     Case: 15-50945      Document: 00513480985         Page: 1    Date Filed: 04/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50945                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            April 26, 2016
ALEX ZAMORA,                                                               Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

GC SERVICES, L.P.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                USDC 3:15-CV-48


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Alex Zamora appeals the district court’s grant of summary judgment for
GC Services, L.P., his former employer, on his claims brought pursuant to the
Americans with Disabilities Act, 42 U.S.C. §§ 12101–12117, which the district
court concluded were untimely filed. Because we conclude that disputes of
material fact remain regarding when Zamora received the notice of his right to



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-50945
sue and therefore when the limitations period expired, we VACATE the district
court’s grant of summary judgment for GC Services and REMAND this case.
                                        I.
      Zamora filed a petition in Texas state court on November 21, 2014,
alleging that GC Services unlawfully discriminated against him based on his
disability. GC Services generally denied the petition and moved for summary
judgment on the basis that any state claims were barred by Texas’s statute of
limitations. Zamora amended his complaint to allege claims under the ADA,
and GC Services removed the case to federal court, where it moved to dismiss
Zamora’s ADA claims as time barred.             Since both parties submitted
documentary evidence to support their briefing on the motion to dismiss, the
district court converted the motion to one for summary judgment under
Federal Rule of Civil Procedure 12(d), after notice to the parties and a hearing
on the motion. Concluding that Zamora filed suit 91 days after receiving notice
from the EEOC of his right to sue and therefore outside the ninety-day
limitations period, the district court granted summary judgment for GC
Services. After the district court denied Zamora’s motion for reconsideration,
Zamora filed a timely appeal.
      This court has jurisdiction over the final order of the district court under
28 U.S.C. § 1291. The district court had jurisdiction over Zamora’s federal
ADA claims under 28 U.S.C. § 1331. We review an order granting summary
judgment de novo, avoiding credibility determinations while interpreting all
facts and drawing all reasonable inferences in favor of Zamora, the nonmovant.
See Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). Summary
judgment is properly granted only if GC Services showed there is no genuine
dispute as to any material fact and that it was entitled to judgment as a matter
of law. FED. R. CIV. P. 56(a).


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                                             II.
       A plaintiff alleging employment discrimination in violation of the ADA
must file a civil action no more than ninety days after receiving notice of the
right to sue from the Equal Employment Opportunity Commission (“EEOC”).
See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (citing 42
U.S.C. § 2000e-5(f)(1)).       The district court found Zamora’s suit untimely
because it concluded that the EEOC sent Zamora a right to sue letter on
August 19, 2014. It then applied a presumption that Zamora received the
letter within three days of its mailing, by August 22, 2014, making the filing
on November 21, 2014, late by one day.
A. The Mailbox Rule and Presumptions of Receipt
       We have previously ruled that when the plaintiff is unable to remember
or state a date on which he received notice, we will apply a presumption that
it was received three days after mailing. Jenkins v. City of San Antonio Fire
Dep’t, 784 F.3d 263, 267 (5th Cir. 2015). Although Jenkins made clear that the
presumption “is unnecessary and inappropriate . . . [where] there is other
evidence showing a date of receipt earlier or later, such as . . . testimony of the
plaintiff,” id. at 267 n.3, the district court assumed that the three-day rule
applies in all cases regardless of the evidence presented by the plaintiff. Unlike
Mr. Jenkins, Zamora does not claim he cannot remember when he received the
notice. 1 Rather, Zamora submitted and gave live, sworn testimony that he did
not receive the EEOC’s notice at all until early November 2014, after he called
the EEOC to inquire about the notice in late October and the EEOC responded
by sending the notice to his address.




