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Employee-plaintiffs face strict deadlines when bringing discrimination claims.  The 90-day deadline to file a lawsuit filing receipt of a right-to-sue letter from the EEOC can sometimes be extended if the receipt of the letter was delayed.  A recent case before the United States Eleventh Circuit Court of Appeals explained that these time extensions will not be extended if the delay in receipt was caused by the plaintiff.  An employer can prevail in summary judgment and avoid trial if it can show that the lawsuit was filed late because of a matter that was within the control of the plaintiff. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment retaliation as well as claims for overtime wages and other related claims.

A prerequisite for filing a discrimination lawsuit is for the employee to file a complaint with the EEOC or equivalent state agency such as the Florida Commission of Human Relations.  “An employee must exhaust administrative remedies before filing a complaint of discrimination under Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act.”  Stamper v. Duval County Sch. Bd., 863 F.3d 1336, 1339 (11th Cir. 2017); Zillyette v. Capital One Fin. Corp., 179 F.3d 1337 (11th Cir. 1999) (“It is settled law that, under the ADA, plaintiffs must comply with the same procedural requirements to sue as exist under Title VII of the Civil Rights Act of 1964”).

The EEOC will then review the claim and may take action related to resolving the claim.  “If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action.”  42 U.S.C.A. § 2000e-5(b).  Additionally, the Commission may issue a right-to-sue letter if a decision has not been reached within 180 days.  42 U.S.C.A. § 2000e-5(f)(1). The right-to-sue letter gives the employee an opportunity to bring a private lawsuit.  The plaintiff has 90 days from receipt of the right-to-sue letter to file his complaint.  42 U.S.C. § 2000e-16.  “[S]tatutory notification is complete only upon actual receipt of the right to sue letter.”  Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005).  This is receipt by either the plaintiff or one of his representatives.  Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) (“§ 2000e–16(c) requires only that the EEOC notification letter be ‘received’; it does not specify receipt by the claimant rather than by the claimant’s designated representative”).

In defending against an employment discrimination lawsuit under Title VII, an employer can successfully assert the defense that the case is time-barred by exceeding the 90 day period after the receipt of a right-to-sue letter.  “Once the defendant contests this issue, the plaintiff has the burden of establishing that he met the ninety day filing requirement.”  Green v. Union Foundry Co., 281 F.3d 1229 (11th Cir. 2002).  The employee plaintiff may argue that they should have additional time beyond the 90 days to file a complaint.  “The timely-filing requirements of Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act are non-jurisdictional and subject to equitable tolling.”  Stamper v. Duval County Sch. Bd., 863 F.3d 1336 (11th Cir. 2017).

While the court may “equitably toll” the deadline for filing a complaint which was filed more than 90 days after the right-to-sue was issued, the court’s discretion in bound by precedent which requires the plaintiff to act with diligence and that the delay not be the plaintiff’s fault.   Courts “require plaintiffs to assume some minimum responsibility in resolving their claims without ‘conditioning a claimant’s right to sue under Title VII on fortuitous circumstances or events beyond his control which are not spelled out in the statute.’”  Zillyette v. Capital One Fin. Corp., 179 F.3d 1337 (11th Cir. 1999); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89(1990) (“We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights”).

If the plaintiff employee is late because the right-to-sue was sent to the wrong address, the court will analyze whether this was due to the fault of the plaintiff.  The plaintiff has “the burden of advising the EEOC of address changes or to take other reasonable steps to ensure delivery of the notice to his current address.”  Lewis v. Conners Steel Co., 673 F.2d 1240 (11th Cir. 1982).  The plaintiff must also act diligently in filing when right-to-sue is ultimately found.  Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005) (explaining that a plaintiff that received notice late but could have filed within the time period but elected not to can justify a refusal to equitably toll the deadline).

In Stallworth v. Wells Fargo Armored Services Corp., 936 F.2d 522 (11th Cir. 1991), the federal appellate court held that the delay was reasonable despite the fact that the plaintiff had not notified the EEOC of a change of address.  In Stallworth, the plaintiff regularly checked the mail at her old address and the EEOC did not mail a copy of the notice to the address of the plaintiff’s attorney.  The EEOC failed to send the notice to the plaintiff’s attorney’s address despite the plaintiff’s request for this.

The recent case Eleventh Circuit Court of Appeals case Robbins v. Vonage Bus., Inc., 20-10293, 2020 WL 4134571 (11th Cir. July 21, 2020), reached to the opposite conclusion based on the plaintiff’s conduct.  The plaintiff-employee had not provided the EEOC with a notice of change-of-address despite having nine months to do so.  The employee checked his mail only once a week.  Despite receiving the right-to-sue within the jurisdictional time period, the employee still waited out the entire 90-day period.  Robbins held that this was not enough to justify equitable tolling, and thus the employer was entitled to summary judgment on all discrimination claims.

Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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