                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3721

M ONCEF L AOUINI,
                                                 Plaintiff-Appellant,
                                  v.

CLM F REIGHT L INES, INC.,
                                                Defendant-Appellee.


             Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
      No. 1:07-cv-1051-SEB-TAB—Sarah Evans Barker, Judge.



     A RGUED A UGUST 4, 2009—D ECIDED A UGUST 20, 2009




 Before F LAUM, K ANNE, and W OOD , Circuit Judges.
  F LAUM, Circuit Judge. The sole issue on appeal in this
employment-discrimination lawsuit is whether the defen-
dant, CLM Freight Lines (“CLM”), met its burden at
summary judgment of proving that the plaintiff, Moncef
Laouini, did not timely file a charge of discrimination
with the EEOC. The agency’s Indianapolis office accepts
administrative charges of discrimination by fax, and
plaintiff’s counsel insists that he faxed Laouini’s charge
2                                               No. 08-3721

during business hours on the final day for timely filing. A
transmission record from counsel’s fax machine con-
firms that he successfully faxed some document to the
agency that day, but there is nothing in the agency’s files
evidencing receipt of counsel’s fax. The district court
concluded that Laouini could not prove that the charge
had been timely filed and granted summary judgment
for CLM. We vacate the judgment and remand for
further proceedings.


                      I. Background
  Laouini, an Arab of Tunisian descent, worked as a truck
driver for CLM from January 2005 until they terminated
him on June 16, 2006. In August 2007 he sued CLM,
claiming race and national-origin discrimination in vio-
lation of Title VII. In his complaint Laouini alleges that he
“filed” a charge of discrimination with the EEOC on
Thursday, April 12, 2007, the date the parties agree was
the deadline for a timely charge. However, a “received”
stamp on the charge in the EEOC’s file shows that it was
not processed by the agency’s Indianapolis office until
Monday, April 16, four days after the deadline. CLM
thus moved to dismiss Laouini’s complaint as time-barred
and attached copies of the charge and the right-to-sue
letter, which states that the agency was dismissing the
charge as untimely.
  In response Laouini submitted an affidavit from his
lawyer, who avers that on April 12, 2007, he instructed
his assistant to prepare a fax cover sheet to the EEOC
and that either he or his assistant faxed that cover sheet
No. 08-3721                                             3

and Laouini’s two-page administrative charge to the
agency’s Indianapolis office that day. The cover sheet
includes a request that the charge be file-stamped as of
April 12 and states that counsel mailed the original and
a copy of the charge to the EEOC the same day. Laouini
also submitted a copy of a printout from counsel’s fax
machine confirming that a three-page document had
been successfully transmitted to an Indianapolis fax
number at 4:05 p.m. on April 12, 2007. An affidavit from
the supervisor who oversees charge-processing at the
agency’s Indianapolis office confirms that the office
accepts charges of discrimination by fax and that the
number on counsel’s fax-transmission record is indeed
the fax number attorneys are instructed to use for sub-
mitting charges. The supervisor also states that charges
faxed before 4:30 p.m. are deemed filed as of that day,
though she says nothing specific about Laouini’s charge.
  CLM then produced a copy of a brief internal memo
from the EEOC’s administrative file authenticated by the
district director in Indianapolis. The memo, dated May 10,
2007, documents a conversation between an EEOC em-
ployee and Laouini’s lawyer; during that discussion
counsel recounted that his assistant had faxed the charge
of discrimination on April 12, and the EEOC employee
replied that there was “no evidence in the case file”
indicating that Laouini’s charge had been received on
April 12. The employee told counsel that the only copy
of the charge in the file was the one mailed on April 12
and received on April 16.
  The district court converted CLM’s motion to dismiss
into a motion for summary judgment and concluded that
4                                                 No. 08-3721

a factfinder could not reasonably conclude that Laouini’s
charge had been timely filed with the EEOC. According
to the court, although the fax confirmation shows that
something had been faxed from counsel’s office to the
EEOC on April 12, there was no evidence that the fax
was actually received or that the document that had
been faxed was Laouini’s charge. The court found it
significant that Laouini’s lawyer could not say with
certainty that he personally fed the charge into the fax
machine. The court also reasoned that, because there
was evidence that faxes received by the EEOC’s Indiana-
polis office before 4:30 p.m. are deemed filed the same
day, and Laouini’s charge was not file-stamped until it
arrived in the mail on April 16, the fax was never received.
Finally, the court declared that, although the local EEOC
office allows filing by fax, EEOC regulations do not
expressly approve of this method, and so any lawyer
who submits a charge by fax “acts at his or her peril.”


