No

Table of Authorities

Page(s)

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)..................................... 1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)............................... 15, 16

Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009)................................ 11

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981)............................ 1

Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013)........................................ 16

Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004)....................................... 19

Harris v. J.B. Robinson Jewelers, 627 F.3d 235 (6th Cir. 2010)...................... 17

Jacobson v. AEG Capital Corp., 50 F.3d 1493 (9th Cir. 1995)....................... 14

Joshi v. Ashcroft, 389 F.3d 7325 (7th Cir. 2004)....................................... 13, 20

Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999)....................................... 17

Lozano v. Ashcroft, 258 F.3d 1160 (10th Cir. 2001)....................................... 10

McLaughlin v. Liu, 849 F.2d 1205 (9th Cir. 1988)......................................... 17

N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578 (9th Cir. 1983)................. 14

Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir. 1995).... 12, 13, 14, passim

Payan v. Aramark Mgmt. Servs. L.P., 495 F.3d 1119 (9th Cir.

.... 2007)....................................................................................... 4, 5, 7, passim

Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003)............................................... 18

Paz v. Wauconda Healthcare & Rehab. Ctr. LLC, 464 F.3d 659 (7th Cir. 2006) 18

S.E.C. v. Phan, 500 F.3d 895 (9th Cir. 2007)................................................. 17

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46 (1st Cir. 2000) 17

Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999)............. 8

Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007)..................................... 19

Sherlock v. Montefiore Med. Ctr., 84 F.3d 522 (2d Cir. 1996)............... 9, 11, 12

Supermail Cargo, Inc. v. United States, 68 F.3d 1204 (9th Cir. 1995)............ 15

U.S. ex rel. Air Control Techs. v. Pre Con Indus., Inc., --- F.3d ---, 2013 WL 3242673 (9th Cir. 2013)........................................................................................... 15

United States v. Arango, 670 F.3d 988 (9th Cir. 2012)................................... 17

United States v. Shumway, 199 F.3d 1093 (9th Cir. 1999)........................ 17, 18

Witt v. Roadway Exp., 136 F.3d 1424 (10th Cir. 1998)......................... 9, 10, 15

In re Yoder Co., 758 F.2d 1114 (6th Cir. 1985).............................................. 13

Statutes

42 U.S.C. § 2000e-5(b)................................................................................. 1, 7

42 U.S.C. § 2000e-5(e)................................................................................. 1, 7

42 U.S.C. § 2000e-5(f)(1)....................................................................... 1, 7, 14

42 U.S.C. § 12101 et seq................................................................................... 1

42 U.S.C. § 12117(a).................................................................................... 1, 7

Rules and Regulations

29 C.F.R. § 1601.28(e)(1)............................................................................. 1, 7

Fed. R. App. P. 29(a)........................................................................................ 2

Fed. R. Civ. P. 9(c).................................................................................... 14, 15

Fed. R. Civ. P. 12(b)(6)............................................................................. 14, 15

Fed. R. Civ. P. 12(d)....................................................................................... 14

Fed. R. Civ. P. 56(a)................................................................................. 14, 15

Other Authorities

David D. Siegel, Changes in the Federal Rules of Civil Procedure, 142 F.R.D. 359, 378 (1992)......................................................................................................... 13

2 McCormick on Evidence § 344 (7th ed. 2013).............................................. 13

29 Am. Jur. 2d Evidence § 277 (2013)............................................................ 13

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including Title I of the Americans with Disabilities Act of 1990 (“ADA”), which prohibits employment discrimination based on disability. See 42 U.S.C. § 12101 et seq. Congress also provided that individuals—like the plaintiff in this action—who believe they have been injured by illegal discrimination can bring suit after they have complied with the statutory pre-suit administrative requirements. See 42 U.S.C. § 12117(a) (incorporating pre-suit requirements of Title VII of the Civil Rights Act of 1964); 42 U.S.C. § 2000e-5(f)(1) (Title VII pre-suit requirements). In such private actions, an aggrieved individual is considered “a ‘private attorney general’ whose role in enforcing the ban on discrimination is parallel to that of the Commission itself.” EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 (1981). Effective enforcement of federal anti-discrimination laws depends on full access to the courts by both the Commission and private litigants. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974).

