Matthew Maggio v. Wisconsin Ave. Psychiatric Ctr , 795 F.3d 57 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 11, 2014 Decided July 24, 2015
No. 13-7181
MATTHEW MAGGIO,
APPELLANT
v.
WISCONSIN AVENUE PSYCHIATRIC CENTER, INC,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01255)
Arinderjit Dhali argued the cause and filed the briefs for
appellant.
Alan S. Block argued the cause for appellee. With him on
the brief was Andrew Butz.
Before: ROGERS, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Dissenting opinion filed by Circuit Judge ROGERS.
2
RANDOLPH, Senior Circuit Judge: The issue in this appeal
is whether, as District Judge Lamberth ruled, 42 U.S.C. § 2000e-
5(f)(1) barred Matthew Maggio’s civil action alleging
discrimination because he brought it too late.
The dates matter so we will give them. On May 11, 2012,
Maggio completed a “Charge of Discrimination” and had it
submitted to the Washington, D.C. office of the U.S. Equal
Employment Opportunity Commission (“EEOC”). His charge,
contained on the EEOC’s Form 5, alleged that in December
2011 Maggio’s employer fired him because he was male. On
Form 5, Maggio swore that his statements were true and listed
his address as “3032 Rodman Street, NW, Apt. 35, Washington,
DC 20008.” At the time he was not living at that address. A
month earlier he had moved to South Carolina.
On November 26, 2012, the EEOC mailed a right-to-sue
notice to Maggio at his Rodman Street address. Under 42
U.S.C. § 2000e-5(f)(1), if a complainant decides to sue his
employer, he must bring the action “within ninety days after the
giving” of the notice. See also Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 149-50 (1984) (per curiam). The EEOC’s
notice so informed Maggio and stated that if he did not bring a
civil action within ninety days his “right to sue based on this
charge will be lost.” According to Maggio, he never received
the notice, doubtless because he was then living in South
Carolina. (No evidence indicates that Maggio left a forwarding
address with the post office after he vacated his Rodman Street
apartment in April 2012.)
Although by law Maggio could bring an action if the EEOC
had not resolved his discrimination charge within 180 days of
his May 2012 filing, see 42 U.S.C. § 2000e-5(f)(1), it was not
until June 2013 that Maggio’s attorney bothered to call the
EEOC to inquire about his client’s case. At the attorney’s
3
request, the EEOC mailed him a copy of the November 2012
right-to-sue notice. On June 21, 2013, Maggio filed his
complaint against his former employer in D.C. Superior Court.
The defendant removed the case to federal district court.
Maggio’s lawsuit began far more than ninety days after the
EEOC mailed the right-to-sue notice to his Rodman Street
address.1 Maggio never informed the agency that he was living
in South Carolina. Thus, Maggio violated his duty to notify the
EEOC “of any change in address and . . . any prolonged absence
from that current address so that he or she can be located when
necessary during the Commission’s consideration of the
charge.” 29 C.F.R. § 1601.7(b).2 Maggio acknowledged this
duty when signing Form 5, in which he declared that he “will
1
When the EEOC mails a right-to-sue notice, the presumptive
day of receipt is three-to-five days after issuance and mailing.
Baldwin, 466 U.S. at 148 n.1; Cook v. Providence Hosp., 820 F.2d
176, 179 n.3 (6th Cir. 1987). Maggio never argues that the ninety-day
limitations period did not begin until after he received actual notice.
Other circuits have rejected such an argument, noting that “when
plaintiffs fail to receive notice through their own fault, the ‘actual-
notice’ rule does not apply.” Day v. Lincoln Ins. Agency, Inc., 1 F.
App’x 521, 523 (7th Cir. 2001) (per curiam) (unpublished); see also
St. Louis v. Alverno Coll., 744 F.2d 1314, 1317 (7th Cir. 1984);
Hunter v. Stephenson Roofing Inc., 790 F.2d 472, 474-75 (6th Cir.
1986).
2
In order to avoid the conclusion that he supplied – under oath
– a false address on EEOC Form 5, Maggio’s brief states that when he
moved out of D.C. in April 2012 he had not yet decided to reside
permanently in South Carolina. But the form does not ask for a
permanent address; it asks for a “Street Address” and the “City, State
and ZIP Code,” and advises the complainant of his duty to inform the
EEOC if he changes his address. In any event, Maggio’s amended
complaint states that he was “residing” in South Carolina “from April
2, 2012 . . . to the present.”
