Every legal claim has a “statute of limitations” – that is, a deadline for filing a lawsuit in court. Failure to commence an action by the applicable statute of limitations can be fatal and result in the loss of important rights.
In employment discrimination litigation, one key deadline when asserting claims under, for example, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA), a discrimination victim must file a civil action (i.e., a court complaint) within 90 days of the receipt from the EEOC of a notice of the dismissal or termination of the proceedings by the EEOC. A lawsuit commenced after the 90-day deadline is subject to dismissal.
In Edwards v. Onondaga Cmty. Coll., No. 514CV1329MADDEP, 2015 WL 7283187 (N.D.N.Y. Nov. 16, 2015), a case brought under the Age Discrimination in Employment Act (ADEA), defendant moved to dismiss plaintiff’s complaint under FRCP 12(b)(1) for lack of subject matter jurisdiction.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on March 7, 2013 alleging age discrimination under the ADEA. The EEOC issued a Right to Sue letter dated July 29, 2014. Plaintiff alleged in her court complaint that she received the EEOC letter “on or about August 2, 2014.” She filed the complaint on October 31, 2014.
Defendant argued that “the last day to file [Plaintiff’s] lawsuit was October 30, 2014 and Plaintiff’s filing on October 31, 2014 was thus untimely, and therefore deprived this Court of subject matter jurisdiction.”
The court disagreed and denied defendant’s motion.
In reaching its conclusion it discussed and applied the rebuttable “three day mailing” presumption set out in the Second Circuit’s decision in Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525-26 (2d Cir. 1996):
Normally it is assumed that a mail[ed] document is received three days after its mailing, and it is normally presumed that a notice provided by a government agency has been mailed on the date shown on the notice. Additionally, [w]hile the 90-day rule is not a jurisdictional predicate, in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day. …
The … three-day presumption can be rebutted if a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach [the claimant] by mail. Further, a sworn affidavit submitted by [a] Plaintiff is sufficient to create a genuine issue of fact about whether [the plaintiff] received the Right-To-Sue letter … adequately [rebutting] the presumption[.] However, it is not enough to rebut the three-day presumption if a plaintiff only presents evidence showing either their own lack of recollection or a mere denial of receipt.
Applying the law, the court held that the plaintiff in this case successfully rebutted the three-day mailing presumption:
Plaintiff argues in her sworn affidavit that she received the Dismissal and Notice of Rights on Saturday, August 2, 2014. Further, Plaintiff supports her argument by explaining that she remembers when she received the Dismissal and Notice of Rights because [she] was upset at receiving the notice. Additionally, Plaintiff also notes a history of timeliness issues with her postal delivery service. Moreover, Plaintiff neither denies receipt of the Dismissal and Notice of Rights, nor does Plaintiff simply rely on the argument that she does not remember when she received the Dismissal and Notice of Rights. Plaintiff’s position is further supported by her complaint, in which she swore under penalty of perjury that she received the notice on August 2, 2014. Here, the foregoing facts and Plaintiff’s complaint, and sworn affidavit rebut the presumption[.]
Based on this, the court held that there was a genuine issue of material fact as to when plaintiff received the Dismissal and Notice of Rights letter and therefore denied defendant’s motion for summary judgment.
Notwithstanding the result in this case, it is obviously best to file a complaint subject to the 90-day statute of limitations well in advance of the 90-day deadline.