In the Seventh Circuit, a district court gets snagged on the seemingly straight-forward rule that an employee’s 90 days to file a Title VII lawsuit runs on the claimant’s receipt — not the agency’s mailing — of the EEOCs right-to-sue letter. In the First Circuit, a district court gets a pass (under the aegis of abuse-of-discretion review) for an ADA instruction that even the panel admits was “awkward” and possibly incomplete.
Prince v. Stewart, No. 08-1632 (7th Cir. Sept. 2, 2009): A pro se litigant, terminated from the Chicago Teachers Union in 2004, first files his Title VII/ADEA/§ 1981 in November 2005, but it’s dismissed without prejudice at the end of 2006 because he had not yet received his right-to-sue letter. (One mystery unresolved by the opinion: what became of the § 1981 claim, and the supplemental breach of contract claim, which have longer limitations periods and are not subject to the right-to-sue?).
Thereafter, according to the opinion, “The EEOC finally sent him a right-to-sue letter in April 2007, but it was returned by the post office as unclaimed. The Commission mailed the letter again, and Prince acknowledges having received it on July 25. Nine days later he filed a motion to reopen his case. The district judge granted the motion, as he was authorized to do by Rule 60(b)(6) however the motion was captioned.” But then the plaintiff withdrew that action (because he was leaving town and would not be able to pursue it), and the district court granted the voluntary dismissal without prejudice.
Finally, 90 days after the plaintiff acknowledged receiving the right-to-sue letter, plaintiff files a second motion to re-open. This, the district court denies, “stating that if Prince wanted to pursue his claims he would have to bring a new lawsuit. He could not do that, because by now the statute of limitations had expired.”
On appeal, the Seventh Circuit reverses. After resolving whether it had appellate jurisdiction (regarding whether the notice of appeal was filed within 30 days of an appealable order), it holds that dismissal could not be supported upon the affirmative defense of limitations:
“The defendants argue that the second motion to reopen was properly denied because Prince filed it 97 days after the EEOC re-sent the right-to-sue letter. But the limitations period in both Title VII and the ADEA begins to run, as we said, when the claimant receives the letter, not when it was sent, and Prince claims to have first received it on the ninetieth day before he filed the motion. The defendants, who have the burden of proving that the suit was untimely, may be able to prove that Prince received the first mailing but deliberately or carelessly refused to open it, or was otherwise responsible for not reading it; in either of those events the limitations period would have begun to run in April 2007 and his suit would be time-barred. A motion to reopen may not be used to extend the statute of limitations when there is no ground for tolling the statute. But at this stage there is no indication of why the letter initially was unclaimed, and so we must (though only provisionally) take Prince at his word that, through no fault of his own, he first received it on July 25.” [Citations omitted.]
The court also notes that equitable tolling might excuse even a belated filing in this case: “In this case, by granting the plaintiff’s initial motion to reopen, the district court lulled him into thinking he didn’t have to refile his complaint; and lulling a pro se litigant provides a valid basis for invoking equitable tolling to stop the running of the statute of limitations . . . .”
DeCaro v. Hasbro Inc., No. 09-1054 (1st Cir. Sept. 2, 2009): An ADA and a Massachusetts state law disability-discrimination claim goes down to defeat in a jury trial. The plaintiff takes an appeal on instructional error. The main contention is an instruction that the jury could consider the plaintiffs application for SSDI disability to estop the plaintiff’s claim that he is a “qualified individual” for purposes of standing under the ADA. The jury charge stated:
“Defendant has pointed to the fact that, while plaintiff was out on voluntary medical leave, plaintiff applied for, and has been continuously receiving, social security disability benefits since November 2005. Plaintiff’s application for those benefits included representations about the physical requirements of the first pressman position and statements about his physical limitations at the time of his application. You should examine the statements made by plaintiff in the application for social security disability benefits and consider whether these statements constitute admissions by him that he was in fact unable to perform the essential functions of his job, with or without a reasonable accommodation, at the time he completed his social security disability application. A plaintiff is not permitted to say one thing in applying for disability benefits and another thing, entirely the opposite, in seeking damages for discrimination.
“In making this examination you should consider all the facts and circumstances surrounding the submission of the application. To the extent that you find that statements made in plaintiff’s application for social security disability benefits were made by plaintiff, you may decide that they reflected the truth when made, and you may consider them as evidence related to Mr. DeCaro’s ability to perform the essential functions of the first pressman position, with or without accommodation, on the dates he attempted to return to work.
“At the same time, keep in mind that the standard for determining eligibility for social security disability benefits is different from the standard you must apply in determining whether plaintiff was able, with or without reasonable accommodation, to perform the essential functions of his job. The fact that Mr. DeCaro received social security disability benefits is not in itself necessarily fatal to a claim that he was able to perform the essential functions of his job. However, the receipt of benefits and the statements made by plaintiff in applying for them are items of evidence you may consider in making this determination.” [Emphasis added.]
On appeal, plaintiff complains that the above-highlighted language — the judge’s attempt to summarize Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) — tilted the analysis in favor of the employer.
The First Circuit, under the ambit of the abuse-of-discretion standard, affirms. Though uncomfortable with the instruction, and hardly endorsing it, the panel holds that the jury charge is a whole is not erroneous:
“[We believe that the district court’s SSDI instruction comports with the thrust of the Cleveland Court’s holding. Pertinently, the court told the jury that the mere ‘fact that Mr. DeCaro received [SSDI] benefits is not in itself necessarily fatal to his claim.’ The court further told the jury to ‘consider’ whether the statements made by the plaintiff in applying for SSDI benefits constituted ‘admissions’ as to his inability to perform the essential functions of his job. In resolving that point, the jurors were urged to ‘consider all the facts and circumstances.’ Finally, the court warned the jury to ‘keep in mind that the standard for determining eligibility for [SSDI] benefits is different from the standard you must apply in determining whether plaintiff was able, with or without reasonable accommodation, to perform the essential functions of his job.’ These are correct statements of the law, consistent both with Cleveland and with Massachusetts law.”
The panel nevertheless states (in a footnote) that the highlighted expression was an “awkward location, “and the panel walks away from the instruction otherwise: “Let us be perfectly clear: we do not suggest that the instruction given by the district court would necessarily be sufficient in all circumstances. Consequently, we do not foreclose the possibility that, in a future case, a different or more detailed instruction might be required, depending on the facts and the issues.”
The plaintiff also loses out on a challenge to the “reasonable accommodation” instruction.