                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                  FILED
                                                           U.S. COURT OF APPEALS
                          ________________________           ELEVENTH CIRCUIT
                                                                  07/07/99
                                                              THOMAS K. KAHN
                                 No. 98-3404                       CLERK
                          ________________________

                       D. C. Docket No. 96-2555-CIV-T-17


TERRY G. ZILLYETTE,

                                                                Plaintiff-Appellant,

                                      versus

CAPITAL ONE FINANCIAL CORPORATION,

                                                               Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________
                                 (July 7, 1999)

Before BLACK and BARKETT, Circuit Judges, and GOLD*, District Judge.


____________________
* Honorable Alan S. Gold, U.S. District Judge for the Southern District of Florida,
sitting by designation.

BARKETT, Circuit Judge:
      Appellant Terry Zillyette appeals the district court’s grant of summary

judgment to Capital One Financial Corp. (“Capital One”) on Zillyette’s claim that

Capital One discriminated against him on the basis of disability in violation of the

Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117. He first claims that

the district court erred in holding that his cause of action was time-barred. He also

asserts that he presented sufficient evidence to show that Capital One denied him

reasonable accommodations and discharged him because of disability, thereby

precluding summary judgment. We affirm the district court’s conclusion that

Zillyette’s complaint was time-barred, thus making it unnecessary to address any

other issue in this case.

                                 BACKGROUND

      Zillyette began working as a Customer Service Associate for Capital One in

Tampa, Florida in July 1995. During the eight months in which he was employed

by Capital One, Zillyette missed twenty-five days of work and on five other

occasions left work early, in part due to an illness misdiagnosed as diabetes. On

January 26, 1996, Zillyette was told that he was HIV+ and given a letter stating

that he was suffering from an “immunologic disease” and “needs to be on a regular

8 hour work program as stress is detrimental to him.” After considering both the




                                          2
letter and Zillyette’s previous absentee record, his employers decided to terminate

him.

       On May 10, 1996, Zillyette filed a charge of discrimination with the EEOC,

alleging disability discrimination by Capital One. On September 4, 1996, the

EEOC sent a certified letter to Zillyette informing him of his right to sue within 90

days. The U.S. Postal Service first attempted to deliver the EEOC’s letter on

September 5, 1996, but was unsuccessful in this attempt because Zillyette was not

at home. The Postal Service agent instead left a standard notice that the letter

would be redelivered or could be picked up at the post office. The manager of

Customer Service for the Tampa, Florida branch of the United States Postal

Service provided in an affidavit that the delivery notice is to be filled out by the

carrier and includes, among other things, the sender’s name. On September 10, the

Postal Service again unsuccessfully attempted to deliver the EEOC letter. The

Postal Service agent left a second notice indicating that if Zillyette did not pick up

the letter by September 20, it would be returned to sender. Sometime between

September 10 and September 20, Zillyette picked up the letter, although it is not

clear when during this time he did so.

       On December 12, Zillyette filed a pro se complaint. The district court

granted summary judgment to the defendant, concluding that Zillyette had not filed


                                           3
suit within 90 days of receipt of the EEOC letter because the 90-day period began

to run when the Postal Service first tried to deliver the letter on September 5.1 This

appeal followed.

                                       DISCUSSION

       It is settled law that, under the ADA, plaintiffs must comply with the same

procedural requirements to sue as exist under Title VII of the Civil Rights Act of

1964. See 42 U.S.C. § 12117(a). Under Title VII, in cases where the EEOC does

not file suit or obtain a conciliation agreement, the EEOC “shall so notify the

person aggrieved and within 90 days after the giving of such notice a civil action

may be brought against the respondent named in the charge . . . by the person

claiming to be aggrieved . . . .” 42 U.S.C. § 2000e-5(f)(1). Zillyette argues that

the 90-day period did not begin to run until he picked up the EEOC letter at the

post office.

       We first had occasion to consider the meaning of this provision of Title VII

in Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev’d on

other grounds, 424 U.S. 747 (1976). In Franks, we explained that “[t]he key word

in the statute is ‘notify’; the limitations period begins to run upon notification of



       1
        The district court also found that Zillyette had failed to show that he was a qualified
individual with a disability under the ADA and that he was discharged because of his disability.

