A district judge for the U.S. District Court for the Eastern District of Virginia recently dismissed a case due to the plaintiff’s failure to file suit within the allotted time identified in the notice of right to sue (NRTS) that the U.S. Equal Employment Opportunity Commission (EEOC) issued.  Moyer v. Shirley Contracting Company, LLC, No. 1:21-cv-00046 (August 18, 2021) highlights the importance of recognizing when the clock begins ticking on the deadline to file suit and how attention to the Federal Rules of Civil Procedure can assist in litigation.

Background

In August 2019, Robert Moyer communicated with the EEOC’s Richmond, Virginia, office about a potential charge of age discrimination against his former employer, Shirley Contracting Company, LLC. Moyer filed the charge on August 12, 2019, using the EEOC’s electronic portal, and his case was subsequently transferred to the EEOC’s Washington, D.C., office.

A review of the EEOC’s “Charge Detail Inquiry” report—an internal document reflecting the steps taken during the EEOC’s investigation—revealed that in November 2019 Moyer spoke with an EEOC representative who advised him of the investigator’s “tentative recommendation” regarding the case. During this same call, the EEOC representative advised Moyer that he should expect an NRTS, informing him that he had 90 days to file a civil action upon receipt of the notice. EEOC personnel signed the NRTS and mailed it to Moyer on November 14, 2019.

Moyer claimed he never received the NRTS, although Shirley Contracting Company personnel and the company’s attorney of record received the letter on November 20, 2019. Moyer claimed that he did not become aware that the EEOC had dismissed his charge until March 2020 when he reached out to the EEOC for a status update. Moyer claimed that during this conversation, he found out that the EEOC had sent his NRTS to a Maryland address instead of his address of record, which was in Virginia.

Moyer made no additional attempts to contact the EEOC concerning his purportedly lost NRTS until several months later in July 2020. On September 3, 2020, Moyer had a 17-minute phone call with the EEOC, according to his cell phone records, but he did not recall the substance of the conversation. Then, on October 27, 2020, Moyer had another conversation with an EEOC representative, after which the representative sent a follow-up email on the same day informing him that the EEOC would mail another copy of the NRTS to his Virginia address. On November 6, 2020, Moyer received a copy of his NRTS in the mail.

On January 14, 2021, Moyer filed a civil action alleging age discrimination, and Shirley Contracting Company moved for dismissal of the lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because both parties relied on documents outside the pleadings, the court converted the motion to a motion for summary judgment.

The Court’s Analysis

The court began its analysis of the parties’ positions with the proposition that the 90-day time limit to file a civil suit after the EEOC’s handling of a matter is strictly construed. A failure to file a lawsuit within such time limit is forgiven only when waiver, estoppel, or equitable tolling is proven.

Receipt of the NRTS

In assessing what triggers the 90-day filing deadline, the court highlighted that actual receipt of the NRTS is not controlling because relying on when a plaintiff “received” the letter could open the door for manipulating the statutory deadline. Instead, a plaintiff’s knowledge of the right to file a suit is pertinent. For instance, if a plaintiff receives notification from a courier that the NRTS is available for pickup, the controlling date will be the date of the notification and not when the plaintiff actually picked up the letter.

Federal Rule of Civil Procedure 6(d)

When the parties disagree about the actual date that the NRTS was received, Federal Rule of Civil Procedure 6(d) controls. That rule “creates the [rebuttable] presumption that notice was received three days after it was mailed.” To rebut this presumption, a plaintiff must put forth reliable evidence.

Moyer presented the following evidence:

• a declaration and sworn testimony that he had received his NRTS on November 6, 2020;

• a postmarked envelope with the date of October 28, 2020, which contained the November 6, 2020, NRTS; and

• a declaration from his attorney.

In response to Moyer’s evidence, Shirley Contracting Company submitted the EEOC’s Charge Detail Inquiry report.

In assessing the evidence, the court noted that the Charge Detail Inquiry report did not substantiate Moyer’s claim that an EEOC representative had informed him that his original NRTS had been sent to an incorrect address. Instead, the documentation showed that the only address that the EEOC had was the Virginia address. The court noted that an EEOC representative had informed Moyer in November 2019 that his charge was destined for dismissal, yet Moyer did very little to follow up on the NRTS.

The court also noted that Moyer’s declaration (as well as his wife’s declaration) affirming that they had never received the NRTS and that “they checked the mail regularly” was not the type of evidence that would rebut the strong presumption embedded in Rule 6(d). Stated more pointedly in a memorandum opinion in a 2019 case in the Eastern District of Virginia, a “plaintiff’s own conclusory affidavit is entirely self-serving and insufficient standing alone to rebut the presumption.” Nor can it defeat summary judgment.

Equitable Tolling

The court also rejected Moyer’s attempt to claim equitable tolling. Equitable tolling requires that a plaintiff “‘present (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time,’” the court stated.

As noted by the court, Moyer filed his charge of discrimination on August 12, 2019, and at the earliest, could have filed a civil action on October 11, 2019—60 days after filing his charge in accordance with the requirements of the Age Discrimination in Employment Act and its applicable regulations. Further, even after being told in November 2019 that the dismissal of his charge was imminent, Moyer took no action. He instead waited until March 2020 to make another phone call to the EEOC to inquire about the status of his case. Even after being informed in March 2020 that his charge had been dismissed, he did not file a civil action until January 2021.

Moyer’s own actions, or lack thereof, were the cause of the extraordinarily late filing of his civil action. As such, the court granted Shirley Contracting Company’s motion for summary judgment.

Key Takeaways

This case highlights the importance of making a Freedom of Information Act (FOIA) request for the EEOC’s files for every lawsuit that requires some action by the agency (or by a Fair Employment Practices Agency (FEPA)). Simply because a plaintiff claims that he or she timely filed a civil action—even in situations where there has not been such a large lapse of time as in this case—does not mean that the case is timely. If there is a genuine dispute concerning when a plaintiff became aware of the right to file suit, an employer may be able to avoid liability and the unnecessary expense of discovery by seeking a dismissal of the case.