90 day filing deadline in employment discrimination cases are strictly enforced

Deadlines are deadlines. This cases reminds us that filing deadlines in Title VII and ADEA cases are strict, and the exceptions are rare.

The case is Ko v. JP Morgan Chase Bank, a summary order issued on April 17. This is a case brought under the Age Discrimination in Employment Act. In New York, before employment discrimination plaintiffs can sue in court, they have to file an administrative charge of discrimination with the Equal Employment Opportunity Commission within 300 days of the last discriminatory act. Once the EEOC completes the investigation and issues a Right to Sue Letter, you have 90 days to file the lawsuit.

Plaintiff got the Right to Sue Letter on July 2, 2016. She filed the lawsuit on October 2, 2016. The case was dismissed because the lawsuit was filed two days late. You might think 90 days from July 2 is October 2, but the rule says 90 days, not three months. Since the months of July and August have 31 days, 90 days from July 2 is September 30. So the lawsuit was filed too late.

There are exceptions to late filings in this context. We call it the "equitable tolling" rule. The name of the rule alone tells you what's going on here. You need a good reason for the late filing so that the court will see the equities in your favor and give you a break. The test is whether the plaintiff acted with "reasonable diligence" to enforce her rights but was prevented from doing so by no fault of her own. Plaintiff's equitable tolling argument said ""the weekend after her letter was sent was the Independence Day weekend."  Receiving the Right to Sue Letter at the time of the July 4 weekend is not a good enough excuse for the late filing in September/October, the Court of Appeals (Hall, Droney and Stanceu [by designation]) says. I think the argument here is that the holiday weekend caused delays in the mail service so that plaintiff did not receive the Right to Sue Letter until sometime after the holiday, bringing the 90 day deadline into early October, not late September. The Court of Appeals rejects that argument. "Every litigant seeking relief from a district court must navigate federal holidays in the calendar, and Ko provides no authority suggesting that equitable tolling should be granted for alleged delays in the mail service."