Timeliness of Title VII Action to be Decided by the Jury

Darrell VanDeusen
Darrell VanDeusen
12/03/2012

I love to read Judge Richard Posner’s opinions and agree with most of them.  He is probably the most significant non-Supreme Court Justice in the country. But a recent decision of his from the Seventh Circuit leaves me contemplating the potential for abuse by crafty plaintiffs.   In Begolli v Home Depot, 2012 U.S. App. LEXIS 24546 (7th Cir. November 29, 2012), the court returned a pro se plaintiff’s case to the district court for a trial on the timeliness of the administrative charge.

Here’s the story:  Begolli applied, and was not hired, for a job at Home Depot. According to Home Depot’s personnel managers, Begolli was told of this decision on August 27, 2007.    Begolli filed an EEOC Charge, alleging national origin discrimination (he’s Albanian) on June 26, 2008 – 304 days later. Normally, that would sink Begolli’s claim, since you normally have to file an EEOC Charge within 300 days of the alleged discrimination.   But Begolli claimed he never got the call on August 27.

Home Depot moved for summary judgment on timeliness.  The district court decided that there was a dispute of fact as to when Begolli was told he’d been rejected for the job, and held an evidentiary hearing on the issue, taking testimony from the parties. The court then determined that Home Depot had the better argument and ruled in its favor, dismissing Begolli’s case. Begolli appealed, claiming that the dispute should have been resolved by a jury, not by the judge, since he had made a timely demand to have his case tried by a jury.

Judge Posner, joined by Judges Flaum and Kanne, reversed and remanded the case for trial. Claiming an untimely filing,  you see, is a defense said the court.  Because “[s]tatute of limitations is a defense . . . in a case in which a party is entitled to, and demands, a jury trial, defenses are tried to the jury along with the case in chief.”

The panel rejected a comparison to prisoner rights cases where the exhaustion of remedies issue could be heard by a judge before trial.  Congress passed the exhaustion provision of the Prison Litigation Reform Act to reduce the quantity and improve the quality of prisoner suits, said the court. “Title VII, in contrast, is designed to expand the opportunities for bringing employment-discrimination suits in federal court.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49 (1974).

So, what’s the take-away here? Employers are reminded of the need to keep good records related to employment decisions. Maybe Begolli really believed he wasn’t told of Home Depot’s decision on August 27. And here it was unclear who was telling the truth. Imagine the plaintiff for who truth is fluid. In such circumstances, the only way an employer can expect to get summary judgment is to have some sort of contemporaneous proof of its position.

But now a jury will have to decide, first on the issue of the timely filing and then – if the jury finds that Begolli did file his timely file his charge, whether Home Depot is liable for discrimination. Here Begolli was pro se, but regardless, the cost associated with taking a dual issue case like this to trial will be considerable, and that can only inure to the benefit of the lawyers involved.

 

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