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Smith v. Northern Virginia Orthodontics Center, LLC

United States District Court, E.D. Virginia, Alexandria Division

July 16, 2019

CODY C. SMITH, Plaintiff,
v.
NORTHERN VIRGINIA ORTHODONTICS CENTER, LLC. Defendant.

          MEMORANDUM OPINION

          T.S. ELLIS III JUDGE

         At issue on summary judgment in this Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., case is whether Plaintiff, Cody C. Smith, can rescue his apparently untimely complaint by submitting three affidavits - his and his parents', who live with him at the same address - all averring that plaintiff did not receive the right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC") until June 30, 2018, eighteen days after the letter was sent by the EEOC.

         For the reasons that follow, plaintiffs attempt to rescue his untimely complaint fails; plaintiffs submission of self-serving affidavits is insufficient to rebut the three-day receipt of mail presumption. See Rule 6(e), Fed. R. Civ. P.

         I.

         The following dispositive facts are derived from the existing record.

1. Plaintiff alleges in his amended complaint that Defendant Northern Virginia Orthodontics Center, LLC (i) failed to promote him because of his Lyme disease diagnosis and (ii) retaliated against him when he complained.
2. Plaintiff filed a claim alleging discrimination with the EEOC.
3. On June 12, 2018, the EEOC sent plaintiff a Dismissal and Notice of Rights letter, more commonly known as a right-to-sue letter. On the same date, the EEOC mailed a copy of the right-to-sue letter to counsel for defendant.
4. The address listed for plaintiff on the right-to-sue letter is the same address that plaintiff listed as his home address in the amended complaint and plaintiff does not dispute that it is his correct address.
5. The right-to-sue letter states:
In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within 90 days of the date you receive this Notice. ... Furthermore, in order to avoid any question that you did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date this Notice was mailed to you...
6. On June 15, 2018, three (3) days after the EEOC mailed the right-to-sue letter to plaintiff, counsel for defendant received by mail a copy of the right-to-sue letter from the EEOC.
7. Plaintiffs affidavit avers that he did not receive the right-to-sue letter until June 30, 2018, eighteen (18) days after the EEOC mailed the letter. Plaintiff then did not file his complaint, until one hundred and eight (108) days after the EEOC mailed him the right-to-sue letter.
8. Plaintiff claims in his affidavit that his neighborhood has ongoing problems with late mail delivery. Plaintiff further states that, after receiving the right-to-sue letter, he submitted a Freedom of Information Act ("FOIA") request to the EEOC and attempted to wait until he received the ...

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