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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Lois Arata, 

Plaintiff, 

v. 

Alex Azar, 

Defendant. 

No. CV-18-08071-PCT-SMB 

ORDER 

Pursuant to Federal Rule of Civil Procedure 56, Defendant Alex Azar, Secretary of 

the U.S. Department of Health and Human Services, filed a Motion for Summary Judgment 

on each of Plaintiff’s claims based on a statute of limitations defense. The Court has now 

considered the Motion (Doc. 12, Mot.), Plaintiff’s Response (Doc. 17, Resp.), and 

Defendant’s Reply (Doc. 22, Reply) along with relevant case law. 

I. BACKGROUND 

Plaintiff Lois Arata brought this action against Alex Azar, Secretary of the U.S. 

Department of Health & Human Services (“HHS”) on March 27, 2018 for discrimination, 

retaliation, and hostile work environment under Title VII of the Civil Rights Act, the 

Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the ADA 

Amendments Act of 2008. (Doc.1). Plaintiff was employed as a Clinical Nurse at Indian 

Health Service, Kayenta Service Unit (“KSU”), from approximately April 2014 to July 

2015 and at Indian Health Service, Gallup Indian Medical Center (“GIMC”), from July 
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2015 until August 2016.1 Id. ¶¶ 4, 8. Plaintiff filed EEOC complaints of discrimination 

and harassment against HHS regarding her employment at KSU and GIMC. Id. ¶ 1. The 

only claims in question now are those raised by Plaintiff in two of the EEOC complaints, 

(Reply at 2), which an Administrative Judge consolidated per an order issued on March 17, 

2017 (the “Consolidated Complaints”), (Doc. 13-2 at 7). HHS issued a consolidated Final 

Agency Decision (the “FAD”) to Plaintiff concerning the Consolidated Complaints on 

December 21, 2017, determining that Plaintiff had failed to meet her burden of persuasion 

to show that she was discriminated against. (Doc. 13-5 at 35). The FAD alerted Plaintiff 

of her right to sue on the claims raised in the Consolidated Complaints within ninety days. 

(Doc. 13-5 at 37). The FAD was mailed via USPS First Class Mail to Plaintiff’s P.O. Box 

and to her counsel’s address of record, which showed both a street address and a P.O. Box. 

(Doc. 13-5 at 40). 

Defendant now moves for summary judgment, arguing that Plaintiff filed this action 

outside of the statute of limitations. 

II. LEGAL STANDARD 

Summary judgment is appropriate when “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A material fact is any factual issue that might affect the outcome of the case under 

the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could 

return a verdict for the nonmoving party. Id. 

“A party asserting that a fact cannot be or is genuinely disputed must support the 

assertion by . . . citing to particular parts of materials in the record” or by “showing that 

materials cited do not establish the absence or presence of a genuine dispute, or that an 

adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 

56(c)(1)(A), (B). The court need only consider the cited materials, but it may also consider 

any other materials in the record. Id. 56(c)(3). 

 

1

 Indian Health Service is a division of the U.S. Department of Health & Human Services. 
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Initially, the movant bears the burden of demonstrating to the Court the basis for the 

motion and “identifying those portions of [the record] which it believes demonstrate the 

absence of a genuine issue of material fact.” Id. at 323. If the movant fails to carry its 

initial burden, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co. 

v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). If the movant meets its initial 

responsibility, the burden then shifts to the nonmovant to establish the existence of a 

genuine issue of material fact. Id. at 1103. The nonmovant need not establish a material 

issue of fact conclusively in its favor, but it “must do more than simply show that there is 

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant’s bare assertions, standing alone, 

are insufficient to create a material issue of fact and defeat a motion for summary judgment. 

Liberty Lobby, 477 U.S. at 247–48. “If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Id. at 249–50 (citations 

omitted). However, in the summary judgment context, the Court believes the nonmovant’s 

evidence, id. at 255, and construes all disputed facts in the light most favorable to the nonmoving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). If “the evidence 

yields conflicting inferences [regarding material facts], summary judgment is improper, 

and the action must proceed to trial.” O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 

1150 (9th Cir. 2002). 

III. ANALYSIS 

Title VII provides that an employee of an executive agency or department, such as 

the Department of Health and Human Services, “shall be made free from any 

discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. 

§ 2000e-16(a); see also 5 U.S.C. §§ 101, 105. After an employee has filed a complaint of 

discrimination, and notice of the final action taken by such a department has been issued, 

the employee is permitted to file a civil action “[w]ithin 90 days of receipt of notice[.]” 42 

U.S.C. § 2000e-16(c). “Courts apply the ninety-day time limit strictly and will dismiss a 

suit for missing the deadline by even one day.” Garrison v. Nike Inc., No. CV-17-00805-
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PHX-DLR, 2017 WL 2653051, at *2 (D. Ariz. June 20, 2017). It is the defendant that 

“bears the burden of proving that the plaintiff filed beyond the limitations period.” Payan 

v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir. 2007). 

