Friday, September 26, 2014

Do not blow the gift of time

Lawsuits under Title VII and the Americans with Disabilities Act carry a short statute of limitations, 300 days to be exact. You can extend the 300 day period under the "continuing violations" theory, but that's unpredictable.

The case is Cohen v. City of New York, a summary order decided on September 10. Cohen was a corrections officer. He accepted defendants' retirement offer on July 16, 2008. Cohen then filed an EEOC charge on September 3, 2009, more than 300 days later. Cohen says his claim actually accrued on November 16, 2008, the date his retirement became effective, which would bring him within the 300 days. The Court of Appeals (Katzmann, Sack and Lynch) is not buying it.

Cohen invokes "continuing violations" because Department of Corrections ignored his requests for a reasonable accommodation. "He argues that ... the statute of limitations should run from his last day of work, which was the point at which (1) it became clear that DOC was not going to grant his request for a reasonable accommodation, and (2) the disciplinary charges [against him] were no longer pending." But even if the employer blew off plaintiff's reasonable accommodation request, it should have been apparent to him on the day the parties agreed he would retire, July 16, 2008, that the accommodation would never happen. That means the claim accrued at least on that date, more than 300 days from the EEOC charge. That claim is therefore time-barred.

As for the disciplinary charges against him, Cohen argues that the date to challenge them accrued on the date his retirement became effective, because DOCS refused to dismiss the charges against him once he agreed to retire. "These acts, in Cohen's view, are related because they functioned to prevent Cohen from objecting to unfairly-lodged disciplinary charges and ultimately force him out of the DOC workforce." The Court of Appeals is not buying this. "Even if the decision to leave the disciplinary proceedings pending was a separate act of discrimination, Cohen knew or should have known of this decision by July16, 2008, as well."

What do we learn from this? Don't blow the gift of time. Title VII and ADA do not give us a lot of time to ready a discrimination lawsuit, true, but 300 days should give you enough time to know you are the victim of discrimination and for a lawyer to put together an EEOC charge. Creative arguments in support of a continuing violation argument aside, it's best to get the charge filed now.

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