APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 83-0411)
Before: Seitz and Gibbons, Circuit Judges and Gerry, District Judge*fn*
Donald Hornsby, a former employee of the United States Postal Service, appeals from an order granting a Rule 12(b)(1) motion to dismiss his complaint against the Postal Service for lack of subject matter jurisdiction. The complaint alleged that the Postal Service, in denying his application for reemployment, discriminated against Hornsby on account of his race in violation of the Civil Right Act of 1972. n.1 [FOOTNOTE OMITTED] The district court held that the civil action was untimely because Hornsby failed to file his complaint within the thirty-day time period specified by the Act. In so ruling the district court held that postal delivery to Hornsby's mailbox of a notice requesting that he pick up a certified letter -- which happened to be the right-to-sue letter mailed to Hornsby by the Equal Employment Opportunity Commission -- triggered the running of the Act's time period, even though Hornsby had never received the letter. The court also held that it could determine whether, as a mater of fact, the Postal Service had deposited the notice in Hornsby's mailbox by resolving disputed affidavits without an evidentiary hearing. We hold that the court erred in both respects, and we reverse.
After having worked for the Postal Service form 1956 to 1963, Hornsby applied for reinstatement in January and April 1970 and in January 1977. The Postal Service declined to rehire him, and Hornsby subsequently submitted a discrimination complaint to the Equal Employment Opportunity Commission (EEOC).
On February 23, 1983 Hornsby filed a complaint in the Western District of Pennsylvania alleging that, although he had submitted a complaint to the regional office of he EEOC in January 1982 and had later appealed to the EEOC Review and Appeals Section, no decision had been rendered as of the date of the filing of his lawsuit. In so alleging Hornsby intended to satisfy the provision in Title VII precluding the filing of a civil action in district court until a charge has been pending before the EEOC for 180 days. 42 U.S.C. § 2000e-16(c) (1982).
In response to the complaint the Postal Service filed a motion in which it requested the district court either to dismiss Hornsby's complaint or to grant it summary judgment. In support of that motion the Postal Service filed affidavits suggesting (1) that on August 16, 1982 the EEOC Office of Review and Appeals took final action rejecting Hornsby's claim; (2) that shortly thereafter the EEOC mailed to Hornsby's home address a certified letter, dated August 17, 1982, notifying him of that decision; (3) that on August 21, 1982 the Postal Service attempted but was unable to deliver that letter; (4) that on that date a letter carrier deposited in Hornsby's mailbox a notice asking Hornsby to pick up the certified letter or telephone the Post Office to arrange for another delivery; (5) that four days later a letter carrier placed a similar notice in the same box; and (6) that the letter was never picked up or delivered.
In response the the Postal Service's motion Hornsby and his wife both filed affidavits in which they claimed they checked their mailbox daily and that in August of 1982 they had not received any notice that the Post Office holding mail from the EEOC. The answering affidavits thus put in issue the Postal Service's version of the facts with respect to delivery of the notices.
The district court, after concluding that the deposit of the notices of attempted delivery of certified mail in Hornsby's mailbox was legally sufficient to trigger the running of the thirty-day time limit for filing a Title VII action against the federal government, proceeded to resolve the dispute over the delivery of the notices by crediting the Postal Service affidavits and discrediting those of Hornsby and his wife. Conceding that if the standard mandated by Federal Rule of Civil Procedure 56 had been applicable it would have been improper to resolve material issues of disputed facts on conflicting affidavits, the court held that a different standard applied. Characterizing the issue of the timeliness of the filing of a Title VII action as "jurisdictional," the court relied on the principle, articulated in McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 80 L. Ed. 1135, 56 S. Ct. 780 (1936), that a district court may rule on a Rule 12(b)(1) motion on affidavits without an evidentiary hearing. See Hornsby v. United States Postal Service, Civil Action No. 83-411, slip op. at 8 (W.D. Pa. Apr. 19, 1985) (quoting and relying upon Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977)).
In this respect the court erred. The time limits in Title VII are i the nature of statutes of limitation. They do not affect the district court's subject matter jurisdiction. Zipes v. Trans World Airlines, Inc. 455 U.S. 385, 392-98, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). The case on which the district court relied, Brown v. General Services Administration, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), is not on point. In Brown the Supreme Court did not address the question whether a Title VII time limit was a matter that went to subject mater jurisdiction -- and thus fell within the McNutt rule. While the district court also referred to lower court cases describing the timeliness of a Title VII suit as "jurisdictional," in each of those cases the court resolved the issue of timeliness in a manner consistent with Rule 56.*fn2 The McNutt rule is in applicable to the resolution of disputed issues of material fact with respect to the applicability of statutes of limitation. The district court committed legal error in relying on the McNutt rule in this case.
Since our disposition of the above point will require further proceedings, the district court may face the issue whether, assuming the Postal Service did indeed place in Hornsby's mailbox a request that he pick up the certified letter, that alone triggers the running of the thirty-day time limit for filing suit. Thus we address that issue as well.
On the subject of the timeliness of complaints filed in district court by federal employees. Title VII provides,
the Equal Employment Opportunity Commission . . . ., an employee or applicant for employment, if aggrieved by the final disposition of his complaint . . ., may file a civil action as ...