When the date of receipt is known, the notice is deemed received on that date, 

regardless of whether the claimant or her attorney personally saw the notice. Payan, 495 

F.3d at 1122; see also Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992) (calculating 

the ninety-day period from the date on which the EEOC letter was “received and signed 

for by” plaintiff’s daughter). The limitations period begins on the day that delivery is first 

attempted at the plaintiff’s address of record, even if delivery is not completed at that time. 

See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997) (holding that the 

ninety-day period began running on the date that delivery was first attempted at plaintiff’s 

home, even though the certified letter was not delivered because no one was there to receive 

it). 

Where the date of actual receipt is unknown, but there is no dispute as to receipt 

itself, the Court applies a presumption to approximate the date of receipt. Payan, 495 F.3d 

at 1122. First, the Court presumes that “the letter issuance date is also the date on which 

the letter was mailed.” Id. at 1123. Second, the Court presumes that the letter was received 

three days after the date of issuance. Id. at 1126. These presumptions are, however, 

rebuttable. Id. at 1124, 1126. To rebut the presumption of receipt, a plaintiff must show 

that she did not receive the letter in the ordinary course. Id. at 1126. “In reviewing whether 

the presumption has been rebutted, courts look for evidence suggesting that receipt was 

delayed beyond the presumed period.” Id. 

Here, the FAD was issued on December 21, 2017, a Thursday. Defendant contends 

that applying Payan’s three-day presumption, the FAD is presumed received on December 

26, 2017, the following Tuesday. The Court assumes that in making this calculation, 

Defendant omits December 24 (a Sunday) and December 25 (a legal holiday) from the 

calculation. Defendant also notes that the FAD provides a five-calendar day presumption 

of timeliness, which is contrary to the Ninth Circuit’s three-day presumption applied after 
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a final agency decision has been issued. (Mot. at 5–6). Even assuming that a five-day 

presumption is applicable to the timing of filing of a civil action and not just the timing of 

administrative actions, the presumption in this case still falls on December 26, 2017. Since 

Defendant suggests that under either calculation the presumed date of receipt is December 

26, 2017, the Court will proceed with the proposed receipt date of December 26.2 Ninety 

days from the presumed day of receipt is March 26, 2018. Applying the presumption, 

Plaintiff had up and until March 26, 2018 to file this action. Plaintiff however attempts to 

rebut the presumption by asserting that the date of receipt is known, asserting that 

Plaintiff’s attorney received the FAD on December 27, 2017. (Resp.). Plaintiff’s attorney 

asserts that his law firm “has a policy of stamping all incoming mail confirming the date 

of receipt” and presents a copy of the FAD with a date stamp of December 27, 2017. (Doc. 

18-1). Plaintiff’s attorney attests to this both in the Response and a supporting affidavit. 

In order to rebut a presumption, Plaintiff needs to present evidence that is 

“sufficiently definite” to conclude that the FAD arrived after the presumed date of receipt. 

Payan, 495 F.3d at 1127. In Payan, the Ninth Circuit rejected as insufficient the plaintiff’s 

suggestion that her mail had often been delayed by up to a week. Id. The Payan court also 

cited a Second Circuit case that rejected a copy of a letter with the plaintiff’s own stamp 

indicating the date of receipt without additional support such as an affidavit from the 

plaintiff. Id. (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)). 

Here, Plaintiff’s attorney submitted a copy of the letter showing the date that his law firm 

stamped the FAD as having been received, but unlike Sherlock, Plaintiff’s attorney also 

submitted an affidavit attesting to the receipt and his law firm’s policy concerning 

incoming mail (Doc. 18-1 at 1–2). Plaintiff’s attorney’s affidavit provides limited 

 

2

 However, the Court notes that cases in this Circuit have calculated the three-day period without omitting Sundays and holidays from the calculations. See Payan, 495 F.3d at 1125 

(adopting a three-day presumption for receipt after mailing without specifically mentioning whether weekends or holidays are included in the calculation, but calculating the period from a Friday to the following Monday as three days); Rhodes v. Raytheon Co., No. CV 

10-625-TUC-RCC, 2011 WL 4625763, at *1 (D. Ariz. Oct. 6, 2011), aff’d in part, 555 F. 

App’x 665 (9th Cir. 2014) (holding that an EEOC right-to-sue letter issued on a Friday was presumed delivered on the following Monday and noting that the letter considered in Payan was mailed on a Friday and considered delivered on the following Monday). 
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information regarding the receipt of the FAD by his office. Plaintiff’s attorney fails to 

clarify whether the FAD was delivered to the P.O. Box or the street address listed in his 

address of record; whether Plaintiff’s attorney’s firm retrieved mail from the P.O. Box on 

the days immediately preceding December 27, 2017; or whether there was any attempted 

delivery to the law firm on December 26, 2017, the day after Christmas. See Schulman v. 

