In Rembisz v. Lew, 2016 WL 4036388 (6th Cir., July 27, 2016), the plaintiff Rembisz, an employee of the IRS, filed an administrative charge of sex and race discrimination after being passed over for several promotions. After an investigation, the Agency dismissed his claims and issued its right-to-sue notice on March 15, 2013. Rembisz then filed his federal suit on June 21, 2013, alleging that he received notice of the final agency decision on March 25, 2013. However, in support of its motion for summary judgment, the Agency introduced a certified mail receipt from the Agency which showed Rembisz actually received the notice of the Agency’s dismissal of his charge on March 22, 2013. The Court affirmed the district court’s dismissal of the case.
The Agency’s motion was based on 42 U.S.C § 2000e-16(c), the federal sector counterpart to 42 U.S.C. § 2000e-5(f)(1), which requires that a legal action under Title VII be filed within 90 days of the administrative dismissal of the charge. Citing a case under the latter provision, the Court noted the presumption that notice is given and the 90-day period begins running on the fifth day following the Agency’s mailing of the right-to-sue notice. Graham-Humphreys v Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000). In this case, the Court observed that the Agency served its notice by first class and certified mail on March 15, 2013, making March 20, 2013 the presumptive date that the limitations period began. Based on the certified receipt showing Rembisz received the notice on March 22, 2013, the complaint was late by one day. Again citing Graham-Humphreys, the Court stated that courts must “strictly enforce Title VII’s ninety-day statutory limit” and it should not ordinarily be extended by even “a single day”. Id.
Rembisz responded with evidence that his attorney received the notice on March 25, thus making his suit timely. However, the Court noted that a notice of final action is considered received when the Agency delivers it to the claimant or claimant’s attorney, “whichever comes first”. Coen v. Riverside Hospital, 2 Fed.Appx. 449, 451 (6th Cir. 2001). Rembisz also argued that he was entitled to equitable tolling of the 90-day requirement. Notwithstanding the fact that he had failed to raise this issue in the district court, the Court stated the argument would nevertheless fail as Rembisz knew the notice was issued on March 15 and he was otherwise aware of the 90-day requirement.