4
advise the agencies if [he] change[d] [his] address or phone
number.”
Maggio thinks “equitable tolling” should relieve him of the
consequence of his failure to comply with the ninety-day rule.
Although he apparently does not realize it, his argument calls on
the court to engage in statutory interpretation of 42 U.S.C.
§ 2000e-5(f)(1). “Equitable tolling” is not some free floating
doctrine allowing the courts to override the will of Congress.
What matters is congressional intent, as we explained in 3M Co.
(Minnesota Mining and Manufacturing) v. Browner, 17 F.3d
1453, 1461 (D.C. Cir. 1994). The critical question is whether
Congress meant to allow courts to toll the statutory limitations
period. The answer to that question depends on “whether a
particular basis for suspending the running of the statute of
limitations had received judicial recognition when the statute
became law.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 961
(D.C. Cir. 2013);3 see Adam Bain & Ugo Colella, Interpreting
Federal Statutes of Limitations, 37 CREIGHTON L. REV. 493,
502-03 (2004). If by then the judiciary had generally recognized
it, a fair inference would be that Congress intended to permit the
tolling of the statutory limitation in similar circumstances. If
not, the courts cannot excuse a litigant’s filing after the statutory
deadline.
Maggio’s position is that he is entitled to “equitable tolling”
because he thought the EEOC would send its right-to-sue notice
3
American Meat Institute v. U.S. Department of Agriculture, 760
F.3d 18, 22-23 (D.C. Cir. 2014) (en banc), overruled only the
statement in footnote 18 of National Association of Manufacturers
describing the holding in Zauderer v. Office of Disciplinary Counsel
of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985). Zauderer
has nothing to do with this case.
5
to his attorney, and the agency did not.4 Was that a generally
recognized basis for tolling a limitations period in 1964 when
Congress enacted this statute? Neither party to this case has
addressed the question. Although we very much doubt that any
such “equitable tolling” was widely recognized in 1964, we will
not undertake to research the issue on our own. We will not do
so because we agree with the many decisions of other courts of
appeals refusing to toll the running of the ninety days in
circumstances like Maggio’s. These decisions hold that when
a complainant fails to receive a right-to-sue notice because he
gave the EEOC an incorrect address or because he neglected to
inform the EEOC when he moved, the complainant is at fault
and he is not entitled to equitable tolling. See, e.g., Abraham v.
Woods Hole Oceanographic Inst., 553 F.3d 114, 120-21 (1st
Cir. 2009); Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 813
(6th Cir. 2004) (per curiam) (unpublished); Day, 1 F. App’x at
4
Maggio’s EEOC Form 5 listed, beneath his own name, “c/o A.J.
Dhali, Esq” along with Mr. Dhali’s address.
On May 11, 2012, Maggio also filed a claim of discrimination
with the District of Columbia Office of Human Rights. On the D.C.
agency’s form he again listed his address as Rodman Street in
Washington, although he was then living in South Carolina. Maggio
withdrew his D.C. claim in short order.
Maggio’s brief and his reply brief assert that he orally requested
an individual in the D.C. Office to communicate only with his
attorney. Why this amounts to informing the EEOC of his request is
a red herring we need not pursue. Maggio never asserted this as fact
in the district court or supplied evidentiary support for it. Judge
Lamberth’s opinion thus stated correctly: “[A]t no time did Maggio
direct these agencies [the D.C. Office or the EEOC] to solely
communicate – or even dually communicate – with his counsel.”
Maggio v. Wis. Ave. Psychiatric Ctr., Inc., 987 F. Supp. 2d 38, 42
(D.D.C. 2013).
