UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GIAO NGUYEN,
Plaintiff-Appellant,

v.

INOVA ALEXANDRIA HOSPITAL,
                                                                  No. 98-2215
Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-1935-A)

Argued: June 8, 1999

Decided: July 30, 1999

Before MICHAEL, Circuit Judge,
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation,
and FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by an unpublished per curiam opinion.

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COUNSEL

ARGUED: Joseph V. Kaplan, PASSMAN & KAPLAN, P.C., Wash-
ington, D.C., for Appellant. Susan Lisbeth Starr, EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae. Michael Frank Marino, REED, SMITH, SHAW &
MCCLAY, L.L.P., McLean, Virginia, for Appellee. ON BRIEF:
Susan E. Jewell, PASSMAN & KAPLAN, P.C., Washington, D.C.,
for Appellant. Thomas P. Murphy, Eric A. Welter, REED, SMITH,
SHAW & MCCLAY, L.L.P., McLean, Virginia, for Appellee. C.
Gregory Stewart, General Counsel, Philip B. Sklover, Associate Gen-
eral Counsel, Vincent J. Blackwood, Assistant General Counsel,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Giao Nguyen (hereinafter "Nguyen") filed suit in federal district
court against her former employer, INOVA Alexandria Hospital
(hereinafter "Alexandria Hospital") and claimed national origin dis-
crimination, harassment and retaliation during the course of and in the
termination of employment. Nguyen claimed that such alleged dis-
criminatory acts by her employer are in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C.§ 2000e et seq.
Alexandria Hospital moved for summary judgment on all of
Nguyen's claims.

The district court dismissed Nguyen's action as untimely. Nguyen
moved for reconsideration of the district court's order and such
motion was denied. Finding no error below, we affirm.

I.

Nguyen worked as a registered nurse in the intensive care unit of
Alexandria Hospital from December 7, 1981, until her termination on

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June 18, 1996. After exhausting internal review procedures at the
Hospital, on February 15, 1997, Nguyen filed a charge with the City
of Alexandria's Office for Human Rights alleging national origin dis-
crimination, harassment and retaliation. On February 20, 1997, the
complaint was forwarded to the Equal Employment Opportunity
Commission ("EEOC") pursuant to the worksharing agreement
between the local agency and the EEOC.

The EEOC found no probable cause for discrimination and issued
a Notice of Right to Sue by regular mail and date-stamped August 20,
1997. The letter informed Nguyen that "should you wish to pursue the
matter in court, suit must be filed within 90 days of your receipt of
this letter." The EEOC also included a document entitled "Dismissal
and Notice of Rights" explaining the limitations period. In the docu-
ment, the EEOC reiterated that "[i]f you decide to sue, you must sue
WITHIN 90 DAYS from your receipt of this Notice."

The Notice of Right to Sue arrived at Nguyen's mailbox sometime
between August 22, 1997 and September 1, 1997. Nguyen was on
vacation during that time and had specifically asked her neighbors to
collect her mail while she and her family were away. When Nguyen
and her family returned from vacation on September 1, 1997,
Nguyen's husband picked up their mail from the neighbors. The next
day, on September 2, 1997, Nguyen opened the EEOC's letter.

On September 9, 1997, Nguyen telephoned legal counsel and
sought advice on her discrimination case. An initial consultation was
originally scheduled for September 19, 1997, and Nguyen was told to
bring her EEOC complaint file to the meeting. Nguyen did not
retrieve her file in time for the meeting and the meeting was resched-
uled for September 26, 1997.1 Apparently at that meeting, legal coun-
sel told Nguyen to gather corroborating evidence in support of her
allegations.

On November 20, 1997, Nguyen's lawyers first contacted counsel
for Alexandria Hospital seeking a settlement of Nguyen's potential
_________________________________________________________________
1 Nguyen claims that the delay in retrieving her file is attributed to the
EEOC. This allegation is discussed later in the opinion.

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claims. In the letter, Nguyen's counsel addressed the 90-day limita-
tions period:

          Given the short statute of limitations, I must ask that you
          provide me with a response as soon as possible. The 90-day
          right to sue letter is dated August 20, 1997, and Ms. Nguyen
          received it September 2, 1997, when she and her family
          returned from an out-of-town trip. Therefore, Ms. Nguyen
          will need to file a civil action no later than December 1,
          1997, in order to protect her rights.

