             filing of the July 3, 1996 amended complaint, the Mathes firm
                                                                   stopped performing legal services for Graham-Humphreys.
   Even assuming, arguendo, that Graham-Humphreys had              Subsequently, during September or October 1996, the
not conceded that she suspected that the certified notice at       plaintiff consulted Deborah Pagan, another counselor, who
issue was her EEOC lawsuit authorization, she would                determined that service of the summons and amended
nonetheless properly be charged with such knowledge,               complaint upon the museum had not yet been accomplished.
because she indisputably knew that her RTS notice would be         Pagan furnished Graham-Humphreys with a completed
proximately arriving by United States mail. Beyond                 original summons and several photocopies, and directed her
contravention, most adult Americans are cognizant that             to file the summons with the district court clerk’s office for
critical, time-sensitive official communications are frequently    processing, and then to provide copies of all documents to a
dispatched via certified mail. Fed. R. Evid. 201. In the           professional process server, Theresa Moses, for service upon
implicated scenario, the requisites of reasonable diligence        a museum representative. At deposition, Graham-Humphreys
demanded that the plaintiff promptly discharge her less-than-      did not relate Pagan’s precise instructions, nor did she recall
demanding obligation to retrieve her certified delivery. Cf.       exactly what actions she (the plaintiff) had taken in the court
Hunter, which observed that a plaintiff’s delayed actual           clerk’s office or which paper(s) she subsequently deposited in
receipt of an RTS apprisal caused by a lapse in the discharge      Moses’ courthouse message box; she simply attested that she
of a minimal burden to inform the EEOC of new address              presented the documents at the courthouse and then “gave
would not overcome the presumption of receipt of the RTS           [Moses] whatever I was told I was supposed to give her.” In
letter within five days of mailing. 790 F.2d at 474-75.            any event, the summons which Moses served upon Director
                                                                   Carmean on October        18, 1996 (119 days following the
   Because the plaintiff in this action received imputed notice    complaint’s filing)34had not been properly conformed by the
of her right to sue on March 8, 1996, which was within five        court clerk’s office.
days of the March 7, 1996 mailing of the EEOC’s advisory
notice, her litigation inauguration threshold had been               On November 7, 1996, Brooks, pursuant to Fed. R. Civ. P.
activated on March 13, 1996; it expired ninety days later, on      12(b)(4), moved to quash the summons for insufficiency and
June 10, 1996. Thus, her June 21, 1996 judicial complaint          dismiss the action for failure to serve valid process within 120
was foreclosed. Generally, when the EEOC posts an RTS              days of the complaint’s filing. After receiving the defendant’s
notice by United States certified mail to a Title VII claimant,    moving papers, the plaintiff telephoned Pagan, who referred
the ninety-day limitations clock begins to tick five days          her to a specialist in employment law identified simply as
thereafter, if, within that five-day passage, the Postal Service
had deposited, at the plaintiff’s address of record, a written
notification that a mail carrier had unsuccessfully attempted          3
                                                                        Because Graham-Humphreys filed her complaint on June 21, 1996,
a certified delivery. That rule governs even if that attempt-to-   Fed. R. Civ. P. 4(m) required service upon the defendant or before
deliver advisory notice did not identify the EEOC as the           October 19, 1996. See also Fed. R. Civ. P. 6(a).
originator of the letter in question, because a reasonable Title
                                                                       4
VII claimant should know that the implicated certified                   That summons bore neither the court clerk’s signature, the district
document may be the awaited RTS authorization.                     court’s official seal, nor the deadline by which the defendant was required
                                                                   to respond. See Fed. R. Civ. P. 4(a) & (b).
