Sexual Harassment Claim Time Barred For Failure to File Claim Within 90 Days of Being Notified of Right to Sue By EEOC

King v. Ford Motor Company - Seventh Circuit Court of Appeals

Facts:  LaWanda King ("King") worked for Ford Motor Company ("Ford") as an assembler at one of its vehicle assembly plants.  After transferring to one of Ford's Chicago plants in 2010, King alleged she was sexually harassed by a supervisor and began to be reassigned to less desirable tasks, missed out on overtime, and received unwarranted discipline.  On March 20, 2012, King filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and alleged she had been sexually harassed and retaliated against.  The EEOC issued a right to sue letter on August 31, 2012, but King moved without advising the EEOC and therefore did not receive the letter.  King was ultimately terminated on April 2, 2013 after missing several weeks of work for medical reasons that Ford alleged she did not properly document.

King subsequently filed two more charges of discrimination with the EEOC and the EEOC issued right to sue letters in August 203.  King proceeded to file suit against Ford and asserted claims for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, interference with her rights under the Family Medical Leave Act ("FMLA") and retaliation for taking FMLA leave, and a violation of the Illinois Whistleblower's Act.  Ford moved for summary judgment and the District Court granted it.  King's motion for reconsideration was denied and she subsequently appealed.

Holding:  (Note, this brief only addresses the timeliness issue as to the sexual harassment portion of King's claim.)

As has been codified, plaintiffs are required to file suit within 90 days of being notified of their right to sue by the EEOC.   Other circuits that have considered the issue have held that if a plaintiff fails to file suit within the proscribed 90 day window, the lapsed claims are not revived by being included in a subsequent EEOC charge.  As a result, the claim "expires" and cannot be resuscitated by additional EEOC charges.  In this case, King first asserted a Title VII claim based on sexual harassment by her supervisor when she filed a charge with the EEOC in March 2012.  When the EEOC issued a right to sue letter on August 31, 2012, the 90 day window would have begun to start running.  However, King did not file suit until November 6, 2013.  King's argument that since she moved she had not been aware of the right to sue letter having been mailed on August 31, 2012, did not sway the District Court.  When a plaintiff is at fault for a delay in receiving a right to sue letter, the constructive receipt doctrine applies and the 90 day clock starts running once delivery is attempted at the last known address.

However, King did not rely upon her moving and not receiving the August 31, 2012 right to sue letter as a basis for her appeal but instead argued her claim should be allowed to proceed because she reincorporated the allegations from the first, time barred charge into her subsequent charges.  As noted above by rulings from other circuits, the Court held her suit was not timely as King could not revive her time barred claims by attempting to incorporate them into a later filed EEOC charges.

Judgment:  The Court of Appeals affirmed summary judgment in favor of the employer on the grounds that the sexual harassment charges were time barred as the employee failed to file suit within 90 days of being notified of her right to sue by the EEOC and also could not be revived and incorporated into subsequent EEOC charges in an attempt to revive the original claim.

The Takeaway:  The big lesson here?  Make sure to update any change in your address...especially when it comes to a possible EEOC right to sue letter that could be mailed to an old address.  The Court had a succinct analysis of the matter, as caselaw from other circuits guided the Court of Appeals on this portion of the appeal.  While King made a novel argument (in regard to her subsequent EEOC charges and right to sue letters incorporating the time barred claim), this was a matter of the law not being on her side.  Perhaps Congress could seek to pass a bill to allow these sort of "resuscitation" defenses to allow time barred claims to proceed.  But for this case (and for the time being), the failure to file suit within 90 days of being notified of the right to sue by the EEOC will result in those claims being time barred.

Majority Opinion Judge:  Judge DeGuilio

Date:  October 2, 2017

Opinion:  http://hr.cch.com/eld/KingFord100217.pdf