6
523; Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 385 (9th
Cir. 1997); Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th
Cir. 1989); Hunter, 790 F.2d at 475; St. Louis v. Alverno Coll.,
744 F.2d at 1316-17; see also Dyson v. District of Columbia,
710 F.3d 415, 422 (D.C. Cir. 2013); Tolling of the Time Period
for Bringing Title VII Action, 13 A.L.R. Fed. 2d 633 (2006),
§ 23 (collecting cases).5
5
Neither Maggio nor his attorney asked the EEOC to send the
notice to the attorney. Maggio cites no case law in support of his
argument that agencies are required to communicate with counsel
absent an express request that they do so. Other courts have
“explicitly rejected the argument that the EEOC must send a copy of
the right to sue notice to a plaintiff’s attorney upon request,” and
Maggio does not press this argument before us. Hopkins v. United
Parcel Serv., 221 F.3d 1334, 2000 WL 923458 at *5 (6th Cir. 2000)
(unpublished); see also Threadgill v. Moore U.S.A., Inc., 269 F.3d
848, 850-51 (7th Cir. 2001); Ball v. Abbott Adver., Inc., 864 F.2d 419,
421(6th Cir. 1988).
The cases Maggio and our dissenting colleague mainly rely on –
Coleman v. Talbot County Detention Center, 242 F. App’x 72 (4th
Cir. 2007) (per curiam) (unpublished) and Ryczek v. Guest Services,
Inc., 877 F. Supp. 754 (D.D.C. 1995) – are not to the contrary. In
Coleman, plaintiff’s counsel “explicitly requested that copies of all
correspondence be forwarded to [counsel,]” and counsel both wrote
and telephoned the EEOC seeking the right to sue letter. Coleman,
242 F. App’x at 73. In Ryczek, the plaintiff provided a declaration
from an EEOC employee admitting that the right to sue letter was
mistakenly sent to a temporary address of the plaintiff and not to the
permanent one on file with the EEOC. Ryczek, 877 F. Supp. at
757-58. In contrast, neither Maggio nor his counsel ever informed the
EEOC that it should communicate with counsel directly.
7
In the words of a maxim of equity, Maggio came into court
without “clean hands.”6
Affirmed.
6
We have considered and rejected Maggio’s other arguments.
ROGERS, Circuit Judge, dissenting: Today the court holds
that whenever a complainant fails to update his address with the
Equal Employment Opportunity Commission (“EEOC”) and
therefore fails to receive a mailed right-to-sue notice, the
complainant is not entitled to equitable tolling regardless of
what other measures the complainant took to ensure receipt of
the notice. This is not the law. A complainant, like Matthew
Maggio, is entitled to equitable tolling if the record “shows (1)
that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(citation and internal quotation marks omitted); see Dyson v.
District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013). Here,
the record shows that during a time of personal upheaval, when
his permanent mailing address was uncertain, Maggio took
reasonable steps to direct the EEOC to send his right-to-sue
notice to his attorney. The EEOC failed to follow his
instructions. Neither this court’s precedent nor that cited by the
court today require more. Because Maggio exercised reasonable
diligence and circumstances beyond his control prevented his
timely filing of his complaint, he is entitled to receive the
benefit of equitable tolling, see Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982); Gordon v. Nat’l Youth Work
Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982), and, accordingly,
I respectfully dissent.
I.
Title VII encourages the informal resolution of employment
discrimination disputes by requiring complainants to file charges
first with the EEOC or the appropriate state or local agency
before proceeding to federal court. 42 U.S.C. §§ 2000e-5(e)(1),
(f)(1); see Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S.
355, 368 (1977); Martini v. Fed. Nat’l Mortg. Ass’n, 178 F.3d
1336, 1340, 1346–47 (D.C. Cir. 1999). The EEOC coordinates
with state and local agencies, like the D.C. Office of Human
2
Rights (“OHR”), to streamline the processing and investigation
of charges. See 42 U.S.C. § 2000e-8(b); 29 C.F.R.
§§ 1601.13(c), 1626.10; Schuler v. PricewaterhouseCoopers,
LLP, 514 F.3d 1365, 1372–74 (D.C. Cir. 2008). Pursuant to the
worksharing agreement between the EEOC and the OHR, they
“each designate the other as its agent for the purpose of
receiving and drafting charges.” Pl.’s Opp’n Def.’s Mot.
