Thursday, January 20, 2011

7th Circuit Rules Oral "Right to Sue" from EEOC is Not Sufficient to Start 90-Day Period

In order for someone to pursue an employment claim in federal court a notice of dismissal rights, known as the "right to sue" letter, mailed to them by the Equal Employment Opportunity Commission (EEOC) is required first. Once a complainant receives this letter, they then only have 90 days to file suit in federal court or forever hold their peace. What happens if a complainant does not receive the right to sue letter that the EEOC has sent out? The Court of Appeals for the Seventh Circuit got a chance to rule on such a situation.

In DeTata v. Rollprint Packaging Products, Inc., No. 10-1596, the complainant, Sherry L. DeTata, filed a sexual harassment charge with the EEOC with the assistance of an attorney, Jewell Bracko, an attorney with the American Civil Rights Trust. Once the EEOC decided it was not going to represent DeTata, it promptly prepared and mailed out her right to sue letter in March 2009 except they mailed it to Bracko--three times. The letters were returned each time as undeliverable. DeTata did not find out about her dismissal rights until April or May 2009 when she called the EEOC to inquire about her case. Therefore, the EEOC re-issued her a right to sue letter in June 2009. DeTata then filed a pro se suit in federal court on Aug. 18, 2009, alleging sexual harassment and retaliation. The employer moved to dismiss claiming the suit was filed more than 90 days after the March 2 right to sue letter. The district court granted the motion, concluding that the 90-day period began to run, at the latest, when DeTata learned by phone that her complaint had been dismissed. DeTata appealed, and the 7th Circuit vacated the district court’s order in an opinion by Judge Diane P. Wood.

Noting that other circuits have held that oral notice may begin the 90-day period, the 7th Circuit declined to hold that oral communication may qualify as statutory notice. But neither did it hold that oral communication can never qualify. Instead, the court concluded that, even if it could, it would not be sufficient in this case. From the Wisconsin Law Journal who carried the story:
In 29 C.F.R. 1601.28(e), the EEOC identified four requirements for a notice of a complainant’s right to sue: authorization to the aggrieved person to bring a civil action under title VII within 90 days from receipt of such authorization; advice concerning the institution of such civil action by the person claiming to be aggrieved, where appropriate; a copy of the charge; and the Commission’s decision, determination, or dismissal.

The court found, “There is no evidence in this case that the EEOC’s oral communication to DeTata met any of the first three requirements. Most importantly, there is nothing in the record to suggest that the EEOC ever told DeTata when her 90-day clock began to run.”

The court found this requirement particularly important because the limitations period is so short.

Finally, the court rejected [the employer’s] argument that the notice sent to[DeTata's attorney] was sufficient, because Bracko was DeTata’s attorney. The court found that it was unclear from the record in what capacity [the attorney] was assisting DeTata.
Lesson to be learned: take the EEOC's right to sue notice seriously. Stay in touch with the EEOC on the status of your complaint. Though complainant's in the 7th Circuit may have slightly more protection, such is not the case for people in other circuits.

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