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Oral notice from EEOC is insufficient

An employee has 90 days to sue, once the EEOC dismisses a case and issues the employee a right-to-sue letter. But what happens when the employee never gets that letter, and thus fails to file suit within 90 days?

On Jan. 12, the 7th Circuit declined to hold, as other circuits have, that an oral communication is sufficient to begin the limitations period.

Sherry L. DeTata was employed by Rollprint Packaging Products, Inc., for eight days. After she was fired, she filed a complaint with the EEOC, alleging sexual harassment. DeTata was assisted by Jewell Bracko, an attorney with the American Civil Rights Trust, but Bracko’s name was not on the papers.

On March 2, 2009, the EEOC dismissed the claim and issued a right-to-sue letter. Rather than mailing it to DeTata, though, it sent it to Bracko. Three times, the letter was returned as undeliverable.

DeTata discovered her claim had been dismissed when she called the EEOC to inquire about her case in April or May. The EEOC resent the letter on June 18, which DeTata received a few days later.

DeTata then filed a pro se suit in federal court on Aug. 18, 2009, alleging sexual harassment and retaliation. Rollprint moved to dismiss because the suit was filed more than 90 days after the March 2 letter.

The district court granted the motion, concluding that the 90-day period began to run, at the latest, when DeTata learned by phone that her complaint had been dismissed.

DeTata appealed, and the 7th Circuit vacated the district court’s order in an opinion by Judge Diane P. Wood.

The court cited a string of its precedents that assume, without deciding, that written notice is required, and that the 90-day period does not start running until the claimant or her attorney actually receives the right-to-sue letter.

But several other circuits have held that oral communications may start the limitations period.

In Ball v. Abbott Advertising, Inc., 864 F.2dd 419 (6th Cir.1988), the court held that the period began when the claimant’s attorney learned via a telephone call that a right-to-sue letter had been sent but returned as undeliverable.

In Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir.2005), the court also held that actual knowledge that a complaint has been dismissed may suffice to begin the limitations period.

And in Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir.2003), the court also held that oral notice can suffice, on similar facts. But it ruled in the employee’s favor, because the employee spoke to the EEOC investigator herself, rather than her attorney, and no evidence was presented that she was informed that she had only 90 days to file suit.

In contrast, the 7th Circuit declined to hold that oral communication may qualify as statutory notice. But neither did it hold that oral communication can never qualify.

Instead, the court concluded that, even if it could, it would not be sufficient in this case.

In 29 C.F.R. 1601.28(e), the EEOC identified four requirements for a notice of a complainant’s right to sue: authorization to the aggrieved person to bring a civil action under title VII within 90 days from receipt of such authorization; advice concerning the institution of such civil action by the person claiming to be aggrieved, where appropriate; a copy of the charge; and the Commission’s decision, determination, or dismissal.

The court found, “There is no evidence in this case that the EEOC’s oral communication to DeTata met any of the first three requirements. Most importantly, there is nothing in the record to suggest that the EEOC ever told DeTata when her 90-day clock began to run.”

The court found this requirement particularly important because the limitations period is so short.

Finally, the court rejected Rollpoint’s argument that the notice sent to Bracko was sufficient, because Bracko was DeTata’s attorney. The court found that it was unclear from the record in what capacity Bracko was assisting DeTata.

David Ziemer can be reached at david.ziemer@wislawjournal.com

What the court held

Case: DeTata v. Rollprint Packaging Products, Inc., No. 10-1596

Issues: Can oral communication suffice to begin the 90-day period for filing suit after the EEOC issues a right-to-sue letter?

Holdings: Even if it can, the defendant must show that the oral communication included notice of the limitations period.

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