Irwin v. Department of Veterans Affairs/Concurrence Stevens

Justice STEVENS, concurring in part and dissenting in part.

While I agree with the Court's conclusion that the filing deadline in 42 U.S.C. § 2000e-16(c) is subject to equitable tolling and that the petitioner has failed to establish a basis for tolling in this case, I do not agree that the 30-day limitations period began to run when petitioner's lawyer, rather than petitioner himself, received notice from the EEOC of petitioner's right to file a civil action.

The Court is entirely correct that notice to a litigant's attorney is generally considered notice to the litigant after litigation has been commenced. See ante, at 92-93. But the Court overlooks the fact that litigation is usually commenced by service of process on the adverse party himself. Indeed, the Federal Rules of Civil Procedure expressly require service on the opposing litigant. See Fed.Rule Civ.Proc. 4(d). This case involves a notice that is a condition precedent to the commencement of formal litigation. I therefore believe that Congress intended that this notice, like a summons and complaint, be served on the adverse party, not his representative.

The Court contends that reading "the term 'receipt' [in § 2000e-16(c) ] to mean only 'actual receipt by the claimant' would render the practice of notification through counsel a meaningless exercise." Ante, at 93. By the same logic, however, reading "receipt," as the Court does, to mean only "receipt by the claimant's representative" renders "a meaningless exercise" the EEOC's practice of notifying the claimant personally, a practice codified in EEOC regulations, see 29 CFR § 1613.234(a)(1990). Actually, notifying both the claimant and his representative makes sense regardless of which notice begins the ticking of the limitations clock. Dual notification ensures that all persons concerned with the progress of the action are apprised of important developments. Cf. ibid. (also requiring notification of employing agency). However, a claimant's representative before the EEOC will not necessarily also represent the claimant in the ensuing civil suit; indeed, the representative in the administrative proceedings need not even be an attorney. See § 1613.214(b). Notice to the claimant is therefore the more logical trigger for the limitations countdown. This construction is not only sensible in light of the notice requirement's function in the statutory scheme, but is also consistent with our previous admonitions that Title VII, a remedial statute, should be construed in favor of those whom the legislation was designed to protect. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397-398, 102 S.Ct. 1127, 1134-1135, 71 L.Ed.2d 234 (1982); Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972).

Accordingly, I respectfully dissent from the Court's judgment. I would instead reverse the judgment of the Court of Appeals and remand the case for resolution of the disputed factual issue of when the petitioner himself actually received notice from the EEOC of his right to file a civil action.