The Law @ Work

First Circuit Holds Plaintiff’s Claim Barred By Attorney’s Inaction

The First Circuit has issued a warning to Plaintiffs:  Be choosy about who represents you, as your attorneys’ actions (or inactions) can bind you; “better late than never” is a phrase that does not apply to the filing of civil actions.

A physician suffering from a degenerative condition reduced her workload to part time and was frequently absent.  After her employer denied her request for 45 days of sick leave pursuant to its “Advanced Non-Occupational Sick Leave,” policy, she filed a complaint with the local agency, which was referred to the EEOC.   Prior to filing a civil action for alleged violations of the Americans with Disability Act (ADA), plaintiffs must file an administrative charge with the EEOC.  The EEOC can issue a right-to-sue letter on its own initiative or at the complaining party’s request.  Once the right-to-sue is issued, a plaintiff has 90 days to file a civil action in court.  Failure to do so results in the claim being time-barred.

In this case, the EEOC issued a right-to-sue  letter on its own initiative in May 2009.  The plaintiff, however, did not file a civil action until September 2009.  When the employer argued that the lawsuit was time-barred, its former employee responded by stating that she did not receive the right-to-sue  letter until September 2009 and that the 90-day period did not start to run until the notice was received.  The federal district court did not agree with the plaintiff and declared her ADA claim untimely.  The First Circuit Court of Appeals agreed, as it was undisputed that the notice had been mailed to the plaintiff and her attorney at the same time, there was no evidence that the attorney did not receive the notice shortly after it had been mailed and, yet, a civil action was not timely filed.   In summary, notice to plaintiff’s attorney was notice to the plaintiff.   She was precluded from pursing her ADA claim.  Loubriel v. Fondo Del Seguro Del EstadoNo. 11-1555 (First Cir. September 21, 2012)

While cases in which an attorney misses the deadline to file a lawsuit are rare, this case reminds us of employers’ frequent misunderstandings about filing deadlines.  In Massachusetts, many disability discrimination charges are filed with the Massachusetts Commission Against Discrimination, which deems them dually filed with the EEOC.  State law disability discrimination claims have a three-year statute of limitations, and when the three year mark passes, employers often breathe a sigh of relief that they will not end up in court with the employee.   However, employers often forget that the three-year rule does not apply to federal discrimination claims, and a complaining party has 90 days from whenever  the EEOC issues a right to sue letter to file a federal discrimination claim, such as an ADA claim.   While employers may have to sweat it a lot longer than they think, they can find solace in the  hope that employees’ attorneys are asleep at the wheel.

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