Daily Developments in EEO Law
by Paul Mollica (c) 2005
Monday, October 24, 2005
The Seventh Circuit continues to split with the Second, Ninth and Eleventh Circuits over the legality — under the Equal Pay Act — of hiring laterals at their prior salary and a raise, even where it results in pay disparities between men and women: Wernsing v. Dep’t of Human Services, No. 04-2225 (7th Cir. Oct. 21, 2005) .
Plaintiff and her male counterpart at a state agency both had the same title and accountabilities, and were hired at the same time. But while plaintiff’s pay went from $1,925 to $2,478 monthly, the male employee’s salary rose even higher, from $3,399 to $3,739. Despite the vastly different outcomes, the Seventh Circuit held that the practices were not “on the basis of sex,” or (alternatively) constituted a “factor other than sex” under 29 U.S.C. § 206(d)(1)(iv).
The panel recognized that the three circuits cited above required employers to justify this method of setting salaries by an “acceptable business reason.” But whatever the other courts’ reasons, the Seventh Circuit reaffirmed that it is no guild. Citing prior circuit law (and support from the Eighth Circuit as well), it restated that an employer owes no explanation in defense of this practice other than the non-discriminatory basis for the differential. The panel likewise thumped the notion that this practice inherently perpetuates prevailing, societal wage discrimination: “Wage patterns in some lines of work could be discriminatory, but this is something to be proved rather than assumed. Wernsing has not offered expert evidence (or even a citation to the literature of labor economics) to support a contention that the establishments from which the Department recruits its employees use wage scales that violate the Equal Pay Act and thus discriminate against women.”
It even questioned whether the background discrimination that pervaded the market when the EPA first became law continues to exist. “That was indeed the view of many employers in 1963, the year the Equal Pay Act came into force, one year before Title VII forbade sex discrimination in private employment, and nine years before Title VII was extended to public employment. But what relevance can this have now that anti-discrimination statutes have been in force for more than two generations?”
This is one of those long-festering splits that warrants Supreme Court and Congressional action, as nationwide employers continue to navigate between the conflicting instructions of the courts of appeals.
Friday, October 21, 2005
Up until now, only a few isolated district courts have held that an employee’s failure to cooperate with an EEOC investigation could be grounds for dismissing a Title VII or ADEA private action. But now we have the Tenth Circuit, Shikles v. Sprint/United Management Company, No. 03-3326 (10th Cir. Oct. 20, 2005), upping the ante and holding — under its distinctive view of the exhaustion requirement — that failure to cooperate deprives the federal court of subject matter jurisdiction in an ADEA case. This means (presumably) that (1) the issue can be raised at any time, even sua sponte by the court, and (2) as the proponent of jurisdiction, the burden of proving cooperativeness rests with the plaintiff. It is a head-turning opinion and absolutely essential reading for practitioners in this area.
Admittedly, the opinion puts the employee’s behavior in a pretty bad light: over three months, the charging party blew off three interviews, didn’t return calls and didn’t submit requested materials. Worse yet, for at least part of the time he was represented by counsel. The two were warned in writing that if they cancelled a third scheduled interview, the investigator would recommend dismissing the charge. They cancelled the third interview. They subsequently filed the employee’s lawsuit upon the expiration of the 60-day jurisdictional period (29 U.S.C. § 626(c) and (d)). The district court granted summary judgment on the argument that the plaintiff failed to exhaust administrative remedies by not cooperating with the investigator.
After observing that the ADEA — as with Title VII and the ADA — makes the timely filing of a charge a prerequisite to suit, the panel elaborated on the premises of the exhaustion requirement. It found that the conciliation model impressed upon the various EEO statutes requires something more than filing a charge and waiting for the time to expire. Under prior case law (under Title VII and the ADA), the court had implied a “good faith” requirement to cooperate with the commission and provide information to allow evaluation of the charge. The court found that the ADEA was indistinguishable, and articulated the standard of cooperation expected under the EEO acts:
“Accordingly, we hold that a private sector employee must cooperate with the EEOC in order for the employee to exhaust his or her administrative remedies under the ADEA. While we hold that a private sector employee must cooperate with the EEOC, we emphasize that compliance must be judged by commonsense standards. Perfect cooperation with the EEOC is not required. Rather, a claimant must merely cooperate as part of a good faith attempt to allow the EEOC a reasonable opportunity to reach the merits of his or her charge. [Citation]. It is only when a plaintiff’s non-cooperation effectively prevents the EEOC’s investigation and conclusion efforts such that the EEOC proceeding essentially becomes a sham or meaningless proceeding that a charging party’s non-cooperation will amount to a failure to exhaust administrative remedies. Thus, we expect that it will be rare for a charging party’s non-cooperation to be a basis for the defendant to challenge the court’s jurisdiction. Further, most claimants will provide at least minimal cooperation with the EEOC as it is ordinarily in the self-interest of a claimant to attempt to resolve his or her case quickly and informally with the benefit of the EEOC’s expert assistance.”