A plaintiff must file his or her ADA lawsuit within ninety days of receiving a right-to-sue notice from the EEOC. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(b), (e), (f)(1); 29 C.F.R. § 1601.28(e)(1). This appeal involves the important question of whether a plaintiff’s sworn testimony is sufficient to create a genuine issue of material fact as to when he or she received the EEOC right-to-sue notice. Because resolution of this issue will affect the ability of private parties to enforce their federal civil rights and to serve their congressionally-intended role as “private attorneys general,” the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE[1]

The ADA requires a plaintiff to file suit within ninety days of receiving a right-to-sue notice from the EEOC. Did the district court err when it dismissed the plaintiff’s complaint for failing to file suit within ninety days even though the plaintiff presented a sworn statement that he received the right-to-sue notice ninety days before he filed his lawsuit?

STATEMENT OF THE CASE

A. Statement of the Facts

Jeffrey Martin Schulman, who has type I diabetes, began working as a night shift security officer for Wynn Las Vegas Hotel and Casino, LLC (Wynn) in November 2008. ER 4 (District Court Slip Opinion). Schulman requested transfer to a day shift position, submitting a note from his doctor explaining that a day shift position would allow Schulman to manage his diabetes better. ER 4-5. Wynn never transferred him, and on two occasions thereafter, Schulman fell asleep on the job while experiencing elevated or low blood sugar. ER 5. Wynn suspended Schulman without pay pending an investigation and then told him he could not return as a security officer. Id.

After Schulman filed a charge with the EEOC, Wynn rehired him into a different night-shift position with less opportunity for overtime and later transferred him to a lesser-paid position in retail. ER 5. The EEOC concluded its investigation and sent Schulman a right-to-sue notice (RTS notice) by regular mail. Schulman received the notice, which is dated May 18, 2012, on May 24, 2012. See ER 5-6; ER 25-26 (Schulman Aff. ¶¶ 3-4).

Schulman filed suit against Wynn on August 22, 2012 (ninety days after May 24, 2012) alleging four causes of action under the ADA. ER 5-7. Wynn moved to dismiss the complaint on the ground it was time-barred. ER 6. Wynn argued Schulman failed to rebut this Court’s rebuttable presumption that an RTS notice is mailed on the date that appears on the notice and received three days later. ER 14. Wynn submitted an affidavit from Scott M. Abbott, counsel for Wynn, stating the law firm had received its copy of the RTS notice on May 21, 2012, three days after it was issued. ER 46 (Abbott Aff. ¶ 4).

Schulman opposed Wynn’s motion to dismiss with an affidavit attesting he received the RTS notice on May 24, 2012. ER 25-26 (Schulman Aff.). Schulman attested that he knows the RTS notice arrived that day because his family checks their mailbox daily. ER 26 (Schulman Aff. ¶ 4). Schulman also produced a copy of a note he wrote contemporaneously recording the date of receipt. ER 25-26 (Schulman Aff. ¶ 3), 32 (note). Schulman further attested that he advised his attorney on May 27, 2012, that he had received the notice on May 24. ER 26 (Schulman Aff. ¶ 5). Schulman also submitted an affidavit from his attorney confirming that Schulman contacted him after receiving the notice, told him the date of receipt was May 24, 2012, and confirmed he had recorded the date he received the RTS notice. ER 34-35 (Cary W. Schulman Aff.).

B. District Court Decision

The district court granted Wynn’s motion to dismiss on the ground that Schulman filed his lawsuit more than ninety days after he was presumed to have received his right to sue notice from the EEOC. ER 7-10. Citing Payan v. Aramark Management Services, 495 F.3d 1119, 1122-23 (9th Cir. 2007), the district court stated: “The limitations period begins to run on the date the claimant receives the letter at his address of record,” and “[w]here the date [of receipt] is unknown, there is a “rebuttable presumption the [EEOC] letter was mailed on the date it was issued and . . . received three days later.” ER 7. The court applied the presumption to this case and concluded “that Schulman received the RTS on May 21, 2012, making the Complaint untimely.” ER 7-8.

