The importance of right to sue letters and timing of employment discrimination lawsuits.

 

            As was succinctly stated in Karstens v. International Gamco, Inc., 939 F.Supp. 1430 (D.Neb. 1996), “[t]o exhaust her remedies, not only must a Title VII plaintiff timely file her charges with the EEOC, but she must also receive a “right to sue” letter from the EEOC.”  Id. at 1435 (citing Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8^th Cir. 1996); see also Stuart v. General Motors Corp., 217 F.3d 621 (8^th Cir. 2000).  This circuit has recognized that receipt of a right-to-sue letter is a condition precedent to a filing of a lawsuit under Title VII or the ADA.  See Jones v. American State Bank, 857 F.2d 494, 499 (8^th Cir. 1988).  Although a plaintiff who prematurely files a lawsuit before receiving a right-to-sue letter may cure the defect by subsequently receiving a right-to-sue letter, Id. at 499-500, the lawsuit should be dismissed in the absence of a right-to-sue letter.  See Kane v. State of Iowa Dept. of Human Services, 955 F.Supp. 1117, 1140 (N.D.Iowa 1997).

            In Kane, the plaintiff filed suit prior to receiving her right-to-sue letter.  Subsequently, before the defendant moved for summary judgment on the ground that plaintiff failed to exhaust, plaintiff received her right-to-sue letter.  The court clearly recognized that failure to obtain a right-to-sue letter prior to filing a complaint renders a plaintiff’s claim subject to dismissal.  Id. at 1140.  The court went further, however, indicating that a plaintiff’s right to cure the defect is cut off once the defendant challenges the timeliness of her complaint.  However, the court ultimately denied the defendants motion to dismiss “on the ground that [plaintiff] cured the defect in her premature filing by subsequently obtaining a right-to-sue letter … before any objection to the timeliness of her complaint was made.”  Id. at 1135.  In so holding, the court went on to say:  “The [defendant] sat on its opportunity to obtain the relief it now demands via a motion for summary judgment until long after the defect of which it complains had been cured.”  Id.

Generally, a litigant has 90 days from the receipt of her right-to-sue letter in which to start an action.  See Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997) (citing 42 U.S.C. §2000e-5(f)(1)).  In the Eighth Circuit, where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed and the 90-day statute of limitations begins to run at that time.  See Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)).  However, the Eighth Circuit has held that a Title VII claimant must acknowledge receipt of a certified right-to-sue letter before the 90-day statute of limitations begins to run.  See Craig v. Dept. of Health, Ed. and Welfare, 581 F.2d 189 (1978); Thomas v. KATV Channel 7, 692 F.2d 548, 550 (1982), cert. denied 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); see also Webb v. American Red Cross, 652 F.Supp. 917 (D.Neb. 1986). 

            Other circuits have recognized that the general policy behind the 90-day statute of limitations mandates that Title VII plaintiffs not be given the opportunity to manipulate the running of the limitations period by failing to claim certified right-to-sue notices.  These courts have dealt with this problem by holding that a claimant may be deemed to have constructively received notice of the right to sue on the first day the Post Office gives the claimant official notice that the certified letter is awaiting her at the Post Office.  See, e.g., Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552 (6^th Cir. 2000) (holding that a Title VII Plaintiff constructively received a right-to-sue notice when the letter carrier deposited the first of two official notifications at the plaintiff’s official address which advised that a certified letter awaited her at nearby postal station, and that this was the day the 90-day statute of limitations began to run although Plaintiff did not physically receive the notice until the EEOC mailed it a second time); Lee v. Henderson, 75 F.Supp.2d 591 (E.D.Tex. 1999) (holding that “in circumstances where a Plaintiff does not claim her certified mail, the ninety-day period is triggered upon delivery of the first notice of certified mail, not when the letter is actually picked up.”); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9^th Cir. 1997) (holding that 90-day limitations period began running when Postal Service attempted delivery of right-to-sue letter at the address of record that employee provided to EEOC); Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40 (4^th Cir. 1993).

