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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Department of Justice did not timely reject the EEOC decision. The Tenth Circuit does not decide whether the presumed receipt date of a letter is 3 or 5 days after mailing.

Lozano v. Ashcroft, 258 F.3d 1160 (10th Cir. July 10, 2001) - Lozano, a corrections officer for the Colorado Bureau of Prisons, filed two EEOC complaints alleging national origin discrimination and retaliation. The EEOC found in Lozano's favor. It issued its official decision and mailed it to both parties on September 29, 1993. Pursuant to 29 C.F.R. Section 1614.109(g), the Department of Justice (DOJ) had sixty days from the date it received the decision to modify or reject the EEOC's findings. The DOJ rejected the EEOC's findings on December 10. The DOJ alleges that it did not receive the EEOC's findings until October 14. In support of its position, the DOJ provided a photocopy of the EEOC's decision letter with a partially illegible date stamp of October 14, and an affidavit from an employee stating that the mailroom records reflected an October 14 receipt date. The district court erred in taking judicial notice of October 14 as the receipt date because that matter was in dispute. Moreover, the photocopy is inadmissible because Lozano asked that the original be provided and it never was (see, Fed. R. Evid. 1003 - photocopies may be admitted into evidence only if there is no genuine question regarding the authenticity of the original). Also, the affidavit is inadmissible because it was not made upon the employee's own personal knowledge. The Court holds that there is a presumption that a letter is received after mailing. The Court does not decide whether the presumption is three days or five days -- because in either event, the DOJ rejection of the EEOC's findings was untimely. Click here to see actual case.