FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA E. PAYAN, 

Plaintiff-Appellant,

v. No. 05-15978

ARAMARK MANAGEMENT SERVICES D.C. No.

LIMITED PARTNERSHIP, Aramark  CV-04-00002-SRB

Service Master Facility Services, OPINION Inc., aka/Aramark Service Master

Facility Services, Inc.,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued and Submitted

October 20, 2006—San Francisco, California

Filed August 2, 2007

Before: Andrew J. Kleinfeld and Jay S. Bybee,

Circuit Judges, and Robert H. Whaley,* District Judge.

Opinion by Judge Bybee

*The Honorable Robert H. Whaley, United States District Judge for the

Eastern District of Washington, sitting by designation. 

9241
COUNSEL

Mark E. McKane, Kirkland & Ellis LLP, San Francisco, California, for the plaintiff-appellant. 

Thomas L. Hudson, Esq., Meghan H. Grabel, Osborn Maledon PA, Phoenix, Arizona, for the defendant-appellee. 

OPINION

BYBEE, Circuit Judge: 

Martha E. Payan (“Payan”) appeals the district court’s dismissal of her Title VII claims against Aramark Management

Services L.P. (“Aramark”). This appeal turns upon one narrow and discrete issue—how to determine whether a Title VII

action brought in district court after the receipt of an EEOC

right-to-sue letter has been timely filed when the actual date

of receipt by the litigant is unknown. Although we have

addressed this question in a handful of previous cases, our

earlier holdings fail to provide sufficient clarity to resolve the

current case. Here, we seek to establish a coherent rule to

9244 PAYAN v. ARAMARK MANAGEMENT SERVICES
apply to Payan’s case. Under that rule, we hold that in the

absence of evidence of actual receipt, we will apply a threeday mailing presumption to determine notice of a right-to-sue

letter. We conclude that Payan’s claims are untimely and

affirm the district court’s decision granting summary judgment for Aramark. 

I

Payan’s term of employment with Aramark began on

August 8, 2002, and ended on July 11, 2003, when she was

terminated. On July 30, 2003, Payan submitted a charge of

discrimination to the Equal Employment Opportunity Commission (“EEOC”) asserting sex discrimination and retaliation

against Aramark. The EEOC dismissed Payan’s charge and

issued a right-to-sue notice letter dated September 26, 2003.1

As Payan noted in her opening brief, “[t]he actual date

[Payan] received the notice is unknown.” However, the fact

of receipt itself is undisputed. Payan filed this lawsuit on January 2, 2004, ninety-eight days after the EEOC letter was

issued, alleging claims for sexual harassment, retaliation, and

discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e (“Title VII”) and deprivation of civil

rights under 42 U.S.C. § 1983 against Aramark.2

In response, Aramark filed a motion for summary judgment, contending that Payan’s complaint was untimely

because it was filed after the ninety-day period within which

a litigant must file suit after receiving notice of dismissal from

the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The district court

concluded that Payan’s complaint was untimely and granted

Aramark’s motion for summary judgment. This appeal followed.

1When presented with the notice letter at her deposition, Payan identified the letter and its date of September 26, 2003. 

2The district court subsequently dismissed Payan’s § 1983 claims. 

PAYAN v. ARAMARK MANAGEMENT SERVICES 9245
II

We review a district court’s ruling that a Title VII action

is barred by the statute of limitations de novo. See Hernandez

v. Spacelabs Med. Inc., 343 F.3d 1107, 1108-09, 1112 (9th

Cir. 2003). We also review a district court’s grant of summary

judgment de novo. See id.

III

[1] Title VII provides that upon dismissing a charge of discrimination, the EEOC must notify the claimant and inform

her that she has ninety days to bring a civil action. See 42

U.S.C. § 2000e-5(f)(1) (“If a charge filed with the [EEOC]

. . . is dismissed by the [EEOC], . . . the [EEOC or otherwise

appropriate entity] shall so notify the person aggrieved and

within ninety days after the giving of such notice a civil

action may be brought.”). As we have previously explained,

this ninety-day period operates as a limitations period. See

Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992). If

a litigant does not file suit within ninety days “[of] the date

EEOC dismisses a claim,” then the action is time-barred. Id.

