3rd Circuit Reinstates Harassment Claims: Dispute Over EEOC's Right-to-Sue Notice Date to Be Determined by a Jury

The U.S. Court of Appeals for the Third Circuit recently reinstated an employee’s sexual harassment and retaliation suit against a state agency deemed time-barred by a lower court, finding that a jury must determine when the plaintiff or her lawyer first received a right-to-sue letter from the Equal Employment Opportunity Commission.

Cephia Hayes sued her employer, the New Jersey Department of Human Services, for claims of sexual harassment and retaliation under Title VII in the U.S. District Court for the District of New Jersey. U.S. District Judge Karen M. Williams found that Hayes’ suit, Hayes v. New Jersey Department of Human Services, was time-barred because it was filed more than 90 days after the Equal Opportunity Employment Commission notified her or her counsel that it would not pursue her claim, according to the opinion.

“The same day that the EEOC investigator emailed Hayes’s lawyer, the agency uploaded the right-to-sue letter to its online portal,” Judge Arianna Freeman wrote for the court. “We have not yet addressed whether such an action suffices to start the 90-day clock. Under the circumstances here—where the upload was not accompanied by a direct communication to the plaintiff or her lawyer—we hold that it does not.”

Freeman explained that before a plaintiff may file suit under Title VII, administrative remedies must be exhausted by filing a discrimination charge with the EEOC and that a civil suit must be filed within 90 days. That clock begins to run after the plaintiff or counsel receives the EEOC notice that it has dismissed the charge of discrimination, called a right-to-sue letter, the opinion said.

Hayes had worked for the DHS since 2004. In 2016, she claimed that her supervisor sexually harassed her and retaliated against her when she rebuffed his advances. In October 2016, she filed a charge of discrimination with the EEOC and its state counterpart, but the agency opted not to pursue the case.

On March 11, 2020, an investigator with the EEOC emailed Hayes’ attorney a notice that the evidence did not establish a Title VII violation. The agency said it posted a dismissal and notice of rights in its online portal later that same day, according to the opinion.

In August 2020, a staff member for Hayes’ counsel contacted the EEOC to request the right-to-sue letter. An agency staffer responded with a copy of the letter dated March 11. However, both Hayes and her counsel, David M. Koller of Koller Law, said they never received the letter in the mail or by any other means. Her lawsuit was filed on Nov. 24, 2020, more than eight months after the letter was mailed but less than 90 days after Hayes and her attorney actually claimed to have received it, according to the opinion.

Once discovery closed, the DHS moved for summary judgment, arguing that the claims were time-barred, which the district court granted.

“We begin where the district court ended: with the March 11 email to Hayes’s lawyer,” Freeman said. “The email stated that the EEOC’s ‘review of the available evidence does not establish a violation of Title VII.’ It then explained that the EEOC ‘will issue you a dismissal and notice of rights, which will enable you to file suit in U.S. District Court within 90 days of your receipt of that notice if you wish to pursue this matter further.’”

Freeman said that under the Third Circuit’s decision in Ebbert v. DaimlerChrysler, 319 F.3d 103, 108 n.5 (3d Cir. 2003), the email was not equivalent to the right-to-sue letter and was, therefore, insufficient to start the 90-day clock. The judge said the March 11 email was equally deficient since it never stated that the 90-day clock had started. Instead, it said that a right-to-sue letter was forthcoming and that the limitations period would commence when the letter was sent. Freeman noted that the plaintiff in Ebbert was pro se but said that fact does not alter the court’s conclusion in the present case.

The judge also noted that Ebbert said that the U.S. Court of Appeals for the Sixth Circuit did not require equivalent notice in a 1988 opinion, Ball v. Abbott Advertising.

“We noted that several factual differences could account for the divergent holdings,” Freeman said. “For instance, the EEOC communicated with Ebbert herself in our case, while the agency spoke with the plaintiff’s lawyer in the Sixth Circuit’s case. Relying on that footnote, the district court here held that Ebbert’s equivalent-notice requirement applies only when a plaintiff is pro se.”

Freeman said the Third Circuit read Ebbert differently and that the footnote did not eliminate the equivalent-notice requirement. Instead, the judge said it “merely explained” why the Third Circuit divulged from the Sixth Circuit.

“To eliminate all doubt, we now clarify that Ebbert’s equivalent-notice requirement applies to pro se and counseled plaintiffs alike,” Freeman said. “Here, the March 11 email to Hayes’s lawyer did not satisfy the equivalent-notice requirement, so it did not start the 90-day clock.”

Judges Kent A. Jordan and Peter J. Phipps joined Freeman in reinstating the case to the district court. A jury will be asked to resolve when Hayes or her attorney first received the letter.

Koller, counsel for Hayes, told the Law Journal that he and his client are very happy with the court’s decision.

“An email saying you will receive the right to sue letter is not a right to sue letter,” Koller said. “I’m glad the Third Circuit agreed. We still pursued Cephia’s case in state court during this appeal, so she had her case litigated regardless. But this was more about making sure the law was clear that the way the EEOC issued the notice in this instance was not right. We accomplished that goal.”

The DHS was represented by James M. Duttera of the Office of Attorney General of New Jersey. The office declined to comment on the court’s decision.