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Experienced employment law attorneys can probably recite by rote the requirement that upon dismissal of a discrimination charge by the EEOC, the commission shall “notify the person aggrieved and within ninety (90) days after the giving of such notice a civil action may be brought.” This seems simple enough, because we are all familiar with the EEOC’s Notice of Dismissal and Right to Sue form, by which the EEOC “gives” notice. But could a telephone call with the commission substitute for the familiar right-to-sue form? The 3rd U.S. Circuit Court of Appeals recently addressed this issue in Ebbert v. DaimlerChrysler Corp., No. 02-1503 (3rd Cir. 2003), finding that a phone call giving “actual notice” of a right to sue may be sufficient, so long as it is as complete as written notice in all respects. CHANGED ADDRESS Cynthia Ebbert filed a charge of disability discrimination against DaimlerChrysler, her former employer, in April 1997. She alleged that she had been denied a reasonable accommodation under the Americans with Disabilities Act. Ebbert moved her residence in February 1998 and gave her new address to the EEOC. Almost two years after the initial charge, the commission told Ebbert that the EEOC was going to dismiss her case and that a notice would be sent to her that would “allow” her to file a private suit if she wished. Ebbert did not have an attorney at this time. It was not clear that the promised notice was sent, but if it was, it was forwarded to Ebbert’s old address and Ebbert claimed that she never received it. The EEOC then decided to reopen the case and, after additional investigation, again called Ebbert to tell her that her charge would be dismissed. Yet again, the right to sue notice was sent to the wrong address and Ebbert denied receiving it. Ten months later, in August 2000, Ebbert wrote to the commission requesting an update on the status of her charge. The investigator telephoned Ebbert to tell her that the case was closed and that the letter advising her of this had been sent months ago. On Oct. 16, 2000, the EEOC sent Ebbert a third notice, this time to the correct address, and Ebbert brought suit within 90 days. DaimlerChrysler moved for summary judgment on the grounds that Ebbert had received “actual notice” of the EEOC’s action and her right to bring suit within 90 days, long before she received the third Notice. Judgment was granted in favor of DaimlerChrysler and Ebbert appealed. WHAT IS “GIVING” NOTICE? The 3rd Circuit distilled the issue presented on appeal to a single question: “Does notice under [the statute] need to be in writing, and what information must it include [?]” Essentially, what does “ giving” notice mean? Not surprisingly, the EEOC weighed in with an amicus brief on behalf of Ebbert, arguing that the 90-day statute of limitations period begins only after the complainant receives written notice of dismissal and his or her rights. The commission argued that its regulation that “enumerates the contents of a notice of right to sue, is entitled to deference” under the Chevron standard. The 3rd Circuit squarely rejected the type of deference sought by the EEOC, as well as the commission’s regulations, or, at least, its interpretation of its own regulations. This was based upon the court’s finding that the issue presented concerned the applicable statute of limitations, rather than the EEOC’s procedures. The court noted that it is for the courts to decide the applicable limitations period, not the EEOC. ORAL NOTICE MUST BE EQUIVALENT TO WRITTEN Instead, the court analyzed the statute without reference to the regulations and found that while “oral notice can suffice to start the 90-day period [it] must be equivalent to written notice.” The basis for this finding seems an equal part common sense and statutory interpretation. The court noted that it simply would not make sense “to force courts and defendants to wait for a specific form of notice in situations where a plaintiff is fully aware of the deadline he or she must meet.” The court considered the possibility that the statute might never run if the commission had the wrong address for a complainant. “Permitting oral notice to start the limitations period strikes a fairer balance between a defendant’s interests in a quick resolution of charges … and a plaintiff’s interest in having adequate opportunity to bring suit and clear understanding of when and where to do so.” The critical element from the 3rd Circuit’s perspective is that the oral notice must advise a complainant that he or she has 90 days within which to bring suit in federal court. This was lacking in the Ebbert case. Because there was no evidence that Ebbert “was told or otherwise knew the 90 days would start running from the date of the conversation,” the 3rd Circuit reversed the district court’s grant of summary judgment. CONTRAST WITH 6TH CIRCUIT DECISION The Ebbert court discussed a 6th Circuit opinion, in which actual notice to an attorney was sufficient to begin the limitations period. In Ball v. Abbott Advertising, Inc., 864 F.2d 419 (6th Cir. 1988), the EEOC advised Ball’s attorney that a right-to-sue letter had been sent to her old (incorrect) address. The Ball court found that the commission’s telephone call with Ball’s lawyer was “actual notice” sufficient to begin the 90-day limitations period. In discussing the Ball case, the Ebbert court stressed the factual differences between the cases, but left it unresolved as to whether notice to an attorney, rather than a lay person, could automatically be “actual notice,” given the presumption that the attorney understands the time limitations involved. Sidney R. Steinberg is a partner in Post & Schell’s (www.postschell.com) business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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