Plaintiff Bears Burden of Maintaining Correct Address with EEOC

Kollman & Saucier
Kollman & Saucier

An individual who files a charge of discrimination with the EEOC or similar state agency is required to provide the agency with his or her contact information, including a mailing address and phone number, so that the agency can notify him or her of any developments, including the outcome of the charge. Current regulations require the individual to notify the agency “of any change in address and . . . any prolonged absence from that current address so that he or she can be located when necessary during the Commission’s consideration of the charge.” 29 C.F.R. § 1601.7(b).

Significantly, once the agency issues a right-to-sue notice, the individual has 90 days to file a lawsuit when bringing claims under Title VII, the ADA, ADEA, or GINA. Failure to bring a claim in that time period ordinarily means that the suit is barred by limitations. There is an exception to this hard 90-day rule, however, under the doctrine of equitable tolling. In order for equitable tolling to apply, the individual must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010).

What happens when an individual provides both his own and his attorney’s contact information when filing an EEOC charge, relocates to another state to care for a sick relative without notifying the agency of his new address, only to later learn that the EEOC had mailed a notice of right to sue to the address on file more than 90 days beforehand? As the D.C. Circuit recently affirmed, the individual’s claim is barred. See Maggio v. Wisconsin Ave. Psych. Ctr., Inc., No. 13-7181 (D.C. Cir. July 24, 2015).

Matthew Maggio filed a charge of gender discrimination on May 11, 2012 with the EEOC. He provided his current mailing address in Washington, D.C., while also providing his attorney’s mailing address, phone number and e-mail address. A month prior to filing the charge, Maggio had moved to South Carolina to care for his ailing mother. He had not, however, provided a forwarding address either to the agency or to the post office.

On November 26, 2012, the EEOC mailed a right-to-sue notice to Maggio’s D.C. address (but did not provide a copy to his attorney), which Maggio claimed he never received. Neither Maggio nor his attorney contacted the agency to ask about the status of his charge until June 2013, over a year after Maggio first filed the charge. Finally, on June 21, 2013, nearly seven months after the right-to-sue notice was issued, Maggio filed his complaint.

The district court dismissed Maggio’s case since he failed to file suit within 90 days of the mailing of the right-to-sue notice. Maggio appealed, explaining that even though he did not update the EEOC as to his own change of address, he thought the EEOC would send the notice to his attorney, whose information he had provided.

In a 2-1 split, the D.C. Circuit affirmed the dismissal of Maggio’s claim. In a brief opinion, the majority sided with numerous other circuits that have held that “when a complainant fails to receive a right-to-sue notice because he gave the EEOC an incorrect address or because he neglected to inform the EEOC when he moved, the complainant is at fault and he is not entitled to equitable tolling.” In a passionate dissent, Judge Rogers argued that “the fault [should] lie[] with the EEOC, not Maggio[,]” given that the EEOC’s own manual states that right-to-sue notices should be sent both to the charging party and his attorney.

The case serves as a clear reminder to employers to be mindful of the 90-day rule when receiving a copy of agency right-to-sue notices in order to defend themselves in litigation. This bright-line outcome promotes fairness for employers and reduces the number of contentious court disputes.


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