8       Graham-Humphreys v. Memphis Nos. 98-5971/6098                         Nos. 98-5971/6098 Graham-Humphreys v. Memphis                          13
        Brooks Museum of Art                                                                            Brooks Museum of Art

“Kathleen.” Graham-Humphreys consulted Kathleen on                            F.2d at 474-75. Accord, Johnson v. United States Postal
several occasions. Subsequently, during a December 30,                        Service, 64 F.3d 233, 237-38 (6th Cir. 1995); Johnson-Brown
1996 status conference, the plaintiff,      represented by yet                v. Wayne State University, 173 F.3d 855 (Table), 1999 WL
another attorney, Hite McLean, Jr.,5 moved to amend the
summons to correct its fatal defects. Fed. R. Civ. P. 4(a). On
January 13, 1997, the trial court granted the plaintiff’s motion
to amend the summons and concurrently overruled the                           conformity therewith, the EEOC charge form executed on August 24,
defendant’s  motions to quash the summons and dismiss the                     1995 by Graham-Humphreys recited that “I will advise the agencies if I
                                                                              change my address or telephone number and cooperate fully with them in
case.6                                                                        the processing of my charge in accordance with their procedures.” The
                                                                              plaintiff has urged that, because the Regulations compel a Title VII
  Thereafter, on January 30, 1998, the defendant moved,                       claimant to provide the EEOC with an accurate address, the courts punish
under Fed. R. Civ. P. 56, for summary judgment, charging                      failure to do so; whereas no such penalty is warranted against claimants
that the plaintiff had commenced her action more than ninety                  like Graham-Humphreys who have furnished a valid address to the
days following the RTS notification, in violation of                          EEOC.
limitations. 42 U.S.C. § 2000e-5(f)(1). On April 29, 1998,                         Graham-Humphreys’ contention is misconceived. Because a Title
the lower court7sustained that motion, and dismissed the case                 VII plaintiff has a manifest common sense obligation to exercise ordinary
with prejudice. On May 5, 1998, the plaintiff moved, under                    diligence in prosecuting his or her claim, even in the absence of an
                                                                              explicit official directive, sister circuits have resolved that a Title VII
                                                                              claimant has constructive notice of his or her right to litigate on the day
                                                                              that the post office has delivered the RTS letter to his or her correct
    5                                                                         address, even though the claimant had not actually received that writing
      The plaintiff retained McLean on December 27, 1996, three days
prior to the hearing.                                                         until a later date. See Million v. Frank, 47 F.3d 385, 387-88 (10th Cir.
                                                                              1995), which concluded that the limitations period began to accrue upon
    6                                                                         the plaintiff’s wife’s acceptance of his certified EEOC notification at his
      On January 17, 1997, Brooks moved for reconsideration of that           residence, even though he had not reviewed that document until six days
ruling. The trial court denied that motion on January 28, 1997.               after its delivery; Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir.
    7                                                                         1992), which ruled that the acceptance of delivery of an RTS notice by the
       A court may grant summary judgment under Fed. R. Civ. P. 56 only       plaintiff’s daughter comprised constructive receipt by the plaintiff, even
if, after construing the record evidence, and the reasonable inferences       though the plaintiff did not attain actual notice of her right to sue until
which may be drawn therefrom, most favorably for the party opposing the       several days later, noting that the law must preclude “a manipulable open-
motion, the proof could not support a judgment in favor of the nonmoving      ended time extension which could render the statutory limitation
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,       meaningless” (citation omitted); and Espinoza v. Missouri Pacific R. Co.,
587-88 (1986). “Credibility determinations, the weighing of the evidence,     754 F.2d 1247, 1248-50 (5th Cir. 1985), which directed that delivery of
and the drawing of legitimate inferences from the facts are jury functions,   the RTS notice to the plaintiff’s home activated the limitations period
not those of a judge . . . . The evidence of the non-movant is to be          even if the plaintiff did not actually receive that notice until some later
believed, and all justifiable inferences are to be drawn in his favor.”       date because he was out of town). Accord, St. Louis v. Alverno College,
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (citation omitted).       744 F.2d 1314, 1316-17 (7th Cir. 1984); Law v. Hercules, Inc., 713 F.2d
See also Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S.        691, 692-93 (11th Cir. 1983) (per curiam). As developed herein, the
451, 456 (1992); Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).           same rationale supports the deposit of an attempt-to-deliver notice at the
                                                                              complainant’s record address within five days of the EEOC’s mailing of
    All legal conclusions by lower courts are scrutinized de novo. Grider     the RTS letter as an event which triggered the accrual of the ninety-day
v. Abramson, 180 F.3d 739, 746 n.7 (6th Cir.), cert. denied, 120 S. Ct.       limitations period on the fifth day after mailing, in conformity with
528 (1999); Brennan v. Township of Northville, 78 F.3d 1152, 1154, 1156       prevailing Sixth Circuit standards. Cf. Watts-Means v. Prince George’s
(6th Cir. 1996). Hence, a lower court's summary judgment award is             Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993).
