Pro se fellow wins discrimination appeal

The Court of Appeals vacates a Rule 12 dismissal in a discrimination case brought by a pro se plaintiff against an experienced law firm.

The case is Friedman v. Swiss Re America Holding Corp., a summary order decided on February 25. The district court dismissed the case as untimely because, it said, plaintiff filed his federal suit more than 90 days after receiving the EEOC right to sue notice under Title VII. Yes, there is a presumption that right to sue letters are received three days after the date of the notice. But plaintiff said in his sworn complaint that he got the right to sue notice on a date that rebuts the three-day presumption.

Yet, even assuming that he got the right to sue notice when he said he did, Friedman still filed his lawsuit one day after the 90 deadline, that was also no reason to dismiss the lawsuit. The Court of Appeals (Hall, Livingston and Droney) says that the district court should have credited his account of what happened when he tried to file the lawsuit on the right day:

Friedman attested that he had attempted to file his complaint on Friday, March 11, 2011, but was turned away by a clerk who informed him she was unable to assist him because she did not know how to handle the filing of a pro se complaint. Friedman also attested that the clerk eventually offered to stamp the back of the first page of his complaint with a “received” office stamp showing that he had been there on March 11, and then advised him to come back "the following week" to file the complaint when her supervisor would be present. Importantly, Friedman's version of the events was corroborated when the Defendant submitted to the district court a copy of the back of the first page of Friedman's complaint, which bore the district court's March 11 "received" date stamp, albeit crossed out.

Lawyers get heart attacks and night frights over clerk's office disasters like this. But it's OK, man, at least for pro se litigants. The Second Circuit says that "the timeliness of Friedman's complaint depends on whether, as a matter of law, he should be credited for his unsuccessful attempt to file his complaint on March 11. In these particular circumstances, we hold that he should. This Court has held that when a pro se applicant submits a complaint, it 'should be treated as timely, provided the complaint was received by the clerk's office prior to the expiration of the limitations period,' even if it was not filed until a date beyond the limitations period." The case is therefore revived.