CHICAGO (CN) – A woman can sue her former employer for sex discrimination, even though the statute of limitations has lapsed, because a watchdog agency bungled her administrative claim, the 7th Circuit ruled.
Sherry DeTata filed a charge of sex discrimination with the Equal Employment Opportunity Commission against her employer, Rollprint Packaging Products, alleging that she was fired after complaining about multiple incidents of sexual harassment. DeTata had worked for only eight days at Rollprint, an Addison, Ill.-based packaging manufacturer.
The EEOC dismissed the case and mailed a right-to-sue letter that never reached DeTata or her attorney, an American Civil Rights Trust lawyer named Jewell Bracko. After three delivery attempts, it was returned as undeliverable to the EEOC.
When DeTata telephoned to check on her case, she learned of the dismissal and missing letter. DeTata asked the office to resend the letter along with a copy of her file, but it took EEOC nearly two months to locate the file.
DeTata filed suit within two months of receiving the materials, but that was 170 days after EEOC issued the right-to-sue letter.
Rollprint argued that the 90-day clock started when the letter was issued. As quoted in the ruling, “Rollprint contended that ‘the case law is clear that the receipt of the letter is not the precipitating event. It’s her actual notice.”
An Illinois federal court found the statute of limitations started after DeTata’s phone conversation with the EEOC, when she learned that her case had been dismissed and requested her file. It granted Rollprint’s request to dismiss the suit because DeTata filed suit more than 90 days after the phone call.
The three-judge appellate panel noted that the 3rd, 6th and 11th circuit courts have held that oral notice can sometimes start the statute of limitations period, but only in cases where the notice is given to an attorney or is otherwise clearly stated in a manner equivalent to the delivery of written notice.
Unless the claimant is explicitly informed of the time within which the suit must be filed, notice has not been given, the appeals court ruled.
“There is nothing in the record to suggest that the EEOC ever told DeTata when her 90-day clock began to run,” Judge Diane Wood wrote for the court.