Virginia Court Dismisses Late-Filed Discrimination Suit

The Americans With Disabilities Act, like most other federal anti-discrimination statutes, requires that an employee file suit within 90 days of their receipt of a Right to Sue Notice from the Equal Employment Opportunity  Commission.  A Virginia man recently found out that federal courts take this requirement seriously when the United States District Court for the Eastern District of Virginia dismissed his disability discrimination suit because it was filed 105 days after he was presumed to have received his Right to Sue Notice.  Smith v. Northern Virginia Orthodontics Center, Case No. 1:18-cv-1244 (E.D. Va. 7/16/19)

Cody Smith alleged in his lawsuit that Northern Virginia Orthodontics Center failed to promote him because he has Lyme disease. He filed a charge of discrimination with the EEOC, and the Commission dismissed his case and sent him a Right to Sue Notice on June 12, 2018.   The notice expressly stated “[i]n order to pursue this matter further, you must file a lawsuit against the respondent named in the charge within 90 days of the date you receive this Notice … Furthermore, in order to avoid any question that you did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date the Notice was mailed to you.”

Nevertheless, Cody did not file suit until September 28, 2018, which is 108 days after the EEOC issued the Right to Sue Notice.  Cody explained his late filing as being caused by mail delivery problems in his neighborhood, which allegedly resulted in him not receiving the notice until June 30, 2018.  Cody provided affidavits from his parents (which were identical in substance) to support his claims of mail delivery problems.

Judge  Ellis rejected Cody’s arguments and dismissed the lawsuit as untimely.  The Court noted that United States mail  is preemptively received three days after it is sent, which means Cody was presumed to have received the notice on June 15, 2018 — 105 days before he filed his complaint.  Significantly, counsel for the employer received the Notice on June 15, 2018 – three days after it was mailed.

The Court did not find the self-serving affidavits filed by Cody and his parents to be sufficient to overcome the presumption that he received the Notice on or before June 15th.   However, Judge Ellis did signal that he would entertain a motion for reconsideration if Cody presented evidence such as: (1) affidavits from unrelated neighbors stating that they were having mail problems at the same time; (2) an affidavit from a postal carrier or other Postal Service employee; or (3) an affidavit from a neighbor who received the Notice in error.

The Cody decision demonstrates that Courts are unlikely to excuse late-filed discrimination lawsuits. As explained by Judge Ellis, “strict application of the 90-day filing requirement is necessary to prevent tardy plaintiffs from manipulation the 90-day rule to prevent dismissal of their untimely complaints.”

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