3.5 Procedural Issues

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

3.5 PROCEDURAL ISSUES

3.501 Filing the Claim.

A. Nondeferral States. To initiate a discrimination claim under the ADEA, an individual who has reason to believe that he or she has been discriminated against because of his or her age must file a "charge" of discrimination with the EEOC or with the designated local or state agency within 180 days of the alleged discriminatory action. ⁸⁰

B. Deferral States. The filing period is extended to 300 days in deferral jurisdictions, which are jurisdictions that have laws prohibiting age discrimination and that establish or authorize a state or local authority to grant or seek relief from those discriminatory practices. ⁸¹

Virginia is a deferral state. ⁸² But to be an effective submission to the EEOC, the state claim must be submitted within 240 days, because the state agency has 60 days to resolve the complaint before it is referred to the EEOC. ⁸³

There is a line of cases under title VII holding that a plaintiff's failure to submit a case to a state deferral agency is grounds to dismiss the case. ⁸⁴ But a number of district courts have declined to follow this line of cases, and the issue remains unresolved. ⁸⁵

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C. Federal Suit. Once an individual has filed with the proper agency, he or she may not file a lawsuit in court until 60 days after the charge has been filed with the agency. ⁸⁶ Further, as with title VII actions, the complainant must sue within 90 days after receiving a "right-to-sue" letter notifying him or her that the EEOC has terminated its proceedings. ⁸⁷

Once the employee has received the "right-to-sue" letter, and a complaint is filed, the employee is not permitted to raises any claim in court that was not included in the original EEOC filing. Instead, the employee must file an amended EEOC complaint. ⁸⁸

If the employee has filed an amended EEOC complaint, the EEOC must complete its investigation within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint. ⁸⁹ Accordingly, the employee must wait until the earlier of those dates before filing a claim in federal court. ⁹⁰

3.502 Accrual. The 180/300-day filing limitations period usually begins to run when the employee learns of or otherwise receives notice of an adverse employment decision. ⁹¹ The affected employee must begin counting from the time of notice and may not wait until he or she begins to feel the effects of the claimed discrimination. ⁹²

In a case involving alleged unlawful termination, the time for filing EEOC charges accrues when the employee receives notice of termination, not

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when the termination occurs. ⁹³ To trigger running the limitations period, the notice must be final and unequivocal. ⁹⁴

3.503 Tolling the Statute of Limitations. Certain actions by an employer may trigger "equitable tolling" of the limitations period. When an employer did not actively conceal facts or mislead employees, that an employee did not know that he or she was being replaced by a younger employee usually fails as an excuse for missing the 180/300-day filing deadline. ⁹⁵ On the other hand, employees have successfully asserted an excuse of ignorance when an employer failed to comply with the EEOC regulations that mandate posting of an ADEA poster conspicuously so that employees can become aware of their ADEA rights. ⁹⁶

If an employer plays an active role in concealing an employee's rights, it is more likely that the employee will be able to successfully excuse the late filing of a claim. ⁹⁷

3.504 Class Actions. Since the ADEA incorporates the enforcement provisions of the Fair Labor Standards Act (FLSA), class actions are not governed by the Federal Rules of Civil Procedure but rather by the provisions set forth in the FLSA. ⁹⁸ The FLSA states, in pertinent part, that

[a]n action to recover [amounts due] may be maintained . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No

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employee shall be a party plaintiff to any such action unless he gives consent in writing to become such a party and such consent is filed in the court in which such an action is brought. ⁹⁹

Unlike the Rule 23 class action, in which a plaintiff is automatically included unless he or she explicitly opts out, the FLSA representative action requires that each similarly situated employee affirmatively consent to being joined as a party plaintiff. ¹⁰⁰

The FLSA does not define "similarly situated" and the Fourth Circuit has not set out a standard for this term in the context...