                                                4
the aggrieved party. This Court has held that such notification takes place only

when ‘notice of the failure to obtain voluntary compliance has been sent and

received.’” Id. at 404 (quoting Miller v. International Paper Co., 408 F.2d 283, 287

(5th Cir. 1969)). We found that “statutory notification is complete only upon

actual receipt of the suit letter,” observing that “Congress did not intend to

condition a claimant’s right to sue under Title VII on fortuitous circumstances or

events beyond his control which are not spelled out in the statute.” Id. Applying

this principle, we reversed the district court’s dismissal of plaintiff’s suit based on

the fact that the EEOC’s notification letter was lost by plaintiff’s nine-year old

nephew. Id. at 405 (“Where . . . it is shown that the claimant through no fault of

his own has failed to receive the suit letter . . ., as in this case, the delivery of the

letter to the mailing address cannot be considered to constitute statutory

notification.”).

       In Franks, although the letter was delivered, it was lost by the plaintiff’s

nephew “through no fault” of the plaintiff. We found these circumstances to

constitute an “event[] beyond [the plaintiff’s] control,” and therefore concluded

that the plaintiff could not be considered to have had statutory notice of his right to

sue. In Lewis v. Conners Steel Co., 673 F.2d 1240 (11th Cir. 1982), the plaintiff,

like that in Franks, also did not receive his right to sue letter. But in Lewis, the


                                             5
plaintiff’s own actions may have explained his failure to receive the EEOC’s letter,

which went to a different address than the one in which the plaintiff resided. We

found that plaintiff’s suit would be barred if he had failed to “advis[e] the EEOC of

address changes or to take reasonable steps to ensure delivery of the notice to his

current address, id. at 1243, because “[i]f [the plaintiff] did not contribute that

minimum assistance to the process, he should not be heard to complain that he did

not receive the letter delivered to the last address known to the EEOC, unless he

can show, in the words of Franks, that other ‘fortuitous circumstances’ or ‘events

beyond his control’ intervened, and that he ‘through no fault of his own’ failed to

receive the suit letter.” Id. (quoting Franks, 495 F.2d at 404-05). We remanded for

the district court to make factual findings on these questions.

      Our disposition of the notice issue in Lewis suggests that the “beyond [the

plaintiff’s] control” language of Franks implies a minimal responsibility on the part

of the plaintiff in the resolution of his or her claims. Specifically, we stated that

      [w]e need not embrace the doctrine of constructive receipt, nor close
      our eyes to the liberal construction the act is entitled to in order to
      fashion a fair and reasonable rule for the circumstances of this case.
      There is no reason why a plaintiff should enjoy a manipulable open-
      ended time extension which could render the statutory minimum
      meaningless. Plaintiff should be required to assume some minimum
      responsibility himself for an orderly and expeditious resolution of his
      dispute.



                                           6
Id. at 1242 (emphasis added). In Lewis, we concluded that it was reasonable to

require the plaintiff to shoulder the “de minimus” burden of notifying the EEOC of

his change of address. Since Lewis, we have continued to approach these issues on

a case-by-case basis to fashion a fair and reasonable rule for the circumstances of

each case, one that would require plaintiffs to assume some minimum

responsibility in resolving their claims without “conditioning a claimant’s right to

sue under Title VII on fortuitous circumstances or events beyond his control which

are not spelled out in the statute.” Franks, 495 F.2d at 404.

      For example, in Law v. Hercules, Inc., 713 F.2d 691 (11th Cir. 1983), and

Bell v. Eagle Motor Lines, Inc., 693 F.2d 1086 (11th Cir. 1982), we affirmed the

dismissal of suits for failure to meet the 90-day filing deadline where the EEOC

notification letter was delivered to plaintiff’s home and was received by a

responsible family member who resided in the home. See Law, 713 F.2d at 692-93

(dismissing suit on timeliness grounds where plaintiff’s seventeen-year-old son

picked up the EEOC letter at the post office at the directive of plaintiff’s wife and

left it on the kitchen table); Bell, 693 F.2d at 1087 (finding 90-day period for filing

suit began to run when plaintiff’s wife received the letter at their shared place of

residence). These cases, in other words, required plaintiffs to assume the minimal




                                           7
burden of informing family members of suitable age and discretion2 that plaintiffs

were expecting an important letter related to their pending claim, and that they

needed to be alerted immediately following its delivery. In this way, we have

attempted to insure against the possibility of manipulation when the time of receipt

is uniquely within the plaintiff’s control. At the same time, we have recognized

that when a plaintiff has not known of the receipt of the letter through no fault of

his or her own or because of circumstances beyond his or her control, as in Franks,