Dismiss, Ex. 2, Worksharing Agreement ¶ II.A. Charges
received by the OHR are “deemed received” by the EEOC. See
29 C.F.R. § 1626.10(c); cf. Schuler, 514 F.3d at 1372.
Because Maggio is appealing the dismissal of count I of his
amended complaint for lack of timeliness pursuant to Federal
Rule of Civil Procedure 12(b)(6), this court must “accept all
factual allegations in the complaint as true” and “consider the
complaint in its entirety, as well as other sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007); see, e.g., Gordon v. U.S. Capitol
Police, 778 F.3d 158, 163–64 (D.C. Cir. 2015). The court may
also consider documents that are undisputed by the parties. See
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997);
Hollis v. U.S. Dep’t of the Army, 856 F.2d 1541, 1544 (D.C. Cir.
1988).
Notwithstanding the worksharing agreement, the record
shows that information received by the OHR is not necessarily
passed on to the EEOC. Maggio submitted an intake
questionnaire to the OHR on April 8, 2012, on which he noted
that he was represented by an attorney. A copy of this
questionnaire, which both parties attached to their motions in the
district court, shows that Maggio supplied his attorney’s name,
address, and telephone number. Maggio listed his own address
3
as “3032 Rodman Street, NW, Apt. 24, Washington D.C.
20008.” Maggio and his attorney, A.J. Dhali, both attended the
intake meeting with the OHR on May 11, 2012, where Maggio
filled out EEOC Form 5, the form used to cross-file a charge
with the OHR and the EEOC. EEOC Form 5, unlike the OHR’s
intake questionnaire, does not provide space for a complainant
to indicate representation by an attorney. Maggio, however,
indicated such representation in the box for his name. There,
Maggio wrote his own name and immediately below, within the
same box, “c/o A.J. Dhali, Esq, 1629 K Street, NW, Suite 300,
Washington, DC 20006.” In the box for “Home Phone,”
Maggio put his attorney’s email address,
“ajdhali@dhalilaw.com,” and his attorney’s telephone number.
Maggio put his Rodman Street address in the box for “Street
Address.”
Although listing his Rodman Street address on the OHR
intake questionnaire and EEOC Form 5, on or about April 1,
2012, Maggio temporarily had gone to South Carolina to care
for his mother, who was in the final stages of Alzheimer’s
Disease. In opposing the motion to dismiss his complaint,
Maggio explained that at that time he was “between residences”
and “continued to receive mail at the D.C. address, and also
continued to apply for jobs within the District,” having not yet
decided to relocate permanently to South Carolina. Pl.’s Opp’n
Def.’s Mot. Dismiss 11. Although his move became permanent
around September 2012 and he did not update his address with
the EEOC, Dhali remained his attorney and Dhali’s address
remained accurate.
Notwithstanding the “c/o” and Maggio’s attorney’s name,
title, and full address on EEOC Form 5, on November 26, 2012,
the EEOC mailed a right-to-sue notice only to Maggio’s
Rodman Street address. Maggio did not receive this notice, and
the EEOC did not mail the notice to his attorney. When his
4
attorney contacted the EEOC by telephone and fax on June 4,
2013, and again by telephone ten days later, the 90-day statute
of limitations to file suit had expired, see 42 U.S.C. § 2000e-
5(f)(1). On June 17, 2013, the EEOC’s D.C. field office emailed
Dhali requesting a letter of representation; Dhali emailed the
letter the same day, and the EEOC then emailed the right-to-sue
notice to Dhali. Maggio, through Dhali, filed suit on June 21,
2013.
II.
The Supreme Court and this court have repeatedly
recognized that “Congress expected that the administrative stage
of the Title VII process would be conducted by laymen — not
lawyers,” Bethel v. Jefferson, 589 F.2d 631, 643 (D.C. Cir.
1978); see EEOC v. Commercial Office Prods. Co., 486 U.S.
107, 124 (1988); Howard v. Pritzker, 775 F.3d 430, 443 (D.C.
Cir. 2015); Rozen v. District of Columbia, 702 F.2d 1202,
1203–04 (D.C. Cir. 1983). Consequently, agencies must take
care not to “extinguish rights . . . simply by creating procedural
labyrinths,” Bethel, 589 F.2d at 643; see Love v. Pullman Co.,
404 U.S. 522, 527 (1972); Coles v. Penny, 531 F.2d 609, 614–15
(D.C. Cir. 1976). That Maggio was represented by an attorney
does not afford the court leave to abandon him to “a web of
procedural traps,” Bethel, 589 F.2d at 640 (citation and internal
quotation marks omitted); “[t]he fact that the particular
complainant might have had an attorney at one stage of the
process is of no relevance, for [Title VII] must be given a
construction rendering its mechanisms workable in the hands of
laymen generally,” id. at 642 n.67; see Schuler, 514 F.3d at
1376; see also Commercial Office Prods. Co., 486 U.S. at 124;
Bethel, 589 F.2d at 641 n.61.
