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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Case No. 11-cv-02467-DME-MJW

CARLO LOMBARDI,

Plaintiff,

v.

ADVANTAGE LOGISTICS USA WEST, LLC,

Defendant.

ORDER GRANTING MOTION TO DISMISS

Before the Court is Advantage Logistics USA West, LLC’s (“Defendant”), motion 

to dismiss (Doc. 23—the “Motion”) pursuant to Fed. R. Civ. P. 12(b)(6) the complaint of 

Plaintiff Carlo Lombardi (“Plaintiff”). In his complaint, Plaintiff alleges employment 

discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. 

(“ADA”). (Doc. 1.) Defendant, Plaintiff’s former employer, moves the Court to dismiss 

the complaint on the ground that it is untimely. Defendant argues that Plaintiff filed his

complaint after the ADA’s ninety-day statute of limitations period for such complaints 

had run—a limitations period that commences when a complainant receives notice of his 

right to sue from the U.S. Equal Employment Opportunity Commission (“EEOC”). 

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Exercising jurisdiction under 28 U.S.C. § 1331 and 1343, the Court GRANTS 

Defendant’s Motion.

BACKGROUND

On November 15, 2007, Plaintiff, through his counsel at the time, George C. Price, 

filed a charge of discrimination with the EEOC, alleging that Defendant, his employer at 

the time, fired him on account of a disability in violation of the ADA. (Doc. 24-1 at 1.)1

 

That charging document included the respective addresses of Plaintiff and Mr. Price. On 

June 22, 2009, the EEOC mailed Plaintiff a “Dismissal and Notice of Rights” (“Notice”), 

sending copies to Mr. Price and Defendant as well. (Doc. 24-2 at 1.)2

 The Notice 

explained that the EEOC, based upon its foregoing investigation, had been unable to 

conclude that the ADA had been violated in Plaintiff’s case. The Notice further stated:

This will be the only notice of dismissal and of your right to sue that we will send 

you. You may file a lawsuit against respondent(s) under federal law based on this 

charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of 

your receive of this notice; or your right to sue based on this charge will be lost.

(Id.)

 1 In contrast, Plaintiff asserted in a June 15, 2011, sworn affidavit (attached to his 

response to Defendant’s motion to dismiss) that he filed his charge of discrimination with 

the EEOC “[o]n or about January 11, 2008.” (Doc. 26-2.) As explained infra, the Court 

may take notice of the official charging document, attached by Defendant. See Barrett v. 

Rumsfeld, 158 Fed. App’x 89, 91 n.1 (10th Cir. 2005) (unpublished). See generally GFF 

Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997). 

But in any event, the difference in those dates is irrelevant to the Court’s analysis; that 

fact is included simply for purposes of background.

2 As explained infra, the Court may take notice of this document without 

converting the Motion into a motion for summary judgment. See Barrett, 158 Fed. App’x 

at 92 (10th Cir. 2005) (unpublished). See generally GFF Corp., 130 F.3d at 1384-85.

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Plaintiff filed his complaint in this case on September 20, 2011. (Doc. 1.)3

Defendant filed its motion to dismiss on April 2, 2012, arguing that dismissal is proper 

because Plaintiff filed suit 820 days after the EEOC issued the Notice, whereas the ADA 

requires that suits be filed within ninety days of a complainant’s receipt of such notice. 

(Docs. 23, 24.) Plaintiff opposed the Motion, arguing that neither he nor Mr. Price ever 

received the June 22, 2009, Notice from the EEOC. (Doc. 26.) Plaintiff argues that the 

first time he received the Notice was on June 23, 2011, when the EEOC faxed a copy to 

his present counsel’s office, following a phone call his wife made to the EEOC earlier 

that month to inquire about the status of her husband’s case. In support of that 

contention, Plaintiff submits a sworn affidavit, dated June 15, 2011, in which he stated 

that neither he nor his attorney ever “received a copy of a right to sue letter from the 

EEOC,” and that he did “not wish to have [his] rights extinguished because of an 

apparent problem with the mail not being received.” (Doc. 26-2.) In reply, Defendant 

argues that Plaintiff failed to rebut the presumption that either he or Mr. Price received 

the original Notice; and even if he had, his complaint is still untimely as measured from 

the date of his June 15, 2011, affidavit, in which he effectively admitted to having notice 

of a time limit on his right to sue. (Doc. 29.)