Counsel for the Hospital promptly responded by letter on Novem-
ber 24, 1997, and indicated that a response to the settlement proposal
would be forthcoming. Two days later, counsel for the Hospital
rejected the settlement proposal and specifically addressed the limita-
tions period:

          Lastly, I am not at all convinced that Ms. Nguyen's claim
          is not barred by the statute of limitations, and am curious
          about her assertion of when she allegedly "received" the 90-
          day right-to-sue letter. If suit is filed, we will pursue that
          issue thoroughly.

On November 28, 1997, Nguyen filed a pro se complaint in the
United States District Court for the Eastern District of Virginia. Alex-
andria Hospital moved to dismiss on the ground that Nguyen had pled
under the Alexandria Human Rights Code for which there is no cause
of action. The district court permitted Nguyen to amend her complaint
and plead claims under Title VII.

Alexandria Hospital filed a motion for summary judgment on all
claims. The district court dismissed the action as untimely. The dis-
trict court held that the 90-day period began to run on the day the
EEOC letter was delivered by the U.S. Postal Service to Nguyen's
residence. Since the date of actual delivery was unknown, the district
court applied the presumption of a three-day delivery period under
Rule 6(e) of the Federal Rules of Civil Procedure. Thus, the district
court found that the EEOC letter had been delivered on August 23,
1997, and the 90-day period expired on November 21, 1997, seven
days before the action was filed and therefore the action was time-

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barred. In addition, the court found that no reasons existed to apply
the doctrine of equitable tolling. Nguyen filed a motion for reconsid-
eration and the same was denied.

II.

We must review the district court's grant of summary judgment in
favor of Nguyen de novo on appeal. In that sense, we must apply the
same standard used by the district court itself. See Conkwright v. Wes-
tinghouse Elec. Corp., 933 F.2d 231, 233 (4th Cir. 1991). "[T]he non-
moving party is entitled to have his evidence as forecast assumed, his
version of that in dispute accepted, and the benefit of all favorable
inferences." Id. at 233. See also EEOC v. Clay Printing Co., 955 F.2d
936, 940 (4th Cir. 1992).

The parties dispute whether delivery of a notice of right to sue let-
ter to a claimant's home, where it is picked up by a delegated neigh-
bor, is effective notice of the claimant's judicial rights. 42 U.S.C.
§ 2000e-5(f)(1) provides that if the EEOC finds no probable cause on
a complaint, the agency "shall so notify the person aggrieved and
within 90 days after the giving of such notice a civil action may be
brought . . . ." Id. The agency's own regulations direct that a notice
of right to sue shall include "[a]uthorization to the aggrieved person
to bring a civil action under Title VII . . . within 90 days from receipt
of such authorization." 29 C.F.R. § 1601.28(e)(1). The EEOC's letter
informs the individual that he or she has 90 days after receipt in
which to file suit. Id.

The date on which the claimant received the EEOC letter becomes
critical in determining the commencement of the 90-day period. In
ascertaining the delivery date, we have rejected an"actual receipt"
rule. Harvey v. City of New Bern Police Dep't , 813 F.2d 652, 654 (4th
Cir. 1987). Instead, we have engaged in "a case-by-case examination
to determine if an equitable tolling of the filing period is appropriate."
Id. at 654. In the context of individual cases, we have held that deliv-
ery of a notice of right to sue triggered the limitations period. See id.
(wife's receipt of notice letter triggered the 90-day period); see also
Watts-Means v. Prince George's Family Crisis Ctr. , 7 F.3d 40, 42
(4th Cir. 1993) (Postal Service's notice to claimant that she could pick
up the letter triggered the limitations period); Harper v. Burgess, 701

                     5
F.2d 29, 30 (4th Cir. 1983) (notice to plaintiff's counsel triggered lim-
itations period and failure to notify EEOC of change of address was
bar to equitable tolling).

We have also utilized procedural rules in ascertaining the receipt
date of notice of right to sue letters. Of course, if the actual date of
receipt is confirmed by evidence, that date governs. Dixon v. Digital
Equip. Corp., 976 F.2d 725, 1992 WL 245867, *1 (4th Cir. Sept. 30,
1992) (unpublished); Williams v. Enterprise Leasing Co. of
Norfolk/Richmond, 911 F. Supp. 988, 991-992 (E.D. Va. 1995). If the
date is unknown, however, it is presumed that service by regular mail
is received within three days pursuant to Rule 6(e) of the Federal
Rules. Fed. R. Civ. P. 6(e); Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 148, n.1, 104 S. Ct. 1723, 1724 (1984) (suggesting that
Rule 6(e) applies when parties dispute the date of receipt).2

In this matter, we hold that the limitations period began to run
when the Notice of Right to Sue was delivered to Nguyen's home and
picked up by a designated neighbor. The letter was mailed on August
20, 1997, but the date on which the letter was actually delivered to
Nguyen's home is in dispute.3 In this situation, the district court's
application of the presumption rule under Rule 6(e) was proper.
Applying the three day rule, the letter is presumed to have been deliv-
ered to Nguyen on August 23, 1997, and the limitations period
expired ninety days later on November 21, 1997.