This circuit is not alone in recognizing the EEOC’s
responsibility to guide complainants through the administrative
5
process. To that end, our sister circuits and other courts have
avoided penalizing plaintiffs who failed to notify the EEOC of
changes in address when they reasonably relied on the EEOC to
send correspondence to their attorneys. As the Fourth Circuit
acknowledged in Coleman v. Talbot County Detention Center,
242 F. App’x 72, 74 (4th Cir. 2007), “it is not at all
unreasonable for a layperson who has retained counsel to
assume that all further matters will be handled by her attorney.”
Although the plaintiff had failed to apprise the EEOC of her
change of address, the Fourth Circuit nevertheless concluded
that “the primary fault is that of the EEOC for not — as both
counsel and Coleman reasonably expected — sending a copy of
the right-to-sue letter to counsel.” Id.; see also Stallworth v.
Wells Fargo Armored Servs. Corp., 936 F.2d 522, 525 (11th Cir.
1991); Pole v. Citibank, N.A., 556 F. Supp. 822, 823 (S.D.N.Y.
1983). Having taken the “reasonable step[]” of instructing the
EEOC to contact him in care of Dhali, see St. Louis v. Alverno
Coll., 744 F.2d 1314, 1317 (7th Cir. 1984), and failing to receive
his right-to-sue notice through “‘fortuitous circumstances’ or
‘events beyond his control,’” i.e., the EEOC’s disregard of his
written instruction, see Lewis v. Conners Steel Co., 673 F.2d
1240, 1243 (11th Cir. 1982) (citation omitted), Maggio is
entitled to equitable tolling.
A.
Maggio reasonably expected the EEOC to send
correspondence regarding his case to his attorney, Dhali,
because he directed the EEOC to do so on the charge form,
EEOC Form 5. The court’s conclusion that Maggio is not
entitled to equitable tolling hinges on the fact that Maggio
supplied an incorrect address for himself on EEOC Form 5. Op.
at 5–6. But Maggio may prove his diligence by showing that he
“had notified the EEOC that he had moved or had taken
reasonable steps to ensure that he would receive mail delivered”
to his previous residence. See St. Louis, 744 F.2d at 1317
6
(emphasis added) (citing Pole, 556 F. Supp. at 823); see also
Lewis, 673 F.2d at 1243. Maggio included his attorney’s name,
title (“Esq”), and address on EEOC Form 5 after the designation
“c/o,” as well as an email address that obviously belonged to
Dhali (“ajdhali@dhalilaw.com”) and Dhali’s telephone number.
Use of the phrase “c/o,” which means “care of,” is commonly
used to designate mail that should be sent to a person through a
third party, see Webster’s Third New International Dictionary
338 (1993), and was thus sufficient to alert the EEOC that mail
on this matter was to be sent to Maggio through Dhali.
Furthermore, the information that Maggio provided on EEOC
Form 5 made clear that Dhali was an attorney: Black’s Law
Dictionary defines “Esq.,” or “esquire,” as “[a] candidate for
knighthood,” “[a] member of the gentry whose rank was inferior
to that of a knight,” “[a] landed gentleman,” and “[a] title of
courtesy commonly appended after the name of a lawyer.”
Black’s Law Dictionary 663 (10th ed. 2014). Lest there be some
doubt that Maggio was not referring to Dhali in his capacity as
landed gentry, Dhali’s email domain is listed on EEOC Form 5
as “dhalilaw.com.” The fact that Maggio supplied an email
address that belonged to Dhali, not himself, should have further
alerted the EEOC that Maggio expected the agency to
communicate with Dhali.
