One of the ways that both plaintiffs and defendants can save their cases is by finding exceptions to whatever rule is against them. (And when I say a “rule” that's against you, I include a statute, a code, an ordinance, and a state or federal regulation.)
For example, take Mercado v. The Ritz-Carlton, No. 04-1630, 2005 WL 1273940 (1st Cir. May 31, 2005). There, the plaintiffs filed Title VII charges against a hotel less than 33 days after the 300-day time limit for filing had run. (“Because Puerto Rico is a so-called 'deferral jurisdiction,' the 300-day period, rather than a shorter 180-day filing period, is applicable." Id. at n. 2. Isn't it interesting that there is a “deferral jurisdiction” exception that increases the 180-day time limit to 300 days in certain jurisdictions? Would you as the plaintiff's attorney have even known about that exception?)
As to the case, what was part of the hotel's defense to the charge? Obviously that the filing was too late. What was part of the plaintiffs' defense to the late filing? That the hotel could not assert that defense because the hotel had not complied with EEOC regulations that require employers to post notices advising employees of their rights relating to employment discrimination.
The court of appeals, after collecting a variety of cases, held that, depending on the facts, equitable tolling of the time period might apply and the plaintiffs were entitled to factually develop their equitable tolling claim.
The moral of the story is to find all the exceptions you can to any rule that's against you — I call that “exception finding.” In my book Solving Statute of Limitations Problems I include in Chapter 1 a number of ways to search for those exceptions, including simply looking at the annotations to the problem statute and just listing all the defenses that courts have maintained to the statute. (The same techniques apply whether or not you are dealing with a statute of limitations issue. See below for how to find my book in a library.)
Once you have listed the potential exceptions, then you can determine whether there is any factual support for any or all of those defenses — I call that “fact finding.”
Potentially you could even have an associate or a law clerk make the list of those exceptions.
Assume you represent the plaintiffs in Mercado. As I detail below, if you did not already know about the potential defense that the employer failed to post the required notice, you probably would have found that requirement if you had searched for all of the exceptions to the 300-day requirement. Once you found the notice-posting requirement by your “exception finding,” you could then go into “fact finding” to determine from your client or from other investigation whether the employer had posted the required notice. Then, if there was none, you might be on your way to saving the case.
Here's one technique for finding the posting requirement and the exception to the time requirement even if you had no idea that there was a posting requirement: The technique is related to what I not-so-modestly call
That law is “Every rule has at least one exception — including perhaps this one.” One of our jobs as attorneys is to take advantage of that law and (1) find pertinent exceptions to any rule that's against us, and (2) then determine whether there are facts which will allow us to fit within any of the exceptions.
One way to try to find all of the exceptions you can is to use the various sets that annotate statutes. Let's say you are trying to find exceptions to the 300-day rule. Since it's a federal statutory provision, you might go to West's U.S.C.A. in either the print or the online version. I will be describing the print version below, but you might also go to Lexis' U.S.C.S. in either its print or online version.)
If you go to 42 U.S.C.A. §2000e-5(e)(1), that provision states the time limitation for filing a charge, and it's probably the provision that the other side has cited or will be citing against you. (The U.S.C.A. printed volume has a copyright date of 2003.) In order to defeat that time provision by finding helpful exceptions to the provision, you can go to the topical index that begins with a listing of the 23 major subdivisions that begins on page 90 or the alphabetical list of annotation topics that begins on page 91. You will see Subdivision III entitled “Time for Filing Commission Charges.” That subdivision starts its list of annotation topics on page 177. You can then read the list of annotation topics to see if there are any topics that might lead you to any exceptions to the time requirement. For instance, you might read the annotations under the following topic headings and related topic numbers:
However, you would also want to check the topics in Subdivision VII “Tolling of Period” on page 243 of the U.S.C.A. volume.
If you skim that “Tolling of Period” list of topics, you might decide — and it's just a “might decide” and not a “will decide” — that some of the following headings might include helpful exceptions:
All of those might lead to case-saving exceptions. If you don't know anything about “Statutory notices of rights, failure to post,” you should make a note to check that one out. For instance, hen you go to the annotations under “Statutory notice of rights, failure to post” topic, you will find the following case annotation:
It looks like that case might be worth looking into, especially since the plaintiffs who you are hypothetically representing filed their charges less than 33 days over the limit. If you go to the full opinion in Bravo Perazza, you will discover — if you didn't already know it — that employers have a “statutory obligation to post notice of employee's rights under Title VII.” Bravo Perazza at 218 F.Supp.2d 180. (Although the court does not cite a posting statute, see, e.g. 42 U.S.C. §2000e-10.) The court continues:
Id. The court ultimately held that, under the facts, the plaintiff was not entitled to rely on his equitable tolling defense: “Bravo sat on his rights for at least three years . . . Bravo's prolonged inaction persuades the Court that he is not entitled to equitable relief.” Id. at 181.
But our plaintiffs' cases are different since their claim was filed not three years late but less than 33 days late.
You have now, by exception finding, found a potential exception to the 300-day time requirement. Now you can go into what I call “fact finding.” In “fact finding,” you determine whether there are any facts that will allow you to fit under whatever exceptions you have found. In this case, you will want to determine whether the employer had posted the statutorily-required notice. This then leads us back to Mercado, where the First Circuit stated in part:
Many other courts similarly view lack of notice as adequate justification for equitable tolling.”
Id. at op. 3-4.
And the Mercado court ultimately vacated the district court's dismissal for the late filing and remanded the case for evidence as to whether the plaintiffs were entitled, under the facts to be presented, to the benefits of equitable tolling. So the plaintiffs' attorney found (or knew) that if the employer had failed to post a required notice there was a potential way to save his clients' cases. Thus, using “exception finding,” or its sibling “exception knowing,” he has potentially saved their cases. And if they were your actual clients, you too might have saved their cases using the “exception finding” technique.
Postscript:
To find a library that has Solving Statute of Limitations Problems, go to Google and, in the search bar, enter the following — including the quotation marks: “find in a library” “solving statute of limitations problems”. Then continue, clicking on the resulting link which should lead you to a page of the Online Computer Library Center (OCLC) website.
Link:
Mercado v. The Ritz-Carlton: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-1630.01A
Copyright Adolph J. Levy 2005 All rights reserved.
Posted by ajlevy at June 25, 2005 4:10 AM