           Case: 17-13076   Date Filed: 07/31/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13076
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:16-cv-02139-CEM-TBS



STUART WINSOR,

                                                     Plaintiff - Appellant,

                                  versus

THE HOME DEPOT U.S.A., INC.,

                                                     Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (July 31, 2018)

Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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      Stuart Winsor, proceeding pro se, appeals the district court’s dismissal of his

employment discrimination complaint filed under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of

1990 (“ADA”), 42 U.S.C. § 12101 et seq. On appeal, Winsor argues that the

district court erred by dismissing his complaint as untimely and by failing to apply

equitable tolling. After careful review, we affirm.

                                         I.

      Winsor filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”) after store officials at Home Depot, U.S.A., Inc. failed to

hire him. On July 5, 2016, the EEOC issued Winsor a right-to-sue letter, notifying

him that he had 90 days from receipt to file a civil action against Home Depot. On

October 14, 2016, Winsor filed suit against Home Depot in Florida state court.

      Home Depot removed the action to federal court and filed a motion to

dismiss. In its motion, Home Depot argued that Winsor’s lawsuit was untimely

because it had been filed past the 90-day deadline. Winsor failed to respond, and

the district court granted Home Depot’s motion. The district court, assuming

Winsor had received the right-to-sue letter on July 8, 2016—three days after it was

issued on July 5, 2016—found that Winsor had filed his complaint on the 98th day,

making it untimely.




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       After the district court dismissed his complaint, Winsor filed a “Petition for

Permission to Appeal,” which the district court construed as a motion for

reconsideration. In the motion, Winsor explained the following: The United

States Postal Service (“USPS”) had attempted to deliver the right-to-sue letter on

July 7, 2016. Winsor signed the delivery notice on July 8, 2016, requesting that

USPS deliver the letter to his apartment management staff, who were authorized to

sign for delivery. USPS delivered the letter to the leasing office for Winsor’s

apartment on July 11, 2016, but did not leave a notice in Winsor’s mailbox or on

the door of his residence that the letter had been delivered. In addition, the

apartment management staff does not notify residents when their mail is received.

Winsor picked up the letter from the office on July 16, 2016, when he happened to

be at the leasing office for an unrelated reason.

       Winsor also asserted in the motion that he had responded to Home Depot’s

motion to dismiss by filing—before the district court’s ruling on the motion to

dismiss—a “Production of Documents” to which he had attached copies of the

delivery notices and a description of the delivery attempts. 1 The district court

denied the motion. This is Winsor’s appeal.



       1
         There is no indication on the district court docket that Winsor’s “Production of
Documents” or any associated exhibits ever were filed. Winsor asserts for the first time in his
brief on appeal that he also filed a “Second Production of Documents,” but that filing does not
appear on the district court docket, either.

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                                                 II.

       We review de novo the grant of a motion to dismiss, accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

                                                III.

       On appeal, Winsor argues that the district court erred by dismissing his

complaint as untimely and by failing to apply equitable tolling.2 For the reasons

that follow, we disagree.

       A plaintiff has 90 days to file an employment discrimination lawsuit after

receiving the EEOC’s notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). Under the

ADA, a plaintiff must comply with the same procedural requirements to sue that

exist under Title VII. 42 U.S.C. § 12117(a). We analyze whether a plaintiff has

complied with the 90-day deadline “on a case-by-case basis to fashion a fair and

reasonable rule for the circumstances of each case.” Kerr v. McDonald’s Corp.,

427 F.3d 947, 952 (11th Cir. 2005) (internal quotation marks omitted).

       We have declined to impose a requirement of “actual receipt” of the right-to-

sue letter where it might foster a “manipulable open-ended time extension which

would render the statutory limitation meaningless.” Law v. Hercules, Inc., 713
       2
          Winsor also argues that the district court erred by dismissing his complaint for failure to
plead specific facts showing that he exhausted his administrative remedies. This argument is
without merit. Although the district court mentioned its ability to dismiss a plaintiff’s complaint
for failure to plead conditions precedent to filing suit, the court actually dismissed Winsor’s suit
because it was untimely.
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F.2d 691, 692-93 (11th Cir. 1983) (internal quotation marks omitted). A plaintiff

must assume “some minimum responsibility . . . for an orderly and expeditious

resolution of [his] claims.” Kerr, 427 F.3d at 952 (internal quotation marks

omitted). If a right-to-sue letter was mailed to the plaintiff’s address and the

plaintiff “did not receive it either because another person signed for it or because

[he] failed to retrieve it from the post office or mail box,” then “[r]eceipt is

presumed” unless the plaintiff can show that failure to receive the letter was “in no

way” his fault. Id.; see Law, 713 F.2d at 692-93 (affirming dismissal of Title VII

complaint as untimely where plaintiff’s son, at the direction of plaintiff’s wife,

picked up the right-to-sue letter at the post office and left it on the kitchen table,

but plaintiff did not actually receive the letter until one or two days later); Bell v.

