Jottings By An Employer's Lawyer

Monday, October 10, 2005

False Economy - Bring Back the Green Cards

Why doesn't the EEOC send right to sue letters by certified mail? Given that an important right expires within 90 days from the receipt of the right to sue letter, wouldn't it be nice to have some degree of certainty? Or is it cheaper to leave individual cases subject to the vagaries of the mail and the testimony of individuals? For example, just how much in government resources (not to mention the costs of the defendant, their counsel, the plaintiffs and plaintiffs' counsel) were expended in resolving Kerr v. McDonald's Corp. (11th Cir. 10/6/05) [pdf]? The basic facts were not that complicated - right to sue letters were dated December 31, 2002, suit was filed on May 15, 2003 and plaintiffs' testified that they didn't receive the RTS letters until sometime in February.

But to decide whether the suit was barred by limitations, because there was no proof certain that would have been provided by certified mail, return receipt requested, we had the filing of a lawsuit, a motion for summary judgment with its attendant briefing, a decision by the district court, an appeal to the 11th Circuit, briefing, oral argument and a 14 page opinion.

Among the evidence gathered was the following on EEOC's procedure for sending a right to sue letter:

Both RTS letters were signed by Webb and dated 31 December 2002. General EEOC practice is to mail them out the day they are dated, or within the following two days, at the latest. Because such letters are mailed by a clerk, however, the exact date of mailing is not confirmable. Evidence in the record about specific EEOC office procedures related to the preparation and mailing of RTS letters and the closure of files sheds some light on the issue. First, as a rule, files are not submitted for closure until the RTS letters have been sent out. Second, the normal practice of the EEOC is to send out RTS letters to the charging party and the respondent at the same time. Finally, the majority of RTS letters are sent out tri-folded in regular white business envelopes. Investigation files are returned to charging parties by a wholly different department, in large manilla envelopes marked “CRTIU,” and only after the file has been closed. See 29 C.F.R. § 1610.17(g) (request for copy of investigation file in an ADEA case will be denied unless case has been closed).

And there's more detail on the EEOC procedures if you care to look at it. All of which you can be sure required considerable time (and angst) to procure in suitable form for presentation to the trial court.

And of course then there is the time that this issue remained up in the air. The two plaintiffs were terminated from McDonald's in October of 2001. The lawsuits filed in May 2003, the appeal filed in August, 2004 and now finally a decision in October, 2005, four years after the terminations. Of course there is still the possibility of rehearing, rehearing en banc and cert. to the Supreme Court, so let's not call it wrapped up too soon.

And this was not a straight forward case for the defendant. The Court summarized its holding as follows:

In this appeal, we were called upon to consider whether, under the test established in our circuit, actual knowledge on the part of a complainant that the EEOC has terminated its investigation of her claim, as evidenced by her request for an RTS letter, may be sufficient to cause the time for filing to begin running within a reasonable time after written notice of complainant’s right to sue has been mailed. Based on our review of the law in our circuit, we have concluded that it is, and that the ADEA complaint filed by Kerr and Green Smith was untimely.

The cost of the green cards that could have avoided all of this? $4.42 each according to the following example at the U.S. Postal Service website:
First-Class Mail with Certified Mail and Return Receipt
First-Class Mail will get the title to its destination in 1 to 3 days. Certified Mail with Return Receipt will give Maria proof that she mailed the title and will return a card to her with the date the title was delivered and the signature of the person who received it.
First-Class Mail $0.37
Certified Mail +$2.30
Return Receipt +$1.75
Total $4.42
Two plaintiffs - $10 vs. all the costs above. Doesn't take many of these to pay for a lot of right to sue letters.


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