Therefore, ascertaining the date on which the limitations

period begins is crucial to determining whether an action was

timely filed. 

[2] We measure the start of the limitations period from the

date on which a right-to-sue notice letter arrived at the claimant’s address of record. See Nelmida v. Shelly Eurocars, Inc.,

112 F.3d 380, 384 (9th Cir. 1997); Scholar, 963 F.2d at 267.

Where that date is known, we will deem the claimant to have

received notice on that date, regardless of whether the claimant personally saw the right-to-sue letter. See Nelmida, 112

F.3d at 384 (measuring the limitations period from the post

office’s first attempted delivery at the claimant’s address);

Scholar, 963 F.2d at 267 (calculating the ninety-day period

from the date on which the EEOC letter was “received and

signed for by [the petitioner’s] daughter”). 

9246 PAYAN v. ARAMARK MANAGEMENT SERVICES
Here, Payan does not dispute having received the letter, but

does not claim to know when the letter arrived at her address

of record. As Payan noted in her opening brief, “[t]he actual

date [Payan] received the notice is unknown.” In her deposition, Payan suggested that “[the letter] could have been

delayed” and that “[she’d] gotten mail that’[d] been delayed

before . . . [s]ometimes about a week.” However, she does not

claim to know when the letter was delivered to her address of

record. 

[3] Where the date of actual receipt is unknown, we will

estimate that date based on the date of EEOC disposition and

issuance of notice, with some compensation for mailing time.

See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,

148 & n.1 (1984) (per curiam); Ortez v. Wash. County, 88

F.3d 804, 807 (9th Cir. 1996) (approximating notice based on

when the EEOC letter was apparently mailed). In accordance

with that logic, the district court here used the issuance date

of the EEOC letter, September 26, 2003, as a starting date,

and presumed receipt of the letter at Payan’s address of record

three days later. 

Payan maintains that the district court erred in basing its

presumption on the EEOC letter issuance date without requiring Aramark to prove the circumstances of mailing, including

proper address and postage. Payan offers two alternative arguments in this regard. First, Payan asserts that as the nonmoving party, she is entitled to have all evidence construed in

her favor. She claims that by not requiring Aramark to prove

the circumstances of mailing, the district court erroneously

construed these material facts against Payan. Second, Payan

argues that Aramark had the burden to prove that the statute

of limitations had expired, as an affirmative defense, and

failed to meet that burden by not establishing the circumstances of mailing. Payan maintains that, for either reason,

necessary predicate facts were not established to justify the

district court’s presumption. 

PAYAN v. ARAMARK MANAGEMENT SERVICES 9247
[4] Payan’s arguments are unsupported by law. Where the

actual date of receipt is unknown but receipt itself is not disputed, we have not demanded proof of actual receipt but have

applied a presumption to approximate receipt. See Ortez v.

Wash. County, 88 F.3d 804, 807 (9th Cir. 1996). Payan is correct that because the statute of limitations is an affirmative

defense, the defendant bears the burden of proving that the

plaintiff filed beyond the limitations period. See Tovar v.

U.S.P.S., 3 F.3d 1271, 1284 (9th Cir. 1993) (“In every civil

case, the defendant bears the burden of proof as to each element of an affirmative defense.”); Wyatt v. Terhune, 315 F.3d

1108, 1117-18 (9th Cir. 2003) (“[I]t is well-settled that statutes of limitations are affirmative defenses, not pleading

requirements.”). See also Ebbert v. DaimlerChrysler Corp.,

319 F.3d 103, 108 (3d Cir. 2003) (holding that the burden to

prove expiration of statute of limitations, as an affirmative

defense, rests on the employer); Bowden v. United States, 106

F.3d 433, 437 (D.C. Cir. 1997); Donnelly v. Yellow Freight

Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989) (stating that the

defendant has burden of proof regarding its affirmative

defenses in Title VII actions).3 Contrary to Payan’s argument,

however, the defendant may do so by raising the limitations

defense and providing sufficient evidence to support the presumption. Here, Aramark has raised the defense and offered

proof of the right-to-sue letter. Thus, the undisputed facts

established in Payan’s case are that the EEOC issued a rightto-sue notice letter to Payan on September 26, 2003, that the

EEOC mailed the letter to Payan’s address of record, and that

Payan received the notice letter at this address. From that

basis, we must calculate Payan’s date of receipt. 

