To be timely, a claim for employment discrimination under the ADA, Title VII, and/or the ADEA must be filed in federal court within ninety (90) days after the plaintiff receives a right-to-sue letter from the EEOC.

For example, in Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35 (2d Cir. 2011), the plaintiff filed a charge with the EEOC alleging disability discrimination and was thereafter issued a right-to-sue letter on November 24, 2010, with copies being mailed to both the plaintiff and to the plaintiff’s attorney. However, the plaintiff didn’t file her lawsuit in federal court until February 28, 2011, ninety-six (96) days after the EEOC issued the right-to-sue letter.

There is a presumption that a mailed document is received three (3) days after its mailing, absent sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its typewritten date or that it took longer than three (3) days to reach her by mail. While the court thus presumed that the plaintiff received the right-to-sue letter on November 27, 2010, three (3) days after it was mailed, the plaintiff contended that the 90-day period should first start to run on November 29, 2010, the day her attorney received the right-to-sue letter.

The court disagreed with the plaintiff and concluded that the 90-day limitations period begins to run on the date that a right-to-sue letter is first received by either the plaintiff or by the plaintiff’s attorney, whichever is earlier. The court found that the plaintiff’s interpretation of the 90-day limitation would afford a plaintiff represented by counsel an unfair extension of time beyond her own receipt of an EEOC right-to-sue letter, simply by delaying delivery to her attorney. As such, the court dismissed her disability discrimination claim under the ADA as untimely.

If you received a right-to-sue letter from the EEOC, we recommend contacting a New York City employment discrimination attorney as early as possible to ensure that your claim is properly filed in court and is not time-barred.

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