The district court acknowledged that the three-day presumption was rebuttable, but concluded that Schulman’s evidence was insufficient to rebut it. ER 7-9. Although noting that “not all postal carriers are equally efficient,” the court ruled that Schulman “must provide more than his own self-interested affidavit to support an anomalous three-day difference in delivery to addresses in the same city.” ER 8. The court noted that Schulman failed to provide any “corroborating evidence of poor or inconsistent mail service at his residence” or that his RTS notice bore a different date than Wynn’s copy. ER 9 (citations omitted). The court concluded that, absent such evidence, a three-day difference in the time it took the Postal Service to deliver the law firm’s copy as compared to Schulman’s copy was “very unlikely under these circumstances” because the three days at issue were week days and not a weekend. ER 8-9.

Implicitly comparing Schulman’s evidence to the plaintiff’s statements in Payan that her EEOC notice “‘could have been delayed’” and that her mail had “‘been delayed before’”—evidence this Court found “insufficient” in Payan—the district court stated that Schulman’s “self-interested affidavit and note are insufficient to rebut the [three-day] presumption.” ER 9 (quoting Payan, 495 F.3d at 1126-27). The court, on this basis, granted Wynn’s motion to dismiss Schulman’s complaint as untimely. ER 9-10.

SUMMARY OF ARGUMENT

The district court erred in dismissing this lawsuit on the ground that Schulman failed to file his complaint within ninety days of receiving his RTS notice from the EEOC. The district court erroneously relied on the presumption that an RTS notice from the EEOC is received by a charging party three days after the date printed on the notice. This Court has stated that the three-day presumption does not apply where the plaintiff has personal knowledge of the date on which the RTS notice arrived in the mail, as Schulman attested here. Even assuming, arguendo, that it was proper to consider the three-day presumption, the presumption is a rebuttable one, and Schulman’s evidence suffices to rebut it. The district court erred in rejecting Schulman’s sworn statement on the ground that Schulman failed to explain why his mail delivery took longer than the time Wynn’s counsel alleges it took the postal service to deliver a copy of the RTS notice to the law firm’s offices. A plaintiff’s sworn statement, attesting to the specific date of receipt of an item in the mail and explaining how that date was within his personal knowledge, is sufficient to rebut the three-day presumption and create a genuine issue of disputed fact.

ARGUMENT

The district court erred in dismissing Schulman’s ADA claim on the ground that Schulman failed to file his lawsuit within ninety days of receiving his RTS notice from the EEOC.

Schulman demonstrated that he satisfied the three statutory prerequisites for filing an individual lawsuit under the Americans with Disabilities Act. A plaintiff bringing suit under the ADA must first file a charge with the EEOC; receive an RTS notice from the EEOC; and then file suit within ninety days of receiving the RTS notice. 42 U.S.C. § 12117(a) (incorporating Title VII’s procedural provisions); 42 U.S.C. § 2000e-5(b), (e), (f)(1); 29 C.F.R. § 1601.28(e)(1). It is undisputed that Schulman filed a charge with the EEOC and received an RTS notice. See ER 5, 8. Schulman submitted sufficient evidence to demonstrate that he fulfilled the third prerequisite of filing suit within ninety days of receiving his RTS notice. Schulman attested that he knew the RTS notice arrived May 24, 2012, and provided a handwritten note he made contemporaneously with his receipt of the RTS notice. ER 25-26 (Schulman Aff. ¶¶ 3, 4), 32 (note). He filed suit on August 22, 2012, ninety days after May 24, 2012. See ER 9.

In holding that Schulman failed to demonstrate that his suit was timely, the district court erroneously relied on the “three-day presumption” this Court adopted in Payan v. Aramark Management Services, L.P., 495 F.3d 1119 (9th Cir. 2007). See ER 7-8. Although noting that this Court stated the rebuttable presumption applies “[w]here the date [of receipt] is unknown,” ER 7, the district court nevertheless applied the presumption here, stating: “[T]he presumption is therefore that Schulman received the RTS [notice] on May 21, 2012, making the Complaint untimely.” ER 7-8 (noting that Wynn’s counsel “received a copy of the RTS [notice] at its Las Vegas address on May 21, 2012”).

