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 Many employees choose to file complaints of harassment and/or discrimination with the Equal Employment Opportunity Commission (“EEOC”) after being subjected to illegal employment practices in the workplace.  More often than not, and EEOC investigation results in the issuance of a right to sue letter which grants the individual 90 days to file their respective lawsuit in a Court of law.  Being that many individuals complete the EEOC process on their own, it is not unusual for employment law attorneys to get contacted only after an aggrieved employee has been issued a right to sue letter.  Of course, the 90 day restriction can pose a tight time restriction on employees who have not contacted an employment lawyer before their receipt of a right to sue letter from the EEOC, but one obvious question is often posed when determining whether an employee’s Federal claims of discrimination are time-barred: Does the 90-day time-period begin to run on the day that the right to sue letter was written by the EEOC or when the right to sue letter is actually received by the charging employee?

The Second Circuit Court of Appeals recently addressed this question in the case of Tiberio v. Allergy Asthma Immunology of Rochester.  In Tiberio, the aggrieved employee filed her lawsuit in Federal Court 96 days after the EEOC issued her right to sue letter.  The Court preliminarily held that the 90 day time-period outlined in an EEOC right to sue letter began to run on the day that the employee and/or the employee’s attorney received the right to sue, but further clarified that, absent sworn testimony explaining a reasonable delay in the actual receipt of the right to sue letter, there will remain to be a presumption that a mailed document is received three days after its mailing. The employee, in Tiberio, presented no evidence as to how and/or why she received her right to sue letter on any date after the presumed three day period following its mailing, and, as such, the Second Circuit dismissed her Federal claims of discrimination for being filed 3 days too late.

Employment law attorneys know that an employee should never wait on a right to sue letter, and that it is best to file an aggrieved employee’s Federal causes of action well within the time-period outlined in the EEOC’s notice of right to sue.  The Tiberio decision, however, does imply that an employee’s Federal causes of action may be filed outside of the 90 day time-period (93 days with the presumed mailing time) so long as his and/or her Complaint is accompanied by sworn testimony explaining a reasonable set of facts which prevented the employee from receiving the right to sue letter within three days of the date it was issued by the EEOC.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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