Reva Morgan v. JOHN E. POTTER, Postmaster General

United States Court of Appeals
Fifth Circuit
F I L E D
June 6, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
06-30419
REVA MORGAN,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General,
Defendant-Appellee.
On Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Plaintiff-Appellant Reva Morgan (“Morgan”), a postal
employee, filed a formal Equal Employment Opportunity (“EEO”)
complaint against her employer in August of 2003. She alleged
discrimination based on her race, sex, and age. Morgan’s
complaint then proceeded through a series of administrative steps
before the Office of Federal Operations (“OFO”) issued its final
decision denying her claim in a letter mailed on March 3, 2005
(“the OFO letter”). That letter notified Morgan of her right to
file a civil action to contest the decision. Pursuant to 42

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U.S.C. § 2000e-16(c), Morgan had ninety days from receipt of the
OFO letter to file suit. The OFO letter itself stated as much.
It also stated: “For timeliness purposes, the Commission will
presume that this decision was received within five (5) calendar
days after it was mailed.” It then reiterated, in large print,
that the letter was mailed to the plaintiff on March 3, 2005.
Morgan filed suit in Louisiana state court on June 8, 2005,
ninety-seven days after the OFO letter was mailed. Postmaster
General, John E. Potter, the defendant in the lawsuit, removed
the case to federal court and then moved for dismissal on the
ground that it was untimely. The federal district court for the
Eastern District of Louisiana granted that motion, relying on the
statement in the OFO letter that the OFO would presume Morgan had
received that letter in five days. By the court’s count, the
suit was filed two days late. Morgan appeals, but she presents
no evidence of when she actually received the letter. Therefore,
the sole question before us is how to treat the presumption of
receipt contained in the OFO letter.
We have confronted this question before. In Taylor v. Books
A Million, Inc., 296 F.3d 376 (5th Cir. 2002), we found that a
presumption of receipt was appropriate when the actual date of
receipt was unknown. Id. at 379–80. We noted that other courts
had concluded similarly, but disagreed on the exact number of
days. Id. at 379. Presumptions in place at the time ranged from

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three to seven days. Id. Noting this fact, we did not find it
necessary to select a specific number of days in Taylor because
the plaintiff had waited ninety-eight days to file suit, so even
under the most lenient presumption supported by precedent his
suit would have been untimely. Id. at 380.
Since Taylor, we have repeatedly handled cases like this one
without selecting a fixed number of days. See Martin v. Alamo
Comm. Coll. Dist., 353 F.3d 409, 411 (5th Cir. 2003) (presuming
that plaintiff had received letter in three days, but not
discussing issue); Bowers v. Potter, 113 F.App’x 610, 612–13 (5th
Cir. 2004) (unpublished opinion) (reiterating view that
presumption of between three and seven days was appropriate, but
not deciding issue further because suit was untimely under most
lenient presumption). The exact number of days is thus an open
question in this Circuit, but we have expressed satisfaction with
a range between three and seven days. Bowers, 113 F.App’x at
612.
In this case, the plot thickens. Morgan’s suit would be
timely under a seven day presumption, but untimely under any more
stringent presumption. Perhaps because our cases do not clearly
resolve this case, the district court simply gave effect to the
five-day presumption in the OFO letter. We believe that to be a
wise course, with the caveat that the presumption in the letter
must be reasonable. As we have previously expressed the view
that a three-day presumption is reasonable, Martin, 353 F.3d at

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1It also bears repeating that the presumption is only that:
a presumption. If a particular plaintiff can offer some evidence
to demonstrate that he or she did not receive the letter within
the allotted time, the presumption can certainly be overcome. In
this case, we note that the plaintiff did suggest in her letter
brief to this Court that she received the letter after March 8,
2005, but she includes no evidence to that effect. More
importantly, she never made such a claim or presented such
evidence to the district court, so it is not properly before us
and we will not consider it.
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411, we are readily satisfied that the same is true of a five-day
presumption. We note, however, that our decision today is not
simply to defer to the presumption that an agency chooses to put
into its letter. Rather, we hold that when an agency notifies a
party of his or her right to sue, and includes in that
notification a presumption of receipt, that presumption will be
upheld so long as it is reasonable.1
Therefore, because we find that the plaintiff was notified
of a five-day presumption, and because we find that said
presumption was reasonable on the facts of this case, we AFFIRM
the district court’s dismissal of Morgan’s lawsuit as untimely.

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