It’s always easier if you don’t wait until the last minute.
Blackwell v. General Dynamics Land Systems, Inc., Civil Action No. 1:10cv110 (E.D. Va. June 28, 2010). Blackwell, a white male, was hired by General Dynamics Land Systems, Inc., in June 2004 as a Senior Security Representative in its Prince William County location. From the date he was hired until January 2006, Blackwell was considered a good employee and received favorable reviews. In January 2006, Ms. Zalamea, an adult female, became Blackwell’s new supervisor. Blackwell alleged that Zalamea created a sexually hostile environment by making gender based comments about her dislike of working with Blackwell and other male employees. Additionally, Blackwell alleged that Zalamea disparaged and publicly berated Blackwell and other male employees, subjected them to unwarranted criticism, made false accusations against them, and unfairly increased their workload. Blackwell complained to management, without any beneficial effect. For that matter, Blackwell alleged, management retaliated against him for making his complaint. In January 2007, Blackwell quit and took a lower paying job elsewhere.
Blackwell filed a charge of discrimination with the Equal Employment Opportunity Commission, which issued its Dismissal and Notice of Rights (the “right to sue letter”) on September 30, 2009. The EEOC mailed the right to sue letter to Blackwell’s home address in Stafford, Virginia, by regular mail. The EEOC’s right to sue letter is a standard form that specifically states that the charging party must file a lawsuit against the employer in federal or state court “within 90 days” of his receipt of the letter. This 90-day period is set by statute. Some time after September 30, 2009, Blackwell’s wife received the right to sue letter in the mail but did not open it. At that time, Blackwell was not living at home in Stafford, Virginia; he was working in Iraq. As a result, it was not until November 6, 2009, that Blackwell personally received the unopened right to sue letter along with other mail forwarded to him by his wife.
On February 3, 2010, Blackwell filed his Complaint in federal court, alleging that General Dynamics had violated Title VII of the Civil Rights Act of 1964 by permitting a sexually hostile work environment, by constructively discharging him, and by retaliating against him for engaging in protected conduct. General Dynamics filed a motion to dismiss on the ground that Blackwell’s claim was barred by Title VII’s 90-day statute of limitations.
The threshold question, of course, is whether Blackwell received the letter on September 30 or on November 6. The former date is more than 90 days from the date he filed his Complaint, the latter date is less than 90 days from the filing date. Unfortunately for Blackwell, the law in this Circuit is clear: actual receipt is not required to start the 90-day clock. When his wife received the letter at his home, the 90-day limitations period was triggered. As a consequence, his Complaint was filed about a month too late.
Game over? Not quite. The Court noted that it had the power to prevent injustice by “equitably tolling” the statute of limitations: in effect, stopping the clock when fairness requires it. Equitable tolling is only conducted on a fact specific, case-by-case basis. In this case, the parties had not set out the facts in a manner that the Court could consider. The Court, however, recognized that facts could exist that would make equitable tolling proper. Accordingly, the Court dismissed Blackwell’s case without prejudice – that is, Blackwell was free to refile his Complaint – and stated that it would consider and analyze the equitable tolling issue on the next go ’round.