The Rocky Mountain Employer


Labor and Employment Law Updates

Always Check Whether a Plaintiff’s Claim is Timely: Tenth Circuit Court of Appeals Affirms Dismissal of Employment Discrimination Case Filed Six Days Late

    Under Title VII of Civil Rights Act of 1964 (“Title VII”), the Americans With Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and most state anti-discrimination statutes, employees may file a lawsuit no later than 90 days after receiving notice from the administrative agency that the investigation has concluded (a “Notice of Right to Sue”).[1] Courts strictly enforce the 90-day limitations periods, which in Title VII, ADA, and ADEA cases are “condition precedent to suit,”[2] and, in the case of many state anti-discrimination acts, are jurisdictional, meaning a plaintiff’s failure to file within 90 days will strip the court of jurisdiction to hear a claim.

    A case decided this week, Herrera v. Las Cruces Public Schools,[3] illustrates the importance of carefully scrutinizing the timeliness of a plaintiff’s complaint. In Herrera, the plaintiff filed, among other claims, disability discrimination and retaliation claims under the New Mexico Human Rights Act (the “NMHRA”). The plaintiff filed her lawsuit 90 days after she claims she actually received the Notice of Right to Sue (which was sent via U.S. Mail) but 96 days after the agency that investigated her charge deposited the Notice of Right to Sue in the mail. The Tenth Circuit affirmed the district court’s dismissal of the NMHRA claims, reasoning that the NMHRA requires a plaintiff to file suit within 90 days from the date of service of the agency’s order, meaning 90 days after when the agency deposited the Notice of Right to Sue in the mail—not when the document is actually received by the claimant.[4]

    Whether a complaint is timely will depend on the exact language of the statute of limitations at issue. However, the issue is always worth examination. As seen in Herrera, courts strictly enforce limitations periods in employment discrimination cases. Where a plaintiff fails to comply with the statute of limitations, a defendant may save itself the costs and burdens of lengthy litigation by filing a motion to dismiss.

[1] See 42 U.S.C. § 2000e-5(f)(1) (setting forth 90-day limitations period in Title VIIcases); 42 U.S.C. § 12117(a) (adopting Title VII procedures to ADA actions); 29 U.S.C. § 626(e) (providing that an ADEA claim may be brought within 90 days of receipt of notice of termination of an EEOC action); C.R.S. § 24-34-306(11) (providing that a claim under the Colorado Anti-Discrimination Act “must be filed within ninety days” of the date in which the state agency’s jurisdiction ceases). 

[2] Brackens v. Domino’s Pizza LLC, Case No. 07-cv-01953-REB-MJW, 2008 WL 5922, at *4 (D. Colo. Jan. 3, 2008).

[3] No. 16-2179, 2017 WL 2556968 (10th Cir. Jun. 13, 2017).

[4] Herrera, 2017 WL 2556968, at *9-10.