Christian Parker v. Adecco USA, Inc. , 329 F. App'x 41 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2475
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Christian Parler, *
*
Appellant, *
*
v. *
*
Adecco USA, Inc., *
* Appeal from the United States
Appellee. * District Court for the
------------------------------------- * District of Minnesota.
*
Christian Parler, * [UNPUBLISHED]
*
Appellant, *
*
v. *
*
Hood Packaging, Inc., *
*
Appellee. *
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Submitted: June 5, 2009
Filed: July 10, 2009
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Christian Parler appeals the district court’s order dismissing his Title VII
employment-discrimination action as time-barred. The Equal Employment
Opportunity Commission sent Parler a right-to-sue letter dated July 13, 2007. Ninety-
seven days later, on October 18, 2007, Parler filed suit. He asserted that he had not
received the right-to-sue letter until July 27, 2007. Defendants moved to dismiss
Parler’s complaint as untimely, see 42 U.S.C. § 2000e-5(f)(1) (plaintiff has ninety
days from receipt of right-to-sue letter to file suit). The district court granted the
motion, applying the presumption that Parler received the right-to-sue letter three days
after the date on the letter and concluding that Parler failed to rebut the presumption.
Given the procedural posture of this case, see Luney v. SGS Auto. Servs., 432
F.3d 866, 867 (8th Cir. 2005) (motion to dismiss reviewed de novo, taking all facts
alleged in complaint as true), we find that Parler’s assertions that he received the letter
on July 27, were sufficient to withstand a dismissal motion based on the application
of a three-day presumption.
Therefore, we vacate the dismissal and remand the case to the district court.
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