Before filing a suit under Title VII, a plaintiff must exhaust administrative remedies by filing a Charge of Discrimination with the Equal Employment Opportunity Commission. If the EEOC doesn't act on the Charge within 180 days or declines to take action, the plaintiff gets a "right-to-sue letter" and must file a lawsuit within 90 days of receipt. This 90-day limit cannot be extended without a recognized equitable exemption. If the right-to-sue letter is sent via the United States Postal Service, the law presumes the plaintiff, or her lawyer, receives it in three days. But what if the plaintiff or her lawyer say they never got it? What if it wasn't sent via the United States Postal Service mail but was instead uploaded to the EEOC's online portal without any notice? Or both?
On July 19, 2024, the United States Court of Appeals for the Third Circuit, in Hayes v. New Jersey Department of Human Services, reinstated a Title VII lawsuit which the District of New Jersey had dismissed as time-barred because Plaintiff didn't file her case until more than 90 days after the date on the EEOC's right-to-sue letter. Hayes and her lawyer argued they didn't receive the right-to-sue letter by mail, nor were they notified that it had been uploaded to the EEOC's portal until months later, when the lawyer followed up with the EEOC. The Third Circuit held a jury had to determine when the plaintiff or her lawyer first "received" the right-to-sue letter.
In October 2019, Cephia Hayes filed a Charge of Discrimination with the EEOC against her employer for sexual harassment and retaliation. On March 11, 2020, an EEOC investigator emailed Plaintiff's lawyer and stated a "review of the available evidence does not establish a violation of Title VII." Critically, the email said the EEOC "will issue you a dismissal and notice of rights, which will enable you to file suit in U.S. District Court within 90 days of your receipt of that notice if you wish to pursue this matter further." That same day, the EEOC uploaded the right-to-sue letter to its online portal.
In August 2020, Plaintiff's lawyer contacted the EEOC to request the right-to-sue letter. The EEOC responded with a copy of the letter dated March 11, 2020. However, both Plaintiff and her lawyer, David M. Koller of Koller Law, said they never received the letter in the mail or by any other means. Plaintiff filed her lawsuit on November 24, 2020 — more than eight months after the letter was dated but less than 90 days after Plaintiff and her lawyer actually claimed to have received it. After discovery closed, the Department of Human Services filed a motion for summary judgment, and the District Court held the Plaintiff's Complaint was time-barred because it was filed more than 90 days after the date on the EEOC's March 11, 2020 right-to-sue letter.
Thus, the Third Circuit grappled with the issue of what started the 90-day clock ticking — The date on the right-to-sue letter? The date of the EEOC investigator's email stating the right-to-sue letter will be issued? The date the right-to-sue letter was uploaded to EEOC's online portal? Or the date Plaintiff and her lawyer claimed to have received it?
The Third Circuit first addressed the EEOC investigator's email. The court has previously held that, in some instances, an investigator's email or other communication may be sufficient to tell a plaintiff that the clock has started.1 But the communication must tell the plaintiff that the charge was being dismissed and that her 90-day limitations period had started — just like a right-to-sue letter would.
Judge Arianna Freeman, writing for the appellate panel, found the March 11, 2020 email deficient since it never stated that the 90-day clock had started. Instead, it said that a right-to-sue letter "will" be issued and that the limitations period would commence when the letter was sent. Judge Freeman noted that the plaintiff in Ebbert was self-represented, but said that fact was not determinative: "To eliminate all doubt, we now clarify that Ebbert's equivalent-notice requirement applies to pro se and counseled plaintiffs alike."
The thornier — and novel — question was whether uploading the right-to-sue letter to the EEOC's portal, without any other communication, started the 90-day clock. The Third Circuit said no: "Under the circumstances here — where the upload was not accompanied by a direct communication to the plaintiff or her lawyer — we hold that it does not." That, said the court, is because Title VII requires that the EEOC "shall...notify the person aggrieved" and ties the 90-day period to "the giving of such notice." While the court hasn't required that notice take any particular form, it has required "some affirmative act of communication from the EEOC to the plaintiff or her lawyer." Simply posting the right-to-sue letter on the EEOC's portal, without more, wasn't sufficient notice to start the 90-day clock.
Hence, the Court found the investigator's email and the unannounced posting to the portal were not sufficient to start the clock and, since there was a dispute as to when plaintiff and her lawyer actually received the right-to-sue letter, regardless of the date on the letter, the District Court erred in granting summary judgment. And because of that dispute, a jury has to decide when Hayes and her lawyer actually received the right-to-sue letter.
Takeaways
- The holding in Hayes appears to be aided by the dysfunction of the COVID-19 pandemic where there were significant delays in sending mail via the United States Postal Service.
- Pandemic exigencies aside, employers should ensure with the EEOC investigator that plaintiff or their lawyer properly received the 90-day notice, whether it be via the United States Postal Service or uploading — with notice — through the EEOC's online portal.
- If there's any doubt, promptly clarify the issue (in writing) with the EEOC — and certainly before arguing that the complaint is time-barred.
Footnote
1 Ebbert v. DaimlerChrysler, 319 F.3d 103 (3d Cir. 2003).
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