12     Graham-Humphreys v. Memphis Nos. 98-5971/6098                          Nos. 98-5971/6098 Graham-Humphreys v. Memphis                           9
       Brooks Museum of Art                                                                             Brooks Museum of Art

her at the nearby postal station. Graham-Humphreys has                        Fed. R. Civ. P. 59(e) & 60(b), to alter or amend the final
conceded that she knew, or suspected, that the certified                      judgment. On July 8, 1998, the district judge overruled those
delivery contained her RTS notice. See generally Friedman                     motions. The plaintiff noticed a timely appeal from the
v. Estate of Presser, 929 F.2d 1151 (6th Cir. 1991), which                    judgment. The defendant instituted a seasonable cross-
posited that “[a]ny fact that should excite the plaintiff’s                   appeal, by which it contested (1) the trial forum’s January 13,
suspicion is the same as actual knowledge[.]” Id. at 1160                     1997 denial of its motions (A) to quash the defective
(citations and brackets omitted).                                             summons and (B) to dismiss the case for insufficient process,
                                                                              and (2) the initial court’s associated allowance of the
  Because Graham-Humphreys “received” imputed notice of                       retroactive curative amendment of the summons.
her right to litigate during the five-day mailing period
(March 8 through March 13, 1996), the ninety-day limitations                     This reviewing court shall initially consider the district
countdown began on March 13, 1996, the fifth day following                    court’s summary    dismissal of the action as initiated outside
the EEOC’s March 7, 1996 mailing. The Sixth Circuit has                       limitations.8 The Civil Rights Act of 1964, Title VII, posits
ruled that the EEOC’s misdirection of a certified RTS notice                  that, if the EEOC has elected not to prosecute a citizen’s
caused by the claimant’s failure to furnish the EEOC with an                  employment discrimination charge, it shall notify the
accurate address did not stay opening the ninety-day filing                   petitioner of his or her right to initiate a private enforcement
window five days following mailing, even though the post                      lawsuit. “ [W]ithin ninety days after the giving of such notice
office ultimately returned the RTS letter to the EEOC                         a civil action may be brought against the respondent named in
undelivered. Banks, 855 F.2d at 326-27. This circuit has                      the charge.” 42 U.S.C. § 2000e-5(f)(1) (emphases added).
remarked that it has not been “inclined toward an inflexible
rule requiring actual receipt of notice by a claimant before the                The federal courts have strictly enforced Title VII’s ninety-
time period begins to run,” and has resolved that a claimant                  day statutory limit. In Baldwin County Welcome Center v.
who neglected to inform the EEOC of his change of address
had constructively received his RTS notification because it
had been certified by mail to his record address, despite his
denial of receipt of that mailing, allegedly because his nine-                subject to plenary review, because the sufficiency of the record evidence,
year-old nephew, who accepted the certified        letter at the              construed most favorably for the opponent of summary judgment, poses
                                                                              a question of law. See Doe v. Claiborne County, 103 F.3d 495, 505 (6th
claimant’s record address, misplaced it.11 Hunter, 790                        Cir. 1996). The touchstone is “whether the evidence presents a sufficient
                                                                              disagreement to require submission to a jury or whether it is so one-sided
                                                                              that one party must prevail as a matter of law.” Booker v. Brown &
     11                                                                       Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting
       Graham-Humphreys has argued that the absence of an EEOC
regulation, and/or language on the EEOC charge forms, which explicitly        Anderson, 477 U.S. at 251-52).
instructs the complaining party to promptly retrieve any certified envelope       8
which he or she suspects, or reasonably should suspect, might contain an             If the undisputed facts, and/or the record evidence viewed most
RTS notice, materially distinguished her case from one in which a             favorably for the plaintiff, demonstrates as a matter of law that the
plaintiff had failed to supply the EEOC with his or her proper address.       plaintiff commenced her lawsuit beyond the ambit of limitations, in the
The EEOC Regulations dictate that “[t]he person claiming to be aggrieved      absence of a waiver, estoppel, or compelling justification or excuse which
has the responsibility to provide the Commission with notice of any           tolls limitations (developed further below), a summary dismissal of the
change in address and with notice of any prolonged absence from that          complaint should be sustained. See Zipes v. Trans World Airlines, Inc.,
current address so that he or she can be located when necessary during the    455 U.S. 385, 393-94 (1982); Mounts v. Grand Trunk Western R.R., 198
Commission’s consideration of the charge.” 29 C.F.R. § 1601.7(b). In          F.3d 578, 580 (6th Cir. 2000) .
