Waiting Too Long to Sue Sinks Case

Darrell VanDeusen
Darrell VanDeusen

I am not a procrastinator by nature, although some of my closest friends (and a few family members) are.  For me, waiting until the last minute to get something done is just irritating and anxiety provoking.  But enough oversharing.  

My point is that, waiting until the last minute to accomplish a task can have a negative outcome. That is what happened to Brian Lax, a former FEMA employee who sued for disability discrimination.  Lax v. Mayorkas , __ F.4th __, 2021 U.S. App. LEXIS 37589 (7th Cir. Dec. 20, 2021).

Mr. Lax, you see, waited until the 91st day to sue the Department of Homeland Security.   The window of time for filing a lawsuit is, however, 90 days.  What, you may ask, was the reason for the delay?  Mr. Lax got notice of the rejection of his complaint by email that contained a password protected attachment.  Lax claimed that he could not open the attachment until the next day, although he did open the email that day.

The emails (the one with the attachment and the one that had the password) noted that it was a final agency decision and that Mr. Lax’s appeal rights ran from the day they were sent.  The district court dismissed the lawsuit as untimely.  Mr. Lax appealed. 

The Seventh Circuit affirmed.  Writing for the panel, Judge Flaum posed the question presented as “whether Lax’s mere receipt of the email commences the filing window, or whether he must have opened and read the attachment to that email to commence the filing window.”   Mere receipt, said the court, was the trigger.

Judge Flaum noted that it is well settled law in the Seventh Circuit that the time for filing begins to run when a claimant or his attorney “actually receives” the right-to-sue notice. See Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th Cir. 1984). Moreover, receiving the notice via traditional mail, without opening or reading that notice, is sufficient to trigger the beginning of the filing period. See Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 849-50 (7th Cir. 2001).  

This is consistent with the Supreme Court’s longstanding precedent in Delaware State College v. Ricks, 449 U.S. 250 (1980).  Ricks held that the timeliness window for filing a charge of discrimination with the EEOC begins to run on the date an individual is made aware of an employment decision that the individual believes violates anti-discrimination laws.

To be sure, there are circumstances in which plaintiff’s delay in filing is excusable.  The legal doctrine of equitable tolling provides for this.  But, stressed the court, “[e]quitable tolling … is reserved for situations in which the claimant ‘has made a good faith error (e.g., brought suit in the wrong court) or has been prevented in some extraordinary way from filing his complaint in time.’” Threadgill, 269 F.3d at 850 (quoting Jones, 744 F.2d at 1314).

In this case, Lax was lax.  He did nothing to demonstrate the due diligence necessary to preserve his legal rights.  He simply waited too long to file.  Case dismissed.

What’s the takeaway here?  Well, if it’s not clear, I’ll get back to you later.

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