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A plaintiff in an employment discrimination case cannot be faulted when his claim languishes for several years before the EEOC since the only time requirements in the law is that he file suit in court within 90 days of receiving a “right-to-sue” letter, a federal appeals court has ruled. The decision in Burgh v. Borough Council of the Borough of Montrose reverses a decision by U.S. District Judge Richard P. Conaboy of the Middle District of Pennsylvania who dismissed a race discrimination suit filed nearly five years after the plaintiff first filed charges with the EEOC and the Pennsylvania Human Relations Commission. Conaboy found that the plaintiff should not have waited so long to come to court and held that he didn’t need a right-to-sue letter to do so. Instead, Conaboy held that he could have filed suit after the agencies had his case for one year. If courts were to accept the argument that plaintiffs must wait for the letter, Conaboy said, “We would have to decide we could wait forever to file suit even when the commission takes no action and fails to notify the plaintiff. This flies in the face of the basic reason for a statute of limitations.” Conaboy found that since neither Title VII nor the Pennsylvania Human Relations Act include a statute of limitations, it was necessary to “borrow” one from Pennsylvania law and chose the two-year limitations period for personal injury actions. Although he found that the inaction of the PHRC and EEOC was partially to blame for the delays, Conaboy held that Timothy Burgh’s filing suit almost five years after the filing of the first administrative complaint was “clearly unreasonable” and therefore untimely. Now the 3rd U.S. Circuit Court of Appeals has reversed that ruling, saying “Title VII is not a statute without a limitations period.” To the contrary, the court said, Congress imposed two time limits. “First, a complainant has 180 days from the occurrence of the alleged unlawful employment practice within which to bring a discrimination charge before the EEOC … or 300 days where there has been cross-filing with a state agency under state law. Second, a complainant has 90 days from receipt of the right-to-sue letter to bring an action in court,” U.S. Circuit Judge Jane R. Roth wrote. “Both periods have been treated as statutes of limitations,” Roth wrote, noting that the 90-day limit “is strictly enforced and a delay of even one day will bar a claim.” Together, Roth said, the two time limits “represent the congressional determination of the relevant and proper time limitations under Title VII.” Conaboy’s imposition of an additional limitations period, Roth said, “is inconsistent, and indeed in direct conflict, with the plain language of the federal statute.” The only reason to “borrow” a statute of limitations from state law, Roth said, would be to fill a gap in a statute that includes no time limit. But with Title VII, she said, “There is no gap to fill and no need to import a state limitations period as a gap-filler. The statute by its terms establishes the two appropriate time requirements that a complainant must satisfy in order to bring a timely claim.” Roth also found that the two-year limitations period imposed by Conaboy would conflict with the timetables established in Title VII. “For example, in the most basic case, if a complainant requests and receives a right-to-sue letter exactly 180 days after he files his EEOC charge, the statute gives him 90 days to bring his action in court, while the borrowed state limitations period would give him two full years (640 additional days) to file his action,” Roth wrote. “To complicate matters further, a complainant would have no guidance as to which limitations period controlled,” she wrote. Roth found that Burgh “unquestionably satisfied the timing requirements established by the text of the statute: He received the right-to-sue letter on Dec. 1, 1998, and filed his civil action on Feb. 26, 1999, 87 days later. There is no time period provided in the statute that Burgh failed to satisfy.” In the suit, Burgh, an African-American male, claims he applied for a job as a part-time police officer with the Borough of Montrose Police Department, but was passed over in favor of a white male with no prior on-the-job police experience. The white man was hired in June 1994 and Burgh filed his first discrimination charge with the PHRC in December 1994, requesting that it also be filed with the EEOC which docketed his claim as filed in March 1995. In March 1996, the PHRC sent Burgh a letter advising him that it had been one year since he filed his complaint and notifying him that he had the right to bring a private civil action under the PHRA in the Court of Common Pleas. The letter said Burgh was not required to file suit and that the Commission was continuing to process his case and would make every effort to resolve it as soon as possible. In October 1998, Burgh’s lawyer sent a letter to the EEOC, requesting that the agency issue a right-to-sue letter in “light of the Pennsylvania Commission’s extended delay in resolving this matter.” Burgh received the right-to-sue letter in December 1998 and filed suit 87 days later in U.S. District Court in February 1999. Roth found that Conaboy misinterpreted the law when he held that Burgh didn’t need to wait for the right-to-sue letter before going to court. “A complainant may not bring a Title VII suit without having first received a right-to-sue letter. Nothing in the statute or the regulations, however, requires a complainant to request a right-to-sue letter or to bring a private suit. Nevertheless, if the complainant does choose to bring a private action, it must be filed within 90 days of the date on which the complainant has notice of the EEOC’s decision not to pursue the administrative charge,” Roth wrote. Both the 180-day period for filing the administrative complaint and the 90-day period for filing the court action “are treated as statutes of limitations,” Roth wrote. But the court “must keep in mind,” she said, “that the statute of limitations does not begin to run unless and until there is ‘final agency action,’ such as the issuance of a right-to-sue letter. Without that final agency action, the complainant has not exhausted his administrative remedies and cannot bring suit.” Like Title VII, Roth said, “the PHRA similarly requires that claims be brought first to an administrative agency, the PHRC, which has exclusive jurisdiction over the claim for a period of one year in order to investigate and, if possible, conciliate the matter.” But unlike Title VII, she said, notice of the right to sue is not required in order to bring the PHRA action. Instead, after one year has elapsed, a complainant may bring a court action regardless of whether or not he has received a letter from the PHRC. But Roth found that no case law suggests “that a complainant must bring the civil action then or at any later time.” The time limits provided for in Title VII, Roth said, are “consistent with Congress’s intent that most complaints be resolved through the EEOC rather than by private lawsuits.” In setting the limits, she said, Congress “focused on when a charge was filed with the EEOC and a defendant received notice of that charge.” Statutes of limitations exist, Roth said, “to ensure such notice to the adversary.” “Congress wanted cooperation and voluntary compliance to be the primary means of resolving claims in an informal and non-coercive manner. This goal of resolving problems by conciliation is better met by enacting a limitations period for filing a court action that runs from the receipt of the right-to-sue letter at the end of the administrative process rather than from the date of the unlawful employment practice.” Roth was joined on the opinion by U.S. Circuit Judges Marjorie O. Rendell and Walter K. Stapleton. Burgh was represented by attorney David S. Dessen of Dessen Moses & Sheinoff in Philadelphia. The Borough of Montrose was represented by attorney Patrick J. Murphy of Murphy Piazza & Genello in Scranton, Pa.

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