Recently, one of our employment attorneys sent a notice of claim to an employer on behalf of a wrongfully fired client. In an amenable communication, opposing counsel contacted our office on behalf of his employer client. He suggested that as a preliminary matter, counsel enter into a tolling agreement to extend the filing date of our employee’s Equal Employment Opportunity Commission (“EEOC”) charge against his client. Filing a charge with the EEOC is a prerequisite to filing any lawsuit under Title VII of the Civil Rights Act of 1964, which prohibits based race/color, gender, gender identity, sexual orientation, national origin, and religion. To that end, opposing counsel suggested that during the tolled time, we work together to resolve the matter between parties.
How much time do you have to file an EEOC charge after you have been fired?
If you have been fired from your job and you believe that the termination was based on discrimination, you generally have 180 calendar days from the date of the discriminatory action to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). However, if you live in a state that has its own anti-discrimination laws and agency, the time limit may be extended to 300 days. It’s important to note that failing to file a charge with the EEOC within the applicable time limit may result in losing your right to pursue a discrimination claim.
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Can you agree with your employer to extend the deadline to file a charge with the EEOC?
While opposing counsel’s offer is attractive because it would tentatively give counsel additional filing time, EEOC does not permit time limits to be tolled by agreement of counsel. Pursuant to the EEOC’s website, eeoc.gov, “Time limits for filing a charge with EEOC generally will not be extended while you attempt to resolve a dispute through another forum such as an internal grievance procedure, a union grievance, arbitration or mediation before filing a charge with EEOC. Other forums for resolution may be pursued at the same time as the processing of the EEOC charge.” After speaking with an EEOC investigator, we confirmed that attorneys cannot, for any reason, make agreements to toll EEOC time limits required for filing a charge of beyond the 180 and/or 300 calendar days.
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Is there anyway to file an EEOC charge passed the deadline?
The Doctrine of Equitable Tolling is a rare and limited exception to the general EEOC filing rule exists. “The filing of a timely charge with the EEOC is ‘a requirement that, like a statute of limitations, is subject to … equitable tolling.’” Shempert v. Harwick, 151 F.3d 793, 797 (8th Cir.1998), cert. denied, 525 U.S. 1139, 119 S.Ct. 1028, 143 L.Ed.2d 38 (1999) (citation omitted). However, the doctrine of equitable tolling is a limited one “reserved for circumstances that are truly beyond the control of the plaintiff.” Shempert, 151 F.3d at 798 (internal quotations and citation omitted). The United States Court of Appeals for the Eighth Circuit further held that the Doctrine of Equitable Tolling is appropriate when one of the following apply: “(1) a claimant has received inadequate notice; (2) a motion for appointment of counsel is pending; (3) the court has led the plaintiff to believe that he or she has done everything required of him or her; or (4) affirmative misconduct on the part of a defendant lulled the plaintiff into inaction.” Id. (citation omitted).
Let’s look at Bledsoe v. Nucor-Yamato Steel Co., 18 F. App’x 433 (8th Cir. 2001) as an example. In this case, Raymon Bledsoe, Sr. was fired on July 2, 1999. He then contacted the EEOC and scheduled an interview. During that process, an EEOC agent informed Bledsoe that the EEOC would not represent him in his claim, and that he had 180 days from the date of his termination to file an administrative charge. During the next few months, Bledsoe sent two letters to the Little Rock office complaining that his telephone interview with the West Memphis office was inadequate and requesting that the Little Rock office review his claim further. Because he was waiting on a response from the EEOC to his request for help, Bledsoe missed the deadline to file a charge and then filed it on his own later.
The United States Court of Appeals for the Eighth Circuit had little trouble affirming the dismissal of Bledsoe’s claims:
It is undisputed that Mr. Bledsoe understood that he had 180 days to file an administrative charge. See DeBrunner, 803 F.2d at 952 (holding when “an employee is generally aware of his rights, ignorance of specific legal rights or failure to seek legal advice should not toll the 180–day notification period”). Although it is unfortunate that he waited to hear from the EEOC before taking further action, “ ‘[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.’ “ Shempert, 151 F.3d at 797 (citation omitted). Further, nothing approaching affirmative misconduct occurred on the part of the EEOC. Thus, we hold the Court did not err in granting summary judgment on Mr. Bledsoe’s Title VII claims.
