632 F.3d 962
7th Cir.2011Background
- DeTata alleges sex harassment at Rollprint, fired after eight days, with alleged ongoing harassment prior to termination.
- She filed an EEOC charge; the EEOC dismissed it and sent a right-to-sue letter, which was undeliverable and never received by DeTata.
- EEOC later resent materials; DeTata filed suit within two months of receiving the resubmitted materials.
- District court dismissed as untimely, adopting the date of DeTata’s phone inquiry as the start of the 90-day period.
- The court treated oral notice via a phone inquiry as triggering the 90-day period, conflicting with the controlling rule that receipt of written notice starts the clock.
- On appeal, it is contested whether oral notice can ever start the clock, whether receipt must be proven, and Bracko’s alleged agent status for notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the 90-day period start on actual receipt of notice? | DeTata argues receipt starts the 90 days. | Rollprint contends notice date via phone suffices to start the period. | Actual receipt starts the 90 days; oral notice alone not enough. |
| May an oral notice from the EEOC start the 90-day period? | Actual knowledge from EEOC communications could start the clock. | Only written notice satisfies § 2000e-5(f)(1). | Oral notice can suffice only if equivalent to written notice and properly established. |
| Did EEOC mishandling that delayed receipt excuse timeliness? | Misdelivery and file misplacement caused delay beyond her control. | Timeliness not excused; burden on plaintiff to act promptly. | The record shows mishandling; defendants did not prove proper notice; remand needed. |
| Was Bracko, via letter and communications, DeTata’s agent for notice? | DeTata proceeded pro se; no clear attorney relationship; Bracko’s status is disputed. | Bracko acted as DeTata’s legal representative for notice purposes. | No conclusive proof Bracko served as her attorney; need evidentiary development on Bracko's role. |
Key Cases Cited
- Ball v. Abbott Advertising, Inc., 864 F.2d 419 (6th Cir. 1988) (oral notice via counsel insufficient when timing unsettled; substantial delay barred)
- Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir. 2003) (oral notice may be sufficient if equivalent to written notice; evidence required)
- Kerr v. McDonald’s Corp., 427 F.3d 947 (11th Cir. 2005) (actual knowledge of notice plus timing, with notice deemed received within mailing window)
- Taylor v. Books A Million, Inc., 296 F.3d 376 (5th Cir. 2002) (90-day period starts at receipt of notice)
- Archie v. Chi. Truck Drivers, Helpers & Warehouse Workers Union, 585 F.2d 210 (7th Cir. 1978) (notice must be delivered to the address to which it is mailed)
- Prince v. Stewart, 580 F.3d 571 (7th Cir. 2009) (burden on defendant to show timely filing; receipt controls if actual)
- Houston v. Sidley & Austin, 185 F.3d 837 (7th Cir. 1999) (90-day period begins when plaintiff receives letter with proper notice)