           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 2, 2009

                                     No. 09-60290                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



CARL D. WASHINGTON

                                                   Plaintiff - Appellant
v.

CITY OF GULFPORT, MISSISSIPPI

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:08-CV-173


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Carl D. Washington (“Washington”), proceeding pro
se, appeals the district court’s dismissal of his Title VII and 42 U.S.C. § 1981
claims against the City of Gulfport, Mississippi (“Gulfport”). For the following
reasons, we affirm.
               I. FACTUAL AND PROCEDURAL BACKGROUND




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 09-60290

      Washington filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on May 14, 2007, where he asserted that
Gulfport denied him a promotion “because of [his] race” in violation of Title VII
of the 1964 Civil Rights Act. The district court found that Washington’s Title
VII claim was untimely filed and granted Gulfport’s motion for summary
judgment. However, the district court also found that Washington’s complaint,
liberally construed, asserted an additional claim for relief under 42 U.S.C. §
1981. Gulfport than filed a motion to dismiss Washington’s § 1981 claim under
Federal Rule of Civil Procedure 12(b)(6), alleging that it “does not afford a
remedy for violation of rights guaranteed thereunder when such claim is
pursued against a governmental entity.” The district court granted Gulfport’s
12(b)(6) motion to dismiss.
                                 II. DISCUSSION
      A.     Standard of Review
      We give de novo review to a district court’s grant of both summary
judgment and a motion to dismiss pursuant to Rule 12(b)(6). Noble Energy, Inc.
v. Bituminous Cas. Co., 529 F.3d 642, 645 (5th Cir. 2008); True v. Robles, 571
F.3d 412, 417 (5th Cir. 2009).
      B.     Washington’s Title VII Claim
      On appeal, Washington challenges the district court’s summary judgment
dismissal of his Title VII claims against Gulfport. The district court found that
Washington’s claims were time barred. Title VII claims are governed by a
statute of limitations, that requires that suit be brought within 90 days of a
plaintiff’s receipt of the right to sue. 42 U.S.C. § 2000e-5(f)(1). If a plaintiff files
suit after the 90-day statute of limitations a court will dismiss the plaintiff’s
Title VII action. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.
2002). The 90-day statutory period is strictly construed. Id.



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      Washington filed two charges of discrimination with the EEOC. He first
filed a charge of discrimination with the EEOC on May 14, 2007, in which he
named the “City of Gulfport–Fire Department” as the respondent and charged
that it denied him a promotion because of his race in violation of Title VII. This
charge was signed by Washington on May 10, 2007. Washington also filed a
charge of discrimination with the EEOC in which he named the “Civil Service
Commission” as the respondent and made the same exact charges as were made
against Gulfport. The charge was signed by Washington on May 18, 2007 and
filed with the EEOC on May 22, 2007.
      On appeal, Washington argues that the date of receipt of the right to sue
letter issued against the Civil Service Commission should start the 90-day
statute of limitations clock. Washington received that letter on January 31,
2008, and filed suit on April 30, 2008, which is within the statutory 90-day filing
requirement.
      Washington’s argument has no merit. The right to sue letter against
Gulfport, the letter that is relevant to the instant case, was issued and mailed
to Washington on January 17, 2008. As other courts have held, the complainant
is on notice from the date of receipt of the first dismissal letter that he has 90
days to file suit on the claims made to the EEOC, unless the second right to sue
letter is issued pursuant to a reconsideration of the merits. See Sparks v. Lowe’s
Home Ctr., Inc., 341 F. Supp. 2d 671, 674 (E.D. Tex. 2004); Gitlitz v. Compagnie
Nationale Air France, 129 F.3d 554, 557 (11th Cir. 1997). “To hold [otherwise]
would allow any future plaintiff to obliterate the ninety day limitation period by
repeatedly refiling the same charge with the EEOC.” Sparks, 341 F. Supp. 2d
at 674.
      Washington did not allege in the complaint the date when he received the
January 17, 2008 right to sue Gulfport letter. Therefore, as the district court
correctly noted, we must arrive at a date by applying a presumption of receipt.


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See Books A Millon, 296 F.3d at 379. In Books A Million, this court held that
in determining a date for presumption of receipt we should use a range of three
to seven days after mailing. Id. Presuming that Washington received the right
to sue letter on January 24, 2008, seven days after it was mailed, he filed suit
on April 30, 2008. In other words, Washington filed suit 104 days after the right
to sue letter was mailed, which is well after expiration of the 90-day statutory
time limit. Because Washington’s claim was time barred, the district court
correctly granted Gulfport’s summary judgment motion.
      C.    Washington’s 42 U.S.C. § 1981 Claim
      Washington also challenges the district court’s dismissal of his 42 U.S.C.
§ 1981 claim against Gulfport. The district court found that Washington’s claim
should be dismissed as a matter of law because § 1981 does not afford a remedy
for violation of rights guaranteed thereunder when such claim is pursued
against a governmental entity.     In Oden v. Oktibbeha County, Miss., 246 F.3d
458 (5th Cir. 2001), this court held that “§ 1981 implicitly created an
independent cause of action against private actors because no other statute
created such a remedy,” but that “Section 1983 remains the only provision to
expressly create a remedy against persons acting under color of state law.” Id.
at 463 (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 732 (1989)).
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment in its
entirety.
      We DENY Washington’s motion to supplement the record on appeal. See
F ED. R. A PP. P. 10(e)(1) & (e)(2); United States v. Smith, 493 F.2d 906 (5th Cir.
1974) (holding that Rule 10(e) exists in order to ensure that the record
considered by the court of appeals accurately reflects what actually happened at
the district court level and not to introduce new evidence in the court of appeals
which was never before the district court). Accordingly, we GRANT Gulfport’s

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motion to strike Washington’s record excerpts.      See id.   Lastly, we DENY
Gulfport’s   motion to strike Washington’s brief and dismiss the appeal for
referring to matters outside the record. See Hennessey v. Blalock, 77 F.3d 728
(5th Cir. 1995) (noting that this court has discretion to strike references to
matters which are outside the record); United States v. Martin, 831 F.3d , 313-
14 (5th Cir. 1987) (a case where this court ignored references to matters outside
the record and ruled on the record properly before it).




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