The court dismisses Maggio’s attempts to alert the EEOC
and the OHR to his representation by an attorney for the reason
that Maggio never explicitly directed either agency to
communicate with his attorney. Op. at 5 n.4, 6 n.5; see also
Maggio v. Wis. Ave. Psychiatric Ctr., Inc., 987 F. Supp. 2d 38,
42 (D.D.C. 2013). Not so. The meaning of “c/o” is “not
ambiguous.” Cf. In re NETtel Corp., Inc., 364 B.R. 433, 461
(Bankr. D.D.C. 2006) (citation and internal quotation marks
omitted). Nor, in the present context, is the title “Esq.,” and it
was not unreasonable for Maggio to expect correspondence
would be sent to Dhali after the EEOC was apprised of
7
Maggio’s representation. Significantly, the EEOC’s compliance
manual directs its employees to send a right-to-sue notice to
both the charging party and his attorney. 1 EEO Compliance
Manual § 6.5(b). No other meaning, and the court suggests
none, could reasonably have been ascribed by the EEOC to the
information on Maggio’s EEOC Form 5 other than that Dhali
was Maggio’s attorney and correspondence regarding Maggio’s
case should be directed to his attorney. The cases on which the
court relies for the suggestion that the EEOC is not required to
send a right-to-sue notice to a complainant’s attorney, see Op.
at 6 n.5, are inapposite. In each, the complainant or the
complainant’s attorney had received actual notice that the right-
to-sue letter had been sent, and suit still was not timely filed.
See Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850–51 (7th
Cir. 2001); Hopkins v. United Parcel Serv., 221 F.3d 1334, 2000
WL 923458, at *4–5 (6th Cir. 2000) (unpublished); Ball v.
Abbott Adver., Inc., 864 F.2d 419, 421 (6th Cir. 1988).
Furthermore, if Maggio’s EEOC Form 5 was ambiguous,
the fault lies with the EEOC, not Maggio. Maggio not only
alerted the OHR on its intake questionnaire that Dhali was his
attorney, he also included information on EEOC Form 5 itself
that was sufficient to alert the EEOC that he was represented by
an attorney and, in any event, that correspondence should be
directed to Dhali. The OHR, it turns out, does not automatically
share its intake questionnaires with the EEOC, and unlike the
OHR intake questionnaire, EEOC Form 5 does not contain a
space for a claimant to indicate representation by an attorney.
Although Maggio failed to update his own address, there is no
equity in dismissing Maggio’s complaint as untimely when he
took reasonable steps to ensure that his attorney would receive
notice from the EEOC and any confusion easily could have been
avoided if EEOC Form 5 included space for complainants to
indicate representation by an attorney and to instruct the EEOC
to direct correspondence to the attorney. The court holds
8
Maggio to the EEOC Form 5 reference to the requirement to
update his address, see Op. 3, 5, but not the EEOC to what was
clear on the face of its own form.
B.
A further consideration weighing in Maggio’s favor that the
court ignores altogether is the agency relationship established by
the worksharing agreement. Maggio contends that knowledge
of his representation by an attorney should be imputed to the
EEOC through the EEOC’s agency relationship with the OHR.
The worksharing agreement between the OHR and the EEOC
provides that they are each other’s agents “for the purpose of
receiving and drafting charges.” Worksharing Agreement
¶ II.A. “An agent has actual authority to take . . . acts necessary
or incidental to achieving the principal’s objectives.”
RESTATEMENT (THIRD) OF AGENCY § 2.02 (2006). “[I]t is
natural to assume that the principal wishes, as an incidental
matter, that the agent take the steps necessary and that the agent
proceed in the usual and ordinary way” to accomplish the
principal’s objectives. Id. cmt. d. Furthermore, “notice of a fact
that an agent knows . . . is imputed to the principal if knowledge
of the fact is material to the agent’s duties to the principal.” Id.
§ 5.03; see In re Color Tile Inc., 475 F.3d 508, 513 (3d Cir.
2007); Martin Marietta Corp. v. Gould, Inc., 70 F.3d 768, 773
& n.4 (4th Cir. 1995); Bowen v. Mount Vernon Sav. Bank, 105
F.2d 796, 798–99 (D.C. Cir. 1939).