The EEOC filed an amicus brief opposed to the court’s super-imposition of a “cooperation” standard on the charge-filing requirement. But the court held the agency’s amicus position, and even its various regulations governing charge processing (29 C.F.R. §§ 1601.18, 1601.28 and 1626.18), required no deference, because none of the above provided any “indication of whether the agency has been thorough in its consideration of the issue.”
So in the end, the court vacated the summary judgment, and ordered dismissal for lack of jurisdiction, based on its de novo reading of the history of the plaintiff’s behavior. The court thus plants another mine in the no-man’s-land of civil rights litigation.
Lawyer’s note: As a professional matter, I’ve never faced a situation where I was so at odds with the EEOC that intransigence made more sense than cooperation. The above scenario, therefore, seems strange and alien. “Minimal cooperation,” be that the standard, surrenders nothing. But there are employees, a lot of them, who resent and suspect prying by government agencies, even agencies that may be trying to help them. And there are lawyers, more than few, who will suppose they only need wait out the 60 (ADEA) or 180 (Title VII, ADA) days, snag their right to sue letter (for the latter), and file away. This case is the warning shot across the bow: that strategy could land you a big fat zero.
Thursday, October 20, 2005
Has the Katrina flood ignited a renewed compassion for the dispossessed in the New Orleans-based Fifth Circuit? A week ago, that court reversed summary judgment for a Tunica, Mississippi casino poker dealer in a race discrimination case. Jones v. Robinson Property Group, No. 04-60668 (5th Cir. Oct. 11, 2005) (see below entry for 10/12/2005).
This week, in its second published EEO opinion, it again reverses summary judgment, this time for a library researcher gradually going blind in Baton Rouge. Cutera v. Bd. of Supervisors of Louisiana State University, No. 04-3110 (5th Cir. Oct. 18, 2005) . Six days after she told her employer that she had trouble reading type and handwriting — the same day she was scheduled to meet with a vocational rehabilitation counselor — the foundation that her paid plaintiff’s salary fired her.
The reviewing panel (including recent SCOTUS hopefuls Emilio Garzand Edith Jones) found that the record presented genuine issues of material fact on two issues. First, it found a triable issue of fact about whether plaintiff was a qualified employee with a disability. It held that a jury could find that she was substantially limited in the major life activity of seeing, where she nearly lacked central vision, her condition could not be corrected or mitigated and she would progressively lose all of her sight. Second, it held that the foundation’s act of firing an employee who asked for a vocational therapist may have violated her right to reasonable accommodation. “An employer may not stymie the interactive process of identifying a reasonable accommodation for an employee’s disability by preemptively terminating the employee before an accommodation can be considered or recommended. In this case, [he boss’s] awareness of Cutrera’s meeting with a rehabilitation counselor and her intention to return to work triggered the LSU Foundation’s obligation to participate in an interactive process with Cutrera to attempt to identify a reasonable accommodation for Cutrera’s disability.”
Good for the Fifth Circuit! Justice is served.
Wednesday, October 19, 2005
The Judicial Conference of the United States last year issued a proposed Rule 32.1, which if approved would permit the citation in briefs of opinions, orders, or other judicial dispositions that have been designated “not for publication,” “non-precedential,” etc. It would supercede the local rules in effect in a number of circuits barring citation of unpublished opinions. The rule awaits Supreme Court review, and transmittal to Congress, and would apply to decisions issued on or after January 1, 2007.
