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Failure To File Change Of Address With EEOC Did Not Excuse Time-Barred Filing

Published by on December 5, 2007

In KP v. Vienna Wolftrap Hotel, 1:07-cv-00625 (E.D.Va. 11/30/2007), the U.S. District Court for the Eastern District of Virginia (Cacheris, J.) granted defendant’s motion to dismiss plaintiff’s age discrimination claim based on the statute of limitations.  The EEOC had mailed a right-to-sue notice to the plaintiff in 2005, but the plaintiff had failed to file a […]

In KP v. Vienna Wolftrap Hotel, 1:07-cv-00625 (E.D.Va. 11/30/2007), the U.S. District Court for the Eastern District of Virginia (Cacheris, J.) granted defendant’s motion to dismiss plaintiff’s age discrimination claim based on the statute of limitations. 

The EEOC had mailed a right-to-sue notice to the plaintiff in 2005, but the plaintiff had failed to file a change of address notice with the EEOC so he did not receive it.  The Court applied the rule in the Fourth Circuit that when the plaintiff does not actually receive the right-to-sue notice it will be presumed to have been received three days after mailing.  Finding that the plaintiff’s filing over 500 days later was outside the 300-day statute of limitations, it next considered equitable tolling.  Relying on 4th Circuit precedent, however, the Court found that the plaintiff’s failure to file a change of address notice was not grounds for equitable tolling.  The Court also rejected the argument of plaintiff’s counsel that counsel’s request for information from the EEOC justified equitable tolling.

Employers should be aware that equitable tolling will excuse an employee’s failure timely to file a discrimination lawsuit when the employer acted in a way to mislead the plaintiff or prevent the plaintiff from filing in a timely basis.  Although such cases are rare, they do exist.

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