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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,
NORTHERN VIRGINIA ORTHODONTICS CENTER, LLC. Defendant.
ELLIS III JUDGE
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.
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.
following dispositive facts are derived from the existing
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
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
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
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
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