3We note that our holding diverges from the Eleventh Circuit, which

holds that, if contested by defendant, the plaintiff must demonstrate filing

within the 90-day limitations period. See Green v. Union Foundry Co.,

281 F.3d 1229, 1233-34 (11th Cir. 2002) (“[F]or [a claimant] to maintain

his Title VII claims . . . , he has the initial burden of establishing that he

filed his Complaint within ninety days of his receipt of the EEOC’s rightto-sue letter.”); see also Kerr v. McDonald’s Corp., 427 F.3d 947, 952

(11th Cir. 2005). 

9248 PAYAN v. ARAMARK MANAGEMENT SERVICES
[5] We begin with the presumption that the letter issuance

date is also the date on which the letter was mailed. See id.;

see also Baldwin County Welcome Ctr. v. Brown, 466 U.S.

147, 148 & n.1 (1984) (per curiam); Taylor v. Books A Million, Inc., 296 F.3d 376, 379-80 (5th Cir. 2002); Seitzinger v.

Reading Hosp. & Med. Ctr., 165 F.3d 236, 238-39 (3d Cir.

1999); Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26

(2d Cir. 1996); Jarrett v. U.S. Sprint Commc’ns Co., 22 F.3d

256, 259 (10th Cir. 1994); Banks v. Rockwell Int’l N. Am. Aircraft Operations, 855 F.2d 324, 326 (6th Cir. 1988). While

occasionally courts may have more evidence surrounding the

facts of mailing, see, e.g., Nelmida, 112 F.3d at 382 (describing the “envelope containing the original right-to-sue notice”),

we know of no rule requiring such proof. Indeed, in Baldwin,

the Supreme Court based its mailing date on the letter issuance date, without additional proof. See 466 U.S. at 148 & n.1

(“A notice of right to sue was issued to [the petitioner] on January 27, 1981.”). Other federal courts have done the same.

See, e.g., Taylor, 296 F.3d at 380 (noting that “[t]he EEOC

issued a right-to-sue letter on September 29, 2000” and calculating the limitations based on that date); Sherlock, 84 F.3d at

526 (“[N]ormally it may be assumed, in the absence of challenge, that a notice provided by a government agency has

been mailed on the date shown on the notice.” (referring to

Baldwin, 466 U.S. at 148 & n. 1)); Coleman v. Potomac Elec.

Power Co., 310 F. Supp. 2d 154, 158 (D. D.C. 2004),

affirmed 2004 WL 2348144 (D.C. Cir. 2004) (per curiam)

(“The presumed date of a party’s receipt of a right-to-sue letter from the EEOC is three days after issuance.”). This practice also accords with that in other federal areas, see, e.g., 20

C.F.R. § 422.210(c) (“[T]he date of receipt of notice . . . shall

be presumed to be 5 days after the date of such notice.”), to

which courts have analogized in the EEOC context, see, e.g.,

Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th

Cir. 1986) (relying on § 422.210(c) to support a five-day

mailing presumption). The cases Payan cites to suggest that

courts have required additional proof involved claims where

PAYAN v. ARAMARK MANAGEMENT SERVICES 9249
the fact of receipt was disputed, not—as here—where the

issue is the timing of receipt.4

These assumptions may be rebutted with evidence to the

contrary. See infra at 9254-55. As a initial matter, however,

the district court here properly used the issuance date of September 26, 2003, as presumptive evidence of the mailing date.

IV

[6] Having established the mailing date, we next calculate

Payan’s receipt of her right-to-sue notice. In Baldwin, the

Supreme Court presumed, without discussion, that a right-tosue letter was received three days after its issuance date. See

466 U.S. at 148 & n.1 (citing FED. R. CIV. P. 6(e)). While

instructive, Baldwin may not settle the issue. Some courts

have not adhered to a three-day rule, perhaps viewing Baldwin as setting only a minimum allowance for mailing time,

see, e.g., Graham-Humphreys v. Memphis Brooks Museum of

Art, Inc., 209 F.3d 552, 557 n.9 (6th Cir. 2000) (“The Sixth

Circuit allots two days for postal delivery of a [right-to-sue]

notice beyond the three day period allowed by Federal Rule

of Civil Procedure 6(e).” (referring to Baldwin, 466 U.S. at

148 n.1)), or interpreting Baldwin as establishing no holding

whatsoever as to mailing time, see, e.g., Carrasco v. City of

Monterey Park, 18 F. Supp. 2d 1072, 1076 (C.D. Cal. 1998)

4

In the cases cited by Payan, claimants sought to prove (or disprove) the

fact of mailing. See, e.g., Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1009-

10 (9th Cir. 2003) (finding an incorrect zip code sufficient proof of

improper mailing to dispute that receipt occurred); Schikore v.