Wynn Las Vegas, LLC, 593 F. App’x 673, 674 (9th Cir. 2015) (holding that the district 

court “failed to provide sufficient reason to disbelieve [plaintiff’s] testimony that he checks 

his mailbox daily; that he received the EEOC letter on [a known date]; that he documented 

the date of receipt; and that he delivered a copy of the letter to his attorney and informed 

him of the date of receipt.”). Nevertheless, Plaintiff has submitted some evidence that her 

counsel received the FAD on December 27, 2017, which creates a genuine issue of material 

fact. 

But even assuming that Plaintiff has rebutted the presumption of delivery in regard 

to her attorney’s receipt of the FAD, no evidence has been provided to rebut the 

presumption that Plaintiff herself received the FAD outside of the presumed date of receipt 

or that the date of receipt is known. Indeed, no mention has been made at all of the FAD 

sent to Plaintiff. The statutory guidance does not describe who must receive notice, only 

that a civil action must be filed “[w]ithin 90 days of receipt of notice of final action[.]” 42 

U.S.C. § 2000e-16(c). In Payan, the court stated that “[w]e measure the start of the 

limitations period from the date on which a right-to-sue notice letter arrives at the 

claimant’s address of record.” Payan, 495 F.3d at 1122. Yet it is unclear whether Payan 

was represented by an attorney at the time the letter in that case was mailed. In a recent 

unpublished opinion, the Ninth Circuit stated that “[t]he statute of limitations begins to run 

from the date on which a right-to-sue letter is delivered to either the claimant or [her] 

attorney, whichever comes first.” Rhodes v. Raytheon Co., 555 F. App’x 665, 667 (9th 

Cir. 2014) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92–93 (1990)). Rhodes 

cites to Irwin, a Supreme Court case affirming the district court’s dismissal of an action 

that was filed outside of the limitations period. The plaintiff in Irwin received the right to 
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sue letter fifteen days after his attorney received the letter, and argued that the limitation 

period did not begin until plaintiff received the notice. Irwin, 498 U.S. at 92. In affirming, 

the Supreme Court noted the Fifth Circuit’s reasoning that notice of final action is 

“received” when the EEOC delivers its notice “to a claimant or the claimant’s attorney, 

whichever comes first.” Id. 

 The Court will follow the guidance of Payan, Rhodes, and Irwin, and find that the 

limitations period begins when either the claimant or her attorney received the letter. See

Shareef v. McHugh, No. CV 16-00509 ACK-KJM, 2017 WL 754326, at *6 (D. Haw. Feb. 

27, 2017) (following Rhodes and finding that the limitations period began when plaintiff 

received notice, even though her attorney did not receive notice); see also Mitchell v. 

Brennan, No. 3:17-CV-00677-SB, 2017 WL 8131567, at *2 (D. Or. Dec. 27, 2017), report 

and recommendation adopted, No. 3:17-CV-00677-SB, 2018 WL 1161390 (D. Or. Mar. 5, 

2018) (noting that the limitations period “begins to run from the date on which a right-tosue letter is delivered to either the claimant or his attorney, whichever comes first”); 

Jennings v. Victor Valley Cmty. Coll. Dist., No. CV 14-06893 SJO (RZx), 2015 WL 

12914372, at *3 (C.D. Cal. Aug. 17, 2015) (same); Homer v. Henderson, No. 00 3869 

MMC, 2001 WL 228164, at *2 (N.D. Cal. Feb. 26, 2001) (same); Williams v. West, No. C 

95-2546 SI, 1997 WL 811777, at *2 (N.D. Cal. Dec. 16, 1997) (same). 

Since it is presumed that Plaintiff herself received the FAD no later than December 

26, 2017, it is of no consequence that Plaintiff’s attorney asserts that he received the FAD 

one day later. No evidence has been presented disputing Plaintiff’s receipt of the FAD, 

nor has any evidence been presented to rebut the presumption that Plaintiff received the 

FAD after December 26, 2018. Plaintiff was permitted to file this civil action up and until 

March 26, 2018. Accordingly, Plaintiff filed this action one day late, and Defendant’s 

Motion for Summary Judgment is granted. 

IT IS ORDERED that Defendant’s Motion for Summary Judgment is GRANTED. 

/// 

/// 
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IT IS FURTHER ORDERED directing the Clerk to enter judgment for Defendant.

IT IS FURTHER ORDERED directing the Clerk to terminate this case. 

Dated this 26th day of March, 2019.