By Dave Strausfeld, J.D.
Even though a Puerto Rico government employee filed suit under the ADA one month before
receiving an EEOC right-to-sue letter, her claim could move forward because the requirement of obtaining a right-to-sue letter is subject to waiver and the issue had been waived here, held the First Circuit, reversing dismissal of the claim. On a separate issue, the statute of limitations on her Section 1983 claim for political discrimination was not tolled by her filing of an EEOC charge, so dismissal of that untimely claim was affirmed (Martínez-Rivera v. Commonwealth of Puerto Rico
, January 29, 2016, Thompson, O.).
After being laid off, the employee filed a charge with the EEOC alleging that she was terminated based on her disability and political affiliation. She asked the EEOC for a right-to-sue letter, but before receiving one, she sued in federal court on February 17, 2011. The EEOC gave her a right-to-sue letter about a month later, on March 18.
Right-to-sue letter not a jurisdictional requirement.
While obtaining an EEOC right-to-sue letter is a mandatory precondition to filing suit under the ADA, many courts have said it is not a jurisdictional prerequisite to initiating suit. The court here agreed, noting that such a rule is consistent with Arbaugh v. Y & H Corp.
, where the Supreme Court stated: “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Agreeing with “the prevailing view,” the court in this case concluded that it is possible for an employer being sued under the ADA to waive the right-to-sue-letter requirement, given that this requirement is simply a precondition to bringing suit and is not jurisdictional in nature.
Here, the employer waived the issue, because at oral argument, “the defendants’ lawyer changed his position” and essentially agreed with the employee that the court should not have dismissed her suit on the ground that she had filed it without having a right-to-sue letter in hand. “[W]e accept defendants’ waiver,” the court stated. The issue thus waived, the court decided that it “need not ponder” the employee’s theory that her premature lawsuit was “cured” by her eventual receipt of a right-to-sue letter.
Section 1983 claim time-barred.
The employee also brought a claim for political discrimination. She alleged that when a new Puerto Rico governor took office who was affiliated with the New Progressive Party, she was laid off due to her membership in the rival Popular Democratic Party. The court never reached the merits of the claim, holding that her claim, asserted via 42 U.S.C. §1983, was untimely.
Because Section 1983 does not have its own statute of limitations, courts borrow the personal-injury limitations period from the state where the injury occurred—in Puerto Rico, one year. Here, the employee did not file suit within one year of being notified of her termination, so her only hope of satisfying the statute of limitations was to convince the court that there was some basis under Puerto Rico law for equitable tolling.
Unconvincing tolling argument.
She argued that filing her EEOC charge had caused the clock on her Section 1983 claim to start anew. “Call us unconvinced,” the court responded, pointing out that she had cited “no translated case from the Puerto Rico Supreme Court” or any other persuasive case interpreting Puerto Rico law holding that an EEOC complaint can toll the limitations period for a Section 1983 claim based on the same core of facts.
On an analogous issue, the U.S. Supreme Court has rejected a similar tolling argument on Section 1981 race discrimination claims, and the Supreme Court’s logic in its Johnson v. Railway Express Agency
decision also suggested that filing an EEOC charge does not affect the limitations period for a Section 1983 claim. Because the employee’s Section 1983 political discrimination claim here was filed outside the applicable statute of limitations and because there was no basis under Puerto Rico law for equitable tolling, the claim was properly dismissed, held the court.