Jones v. Madison Service Corp.

744 F.2d 1309, 35 Fair Empl. Prac. Cas. (BNA) 1711, 1984 U.S. App. LEXIS 18035, 35 Empl. Prac. Dec. (CCH) 34,691
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 2, 1984
DocketNo. 83-2410
StatusPublished
Cited by35 cases

This text of 744 F.2d 1309 (Jones v. Madison Service Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Madison Service Corp., 744 F.2d 1309, 35 Fair Empl. Prac. Cas. (BNA) 1711, 1984 U.S. App. LEXIS 18035, 35 Empl. Prac. Dec. (CCH) 34,691 (7th Cir. 1984).

Opinion

PER CURIAM.

Plaintiffs appeal from the district court’s grant of summary judgment for the defendants and its holding that this Title VII suit was not timely filed. The district court found that plaintiffs’ employment discrimination action, brought pursuant to 42 U.S.C. § 2000e et seq., had been filed 92 days after the receipt by their attorney of right-to-sue letters from the United States Equal Employment Opportunities Commission (EEOC). This was determined to be a violation of the 90-day period allowed by 42 U.S.C. § 2000e-5(f)(1),1 and the court held that the facts of the case did not warrant equitable tolling of the time period. Plaintiffs appeal, asserting that (1) receipt of a right-to-sue notice by the claimant, not a third party, is necessary before the 90-day period begins to run and (2) even if the time period was exceeded by two days, the facts in this case warrant equitable tolling.

I.

Plaintiffs are non-whites who applied for jobs with the defendant bus company, the contract operator of the City of Madison municipal bus transportation system. They allege that they and other members of their class were discriminated against by being required to take a written test that had an unlawful disparate impact on nonwhite applicants. The plaintiffs applied for employment in the spring of 1979 and both were rejected when they failed to pass the written test then used by defendants. In the fall of 1979, each of the named plaintiffs filed complaints with the EEOC. Attorney Jeff Scott Olsen was retained to represent plaintiffs on their then-separate cases in the fall of 1980. At that time complaints had been filed with three agencies — the EEOC, the Madison Equal Opportunities Commission (MEOC) and the Wisconsin Equal Rights Division (ERD). Olsen notified all three agencies that he represented the plaintiffs.2 Both MEOC and ERD issued initial determinations that there was probable cause to believe unlawful discrimination had occurred in both cases.

MEOC held hearings on plaintiff Jones’ charges in the spring of 1981. Evidence presented at that hearing established that the written test did have a disparate impact on non-white applicants. The only defense asserted by defendants was that the hiring process as a whole did not have such an impact. This is characterized by Olsen as a “bottom line” defense. On November 24, 1981, MEOC issued its order on the Jones case. It found that the written test had had a disparate impact and rejected the “bottom line” defense of the bus company. [1311]*1311The MEOC declined to recommend an award of back pay. Plaintiff Jackson’s MEOC complaint had been dismissed on technical grounds earlier, and both plaintiffs had voluntarily withdrawn their cases from ERD on advice of counsel. Consequently after November 1981, the only viable actions remaining were those filed with EEOC.

Olsen contacted EEOC on several occasions requesting right-to-sue letters.3 On January 21,1982, EEOC issued right-to-sue letters in both cases. Original letters were sent by certified mail to plaintiffs at the addresses they had originally given EEOC. Those original letters were never received by the plaintiffs. As indicated on the bottom of the right-to-sue letters, copies were sent to Olsen at his office. The copies arrived at Olsen’s office on January 25, 1982; they were sent by regular mail and did not bear the original signature of EEOC’s Director. The following day, January 26, Olsen mailed to each plaintiff a copy of the EEOC letter and a letter over his own name informing the plaintiffs that any federal lawsuit would have to be filed “within 90 days of your receipt of those letters.” Also on January 26, 1982, Olsen wrote Barbara J. Swan, counsel for defendants, informing her that the letter had been received and suggesting settlement discussions. Ms. Swan replied immediately, rejecting the offer to settle. Shortly thereafter, Olsen learned that his clients never received the original letters. Because Olsen wanted to wait as long as possible before filing,4 he calculated the last day on which a federal law suit could be filed. According to his calculations, federal suit could be commenced on or before April 27, 1982. This date is 90 days from January 27, the earliest time the plaintiffs could have received the copies Olsen sent to them, but it is 92 days from the day Olsen received his copy of the letter from EEOC. The lawsuits were filed in district court on April 27, 1982.

II.

The primary issue in this appeal is whether receipt of the carbon copy right-to-sue letters by Olsen constituted constructive receipt of those letters by the plaintiffs themselves. The district court held that it did, relying on Minor v. Lakeview Hospital, 421 F.Supp. 485 (E.D.Wis.1976), and [1312]*1312Gonzalez v. Stanford Applied Engineering, 597 F.2d 1298 (9th Cir.1979). Plaintiffs contend that this court’s decision in Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210 (7th Cir.1978), compels an opposite conclusion.

In Archie, the claimant had filed a Title VII action 91 days after the right-to-sue letter was received at his home address by his wife; however, the action was commenced only 81 days after plaintiff personally received the letter from his wife. This court held that “the ninety-day period of limitation set forth in 42 U.S.C. § 2000e-5(f)(1) begins to run on the date on which a claimant actually receives from the EEOC his notice of right-to-sue.” 585 F.2d at 216.

The claimant in Archie was not represented by an attorney and the district court relied on that distinction in holding that Archie did not control the present case. The distinction is a valid one. As this court indicated in Archie, receipt of a right-to-sue letter by a third party, perhaps one unfamiliar with the situation or one who would not even read the letter, leads to the risk that a claimant could remain in ignorance of his rights until the time to sue had past. This danger is not present when the third party is the claimant’s attorney, the individual in charge of proceeding with the litigation and aware, perhaps more aware than the claimant, of the importance of such notice. Consequently, the rule enunciated in Archie must be expanded to include this permissible instance of constructive receipt. We hold that the 90-day period of limitation set forth in 42 U.S.C. § 2000e-5(f)(1) begins to run on the date that the EEOC right-to-sue notice is actually received either by the claimant or by the attorney representing him in the Title VII action.5

III.

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Bluebook (online)
744 F.2d 1309, 35 Fair Empl. Prac. Cas. (BNA) 1711, 1984 U.S. App. LEXIS 18035, 35 Empl. Prac. Dec. (CCH) 34,691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-madison-service-corp-ca7-1984.