Sixth Circuit Sanctions Attorney for late Age Discrimination filing

Attorneys beware!  The Sixth Circuit Court of Appeals, in the case of Carter v Hickory Healthcare Inc, ___ F3d ___ (6th Cir Sept. 2018), affirmed a trial court’s imposition of almost $26,000 in sanctions against plaintiff’s attorney “because he had advanced a claim that was clearly time barred.”  The Carter court rejected the attorney’s long list of arguments on appeal, including that his client’s claims were equitably tolled.

In 2007, Ms. Carter had filed charges of disability discrimination with the Ohio Civil Rights Commission [OCRC].  The OCRC informed her it filed a “parallel charge” with the EEOC.  In November 2013, after six years, the OCRC ruled for Carter and ordered defendant to reinstate her and pay her lost wages.

Carter then asked the EEOC for a right-to-sue letter.  The EEOC sent her such right-to-sue notice dated February 20, 2014, but sent it to an old address from which she had moved.  Carter did not receive the right-to-sue notice before the 90-day deadline for filing a federal court lawsuit.

Carter’s attorney, Gilbert, filed suit on December 9, 2014 – almost 200 days after the 90-day deadline.  Before filing suit, Gilbert had obtained from the EEOC a copy of its February 20, 2014 right-to-sue letter.

The trial court granted defendants’ motion for summary judgment and sanctions.  On appeal, the Sixth Circuit affirmed over Gilbert’s objections.  Highlights from the Carter court’s ruling include:

  • “A claimant must inform the Commission of any change in her address” [29 CFR § 1601.7(b)].
  • The regulation requiring sending a right-to-sue letter to attorneys “applies only to public sector claims, not private ones like Carter’s.”
  • “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.’”
  • Carter and her attorney could not rely on “the assumption that the Ohio Agency (which she told about her new address) would inform its federal counterpart about her move.”
  • Even if Carter made an “honest mistake” about the two agencies’ cooperation, such mistake “doesn’t qualify as misleading.”
  • “Maintaining a clearly time-barred lawsuit constitutes a classic example of conduct that warrants a sanction.”

If any employee or employer is faced with a similar issue, attorney Robert M. Sosin [248-642-3200 / robert@asnlaw.com] would be pleased to discuss the matter in more detail.

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