            In Graham-Humphreys, the plaintiff had filed a Title VII claim with the EEOC and the EEOC issued the plaintiff a right-to-sue letter and mailed it to her by certified mail.  Graham-Humphreys, 209 F.3d at 554.  Despite having received two notices of attempted delivery in conformity with standard Postal Service practices, the plaintiff neglected to retrieve her certified letter by the deadline stated on the notices.  Id.  Accordingly, the postal service returned her right-to-sue letter to the EEOC as “unclaimed”.  Several days later, the plaintiff requested that a second right-to-sue letter be sent, which she signed for and received.  Arguing that the district court erred in dismissing her complaint as barred by the 90-day statute of limitations, the plaintiff asserted that the statute of limitations did not begin to run until she received the right-to-sue letter following the EEOC’s second mailing.  The court held otherwise, stating:

            Nevertheless, even if the plaintiff did not physically attain actual “receipt” of her RTS notice until March 28, 1996, she had constructively “received” her RTS notification on March 8, 1996, the day that the letter carrier deposited the first of two official notifications at the plaintiff’s last known official address which advised that a certified letter awaited her at the nearby postal station.  [The plaintiff] has conceded that she knew, or suspected, that the certified delivery contained her RTS notice. 

 

Id. at 558 (emphasis in original).  The court went on to state that even if the plaintiff had not conceded that she suspected the certified notice at issue to be her EEOC right-to-sue letter,

she would nonetheless properly be charged with such knowledge, because she indisputably knew that her RTS notice would be proximately arriving by United States mail.  Beyond contravention, most adult Americans are cognizant that critical, time-sensitive official communications are frequently dispatched via certified mail.  In the implicated scenario, the requisites of reasonable diligence demanded that the plaintiff promptly discharge her less-than-demanding obligation to retrieve her certified delivery.

 

Id. at 559 (citations omitted).

             To support its holding that the plaintiff in Graham-Humphreys is deemed to have constructively received her right-to-sue letter upon receipt of the Post Office’s official notice that a certified letter awaited her, the court cited cases from other circuits recognizing that constructive notice is appropriate where the post office has delivered a right-to-sue notice to the plaintiff’s record address and the plaintiff fails to “receive” it until a later date because “the law must preclude ‘a manipulable open-ended time extension which could render the statutory limitation meaningless.’”  Id. at 559, fn. 11.  The court stated that “the same rationale supports the deposit of an attempt-to-deliver notice at the complainant’s record address” as an event which triggers the accrual of the 90-day statute of limitations.  Id. (citing Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4^th Cir. 1993).  Furthermore, “[a]ny more lenient rule would illicitly license a Title VII claimant to indefinitely extend limitations by avoiding acceptance of an RTS notice, thereby circumventing the Congressional mandate that private Title VII lawsuits should be initiated within ninety days of the EEOC’s “giving” of official authorization to sue.”  Id. at 560 (citing 42 U.S.C. §2000e-5(f)(1)).  The court further noted that the above rationale undergirds the established rule that a Title VII complainant is presumed to have received her right-to-sue notice within five days (three days in the Eighth Circuit) of the date the EEOC mailed it.  Id.; see Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson—Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)) (Where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed).

 

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jlust@knudsenlaw.com

krm@knudsenlaw.com

 

Sweeping Changes to the Americans with Disabilities Act Affect Long Term Health Care Facilities

 

 

            Most long-term healthcare facility managers probably have a general familiarity with how the Americans with Disabilities Act (ADA) affects them as employers. Originally passed in 1990, the ADA prohibits private and governmental employers from discriminating against qualified individuals with disabilities, in job applications, hiring and firing, promotions, compensation, training and other aspects of employment. 

 

Health care facilities may not realize, that recent changes greatly expand ADA coverage. These changes can be expected to have a significant impact on long term healthcare facilities, as well as employers in other sectors.

 

            On January 1, 2009, the Americans with Disabilities Act Amendments Act took effect.  In that act, Congress reacted against restrictive past interpretations of the ADA in several Supreme Court opinions and in ADA regulations promulgated by the EEOC. Although the amendments do not change the basic definition of “disability” in the ADA as an impairment that “substantially limits” one or more “major life activities,” they change how these terms will be interpreted by courts and the EEOC.

 

The ADA Amendments Act states that Congress intends the term “disability” to be construed expansively “in favor of broad coverage . . . to the maximum extent permitted.”  It also requires the EEOC to revise its regulations defining when an impairment “substantially limits” a major life activity in a manner consistent with the rest of the Act, i.e., more broadly. Those revised regulations have not been issued.

