Hayes v. N.J. Dept. of Hum. Servs., 2024 U.S. App. LEXIS 17768 (U.S. App. 3d Cir. July 19, 2024) (Freeman, J.)
Hayes v. N.J. Dept. of Hum. Servs., United States Court of Appeals for the Third Circuit decided, July 19, 2024.
OPINION OF THE COURT
FREEMAN, Circuit Judge.
Cephia Hayes sued her employer for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The District Court held that Hayes’s suit was time-barred because she filed it more than 90 days after learning that the Equal Employment Opportunity Commission (EEOC) would not pursue her claim. To reach this conclusion, the Court determined that Title VII’s 90-day clock started to run when an EEOC staffer emailed Hayes’s lawyer and uploaded a document to the agency’s online portal. Because neither action provided notice sufficient to start the clock, we will vacate and remand.
Before a plaintiff may file a lawsuit under Title VII of the Civil Rights Act of 1964, she must exhaust her administrative remedies by filing a charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 595, 101 S. Ct. 817, 66 L. Ed. 2d 762 (1981). If the EEOC declines to pursue a plaintiff’s charge, it “shall . . . notify” the plaintiff. 42 U.S.C. § 2000e-5(f)(1). Then, “within ninety days after the giving of such notice[,] a civil action may be brought.” Id.
Title VII’s 90-day clock is “strictly construed.” Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). While it “is not a jurisdictional predicate, in the absence of a recognized equitable consideration, [we] cannot extend the limitations period by even one day.” Mosel v. Hills Dep’t Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986)
Under the statute, the 90-day clock begins “after the giving of . . . notice” that the EEOC has dismissed the charge of discrimination and that a suit may be brought. 42 U.S.C. § 2000e-5(f)(1). The EEOC usually gives that notice in the form of a right-to-sue letter. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999). When it does so, the 90-day clock typically begins when the plaintiff (or her lawyer) receives the letter.
Hayes and her lawyer claim that the right-to-sue letter never arrived in the mail and that neither of them received it until the EEOC emailed a copy to the lawyer’s office manager on August 27. The parties also dispute whether the March 11 email from the EEOC investigator to Hayes’s lawyer or the posting of the right-to-sue letter to the EEOC’s online portal started the 90-day clock.
Hayes has introduced enough evidence to rebut the three-day presumption and defeat summary judgment. The declarations from Hayes and the office manager support a finding “that receipt was delayed beyond the presumed period.” Payan, 495 F.3d at 1126. They create a dispute of material fact sufficient to defeat summary judgment on timeliness. See Ebbert, 319 F.3d at 117 (holding that a plaintiff’s deposition testimony denying receipt of the right-to-sue letter was enough to defeat summary judgment); Witt v. Roadway Express, 136 F.3d 1424, 1430 (10th Cir. 1998) (“[E]vidence denying receipt creates a credibility issue that must be resolved by the trier of fact.”). The letter’s issuance during the period when COVID-19 shutdowns began in the United States also supports Hayes’s theory that it was either misdelivered or never mailed. A jury therefore must resolve when Hayes or her lawyer first received the right-to-sue letter.
