A recent case in the Western District of Texas illustrates the problems with EEOC deadlines. Under Title VII, a worker must file a complaint with the Equal Employment Opportunity Commission prior to filing any lawsuit. Once the EEOC completes its work on a "charge" of discrimination, the EEOC will issue the "right-to-sue" letter – which is usually titled "Notice of Rights and Dismissal." The right-to-sue letter will explain that a federal lawsuit must be filed within 90 days of the receipt of the right-to-sue letter.
Problems arise when the worker is not represented by a lawyer. Most non-lawyers do not record the date on which they receive a letter. So, the worker will often not know the exact date on which s/he received the right-to-sue letter. Many workers also become discouraged looking for lawyers. Very few lawyers in San Antonio specialize in discrimination cases. So, if the worker meets a few lawyers who do not know the law and express skepticism, the worker may give up. Many such workers, especially after a termination, are in a state of depression, already.
In Prewitt v. Continental Automotive, No. 12-CV-582-DAE (W.D. Tex. 2/26/13), the court addressed three EEOC charges, two of which were too old for a lawsuit. The court granted dismissal as to two of the three EEOC charges. The worker filed suit about 1.5 years after the right-to-sue letters were issued regarding the first two discrimination charges. But, the third EEOC charge, based on retaliation, was upheld by the court. The third charge alleged some discipline and then termination. The employee filed suit well within the necessary 90 days of the third charge.
We do not know from the court’s decision what the first two charges were about. Assuming it was some sort of discipline, then that discipline could not be a basis for a claim but it would still serve as explanatory evidence for the retaliation which came later. That is, said the court, the first two charges can serve as "background evidence" for the third charge. The facts related to the first two charges would serve as "background evidence" for the third charge based on retaliation.
This is an important distinction. For example, if the worker had been demoted in Charge 1 or 2, he could not make a claim for lost pay related to that demotion. But, he could use facts related to that demotion to help explain his termination. Otherwise, the termination would be pointless. In the eyes of the jury, the termination would be just another termination – totally unrelated to any prior complaints about discrimination. And in a retaliation case, the employee must point to the events that came before the termination. That is what "background evidence" is all about. That sort of evidence explains to the jury how the employee got to where he is.