### Th e Honorable Charles A. Shaw, United States District Judg e 1 

### for the Eastern District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3616

___________ Jackie Brooks, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Ferguson-Florissant * School District, * * Appellee. *

___________ Submitted: April 15, 1997 Filed: May 20, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

Jackie Brooks sued his employer, the Ferguson-Florissant Schoo l District under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et. seq. The action was dismissed as untimely, and Brooks moved to set asi de the dismissal. After that motion was denied, he filed a secon d motion in which he claimed he had discovered new evidence showing hi s action had been timely brought. The district court determined that Brooks 1 had not made a sufficient showing under Federal Rule of Civil Procedur e 60(b) to

### An a dditional three days would have made the filing timel y 2 

### even t hough it would have been 92 days after he had received th e letter because the ninetieth day was a Saturday. See F.R.Civ.P

. 6(a). -2- reopen his case, and denied the motion. Brooks appeals, and we affirm. Brooks fi led his complaint on July 3, 1995, alleging discrimination
on the basis of race, age, and sex, and retaliation by an involuntar y trans fer from a social work position to teaching. The school distric t moved to dismiss because the complaint stated th at his right to sue letter had been received fro m the Equal Employment Opportunity Commission (EEOC)
on March 30, 1995. A litigant has ninety days from the receipt of the EEO C letter in which to start an action, 42 U.S.C. 2000e-5(f)(1), and Brooks ha d filed his case 95 days after the date he alleged for receipt of his letter

. Brooks did not respon d to the motion to dismiss, and it was granted eight months later. The order of dismissal was entered on April 9, 1996, an d Brooks did not appeal. On April 15, 1996, Brooks filed a "M otion to Set Aside Ordered [sic] of Defendant's Motion to Dismiss/or in the alternative to Vacate Order of Dismissal of April 9, 1996." The district court treated this motion under Rule 59(e), which provides that motions to alter or amend a judgment can be brou ght within 10 days of entry of judgment. Brooks argued that th e EEOC le tter showed that it had been mailed on March 30, 1995, it shoul d have been presumed th at the letter was received three days after mailing, and t he suit was therefore timely filed. The district court denied th e 2 motion on the basis that a presumption should no t apply because Brooks had affirmatively stated in his complaint that he had received the letter on March 30, 1995. Brooks did not appeal from the denial of this motion.

### -3- Instead o f appealing, Brooks filed on July 8, 1996 a "Second Motion to Set Asi de Ordered [sic] of Defendant's Motion to Dismiss/or in th e alternative to Vacate Order of Dismissal of April 9, 1996 Based on Ne w Evidence." Brooks referred to Rule 59(e) in his second motion, but it was treated as a Rule 60(b) motion because it was filed more than 10 days afte r the entry of judgment. See Baxter Int'l, Inc. v. Morris , 11 F.3d 90, 92 n.2. (8th Cir. 1993). In this motion Brooks con tended that he had made an
error in his complaint regarding the date of receipt of the EEOC letter, that he could not have received it before April 3, 1995, and that his clai m was therefore timely. The district court determ ined that this was not new evidence and that the necessary showing under Rule 60(b) had not been made

. Since Brooks would have known when he had receiv ed the letter, evidence of receipt after March 30, 1995 was previously available to him. The court also pointed out that Brooks had still not said when he had received the letter; i t was theoretically possible that he had picked it up from th e EEOC. Brooks appeals from the denial of this second motion.
Brooks argues his case should not have been dismissed because it was actually filed within 90 days of receiving the EEOC letter. He wa s proceeding pro se, an d the district court should have added three to five days to the date the letter was mailed to determ ine accurately the date of receipt. He points to a postal receipt he has obtained that shows th e letter was received on April 4, 1995; his filing was therefore timely. He claims he was unable to obtain this evidence ear lier, "in part [because of his] lack of knowledge."

Under Rule 60(b) the movant must demonstrate exceptiona l circumstances to just ify relief. E.g., Atkinson v. Prudential Prop. Co. , 43 F.3d 367, 371 (8th Cir. 1994). We review only the

### -4-

denial of the Rule 60(b) motion and do not squar ely consider the merits of the underlying order. Cox v. Wyrick , 873 F.2d 200, 201-02 (8th Cir. 1989)

. Rule 60(b)(2) permits relief on the basis of new evidence that could not have been discovered by due diligence in time to move for relief under Rul e 59; Rule 60(b)(6) can apply when exceptional circumstances prevent relief "through the usual channels." In re Zimmerman , 869 F.2d 1126, 1128 (8th Cir. 1989). The denial of a motion brought under Rule 60(b) is reviewed for abuse of discretion. Atkinson , 43 F.3d at 371.

Brooks has not shown that he was dil igent in seeking evidence about the correct day the EEOC letter was received in order to establish a timel y filing. While we recognize that Brooks represented himself and may have had difficulty with procedural rules, the motion to dismiss provided him notice that the receipt date was critical and th at he would lose his right to sue under Title VII if he had not filed withi n 90 days of receiving the letter. The EEOC letter itself plainly stated that he would lose his righ t of action if one was not filed within 90 days. Brooks did not respond to the motion to dismiss even though the district court waited eight months to rule on it. The postal receipt referred to in his brief was no t obtained until after the district court ruled on his second motion, and hi s cryptic s tatement that he could not have gotten it earlier "in par t [becau se of his] lack of knowledge" does not show he was diligent i n seeking it. See Saxon v. Blann , 968 F.2d 676, 6 80 (8th Cir. 1992) (movant had the opportunity t o obtain new evidence, but did not do so). Evidence of receip t of the letter was available from the post office and wa s obtained by Brooks four days after the EEOC suggested the post office woul d have it. In the exercise of reasonable diligence he could have obtained the needed evidence earlier to counter the

### -5-

employer's motion to dismiss or to support his o wn motions to the district court, but he never did.

The distr ict court did not abuse its discretion in finding tha t Broo ks failed to make a sufficient showing under Rule 60(b). Brook s offered no explanation for failing to respond to the motion to dismiss his underlying claim, he has not pointed to any circumstance that prevented hi m from appe aling the dismissal, and he has not provided any reason why h e appare ntly did not seek evidence to show that the date of receipt h e pleaded was incorrect until after the district court denied his secon d motion. See Zimmerman , 869 F.2d at 1128 (no explanation for failing t o seek redress through usual means is a proper basis for denying Rule 60(b) motion); In re Design Classics, Inc. , 788 F.2d 1384, 1386 (8th Cir. 1986) (same).
The order denying Brooks' July 8, 1996 motion is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.