The remaining question we must consider is whether there are
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2 Federal Rule of Civil Procedure 6(e) states:

          (e) Additional Time After Service by Mail.

          Whenever a party has the right or is required to do some act or
          take some proceedings within a prescribed period after the ser-
          vice of a notice or other paper upon the party and the notice or
          paper is served upon the party by mail, 3 days shall be added to
          the prescribed period.
3 Indeed, Nguyen testified at her deposition that she is in possession of
the envelope presumably showing the post-mark date on which the letter
was sent. By not submitting the envelope as evidence, Nguyen has
placed the issue of notice in dispute.

                     6
equitable considerations sufficient enough to support the exercise of
equitable tolling. We find that the equities do not weigh in favor of
extending the 90-day period. Nguyen delegated her neighbors to pick
up her mail while she and her family were on vacation. The neighbors
acted as Nguyen's agent when they collected the Notice of Right to
Sue letter and all other mail delivered to Nguyen's home between
August 22, 1997, and September 1, 1997.

In any case, Nguyen had ample opportunity to file a complaint
once she was in actual receipt of the EEOC letter. Nguyen opened the
EEOC letter on September 2, 1997. Even then, Nguyen had 80 days
to file her complaint before the 90-day deadline on November 21, 1997.4
In similar situations, we have found that there were no grounds for
equitable tolling. See Watts-Means, 7 F.3d at 42 (equitable tolling
inappropriate where plaintiff had 85 days to file claims); Harvey, 813
F.2d at 654 (equitable tolling inappropriate where plaintiff had 84
days to file his complaint).

Appearing as amicus curiae, the EEOC urges us to adopt a rule that
excuses the limitations period for claimants who ask their neighbors
to collect their mail while away from home.5 When pressed at oral
argument, however, the EEOC conceded that it has implemented cost-
cutting measures and no longer sends its notice of right to sue letters
by certified mail. The agency's current mailing system means that the
date of actual delivery may not always be ascertainable. Nonetheless,
we do not think that an agency's budgetary considerations provide a
sound rationale for an open-ended time extension under Title VII.
That is especially so in this case where Nguyen's neighbors acted as
her agent and received the Notice of Right to Sue on her behalf.

Indeed, this is a much different situation than what we encountered
in Ish v. Arlington County Virginia, 918 F.2d 955, 1990 WL 180127,
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4 This is computed by adding the actual number of days left in the 90-
day period from September 2, 1997, the date Nguyen opened the letter.
5 In defense of their position, the EEOC asserts that claimants have a
right to privacy in the EEOC charge proceedings. According to the
EEOC, the claimant's right of privacy would be undermined if the claim-
ant were compelled to inform her neighbors. We find the EEOC's rea-
soning to be unpersuasive.

                    7
*1 (4th Cir. Nov. 21, 1990) (unpublished). In that case, the reception-
ist of the claimant's landlord had not been designated to collect the
claimant's mail, but she had come into receipt of his notice of right
to sue. We held that the limitations period did not commence upon
receipt by the receptionist since she was not acting as the agent for
the claimant. Id. Here, by contrast, Nguyen's neighbors were acting
as Nguyen's agent and were the intended recipient of the EEOC letter.

Nguyen's argument that Alexandria Hospital induced her to sit on
her rights is unavailing. Through her lawyers, Nguyen did not even
notify Alexandria Hospital of her potential suit until November 20,
1997, or one day before the 90-day period ended. Alexandria Hospital
promptly responded to Nguyen's offer of settlement four days later.
There simply is no basis for this argument.

Nguyen's contention that she was hindered by administrative delay
is equally unavailing. Nguyen asserts that the EEOC did not provide
a copy of her administrative file until September 26, 1997. As of that
date, Nguyen had 56 days to file her complaint. Here, the legal mis-
take was Nguyen's own fault and there is no justification for tolling
the 90-day period. See Citicorp Person-to-Person Fin. Corp. v.
Brazell, 658 F.2d 232, 234-235 (4th Cir. 1981). 6

III.

For the reasons set forth, we affirm the district court's dismissal of
Nguyen's claims as time-barred.

AFFIRMED
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6 We find that all of Nguyen's other grounds for equitable tolling are
without foundation.

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