Comedy of Errors Results in Harassment Case Being Remanded Says Chicago Employment Lawyer

Chicago, IL (Law Firm Newswire) March 28, 2012 – Even though the plaintiff-appellant in this case only worked eight days, she was subjected to sexual harassment on the job. What followed was a legal comedy of errors.

“This case is unusual, in that the plaintiff had only worked for the company she ultimately sued for eight days,” explained Timothy Coffey, a Chicago employment attorney and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. “DETATA v. ROLLPRINT PACKAGING PRODUCTS INC. was argued in front of the United States Court of Appeals and decided on January 12, 2011.”

The issue that eventually rose out of this case is whether or not her appeal was filed too late. There was no question as to whether or not she had properly filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). The comedy of errors and the handling of this case went from bad to worse, rapidly.

Evidently, the EEOC dismissed DeTata’s case and sent her a right-to-sue letter. It never reached her and was returned as undeliverable and put into her EEOC file. When the plaintiff called the EEOC to find out what was going on, she discovered what had happened, and the agency sent her the letter and a copy of her file. Within two months of getting the material, she filed a lawsuit.

When she got to court, the district court used the date of the plaintiff’s phone call to start the clock on the 90-day period she had to file suit. They granted Rollprint’s request to dismiss for an untimely suit. On appeal this judgment was vacated and remanded for further proceedings.

DeTata had only worked at Rollprint for eight days when she was suddenly fired without any explanation. However, her lawsuit states that when employed, her male co-workers made sexual advances and lewd remarks about her looks. She alleged there was a pattern of sexual harassment condoned by management. She complained about the conduct to an immediate supervisor, and was fired a few days later.

Apparently there was also an issue with whether or not Jewell Bracko, the director of the American Civil Rights Trust (ACRT), was representing the plaintiff. No one seemed clear on this, and a debate ensued over legal representation by this individual. It seems Bracko used ACRT’s letterhead to contact Rollprint and inform them they were not to contact the plaintiff, and that any communication should be through his office. The matter was subsequently never cleared up, and eventually was referred to on appeal as something that needed to be determined.

ACRT told DeTata to file a complaint with the EEOC. She told the EEOC that ACRT advised her to file with them. By then, it was March 9, 2009 when the EEOC dismissed her complaint and sent a right-to-sue letter to ACRT, not directly to the plaintiff. No one knows where the letter went from there, other than it came back to the EEOC. When DeTata called to ask what was happening, an EEOC worker said her file had been misplaced. She asked for the letter to be sent to her, along with a copy of her file. It took a month and a half to find her file. The materials were sent June 18, 2009.

The right-to sue-letter dated March 2, 2009 was in the package and it said a suit must be filed within 90 days of her receiving the notice. She filed a complaint, pro se, in federal court on August 18, 2009, alleging Rollprint violated Title VII by allowing a hostile work environment and retaliated against her for complaining. Her complaint also outlined the series of errors committed by the EEOC, and included support from an EEOC employee who verified they had lost her file. Rollprint asked once again for the case to be dismissed, as it was untimely. They focused on whether or not DeTata actually knew the EEOC had issued her a right-to-sue letter as early as May 2009. Rollprint said receipt of the letter was not the precipitating event, but her actual notice, and that oral notice was sufficient. In other words, if she called before May 18th, then the lawsuit of August 18th was untimely.

Initially, the district court said her 90-day filing period commenced at the end of April. The court evidently did not taken into account that she called the EEOC in late April and that the clerk stated she called in May. The court dismissed her claim without prejudice, allowing her 30 days to file an amended complaint. The plaintiff hired a lawyer and filed again. The court dismissed again, noting she had actual notice of the right to sue no later than April 30th.

The plaintiff moved for reconsideration and corrected the time of her phone call to May 2009. She cited being nervous over handling her file pro se and made an error on timing, pointing to the clerk’s statement that clearly said she called in May. The court denied the request for reconsideration without prejudice. She filed an appeal.

The issue the court tackled on appeal was whether or not the 90-day filing period runs from written notice of right to sue, or if an oral communication is sufficient. They also pointed out other issues that needed addressing, such as: whether the law requires proof of receipt of the written notice; what proof of receipt is adequate; and what would be covered in an oral communication, if that is permissible. The court also wanted to know where Bracko fit into the scenario, as perhaps notice to him may have started the filing clock.

The appeals court has consistently held the 90-day period starts running when a claimant gets the letter, not when it was mailed. Oral notice has been held, at times, to be sufficient to start the clock.

Ultimately, the appeals court vacated the district court’s judgment and remanded it for further proceedings more in line with the appeal court’s opinions. It would be incumbent upon the parties to develop evidence to understand Bracko’s role in this matter. As it stands, there are certain points of law that still need to be addressed, but when they are, there will be a greater clarification surrounding the issue of notice.

Timothy Coffey is a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. To learn more or to contact a Chicago employment attorney, visit Employmentlawcounsel.com.

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