An employee could not bring suit in federal court more than 90 days after receiving a right-to-sue letter from the Equal Employment Opportunity Commission despite the fact that he filed a new administrative charge within the 90-day period, the 1st U.S. Circuit Court of Appeals has concluded.
The plaintiff employee argued that the time limit for filing suit should be equitably tolled.
The 1st Circuit disagreed, finding that the plaintiff identified no circumstances beyond his control that might have prevented him from filing the suit in time, Judge Bruce M. Selya wrote for the unanimous court.
The 14-page decision is Rivera-Díaz, et al. v. Humana Insurance of Puerto Rico, Inc., et al.
José Enrico Valenzuela-Alvarado represented the plaintiff. The defendant employer was represented by Elizabeth Pérez-Lleras. The lawyers practice in Puerto Rico.
To the EEOC and back
Plaintiff Giovanni Rivera-Díaz began working for defendant Humana Health Plans of Puerto Rico in August 2011. His supervisor, Solciré Cardona, allegedly orchestrated his ouster roughly six weeks later.
The plaintiff claimed that that adverse employment action amounted to disability discrimination and retaliation, alleging that Cardona repeatedly mocked his diabetes and mental conditions.
Less than two weeks after his firing, the plaintiff filed an administrative complaint with the EEOC charging the employer with discriminating against him on account of his disability.
The EEOC eventually notified the plaintiff that it was terminating its processing of his charge and that he had the right, during the next 90 days, to initiate a civil action. A copy of that letter was simultaneously sent to the plaintiff’s attorney. It explicitly warned that a failure to file suit within 90 days would result in the loss of any right to sue.
Although the plaintiff filed a new administrative charge against the defendant some two months after the right-to-sue letter issued, he did not bring suit in federal court.
The second EEOC charge added a claim for retaliation. The plaintiff requested the prompt issuance of a right-to-sue letter without further investigation. The EEOC obliged, transmitting its second letter within two months of the filing of the second charge.
Less than a month after the transmittal of the second letter — but more than four months after the first right-to-sue letter — the plaintiff filed his complaint in U.S. District Court asserting claims of discrimination and retaliation under the Americans with Disabilities Act of 1990. The bias claim was dismissed because it was untimely, while the retaliation claim was dismissed because the plaintiff’s second EEOC charge had been filed too late.
The plaintiff received the first right-to-sue letter on April 17, 2012, but did not file suit until Sept. 6, 2012 — well after the 90-day period for filing suit had expired, Selya noted.
“The plaintiff does not gainsay this time line but, rather, notes that the ninety-day filing period is not jurisdictional and is subject to equitable tolling,” Selya said. “In his view, the suit-filing period should have been tolled until the issuance of the second right-to-sue letter.”
Equitable tolling attaches only when “a claimant misses a filing deadline because of circumstances effectively beyond her control,” the judge wrote. “The doctrine is to be employed sparingly and should be reserved for exceptional cases.”
The plaintiff cited case law addressing the EEOC’s ability to reconsider and vacate right-to-sue letters.
“But there is no indication in this case that the EEOC ever reconsidered, vacated, or otherwise impugned its first right-to-sue letter,” Selya said.
The judge went on to say that the plaintiff’s tolling argument “reduces to a bare plea to disregard a mandatory deadline based on his subjective belief that filing a second administrative charge within the ninety days allotted for suit would renew the suit-filing period.”
The 1st Circuit found that the plea was futile.
“It flies in the teeth of unambiguous precedent holding that if the proponent of a discrimination claim fails to sue within the specified ninety-day period, his claim expires and is not resuscitated by the filing of a second administrative charge,” Selya said.
“In the last analysis, the plaintiff’s attempt to wrap himself in the mantle of equitable tolling comprises little more than a hope that we will overlook his miscalculation regarding the ADA’s procedural requirements,” the judge said. “But we cannot accommodate this forlorn hope: equitable tolling does ‘not extend to what is at best a garden variety claim of excusable neglect.’”