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Employee waited too long before filing suit

Virginia Lawyers Weekly//September 13, 2021

Employee waited too long before filing suit

Virginia Lawyers Weekly//September 13, 2021

Where the Equal Employment Opportunity Commission mailed a right-to-sue letter to the employee in November 2019, his January 2021 lawsuit was untimely because it wasn’t filed within 90 days. His declaration of nonreceipt was insufficient to rebut the presumption of receipt.


On Jan. 14, 2021, Robert H. Moyer sued Shirley Contracting Company LLC for age discrimination in violation of the Age Discrimination in Employment Act of 1967, or ADEA. The parties have filed cross motions for summary judgment.


Defendant contends that plaintiff did not timely file suit as to his discrimination claim and his complaint should be dismissed as untimely. Plaintiff contends, however, that his claim is timely because the envelope in which he received the notice of rights, or NRTS, letter was postmarked Oct. 28, 2020, and actually received on Nov. 6, 2020, and that he filed this action within 90 days of either date.

Plaintiff filed his charge of age discrimination with the EEOC on Aug. 12, 2019. The EEOC mailed the NRTS letter on Nov. 14, 2019, and it was in fact received by defendant’s counsel and others shortly after that date. The record also reflects that in November 2019, there were contacts between the EEOC and the plaintiff concerning the status of his charge.

In that regard, the EEOC charge detail inquiry report pertaining to plaintiff’s charge states that on Nov. 12, 2019, there was a “CP [charging party] Contact/Interview” and “Final Determination Counseling,” with a telephone conversation with the plaintiff during which he was advised that the “tentative recommendation would be submitted based on [the assigned staff member’s] analysis. He was told he could expect to receive a NRTS allowing him to file a suit 90 days upon receipt.” Plaintiff has failed to rebut the presumption that he received the NRTS letter three days after it was mailed on Nov. 14, 2019.

Plaintiff’s evidence essentially boils down to his own and his wife’s declaration that he never received the letter and an uncorroborated conversation he had with someone from the EEOC, unsupported by the EEOC’s own records, who said the letter had been sent to a Maryland address. Courts have consistently concluded that the presumption is not rebutted through self­serving affidavits that simply state that the claimant never received a right-to-sue letter.

Equitable tolling

Plaintiff claims that he is entitled to equitable tolling because “( 1) Plaintiff exercised an extraordinary level of diligence and persistence in seeking information about his case, (2) the nonresponsiveness of EEOC representatives was not due to any fault of the Plaintiff, and (3) Plaintiff had no control over circumstances external to his case, such as the effects of the [COVID-19] Pandemic.” Defendant contends that the record is devoid of any evidence that plaintiff diligently pursued his claim, outside of several phone calls beginning on July 15, 2020, through October 2020.

Plaintiff filed his charge on Aug. 12, 2019, and could have filed this action as early as Oct. 11, 2019, without obtaining a NRTS letter. It also appears that he was told on Nov. 12, 2019, that his charge would be dismissed and he should expect a NRTS letter. Nevertheless, plaintiff waited until sometime in March 2020 to inquire as to the status of his claim, some five months from the date in which he could have filed suit and four months after being told his charge would be dismissed.

More importantly, plaintiff was placed on notice in March 2020 that his EEOC claim had, in fact, been dismissed and that the NRTS letter had been sent. He then waited an additional 10 months to file suit. Plaintiff points to his attempts after March 2020 to again contact the EEOC, but he delayed even those attempts for approximately four months. In short, even were the time period tolled from November 2019 through March 2020, plaintiff failed to act with sufficient diligence when he did not file his action until January 2021, some 10 months after receiving actual notice that his charge had been dismissed. Based on these facts, plaintiff failed to exercise the diligence required under the doctrine of equitable tolling.

Plaintiff’s motion for summary judgment denied. Defendant’s motion for summary judgment granted.

Moyer v. Shirley Contracting Co. LLC, Case No. 1:21-cv-00046, Aug. 18, 2021. EDVA at Alexandria (Trenga). VLW 021-3-399. 15 pp.

VLW 021-3-399

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