New England Biz Law Update
An Americans with Disability Act complaint filed by an employee whose leave request was denied must be dismissed because it was filed more than 90 days after the Equal Employment Opportunity Commission mailed a “right-to-sue” letter to the employee and her attorney, the 1st U.S. Circuit Court of Appeals has ruled.
The plaintiff employee claimed that she did not receive the right-to-sue notice until 19 days before she filed her complaint in federal court.
But the 1st Circuit was unconvinced.
“It is undisputed that the right-to-sue notice was mailed simultaneously to the plaintiff and to her attorney,” Judge Bruce M. Selya wrote for the unanimous panel. “Consequently, the plaintiff had constructive notice of the 90-day filing period through [the attorney]’s receipt of the right-to-sue notice.”
The 12-page decision is Loubriel v. Fondo del Seguro del Estado.
Aníbal Lugo-Miranda of Puerto Rico represented the employee. The employer was defended by Ivonne Cruz-Serrano, also of Puerto Rico.
Leave denied
Plaintiff-appellant Advilda Loubriel, a physician, began working for the defendant-appellee State Insurance Fund in 1995.
The plaintiff suffers from a degenerative arthritic condition that reduced her workload to part time and caused frequent absences from work.
In January 2008, she requested 45 days of “Advanced Non-Occupational Sick Leave,” which her employer denied.
After an unsuccessful attempt to appeal the denial internally, the plaintiff filed a complaint with a local agency, which eventually referred the matter to the EEOC. In her complaint, the plaintiff alleged that the denial of leave constituted unlawful discrimination and an unwarranted refusal to make a reasonable accommodation for her disability.
On May 8, 2009, the EEOC, without resolving the merits of the claim, issued a right-to-sue notice and mailed copies of it to the plaintiff, her attorney and the employer. The notice clearly stated that the plaintiff’s Title I action against her employer had to be filed within 90 days of receipt.
The plaintiff asserted that she did not receive her copy of the notice until Sept. 10, 2009.
The plaintiff sued in federal court on Sept. 29, 2009 — 144 days after the EEOC sent the notice. In pertinent part, her complaint alleged that the denial of her request for an extended leave of absence violated her rights under Title I of the ADA.
The employer denied liability and, in due course, moved for summary judgment on the ground that the plaintiff had failed to file her Title I suit within the 90-day window. The motion was allowed.
Constructive notice
Selya said the issue in the case concerned a procedural requirement “that must be satisfied in order to file suit under Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§12101-12117.”
The basis for the U.S. District Court judge’s decision to award the employer summary judgment was his conclusion that there was a presumption of timely receipt of a mailed notice and that the plaintiff did not furnish sufficient record evidence to rebut that presumption.
While the plaintiff did not directly state in her affidavit when she received the right-to-sue notice, she did mention in the unsworn statement of contested material facts that accompanied her opposition to summary judgment that she received it “on or about September of 2009.”
Furthermore, the plaintiff’s affidavit attested generally, to the best of her knowledge, that the facts set forth in the statement of contested material facts were true.
“This combination of oblique references may or may not be sufficient to create a genuine issue of material fact,” Selya said. “But, we need not decide this vexing issue; the plaintiff’s claim fails for another reason,” he said, noting the simultaneous mailing of the right-to-sue letter to the plaintiff’s counsel, Aníbal Lugo-Miranda.
“In contemplation of law, notice to the attorney is notice to the claimant,” Selya said. “The fact that the summary judgment record contains no evidence concerning the actual date of Attorney Lugo’s receipt of the right-to-sue notice does not help the plaintiff.”
Selya said the EEOC’s right-to-sue notice indicated that the “date mailed” was May 8, 2009, which the plaintiff did not dispute.
“There is a presumption that, in the absence of evidence to the contrary, a notice provided by a government agency is deemed to have been placed in the mail on the date shown on the notice and received within a reasonable time thereafter,” he said.
“Attorney Lugo, therefore, is presumed to have received the right-to-sue notice within a reasonable time after May 8,” the judge said. “[T]he presumption of Attorney Lugo’s timely receipt of the right-to-sue notice no later than mid-May is unimpugned by any probative evidence in the record.”
The plaintiff argued that the employer committed a “continuing violation” sufficient to toll the 90-day filing period.
“Although this period is subject to equitable tolling, … the plaintiff’s argument is a non-sequitur,” Selya responded.
The 1st Circuit acknowledged that the existence of a continuing violation may toll the limitations period for filing an initial claim with the EEOC.
“Such tolling is an equitable means of ensuring that meritorious discrimination claims are not pretermitted because the claimant needed to experience a pattern of repeated acts before she could be expected to realize that the individual acts were discriminatory in nature,” Selya wrote.
“This purpose would not be served by extending the 90-day filing period (which follows the filing of an administrative claim with the EEOC or a local agency),” he said. “By the time that she receives a right-to-sue notice, a claimant is necessarily aware of the defendant’s discriminatory conduct; she has by then already recognized the occurrence of discrimination and filed her administrative claim. It follows inexorably that the existence of a continuing violation does not relax the requirement that a plaintiff file her judicial action within 90 days of the receipt of the EEOC’s right-to-sue notice.”
