Fax Confirmation From A Sender's Machine Is Enough To Create Issue Of Fact Regarding Whether EEOC Charge Was Timely
MONCEF LAOUINI v. CLM FREIGHT LINES, INC. (August 20, 2009)
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Moncef Laouini, an Arab from Tunisia, worked as a truck driver for CLM until he was fired in 2006. He sued the company under Title VII for race and national-origin discrimination. He alleges that he filed a charge with the EEOC on April 12, 2007 (a date that both parties agree was the deadline). The EEOC's record of the charge indicates that it was not processed until April 16. CLM moved to dismiss the complaint as untimely. Laouini responded with an affidavit from his lawyer. The affidavit indicated that either the lawyer or his assistant faxed the charge to the EEOC on April 12. Laouini also submitted a printout of the confirmation from his lawyer’s fax machine indicating that a three-page document had been transmitted to the EEOC's fax number on April 12. The district court converted the motion to dismiss into a motion for summary judgment and granted summary judgment to CLM. Laouini appeals.
In their opinion, Judges Flaum, Kanne and Wood vacated and remanded. The Court began by noting that the failure to file a charge in a timely manner is an affirmative defense and the burden is on CLM to demonstrate an absence of a genuine issue of material fact. The Court moved on to the significance of the fax confirmation, an issue not yet addressed by the Court. The Court noted that several other courts have concluded that a fax confirmation creates a rebuttable presumption that the fax was, indeed, received by the intended recipient. Other courts have stopped short of that, but treat the fax confirmation as creating an issue of fact on the question of receipt. The Court concluded that the fax confirmation was strong evidence of receipt and that CLM presented no evidence to the contrary. Summary judgment was therefore inappropriate.