Eagle Motor Lines, Inc., 693 F.2d 1086, 1086-87 (11th Cir. 1982) (affirming

dismissal of Title VII complaint as untimely where plaintiff’s wife received the

right-to-sue letter while plaintiff was out of town, but plaintiff did not actually

receive the letter until a week later). Additionally, “[w]hen the date of receipt is in

dispute, this court has applied a presumption of three days for receipt by mail.”

Kerr, 427 F.3d at 953 n.9.

      Here, the district court did not err in dismissing Winsor’s complaint as

untimely because it was filed after the 90-day deadline. The right-to-sue letter was

issued on July 5, 2016. Winsor failed to allege in the complaint when he received


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the letter. Accordingly, when the district court granted the motion to dismiss, it did

not err in presuming, consistent with Kerr, that the letter was received three days

later, on July 8, 2016. See id. Winsor filed suit on October 14, 2016, 98 days after

presumed receipt. He thus failed to file timely his complaint.

       Even if we consider the facts Winsor alleged in his “Petition for Permission

to Appeal”—filed after the district court dismissed his complaint—the dismissal

was proper. Winsor admitted that he signed a delivery notice on July 8, 2016,

authorizing USPS to leave the right-to-sue letter with his apartment management.

There is no dispute that USPS did so on July 11, 2016. Winsor argues that because

he did not pick up the letter from management until July 16, 2016, the 90-day

period started running on that date, but we cannot agree. The 90-day period began

to run, at the latest, on July 11, 2016, when Winsor’s apartment management

received the right-to-sue letter according to his authorization. See Law, 713 F.2d at

693; Bell, 693 F.2d at 1086-87. Winsor knew USPS had attempted to deliver a

letter on July 8, yet he failed to check with the office for eight days, only then

discovering the letter by chance.3 He thus failed to assume “some minimum


       3
          In his briefing on appeal, Winsor asserts that he had no way of knowing that the letter
was from the EEOC until he actually received it on July 16, 2016 because the sender had been
identified only as “Miami District” on the delivery notice. Appellant’s Br. at 11. Winsor did not
include this fact in his construed motion for reconsideration filed in the district court. The
district court thus did not have the opportunity to consider this fact, nor is it part of the record on
appeal, so we cannot consider it. See Fed. R. App. P. 10(a); Access Now Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1332-35 (11th Cir. 2004) (explaining that absent exceptional circumstances, we
will not consider arguments that are raised for the first time on appeal).
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responsibility . . . for an orderly and expeditious resolution of [his] claims.” Kerr,

427 F.3d at 952 (internal quotation marks omitted). Even if we accept the facts

Winsor alleged in his motion and count the 90-day period from July 11, when

USPS delivered it to the office, his complaint properly was dismissed as untimely

because it was filed 95 days later.

      Winsor also argues on appeal that the district court erred by failing to

consider equitable tolling of the 90-day limitation period. But Winsor failed to

raise equitable tolling before the district court, so he has not preserved the issue for

appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004) (“This [c]ourt has repeatedly held that an issue not raised in the district court

and raised for the first time in an appeal will not be considered by this court.”

(internal quotation marks omitted)). Were we to consider Winsor’s argument,

however, we would conclude that the circumstances do not warrant equitable

tolling. A party seeking equitable tolling must prove that (1) he has been pursuing

his rights diligently and (2) some extraordinary circumstance stood in his way and

prevented him from timely filing. Villareal v. R.J. Reynolds Tobacco Co., 839

F.3d 958, 971 (11th Cir. 2016) (en banc), cert denied, 137 S. Ct. 2292 (2017).

Winsor has failed to show that either requirement has been met.




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                                       IV.

     For the foregoing reasons, we affirm the district court’s dismissal of

Winsor’s complaint.

     AFFIRMED.




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