The defendant, Maggio’s former employer, urges a narrow
reading of the worksharing agreement, maintaining that the
OHR is not the EEOC’s agent for the purpose of receiving
instructions about communicating with a complainant’s
attorney, even though Maggio provided his attorney’s name and
contact information on the OHR intake questionnaire he filed to
initiate the process of filing a charge. Such a reading is at odds
with our precedent, which recognizes that “[t]hese worksharing
9
agreements are meant to ease charges through the remedial
system, not to erect hurdles claimants must decipher and
overcome,” Schuler, 514 F.3d at 1374. Thus, “[t]he DC OHR’s
and EEOC’s procedural requirements are to be read broadly and
flexibly in the employee’s favor in light of their remedial
purposes and because they are designed for laypersons.”
Esteños v. PAHO/WHO Fed. Credit Union, 952 A.2d 878,
885–86 (D.C. 2008). “These agreements are intended to
eliminate duplication of effort between the agencies and to
provide an efficient procedure for claimants to seek redress for
their grievances.” Laquaglia v. Rio Hotel & Casino, Inc., 186
F.3d 1172, 1177 (9th Cir. 1999); accord Nichols v. Muskingum
Coll., 318 F.3d 674, 679 (6th Cir. 2003). A “restrictive
interpretation” of the acts constituting receiving and drafting
charges “would not further these goals.” See Laquaglia, 186
F.3d at 1177.
The worksharing agreement’s agency provision is designed
to help complainants easily initiate Title VII’s administrative
process — i.e., file a charge — without having to worry about
approaching the correct office. See Esteños, 952 A.2d at 886.
Collecting information about the complainant’s representation
by an attorney is a normal part of the intake process — notably,
both the OHR and the EEOC’s intake questionnaires ask for
information about representation by an attorney, see Pl.’s Opp’n
Def.’s Mot. Dismiss, Ex. 6, OHR Employment Intake
Questionnaire; EEOC, Intake Questionnaire 4 (2009),
ht t p: / / www.eeoc.gov/ for m/ upl oad/ Uni for m- I nt a ke-
Questionnaire.pdf (last visited July 10, 2015). Collecting this
information is thus the usual way for an agency to “receive”
information relevant to a charge and is “material to the [OHR’s]
duties to the [EEOC].” See RESTATEMENT (THIRD) OF AGENCY
§ 5.03; see also id. § 5.02(1). Maggio’s notification to the OHR
that he was represented by an attorney therefore put the EEOC
on notice as to same. Id. §§ 5.02–5.03; see Martin Marietta
10
Corp., 70 F.3d at 773. Requiring complainants to separately
inform the OHR and the EEOC that they are represented by an
attorney, where neither intake questionnaire so requires, is
precisely the kind of bureaucratic technicality resulting in
duplication of effort that Title VII and the worksharing
agreements were designed to avoid. See Love, 404 U.S. at 527;
Laquaglia, 186 F.3d at 1177.
C.
The court’s suggestion otherwise notwithstanding, the
conclusion that Maggio is entitled to the benefit of equitable
tolling is consistent with our precedent. In Dyson, 710 F.3d at
421–22, see Op. at 6, the court held that the plaintiff was not
entitled to equitable tolling of the statute of limitations for filing
an administrative charge when she waited until the very end of
the limitations period to file an intake questionnaire with the
EEOC and disregarded specific instructions to follow up with
the EEOC until after the limitations period had expired. Maggio
exhibited no such dilatory behavior. Contrary to the court’s
suggestion, Op. at 2, Maggio did not act unreasonably in waiting
13 months to contact the EEOC about his right-to-sue notice.
The Supreme Court has held that
[i]f a complainant is dissatisfied with the progress
the EEOC is making on his or her charge . . . he or
she may elect to circumvent the EEOC procedures
and seek relief through a private enforcement action
in a district court. The 180-day limitation provides
only that this private right of action does not arise
until 180 days after a charge has been filed. . . .
After waiting for that period, the complainant may
either file a private action within 90 days after
EEOC notification or continue to leave the ultimate
resolution of his charge to the efforts of the EEOC.
11
Occidental Life Ins., 432 U.S. at 361 (emphases added). The
EEOC’s regulations allow a complainant to receive a right-to-
sue notice upon request “at any time after the expiration of one
hundred eighty (180) days from the date of filing of the charge
with the Commission.” 29 C.F.R. § 1601.28(a)(1) (emphasis
added); see Martini, 178 F.3d at 1345. Case law confirms that
the EEOC regularly takes much longer than 180 days, or even
more than a year, to resolve charges. See, e.g., Robinson v. Ergo
Solutions, LLC, — F. Supp. 3d —, No. 14-379 (JDB), 2015 WL
1422138, at *6 (D.D.C. Mar. 30, 2015) (two years, four months:
charge filed in August 2011, right-to-sue notice issued in
December 2013); Olatunji v. District of Columbia, 958 F. Supp.