 3 Plaintiff filed an amended complaint on January 24, 2012, in order to modify the 

caption of the complaint to identify the correct legal name of Defendant. (Doc. 12.) That 

amendment is irrelevant to the present order.

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DISCUSSION

A. Legal Standards

A complainant such as Plaintiff must file suit within ninety days after the EEOC 

gives him notice that it has closed its investigation and that he has a right to sue in court. 

42 U.S.C. § 2000e-5(f)(1); see Witt v. Roadway Exp., 136 F.3d 1424, 1429 (10th Cir. 

1998). “This ninety-day filing limit is not jurisdictional, but is a requirement that, like a 

statute of limitation, is subject to waiver, estoppel and equitable tolling.” Jarrett v. US 

Sprint Commc’ns Co., 22 F.3d 256, 259-60 (10th Cir. 1994). “The ninety-day limit 

begins to run on the date the complainant actually receives the EEOC right-to-sue 

notice,” Witt, 136 F.3d at 1429, and “[a] rebuttable presumption of receipt . . . arise[s] on 

evidence that a properly addressed piece of mail is placed in the care of the postal 

service,” id. at 1429-30. Then, with respect to the timing of that receipt, the corollary 

presumption in the Tenth Circuit is “that a claimant receives a right-to-sue letter three 

mailing days after the date [on the] notice.” Barrett, 158 Fed. App’x at 92; see Fed. R.

Civ. P. 6(d); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (presuming 

receipt of a right-to-sue notice from the EEOC three days after the notice’s stated date of 

mailing, citing Fed. R. Civ. P. 6(e)4

). Further, courts have held that actual notice of the 

EEOC’s prior issuance of the right-to-sue notice also triggers the ninety-day limitations 

 4 The current version of that rule is Fed. R. Civ. P. 6(d), which states: “[w]hen a 

party may or must act within a specified time after service and service is made under 

Rule 5(b)(2)(C)[ which states: ‘mailing . . . to the person’s last known address—in which 

event service is complete upon mailing’] . . . 3 days are added . . . ”.

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period.5 Meanwhile, notice to a complainant’s attorney is imputed to the complainant. 

See Noe v. Ward, 754 F.2d 890, 892 (10th Cir. 1985).

Dismissal of a civil action is proper under Fed. R. Civ. P. 12(b)(6) if the complaint 

fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell 

Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss in the present 

context, based on failure to file suit within the “ninety-day filing period[,] should be 

considered under Rule 12(b)(6) [as opposed to Rule 12(b)(1)].” Barrett, 158 Fed. App’x 

at 91. “[A] district court may review indisputably authentic copies of documents6

referred to in the complaint without converting the motion into one for summary 

judgment,” including “documents, particularly [a] right-to-sue letter, [that] are central to 

the timeliness of the filing.” Id. at 91 n.1. See generally GFF Corp., 130 F.3d at 1384-85

 5 See Cook v. Providence Hosp., 820 F.2d 176, 180 (6th Cir. 1987) (“Assuming, 

arguendo, that [plaintiff] did not receive the Notice, she admits that she had actual 

knowledge, fully one year prior to suit, that the EEOC had given her the right to sue

[notice]; yet, she unjustifiably failed [timely] to pursue her rights.”); Hopkins v. United 

Parcel Serv., 22 F.3d 1334, 2000 WL 923458, at *3 (6th Cir. 2000) (unpublished) 

(holding that the “90-day limitations period . . . began running when plaintiff’s counsel 

was informed via the telephone that the [right-to-sue] notice had been issued” to an old 

address at which plaintiff no longer received mail); Hunter-Reed v. City of Houston, 244 

F. Supp. 2d 733, 741-42 (S.D. Tex. 2003) (collecting cases, holding that “when the 

plaintiff receives actual notice by other means, such as being told by an EEOC 

representative that a right-to-sue letter has been issued, the ninety-day limitations period 

commences without regard to whether the letter is actually received at that time”).