the time must begin to run from the time of actual receipt.3

       2
        Cf. Fed. R. Civ. P. 4(e) (providing in part that process may be served upon individuals
within a judicial district of the United States “by delivering a copy of the summons and of the
complaint to the individual personally or by leaving copies thereof at the individual's dwelling
house or usual place of abode with some person of suitable age and discretion then residing
therein”).
       3
          Other circuits, faced with this issue, have reached similar results on the basis of similar
principles. In Sousa v. NLRB, 817 F.2d 10 (2d Cir. 1987), for example, the plaintiff received
notice of the certified letter from his post office box five days after it was delivered, and
immediately retrieved the letter. The court found “[t]he receipt by [plaintiff] of the notice . . . [to
be] the effective date for measuring the [limitations] period [because a] 5-day delay, which
included a weekend, is not an unreasonable time for [plaintiff] to have failed to visit the box.”
Id. at 11. The court, however, made clear “that unexplained failure to visit a post office box for
a long period of time might result in a different conclusion.” Id. See also Hornsby v. United
States Postal Service, 787 F.2d 87, 91 (3d Cir. 1986) (rejecting the argument that a postal notice
of unsuccessful delivery was sufficient to commence the running of the 90-day limit for filing
suit because the form did “not disclose the name or address of the sender nor does it convey any
other relevant information; it states simply that an unknown person has mailed a certified letter
to the addressee”); Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4th Cir.
1993) (holding that “the limitations period is triggered when the Postal Service delivers notice to
a plaintiff that the right-to-sue letter is available for pickup, and not when the letter is actually
picked up” and applying the doctrine of equitable tolling to remedy resulting injustices). But see
id. (finding equitable tolling to be inappropriate in the case at hand because the plaintiff
“suspected that the letter about which she had received notice from the Postal Service was a
letter from the EEOC”).

                                                   8
      In this case, if the delivery notice left for Zillyette by the postal service had

failed to contain the information that the EEOC was the sender, it would have

simply advised him that a letter was waiting for him at the post office, a letter that

could have been from anyone. Under these circumstances, the suit letter from the

EEOC could not fairly or reasonably be deemed to have been received from the

date of the notice, because Zillyette’s failure to retrieve the letter would have had

no bearing at all on the diligence with which he was pursuing his claim. On the

other hand, had the notice identified the EEOC as sender, Zillyette would have had

the de minimus responsibility to obtain the letter in a timely manner or provide a

reasonable explanation as to why this was not done. To hold otherwise would

permit him simply to defer the retrieval of the letter and thus to manipulate the 90-

day time limit.

      Capital One, in support of its motion for Summary Judgment, presented

evidence that the Postal Service had made two attempts to deliver the letter and

that the form left by the Postal Service included a space for the sender’s name, a

space which, in the normal course of business, would have been filled in by the

Postal Service. Zillyette did not refute this evidence, testifying only that he did not




                                           9
remember if the notice left at his home contained the sender’s name or not.4 We

are therefore required to credit the unrebutted evidence that the delivery notice

Zillyette received contained the sender’s name, and to conclude that Zillyette bore

the minimal burden of retrieving the letter in a timely manner following the Postal

Service’s first attempt to deliver it. This he did not do. We therefore hold that,

under the circumstances presented in this case, the district court did not err in

ruling that the 90-day filing period had expired.

       Since Franks and Lewis, we have continued to approach these issues on a

case-by-case basis to fashion a fair and reasonable rule for the circumstances of

each case. In addition, we have continued to require plaintiffs to assume some

minimum responsibility in resolving their claims. Taking these considerations into

account, we agree with the Second Circuit in Sousa v. N.L.R.B., 817 F.2d 10, 11

(2d Cir. 1987), that a plaintiff is entitled to a reasonable time to pick up the letter

upon receipt of a notice of delivery and therefore conclude that a three-day period,

analogous to the federal rule governing time for taking action after service by mail,

see Fed. R. Civ. P. 6(e), provides an appropriate period for a plaintiff to act to

receive an unsuccessfully delivered letter. Providing a three-day period also


       4
        Zillyette was also unable to testify as to the date when he ultimately retrieved the letter
from the post office. Conceivably it could have been retrieved on September 11, the day after
the second notice, which would have made his lawsuit untimely even from the date of receipt.

                                                 10
provides a clear rule that will enable parties to be aware of when they must act or

forfeit their right to sue. Any other hardships to plaintiffs can be accomodated by

the equitable tolling rules, which are generally applicable in Title VII actions

against both private and government employers. See Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 95-96 (1990); Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 393-94 (1982).5

        This three-day period is of no help to Zillyette, who filed suit 98 days after

receipt of the first Postal Service notice. The judgment of the district court is

therefore AFFIRMED.




       5
         Zillyette does not make any argument in this case that he is entitled to equitable
estoppel. We thus need not consider the application of equitable estoppel in this case.

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