Equal Employment Opportunity Commission

For those of us who deal with the Equal Employment Opportunity Commission regularly, that can be a lesson in futility. Like too many agencies, they are assigned too many cases and are expected to do too much with too little. So, it is not surprising that the EEOC folks do make their share of errors. But, the thing is their errors may deprive some hard-working victim of discrimination his or her day in court.

In Alvarado v. Mine Service, Ltd., No. 14-50668 (5th Cir. 7/30/2015), that victim of discrimination came very close to losing his day in court because the EEOC made a mistake. The EEOC let Mr. Alvarado’s complaint sit around for two years before his lawyer noticed and asked for the right-to-sue letter. The EEOC issued a letter dated June 14, 2013 allowing Mr. Alvarado to file suit. Mr. Alvarado had complained about a noose that was left on the foreman’s desk. The worker asked about the noose, and set up meetings for his Hispanic fellow workers to discuss issues with the supervisor. Mr. Alvarado was later fired for “stirring up” racial problems. Mr. Alvarado’s complaint was based on race. Yet, the June 14 notice from the EEOC referred to an age discrimination claim. The plaintiff’s claim was based on Title VII. Yet, the EEOC checked the block for ADEA.

And, even though it had a space for an EEOC official to sign it, the space was blank. It was not signed by the EEOC. And, the notice said the charge had been on file for less than 180 days, even though it actually had been on file for two years.

The plaintiff’s lawyer called the EEOC. The EEOC said they would send a new corrected notice of right-to-sue. They sent a second correct notice on July 8. The plaintiff then filed suit within 90 days of the second letter, not the first notice. Mine Service moved to dismiss saying the proper deadline started June 14 with the first letter, not the second letter. The district court agreed, finding the first letter conveyed all the necessary information, so that is when the 90 day deadline started. The lower court made an oblique reference to tolling, saying the EEOC did not mis-lead the plaintiff because the first letter was valid.

But, the court of appeals disagreed. It did find equitable tolling. The lower court had rejected the office administrator’s testimony as hearsay. She testified that the EEOC told her the first letter was incorrect. The Fifth Circuit said no, that was not offered to prove the matter asserted. It was not offered to show the letter was incorrect. It was actually offered to show the law office relied on what they were told by the EEOC. That reliance constitutes a “hornbook” law exception to the hearsay rule. Alvarado, at 7 (slip opinion). Too, noted the court, the July 8 letter said the plaintiff could file suit within 90 days of this letter.

So, now with the evidence regarding what they were told by the EEOC, the case falls within the line of cases which hold equitable tolling will extend a deadline. And, noted the court, extending the deadline 20 days will not cause any prejudice to the employer. And, this was not a case in which the lawyer was slow to act. The law firm was generally quick to react to the EEOC errors, seeking clarification and at one point, contacting the agency again when the EEOC was slow to send the second letter.

The EEOC makes plenty of clerical errors every year. They process thousands and thousands of claims every year. The courts should not allow a person’s claim to be subverted by clerical errors, especially when that claimant has been as diligent as this plaintiff was. It is refreshing to see a higher court bring some degree of common sense to the discussion.

The employer who lost its discrimination trial in 2012 has dropped its appeal.  A jury in U.S. district court awarded three plaintiffs $200,000 in damages.  That amount was later reduced to $140,000 due to statutory caps on damages.  See San Antonio Express News report.  

The manager was accused of using the "n" word frequently and of referring to African-American workers as "you people" and as "boy."  I previously wrote about this trial here. The EEOC has reached a settlement with the employer. See EEOC announcement. That would be a wise move.  The evidence of discrimination in this case does not get any better than racist statements like those. 

AA Foundries agreed to pay $20,000 to Kathy White as part of the settlement, even though the jury did not find in Ms. White’s favor. That is one of the positive things about a settlement – a party can agree to things they could not otherwise obtain at trial. The employer agreed to pay the full value awarded to the other workers. This is also a nice win for the EEOC, who are often maligned by both employers and employees. 

Looking for a lawyer is never easy.  In the employment law business, many clients call me or other plaintiff employment lawyers at the last minute or close to the last minute.  Typically, potential plaintiffs do not start calling lawyers until they receive the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC).  Most charging parties naively believe the EEOC will conduct a true investigation.  So, naturally, they do not start looking for lawyers until it is clear the EEOC will not resolve their issues.  

Unfortunately, in San Antonio, as in most jurisdictions, there are far more potential plaintiffs than there are lawyers.  It is hard to find a plaintiff employment lawyer.  Some potential plaintiffs get caught up in the referral from one personal injury lawyer to another, all of whom decline the case.  So, by the time the 90 deadline (statute of limitations) is about to expire, they still have not found a lawyer willing to accept their case.  By far, most potential plaintiffs need a lawyer willing to accept the case on contingency.  Not surprisingly, most potential plaintiffs have little money – they have lost their job quickly and unexpectedly.  

It is a system almost designed to frustrate lawsuits.  Indeed, that was the intent when the Civil Rights Act of 1964 was passed.  Many members of Congress hoped then that the EEOC would resolve most disputes.  In actuality, the EEOC resolves very little.  

I tell all potential clients, employment law or otherwise, they should speak to 2-3 lawyers before choosing one.  In the employment law area, I warn them they also need to see lawyers asap.  If I cannot accept their case, I provide three names of lawyers who might be able to help them.  Because the 90 days passes so quickly, I tell them they need to make appointments with all three right away.  otherwise, many potential clients make the mistake of seeing one lawyer before even making an appointment with the other two.  Making one appointment at a time takes too long.

It is a very significant challenge finding lawyers for an employment case, when you are an employee.  Do *not* waste your 90 days.  Heck, many clients do not even start looking until 30 days or so have passed.  They just do not realize how hard it can be to find a good plaintiff employment lawyer.