In Payan, this Court stated that when a plaintiff does not know the actual date she received her RTS notice at her residence—as was the case in Payan, 495 F.3d at 1122—the court will presume the EEOC notice was mailed on the date printed on the document and was received by the plaintiff three days later. Payan, 495 F.3d at 1123, 1125; accord Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999) (“[I]n the absence of other evidence, courts will presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it.”) (emphasis added). This Court further explained, however, that “[w]here that date is known, we will deem the claimant to have received notice on that date.” Payan, 495 F.3d at 1122; accord Seitzinger, 165 F.3d at 239 (“When the actual date of receipt is known, that date controls.”).

Unlike the plaintiff in Payan, Schulman had personal knowledge of the actual date he received the notice, and he demonstrated this personal knowledge with his sworn statement as well as a handwritten notation and the statement of his counsel. In his affidavit, Schulman attested that he is certain the RTS notice arrived May 24, 2012, because his family checks their mailbox daily and when the notice arrived, he wrote down the date because he knew it was important. ER 25-26 (Schulman Aff. ¶¶ 3, 4). He attached a copy of his contemporaneous notation of the date of receipt to his affidavit. ER 25-26 (Schulman Aff. ¶ 3), ER 31-32 (Exh. B). Given this evidence, which is based on Schulman’s personal knowledge, the three-day presumption does not apply. See Payan, 495 F.3d at 1122 (presumption applies “[w]here the date of actual receipt is unknown”).

Even assuming, arguendo, that the district court was entitled to consider the three-day presumption, the court nevertheless erred in dismissing Schulman’s suit. As noted above, the three-day presumption “is a rebuttable one,” Payan, 495 F.3d at 1126 (citations omitted), and Schulman presented sufficient evidence to rebut it. Schulman offered more than just “general claims that mail is sometimes delayed,” which this Court has said are “not sufficient to prove that a particular letter was not delivered on time.” Id. Schulman offered his “sworn testimony [and] other admissible evidence from which it could reasonably be inferred . . . that it took longer than three days [for the notice] to reach [him] by mail.” Id. (quoting Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)); see also Witt v. Roadway Exp., 136 F.3d 1424, 1430 (10th Cir. 1998) (plaintiff’s affidavit sufficient to rebut a presumption of receipt of an EEOC RTS notice within five days of the date printed on the notice).

The plaintiff in Payan did not know what day she received the notice. 495 F.3d at 1122. She relied only on her general assertion that sometimes her mail was delayed, without offering any evidence that delivery of the RTS notice to her residence had been delayed. Id. This Court found such evidence insufficient to rebut the three-day presumption. Id. at 1126-27. Schulman, on the other hand, offered the type of evidence this Court recognized in Payan as sufficient to demonstrate actual date of receipt. Id. at 1126.

Other circuits have likewise held that a plaintiff’s own testimony suffices to rebut the presumption that a charging party received an EEOC RTS notice within a specific number of days. In Witt v. Roadway Express, the Tenth Circuit reversed the district court’s grant of summary judgment and held that the plaintiff’s affidavit attesting to delayed receipt of an RTS notice was sufficient to rebut a presumption that he received the notice within five days of the date printed on the notice. 136 F.3d at 1429-30. The EEOC had issued the plaintiff’s RTS notice on January 28, but the plaintiff attested in his affidavit that he did not receive the letter until mid-March, about a month and a half after it was issued. Id. at 1429. The Tenth Circuit held that the plaintiff’s affidavit was evidence “which could reasonably be found to rebut the presumption” and was sufficient to create “a credibility issue that must be resolved by the trier of fact,” making summary judgment inappropriate. Id. at 1429-30; see also Lozano v. Ashcroft, 258 F.3d 1160, 1166 (10th Cir. 2001) (“In determining the date of actual receipt, a court may rely upon affidavits stating personal knowledge of the receipt date.”).

Similarly, the Fifth Circuit vacated a district court’s summary judgment holding that the plaintiff’s Title VII suit was untimely where the plaintiff had submitted an affidavit attesting to her non-receipt of the RTS notice. Duron v. Albertson’s LLC, 560 F.3d 288 (5th Cir. 2009). Given the plaintiff’s attestation that she did not receive the notice until twenty-two months after the date on the notice, the Fifth Circuit rejected as improper the district court’s dispositive reliance on a presumption that government notices are mailed on the date issued and received within seven days. Id. at 290-91.

