Why it matters
When does the 90-day period referenced in Title VII for filing a civil action begin—when the aggrieved person becomes eligible to receive a right-to-sue notice from the Equal Employment Opportunity Commission (EEOC), or when the person is actually given the notice? According to the U.S. Court of Appeals for the Ninth Circuit, the time period begins when the individual is actually given notice of the right to sue by the agency. The case before the federal appellate panel involved Taylor Scott, who sued her former employer for sexual harassment and retaliation in violation of Title VII. A district court judge granted summary judgment for the employer, finding her suit to be time-barred because the acts she identified against the employer fell outside the statutory time period for filing suit. The Ninth Circuit partially reversed, writing that a plaintiff’s 90-day time limit to file suit begins when the aggrieved person is given notice of the right to sue by the EEOC, and that claims under the statute may be based on alleged acts outside the relevant time period to the extent that such acts are part of a single unlawful employment practice. Scott could, therefore, base her claims on the employer’s alleged acts occurring after she received notice of her right to sue from the agency only if she could show the acts were part of a single hostile work environment claim. The panel upheld summary judgment in favor of the employer with regard to claims based on discrete discriminatory or retaliatory acts that fell outside the relevant time period.
Taylor Scott began working for Gino Morena Enterprises (GME) in April 2011 at a barbershop located on the United States Marine Corps Base at Camp Pendleton. In November 2013, Scott filed a charge with the California Department of Fair Employment and Housing (DFEH), alleging that her manager and general manager sexually harassed and retaliated against her.
On Nov. 25, 2013, the DFEH issued a letter providing Scott notice of her right to sue, giving the reason as “Administrative Dismissal—Waived to Another Agency.” The DFEH right-to-sue letter explained that Scott’s DFEH charge had also been filed with the Equal Employment Opportunity Commission (EEOC) and that Scott had a right to request the EEOC perform a review of the DFEH’s findings of insufficient evidence to support that a violation had occurred. The following month, her manager issued what was, in reality, a first warning but which was described as a “second” warning. Scott subsequently left GME’s employ. Scott did not follow up on her first administrative charge until October 2014, when she reached out to the EEOC.
Scott then hired a lawyer and filed a second charge with the DFEH in November 2014, adding allegations about retaliation that she said was a result of her filing the first DFEH charge. She received a second DFEH right-to-sue letter on the same date and filed suit in California state court on Nov. 20.
GME removed the case to federal court and then filed a motion for judgment on the pleadings, seeking dismissal of the Fair Employment and Housing Act (FEHA) claims as being preempted by federal law. Scott obtained a right-to-sue notice from the EEOC associated with her first charge. Issued on June 3, 2015, the EEOC notice stated that “[m]ore than 180 days have passed since the filing of this charge” and “[t]he EEOC is terminating its processing of this charge.” The EEOC notice also stated that Scott’s lawsuit under Title VII must be filed in federal or state court within 90 days of receipt of the notice.
Scott then filed an amended complaint in court, which included only federal claims arising under Title VII and no state law claims. GME countered with a motion to dismiss, arguing that the Title VII claims were untimely and, therefore, time-barred. Although the court denied that motion in order to allow the parties to pursue discovery, it subsequently granted GME’s motion for summary judgment, ruling that all of Scott’s claims were time-barred. Scott appealed.
The U.S. Court of Appeals for the Ninth Circuit explained that there are effectively two limitations periods for Title VII claims. “First, a claimant must exhaust administrative remedies by filing a charge with the EEOC or an equivalent state agency, like the DFEH, and receiving a right-to-sue letter,” the court said. “The charge must be filed within 180 days after the allegedly unlawful employment practice occurred. Second, after exhausting administrative remedies, a claimant has 90 days to file a civil action.”
This second time limit—found at 42 U.S.C. Section 2000e-5(f)(1)—was the issue GME raised against Scott. If the 90-day period to file a civil action begins when the plaintiff receives a right-to-sue notice from the EEOC, then Scott’s claims were timely. If the period, in contrast, starts 180 days after the charge is filed with the EEOC, regardless of when the agency issues a right-to-sue notice, then her time to file an action expired before she sued.
The Ninth Circuit determined that the former interpretation was a better fit with the statute, which requires the EEOC to give notice to the aggrieved person of the person’s authorization to file a civil action. “The statute does not expressly state when the EEOC must give such notice,” the court said. “However, it clearly contemplates the giving of notice sometime after 180 days have expired from the date the charge is filed.”
Section 2000e-5(f)(1) “plainly ties the 90-day period to the ‘giving of [the right-to-sue] notice,’ not eligibility for a right-to-sue notice,” the panel wrote, finding the contrary conclusion counterintuitive.
“The district court’s conclusion is not only contrary to the language of the statute, it arguably would render right-to-sue notices meaningless. If the mere passage of time triggers not only the claimant’s right to sue … but also the deadline by which the claimant must sue (the district court’s conclusion), the EEOC’s giving of notice after 180 days becomes an idle act.”
To hold that a plaintiff may sue when the EEOC has not acted on a charge for 180 days but is not required to do so until after receiving a right-to-sue notice is entirely consistent with the different purposes of the administrative exhaustion requirement and the statute of limitations, the court added.
“The purpose of the exhaustion requirement ‘is “to provide an opportunity to reach a voluntary settlement of an employment discrimination dispute,”’” the court said. “The purpose of a statute of limitations, on the other hand, ‘is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.’”
Allowing an aggrieved person to wait for the agency’s investigation to conclude—even if it takes more than 180 days—furthers the purpose of the administrative exhaustion requirement without undermining the purpose of the 90-day limitations period, the Ninth Circuit wrote.
GME’s concerns about an indefinitely open limitations period were adequately addressed by existing doctrines, such as laches (undue delay in pursuing), the panel said, and the employer lacked any authority for its position that the issuance of a right-to-sue letter by either the EEOC or the DFEH trigged the 90-day clock.
“Accordingly, the district court erred in concluding that the 90-day clock for Scott to file suit began when she became eligible to receive a right-to-sue notice, rather than when she received her right-to-sue notice from the EEOC,” the court said.
However, the timing did have an impact on some of the allegations in Scott’s complaint. Her retaliation claim was based in large part on later conduct, as she maintained that management retaliated against her by issuing a sham warning in an effort to set her up for termination. She argued that the continuing violations doctrine allowed her to base her retaliation claim on conduct that occurred after she filed her first administrative charge, as her second administrative charge was untimely.
“The applicability of the continuing violations doctrine depends on the nature of the plaintiff’s claim,” the court said. “To the extent Scott’s claims are based on discrete acts occurring after she filed her first DFEH charge—for example, retaliation for filing the first administrative charge—the district court did not err in granting summary judgment. But Scott may base her Title VII claims on GME’s alleged acts occurring after she filed her first DFEH charge to the extent she can show such acts are part of a single hostile work environment claim.”
To read the opinion in Scott v. Gino Morena Enterprises, LLC, click here.