                       II. Discussion
  Before bringing a lawsuit under Title VII, Laouini was
required to file a charge of discrimination with the
EEOC. See 42 U.S.C. § 2000e-5(e)(1). Because Indiana is a
“deferral state,” meaning it has a state agency with en-
forcement powers parallel to those of the EEOC, Laouini
had 300 days from the alleged unlawful employment
practice to file a timely charge. See id.; 29 C.F.R. § 1601.80;
Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.
1994); Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir.
1987). Failure to timely file an administrative charge is
No. 08-3721                                                 5

an affirmative defense, and the burden of proof at sum-
mary judgment therefore rests on the defendant. See
EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 596 (7th
Cir. 2009); Salas v. Wis. Dep’t of Corr., 493 F.3d 913, 921-22
(7th Cir. 2007). Summary judgment thus was appropri-
ate only if CLM demonstrated the absence of a genuine
factual dispute over whether Laouini’s charge had been
timely filed. See Lucero v. Nettle Creek Sch. Corp., 566
F.3d 720, 728 (7th Cir. 2009). We review de novo a grant
of summary judgment, construing all facts and infer-
ences in the light most favorable to the nonmoving
party. Id.
   On appeal Laouini argues that there is a genuine
factual dispute about the timeliness of his charge and
thus the district court erred in granting summary judg-
ment for CLM. As Laouini points out, the relevant ad-
ministrative regulation provides that a charge is “deemed
to be filed with the Commission upon receipt” and is timely
if “received within 300 days from the date of the alleged
violation.” 29 C.F.R. § 1601.13(a)(4)(ii)(A) (emphasis
added). Because he submitted evidence from which a
reasonable factfinder could conclude that the local
EEOC office received the charge by fax on April 12, he
argues, CLM’s evidence that the charge was not processed
until four days later is insufficient to warrant summary
judgment. CLM responds that “proof that a message
has successfully exited one fax machine is not proof that
the message was successfully received by another fax
machine.” And, CLM contends, because Laouini sub-
mitted no other evidence that the fax was received on
April 12, no reasonable factfinder could conclude that the
charge was timely.
6                                               No. 08-3721

  This case, then, turns in part on the evidentiary signifi-
cance of a fax confirmation generated by the sender’s
machine, an issue we have not previously addressed.
Although CLM insists that such a confirmation is “no
evidence” of receipt, the company does not cite any
authority supporting this proposition or acknowledge
that most courts to address the issue have concluded
otherwise.
  CLM first equates a fax transmission with a common
letter and asserts that the confirmation generated by
counsel’s fax machine “no more proves receipt of the
charge than a postmark proves receipt of a letter.” Apart
from the fact that this analogy does not support what a
fax confirmation is, the comparison to a letter actually
undermines CLM’s position because it is well-established
that evidence of proper mailing raises a rebuttable pre-
sumption of delivery. See Vincent v. City Colls. of Chi., 485
F.3d 919, 922-23 (7th Cir. 2007) (“Evidence of mailing is
evidence of delivery.”); In re Nimz Transp., Inc., 505 F.2d
177, 179 (7th Cir. 1974) (“[A] timely and accurate mailing
raises a rebuttable presumption that the mailed material
was received, and thereby filed.”). Several courts have
drawn on this presumption, either explicitly or implicitly,
to conclude that a fax confirmation generated by the
sender’s machine similarly creates a rebuttable presump-
tion that the fax was received by the intended recipient.
See Stevens Shipping & Terminal Co. v. Japan Rainbow II
MV, 334 F.3d 439, 444 (5th Cir. 2003) (explaining, in
maritime-lien dispute, that fax confirmation of successful
transmission raises presumption of receipt because
faxes are a “reliable and customary method of communi-
No. 08-3721                                                  7

cating in the shipping business”); Erwin v. Town of Jena, 987
So. 2d 281, 285 (La. Ct. App. 2008) (adopting presump-
tion of receipt and explaining that faxes are “generally
accepted as a vital means of communication in modern
technological culture” and “the judicial world has recog-
nized that fax transmissions are reliable and trustwor-
thy” (internal quotation marks and citations omitted));
Renegade Oil, Inc. v. Progressive Cas. Ins. Co., 101 P.3d 383,
385-86 (Utah Ct. App. 2004) (noting rebuttable presump-
tion of receipt and declining to adopt rule that “all risk of
communication by fax transmission is borne by the
sender and not by the receiver”); American Paging of
Tex., Inc. v. El Paso Paging, Inc., 9 S.W. 3d 237, 240 (Tex.
App. 1999) (concluding that “[a]dmission of evidence
showing a telephonic document transfer to the
recipient’s current telecopier number” gives rise to pre-
sumption of receipt). The presumption of receipt has also
been applied to telegrams, see Wagner Tractor, Inc. v.
Shields, 381 F.2d 441, 446 (9th Cir. 1967); Campbell v. Willis,
290 F. 271, 273 (D.C. Cir. 1923), and to email, see Am. Boat
Co. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir.
2005); SSI Med. Servs. v. State Dep’t of Human Servs., 685
A.2d 1, 6 n.1 (N.J. 1996).
  Other courts, although stopping short of adopting a
rebuttable presumption of receipt, have concluded that a
fax confirmation at least creates an issue of fact about
whether the fax was received. See Lincoln Gen. Ins. Co. v.
Access Claims Adm’rs, Inc., 596 F. Supp. 2d 1351, 1364-65
(E.D. Cal. 2009); Ebersol v. Unemployment Appeals Comm’n,
845 So. 2d 945, 947 (Fla. Dist. Ct. App. 2003); cf. Kennell v.
Gates, 215 F.3d 825, 829 (8th Cir. 2000) (explaining that
8                                                No. 08-3721

