UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40511

GEORGE ALAN ROBERTS,

Plaintiff - Appellant,

v.

ORANGE COUNTY SHERIFF’S DEPT., et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Texas, Beaumont Division Lower Court No. 1:99-CV-330

October 7, 2002

ORDER ON PETITION FOR REHEARING EN BANC

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.*

Treating the petition as one for panel rehearing, the

previous opinion of the Court, issued on July 12, 2002, is

withdrawn, and the following opinion is substituted therefor,

PER CURIAM:*

* The district court’s summary judgment order dismissed several other claims which Roberts does not appeal. * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. George Alan Roberts appeals the district court’s summary

judgment dismissing his claims of sexual harassment in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., and breach of contract. The district court determined that

Roberts’s Title VII claims were time-barred pursuant to 42 U.S.C.

§ 2000e5-(f)(1) because Roberts did not file suit within ninety

days of his receipt of notice of his right-to-sue from the Equal

Employment Opportunity Commission (“EEOC”). The district court

determined that Roberts’s breach of contract action was foreclosed

by precedent of this court. For the reasons that follow, we

reverse in part and affirm in part.

A plaintiff in a Title VII action must file suit within

ninety days after the EEOC gives notice of the plaintiff’s right-

to-sue. 42 U.S.C. § 2000e-5(f)(1) (“within ninety days after the

giving of such notice a civil action may be brought”). This

ninety-day limitations period is akin to a statute of limitations,

Sessions v. Rusk State Hospital,

(5th Cir.

1981), and is subject to equitable tolling in appropriate cases,

Nilsen v. Moss Point,

, 120 (5th Cir. 1980). This

period begins upon the complainant’s receipt of his right-to-sue

letter. Pacheco v. Phelps Dodge Refining Corp.,

(5th Cir. 1976).

It is undisputed that Roberts received his right-to-sue

-2- letter on February 27, 1999.1 He filed suit on May 28, 1999. It

is disputed, however, whether this filing falls within the

statute’s ninety-day period. The district court held that “day

one” of this period was February 27, the day on which the letter

was received. Roberts argues that February 28, the day subsequent

to receipt, should be regarded as “day one.”

This court holds that the district court’s method of

counting does not satisfy the statutory requirement. In 1978 this

court first articulated the manner in which this ninety-day period

should be calculated: “For purposes of computing this 90-day

limitation period the first day is omitted and last day counted.”

Prophet v. Armco Steel, Inc.,

, 580 n.1 (5th Cir.

1978). See also Fed.R.Civ.P. R. 6(a) (“In computing any period of

time . . . the day of the act, event, or default from which the

designated period of time begins to run shall not be included. The

last day of the period so computed shall be included . . . .”). In

no subsequent case has this court articulated a different approach.

The ability to articulate a rule does not, however,

necessarily suggest the ability to apply it. To this court’s

credit, in three of the four cases in which this question was

subsequently raised we correctly applied the Prophet rule. Taylor

1 There is a factual dispute regarding the date notice was “given” by the EEOC in the summary judgment evidence. Roberts concedes, however, that he had actual notice of his right-to-sue on February 27, 1999.

-3- v. Books-a-Million, Inc.,

(5th Cir. 2002);

Ringgold v. Nat’l Maintenance Corp.,

(5th Cir. 1986);

Decker v. Anheuser-Busch,

(5th Cir. 1980) rev’d en

banc (on other grounds)

(5th Cir. 1982). In one of

the cases we did not. Espinoza v. Missouri Pacific Railroad Co.,

(5th Cir. 1985).

Concluding that Roberts filed his complaint on “day

ninety,” we accordingly remand this case to the district court for

consideration of Roberts’s Title VII claims.

The district court, however, did not err in dismissing

Roberts’s breach of contract claims. The district court

determined, and Roberts concedes, that Roberts’s breach of contract

action is foreclosed by Garcia v. Reeves Cty.,

(5th

Cir. 1994) (explaining that, under Texas law, employees who work

for a sheriff are at-will employees who serve at the pleasure of

the elected official). Roberts has raised this issue on appeal to

preserve further review. As we are bound by Garcia, we affirm the

district court’s order dismissing Roberts’s breach of contract

claim.

For the reasons stated above, we AFFIRM the judgment of

the district court regarding Roberts’ breach of contract claims,

but REVERSE and REMAND for consideration of his Title VII claims.

-4-