                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 10-1596

S HERRY L. D ET ATA,
                                                  Plaintiff-Appellant,
                                  v.

R OLLPRINT P ACKAGING P RODUCTS INC.,

                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 09 C 5064—Rebecca R. Pallmeyer, Judge.



    A RGUED O CTOBER 6, 2010—D ECIDED JANUARY 12, 2011




  Before E ASTERBROOK, Chief Judge, and W OOD and
E VANS, Circuit Judges.
  W OOD , Circuit Judge. The only question before us
in this appeal is whether Sherry DeTata’s lawsuit com-
plaining of sex discrimination at the hands of her em-
ployer, Rollprint Packaging Products, Inc., was filed too
late. Everyone agrees that she properly filed a charge
of discrimination with the Equal Employment Oppor-
tunity Commission (“EEOC”); the problem centers
2                                               No. 10-1596

around what happened next. The EEOC dismissed
DeTata’s case, and it mailed a right-to-sue letter, but
that letter never reached DeTata and was returned to
the agency as undeliverable. DeTata learned about the
agency’s action only when she telephoned to check on her
case. At that point, the EEOC re-sent the right-to-sue letter
and a copy of her file; she filed this suit within two months
of receiving those materials. The district court, however,
using the date of DeTata’s phone call as the beginning
of the 90-day period in which she had to file her suit,
granted Rollprint’s motion to dismiss on the ground
that her suit was untimely. We conclude that, under
the facts of this case, the telephone call did not satisfy
the notice requirements of 42 U.S.C. § 2000e-5(f)(1).
We therefore vacate the district court’s judgment and
remand the case for further proceedings.


                              I
  DeTata’s tenure at Rollprint was fleeting: she worked
there for only eight days before the company fired her
without explanation. She alleges, however, that during
that short time her male colleagues subjected her to
sexual advances and inappropriate comments about her
physical appearance. She asserts that she experienced a
“pervasive pattern of sexual harassment,” which manage-
ment “condoned, fostered, and promoted.” She com-
plained about the conduct to her immediate super-
visor, and Rollprint fired her a few days later.
  DeTata then contacted Jewell Bracko, the Director of
the American Civil Rights Trust (“ACRT”), for assistance
No. 10-1596                                                3

in drafting a letter to Rollprint and in filing an EEOC
charge. The record reveals very little about DeTata’s
relationship with Bracko; it is not even clear whether
DeTata ever hired Bracko to represent her before the
EEOC. Rollprint insists that Bracko acted as DeTata’s
attorney and, to support its contention, it points to a
letter that Bracko sent to Rollprint on DeTata’s behalf.
In the letter, which Bracko wrote on ACRT’s letterhead
and sent on July 16, 2008 (the day after DeTata was
fired), Bracko instructs Rollprint “not [to] contact
Ms. DeTata for any reason.” The letter further instructs
that “any communication should be conducted through
this office,” and informs Rollprint that “a civil rights
complaint has been filed through [Bracko’s] office on
behalf of Ms. Sherry DeTata with the EEOC for
sexual harassment and retaliation.” In fact, as of then
nothing had been filed. DeTata did not file her official
charge with the EEOC until December 2008, and
Bracko’s name does not appear on those papers. Cutting
against the inference that Bracko was DeTata’s lawyer
is the fact that on her intake questionnaire for the EEOC,
DeTata listed Bracko as a “friend” and provided his
address and telephone number in response to the ques-
tion asking for “the name of a person we can contact
if we are unable to reach you.” And when asked if she
had “sought help about this situation from . . . an attorney,
or any other source,” DeTata wrote that she “contacted
[the] American Civil Rights Trust regarding the matter
and was advised by council [sic] to file a complaint
with the EEOC.”
  On March 2, 2009, the EEOC dismissed DeTata’s admin-
istrative claim and issued a right-to-sue letter. Although
4                                               No. 10-1596

the EEOC correctly prepared the letter with DeTata’s
name and Chicago address, it sent the letter only to
Bracko instead, using the ACRT’s address in Mississippi.
But DeTata contends that Bracko never received the
letter; after three delivery attempts on March 4, 9, and 19,
the letter was returned as undeliverable, and both the
original letter and the envelope were placed in DeTata’s
file. (More evidence would be necessary before we
knew whether Bracko never received the letter, or if he
just refused or failed to acknowledge receipt. Given our
disposition of the case, we need not resolve that ques-
tion here.) When DeTata later called the EEOC to
inquire about her case, the EEOC employee she reached
told her that the file was a mess, that the agency had
dismissed her charge of discrimination, and that it had
issued a right-to-sue letter. The EEOC employee was not
able to answer all of DeTata’s questions nor to say with
certainty when her right-to-sue letter had been issued,
because the agency had misplaced her file. DeTata
asked that the EEOC resend her right-to-sue letter and,
if found, a copy of her file. There was some delay in
sending these materials because it took the EEOC more
than a month and a half to find DeTata’s file. The EEOC
eventually sent the materials on June 18, 2009, with a
cover letter stating that “[a]lthough the 90-day RTS
period has expired, you submitted your request timely
and the problem was that the file could not be located
by our clerk.” DeTata received the package a few days
later; it included a copy of the right-to-sue letter dated
March 2, 2009. The letter stated that her “lawsuit must
be filed within 90 days of your receipt of this notice.”
No. 10-1596                                            5