The peril in this “reform” is that — in the nether world of unpublished orders — weak advocacy combined with sloppy drafting can lead to bad law. Here’s a perfect example: Hart v. Transit Management of Racine, No. 02-4291 (7th Cir. Aug. 17, 2005), an formerly unpublished order then published by the court on October 13, 2005. The request to publish the opinion came from a management attorney in Indianapolis, not (apparently) otherwise involved in the case — but who obviously knew a good thing for his clients when he saw it.
There, the court holds that section 1981 does not support a cause of action of retaliation for opposing race discrimination. The entire explanation was as follows: “. . . § 1981, in contrast, encompasses only racial discrimination on account of the plaintiff’s race and does not include a prohibition against retaliation for opposing racial discrimination, see Little v. United Tech., Carrier Transicold Div., 103 F.3d 956, 960-61 (11th Cir.1997).”
But the Eleventh Circuit case cited by the Seventh Circuit was itself superceded one year later by Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1412 (11th Cir. 1998), which found such a cause of action. More recently, the Fifth Circuit has found in a fully-reasoned analysis that the amended section 1981(b) supports a cause of action for retaliation. Foley v. University of Houston System, 355 F.3d 333, 339 (5th Cir. 2003) (“[w]e hold that an employee’s claim that he was subjected to retaliation because he complained of race discrimination is a cognizable claim under § 1981(b)). And the Supreme Court just last term held that retaliation for protesting sex discrimination in high school athletics constitutes “discrimination” because of sex under Title IX, despite the absence of a specific anti-retaliation section. Jackson v. Birmingham Bd. of Educ., 125 S. Ct. 1497 (2005).
But none of this makes it into the Seventh Circuit’s analysis, which is certainly wrong (and creates an unnecessary split in the circuits), but is now the law of the circuit until reversed en banc (or by a local Circuit Rule 40 proceeding). It also makes a great deal of difference to employees, because the much longer limitations period (four years) and uncapped damages available under section 1981 (versus Title VII) were yanked away in those two sentences. For such employees, pushing this half-fledged opinion into print hardly served the interests of justice.
UPDATE: ON THE OTHER SIDE OF THE DIVIDE, THE ELEVENTH CIRCUIT YESTERDAY DE-PUBLISHED A REVERSAL OF SUMMARY JUDGMENT FOR A PLAINTIFF IN AN EEO CASE, FORMALLY PUBLISHED AT GREEN v. ELIXIR INDUSTRIES, INC., 407 F.3D 1163, 95 FEP 1151 (11TH CIR. 2005).
Tuesday, October 18, 2005
EEOCv. Continental Airlines, No. 04 C 3055 (N.D. Ill. Oct. 11, 2005) (Keys, Mag. J.) (no link presently available), rejects defense counsel’s attempt to tramp on the agency’s investigative work product. The charging party, Alaini Mustafa, alleged discrimination, harassment and retaliation. In litigation, the Commission declined to turn over a memo prepared by one of its investigators (Mr. Graden) in the course of processing her charge. Mr. Graden was deposed about the creation of the memo, and the employer then moved to compel production based on a frontal challenge to the investigative privilege and, alternatively, waiver of the privilege.
The magistrate judge found first that the memorandum was indeed privileged, rejecting an argument that the contents — characterized by the employer as “purely factual” — did not partake of the privilege. “Mr. Graden’s report does not contain all facts unearthed in the investigation, and is instead a compilation of those facts deemed most important,” and had summaries of witness testimony and analysis of defenses. The employer also failed to demonstrate that its need for the materials outweighed the agency’s interest in confidentiality.
Second, that the investigator reviewed the memorandum before his deposition and testified about its contents did not constitute waiver. Only a deliberate and selective disclosure, such as to another agency or the public, might have justified overruling the privilege. Disclosure in a general fashion under compulsion of a deposition notice was not waiver. Moreover, Fed. R. Evid. 612 provided no basis for finding waiver. The rule states:
“if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. . . . “
The court noted that waiver under this rule is discretionary, not compulsory. Moreover, the court found that Mr. Graden’s testimony primarily concerned the EEOC’s internal processes, which was not relevant to the case, and the Commission did not attempt to take unfair advantage by allowing the investigator to review the document and then not disclose the contents.