factfinder may infer that “information sent via a reliable
means,” including fax, was received, so long as the
means of communication is “accepted as generally reli-
able” and “the particular message is properly dis-
patched”). In a scenario nearly identical to the one here,
the court in Ebersol explained that just because an
agency does not process a request does not mean that
the agency never received the faxed document communi-
cating that request. 845 So. 2d at 947. To conclude other-
wise, the court reasoned, would excuse agencies that
permit filing by fax from developing careful procedures
for docketing such filings. Id.
  The few cases that, at first blush, appear to lend
support to CLM’s position ultimately are of little help. The
Federal Circuit, for example, has said that, “[p]roof of
message exit from a transmitting machine cannot serve
as a proxy for proof of actual receipt of the sent message
by a remote receiving terminal.” Riley & Ephriam Constr.
Co. v. United States, 408 F.3d 1369, 1372-73 (Fed. Cir. 2005).
That proposition is true enough in the abstract, but it
describes neither the case before this court nor even the
facts before the Federal Circuit. In Riley & Ephriam, the
United States sought to establish that a contractor had
failed to timely appeal the denial of its claim as mea-
sured by the date on which the contracting officer pur-
portedly sent the adverse decision by fax to the con-
tractor’s attorney. Id. at 1371. To prove that counsel
actually received the fax, the government submitted a fax
cover sheet, its own phone records showing a call to the
fax number it had on file for counsel, and a (presumably
hearsay) statement from the contracting officer re-
No. 08-3721                                               9

counting that the fax machine had indicated that the
transmission was successful. Id. at 1372. The lawyer
denied receiving the fax and stated that his firm’s fax
number had been changed before the date of the adverse
decision. Id. at 1372. In concluding that the govern-
ment’s evidence was insufficient from which to infer
receipt, the court noted that the government had not
produced a confirmation of transmission from its fax
machine and thus expressly declined to address whether
such a confirmation would have raised a rebuttable
presumption of receipt. Id.; see also Home Mut. Fire Ins.
Co. v. Hampton, 986 S.W.2d 93, 94-95 (Ark. 1999) (conclud-
ing that affidavits stating that fax was successfully trans-
mitted were insufficient evidence of receipt). We have
found only one case where a court expressly held that
a confirmation from the sender’s fax machine was not
evidence that the fax was received. See Wandrey v. Etchison,
210 S.W.3d 892, 894, 896 (Ark. 2005). This decision, how-
ever, does not explore the significance of a fax confirma-
tion; instead, it rests entirely on the court’s position
that counsel submitting court filings by fax have a duty
to follow up with the court clerk to ensure that a fax
was received. Id. at 894-95.
   Although fax confirmations may not always be con-
clusive proof of receipt, we believe that in this case—where
it was not the plaintiff who had to prove receipt, but
the defendant who had to prove the absence of re-
ceipt—the fax confirmation creates a factual dispute
sufficient to preclude summary judgment. Whether it
was plaintiff’s counsel or his assistant who faxed the
charge, the fax confirmation independently verifies that
10                                                  No. 08-3721

a three-page document was sent from counsel’s office
to the EEOC before 4:30 p.m. on April 12, the final day
for timely filing. As the district court observed, the con-
firmation itself does not prove the content of the docu-
ment, but counsel swore in an affidavit that the fax con-
sisted of Laouini’s two-page charge and a cover sheet,
and there is no evidence to undermine his representation.1
And although at summary judgment the plaintiff
did not present evidence establishing that confirmation
of a successful transmission necessarily means that the
document printed out on the other end, a reasonable
factfinder could certainly infer as much. It is commonly
understood that “success” in this context means that the
two fax machines have performed an electronic “hand-
shake” and that the data has been transmitted from one
machine to the other. See, e.g., INFORMATION S ECURITY
M ANAGEMENT H ANDBOOK 277 (Harold F. Tipton & Micki
Krause eds., 6th ed. 2008) (“[O]ne significant advantage
the fax has over other forms of data exchange is that the