2d 27, 29 (D.D.C. 2013) (one year, four months: charge filed in
February 2009, right-to-sue notice issued in June 2010); Thomas
v. Wash. Metro. Area Transit Auth., 907 F. Supp. 2d 144, 147
(D.D.C. 2012) (one year, three months: charge filed in May
2010, right-to-sue notice issued in August 2011).
As this court has recognized, “Congress well understood
that the EEOC’s limited resources preclude it from investigating
every charge within 180 days but nevertheless ‘hoped that
recourse to the private lawsuit will be the exception and not the
rule.’” Martini, 178 F.3d at 1346 (citation omitted) (quoting
118 CONG. REC. 7168 (1972)); see also Occidental Life Ins., 432
U.S. at 362–66. To that end, courts have rejected the application
of state statutes of limitations and the doctrine of laches to Title
VII complaints filed in federal court after lengthy administrative
proceedings. See Kannikal v. Attorney Gen. U.S., 776 F.3d 146,
150 (3d Cir. 2015); Howard, 775 F.3d at 441–42. Congress’s
intent that Title VII claims be resolved through the
administrative process “whenever possible,” Occidental Life
Ins., 432 U.S. at 368, would likewise be frustrated by requiring
complainants to request a right-to-sue notice at the earliest
possible opportunity or risk losing the benefit of equitable
tolling down the road. And given the wide variance in the
12
amount of time the EEOC requires to resolve claims, Maggio’s
decision (through his attorney) not to contact the EEOC until
June 2013 does not, under the circumstances, show a lack of
diligence.
The court purports to be following the rule of our sister
circuits, see Op. at 5–6 & n.5, but those courts have not held that
a complainant’s failure to update his address with the EEOC is
an absolute bar to equitable tolling when he has made other
appropriate arrangements to receive mail. See Coleman, 242 F.
App’x at 74; Stallworth, 936 F.2d at 525; cf. St. Louis, 744 F.2d
at 1317. In Day v. Lincoln Ins. Agency, 1 F. App’x 521, 523
(7th Cir. 2001), the Seventh Circuit held that the plaintiff was
not entitled to equitable tolling when he did not apprise the
EEOC of his new address after his order to the post office to
forward his mail had expired, but the court acknowledged that
the plaintiff’s instruction to the post office “at least arguabl[y]
. . . created the equivalent of an accurate address for him, as long
as that instruction was in effect.” Similarly to Day, the other
cases cited by the court involve complainants who both moved
without alerting the EEOC to their new addresses and without
making appropriate arrangements to receive mail sent to their
old addresses: Abraham v. Woods Hole Oceanographic Institute,
553 F.3d 114, 120 (1st Cir. 2009); Pearison v. Pinkerton’s Inc.,
90 F. App’x 811, 813 (6th Cir. 2004); Nelmida v. Shelly
Eurocars, Inc, 112 F.3d 380, 385 (9th Cir. 1997); Hunter v.
Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986); St.
Louis, 744 F.2d at 1317. Or the cases involve complainants who
received actual notice of their right to sue in time to file within
the statute of limitations and failed to do so: Threadgill, 269
F.3d at 850–51; Hopkins, 2000 WL 923458, at *4–5; Nelmida,
112 F.3d at 385; Hill v. John Chezik Imports, 869 F.2d 1122,
1124 (8th Cir. 1989); Ball, 864 F.2d at 421; Hunter, 790 F.2d at
473. Maggio’s efforts to have the EEOC send correspondence
to him in care of his attorney, Dhali, and his diligent pursuit of
13
his rights once he received actual notice distinguish his case
from those relied on by the court.
Accordingly, because Maggio exercised reasonable
diligence in alerting the EEOC that it should send
correspondence to his attorney, and through no fault of his own
the EEOC did not do so, he is entitled to equitable tolling of the
90-day statute of limitations to file suit, and I respectfully
dissent.