Monday, October 17, 2005
Very little new going on in a Title VII national origin disparate pay case, Cardoso v. Robert Bosch Corp., No. 04-4026 (7th Cir. Oct. 14, 2005), but a trenchant reminder of where the Seventh Circuit stands on pretext.
The court rejected, as direct evidence, a statement by plaintiff’s manger speculating that he “had been hired at a lower salary than other buyers . . . ‘[B]ecause you’re Brazilian . . .[,] [Human Resources] think[s] that if you were in Brazil, you would not be making as much money as you are already making here.'” The manager was deemed not a decision maker because of a lack of involvement in setting salaries.
It then rejected, as indirect evidence, Cardoso’s rebuttal of the employer’s legitimate, nondiscriminatory criteria for setting incoming employees’ salaries higher (e.g. “incoming employee’s skills, experience, education, and work performance”). Bosch pointed to other reasons that would have support an equal or higher salary. While the outcome affirming summary judgment may be justified by the record (as explicated the panel opinion), the panel opinion appears to me to overstate the plaintiff’s rebuttal burden: “A pretext for discrimination is something worse than a business error-a lie or deceit designed to cover one’s tracks. . . . Rather than offering evidence that Bosch is lying about its reasons for the alleged disparate pay, Cardoso only presents a list of reasons why he thinks Bosch failed to recognize his true worth and compensate him accordingly.”
That is, an explanation unworthy of credence (interpreted in the light most favorable to the employee) may be insufficient to establish pretext, unless the explanation also looks like a deliberate lie. We recognize in daily life the difference between an implausible explanation (“it was broken before I got here”) and an eye-rolling prevarication (hiding the broken shards in your desk and denying any knowledge when they’re discovered). This panel would have us suppose that only the latter counts. The former is calculated to pick up subconscious but prohibited stereotyping, while the latter picks up only the crassest kind of bigotry. It is a debatable interpretation of Burdine and Reeves, but a common one in the case law.
Thursday, October 13, 2005
Not a discrimination case per se, but the Second Circuit asks — in a public-sector employment case — whether demanding a school teacher’s unconditional waiver of privacy over psychotherapist notes and other medical records violates substantive due process. O’Connor v. Pierson, No. 04-0224 (2d Cir. Oct. 11, 2005) (available on Second Circuit website) .
As the opinion relates, “In early 1999, the Wethersfield Board of Education received a number of complaints from students, their parents, and other teachers about O’Connor’s behavior. These complaints included allegations that O’Connor used foul language and made sexual remarks to students, yelled at a fellow teacher, and breached school security.” He was placed on leave while an investigation took place. Eventually, the board demanded a medical certification clearing the teacher to return. In particular, “[Superintendent] Pierson instructed O’Connor to schedule an appointment with Dr. Harold Schwartz, a psychiatrist, and enclosed a medical-records release form for O’Connor to sign. The release form would have authorized the recipient to release O’Connor’s medical records to Schwartz and to ‘the Wethersfield Board of Education . . . or any of [its] representatives.'”
Objecting to such a blanket release (including decades’ old psychological examinations and evaluations), the teacher brought suit. Summary judgment was granted on all claims. But while the court of appeals affirmed the procedural due process claims, it remanded substantive due process, under the familiar (though elusive) “shocks-the-conscience” formula:
“In contrast to the district court, we think that the Board’s demand that O’Connor release his medical records to the Board was arbitrary. Because the Board was not competent to independently evaluate those records, requesting them could serve no legitimate purpose. The Board, and the district court, may have been operating from the intuition that because we all make rudimentary assessments of mental competence in our daily lives – when, for example, we doubt a friend or relative’s sanity – lay people are somehow qualified to make such assessments in the workplace. But while psychiatry may not be an exact science, see Newman v. Bd. of Educ., 594 F.2d 299, 304 (2d Cir. 1979), it is nonetheless a discipline that can be practiced only by professionals.”
It found that the Board’s legal argument (that the demand for the medical records was justified by its need to personally evaluate the teacher’s fitness) contradicted its prior explanation for the release of records (Superintendent Pierson stated in an affidavit that she had no intention of reviewing O’Conner’s records, and requested them to merely to facilitate Dr. Schwartz’s evaluation). Thus, “Either Pierson’s affidavit is false or mistaken, or the Board’s argument before this court is.” Drawing inferences favorable to plaintiff, the panel concluded that “if the Board acted out of spite, or to keep O’Connor from teaching by whatever means necessary, then the Board’s actions, intended to oppress O’Connor and having burdened his right to privacy, would shock the conscience.”