Id. at 435–36.
We found a more recent example where the Doctrine of Equitable Tolling saved the claim – albeit dealing with not filing a lawsuit in court timely as opposed to not filing the charge timely with the EEOC. In Barney v. H.E.L.P. Homeless Service Corporation, (S.D.N.Y. Apr. 8, 2020), Fed. Supp.2020 WL 1699984, Michael Barney, who identified as a gay man, alleged Title VII violations against his employer after being subjected to a hostile work environment because of his sexual orientation, discriminatory practices, retaliation, and termination based on sexual orientation.
On or about March 22, 2018, Barney filed charges against his employer with the EEOC. On March 6, 2019, he received his Right to Sue. Between March 6, 2019 and April 5, 2019, Barney sought, but failed, to obtain counsel to represent him. On March 13, 2019, Barney searched on the Internet and contacted 12 lawyers who refused to take his case. Barney was diagnosed with and suffered from anxiety and depression. After learning that no attorney would take his case, Barney suffered from anxiety attacks combined with depressive episodes, which rendered him incapacitated and unable to function. Barney alleged that during this time, he was also unable to focus on securing counsel for his case, including proceeding pro se. In addition, Barney was having issues with his roommate. On May 27, 2019, Barney’s roommate stabbed him in the abdomen with a knife. Barney was hospitalized and placed on power opioids and a breathing machine for acute respiratory distress syndrome. Barney was hospitalized through June 6, 2019. On June 20, 2019, once Barney regained possession of his phone and finally obtained counsel to represent him. On June 25, 2019, counsel filed Barney’s complaint. Barney’s new counsel was a sole practitioner who had other litigation in which she was involved. She also needed the time to draft a proper federal complaint. The complaint was filed 21 days after closure of the 90-day filing period. After motion conferences, Barney filed an amended complaint on October 1, 2019, with court leave approval. On November 1, 2019, Defendants filed a 12(b)(6) motion to dismiss.
The court denied Defendant’s Motion To Dismiss but still cautioned:
[E]quitable tolling may be warranted where (i) a party “has acted with reasonable diligence during the time period [he] seeks to have tolled,” and (ii) the party “has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass, 333 F.3d at 80-81 (citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (noting that a party seeking equitable tolling must demonstrate extraordinary circumstances). Id. at *3.
Additionally, a plaintiff “must further demonstrate that those [extraordinary] circumstances caused him to miss the original filing deadline.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). A plaintiff cannot make this showing if he, “acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation … is broken.” Id. And while a district court may consider a plaintiff’s decision to wait until late in the limitations period to file his case as part of its equitable tolling analysis, see Belot v. Burge, 490 F.3d 201, 207-08 (2d Cir. 2007), a plaintiff “is not ineligible for equitable tolling simply because he waited until late in the limitations period to file,” Valverde, 224 F.3d at 136. See generally Ko v. JP Morgan Chase Bank, N.A., 730 F. App’x 62, 64 (2d Cir. 2018) (summary order) (“When determining whether equitable tolling is applicable, a district court must consider whether the person seeking application of the equitable tolling doctrine has ‘acted with reasonable diligence during the time period she seeks to have tolled’ and must prove that the circumstances are so extraordinary that the doctrine should apply.” (quoting Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 512 (2d Cir. 2002))). Id. at *4.
In other words, don’t bet on the Doctrine of Equitable tolling saving your claim.
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Should I get help to file with the EEOC?
Yes. While you can file a charge of discrimination, harassment, or wrongful termination on your own with the EEOC, it does not mean that you should. Instead, if you have been wrongfully fired or terminated or discriminated against at work because of your race, national origin, gender, age, religion or disability; or even think that you might need an employee’s rights lawyer, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Spitz, The Employee’s Law Firm lawyers are ready to help you in Ohio, Michigan, North Carolina, and Kentucky.
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