Failure to Exhaust Administrative Remedies Cured in Title VII Sexual Harassment Suit

IN Brunson-Bedi v. State of New York (Hudson Valley DDSO), Local 412 of the CSEA, Inc. et al, 15-cv-9790, 2018 WL 2084171 (SDNY May 1, 2018), the court held that a Title VII sexual harassment plaintiff’s failure to exhaust administrative remedies – in that she did not receive a right-to-sue letter from the EEOC before filing suit – was cured by her subsequent receipt of the notice.

“A Plaintiff cannot file suit for alleged violations of Title VII until she timely files charges with the EEOC and obtains a letter of a right to sue. … While obtaining a right to sue letter is a precondition to bringing a Title VII claim in federal court, it is not an unwaivable jurisdictional requirement.”

Here, the court turned to equitable principles to rule in plaintiff’s favor on that issue:

Courts in this circuit have already held that where a plaintiff has received a “right to sue letter subsequent to commencement of a Title VII action” and while the federal action is still pending, the statutory exhaustion requirements have been met “based on … equitable principles.” Benzo, 1997 WL 37961, at *9; see also Kounitz v. Slaatten, 901 F.Supp. 650, 655 (S.D.N.Y. 1995); Hladki v. Jeffrey’s Consol., Ltd., 652 F.Supp. 388, 393 (E.D.N.Y. 1987) (where “a right to sue letter … received subsequent to commencement of a Title VII action”, there is reason to permit an equitable modification of the exhaustion requirement); Obago v. Union of Am. Hebrew Congregations, No. 89-CV-0608(LBS), 1989 WL 88665, at *2 (S.D.N.Y. Aug. 3, 1989) (denying motion to dismiss for failure to exhaust where right to sue letter was received subsequent to filing the motion to dismiss). While Plaintiff’s suit was still pending, in February of 2016, Plaintiff received a right-to-sue letter relevant to HVDDSO, though she did not alert the Court to its existence until HVDDSO filed a pre-motion letter seeking leave to file a motion to dismiss, for inter alia, lack of exhaustion. (See ECF Nos. 17, 22.) In line with these cases, this Court now holds that Plaintiff’s receipt of her right-to-sue letter on February 11, 2016 automatically cured her defect of failing to obtain the letter prior to filing suit.5

*5 While this Court acknowledges the importance of the exhaustion requirement, and recognizes the danger of permitting a Plaintiff to proceed on a claim that was not properly exhausted prior to filing the Complaint, this outcome is just and consistent with recent authority in this circuit in cases dealing with plaintiffs who had not yet received their right-to-sue letters at the time the courts decided the motions.

However, and unfortunately for the plaintiff, she won this battle but lost the war: The court dismissed her case on the ground of insufficient service of process. See Fed. R. Civ. P. 12(b)(5), 4(m).

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