Wednesday, October 12, 2005
Here’s the first post-Katrina EEO opinion published by the Fifth Circuit, Jones v. Robinson Property Group, No. 04-60668 (5th Cir. Oct. 11, 2005), and it is a win for the plaintiff. An African-American applied ten times, unsuccessfully, to work as a poker dealer at a casino in Tunica, Mississippi (a bend in the road on old Highway 61). Every time, a white dealer was selected instead; only after the plaintiff filed a charge with the EEOC did the casino hire racial minorities as dealers. Former employees at the casino also supplied testimony in plaintiff’s behalf.
The court of appeals, reversing summary judgment on the failure to hire claim, found direct evidence of discrimination:
“[Witness] Mims stated that she inquired why an African-American poker dealer was not hired and was told, by either [casino manager Ken] Lambert or his assistant, that ‘they hired who they wanted to hire and there were not going to hire a black person unless there were extenuating circumstances.’ She was then told by Lambert, or his assistant, that ‘good old white boys don’t want blacks touching their cards in their face.’ [Witness] Sam Thomas testified that in 1995, that Lambert told him that ‘maybe I’ve been told not to hire too many blacks in the poker room.’ It is incontrovertible that Lambert made the hiring decisions at Horseshoe and Presley as his assistant would have provided input, therefore, viewing the evidence in the light most favorable to Jones, the aforementioned evidence proves, without inference or presumption, that race was a basis in employment decisions in the poker room at Horseshoe. The evidence need not show that race was the sole basis in order to constitute direct evidence.”
Unfortunately for Jones, his retaliation claim went by the bar because he waited too long to add it to his complaint. The decision to deny leave to amend the complaint was affirmed.
Tuesday, October 11, 2005
Nobody botherd to tell the Eighth Circuit that they could take the day off for Columbus Day. Dated October 10, 2005, they issued this hum-drum affirmance of summary judgment in an ADA case, Sidney Simpson v. Des Moines Water, No. 04-1666 (8th Cir. Oct. 10, 2005) .
Monday, October 10, 2005
Any loyal readers recall Jeannie C. Riley’s huge 1968 country-crossover hit, “Harper Valley P.T.A”? A few lines to jog your memory:
I want to tell you all a story ’bout a Harper Valley widowed wife
Who had a teenage daughter who attended Harper Valley Junior High
Well her daughter came home one afternoon and didn’t even stop to play
She said, “Mom, I got a note here from the Harper Valley P.T.A.”
The note said, “Mrs. Johnson, you’re wearing your dresses way too high
It’s reported you’ve been drinking and running around with men and going wild
And we don’t believe you ought to be bringing up your little girl this way”
It was signed by the secretary, Harper Valley P.T.A.
As the story progresses, Mrs. Johnson trots down to the afternoon PTA meeting. There she lets loose on the town’s hypocrites, seated in the assembly, exposing their secret lives of drinking and carousing to public shame. It’s still a funny song (penned by Tom T. Hall, God’s gift to C&W), and packs a punch decades later.
I couldn’t help thinking of it when I read the latest from the Fourth Circuit, Willis v. Town of Marshall, NC, No. 03-2252 (4th Cir. Oct. 6, 2005) While not an employment case, it has (at its core) a moral for all plaintiffs.
It begins with the ungainly premise that there is a constitutional case in the right to dirty dancing in public. We read that the defendant-town grew upset with Ms. Willis’ piquant (though non-obscene) displays at a Friday night hoedown at the local community center, the “Depot.” Without a song in their heart, the panel majority wrote, “Community members were concerned about their children being exposed to Willis’s dancing, and a number of them complained to members of the Depot Committee. The Town contends that members of the Depot Committee repeatedly spoke to Willis about her dancing and asked her to ‘please curtail the provocativeness of her dances.’ J.A. 56. These requests were allegedly met with defiance. The Town says that rather than toning down her dancing, Willis began to dance even more provocatively.”
The dance organizers (under the aegis of the town government, hence the section 1983 case before us) banished her from future events. Ms. Willis hired up an attorney and tried to apologize, but with no results. So she sued.
