     Case: 11-60484     Document: 00511680294         Page: 1     Date Filed: 11/30/2011




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

                                                                            FILED
                                                                        November 30, 2011

                                     No. 11-60484                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



CLAVER J. SMITH,

                                                  Plaintiff–Appellant
v.

ALCORN STATE UNIVERSITY,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 5:10-CV-198


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Claver Smith, the Appellant, alleges that Alcorn State University, the
Appellee, unlawfully discriminated against her based on her age in violation of
the Age Discrimination in Employment Act (“ADEA”), specifically 29 U.S.C.
§ 623(a).      Smith filed a claim with the Equal Employment Opportunity
Commission (“EEOC”) on September 23, 2009. On August 23, 2010, the EEOC
issued Smith a right-to-sue letter. Smith did not, however, file her suit until


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60484   Document: 00511680294      Page: 2   Date Filed: 11/30/2011



                                  No. 11-60484

December 16, 2010—116 days after the issuance of the right-to-sue letter. The
Appellee filed a motion to dismiss based on Eleventh Amendment immunity and
a motion for summary judgment based on the time bar. The district court
granted both motions.
      “A plaintiff alleging employment discrimination must file a civil action no
more than ninety days after she receives statutory notice of her right to sue from
the EEOC. The ninety-day window is strictly construed and is a precondition to
filing suit in district court.” Duron v. Albertson’s LLC, 560 F.3d 288, 290 (5th
Cir. 2009) (internal quotation marks, citations, and footnotes omitted). Smith
claims that she filed her suit on November 22, 2010 (within the ninety-day
window), but there is no evidence in the record to support this. We therefore
AFFIRM the district court’s grant of summary judgment to the Appellee.
      AFFIRMED.




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