Yesterday, the Sixth Circuit affirmed
sanctions against a plaintiff’s attorney under §1927 in the amount of $25,995.32
for pursuing an ADA lawsuit that was not filed until more than nine months
after the EEOC mailed his client its right-to-sue letter. Carter v. Hickory Healthcare, Inc. No. 17-4199 (6th Cir. 9-27-18). The plaintiff had notified the OCRC of her
change of address, but had failed to similarly notify the EEOC. Thus, when the
EEOC finally mailed her RTS letter, it was sent to her former address and her
attorney did not discover this mistake for months. The Court rejected a tolling argument based
on the EEOC’s failure to mail a copy to her attorney (whose address had not
changed). “It thus is not true that “a failure by the EEOC to copy counsel on a
right-to-sue letter prevents the ninety-day period from running.” Ball v.
Abbott Advert., Inc., 864 F.2d 419, 421 (6th Cir. 1988).”
According to the Court’s opinion, the
plaintiff had filed her Charge of Discrimination six years earlier in 2007 with
the Ohio Civil Rights Commission and it was dual filed with the EEOC. The OCRC ultimately found in 2013 that she had
been subject to unlawful discrimination when she was terminated for refusing to
monitor client smoking breaks that aggravated her asthma after previously
notifying the defendant employer of her medical condition, which it had accommodated
until she was assigned a new supervisor. While the OCRC processed her dual-filed
charge, the plaintiff had moved, had notified the OCRC of her change of
address, but failed to similarly notify the EEOC. Although her attorney requested that the EEOC
issue her a RTS letter, he apparently similarly failed to notify the EEOC of
her new address. The EEOC mailed the RTS
letter to her former address and this was not discovered by her attorney for
approximately six months, even though the statute of limitations to file an ADA
action is 90 days after the RTS letter has been issued. The 90 days begins to run on the fifth day
after the EEOC mails the RTS.
[A] judge may impose sanctions under §
1927 when a lawyer objectively “falls short of the obligations owed by a member
of the bar to the court.” Red Carpet Studios Div. of Source Advantage,
Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (quotation omitted). The lawyer need not have “subjective bad
faith” but must act with “something more than negligence or incompetence.” Id. A
court may impose the sanction if an attorney “abuses the judicial process or
knowingly disregards the risk” that he will needlessly multiply the proceedings. Id.
Maintaining a clearly time-barred lawsuit constitutes a classic example
of conduct that warrants a sanction. See, e.g., Davis v. Bowron, 30 F. App’x
373, 376 (6th Cir. 2002).
The Court rejected the argument that
the employer defendant failed to mitigate its expenses by waiting to file a
summary judgment motion instead of a motion to dismiss soon after the Complaint
was filed. The defendant employer’s
attorneys had notified the plaintiff’s attorney in writing that the lawsuit was
clearly untimely and so the attorney’s liability began upon the receipt of that
letter. Interestingly, the district
court denied the employer’s Motion for Rule 11 sanctions and that decision was
not appealed.
The Court similarly rejected the
plaintiff’s argument that her notification to the OCRC of her new address
should have been sufficient after the OCRC informed her that it would share
information with the EEOC because the EEOC rules clearly provide that it must
be provided with separate notice. 29 C.F.R. § 1601.7(b). While her mistake was understandable, it was
not excusable. She could have, for instance,
inquired much earlier about why she had not received the RTS notice.
The Court also rejected the attorney’s
argument that he thought that equitable tolling would apply to suspend the 90
days due to the mistaken address and the EEOC’s failure to also send him a copy
of the RTS letter when it was mailed to his client’s former address.
But these arguments were leaky at
best, frivolous at worst. That a
regulation required the Commission to send some types of attorneys a copy of
the right-to-sue letter does not justify equitable tolling. The regulation applies only to public sector
claims, not private sector ones like Carter’s.
See 29 C.F.R. §§ 1614.103(b), 1614.605(d). It thus is not true that “a failure by the
EEOC to copy counsel on a right-to-sue letter prevents the ninety-day period
from running.” Ball v. Abbott Advert., Inc., 864 F.2d 419, 421 (6th Cir. 1988).
Much of the opinion discusses the
appropriate standard of review of a Magistrate recommendation and appellate
jurisdiction. Neither party raised this
on appeal.
NOTICE: This summary is designed merely to inform and alert you of
recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
