File Late, Lose Your Case: Texas Courts Enforce EEOC Time Limits

Even one day is too late. Texas federal courts are increasingly dismissing employment discrimination lawsuits filed outside the Equal Employment Opportunity Commission’s 90-day right-to-sue window, rejecting arguments based on delayed access to the agency’s electronic portal, confusion about when the deadline begins, or the lack of legal representation.

Where the EEOC is the primary investigating agency on a dually filed charge, courts have made clear that the availability of a right-to-sue notice through the EEOC’s portal is sufficient to trigger the clock.

The rule itself isn’t new. For decades, the US Court of Appeals for the Fifth Circuit has strictly enforced the 90-day filing requirement, repeatedly affirming dismissal of lawsuits filed even one day late. What has evolved is the context in which courts apply that rule.

As the EEOC has transitioned from mailed notices to electronic delivery through its portal, litigants have increasingly argued, among other things, that “receipt” should be tied to a successful login and actual viewing of the notice. Texas federal courts have largely rejected those arguments, applying traditional receipt principles to electronically delivered right-to-sue notices, including those transmitted by electronic mail. Pro se status offers no refuge either.

While courts may construe pleadings liberally, compliance with statutory filing deadlines remains mandatory, and strict enforcement long predates the EEOC’s adoption of electronic notice.

Courts begin from the premise that the limitations period is triggered by issuance and availability of the notice, not from when a charging party or their counsel later reviews it. When receipt is contested, courts may rely on a range of evidence to establish it, including documentary proof, EEOC records, and admissions made during discovery. Admissions that aren’t withdrawn or amended are binding and may conclusively establish receipt, foreclosing later attempts to reframe the timeline through affidavits or declarations.

Recent cases illustrate how unforgiving this analysis has become. In Smith v. Texas Children’s Hospital, the Fifth Circuit affirmed summary judgment where the plaintiff filed suit on day 91 after the EEOC closed its investigation and issued a right-to-sue notice through its portal. The plaintiff argued that she couldn’t access the notice in a timely manner due to portal-related issues, but the court focused instead on her own admissions regarding receipt, her failure to withdraw or amend those admissions, and the substantial time she still had to file suit even under her preferred version of events.

Notably, because plaintiffs have a full 90 days to file suit, courts closely scrutinize how much time remained after the date the plaintiff claims to have received the notice, often concluding that ample time remained to initiate the lawsuit.

In cases where a right-to-sue notice is delivered by mail rather than through the EEOC’s portal, courts have applied traditional presumptions to determine timeliness. Where a plaintiff fails to plead a specific receipt date or offers no competent evidence of delayed delivery, courts place the burden on the plaintiff to establish timeliness. Historically, absent viable evidence rebutting the presumption, courts presumed receipt within a reasonable period, often allowing up to seven days for mailed notices.

Even where plaintiffs attempt to excuse late filings, those arguments have fared no better. While equitable tolling doesn’t lend itself to bright-line rules, courts have consistently limited its application to exceptional circumstances. Applied sparingly, it rarely extends filing deadlines.

Another recurring misconception concerns multiple EEOC notices. Receiving more than one notice from the EEOC doesn’t restart the clock. In Stokes v. Dolgencorp, the EEOC first issued a written determination dismissing the employee’s Title VII disparate-treatment claim and expressly stated that she had 90 days from receipt of that notice to file a lawsuit or lose her right to sue on that claim. The EEOC later sent a separate notice related to the employee’s unequal-pay allegations, after conciliation efforts on that issue failed. The plaintiff argued that the 90-day deadline should run from the later notice.

The Fifth Circuit rejected that argument, holding that the filing deadline ran from the first notice because it was the notice that authorized the Title VII claim she pursued in court. Once that right-to-sue was triggered, the later notice addressing a different, unasserted claim didn’t extend the deadline.

For practitioners on both sides, the implications are practical. Upon issuance of a right-to-sue notice, the first step is calendaring the deadline from that date, not from when the notice is later accessed or reviewed. Plaintiffs or their counsel who delay in reliance on portal access issues or ongoing agency proceedings risk forfeiture of otherwise viable claims.

Employers, meanwhile, often receive contemporaneous notice that a right-to-sue has been issued and can begin assessing threshold defenses immediately. Where an arbitration agreement applies, arbitrability is typically addressed first. If timeliness can be resolved on the face of the pleadings, dismissal may follow at the outset. Where the charge was led by a state agency and no EEOC portal record exists, employers may seek agency records to confirm issuance or delivery dates. If timeliness can’t be resolved on the pleadings alone, courts have permitted defendants to develop the record through targeted discovery.

Requests for admissions regarding receipt or availability of the notice can narrow or eliminate factual disputes. Once the record is sufficiently developed and no genuine dispute remains, summary judgment may be appropriate.

Taken together, these decisions send a consistent message: Once the EEOC issues a right-to-sue notice and makes it available through its portal, the clock starts. Day 91 is too late.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Kelechi Onwumere is senior counsel at Gordon Rees Scully Mansukhani, and an adjunct professor at UNT Dallas College of Law whose practice sits at the intersection of labor and employment law and high-stakes civil litigation.

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