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Every employment law practitioner knows that a federal discrimination lawsuit needs to be filed 90 days after receipt of the EEOC’s notice of right to sue. And most of us know that three days are added for mailing/receipt under the Federal Rules of Civil Procedure, making a complaint filed within 93 days of the notice’s date timely. But a recent decision of the USDC for the Eastern District of Pennsylvania had called those extra three days into question based upon a 2001 amendment to the federal rules. In DeFrancesco v. Weir Hazelton Inc., William DeFrancesco worked for Weir and its predecessors for just under 38 years when he was notified on April 19, 2004, that his position was being eliminated, apparently due to a reduction in force. He was offered a severance package in exchange for a complete release. Weir also provided an ADEA disclosure statement to DeFrancesco providing “the job title and ages of all individuals eligible or selected for the [job-elimination] program.” DeFrancesco claimed that he signed the agreement based upon the statement’s information that only three employees over the age of 40 had been selected for inclusion in the reduction. However, shortly after signing the agreement, DeFrancesco learned that Weir had, in fact, selected 17 over-40 workers for termination. Not surprisingly, therefore, DeFrancesco filed claims of age discrimination under the ADEA and Pennsylvania Human Relations Act. The EEOC issued DeFrancesco a dismissal and notice of right to sue dated Jan. 27, 2005. DeFrancesco filed his compliant in federal court on April 29, 2005, 92 days after receiving the notice. Following a motion to dismiss, the court dismissed the complaint in its entirety. The ADEA claim, as well as a few state law claims, was dismissed without prejudice to their reassertion in a second amended complaint. Weir moved for reconsideration of the without-prejudice dismissal of the ADEA claim, “asserting that it should be dismissed with prejudice because DeFrancesco was not entitled to a presumption that he received the notice three days after it was mailed.” In ruling on Weir’s initial motion to dismiss, the court found that DeFrancesco’s lawsuit was timely filed based on the “presumption that he received his EEOC notice three days after it was mailed.” This presumption was based upon the United States Supreme Court’s decision in Baldwin Court Welcome Center v. Brown, in which the court cited Federal Rule of Civil Procedure 6(e), which addresses the additional three days allowed for action when materials are mailed. The 3rd U.S. Circuit Court of Appeals has twice applied Baldwin‘s reading of Rule 6(e) to “create a presumption that the [EEOC] notice was received three days after it was mailed if parties dispute the date on which the plaintiff received notice of the EEOC’s determination.” When Baldwin was decided in 1984, Rule 6(e) stated, “Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.” Rule 6(e) was amended, however, in 2001 to state: “Whenever a party has the right or is required to some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party, and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C) or (D), three days shall be added to the prescribed period.” Weir’s motion for reconsideration argued that “[a]fter the 2001 amendment, Rule 6(e) became qualified and limited by reference to Rule 5(b) in cases in which parties or the court serve on other parties” orders, pleadings, motions and other papers as described in Rule 5(a). As such, Rule 6(e) no longer creates presumption “that an EEOC right-to-sue notice is received three days after it was mailed.” If the three days was not added to time for filing, DeFrancesco’s ADEA complaint would have been untimely. The issue raised by Weir was not only a case of first impression in the 3rd Circuit but it appears that only one other court has addressed the issue in the four years since Rule 6(e) was amended. In Rogers v. Russ David Wholesale Inc., decided in 2002, the USDCC for the District of Minnesota simply questioned Baldwin‘s continued viability, noting that “an EEOC right-to-sue notice is not a ‘pleading or other paper’ without the scope of Rule 5 of the Federal Rules of Civil Procedures.” A number of federal courts have applied Rule 6(e) after the 2001 amendment, including many in the 3rd Circuit. The Weir court found that the weight of authority supports the continued application of Rule 6(e) to EEOC right-to-sue letters. The court also found guidance in the 3rd Circuit’s recent decision Wilson v. Beard, in which the court found that “given that federal courts must add some additional period of days to the limitations period to account for the time it takes for a letter to be received, we think it eminently sensible to apply Rule 6(e)” to the period for filing a habeas petition. The 2001 version of Rule 6(e) was not, however, explicitly at issue in Wilson. As such the Weir court was left with the conundrum between the practicalities of mail delivery and a close reading of Rule 6(e). In order to resolve this tension, the court denied Weir’s motion for reconsideration, but certified the question for immediate interlocutory appeal to the 3rd Circuit. Should the 3rd Circuit rule that 6(e) no longer adds three days to the period for filing suit following receipt of the EEOC’s notice of right-to-sue, the effects could be profound. For reasons that have remained a mystery, a substantial percentage of federal discrimination claims seem to be filed on days 91-93 following the EEOC’s notice. Practically, this should rarely be an issue. However, it is, and due to the close statutory-reading on the part of Weir‘s counsel, an issue that will now be addressed by the 3rd Circuit. Sid Steinberg is a partner in Post & Schell’s 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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