Jottings By An Employer's Lawyer

Tuesday, December 30, 2003

EEOC Revocation of Right To Sue Almost Fatal, But Not Quite

In perhaps the judicial understatement of the year, Judge Jolly notes that the 'procedural facts of this case are slightly offbeat.' Martin v. Alamo Community College District (5th. Cir 12/30/03) [pdf]. On September 17, 1999 the EEOC issued Martin a right to sue letter. On December 17, 1999 Martin filed suit against the College District. However, on the same day the suit was filed, the EEOC mailed a 2nd letter to Martin informing her that it had re-opened its investigation and rescinded its original right to sue letter. Martin had not yet sought service and in light of the 2nd letter did not do so. Five months later the District Court dismissed the case without prejudice.

Two months later, Martin received a second right to sue notice and filed a second suit. The college district challenged the suit as untimely. The case ultimately boiled down to whether Martin could have continued the first suit. There is an EEOC regulation which revokes the right to proceed with suit unless it is filed before the right to sue notice is revoked. Not surprisingly, it did not specify what happens when the suit is filed and the right to sue is rescinded on the same day.

In a judicial sleight of hand, which nevertheless makes sense, the 5th Circuit judicially declared the following rule:
We hold that, under 29 C.F.R. ยง 1601.19(b), when the notice to reconsider is issued on the same day that the complaint is filed, the issuance and filing are simultaneous (irrespective of the hours and minutes) and, consequently, the complaint has not been filed before the issuance of the notice.
The ruling was supported by a footnote which amplified on one aspect of the ruling:
Because some offices register the hour and minute of pleading receipts and others do not, and because mail is deposited at different times during the day, the rule is more nearly uniform and more easily manageable when time is calculated by the day.
So the long and short of it, four years after the initial right to sue was issued, the case may now move forward on the merits. Slightly offbeat, seems hardly close.


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