* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 19 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RONALD L. CALVERT,

Plaintiff-Appellant,

v. ROADWAY EXPRESS, INC.,

Defendant-Appellee. No. 01-1162 (D.C. No. 00-B-294) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Ronald L. Calvert, proceeding pro se on appeal and in the district court, appeals the district court’s dismissal of hi s complaint charging his former employer with employment discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, and disability dis crimination, in violation of the Americans with Disabilities Act. The district court granted defendant’s motion to dismiss all claims for lack of subject-matter juris diction, pursuant to Fed. R. Civ. P. 12(b)(1), on the ground that Mr. Calvert failed to file his federal complaint within the ninety-day filing deadline imposed by 42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. § 12117(a) (which expressly adopts Title VII filing deadline for ADA claims). We reverse the district court’s dismissal and re mand for further proceedings. Title VII requires a plaintiff claiming discriminat ion in employment to file his complaint within ninety days of receipt of a ri ght-to-sue letter from the Equal Employment Opportunity Commission. 42 U.S.C. § 200 0e-5(f)(1). The ninetyday filing deadline is a condition precedent to sui t, rather than a jurisdictional prerequisite. Jarrett v. US Sprint Communications Co. , 22 F.3d 256, 259-60 (10th Cir. 1994). It operates like a statute of limitati ons and is subject to estoppel, waiver and equitable tolling. Id. “The ninety-day limit begins to run on the date the complainant actually receives the EEOC right-to -sue notice, making that date-3-

a material fact.” Witt v. Roadway Express , 136 F.3d 1424, 1429 (10th Cir. 1998) (citation omitted). Mr. Calvert alleged in his complaint that he receiv ed the right-to-sue letter on November 2, 1999. He presented his complaint an d a motion to proceed in forma pauperis (IFP) to the district court on Febru ary 1, 2000. The pleadings were stamped by the clerk of the district court as “received” on February 1, 2000. The court granted the IFP motion on March 6, 2000. On February 9, 2000, the court directed Mr. Calvert to cure a filing deficie ncy and directed the clerk to file the complaint and commence the action. After defen dant moved to dismiss, Mr. Calvert filed an unauthorized surreply in which he asserted that he received the right-to-sue letter on November 4, 1999. The distr ict court found that the complaint was not “filed” until February 9, 2000. Thus, even though the court considered the unauthorized surreply, the time betw een November 4, 1999 and February 9, 2000–ninety-seven days–exceeded the lim itations period. In dismissing Mr. Calvert’s complaint under Rule 12 (b)(1) for lack of subject-matter jurisdiction, the district court properly exercised its “wide discretion to allow affidavits [and] other document s” to resolve underlying facts bearing on jurisdiction. Stuart v. Colo. Interstate Gas Co. , 271 F.3d 1221, 1225 (10th Cir. 2001) (quotation omitted). We review th e district court’s findings of jurisdictional facts for clear error. Id. We review the dismissal de novo. Id. We-4-

construe Mr. Calvert’s pleadings liberally because he appears pro se. Haines v.
Kerner , 404 U.S. 519, 520 (1972). A complaint is deemed “‘filed’ upon presentation to the court clerk when accompanied by an IFP motion, so that the formal fi ling ‘relates back’ – upon grant of pauper status – to the ‘lodging’ of the complaint with the clerk.” Jarrett , 22 F.3d at 259. Here, the complaint, accompanied b y an IFP motion, was presented to the district court on February 1, 2000 . Therefore, when the IFP motion was granted, the filing date related back to February 1, 2000. Defendant argues that Mr. Calvert’s statement that he received the right-to-sue letter on November 2, rather than on N ovember 4, is binding. As the district court noted, Mr. Calvert failed to requestleave of court to file his surreply claiming the November 4 date. Nevertheless, the di strict court considered the surreply, which was within its discretion. The dis trict court did not, however, make a finding of fact as to the date Mr. Calvert r eceived the letter. Based on this record, we decline to hold that this situation is similar to cases in which a party attempts to create a sham fa ct issue, as defendant argues. See Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc. , 131 F.3d 874, 893-94 (10th Cir. 1997) (factors to consider in ass essing attempt to create sham fact issue include whether affiant was cross-examin ed, whether he had access to evidence at time of earlier statement, whether evid ence is newly-discovered, and-5-

whether later statement attempts to resolve confusi on in earlier statement). Moreover, the certificate on the right-to-sue letter indicating that it was mailed on November 2, 1999, may entitle Mr. Calvert to a pres umption that he did not receive it until a few days later. See, e.g., Lozano v. Ashcroft , 258 F.3d 1160, 1164-65 (10th Cir. 2001) (collecting cases; recogni zing mailing-time presumption of three or five days for receipt of right-to-sue l etter). In sum, the filing date for the complaint related b ack to February 1, 2000. The case is remanded for a finding of when Mr. Calv ert received the right-to-sue letter. If the district court determines that Mr. Calvert received the right-to-sue letter on November 4, 1999, the complaint was filedeighty-nine days after receipt of the right-to-sue letter, and was timely. If, onthe other hand, the district court determines that Mr. Calvert received the letter on November 2, 1999, the complaint was filed outside the ninety-day statute of limitations, and is subject to dismissal. REVERSED and REMANDED for further proceedings.

Entered for the Court

Mary Beck Briscoe Circuit Judge