6 Plaintiff does not contest the authenticity of the documents cited by Defendant, 

including the Notice, in support of Defendant’s Motion. See Barrett, 158 Fed. App’x at 

91 n.1 (approving of the district court’s consideration of “public documents related to the 

handling of [plaintiffs’] complaint by . . . the EEOC, including the right to sue letter,” 

noting that “plaintiffs d[id] not contest their authenticity”).

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(discussing appropriateness of considering materials outside the pleadings at the motion 

to dismiss stage).

B. Analysis

The Court determines that Plaintiff’s complaint was untimely filed because he has 

failed to rebut the presumption that he received the Notice on June 25, 2009—three days 

after the EEOC mailed it. See Witt, 136 F.3d at 1429-30; Barrett, 158 Fed. App’x at 92. 

Plaintiff has not asserted, for instance, that the Notice was sent to the wrong address, or 

that Plaintiff had moved and had informed the EEOC. Meanwhile, the Notice shows that 

it was mailed to Plaintiff at the same address he supplied to the EEOC in his original 

charging claim. See St. Louis v. Alverno Coll., 744 F.3d 1314, 1317 (7th Cir. 1984) 

(affirming dismissal when suit was filed more than ninety days from “the date the notice 

was delivered to the most recent address plaintiff provided the EEOC”). Also, there is no 

indication that Mr. Price’s address ever changed. Plaintiff’s and Mr. Price’s bald

assertions, even as sworn statements, that they did not receive the Notice (Docs. 26-2, 26-

3) do not suffice to rebut the presumption; nor does the assertion that Mr. Price cannot 

recall any prior “issue related to the late filing of a suit” in his experience (Doc. 26 at 3). 

Further, Plaintiff’s averment that the EEOC may have been taking a long time to 

investigate claims (id.) is simply inapposite to whether the EEOC mailed the Notice after 

its investigation was finished. Therefore, Plaintiff is deemed to have received the Notice 

on June 25, 2009, or 817 days prior to the filing of his lawsuit—well beyond the 

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applicable ninety-day statute of limitations. Accordingly, this case must be dismissed. 

See Barrett, 158 Fed. App’x at 91.

In the alternative, assuming arguendo Plaintiff rebutted the presumption of his 

receipt of the Notice on June 25, 2009, Plaintiff’s complaint is still untimely in light of 

his admitted actual notice, on June 15, 2011, of his right to sue. The sworn affidavit on 

which Plaintiff relies for his timeliness argument demonstrates that he had become aware, 

by the time of affiance, that the EEOC had closed its investigation and had issued a right 

to sue letter, even if Plaintiff had never received it. (Doc. 26-2.) That affidavit is dated 

June 15, 2011—ninety-seven days prior to the filing of his complaint. As such, since 

Plaintiff had actual notice of the EEOC’s prior issuance of the right-to-sue notice more 

than 90 days before he filed suit, Plaintiff’s complaint is untimely and this case must be 

dismissed. See Cook, 820 F.2d at 180; Hopkins, 2000 WL 923458 at *3; Hunter-Reed, 

244 F. Supp. 2d at 741-42 (collecting cases); cf. Million v. Frank, 47 F.3d 385, 389 (10th 

Cir. 1995) (refusing to apply equitable tolling where there was no evidence that plaintiff 

“had insufficient opportunity or time to file once he actually saw the notice” a few days 

after his wife received it, because “[h]ad plaintiff acted diligently, he could have filed his 

action in a timely manner”); Barrett, Fed. App’x at 92 (concluding nothing warranted 

tolling the ninety-day time limit where plaintiffs had pointed to “no active deception on 

the part of defendants or any extraordinary impediments to the assertion of their rights”).

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CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s Motion and dismisses 

this case pursuant to Fed. R. Civ. P. 12(b)(6).

DATED this 19th day of June, 2012.

BY THE COURT:

s/ David M. Ebel 

_________________________

David M. Ebel

United States Circuit Judge

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