Fifth Circuit Remands Title VII Case to Consider if EEOC’s Two Right to Sue Notices Misled Employee

Texas Employment Law Update

Russell D. Cawyer

Russell D. Cawyer

July 18, 2023 09:21 AM

Fifth Circuit Remands Title VII Case to Consider if EEOC’s Two Right to Sue Notices Misled Employee

By Russell Cawyer on April 3, 2023

Posted in Case Summaries, Discrimination

Employees bringing claims under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act must exhaust their administrative remedies with the EEOC prior to filing suit against an employer. These administrative remedies include timely filing charge of discrimination, obtaining a right to sue letter and timely filing the lawsuit within 90 days after the receipt of the right to sue letter. There are two general exceptions to the rule that suits after to be filed within 90 days of receipt of the right to sue letter –equitable estoppel and equitable tolling. Equitable estoppel addresses misconduct of the employer/respondent that results in the employee missing his procedural deadlines. Equitable tolling involves tolling caused by the EEOC misleading the employee on the nature of his rights. This case involved equitable tolling where the plaintiff files an untimely lawsuit because the plaintiff is misled by the EEOC about this filing deadlines.

In Berstein v. Maximus Federal Services, Inc., Kevin Berstein was fired after he was accused of sexual harassment. Berstein filed a charge of discrimination with the EEOC alleging that he was sexually harassed by two female co-workers and then terminated in retaliation after he reported the harassment to management. The EEOC closed its investigation and sent its and notice of right to sue letter to the employee’s attorney. Because the Commission did not have the employee’s correct address, the employee did not receive the initial right to sue letter. Thereafter, and within the 90 days to initiate a lawsuit, the EEOC sent a second right to sue letter to the employee and his attorney. The second right to sue letter inaccurately stated that the employee had 90 days from the second letter to initiate a lawsuit. The employee filed his lawsuit within 90 days of the second notice.

The employer moved to dismiss the case arguing that since the plaintiff had not filed suit within 90 days of the initial right to sue notice, the claim was barred. The district court agreed stating that this was not an exceptional case where equitable tolling was appropriate and that Berstein’s counsel’s receipt of the initial right to sue letter was sufficient to commence the filing deadline for the lawsuit.

On appeal, the court of appeals agreed that there was no dispute that the employee’s attorney’s presumptive receipt of the initial right to sue letter commenced the 90-day limitations period for filing suit even though it was never received by the employee. Berstein argued, however, that the deadline for filing suit should be equitable tolled because the EEOC’s second right to sue letter mislead him about the nature of his rights as to when he had to file his lawsuit. Noting its past precedent in a two-letter filing case, the Fifth Circuit stated that where the EEOC makes an affirmatively incorrect statement about the nature of plaintiff’s, equitable tolling might be available. Because the district court failed to address or distinguish this past precedent or explain why equitable tolling did not apply in this case, the Fifth Circuit reversed and remanded the case for further consideration as to whether the EEOC’s second notice of right to sue that said the employee had to file suit within 90 days of that letter mislead the plaintiff about his filing deadlines.

You can download the case here.

Tags: EEOC, Equitable Tolling, Right to Sue Notice, two-letter filing case

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