                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 15, 1997

                    _____________________________         Charles R. Fulbruge III
                                                                  Clerk
                             No. 96-60719
                          (Summary Calendar)
                    _____________________________

MARY CAROL SMITH,
                                               Plaintiff-Appellant,

                               versus

JACKSON PUBLIC SCHOOL DISTRICT; CANTON
CITY SCHOOLS; HOLMES COUNTY SCHOOLS,
                                              Defendants-Appellees.

         __________________________________________________

             Appeal from the United States District Court
                For the Southern District of Mississippi
                             (3:93-CV-554)
         ___________________________________________________



Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Pro se Petitioner-Appellant Mary Carol Smith appeals the

district court’s dismissal of her former employers, Defendants-

Appellees Jackson Public School District (Jackson), Canton City

Schools (Canton), and Holmes County Schools (Holmes), for Smith’s

failure to comply with the ninety-day filing requirements of Title

VII1 and the Age Discrimination in Employment Act (ADEA).2      Finding

     *
      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this opinion should not be published and is not precedent except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.
     1
      42 U.S.C. §2000e et seq. (1994).
     2
      29 U.S.C. §621 et seq. (1994).
no error, we affirm.

                                     I.

                         FACTS AND PROCEEDINGS

     Smith, an over-forty black female, was formerly employed as a

school    teacher   successively    by    Canton,   Holmes,   and   Jackson.

Following her termination from Canton in January 1990, Smith filed

a written charge with the Equal Employment Opportunity Commission

(EEOC), alleging discrimination based on sex, race, and age.             The

EEOC granted her the right to sue in October 1990, but she pursued

no action against Canton for years.

     After her job with Canton, Smith was employed by Holmes.             In

May 1992, she resigned from Holmes but did not file an EEOC charge

against Holmes.

     Smith next worked for Jackson, but in December 1992 Jackson

terminated Smith.     Shortly thereafter, Smith filed another charge

with the EEOC, again alleging sex, race, and age discrimination,

this time against Jackson.         The EEOC determined that her claims

were without merit and sent her a right-to-sue letter by certified

mail on May 27, 1993.     The certified mail receipt indicates that

Smith signed for and received the letter on May 29, 1993.3           Ninety-

two days later, on August 30, 1993, Smith filed the instant action

against Canton, Holmes, and Jackson.



     3
        Smith does not recall receiving the letter until June 1,
1993.

                                     2
       Jackson and Holmes filed motions to dismiss under Federal Rule

of Civil Procedure 12(b)(6) for Smith’s failure to comply with the

ninety-day filing requirements of Title VII and the ADEA.                         The

district court held an evidentiary hearing to determine when in

1993       Smith   received   the   right-to-sue       letter   for    purposes   of

establishing the ninety-day filing window.                That court found as a

matter of fact that Smith had received the letter on May 29, 1993.

Concluding         that   Smith’s   complaint    was   untimely   and     that    the

circumstances did not warrant application of the doctrine of

equitable tolling, the district court dismissed Jackson, Holmes,

and Canton.4        Smith timely appealed.

                                        II.

                                      ANALYSIS

       To assert a Title VII or ADEA violation successfully, a

claimant must file his complaint within ninety days following the

receipt of a right-to-sue letter from the EEOC.5                      Applying a de




       4
      Following Jackson’s dismissal, but before the district court
had dismissed Holmes or Canton, Smith filed a notice of appeal
which we dismissed as untimely for lack of a certification of
judgment as required by Federal Rule of Civil Procedure 54(b).
Holmes then filed a second motion to dismiss and, in the
alternative, for summary judgment. The district court dismissed
Holmes in November 1995. Canton filed a motion to dismiss for the
first time in March 1996, and the district court dismissed Canton
that September.
       5
      See Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir.
1992)(citing 42 U.S.C. §2000e-5(f)) and 29 U.S.C. §626(e)(Supp.
1997).

                                         3
novo review,6 we conclude that Smith failed to comply with the

ninety-day filing requirement and that her claims against Jackson

are time barred.7

     Following a series of plaintiff-friendly rulings, the district

court generously granted Smith an evidentiary hearing —— at which

she was represented by counsel —— to determine when she actually

received the 1993 right-to-sue letter from the EEOC.     That court

found as a matter of fact that Smith had received the letter on May

29, 1993 and had filed suit in the district court ninety-two days

later.   Based on the record before us, which includes a copy of the

signed and dated postal receipt for that letter, we are convinced

that the district court’s findings are not clearly erroneous.    We

conclude therefore that Smith’s filing in the district court was

untimely and that the circumstances do not warrant application of

the doctrine of equitable tolling.8

     The district court properly dismissed Canton also, as Smith

received her right-to-sue-Canton letter in October 1990, some

thirty-four months prior to filing suit in the district court, and

     6
      F.D.I.C. v. Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992).
     7
      In her appellate brief, Smith argues for the first time that
she is entitled to the benefit of the three day mail rule of
Federal Rule of Civil Procedure 6(e).     We need not consider on
appeal arguments that were not presented to the district court. See
Elliott v. Tilton, 89 F.3d 260, 264 (5th Cir. 1996).
     8
      See Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir.
1992)(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96,
111 S. Ct. 453, 457-58 (1990))(stating when equitable tolling is
appropriate).

                                  4
offered no explanation which would justify tolling the ninety-day

period.

     Finally, the district court properly dismissed Holmes.   Smith

resigned from Holmes, did not file an EEOC charge against Holmes

prior to filing suit in the district court, and failed to respond

to the district court’s directive to reply to Holmes’s motion to

dismiss on penalty of dismissal.

                              III.

                            CONCLUSION

     For the foregoing reasons, the district court’s dismissals of

Smith’s actions against Jackson, Canton, and Holmes are

AFFIRMED.




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