BankAmerica Supp’l Ret’t Plan, 269 F.3d 956, 963-64 (9th Cir. 2001)

(accepting a sworn statement that claimant mailed the requisite form sufficient proof to presume receipt). This question implicates the mailbox rule,

a long-established principle which presumes that, upon a showing of predicate facts that a communication was sent, the communication reached its

destination in regular time. See Rosenthal v. Walker, 111 U.S. 185, 193

(1884). However, the mailbox rule applies only where the fact of receipt

is disputed. It is inapplicable here, where Payan acknowledges she

received the right-to-sue letter. 

9250 PAYAN v. ARAMARK MANAGEMENT SERVICES
(“Baldwin made no holding, however, as to the time period in

which a letter should be presumed to arrive.”). In addition,

one court has treated Baldwin as establishing a presumption,

but without deciding whether the presumption may be rebutted. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526

(2d Cir. 1996) (citing Baldwin, 466 U.S. at 148 & n.1, 150

n.4). 

Our cases similarly do not resolve the question of approximating receipt in Payan’s case. It appears that in one case we

used the issuance date as the receipt date. See Edwards v.

Occidental Chem. Corp., 892 F.2d 1442, 1444-45 (9th Cir.

1990) (concluding that the petitioner “recei[ved] her right to

sue letter on August 14, 1986” where “the [EEOC] issued a

right to sue letter on August 14, 1986”). In another case we

found timely an action filed 94 days after the EEOC letter was

apparently mailed. See Ortez v. Wash. County, 88 F.3d 804,

807 (9th Cir. 1996). Neither case establishes a rule that clearly

governs Payan’s case. The issue in Edwards was whether an

amended complaint related back to a timely filed complaint.

See Edwards, 892 F.2d at 1446-47. Because the court found

that it did, id. at 1447, the court’s approximated receipt date

of the second complaint was irrelevant to court’s central holding and thus may reflect some inexactness. And in Ortez, the

defendants did not object to the late filing where the letter was

issued on a Friday and the 90-day period, with an allowance

for Friday, then ended on a weekend. See Ortez, 88 F.3d at

807. 

[7] With no clearly applicable rule in our own precedent,

we may look to other federal courts for insight. Most courts,

including the Supreme Court, have presumed a receipt date of

three days after EEOC letter issuance. See, e.g., Baldwin, 466

U.S. at 148 n.1; Seitzinger, 165 F.3d at 238-39; Sherlock, 84

F.3d at 525-26; Jarrett, 22 F.3d at 259. At least one court, the

Sixth Circuit, has used a five-day presumption. See, e.g.,

Banks, 855 F.2d at 326.5 In addition, some courts have sug5At least two district courts in our circuit have also applied a five-day

presumption, apparently under the authority of Nelmida v. Shelly EuroPAYAN v. ARAMARK MANAGEMENT SERVICES 9251
gested, though not applied, a seven-day presumption. See,

e.g., Taylor, 296 F.3d at 379 (noting that courts have presumed receipt dates ranging from three to seven days after

mailing); Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir.

2001) (same); Carrasco, 18 F. Supp. 2d at 1076 (same); Ellison v. Northwest Airlines, 938 F. Supp. 1503, 1509 (D. Haw.

1996) (“The [c]ourt need not decide however whether 3, 5 or

7 days is the appropriate period of time, although it finds that

the appropriate period should be no greater than 7 days.”). 