The Second Circuit, in Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d Cir. 1996), likewise suggested that an affidavit would be sufficient to rebut a presumption that the RTS notice was received three days after it was issued. The court noted that “[i]f a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach her by mail, the initial presumption is not dispositive.” Id. at 526 (emphasis added). The court noted that it would hesitate to regard a “self-serving date-of-receipt notation” as rebutting the presumption unless the “claimant also presented an affidavit” attesting to receipt on the noted date. Id. The plaintiff in Sherlock could not submit such an affidavit confirming the date of receipt because she could not recall when she received the notice, but the Second Circuit held an issue of fact existed anyway because of the defendant’s delayed receipt of their copy of the RTS notice. Id. at 526.

The rule of this Court and other circuits that a plaintiff’s sworn statement is sufficient to rebut the three-day presumption accords with this Court’s holdings regarding the mailbox rule, a similar presumption that applies “only where the fact of receipt is disputed.” Payan, 495 F.3d at 1123 n.4. “Under the common law mailbox rule, proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee.” Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995). In Nunley, the plaintiff appealed the district court’s denial of her request for an extension of time to appeal a final judgment under Rule 4(a)(6). The plaintiff claimed she missed the appeal deadline because she never received a copy of the district court’s order in the mail, despite the clerk’s stamp on the order stating it was mailed to each party at the address of record. Id. at 793-94. The district court denied the plaintiff’s motion primarily on the ground that her attestation failed to rebut the presumption of receipt. Id. at 797. This Court disagreed. Id. In vacating the district court’s denial of the plaintiff’s motion for an extension of time to appeal, this Court held that the plaintiff’s “specific factual denial of receipt had in fact rebutted the presumption” that she received the notice the clerk mailed to her. Id.

This Court used the bursting bubble analogy to describe how a rebuttable presumption dissipates once evidence is produced to the contrary. Nunley, 52 F.3d at 796-97. The presumption is “rebutted upon a specific factual denial of receipt,” and the “‘bubble’ of presumption” bursts, leaving the “factual question of receipt” for the fact finder to decide. Id. “‘If the clerk or a party attests to mailing or otherwise serving the notice of entry, but the potential appellant attests that it was never received, the matter will apparently have to be resolved as a question of fact.’” Id. (quoting David D. Siegel, Changes in the Federal Rules of Civil Procedure, 142 F.R.D. 359, 378 (1992)); see also Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004) (“Most letters are delivered, but some aren’t, and so if there is a sworn denial of receipt the trier of fact has to weigh the credibility of the denial . . . .”); In re Yoder Co., 758 F.2d 1114, 1118 (6th Cir. 1985) (“Testimony of non-receipt, standing alone, would be sufficient to support a finding of non-receipt; such testimony is therefore sufficient to rebut the presumption of receipt.”); 2 McCormick on Evidence § 344 (7th ed. 2013) (“[I]n the case of the presumption of receipt of a letter… [a party] may destroy the presumption by denying receipt.”); 29 Am. Jur. 2d Evidence § 277 (2013) (“The denial of the receipt of the letter generally raises an issue of fact to be determined by the jury. In such cases, the question of the credibility of the rebutting testimony is for the trier of fact.”). Thus, even assuming the three-day presumption can properly be considered here, Schulman’s sworn statement suffices to rebut or “burst” the “bubble” of the presumption, and the district court was required to “give no further weight to the presumption.” See Nunley, 52 F.3d at 796-97.

Rather, Schulman’s evidence creates a genuine issue of fact for the jury, as trier of fact, to weigh the evidence and decide whether to credit Schulman’s affidavit attesting to his personal knowledge that he received his EEOC notice on May 24, 2012.[2] See id. A court may properly grant a motion for summary judgment only if 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 fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a fact is “genuine” if “the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant.” Id. at 255.

