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ADA suit is time-barred

A federal disability discrimination lawsuit was untimely, even though the plaintiff filed her complaint within 90 days of when her attorney received a right-to-sue letter from the Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Second Circuit has ruled in affirming a dismissal, Tiberio v. Allergy Asthma Immunology of Rochester, no, 11-2576-cv (Dec. 20).

Under 42 U.S.C. § 2000e-5(f)(1), a claim under the Americans with Disabilities Act must be filed within 90 days of the plaintiff’s receipt of a right-to-sue letter from the EEOC.

In this case, the plaintiff filed a disability discrimination charge with the EEOC after being fired by the defendant. The EEOC reviewed the case and sent right-to-sue letters to both the plaintiff and her attorney. The plaintiff later filed a disability discrimination complaint in federal court.

The defendant moved to dismiss, contending that the plaintiff’s lawsuit was untimely because she filed 93 days after her presumptive receipt of her right-to-sue letter.

The plaintiff argued that her complaint was timely because it was filed within 90 days of when her attorney received the right-to-sue letter.

But the Second Circuit concluded that the lawsuit was time-barred. Clarifying circuit law on this issue, the court rejected the plaintiff’s contention that the date on which her attorney received the right-to-sue letter controlled.

“It is well established that ‘notice to an attorney’s office which is acknowledged by a representative of that office qualifies as notice to the client.’ But the general principle of constructive notice does not affect, much less vitiate, the operative presumptions regarding the receipt of an EEOC right-to-sue letter by the claimant herself. …

“Accordingly, we now hold that the 90-day limitations period set forth in 42 U.S.C. §2000e-5(f)(1) begins to run on the date that a right-to-sue letter is first received either by the claimant or by counsel, whichever is earlier,” the court said.