Got an EEOC Right-to-Sue Letter? Your 90-Day Clock in New York

Take a hypothetical. A billing coordinator at an orthopedic practice in Mineola asked for a later start time after surgery and was let go a month later, then filed an EEOC charge under the Americans with Disabilities Act. Ten months on, a letter arrives: the EEOC is closing its file, and a page talks about a right to sue. The coordinator reads it as a loss.

It is a deadline, not a loss. This post covers what the letter decides, when its 90 days start, and the New York clocks that run beside it. Which door to open first is the subject of our post on the EEOC charge versus a New York lawsuit, and our Long Island EEOC lawyer page covers the charge process. This is general information, not advice about any one claim.

What the letter is, and what it does not decide

The EEOC sends this notice when it dismisses a charge, when it finds no reasonable cause, when it found cause but chose not to sue, and when you ask for it (for a government employer, sometimes the Attorney General issues it instead); the title on the page varies. The notice must include authorization to sue “within 90 days from receipt of such authorization,” the charge, and “the Commission’s decision, determination, or dismissal” (29 C.F.R. § 1601.28(e)).

A dismissal is not a ruling on the merits either, and for a no-cause finding the EEOC’s rule says: “This determination does not mean the claims in the charge have no merit.”

The EEOC can reconsider a no-cause determination. A notice of intent to reconsider issued within 90 days of receipt revokes the right to sue if you have not filed and did not request the notice yourself, and a new 90 days starts when you receive the new determination. Read every page the EEOC sends after the letter.

The 90-day deadline for Title VII, ADA and age claims

Title VII sets the rule: “within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge” (42 U.S.C. § 2000e-5(f)(1)). The ADA adopts Title VII’s “powers, remedies, and procedures,” so the same 90 days governs a disability claim.

Age claims differ. An age lawsuit can be filed 60 days after the charge with no notice at all; once the EEOC dismisses the charge or ends its proceedings, the ADEA allows suit “within 90 days after the date of the receipt of such notice” (29 U.S.C. § 626(e)).

The lawsuit follows the charge, so pull out your charge and confirm it names the employer you mean to sue.

When the 90 days start

The deadline counts from receipt, so the question in a late case is when receipt happened. The Second Circuit Court of Appeals answered it in Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d Cir. 1996): “Normally it is assumed that a mailed document is received three days after its mailing,” and an agency notice is assumed mailed on the date shown on it. Those presumptions give way to “sworn testimony or other admissible evidence” that the notice was mailed later or took longer than three days to arrive.

Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35 (2d Cir. 2011), added that the 90 days begin when the letter “is first received either by the claimant or by the claimant’s counsel, whichever is earlier.” There, the letter issued November 24, 2010, receipt was presumed November 27, 2010, and the complaint came 93 days later. The disability claim was dismissed as untimely.

Count from the earliest date anyone on your side had the letter, and keep the envelope or message that brought it. The chart below puts every date in order.

Asking for the letter before the EEOC finishes

You do not have to wait for the investigation to end. If you ask in writing more than 180 days after the charge was filed, against a private employer, the EEOC “shall promptly issue” the notice (29 C.F.R. § 1601.28(a)(1)). Before 180 days, it may issue one only if a director certifies that the agency probably cannot finish within 180 days.

The early letter ordinarily ends the EEOC’s work on the charge; in the agency’s words, “If you want the EEOC to continue investigating your charge, don’t request a Notice of Right to Sue.” Against a government employer, such as a county or a school district, the Attorney General, not the EEOC, issues a notice you request. Ask early only when you are ready to file.

New York’s routes run on their own clocks

The State Human Rights Law gives “a cause of action in any court of appropriate jurisdiction for damages,” with punitive damages against private employers (Executive Law § 297(9)). The election-of-remedies rule in that subdivision is explained in our EEOC charge or New York lawsuit post; the part that matters here is the carve-out: a complaint the EEOC sends to the state agency “shall not constitute the filing of a complaint within the meaning of this subdivision.”

The state claim has three years under CPLR 214(2), which the Court of Appeals has applied to Human Rights Law suits (Koerner v. State of New York, 62 N.Y.2d 442 (1984)), counted from when the claim accrued, not from any EEOC event. For a job in New York City, the city’s Human Rights Law adds a court action with punitive damages and its own three years (Admin. Code § 8-502).

New York State law is on the vanguard of protecting employees’ rights. The EEOC investigation is conducted under federal law, like Title VII or the ADA. But the state claim, often, is a bigger claim. And the state clock doesn’t wait for the letter to come from the EEOC. New York State law gives you three years, and the three years are counted not from when the letter comes, but from when the cause of action accrued, that means when it happened, right? So when the letter comes, count both clocks.

Plan as if the state clock ran the whole time the charge sat at the EEOC. The cards below set the four laws side by side.

Federal court or state court

The EEOC says the notice “gives you permission to file a lawsuit in federal or state court.” The difference starts with the complaint. Federal court requires “enough facts to state a claim to relief that is plausible on its face” (Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)); New York requires statements “sufficiently particular to give the court and parties notice” of what will be proved and “the material elements of each cause of action” (CPLR 3013).