10       Graham-Humphreys v. Memphis Nos. 98-5971/6098                        Nos. 98-5971/6098 Graham-Humphreys v. Memphis                          11
         Brooks Museum of Art                                                                           Brooks Museum of Art

Brown, 466 U.S. 147 (1984) (per curiam), an opinion that                      the RTS notice to her record residential address), which
dismissed a pro se Title VII complaint filed outside of                       precluded her June 21, 1996 court action, unless she could
limitations, the Supreme Court stated that “[p]rocedural                      prove that she did not “receive” the EEOC’s March 7, 1996
requirements established by Congress for gaining access to                    alert within the five-day mailing period.10
the federal courts are not to be disregarded by courts out of a
vague sympathy for particular litigants.” Id. at 152. In                         As developed above, the plaintiff took personal possession
Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court                       of her RTS notification at the EEOC’s area office on
further explained that “experience teaches that strict                        March 28, 1996. Accordingly, she has contended that she
adherence to the procedural requirements specified by the                     “received” her RTS authorization on that date; thus her
legislature is the best guarantee of evenhanded administration                statutory filing period purportedly commenced to expire on
of the law.” Id. at 826. See also Zipes v. Trans World                        March 29, 1996. See Fed. R. Civ. P. 6(a). Consequently,
Airlines, Inc., 455 U.S. 385, 398 (1982).                                     because her ninety-day term allegedly did not expire until
                                                                              June 26, 1996, she argues that her complaint filed on June 21,
   In the instant case, the EEOC issued, and posted, an RTS                   1996 complaint was within rule.
notice to Graham-Humphreys on March 7, 1996. The Sixth
Circuit has resolved that notice is given, and hence the ninety-                 Nevertheless, even if the plaintiff did not physically attain
day limitations term begins running, on the fifth day                         actual “receipt” of her RTS notice until March 28, 1996, she
following the EEOC’s mailing of an RTS notification to the                    had constructively “received” her RTS notification on
claimant’s record residential address, by virtue of a                         March 8, 1996, the day that the letter carrier deposited the
presumption of     actual delivery and receipt within that five-              first of two official notifications at the plaintiff’s last known
day duration,9 unless the plaintiff rebuts that presumption                   official address which advised that a certified letter awaited
with proof that he or she did not receive notification within
that period. Banks v. Rockwell Intern. N. Am. Aircraft
Operations, 855 F.2d 324, 325-27 (6th Cir. 1988); Cook v.                         10
                                                                                      Because, as evolved herein, this circuit has previously mandated
Providence Hospital, 820 F.2d 176, 179 & n.3 (6th Cir.                        that, ordinarily, an EEOC notice is “given” five days following its mailing
1987); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472,                      to the claimant’s address of record, which rule is founded upon the
474-75 (6th Cir. 1986). See 29 C.F.R. § 1601.28(e) (“The                      rebuttable presumption that said notice was “received” by the aggrieved
notice of right to sue shall include (1) Authorization to the                 party within that period, EEOC Regulation § 1601.28(e)’s directive that
aggrieved person to bring a civil action under title VII . . .                ninety-day limitations is activated upon the claimant’s receipt of the RTS
within 90 days from receipt of such authorization.”)                          notice is consistent with 42 U.S.C. § 2000e-5(f)(1)’s pronouncement that
                                                                              the ninety-day clock begins ticking upon the EEOC’s giving of such
(emphasis added).          Accordingly, Graham-Humphreys’                     notice. In most circumstances, the nuance between the EEOC’s
litigation initiation window closed on Monday, June 10, 1996                  “giving,”and the complainant’s “receiving,” an RTS authorization will be
(ninety-five days after the EEOC’s March 7, 1996 mailing of                   immaterial, because most notices will be “given” and
                                                                              “received”simultaneously, or at least within the legally recognized
                                                                              extension of time to accommodate mailing. See McDonnell Douglas
     9                                                                        Corp. v. Green, 411 U.S. 792, 798 (1973), wherein the Supreme Court
      The Sixth Circuit allots two days for postal delivery of a RTS notice   remarked that a Title VII civil action predicate is satisfied upon the
beyond the three day period allowed by Federal Rule of Civil Procedure        plaintiff “receiving and [timely] acting upon the Commission’s statutory
6(e). See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148           notice of the right to sue;” the Court apparently presumed that the
& n.1 (1984) (presuming that an RTS notice was received by the plaintiff      “receipt” of notice would ordinarily coincide with, or proximately follow,
within three days of posting) (citing Fed. R. Civ. P. 6(e)).                  the “giving” of notice. (Emphasis added).
