Jottings By An Employer's Lawyer

Wednesday, February 18, 2009

The EEOC, The 5th Circuit and My First Post

On July 17, 2002 not knowing what I was getting into, this was my very first post on Jottings By an Employer's Lawyer:
For lack of a green card .....

No, not the kind typically associated with immigration issues, but the kind that accompanies certified mail and is used to prove when an item is received. Some time ago, the EEOC (at least where I practice) quit sending right to sue letters by certified mail. Since the time for filing a lawsuit is tied not to the date of the right to sue letter, but the date of receipt, it is easy to see the kind of problems that were certain to arise. Rather than having government certified (or quasi-government, depending on your view of the U.S. Postal Service's status) proof that the right to sue letter was received on a date certain it is now open to speculation. The 5th Circuit Court of Appeals has added its voice to other courts to at least provide a partial answer. When the date of receipt is uncertain or disputed, the Court will use a statutory presumption that it was received between 3 to 7 days after its date. In this case the court didn't need to be more certain since the suit was untimely regardless of which standard the court applied. Taylor v. Books A Million decided 7/15/02.

The argument for the three days is the period applied in the Federal Rules of Civil Procedure for service of documents by mail. That would make sense, and hopefully will be the standard applied when the Court is forced to decide that issue.
Yesterday the 5th Circuit decided a suit was timely notwithstanding a Katrina delayed receipt of a right to sue notice from the EEOC, Duron v. Albertson's LLC (5th Cir. 2/17/09) [pdf]. Saying what I felt those many years ago, the Court concluded:
In closing, we note that if the EEOC had followed its former practice of sending right-to-sue letters by certified mail, this dispute would, in all likelihood, have never arisen.
When that happens, I will happily update this post.


The problem with certified mail is that many people refuse to accept it. The Postal Service will make three attempts, and then return it to the EEOC, which sends it out again. If the charging party unreasonably delays receipt of the right-to-sue notice, he or she does not get to take advantage of the extra time to file a complaint. Whether the charging party was reasonable is a question of law and fact to be decided by the judge.

Sending things out by certified mail can sometimes cause more problems than it resolves.
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