There is no question that the date Schulman received his RTS notice is a material fact, see Witt v. Roadway Express, 136 F.3d at 1429, and Schulman’s affidavit suffices to create a genuine issue about this material fact because a reasonable jury could credit Schulman’s attestation that he received the RTS notice on May 24, 2012, six days after the date on the notice. See Anderson, 477 U.S. at 255. Schulman attested that he knows the RTS notice arrived May 24 because his family checks their mailbox daily and when the notice arrived, he made note of the date because he knew it was important. ER 26 (Schulman Aff. ¶ 4). The affidavit of Wynn’s counsel attesting that their law firm received the notice in the mail on May 21, 2012, does not make Schulman’s affidavit unbelievable, even though Schulman’s residence and the offices of Wynn’s counsel are located in the same city. A reasonable jury, crediting Schulman’s sworn statement, could infer that Schulman’s mail delivery was slightly delayed as compared to Wynn’s counsel, even without any explanation for the delay.

The district court had no proper basis to discredit or discount Schulman’s affidavit. In Anderson, the Supreme Court explained that when a court reviews a motion for summary judgment to determine if there is a genuine dispute as to a material fact, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. A court must refrain from engaging in “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts,” as those “are jury functions, not those of a judge.” Id. Thus, “[i]f, as to any given material fact, evidence produced by the moving party . . . conflicts with evidence produced by the nonmoving party . . . , we must assume the truth of the evidence set forth by the nonmoving party with respect to that material fact.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).

In particular, as this Court has explained, at the summary judgment stage, a district court is required to accept as true a sworn statement by a non-movant. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988); See also Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999) (district court’s personal disbelief of plaintiff’s sworn statements cannot support summary judgment). None of the very limited circumstances in which a district court can disregard an affidavit for purposes of summary judgment, see S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007), are present here. Schulman’s affidavit is not conclusory, nor does it flatly contradict any prior sworn statements by Schulman. Id. at 909-10 (quoting Shumway, 199 F.3d at 1104).

The district court especially was not at liberty to discount Schulman’s affidavit as “self-serving.” See ER 8-9. “A [party’s] sworn statements cannot be disbelieved at the summary judgment stage simply because his statements are in his interest and in conflict with other evidence.” United States v. Arango, 670 F.3d 988, 994 (9th Cir. 2012). A party’s declarations are often “‘self-serving,’—‘[a]nd properly so, because otherwise there would be no point in [a party] submitting [them].’”). Phan, 500 F.3d at 909 (citing Shumway, 199 F.3d at 1104); see also Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 (6th Cir. 2010) (“A court may not disregard evidence merely because it serves the interests of the party introducing it.”); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (“[A] party’s own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment.”) (internal quotation marks omitted). As this Court has observed, “[t]hat an affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact.” Shumway, 199 F.3d at 1104; accord Paz v. Wauconda Healthcare & Rehab. Ctr. LLC, 464 F.3d 659, 664 (7th Cir. 2006) (“We have long held that a plaintiff may defeat summary judgment with his or her own deposition.”).

As the Seventh Circuit explained in Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003), after characterizing as a “misconception” the notion “that evidence presented in a ‘self-serving’ affidavit is never sufficient to thwart a summary judgment motion”:

Provided that the evidence meets the usual requirements for evidence presented on summary judgment—including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial—a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts.

Id. at 770-73. Indeed, Schulman’s affidavit is no more “self-serving” than the affidavit from Wynn’s counsel attesting that Wynn’s law firm received its copy of the notice three days after the date on the notice, which Wynn submitted to support its argument that Schulman’s lawsuit is untimely. In sum, Schulman’s affidavit attesting to his receipt of the RTS notice six days after the date that appears on the notice creates a genuine issue of fact as to when Schulman received the notice. The district court erred in concluding that Schulman was required to provide more evidence to establish the date he received his RTS notice.

The district court’s requirement that “Plaintiff must provide more than his own self-interested affidavit,” see ER 8-9, also conflicts with this Court’s statements concerning the evidentiary realities of proving postal receipt. This Court has noted that it “makes good sense” to require less evidence to defeat a presumption in the case of regular mail because “there is no Postal Service paper trail.” Sembiring v. Gonzales, 499 F.3d 981, 987 (9th Cir. 2007). In the case of regular mail, “[a]ll that a party seeking to demonstrate non-receipt can normally do is to submit affidavits regarding the usual practice of opening mail and actions consistent with non-receipt.” Nunley, 52 F.3d at 796. Because of the same lack of evidence to demonstrate otherwise, delayed receipt is just as “difficult to prove conclusively.” Id. at 796. If courts required independent corroborating evidence to defeat the presumption, it would leave plaintiffs “‘virtually without recourse to rebut the presumption of effective delivery.’” Sembiring, 499 F.3d at 987 (quoting Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir. 2004)). “Where a district judge requires extensive evidence to rebut the presumption [of receipt by mail] or continues to rely upon the presumption after it is rebutted, the district judge effectively erects an irrebutable and insurmountable barrier.” Nunley, 52 F.3d at 796.

