Stopping a Time-Barred Action Against a Major U.S. Retailer

December 20, 2019

Epstein Becker Green successfully handled a case that presented a novel issue involving whether to equitably toll the 90-day period to commence an action under Title VII of the Civil Rights Act of 1964 (“Title VII”).

This action began with the plaintiff filing a pro se complaint in a federal court in New Jersey against our client, a major U.S. retailer, and eight individual defendants, alleging hostile work environment (race) and discriminatory and retaliatory discharge in violation of Title VII and the Pennsylvania Human Rights Act. The plaintiff filed his Title VII claims three days after the expiration of the statute of limitations. Nevertheless, the plaintiff argued that the limitations period should be “equitably tolled” (and thus extended) for three days because he was locked out of his Gmail account for the first three days after the Equal Employment Opportunity Commission emailed him a Right to Sue Letter (“Letter”). The plaintiff sought economic, compensatory, and punitive damages of an indeterminate amount.

Epstein Becker Green, on behalf of our client, moved to dismiss the plaintiff’s action, arguing that, among other things, the plaintiff’s case was time-barred. In June 2017, the court granted our client’s motion to dismiss without prejudice, finding that the plaintiff’s Title VII claims were untimely; however, the court gave the plaintiff another opportunity to amend his complaint.

When the plaintiff’s amended complaint failed to correct the deficiencies identified in the court’s June 2017 order, Epstein Becker Green, on behalf of our client, again moved to dismiss the action. In March 2018, the court dismissed with prejudice the plaintiff’s Title VII claims as being time-barred. The court pointed out that the plaintiff was aware of the Letter on the first day of the 90-day period to commence an action under Title VII. Even though the Letter was sent to his Gmail account on that first day and the plaintiff was locked out of his account until the third day, the plaintiff failed to take any action to protect his rights over the next 87 days. Therefore, the three-day lockout wasn’t “an extraordinary circumstance” justifying equitable tolling. In addition, the court dismissed the Pennsylvania law claims after declining to exercise supplemental jurisdiction.

The plaintiff appealed the case to the U.S. Court of Appeals for the Third Circuit, which dismissed the appeal in June 2019.