Duron v. Albertsons LLC, No. 07-30290 (5th Cir. Feb. 17, 2009); LULAC of Texas vs. State of Texas, No. 08-50581 (5th Cir. Feb. 17, 2009); Ahlmeyer v. Nevada System of Higher Ed., No. 06-15654 (9th Cir. Feb. 18, 2009)

| Feb 17, 2009 | Daily Developments in EEO Law |

The Fifth Circuit hands a procedural win to a Title VII plaintiff (with an assist from the EEOC as amicus), on a timing issue over receipt of the right-to-sue letter. On the same day, the court also enters an unpublished order (with a partial dissent) on a potentially far-reaching civil rights dispute under the Voting Rights Act. And the Ninth Circuit nixes an age discrimination case filed against a state agency under 42 U.S.C. § 1983.

Duron v. Albertson’s LLC, No. 07-30290 (5th Cir. Feb. 17, 2009):  The plaintiff’s EEOC right-to-sue letter was dated “October 4, 2004.” The plaintiff denied receiving it until August of 2006.  When did the 90 days to file a civil action commence?

In a short per curiam opinion, the panel holds that the district court erred in granting summary judgment on the timing issue.  It declines to apply the “mailbox” presumption of receipt of a government notice, where the fact was contested by admissible evidence (the plaintiff’s affidavit). It also faults Albertson’s for a lack of proof at the summary judgment stage:

“Albertson’s has not produced any business records or other physical evidence that the EEOC sent the notice of the right to sue. Albertson’s submitted no affidavits in support of the mailing. Additionally, Albertson’s has not produced any evidence that it received the copy of the notice the EEOC allegedly sent. Instead, the only evidence of mailing that Albertson’s provided was a copy of the EEOC notice of right to sue with ’10/4/04′ written in the ‘Date Mailed’ field. In contrast, Duron provided a sworn affidavit that she did not receive the EEOC’s notice until August 2006, and she provided evidence that she and her attorney made several attempts to contact the EEOC to inquire as to the status of her case. Further, her attorney’s July 2006 letter indicated that Duron’s attorney had discussed her case with an EEOC official before and
advised the EEOC that Duron wanted to pursue her rights in this case.”

The panel allows, in passing, that the defendant might attempt to prove at trial a lack of diligence by the plaintiff about her duty to monitor the status of her proceedings in the EEOC.  It also has a few unkind words for the EEOC:  “In closing, we note that if the EEOC had followed its former practice of sending right-to-sue letters by certified mail, this dispute would, in all likelihood, have never arisen.”

LULAC of Texas vs. State of Texas, No. 08-50581 (5th Cir. Feb. 17, 2009):  The various plaintiffs in this case took an appeal from the district court’s refusal to refer the case to a three-judge panel, and the dismissal of the claim.  In brief, “Plaintiffs’ suit challenges the Party’s method of allocating delegates to its nominating conventions based on raw voter turnout, a procedure that was not precleared by the United States Attorney General or the District Court for the District of Columbia.” 

The panel reverses the ruling (except as to the State of Texas), holding that there were unresolved, non-frivolous issues about whether the challenged practice was covered under section 5 of the Act that must be resolved by a three-judge panel: 

“The coverage issue turns on: (1) whether the delegate-allocation method is a ”standard, practice, or procedure with respect to voting’ within the meaning of § 5′; (2) whether the method constitutes a ‘change’ to the covered jurisdiction’s baseline, i.e., ‘the most recent practice that was both precleared and ‘in force or effect’-or, absent any change since the jurisdiction’s coverage date, the practice that was ‘in force or effect’ on that date’; and (3) whether the Party is a ‘political subdivision’ subject to § 5.” [Citations omitted.] 

The opinion also dispatches with objections to justiciability, possible waiver, and laches.  Surprising to me that the decision did not warrant publication, though the opinion is shorn of  elaboration (just six pages long), perhaps owing to a need to expedite already-unnecessarily delayed proceedings.

Judge Garza, in a separate opinion, would also reverse the dismissal of the state:

“I am unaware of any case in this Circuit or any other dealing with 1 the issue. The Supreme
Court’s Voting Rights Act jurisprudence does not foreclose the possibility that political party activities maybe give rise to some obligation on the part of the state, especially where, as here, state law mandates that the party rules be filed with the state and provides a mechanism of enforcement for those rules. See TEX. ELEC . CODE ANN . §§ 163.002, 163.005 (requiring political parties to adopt rules that are consistent with state law); § 163.007 (making political party rules enforceable by writ of mandamus). Thus, while I make no statement as to the merits of this claim, it does not meet the “wholly insubstantial” standard so as to be excluded from remand to a three-judge panel for review.”

Ahlmeyer v. Nevada System of Higher Ed., No. 06-15654 (9th Cir. Feb. 18, 2009): The Ninth Circuit joins the Fourth, Fifth and Tenth Circuits in holding that section 1983 does not create an alternative cause of action for Equal Protection on the basis of age in public employment.  The panel lines up with the other courts in finding that the ADEA provides the exclusive remedy for such claims. This is largely founded on the precept that, under some federal civil rights statutes, “Congress has evinced an intent to preclude such claims through other legislation” (citing Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19-20 (1981)).  The panel rejects as unpersuasive the decisions of several federal district courts that held that the two remedies could co-exist.

A keen observer might protest, “but, don’t courts allow public employees to bring Title VII and § 1983 claims together?”  True, the panel allows, but it finds Title VII and the ADEA to be distinguishable.  The ADEA is different (supposedly) because Congress meant for relatively older persons to have more limited scope of liability and relief, and that Congress’s judgments in this arena ought not be circumvented.  Yes, this would meant that relatively older employees have no cause of action at all against state employers (Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), found no waiver of state Eleventh Aemendment immunity to ADEA claims), but que sera, sera, etc., etc.

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