                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 19 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    RONALD L. CALVERT,

                Plaintiff-Appellant,

    v.                                                   No. 01-1162
                                                      (D.C. No. 00-B-294)
    ROADWAY EXPRESS, INC.,                                 (D. Colo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Ronald L. Calvert, proceeding pro se on appeal and in the district

court, appeals the district court’s dismissal of his complaint charging his former

employer with employment discrimination and retaliation, in violation of Title VII

of the Civil Rights Act of 1964, and disability discrimination, in violation of the

Americans with Disabilities Act. The district court granted defendant’s motion to

dismiss all claims for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ.

P. 12(b)(1), on the ground that Mr. Calvert failed to file his federal complaint

within the ninety-day filing deadline imposed by 42 U.S.C. § 2000e-5(f)(1) and

42 U.S.C. § 12117(a) (which expressly adopts Title VII filing deadline for ADA

claims). We reverse the district court’s dismissal and remand for further

proceedings.

       Title VII requires a plaintiff claiming discrimination in employment to file

his complaint within ninety days of receipt of a right-to-sue letter from the Equal

Employment Opportunity Commission. 42 U.S.C. § 2000e-5(f)(1). The ninety-

day filing deadline is a condition precedent to suit, rather than a jurisdictional

prerequisite.   Jarrett v. US Sprint Communications Co.   , 22 F.3d 256, 259-60 (10th

Cir. 1994). It operates like a statute of limitations and is subject to estoppel,

waiver and equitable tolling.   Id. “The ninety-day limit begins to run on the date

the complainant actually receives the EEOC right-to-sue notice, making that date




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a material fact.”   Witt v. Roadway Express , 136 F.3d 1424, 1429 (10th Cir. 1998)

(citation omitted).

       Mr. Calvert alleged in his complaint that he received the right-to-sue letter

on November 2, 1999. He presented his complaint and a motion to proceed in

forma pauperis (IFP) to the district court on February 1, 2000. The pleadings

were stamped by the clerk of the district court as “received” on February 1, 2000.

The court granted the IFP motion on March 6, 2000. On February 9, 2000, the

court directed Mr. Calvert to cure a filing deficiency and directed the clerk to file

the complaint and commence the action. After defendant moved to dismiss, Mr.

Calvert filed an unauthorized surreply in which he asserted that he received the

right-to-sue letter on November 4, 1999. The district court found that the

complaint was not “filed” until February 9, 2000. Thus, even though the court

considered the unauthorized surreply, the time between November 4, 1999 and

February 9, 2000–ninety-seven days–exceeded the limitations period.

       In dismissing Mr. Calvert’s complaint under Rule 12(b)(1) for lack of

subject-matter jurisdiction, the district court properly exercised its “wide

discretion to allow affidavits [and] other documents” to resolve underlying facts

bearing on jurisdiction.     Stuart v. Colo. Interstate Gas Co.   , 271 F.3d 1221, 1225

(10th Cir. 2001) (quotation omitted). We review the district court’s findings of

jurisdictional facts for clear error.   Id. We review the dismissal de novo.     Id. We


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construe Mr. Calvert’s pleadings liberally because he appears pro se.         Haines v.

Kerner, 404 U.S. 519, 520 (1972).

       A complaint is deemed “‘filed’ upon presentation to the court clerk when

accompanied by an IFP motion, so that the formal filing ‘relates back’ – upon

grant of pauper status – to the ‘lodging’ of the complaint with the clerk.”      Jarrett ,

22 F.3d at 259. Here, the complaint, accompanied by an IFP motion, was

presented to the district court on February 1, 2000. Therefore, when the IFP

motion was granted, the filing date related back to February 1, 2000.

       Defendant argues that Mr. Calvert’s statement that he received the

right-to-sue letter on November 2, rather than on November 4, is binding. As the

district court noted, Mr. Calvert failed to request leave of court to file his surreply

claiming the November 4 date. Nevertheless, the district court considered the

surreply, which was within its discretion. The district court did not, however,

make a finding of fact as to the date Mr. Calvert received the letter.

       Based on this record, we decline to hold that this situation is similar to

cases in which a party attempts to create a sham fact issue, as defendant argues.

See Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc.      , 131 F.3d 874,

893-94 (10th Cir. 1997) (factors to consider in assessing attempt to create sham

fact issue include whether affiant was cross-examined, whether he had access to

evidence at time of earlier statement, whether evidence is newly-discovered, and


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whether later statement attempts to resolve confusion in earlier statement).

Moreover, the certificate on the right-to-sue letter indicating that it was   mailed on

November 2, 1999, may entitle Mr. Calvert to a presumption that he did not

receive it until a few days later.   See, e.g., Lozano v. Ashcroft , 258 F.3d 1160,

1164-65 (10th Cir. 2001) (collecting cases; recognizing mailing-time presumption

of three or five days for receipt of right-to-sue letter).

       In sum, the filing date for the complaint related back to February 1, 2000.

The case is remanded for a finding of when Mr. Calvert received the right-to-sue

letter. If the district court determines that Mr. Calvert received the right-to-sue

letter on November 4, 1999, the complaint was filed eighty-nine days after receipt

of the right-to-sue letter, and was timely. If, on the other hand, the district court

determines that Mr. Calvert received the letter on November 2, 1999, the

complaint was filed outside the ninety-day statute of limitations, and is subject to

dismissal.

       REVERSED and REMANDED for further proceedings.



                                                          Entered for the Court



                                                          Mary Beck Briscoe
                                                          Circuit Judge



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