Second Equal Employment Opportunity Commission (EEOC) Right-To-Sue Letter on Same Disability Discrimination Charge Cannot Save Late-Filed Americans with Disabilities Act (ADA) Claim; First Circuit Rejects Equitable Tolling Argument
Judge Selya’s recent First Circuit opinion in Rivera-Diaz v. Humana Insurance of Puerto Rico, Inc., hammers home the importance of strictly abiding by Title VII’s procedural requirements for filing discrimination claims in federal court under the Americans with Disabilities Act (ADA) – in particular the requirement that a plaintiff must file his or her complaint no later than 90 days after the EEOC issues a right-to-sue letter.
In Rivera-Diaz, the First Circuit dismissed Plaintiff Giovanni Rivera-Diaz’s disability discrimination claim against his employer because it was filed well after the 90-day deadline expired. What makes this case interesting is that Rivera-Diaz did, within that 90-day period, file a second charge with the EEOC, which reiterated the very same charge of disability discrimination against his employer for which he was issued the first right-to-sue letter (and it also included a new retaliation claim). The First Circuit squarely rejected Rivera-Diaz’s argument that his second EEOC charge equitably tolled the deadline for filing his complaint in federal court.
In deciding that Rivera-Diaz’s second EEOC charge could not save his disability discrimination claim, the First Circuit reasoned that equitable tolling is to be used sparingly and should be applied only when a claimant misses a filing deadline for reasons beyond his control. The subjective—and incorrect—belief of a claimant’s lawyer that filing a second EEOC charge within the 90-day filing period would restart the clock is simply not an appropriate use of equitable tolling.
The court further rejected Rivera-Diaz’s contention that, because the EEOC issued a second right-to-sue letter based on his second EEOC charge, it effectively erased the first right-to-sue letter. Although the EEOC may reconsider and vacate such determinations, the court noted that the record in this case reflected no intention on the part of the EEOC to vacate Rivera-Diaz’s first right-to-sue letter.
For complainants and their counsel, Judge Selya’s opinion is a reminder that Title VII’s procedural rules (which the ADA follows) are unforgiving. Flawless internal docketing is critical to avoiding dismissal of your claims without even getting to the merits. And, if you wish to employ an argument that a subsequent right-to-sue letter displaces its predecessor, you better be sure that you moved for reconsideration or to vacate the first letter before the EEOC.
For employers, Rivera-Diaz is extra assurance that 90 days means 90 days. If ever you receive service of a complaint for discrimination, step one is to check that these procedural requirements have been met. You may be able to save yourself a lot time and money with a quick motion to dismiss for failure to timely file.