And while the district court granted summary judgment on first amendment and due process claims, substantially affirmed by the Fourth Circuit (in two opinions totaling 26 pages), the panel reversed on one claim — a “class of one” equal protection claim based on Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). “According to Willis, the Town used its power to regulate the behavior of those attending events at the Depot arbitrarily, by singling her out for punishment, while refusing to punish others who danced or dressed similarly.” The town claimed that it had received no complaints of other lewd dancers at the event, but fatally for its defense “there is no evidence in the record demonstrating the absence of complaints. Whether complaints were or were not received is a matter wholly within the knowledge of the Town.” The failure of the town to furnish this information in discovery — or of the district court to grant the plaintiff relief under Fed. R. Civ. P. 56(f) to obtain that information — compelled reversal.
So what does this slice of life tell us as litigators for employees? Two lessons, at least. For one, never give up the search for the truth. Nothing in Anglo-American jurisprudence demands that courts or juries take a defendant’s word about anything. Just as Burdine requires the employer to present admissible evidence to meet the burden of production, a defendant can even be held to a negative assertion — make them prove that there were no complaints about other employees. Second, Rule 56(f) is an essential backstop to runaway summary judgment trains. It can buy you a critical toehold on appeal when all else looks lost.
Friday, October 7, 2005
I regret the long drought in entries, but I plead extenuating circumstances. During the past two weeks, there were just three reported EEO opinions in the federal courts of appeals, all in the Eighth Circuit and all routine affirmances of summary judgment. (Read about them, if you wish, in the Eighth Circuit case summaries.) (I won’t touch unpublished opinions, by the way — they’re icky, even if the Judicial Conference says I can cite them as precedent.)
I’ve put the last two weeks to use updating all of the circuit write-ups, even for the Tenth Circuit, which is still nevertheless under construction (although I was recently inspired by a trip to Utah to try to complete that page of the website).
Now that there are some new cases in the pipelines, I hope to resume regular writing here. Here’s the Eleventh Circuit’s recent take on the “receipt of . . . notice” requirement that triggers the 90-day limitations period under Title VII, the ADE and the like. Kerr v. McDonald’s Corp., No. 04-14465 (11th Cir. Oct. 6, 2005). As the per curiam panel writes:
“This appeal requires us to address whether the limitations period for filing an action pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 20 U.S.C. §§ 621-34, begins to run only upon actual receipt of a written notice of the right to sue or whether, under the test established in our circuit, a complainant’s actual knowledge that investigation of her claim has been terminated may be sufficient to cause the time for filing to begin running within a reasonable time after notice of the complainant’s requested right-to-sue notice has been mailed.”
The employees requested right-to-sue letters (by telephone) from the EEOC at the close of December 2002, and on the last day of that year, the EEOC unit supervisor signed them. Although the district office did not maintain records of actual mailing, its internal procedures and the condition of the EEOC files suggested a mailing date some time during the first week of January 2003. But both employees argued that they never saw the letters until they ordered their own EEOC files and obtained them by mail during February 2003. So some six weeks elapsed between the request for the letters and their “actual” receipt by the employees, pushing their limitations period out accordingly. So argued the plaintiffs, anyway.
The court of appeals — brows knitted — affirmed summary judgment against the plaintiffs on timing grounds. The Eleventh Circuit disavowed prior language in its opinions suggesting an “actual receipt” trigger, suggesting that such a rule would invite manipulation by employees who could purposefully avoid receipt of notice. Instead, the panel held, the limitations period accrued when the plaintiffs had inquiry notice of the termination of the EEOC’s investigation. That would have dated approximately back to when the employees first asked the EEOC to stop processing their claims. So the ninety days, by the Eleventh Circuit’s reckoning, was the presumed date that the right-to-sue letters ought to have arrived (the latest presumed date of mailing, January 9, 2003 + three-days grace under Fed. R. Civ. P. 6(e) for a mailing = 1/12/2003).
While this decision pivots on the plaintiffs’ personal requests for right-to-sue letters, it says nothing determinative about misdirected right-to-sue letters that the employee did not request. It does, however, cite (in footnote 8) a number of cases tolling limitations where the employee (by no fault of her own) didn’t know about the end of the EEOC’s investigation.