So the letter that you got lets you sue in either federal or state court, right? And it matters which one you choose, because federal court is fact-based pleading, which means your facts have to lead to a plausible cause of action or else you face a motion to dismiss. New York, on the other hand, is notice pleading, meaning that you give notice of what happened and the elements of each cause of action. In my opinion, summary judgment is the make-or-break point, and the state-court standard is more plaintiff friendly than federal court. But if the complaint has a federal claim, then the employer can remove it to federal court.

Removal runs one way: a state-court case a federal court could have heard “may be removed by the defendant” (28 U.S.C. § 1441(a)). And if the federal claims are dismissed in federal court, the judge may decline to hear the state claims, as happened in Tiberio; the state limitations period is tolled while they are pending and for 30 days after dismissal, unless state law gives longer (28 U.S.C. § 1367(d)). The summary judgment view above is my judgment from practice, not a rule; our page on why most discrimination cases never reach a jury explains that stage. Choose the court with the state claims in view.

If the employer retaliated after the charge

Filing a charge is protected activity. Title VII forbids discriminating against an employee “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing,” and Executive Law § 296(7) forbids retaliation for opposing discrimination, filing a complaint or requesting a reasonable accommodation. Where the complaints at work were also about unpaid wages or another Labor Law violation, Labor Law § 215 adds a lawsuit with liquidated damages (not for state or municipal employees) if the employee reasonably and in good faith believed the conduct violated the Labor Law; where they were about conduct the employee reasonably believed broke a law, rule or regulation, Labor Law § 740 adds a lawsuit with a jury. Each runs two years from the retaliatory act.

The EEOC warns that “the strict deadlines for filing a charge also apply when you want to amend a charge,” so a firing after the charge may need its own charge on its own clock. Our post on the retaliation standard after 2019 covers how those claims are proved.

What to do in the first week

Write down the date printed on the notice, the date you first saw it, and the date your lawyer got it, if you had one at the EEOC. Keep the envelope or the message.

Gather the charge, everything you sent the EEOC, and the employer’s position statement if you requested it through the Public Portal. Then ask for the charge file, by a FOIA request or a Section 83 request, which the EEOC calls “a simpler means, with few formal requirements”: a signed letter to the District Director for the office holding the records, generally where the charge was filed. The EEOC gives a charging party 90 days after the notice to request the file; after that, the request must include a court-filed complaint.

You don’t want to wait for the file. You can request it, but don’t sit there waiting for it, because it may not come in time, and that is no excuse for not bringing your lawsuit within 90 days after you get the Notice of Right to Sue letter. So write down when you received the letter, and call a lawyer that week.

Talk to a lawyer before day 60, not on day 89.

Back to the billing coordinator in Mineola

The letter did not decide the coordinator’s case. The first job is the date on the notice and the day it arrived; the second is the charge file, requested this week. The ADA claim has 90 days from receipt. The State Human Rights Law claim has three years from the firing, and close to a year of that has already run. A lawyer should have the file well before day 60.

Our checklist for the first 24 hours after a wrongful termination lists what to save if the job ended recently.

Sources

• 42 U.S.C. § 2000e-5, Enforcement provisions (Title VII)
• 42 U.S.C. § 2000e-3, Other unlawful employment practices (retaliation)
• 42 U.S.C. § 12117, Enforcement (ADA)
• 42 U.S.C. § 1981a, Damages in cases of intentional discrimination
• 29 U.S.C. § 626, Recordkeeping, investigation, and enforcement (ADEA)
• 28 U.S.C. § 1441, Removal of civil actions
• 28 U.S.C. § 1367, Supplemental jurisdiction
• 29 C.F.R. § 1601.18, Dismissal
• 29 C.F.R. § 1601.19, No cause determinations
• 29 C.F.R. § 1601.28, Notice of right to sue
• 29 C.F.R. § 1626.17, Notice of dismissal or termination (ADEA)
• Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d Cir. 1996)
• Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35 (2d Cir. 2011)
• Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
• Koerner v. State of New York, 62 N.Y.2d 442 (1984)
• New York Executive Law § 297, Procedure
• New York Executive Law § 296, Unlawful discriminatory practices
• CPLR 214, Actions to be commenced within three years
• CPLR 203, Method of computing periods of limitation
• CPLR 3013, Particularity of statements generally
• New York Labor Law § 215
• New York Labor Law § 740
• N.Y.C. Administrative Code, Title 8, Chapter 5 (§ 8-502)
• EEOC, Filing a Lawsuit
• EEOC, What You Can Expect After You File a Charge
• EEOC, Time Limits for Filing a Charge
• EEOC, Section 83 Disclosure of Information in Charge Files
• EEOC, FOIA Frequently Asked Questions

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The EEOC’s letter ends the agency’s part; the claim is decided in court. Our employment law practice handles discrimination and retaliation claims for employees in Nassau and Suffolk.

If the EEOC just sent you a right-to-sue notice, call (516) 750-0595 with the notice and its envelope in hand, or request a free case review.