       1  By contrast, in Jenkins, the plaintiff “could not identify the date he received the
right-to-sue letter from the EEOC.” Jenkins v. City of San Antonio Fire Dep’t, 12 F. Supp. 3d
925, 934 (W.D. Tex. 2014), aff’d, 784 F.3d 263 (5th Cir. 2015).
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      We need not decide the effect of Jenkins in a case of alleged total non-
receipt because we conclude that, even assuming arguendo the three-day
presumption applies to such a case, there are fact issues regarding when the
notice was mailed. Cf. id. at 267 (applying the presumption when the date of
mailing was apparently undisputed); Gamel v. Grant Prideco, L.P., 625 F.
App’x 690, 694–95 (5th Cir. 2015) (holding the employer provided sufficient
evidence that the EEOC mailed the notice on a certain date via an “affidavit of
the EEOC employee responsible for mailing right-to-sue letters in which she
stated that her records indicated she mailed the right-to-sue letter” on that
date, and “an internal EEOC log and the stamped date on the letter itself
reflecting” that same mailing date). Unlike prior cases where the three-day
presumption of receipt has been applied, the evidence of the date on which the
EEOC mailed this notice to Zamora is vague and tenuous. There is no direct
testimony or business records evidence of the date on which the notice was
mailed. Compare Duron, 560 F.3d at 291 (noting the absence of this evidence
was problematic for presuming receipt of a right to sue notice), with Gamel,
625 F. App’x at 694–95 (involving business records and testimony that the
notice was mailed on a particular date).
      Instead, the evidence shows that the notice in this case contains a “Date
Mailed” field, stamped August 19, 2014. An internal EEOC log notes the notice
was “issued” on August 18, and that the file was returned to a different EEOC
division on August 22, 2014, effectively closing the case. A declaration from an
EEOC official in the relevant office notes the EEOC’s “usual and regular
procedure” is “to mail the [right to sue notice] on the same day, or in some
instances on the following day” as the date reflected on the notice.        This
furnishes some circumstantial evidence of normal business practices, but does
not definitively show the notice was mailed on August 19. Cf. Garcia v. Penske
Logistics, L.L.C., 631 F. App’x 204, 208 (5th Cir. 2015) (noting evidence that
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                                      No. 15-50945
“an EEOC case log reflects that the [right to sue] letter was mailed” on the date
after the date listed on the letter itself).        Indeed, it is some evidence that it
might have been mailed on August 20. That one day difference is enough to
impact this case.
       Based on this evidence, the district court erred in treating the August 19
date as the undisputed trigger date for using the mailbox rule. This record
contains a dispute of material fact regarding whether the EEOC mailed the
notice on August 19 or August 20. Drawing all inferences in Zamora’s favor,
the EEOC could have sent the letter on August 20. 2 If we applied the mailbox
rule, we would then presume Zamora received the notice by Saturday, August
23, giving him until November 21, 2014, to file suit. Since Zamora filed his
suit on November 21, 2014, the district court erred in concluding there were no
issues of material fact preventing summary judgment against Zamora for
untimely filing his ADA claims.
B. The Nature of Zamora’s Suit
       GC Services argues that it prevails on its limitations defense even if we
use the August 20 trigger date because Zamora’s amended petition does not
relate back to the November 21, 2014, filing. GC Services notes that Zamora
did not specifically allege any ADA claims in the petition he filed in state court
on that date. Instead, Zamora generally alleged employment discrimination
due to his disability and a failure to reasonably accommodate that disability,
without specifically naming either the ADA or the Texas Labor Code, which
also provides protection against employment discrimination. Zamora attached
various exhibits to his state court petition, including an EEOC Charge of
Discrimination form that was filed with the EEOC and the Texas Workforce



       2GC highlights that its counsel received a copy of the notice on August 21, 2014. This
evidence does not prove mailing on August 19 as opposed to August 20.
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                                       No. 15-50945
Commission, and the right to sue letter from the EEOC. Although Zamora did
not specifically cite the ADA until February 18, 2015, we conclude that his
amended petition clearly relates back to the November 21 petition. See Taylor
v. Bailey Tool Mfg. Co., 744 F.3d 944, 946–47 (5th Cir. 2014) (applying state
law to the question of whether one state pleading related back to a prior state
pleading); TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (West 2014) (relation
back statute).
       Texas law requires courts to construe the petition liberally in favor of the
pleader. See Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). 3 Doing so, we
conclude that under Texas procedure, ADA claims could be reasonably inferred
from the allegations in Zamora’s original petition, filed on November 21, 2014.
Accordingly, Zamora’s amended petition specifically asserting ADA claims
relates back to his original petition under Texas law, and we consider the date
of filing to be November 21, 2014.
                                      III. Conclusion
       For the reasons stated, we VACATE the grant of summary judgment for
GC Services on the issue of whether Zamora timely filed his ADA claims and
REMAND this case for further proceedings.




       3  This rule of liberal construction may not apply if a defendant files for special
exceptions to obtain a more definite state of the plaintiff’s claim under Texas law. See Boyles,
855 S.W.2d at 601. We need not address this issue, as the record shows GC Services filed a
general denial, and GC Services does not contend it ever filed special exceptions.
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