The choice of a three-, five-, or seven-day presumption is

critical here. As the district court noted, Payan’s claim would

have been untimely under either a three- or five-day rule. The

EEOC issued a right-to-sue letter on September 26, 2003, and

mailed the letter to Payan’s address of record. Under a threeday rule, we would presume Payan received the right-to-sue

letter on, or prior to, September 29, 2003. Because ninety

days after that date was December 28, 2003, a Sunday, Federal Rule of Civil Procedure 6(a) extends the ninety-day

period to December 29, 2003. See FED. R. CIV. P. 6(a); Sain

v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002) (applycars, Inc., 112 F.3d 380 (9th Cir. 1997). See Stimson v. Potter, 2006 WL

449133, at *3 (N.D. Cal. 2006); Carrasco v. City of Monterey Park, 18 F.

Supp. 2d 1072, 1076 (C.D. Cal. 1998). One district court characterized

Nelmida as “not[ing] the applicability of the five-day period in dicta” and

adopted a five-day presumption on that basis. Carrasco, 18 F. Supp. 2d

at 1076. Another district court then applied the five-day presumption without any discussion or explanation. See Stimson, 2006 WL 449133, at *3.

It would be erroneous to read our decision in Nelmida as establishing

a five-day presumption. In Nelmida, the post office had attempted to

deliver the right-to-sue letter and left several notices for pick up, but when

unclaimed, the post office returned the letter to the EEOC. See 112 F.3d

at 384. We concluded that the ninety-day limitations period begins to run

when “delivery of the right-to-sue notice was attempted at the address of

record.” Id. Although we discussed other courts’ approaches to receipt

issues, see id. at 383-84, this discussion was dicta. The Nelmida Court did

not apply a mailing presumption; indeed, such a presumption was unnecessary given the facts of the case. 

9252 PAYAN v. ARAMARK MANAGEMENT SERVICES
ing Rule 6(a) in the § 1983 context); Hart v. United States,

817 F.2d 78, 80 (9th Cir. 1987) (applying Rule 6(a) to a claim

brought under the Federal Tort Claims Act). Under a five-day

rule, the presumed date of receipt would be October 1, 2003.

Ninety days after that date would be December 30, 2003.

However, Payan did not file suit until January 2, 2004. Therefore, Payan’s claim would have been untimely under either

rule. By contrast, Payan’s claim would be timely under a

seven-day rule. Under a seven-day rule, we would presume

that Payan received the right-to-sue letter on, or prior to,

October 3, 2003. Ninety days after that date would be January

1, 2004, a holiday, which Rule 6(a) would extend to January

2, 2004, the date on which Payan filed suit. See FED. R. CIV.

P. 6(a). 

[8] We adopt the three-day presumption. The three-day presumption accords with Federal Rule of Civil Procedure 6(e),

which provides that “[w]henever a party must or may act

within a prescribed period after service and service is made

[by mail], 3 days are added after the prescribed period would

otherwise expire.” FED. R. CIV. P. 6(e); see also Baldwin, 466

U.S. at 148 n.1 (citing Rule 6(e)); Seitzinger, 165 F.3d at 239

(same). This rule is well-known, and is reasonable in this context as in other aspects of civil litigation. The five-day presumption has been explained as according with 20 C.F.R.

§ 422.210(c) (provision of Social Security Act presuming

receipt of notice five days after the date of a denial or a decision), see Hunter v. Stephenson Roofing, Inc., 790 F.2d 472,

475 (6th Cir. 1986), and alternatively, as an additional twoday allotment beyond the mailing time allowed in Rule 6(e),

see Graham-Humphreys, 209 F.3d at 557 n. 9 (referring to

Baldwin, 466 U.S. at 148 n.1). We see no basis for adopting

such a presumption in this context. And although courts have

suggested the possibility of a seven-day rule, we can find no

articulated reason for allowing seven days for mailing.6 Based

6The seven-day rule may have originated in Roush v. Kartridge Pak

Co., 838 F. Supp. 1328, 1335 (S.D. Iowa 1993), in which the defendants

PAYAN v. ARAMARK MANAGEMENT SERVICES 9253
on the Supreme Court’s use of the three-day presumption in

Baldwin, its adoption by an overwhelming number of circuits,

and its basis in Federal Rule of Civil Procedure 6(e), we adopt

the three-day presumption as the governing standard for this

circuit. 

