ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Action No. 01-cv-0029) District Judge: Honorable Gregory M. Sleet
Before: Nygaard, Cowen and MICHEL,*fn1
The opinion of the court was delivered by: Michel, Circuit Judge
Plaintiff Cynthia A. Ebbert brought an action against her former employer, DaimlerChrysler Corp., alleging that DaimlerChrysler failed to reasonably accommodate her spinal cord injury in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. SS 12101 (2000) et seq. ("ADA"). The District Court granted summary judgment to the defendant on the ground that Ebbert's complaint was untimely filed. Ebbert v. DaimlerChrysler Corp. , 192 F. Supp. 2d 303 (D. Del. 2002). The District Court based its decision on both the lapse of time and finding her ineligible for equitable tolling. Id. at 309. Ebbert's appeal focuses on two District Court findings: (1) that she had actual notice of the dismissal of her case by the Equal Employment Opportunity Commission ("EEOC"); and (2) that the statute of limitations period was started by oral notice before October 16, 2000 even though she did not receive any of the dismissal and notice letters sent to her by the EEOC until that date. The District Court concluded that telephone calls Ebbert had with EEOC staff gave her actual notice of the requisite statute of limitations information by August 2000 and because she had actual notice, the 90-day statute of limitations period for filing her ADA claim in federal court had long since expired by January 16, 2001 when she did finally file. Ebbert contends that her pre-October notice was factually deficient and, in any event, that the District Court's interpretation of sufficient notice is erroneous as contrary to the EEOC's regulations. Ebbert and the EEOC, as amicus in this appeal,*fn2 both argue that this court must defer to the EEOC's understanding of the event that commences the limitations period, namely, receipt of a letter of notice. Ebbert also maintains that she was entitled to rely on the prior oral and written instructions of the EEOC telling her to wait for the letter. Thus, according to her, the limitations period could only have started when the letter was received.
This appeal presents the question of what constitutes sufficient notice under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000e-5(f)(1) (2000), to start the 90-day limitations period. The District Court found that there was no genuine issue of material fact that Ebbert had actual notice not later than her August 2000 phone discussions with EEOC staff. We hold, however, that on the summary judgment record, DaimlerChrysler did not meet its burden of proving the absence of a genuine dispute of fact respecting proper notice. Missing from the defendant's evidence was any indication that Ebbert was told in the phone conversation of August 2000 that the 90-day limitations period was started by the phone call, as opposed to receipt of a letter of notice subsequently sent. Thus, we must conclude the District Court erroneously granted summary judgment. The judgment of the District Court will be reversed and the case remanded.
I. Facts and Procedural History
Ebbert was employed by DaimlerChrysler at an assembly plant as an apprentice pipefitter. On September 7, 1995, Ebbert was injured in a motor vehicle accident. Her spinal cord injury caused complete paralysis from the waist down. She maintains that she requested an accommodation from DaimlerChrysler so that she could continue working for the company in some capacity and was refused.
On April 28, 1997, Ebbert filed a charge of disability discrimination with the EEOC. On February 24, 1998, she informed the EEOC that she had moved and gave her new mailing address. On March 17, 1999 she received, at her new address, a letter from EEOC Supervisory Investigator, Howard Gurmankin, informing her that the EEOC was going to dismiss her case and that "the Dismissal and Notice of Rights" which the EEOC would be sending to her would "allow" her to file a private suit if she wished. Ebbert telephoned in response and was told that the follow-up letter was in the mail. A "right to sue" letter may have been sent to Ebbert's former address instead of her current address but it is not clear.*fn3 In any event, Ebbert denies ever receiving the letter and there is no undisputed evidence that she did. After waiting a month, Ebbert telephoned the EEOC again and was told that the earlier letter had been premature and the EEOC had decided to reopen her case.
Then after further investigation, the EEOC again decided to dismiss her case. The case log shows that Investigator Karin Porter told Ebbert on September 21, 1999 that the charge would be dismissed.*fn4 On November 4, 1999 the EEOC issued Ebbert a second notice letter but mailed the letter to her former address. Ebbert again denies having received this second letter and there is again no direct or undisputed proof that she did. On August 14, 2000 Ebbert sent a letter to Porter requesting a status update and shortly thereafter Porter informed her by telephone that her case was closed and that the letter had been sent some time ago. Ebbert recounted the phone conversation in her letter to Porter of August 23, 2000. On October 16, 2000 the EEOC sent Ebbert a third notice, this time to the correct address, and Ebbert instituted this lawsuit on January 16, 2001.
Ebbert testified at her deposition that she was aware that "after you receive [the notice letter], you've got 90 days" but was not sure who told her that. The trial court said that "[a]s best [sic] can be discerned from the record and the parties' briefs, this conversation [about the statute of limitations] appears to have occurred at some point during 1999." Ebbert, 192 F. Supp. 2d at 305 n.2. The trial court found that for purposes of summary judgment Ebbert had not received any notice letter before October 16, 2000 but concluded that Ebbert had other, actual notice before October 16, 2000.
The trial court also addressed her claim to equitable tolling. The trial court found that Ebbert was not diligent in pursuing her claim and concluded that, if nothing else, would prevent the court from allowing equitable tolling. The determination that Ebbert was not diligent was based on the finding that Ebbert "showed little concern for her case between approximately October 10, 1999 and August 2000." Id. at 308. The court also concluded that precedent showed it did not matter whether EEOC personnel misled the appellant into thinking that she had 90 days upon receipt of the notice letter, because a third party should not be able to destroy a defendant's immunity from untimely litigation. Id. at 309.
Finally, the trial court also concluded that Ebbert's argument that the October 16, 2000 "right to sue" letter "rescinded" the earlier letters had no merit because the EEOC regulations require other, specific actions in order for such letters to be revoked. As those actions were not taken in this case, the District Court concluded it does not matter that Gurmankin stated that the third letter rescinded the previous letters.
We exercise plenary review of the District Court's decision to grant summary judgment. See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. See F.R.C.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
If the employer in an ADA case asserts an affirmative defense, like the expiration of the statute of limitations as DaimlerChrysler did in this case, then the burden of proof for that defense rests solely on the employer. See Williams v. Runyon, 130 F.3d 568, 573 (3d. Cir. 1997) (holding that the defendant has the burden of proof regarding its affirmative defenses in Title VII actions). Proof of the expiration of the statute of limitations clearly requires proof of the lawful start date for the limitations period. It is with respect to this detail that we hold that DaimlerChrysler did not meet its summary judgment burden and, therefore, the trial court's grant of summary judgment constituted reversible error.
For ADA discrimination claims like the one Ebbert has brought, 42 U.S.C. S 2000e-5(f)(1)*fn5 requires that upon dismissal of a charge, the EEOC shall "notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought."*fn6 Thus, the statute is clear that a dismissal by the EEOC followed by notice to the person aggrieved are the two events that together start the statute of limitations period. These are, therefore, ...