Rough Justice? Case Filed a Day Late

What a difference a day makes.

The U.S. Court of Appeals for the Sixth Circuit in Ohio recently upheld the dismissal of a lawsuit filed by an IRS criminal investigator in 2012 who charged he was denied several promotions because he is a white male. The grounds for dismissal were that Frank Rembisz filed his civil rights lawsuit one day after the expiration of a 90-day statute of limitations.

Here’s what happened.

Rembisz filed a discrimination complaint with the U.S. Treasury Department that he was denied several promotions because he is a white male. The Treasury Department mailed him and his attorney a “final notice” that his complaint was denied on March 15, 2013. Rembisz had 90-days after receipt of the final notice of dismissal to file a civil lawsuit in federal court.

Rembisz filed his lawsuit on June 21, 2013 and the Treasury Department filed a motion to dismiss the case on the grounds that it was filed after the expiration of the 90-day statute of limitations.

Rembisz argued that the case was timely filed because the clock did not start ticking until his attorney received the final notice on March 25, 2013.

A three-judge panel on the appeals court disagreed  and affirmed the lower court’s decision to dismiss Rembisz’ case.

The appeals court wrote that its “presume(s)” the 90-day limitations term began running on the fifth day following the mailing of the right to sue notice. Moreover, the appeals court said the statute of limitations is triggered when the complainant – not his or her attorney – receives the final notice.

Rembisz  also submitted an affidavit from his attorney’s secretary stating that she received the Treasury Department’s notice that Rembisz complaint had been denied on March 22, 2013.

But the appeals court said “that still makes his complaint late by one day.”

The case is Rembisz v. Lew, No. 15-2279 (6th Cir. 2016).

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