Unreported / Non-Citable
Background
Rebecca Fraser filed an EEOC charge alleging sex discrimination, harassment, and retaliation by the University of Texas Medical Branch. On December 1, 2022, the EEOC issued a Determination and Notice of Rights and sent it to Fraser and her attorney by email and mail.
Fraser filed suit on March 8, 2023. The district court dismissed her Title VII claims under Rule 12(b)(6), concluding that the action was filed outside Title VII’s 90-day period, and denied further leave to amend. Fraser appealed, arguing that she did not receive notice until December 9, 2022, that equitable tolling should apply, and that she should have been allowed to amend her complaint again.
The Court’s Holding
The Fifth Circuit affirmed. Because the record did not establish the date on which Fraser’s attorney received the mailed notice, the court applied its three-day presumption of receipt. That placed receipt on December 4, 2022. Receipt by either Fraser or her attorney started the 90-day limitations period, so the lawsuit filed 94 days later, on March 8, was untimely. The court therefore did not need to decide whether the separate email notices were sufficient.
The court also held that Fraser forfeited equitable tolling by failing to raise it in the district court. Finally, it found no abuse of discretion in denying further amendment because Fraser had previously received an opportunity to address the timeliness defect but did not cure it, making another amendment unproductive.
Key Takeaways
- Under Title VII, receipt of an EEOC right-to-sue notice by either the claimant or the claimant’s attorney begins the 90-day filing period.
- When the actual receipt date of a mailed notice is unknown, the Fifth Circuit applies a three-day presumption of receipt.
- A plaintiff may forfeit equitable tolling by failing to raise it in the district court, and leave to amend may be denied after prior amendments fail to cure the same defect.
Why It Matters
The unpublished decision underscores the strict enforcement of Title VII’s 90-day filing deadline and the consequences of uncertainty about counsel’s receipt of an EEOC notice. Attorneys should track mailed and electronic notices promptly and preserve any equitable-tolling argument in the trial court.