As was succinctly stated in Karstens v. International Gamco, Inc., 939 F.Supp. 1430 (D.Neb. 1996), “[t]o exhaust her remedies, not only must a Title VII plaintiff timely file her charges with the EEOC, but she must also receive a “right-to-sue” letter from the EEOC.” Id. at 1435 (citing Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir. 1996); see also Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir. 2000). This circuit has recognized that receipt of a right-to-sue letter is a condition precedent to a filing of a lawsuit under Title VII or the ADA. See Jones v. American State Bank, 857 F.2d 494, 499 (8th Cir. 1988). Although a plaintiff who prematurely files a lawsuit before receiving a right-to-sue letter may cure the defect by subsequently receiving a right-to-sue letter, Id. at 499-500, the lawsuit should be dismissed in the absence of a right-to-sue letter. See Kane v. State of Iowa Dept. of Human Services, 955 F.Supp. 1117, 1140 (N.D.Iowa 1997).
In Kane, the plaintiff filed suit prior to receiving her right-to-sue letter. Subsequently, before the defendant moved for summary judgment on the ground that plaintiff failed to exhaust, plaintiff received her right-to-sue letter. The court clearly recognized that failure to obtain a right-to-sue letter prior to filing a complaint renders a plaintiff’s claim subject to dismissal. Id. at 1140. The court went further, however, indicating that a plaintiff’s right to cure the defect is cut off once the defendant challenges the timeliness of her complaint. However, the court ultimately denied the defendants motion to dismiss “on the ground that [plaintiff] cured the defect in her premature filing by subsequently obtaining a right-to-sue letter … before any objection to the timeliness of her complaint was made.” Id. at 1135. In so holding, the court went on to say: “The [defendant] sat on its opportunity to obtain the relief it now demands via a motion for summary judgment until long after the defect of which it complains had been cured.” Id.
Generally, a litigant has 90 days from the receipt of her right-to-sue letter in which to start an action. See Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8th Cir. 1997) (citing 42 U.S.C. §2000e-5(f)(1)). In the Eighth Circuit, where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed and the 90-day statute of limitations begins to run at that time. See Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8th Cir. 1997)). However, the Eighth Circuit has held that a Title VII claimant must acknowledge receipt of a certified right-to-sue letter before the 90-day statute of limitations begins to run. See Craig v. Dept. of Health, Ed. and Welfare, 581 F.2d 189 (1978); Thomas v. KATV Channel 7, 692 F.2d 548, 550 (1982), cert. denied 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); see also Webb v. American Red Cross, 652 F.Supp. 917 (D.Neb. 1986).
Other circuits have recognized that the general policy behind the 90-day statute of limitations mandates that Title VII plaintiffs not be given the opportunity to manipulate the running of the limitations period by failing to claim certified right-to-sue notices. These courts have dealt with this problem by holding that a claimant may be deemed to have constructively received notice of the right to sue on the first day the Post Office gives the claimant official notice that the certified letter is awaiting her at the Post Office. See, e.g., Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552 (6th Cir. 2000) (holding that a Title VII Plaintiff constructively received a right-to-sue notice when the letter carrier deposited the first of two official notifications at the plaintiff’s official address which advised that a certified letter awaited her at nearby postal station, and that this was the day the 90-day statute of limitations began to run although Plaintiff did not physically receive the notice until the EEOC mailed it a second time); Lee v. Henderson, 75 F.Supp.2d 591 (E.D.Tex. 1999) (holding that “in circumstances where a Plaintiff does not claim her certified mail, the ninety-day period is triggered upon delivery of the first notice of certified mail, not when the letter is actually picked up.”); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9th Cir. 1997) (holding that 90-day limitations period began running when Postal Service attempted delivery of right-to-sue letter at the address of record that employee provided to EEOC); Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40 (4th Cir. 1993).
In Graham-Humphreys, the plaintiff had filed a Title VII claim with the EEOC and the EEOC issued the plaintiff a right-to-sue letter and mailed it to her by certified mail. Graham-Humphreys, 209 F.3d at 554. Despite having received two notices of attempted delivery in conformity with standard Postal Service practices, the plaintiff neglected to retrieve her certified letter by the deadline stated on the notices. Id. Accordingly, the postal service returned her right-to-sue letter to the EEOC as “unclaimed”. Several days later, the plaintiff requested that a second right-to-sue letter be sent, which she signed for and received. Arguing that the district court erred in dismissing her complaint as barred by the 90-day statute of limitations, the plaintiff asserted that the statute of limitations did not begin to run until she received the right-to-sue letter following the EEOC’s second mailing. The court held otherwise, stating:
Nevertheless, even if the plaintiff did not physically attain actual “receipt” of her RTS notice until March 28, 1996, she had constructively “received” her RTS notification on March 8, 1996, the day that the letter carrier deposited the first of two official notifications at the plaintiff’s last known official address which advised that a certified letter awaited her at the nearby postal station. [The plaintiff] has conceded that she knew, or suspected, that the certified delivery contained her RTS notice.
Id. at 558 (emphasis in original). The court went on to state that even if the plaintiff had not conceded that she suspected the certified notice at issue to be her EEOC right-to-sue letter, she would nonetheless properly be charged with such knowledge, because she indisputably knew that her RTS notice would be proximately arriving by United States mail. Beyond contravention, most adult Americans are cognizant that critical, time-sensitive official communications are frequently dispatched via certified mail. In the implicated scenario, the requisites of reasonable diligence demanded that the plaintiff promptly discharge her less-than-demanding obligation to retrieve her certified delivery.
Id. at 559 (citations omitted).
To support its holding that the plaintiff in Graham-Humphreys is deemed to have constructively received her right-to-sue letter upon receipt of the Post Office’s official notice that a certified letter awaited her, the court cited cases from other circuits recognizing that constructive notice is appropriate where the post office has delivered a right-to-sue notice to the plaintiff’s record address and the plaintiff fails to “receive” it until a later date because “the law must preclude ‘a manipulable open-ended time extension which could render the statutory limitation meaningless.’” Id. at 559, fn. 11. The court stated that “the same rationale supports the deposit of an attempt-to-deliver notice at the complainant’s record address” as an event which triggers the accrual of the 90-day statute of limitations. Id. (citing Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993).
Furthermore, “[a]ny more lenient rule would illicitly license a Title VII claimant to indefinitely extend limitations by avoiding acceptance of an RTS notice, thereby circumventing the Congressional mandate that private Title VII lawsuits should be initiated within ninety days of the EEOC’s “giving” of official authorization to sue.” Id. at 560 (citing 42 U.S.C. §2000e-5(f)(1)). The court further noted that the above rationale undergirds the established rule that a Title VII complainant is presumed to have received her right-to-sue notice within five days (three days in the Eighth Circuit) of the date the EEOC mailed it. Id.; see Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson—Florissant School Dist., 113 F.3d 903, 904 (8th Cir. 1997)) (Where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed).
Jeanelle R. Lust