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You can bring a federal discrimination claim in state court. (Some restrictions may apply.)

Pendleton v. National Wildlife Federation, et al., Civil Action No. 5:10cv0009 (W.D.Va. March 26, 2010). An administrative first step in cases arising under Title VII of the Civil Rights Act of 1964 is that a person with a discrimination claim must first take that claim to the Equal Employment Opportunity Commission, which then engages in the process of investigation and attempted conciliation. At the conclusion of that process, if the employee and employer have not reached a settlement (and regardless of the EEOC’s investigative findings) the EEOC issues a “right to sue” letter. The “right to sue” letter contains a notice to the employee that he or she has 90 days in which to file a lawsuit in federal or state court.

Under Virginia law, a plaintiff has a nearly-unfettered right to voluntarily dismiss his or her case one time, without losing any right to bring the case back again. This is called a “nonsuit.” In Virginia, if the plaintiff takes a nonsuit the statute of limitations clock is stopped for at least six months if the plaintiff refiles the suit.

Pendleton, the plaintiff, brought her claim against the defendants for Title VII discrimination and common law assault. After she received her “right to sue” letter, she filed suit in state court in Virginia. And waited. After 17 months, the clerk of the state court sent Pendleton a notice that if she didn’t serve her lawsuit on the defendants the court would dismiss it. Pendleton then voluntarily dismissed her case using the nonsuit procedure. Slightly less than six months later, Pendleton refiled her suit. And waited. About a year later, when the defendants were served with Pendleton’s complaint, they removed the case to federal court. Once the case had been removed, the defendants asked the court to dismiss it on the grounds that it was no longer timely.

The court granted the motion. The plaintiff had argued that the Virginia statute stopped the clock during the six-month period following her nonsuit. The court, however, found that the Virginia statute did not apply to the time limits set forth in a federal statute like Title VII.

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