[9] This presumption—that the plaintiff received the rightto-sue letter by the date presumed under a three-day rule—is

a rebuttable one. See, e.g., Issa v. Comp USA, 354 F.3d 1174,

1178-79 (10th Cir. 2003); Ebbert v. DaimlerChrysler Corp.,

319 F.3d 103, 108 n.5 (3d Cir. 2003); Green v. Union

Foundry Co., 281 F.3d 1229, 1234 (11th Cir. 2002); Lozano

v. Ashcroft, 258 F.3d 1160, 1165-67 (10th Cir. 2001);

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,

209 F.3d 552, 557-58 (6th Cir. 2000); Sherlock v. Montefiore

Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996); Coleman v. Potomac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D. D.C.

2004), affirmed, 2004 WL 2348144 (D.C. Cir. 2004) (per

curiam). In reviewing whether the presumption has been

rebutted, courts look for evidence suggesting that receipt was

delayed beyond the presumed period. See Kerr v. McDonald’s

Corp., 427 F.3d 947, 952 (11th Cir. 2005) (adding that the

events causing delay must be “in no way [a complainant’s]

fault”). The Second Circuit, for example, found that “[i]f a

claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that

the notice was mailed later than its typewritten date or that it

took longer than three days to reach her by mail, the initial

presumption is not dispositive.” Sherlock, 84 F.3d at 526 (noting evidence of a copy of the letter with “stamps indicat[ing]

the timing of [the petitioner’s] own receipt of the letter,” but

argued that the plaintiff filed well beyond what even a seven-day presumption would allow. See McNeill v. Atchison, Topeka & Santa Fe Ry.

Co., 878 F. Supp. 986, 990 (S.D. Tex. 1995) (citing Roush); Ellison, 938

F. Supp. at 1509 (citing Roush). The courts of appeals that have referred

to a seven-day presumption have offered no source for the rule. See Taylor, 296 F.3d at 379; Lozano, 258 F.3d at 1164-65. 

9254 PAYAN v. ARAMARK MANAGEMENT SERVICES
rejecting that “self-serving” evidence as insufficient without

additional support such as an affidavit from the petitioner).

However, general claims that mail is sometimes delayed will

not be sufficient to rebut the presumption. We have all experienced mail delays on occasion; but a general claim of occasional delay is not sufficient to prove that a particular letter

was not delivered on time. Rather, to rebut a mailing presumption, the plaintiff must show that she did not receive the

EEOC’s right-to-sue letter in the ordinary course. 

[10] Here, Payan has offered insufficient evidence to rebut

the three-day presumption. Although Payan suggested that

“[the notice letter] could have been delayed” and that “[she’d]

gotten mail that’[d] been delayed before . . . [s]ometimes

about a week,” none of these comments are sufficiently definite, without corroborating evidence, to conclude that the

right-to-sue letter arrived more than three days after issuance

by the EEOC. Payan also suggested that “[m]any reasonable

and logical reasons exist[ ] why . . . the EEOC may not have

mailed the right-to-sue notice until [after] September 29.”

However, Payan’s unsupported conjectures are insufficient to

suggest delayed receipt. Accord Cook v. Providence Hosp.,

820 F.2d 176, 178-179 & n.3 (6th Cir. 1987) (“[The petitioner’s] denials are not sufficient to support a reasonable conclusion that the letter was not received.”). Lastly, Payan has

proffered that she can “produce a witness that will testify that

the delivery of mail is not always within 3 days . . . and will

show mail that was delivered (1) month after being sent out.”

Such evidence, however, shows nothing with respect to the

receipt of the right-to-sue letter specifically, nor does it suggest a routine mail failure that necessarily would affect the

right-to-sue letter. Without sufficient evidence to the contrary

from Payan, we presume that the right-to-sue notice arrived

at Payan’s address of record in accordance with the three-day

rule. 

[11] Payan, therefore, had until December 29, 2003 to file

her complaint. Because Payan did not file her complaint until

PAYAN v. ARAMARK MANAGEMENT SERVICES 9255
January 2, 2004, three days beyond the ninety-day period, the

district court properly dismissed her claims as untimely.

Payan’s pro se status does not afford her different treatment

under these standards. See Baldwin, 466 U.S. 147 (dismissing

a pro se Title VII complaint filed outside of limitations). 

V

For those reasons, we affirm the district court’s decision

granting summary judgment for Aramark on Payan’s claims.

AFFIRMED.

9256 PAYAN v. ARAMARK MANAGEMENT SERVICES