The date on which Schulman received the RTS letter is within his personal knowledge, and it likely can be proved only by his personal knowledge. As one court has noted: “Most letters are delivered, but some aren’t.” Joshi, 389 F.3d at 735. Likewise, most letters arrive within three days, but some do not. It may be impossible for a plaintiff to uncover and prove the specific reason for a slight delay in delivery (or even non-delivery) of a notice from the EEOC. The standard employed by the district court here, if allowed to stand, would erect an “irrebutable and insurmountable barrier” by requiring plaintiffs who know the date they received a document to produce independent corroborating proof—something that simply may not exist. See Nunley, 52 F.3d at 796.

CONCLUSION

For the reasons foregoing reasons, this Court should reverse the district court’s dismissal of Schulman’s ADA complaint and remand this case for further proceedings.

Respectfully submitted,[3]

P. DAVID LOPEZ General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

/s/ Susan R. Oxford

________________________

SUSAN R. OXFORD Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, 5^th Fl.

Washington, D.C. 20507

(202) 663-4791

susan.oxford@EEOC.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 5,080 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes.

/s/ Susan R. Oxford

________________________

Susan R. Oxford

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, 5^th Fl.

Washington, D.C. 20507

(202) 663-4791

susan.oxford@EEOC.gov

[1] The Commission expresses no opinion on any other issue presented in this appeal.

[2] As Schulman points out, it is unclear whether the district court considered Wynn’s motion as a Rule 56 motion for summary judgment or a Rule 12(b)(6) motion to dismiss. See Plaintiff Schulman’s Opening Brief at 11-15. As the district court acknowledged, except in certain limited circumstances not applicable here, if a court considers materials outside the pleadings, “the motion to dismiss is converted into a motion for summary judgment.” ER 7 (citations omitted); see also Fed. R. Civ. P. 12(d); Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995) (“If matters outside the pleadings are submitted, the motion to dismiss under . . . [Rule] 12(b)(6) is treated as one for summary judgment under . . . [Rule] 56.”). Since the district court considered a number of documents outside the pleadings, including the affidavit of Wynn’s counsel, Schulman’s handwritten note and affidavit, and an affidavit by Schulman’s counsel, ER 8-9, it was required to treat Wynn’s motion as one for summary judgment. Even if this Court were to consider the motion to dismiss under Rule 12(b)(6), however, dismissal was inappropriate. A Rule 12(b)(6) motion “test[s] the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). The receipt of an EEOC RTS notice and filing of a lawsuit within ninety days of such receipt is a condition precedent for a private lawsuit under Title VII. 42 U.S.C. § 2000e-5(f)(1). Rule 9(c) provides that “[i]n pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed,” Fed. R. Civ. P. 9(c), and Schulman so alleged here. See ER 49 (Compl. ¶ 7). When a lawsuit is challenged as time-barred, “a complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir. 1995); see also U.S. ex rel. Air Control Techs. v. Pre Con Indus., Inc., --- F.3d ---, 2013 WL 3242673, at *4 (9th Cir. 2013) (“A claim may be dismissed as untimely pursuant to a 12(b)(6) motion ‘only when the running of the statute [of limitations] is apparent on the face of the complaint.”). Dismissal under Rule 12(b)(6) would, thus, be inappropriate here because untimeliness is not apparent on the face of Schulman’s complaint, Air Control Techs., 2013 WL 3242673, at *4, and Schulman’s affidavit, based in his own personal knowledge, shows he “can prove [a] set of facts that would establish the timeliness of [his] claim.” See Supermail Cargo, 68 F.3d at 1207.

[3] The EEOC acknowledges the assistance of Intern Claire Grandy, third-year law student at University of Virginia School of Law, in the preparation of this brief.