As most parties who have been before the EEOC know, it can often take many months, if not years, for the agency to complete its investigation of a charge of discrimination. However, there are times where the EEOC moves very quickly to dismiss a charge. That is exactly what happened earlier this year in a charge of discrimination filed against Virginia Tech. However, when the employee of Tech’s College of Veterinary Medicine filed a lawsuit within 90 days of receiving the quickly issued Right to Sue Notice, the University moved to dismiss the case, arguing that the EEOC acted too fast in dismissing the charge. Davitt v. Va. Polytechnic Inst. and State University, No. 7:19CV00456 (W.D. Va. 11/15/19).
The case arose out of a charge of retaliation and gender discrimination filed by Allison Davitt on February 19, 2019. On March 20, 2019, the EEOC sent Davitt a Right to Sue Notice. Davitt then filed suit on June 17, 2019, alleging violations of Title VII, the FMLA, and the federal Rehabilitation Act.
Virginia Tech based its motion to dismiss on the language of 42 U.S.C.§2000e-5(f)(1), which states in relevant part:
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . ., the Commission has not filed a civil action . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . .
Judge Conrad rejected Virginia Tech’s argument, concluding that the language of the statute does not preclude the EEOC from dismissing a charge of discrimination less than 180 days after it was filed. The Court held that “dismissing a charge before 180 days have passed is an action explicitly allowed in the statute.” (citing Hardy v. Lewis Gale Med. Cir. LLC 377 F. Supp. 3d 596, 610 (W.D. Va. 2019).
So what is the takeaway? Don’t try to punish the EEOC for performing its job quickly and efficiently! While a lengthy and thorough agency investigation may sometimes resolve a charge, often times a protracted stay at the EEOC level results in nothing more than witnesses disappearing and memories fading if the case does eventually proceed to litigation.