Jottings By An Employer's Lawyer

Thursday, December 12, 2002

No Right to Sue Letter Required for Age Claim - Fifth Circuit

The plaintiff filed an EEOC charge alleging age discrimination, and then amended his lawsuit to add his age claim within 2 years of the allegedly discriminatory act. What he did not have, at any time, was a right to sue letter for his age discrimination claim. Defendant argued this deprived the court of jurisdiction. Neither the district court, nor the Fifth Circuit bought the argument. Finding the language of the age act different from Title VII, the Court found a right to sue letter is not required under the ADEA. The window for suing under the ADEA runs from 60 days after filing the charge to 90 days after receipt of a right to sue letter, if one is received. Julian v. City of Houston (5th Cir. 12/11/02). This is the second time in the past 2 years, the Fifth Circuit has had to deal with procedural issues involving the ADEA. Last summer, the Fifth Circuit made the opposite finding: merely having a right to sue letter from the EEOC is not sufficient, when the plaintiff never filed a charge. Steve Mierl, one of my colleagues here in Austin, was instrumental in making sure that the EEOC practice of issuing a right to sue letter to an individual who had not filed his own charge of discrimination was shot down and that the Court did not apply the piggyback rule where the one party who filed a charge, never filed a lawsuit. Bettcher v. Brown Schools (5th Cir. 2001).

In Julian, the City not only lost its jurisdictional argument, but it also suffers the possible loss of front pay as the Fifth Circuit sent the case back to the lower court to consider whether or not instatement to the position he had been denied a promotion too was feasible, and if not, whether front pay would be appropriate. Among the court's rulings were that the mere fact that his position would be at will was no reason alone to deny front pay, and that even though any award was somewhat speculative, that risk was to be borne by the discriminating party, not the employee.

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