Hawkins v. Frank Gillman Pontiac - 102 F. App'x 394 (5th Cir. 2004)

Rule:

In order to file an age discrimination suit under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. § 621 et seq., a plaintiff must first file an administrative charge with the Equal Employment Opportunity Commission (EEOC). The time period for filing suit under the ADEA is no earlier than 60 days after a charge is filed and no later than 90 days after receiving a right-to-sue letter from the EEOC. 29 U.S.C.S. § 626(d), (e). Thus, an ADEA plaintiff need not wait on a right-to-sue letter to be issued by the EEOC before he files suit. But if the plaintiff waits until the EEOC issues a right-to-sue letter, the 90-day filing requirement in ADEA is treated as a statute of limitations, and it is subject to tolling and waiver. The United States Court of Appeals for the Fifth Circuit has held that delivery of a right-to-sue letter to the address designated by the plaintiff suffices to start the 90-day filing period unless: (1) the plaintiff, through no fault of his own, failed to receive the letter or; (2) the statute should be tolled for some other equitable reason until the plaintiff actually received notice.

Facts:

Plaintiff Ervin E. Hawkins was asked to take a position that he considered a demotion because his employer, Frank Gillman Pontiac, Gillman Ltd., and the Gillman Companies ("Gillman Pontiac"), allegedly wanted to use younger people in the employee's position. The plaintiff did not accept the transfer, but resigned instead. Subsequently, the plaintiff filed a suit asserting claims under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. § 621 et seq., and for intentional infliction of emotional distress (IIED) with the Equal Employment Opportunity Commission (EEOC) in June 1993. In 1998, the EEOC issued a "right-to sue" letter that was allegedly not received by the plaintiff or his counsel. The plaintiff did not receive anything from the EEOC until October 16, 2001 and filed his complaint less than 90 days after that receipt date. The district court concluded that the ADEA claim and the IIED claim were time-barred and granted summary judgment in favor of the employer. Plaintiff sought review. 

Issue:

Did the trial court err in granting summary judgment in favor of the employer on plaintiff’s ADEA and IIED claims? 

Answer:

Yes, with respect to plaintiff’s ADEA claim.

Conclusion:

Reversing in part, the court concluded that there was evidence showing that the employee did not receive the EEOC letter before October 2001, through no fault of his own. The employee's ADEA claim had merit because the employee had presented direct evidence of age discrimination and constructive discharge. Rather than resolving the issue of whether or not the two-year limitations period for the employee's IIED claim was tolled, the court looked to the merits of the IIED claim and found that it was not actionable under Texas law.