5.4 CONSEQUENCES OF STATE OR LOCAL AGENCY'S FINDING OF LIABILITY
5.401 "Right-to-Sue" Letter. If a party whose charge may be filed with both the EEOC and an FEP agency wishes to terminate the deferral agency's investigation after the required 60-day period has expired, the party may request a "right-to-sue" letter. 75 Procedurally, the deferral agency does not issue the letter but forwards the request to the local EEOC director. If the deferral agency has retained or assumed responsibility for processing the charge, that responsibility is then transferred to the EEOC, which closes the investigation and issues the "right-to-sue" letter. Once the letter is issued, the deferral agency's investigation ceases. A complainant must file suit within 90 days of receiving the letter, or his or her claim will be lost as untimely filed. 76 The date of "actual receipt" is not founded on any mechanistic rule, such as the date of mailing of the letter or the date of actual knowledge of the letter, but rather depends on the facts and circumstances of each case. 77
An otherwise time-barred plaintiff may preserve his or her claim through equitable tolling of the statute of limitations if he or she presents
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"(1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time." 78 A plaintiff who fails to act diligently, however, cannot rely on equitable tolling to excuse that lack of diligence. 79 Equitable tolling is a narrow limitations exception. 80 Where a plaintiff may not have received the "right-to-sue" letter immediately after mailing but still had time remaining in the 90-day limitations period, courts have held repeatedly that equitable tolling should not apply to save plaintiff's untimely complaint. 81
A complainant may be issued a "right-to-sue" letter to pursue litigation privately, or the EEOC may decide to litigate the matter on behalf of the complainant if that litigation strategy is consistent with the EEOC's administrative goals.
5.402 No Preclusive Effect to Deferral Agency Findings. The deferral agency's determination of "cause" or "no cause" to believe a violation of federal law has occurred has no preclusive effect on subsequent federal litigation. 82
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5.403 Admissibility of Deferral Agency's Findings. Some courts have permitted the findings of the deferral agency regarding "probable cause" to be admitted during the federal court litigation. In Astoria Federal Savings & Loan Association v. Solimino, 83 the United States Supreme Court found that state administrative findings may be entered into evidence at trial. The issue of the admissibility of the "cause" or "no cause" finding by the EEOC or the deferral agency rests in the sound discretion of the trial court. 84
In Cooper v. Paychex, Inc., 85 the court denied the defendant's motion in limine to prohibit the introduction of the finding of probable cause by the Fairfax County Human Rights Commission. In ruling the Commission's finding admissible, the court relied on the directive contained in Chandler v. Roudebush 86 and the factors outlined in Ellis v. International Playtex, Inc., 87 in which the court evaluated the admissibility of an FDA report under Rule 803(8)(c) of the Federal Rules of Evidence. The court...
