Tuesday, April 27, 2010

FEPA Letter Does Not Start the Clock on Statute of Limitations for Federal Suit

CourtroomThe Tenth Circuit issued an opinion yesterday in Rodriguez v. Wet Ink, a case involving sex discrimination and the limitations period for filing an action in federal court. Patricia Rodriguez had filed charges with the Colorado Civil Rights Division (CCRD) and the EEOC. The two agencies had a work sharing agreement, and the CCRD took the lead on the investigation, concluded that the sex discrimination charges had merit (other claims in her charge, it found, did not), and referred the matter for mediation. Mediation was not successful, and Rodriguez requested right to sue notices from both agencies. The CCRD issued one promptly, but the EEOC did not issue one for two months. Rodriguez filed an action in federal court, pleading only violations of federal law within 90 days of the EEOC letter, but more than 90 days after the CCRD's letter. The district court dismissed her action as time barred.

The Tenth Circuit reversed for two reasons: 1. it held that Title VII requires discrimination claims to be filed within 90 days of the EEOC issuing a right to sue (the statute does not refer to state or local fair employment practices agencies); and 2. the worksharing agreement did not give the CCRD the power to issue a right to sue notice on behalf of the EEOC.

Importantly, the worksharing agreement here reserved power to the EEOC to make its own determination on whether reasonable cause existed to believe that discrimination had occurred and whether it even had jurisdiction over the matter. The agreement only allowed each agency to serve as the agent of the other for purposes of receiving and drafting charges, and provided that once the CCRD began an investigation, it would be allowed to conclude its investigation before the EEOC would make a determination. The EEOC determination would give weight to the CCRD conclusion, but that was the extent of it. In fact, it was this process of separately evaluating the conclusion that created the delay in the issuance of the right to sue letter by the EEOC.

This seems the right analysis, and perfectly consistent with a prior case that considered the converse situation--where the state right to sue notice is what starts the clock running on a state law cause of action (see here). The court left open the issue of whether the EEOC could delegate its authority to issue right to sue notices, and suggested that if it could, the notice would have to comply with federal regulations at the very least.



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I am an attorney who worked on this appeal. One of the most challenging aspects of this Court's ruling is that, in practice, it may give employee-plaintiffs control over a large extension of time to act after agency action. Depending upon the communication between the state agency and the EEOC, the delay between the issuance of right-to-sue letters can be substantial. If a plaintiff requests a letter only from the state agency, it is not immediately clear whether or when the EEOC will act. Until it does, the plaintiff's deadline to sue may not be running, or so the Court's opinion suggests.

A related problem arises in considering this opinion with others, such as the cases out of the Ninth Circuit referenced in the opinion, in which courts refuse to dismiss federal claims for failure to exhaust remedies when an employee files after a state agency sends a right-to-sue letter, but before the EEOC does so.

Taken together, these issues might imply that an employer may be subject to suit on all claims at any time from the moment the state agency issues its opinion until some indeterminate time in the future when the EEOC is prompted to act.

Posted by: Colin Moriarty | Aug 29, 2011 1:28:58 PM

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