Plaintiff filed Title VII lawsuit three days too late

If you represent Title VII plaintiffs and the right-to-sue letter arrives in the mail on a Monday, you might want to filed the lawsuit in federal court by Friday. OK, maybe not that quickly, but there is little time to waste. Title VII only gives you 90 days to file that lawsuit, and if you file it on the 91st day, the case will be dismissed and your client will wonder why you did not act any sooner. All this plays out in a recent decision by the Court of Appeals.

The case is Tiberio v. Allergy Asthma Immunology, decided on December 20. The EEOC charge alleged that plaintiff was the victim of disability discrimination. The right-to-sue letter (which closes out the EEOC investigation and allows you to file the lawsuit) was mailed on November 24, 2010. The law presumes that you will get that letter within 3 days, so the Court of Appeals (Cabranes, Miner and Wesley) assumes that plaintiff got it on November 27, 2010. But plaintiff's lawyer got the letter on November 29, 2010. The lawsuit was filed on February 28, 2011. Plaintiff says the filing in federal court was timely because fell within 90 days of her lawyer's receipt of the right-to-sue (not including the weekend immediately preceding the filing date, which doesn't count under Fed. R. Civ. P. 6). So what's the problem?

The problem is that plaintiff was presumed to receive the right-to-sue letter three days after it was mailed, and a few days before her lawyer actually did receive it. If the deadline starts to run when plaintiff got the letter, then the lawsuit is untimely (by only 3 days, but still untimely). It is timely if the operative date is when her lawyer got the letter (a few days later, enough to bring the lawsuit within the 90-day deadline). Since plaintiff and counsel got the letter on different dates, the Court of Appeals has to decide what is the operative date in this case. While notice to the attorney usually qualifies as notice to the client, "the general principle of constructive notice does not affect, much less vitiate, the operative presumptions regarding the receipt of an EEOC right-to-sue latter by the claimant herself." In other words, if the plaintiff got the letter before the lawyer did, then the deadline starts to run when the plaintiff got the letter, not when the lawyer got it. Otherwise, the Second Circuit says, the plaintiff gets an unfair extension of time if her lawyer got the letter after she did.

So here's the rule, set forth by the Court of Appeals for the first time: "we now hold that the 90-day limitations period set forth in [Title VII] begins to run on the date that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier."  As the lawsuit was filed 93 days after she got the letter, this new rule kills plaintiff's case..