1
   Although CLM has not raised the issue, there is a question
whether counsel’s role as a fact witness on this point is problem-
atic. The Southern District of Indiana has adopted the Indiana
Rules of Professional Conduct, see S.D. I ND . L OC . R. 83.5(g),
which prohibit a lawyer from serving as an advocate at a trial
in which he is likely to be a necessary witness unless the
testimony relates to an uncontested issue, relates to the nature
and value of counsel’s legal services, or disqualification of the
lawyer would cause substantial hardship to the client, see I ND .
R ULES OF P ROF’L C ONDUCT R. 3.7. Whether counsel would be
a “necessary” witness at trial and whether any of the excep-
tions would apply are questions for the district court to address.
No. 08-3721                                                  11

sender immediately knows if the transmission was suc-
cessful. . . . [A]ll fax machines have the capability to print
a fax confirmation sheet after each fax sent. This sheet
confirms if the fax has been successfully transmitted . . . .”);
How to Understand Faxes, http://www.how-to.com/article/
details/160 (“Once your fax has been delivered, your
system . . . will create a page with the end result of the
transmission. If the fax was sent successfully, the page will
say “Okay.”); How to Get Confirmation of a Sent Fax,
http://www.ehow.com/how_2015874_confirm-fax-sent.ht
ml (“A confirmation report is a document confirming
that your faxes were sent and received.”).
   The fax confirmation is thus strong evidence of receipt,
and, contrary to the district court’s conclusion, CLM
offered no evidence to meet its burden of proving non-
receipt. In this court CLM asserts that the EEOC “denies
ever having received the fax,” but this representation
mischaracterizes the evidence. The EEOC never “denied”
anything; it simply offered up Laouini’s file, which does
not contain a faxed copy of the charge of discrimination.
The district court concluded that this ended the factual
dispute, but the court did not address the possibility
that the charge was received but misplaced or simply
discarded when the mailed copy arrived the following
Monday. Indeed, CLM did not produce any evidence
from the EEOC about its internal fax-handling and reten-
tion policies. The author of the memo in the EEOC
file—the investigator assigned to review the merits of the
charge—does not purport to have any involvement in the
handling of fax transmissions received in his office, nor
does the author of that memo say that he made any
12                                               No. 08-3721

effort to discuss with those who are responsible for in-
coming faxes whether one was received from Laouini’s
lawyer or even whether any fax was received late in
the afternoon on April 12. A bureaucratic officer’s unin-
formed belief that a document was not received is no
more conclusive than a fax-transmission record indi-
cating that it was. Cf. In re Longardner & Assocs., Inc., 855
F.2d 455, 459 (7th Cir. 1988) (explaining that denial of
receipt does not rebut presumption of mail delivery but
creates question of fact); Nimz Transp., Inc., 505 F.2d at 179
(concluding that absence of document in clerk’s file
is insufficient to rebut presumption that document
mailed was “received, and thereby filed”). Because a
reasonable factfinder could weigh the evidence in this
case and conclude that the EEOC received Laouini’s
charge but simply lost, misplaced, or otherwise failed to
timely process it, summary judgment was inappropriate.
  Finally, CLM spends much of its brief arguing that a
charge of discrimination submitted to the EEOC by fax
can never be timely because the EEOC’s regulations do not
expressly authorize fax filing. CLM does not cite any
regulation prohibiting fax filing (there is none), but cites
instead to 29 C.F.R. § 1601.8, which governs where a
charge of discrimination may be filed and says only that
a charge “may be made in person or by mail at any
office of the Commission or with any designated rep-
resentative of the Commission.” CLM did not raise this
argument before the district court and it is therefore
waived. See Hicks v. Midwest Transit, Inc., 500 F.3d 647, 652
(7th Cir. 2007). In any event, the argument lacks merit. At
the time of the disputed events, the EEOC’s Indianapolis
No. 08-3721                                            13

office accepted charges of discrimination by fax, gave
out a fax number designated for this purpose, and had a
policy of processing faxed charges on the day of receipt.
The cited regulation is silent on faxes, and, as Laouini
points out, it addresses where, not how, to file a charge.
The local agency’s interpretation permitting charges of
discrimination to be lodged by fax is reasonable and
therefore is entitled to substantial deference from this
court. See Martin v. Occupational Safety & Health Review
Comm’n, 499 U.S. 144, 150 (1991); Clancy v. Geithner, 559
F.3d 595, 605-06 (7th Cir. 2009).


                    III. Conclusion
  For the foregoing reasons, we V ACATE the judgment of
the district court and R EMAND for further proceedings
consistent with this opinion.




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