Opinion
Case Number 01 C 3338
October 16, 2001
Defendant has moved for dismissal of plaintiff's sexual harassment complaint under Title VII of the Civil Rights Act of 1964. In September of 1995, plaintiff filed a sexual harassment claim with the Illinois Department of Human Rights ("IDHR"), who subsequently sent the file to the Equal Employment Opportunity Commission ("EEOC"). On December 15, 2000, the EEOC issued a Dismissal and Notice of Rights to plaintiff which stated that plaintiff had "failed to cooperate to the extent that it was not possible to resolve [her] charge." On January 12, 2001, plaintiff filed a Title VII sexual harassment complaint with this court, and on March 20, 2001, plaintiff voluntarily dismissed. At plaintiff's request, the EEOC reexamined her file and on April 27, 2001, sent plaintiff a letter revoking the dismissal and granting a second right to sue upon which she filed the instant complaint.
Defendants argue that plaintiff's second right-to-sue letter is invalid as a matter of law and thus, plaintiff's right to sue has expired. According to the procedures regarding the filing of a charge with the EEOC as laid out in 29 C.F.R. § 1601.21(b)(1):
In cases where the Commission decides to reconsider the dismissal or a determination finding reasonable cause to believe a charge is true, a notice of intent to reconsider will promptly issue. If such notice of intent to reconsider is issued within 90 days from receipt of notice of a right to sue and the charging party has not filed suit and did not receive a notice of a right to sue pursuant to § 1601.28(a)(1) or (2), the notice of intent to reconsider will vacate the dismissal or letter of determination and revoke the notice of right to sue. If the 90 day period has expired, the charging party has filed suit, or the charging party had requested a notice of right to sue pursuant to § 1601.28(a)(1) or (2), the letter of determination will vacate the dismissal or letter of determination, but will not revoke the notice of a right to sue.
The language of the regulation is clear. Even if' the EEOC's April 27 letter constituted a notice of intent to reconsider, it was issued after the 90-day period following the issuance of the first right-to-sue letter. Additionally, this second right-to-sue letter was issued after plaintiff filed suit. That the EEOC's April 27 letter states that plaintiff "at no time had the light to sue" and grants a second right to sue does not override the clear language of the regulation. Nor does plaintiffs contention that the EEOC's dismissal was erroneous due to a mistaken assessment of her un-cooperativeness affect the fact that the EEOC's actions come too late. Although it may seem harsh, the 90-day rule is generally inflexible. See, e.g., Wilson v. Doctors Hospital of Hyde Park, 909 F. Supp. 580, 581 (N.D. Ill. 1996) (citing multiple cases illustrating the inflexibility of the 90-day rule and stating that "[e]ven one day's delay beyond the statutory 90-day period is fatal in the absence of a specified basis for equitable tolling"). Finally, there are no grounds for equitable tolling since plaintiff had knowledge of the first right-to-sue letter. See, e.g., Ball v. Abbott Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1998) ("[A]ctual notice destroys any possible basis for applying the `equitable tolling' doctrine. . .").
Defendant's motion to dismiss is granted.