 

The amendments expand the definition of “major life activities,” limitation of which may result in disability, by giving examples of some activities that formerly were not recognized by the EEOC, such as reading, bending and communicating. The amendments also provide that impairments of “major bodily functions” may substantially limit major life activities and qualify as disabilities.  “Major bodily functions” include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”  

 

An impairment that is episodic or in remission is now considered to be a disability if it would substantially affect a major life activity when it was active. An individual discriminated against because of an actual or perceived disability will be regarded as disabled, unless the impairment is transitory and minor. Formerly such individuals were only regarded as disabled if their impairments were perceived by employers as substantial limitations of major life activities.  Under the amendments an employer is not required to make reasonable accommodations to individuals regarded as disabled, however.

 

The ADA Amendments Act overturns a decision of the Supreme Court that allowed an employer to consider mitigating measures such as prosthetic devices or medications in determining whether an individual had a disability. Now the employer must determine disability without considering those measures, the sole exceptions being that the employer may consider the effect of ordinary glasses or contact lenses. 

 

Health care is the largest industry in the U.S. Economy according to the Bureau of Labor Statistics, and it is also expected to be have the largest rate of employment growth over the next five years. In addition, in a recent year nursing care facilities’ workers suffered occupational illnesses or injuries at more than twice the average rate: 10.1 cases per 100 full-time workers, compared to an average of 5.0 for private industry overall. Musculoskeletal injuries are the most common injury among nursing aides, the largest category of health support occupations.  As one of the economy’s largest employers, with significant exposures to occupational illness and injury, the long term health care industry will undoubtedly see major effects from these amendments to the ADA.

 

The EEOC website, http://www.eeoc.gov, contains information which is helpful for employers in complying with the ADA, including “Questions and Answers about Health Care Workers and the Americans with Disabilities Act.”  Unfortunately these website materials have not yet been revised to reflect changes that were made in the ADA Amendments Act.

 

In the meantime, long term healthcare facilities, like other employers, must insure that their policies and procedures are revised to comply with changes made by the ADA Amendments Act.  It is important that operational personnel and human resources staff are aware of these changes in the law and prepared for the questions and situations that are likely to arise under the ADA as expanded following these amendments.

 

Under these new revisions it is more important than ever for employers to seek early legal advice from competent employment counsel concerning questions they may have concerning the ADA, particularly whenever a claim of discrimination based on disability is alleged.

 

Rodney M. Confer

www.knudsenlaw.com

rmc@knudsenlaw.com

 

What Does your Advertising say About You?

 

 

One of the biggest trends in nursing home litigation has been changing poor care negligence cases into commercial large-scale consumer fraud cases.  The bases of these claims all hinge on marketing material produced by the nursing home.  This series of articles will discuss various claims that may be possible based on false, misleading or inaccurate statements made about a particular facility.  First, some marketing professionals are under the misimpression that statements made as an opinion or as “puffery” cannot be actionable; statements like “in my opinion this facility offers the best wound care in the county” could result in liability under the right circumstances.

An example of vague statements being actionable  was decided by the Nebraska Supreme Court in Henderson v. Forman,  231 Neb. 440, 436 N.W.2d 526 (1989).  The case arose out of the purchase of the Candlelight Inn in Scottsbluff. The buyer contended the seller had told him the roof was “in good shape,” “there were no problems” and a drainage system would keep moisture out of the basement, but after the purchase, design defects in the roof and the drainage system resulted in serious water problems.  The Nebraska Supreme Court  held that the seller’s statements that the roof was “in good shape” and the drains would keep the basement dry could be actionable. The court stated:

[I]n this case the statement was more than a guess. Forman said the roof "was in good shape [and] there were no problems," and this in the face of his knowledge that one of the roofing experts had said that the roof needed replacing.  (Emphasis supplied.)

 

Id. at 448, 436 N.W.2d at 432. The court found the seller’s statements about the drainage system keeping water out of the basement were in a “similar category”; he had said the drainage system would protect the basement from excessive moisture, which was false. Under these circumstances, the statements could be actionable.

Jeanelle R. Lust

www.knudsenlaw.com

jlust@knudsenlaw.com