Checking Wrong EEOC Box Results in Dismissal of Claim as Time-Barred

In addition to being difficult to prove, employment discrimination cases are riddled with procedural minefields. One wrong step, and boom: your case is over.

A recent decision, Miller v. St. Luke’s Roosevelt Hosp. Ctr. d/b/a Mount Sinai Roosevelt Hosp., No. 15-cv-7019, 2016 WL 1275066 (S.D.N.Y. Apr. 1, 2016), illustrates that in the law, seemingly mundane choices – such as which box to check on an EEOC form – are anything but, and can have significant consequences.

In Miller, the pro se plaintiff – who alleged that he suffered unlawful discrimination at work – filled out an Intake Questionnaire at the EEOC. That questionnaire, in its current form, has two boxes. The court explained:

[T]he EEOC has changed the [Intake Questionnaire] to require a claimant to clearly express his or her intent by checking one of two boxes, thereby forcing claimants to decide whether their questionnaire is a request for the agency to take remedial action, such that courts can objectively determine whether each questionnaire is a charge of discrimination or merely a request for further information. … [C]ourts commonly hold that checking Box 2 on the current form of the EEOC’s Intake Questionnaire, which authorizes the EEOC to look into the discrimination described in the form and describing that discrimination in detail in the Questionnaire … qualifies as a charge with the EEOC for timeliness purposes.

Here, plaintiff checked box 1, which says

I understand that by checking this box, I have not filed a charge with the EEOC. I also understand that I could lose my rights if I do not file a charge in time.

The court held that this “clear and unambiguous language cannot … reasonably [be] construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.”

It turns out that this is critical, since, for statute of limitations purposes, “filing” a “charge” with the EEOC is what counts:

[A] plaintiff in a Title VII suit must file a charge with the EEOC within 180 days or, in states like New York that have local administrative mechanisms for pursuing discrimination claims, 300 days after the alleged unlawful employment practice occurred. This 300–day time period, which is contained in 42 U.S.C. § 2000e–5(e)(1), thus acts as a statute of limitations.

The court concluded that plaintiff’s claim was time-barred, because he did not “file a charge” with the EEOC within 300 days after his suspension or termination. In addition, plaintiff did not make a sufficient showing to invoke the doctrine of “equitable tolling.”

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