  DeTata filed a pro se complaint in federal court on
August 18, 2009, asserting that Rollprint violated
Title VII by creating a hostile work environment and
by retaliating against her for complaining about the
sexual harassment she experienced. See 42 U.S.C. §§ 2000e
et seq. In her complaint DeTata explained that “due to
a miscommunication” by the EEOC her right-to-sue
letter was not delivered when it should have been, and
that this delay was why she had filed her suit “after
the notice expired.” Rollprint moved to dismiss the
complaint as untimely because DeTata had filed suit
170 days after the EEOC initially issued its right-to-sue
letter in March, well beyond the 90 days permitted by
42 U.S.C. § 2000e-5(f)(1). In response DeTata pointed
to the EEOC’s mishandling of her administrative claim
and her own diligent efforts to prosecute her case. To
support her account of the EEOC’s missteps, DeTata
submitted a declaration from Tyrone Irvin, an EEOC
employee who had reviewed DeTata’s file. Irvin stated
that DeTata had contacted the EEOC in “May 2009,” and
she was informed then that her claim had been dis-
missed and that her right-to-sue letter had been issued
in March. According to Irvin, DeTata requested a copy
of her investigative file when she called, but it was not
sent until June 18, 2009, “due to EEOC staffing issues.”
Irvin also stated that an EEOC investigator had com-
municated with Bracko during the investigation of
DeTata’s complaint, but acknowledged that “according
to [the EEOC’s] records, in February 2009, Mr. Bracko
informed the EEOC that he would be out of the country,
in Brazil, at least until the end of March 2009.” Irvin’s
6                                            No. 10-1596

declaration does not specify on what date in May
DeTata called, nor does it identify who spoke with her
or provide any other details about the conversation
or Bracko’s role in the case.
  The district court conducted a hearing on Rollprint’s
motion on October 19, 2009. Initially the court rejected
Rollprint’s timeliness objection because the court was
“actually satisfied from the submissions from the
EEOC that Ms. DeTata has acted appropriately promptly.”
But Rollprint insisted that the timeliness question was
more complicated because Irvin’s declaration demon-
strated that DeTata had possessed actual knowledge
that the EEOC issued her right-to-sue letter as early as
May 2009, when she phoned the agency. Without citing
to any legal authority, Rollprint contended that “the
case law is clear that the receipt of the letter is not
really the precipitating event. It’s her actual notice.”
Although Rollprint conceded that DeTata did not
actually receive her right-to-sue letter until “sometime
in late June,” the company maintained that oral notice
was sufficient and that the crucial question was when
in May she had contacted the EEOC. If DeTata
called before May 18, 2009, Rollprint argued, then her
August 18 suit was untimely.
  This prompted the district court to seek clarification.
It asked DeTata to identify when she had learned that
a right-to-sue letter had been issued, not when she re-
ceived a physical copy of the letter. DeTata, who was
still pro se at that time, responded that she had learned
about the letter when she telephoned the EEOC “in late
No. 10-1596                                            7

April” to inquire about her file, though “no one really
knew the exact date” the letter had been issued because
the EEOC had misplaced her file for over a month. Even
if she spoke with someone at the EEOC in April, DeTata
maintained, she “couldn’t take their word for it if
[her right-to-sue notice] was issued or not” because her
case had been so mishandled. The court did not ask
DeTata if the EEOC had explained the limitations period
or told her that her call would start the filing clock.
   The district court agreed with Rollprint that DeTata’s
suit was untimely. The court credited DeTata’s state-
ments regarding the misplaced file, her actual receipt of
the letter in late June, and her assertion that the EEOC
did not tell her during the phone call when her letter
was initially issued. But after resolving these facts in
DeTata’s favor, the court concluded that her 90-day
filing period began running from the time of her call. As
the court saw it, “what the law says is that if you know
that the letter has been issued, then the 90 days begins
to run.” Because DeTata conceded that she spoke
with someone at the EEOC in April, the court reasoned,
her 90-day filing period began at the end of April at
the latest, and that meant she had until the end of
July to file suit. The court apparently overlooked the
discrepancy between DeTata’s statement that she called
the EEOC in April and Irvin’s declaration that she con-
tacted the agency in May. The court dismissed the com-
plaint without prejudice and gave DeTata 30 days to file
an amended complaint that included any additional
information she had to address the issue of timeliness.
8                                              No. 10-1596

   At this point, DeTata hired an attorney and filed an
amended complaint. Rollprint again moved to dismiss,
this time arguing that DeTata’s statement in open court
that she had learned about the right-to-sue letter in
April 2009 was conclusive evidence that her August 18
suit was untimely. It also advanced an alternative argu-
ment that Bracko’s letter to Rollprint and Irvin’s declara-
tion showed that Bracko was acting as DeTata’s legal
representative, and, thus, DeTata received “constructive
notice” of her right to sue when the EEOC mailed
the March 2 letter to Bracko. DeTata countered that the
90-day period does not start running until after a
claimant actually receives her right-to-sue letter. As for
her relationship with Bracko, DeTata insisted that she
had always proceeded pro se, even when filing her
EEOC charge. The district court again granted Rollprint’s
motion to dismiss, noting that DeTata “acknowledged
in open court that she had actual notice” of her right
to sue “no later than April 30.” Thus, it ruled, the com-
plaint DeTata filed in August was “well-beyond the 90-
day window and many weeks after she admittedly re-
ceived a copy of the right-to-sue letter” in June. The
court’s order did not address the cases DeTata had
cited establishing that the 90-day period starts when
the letter is actually received, nor did it discuss its
finding that an oral communication constitutes suf-
ficient notice. Because the court found that DeTata’s call
started the filing clock, it also had no occasion to con-
sider whether Bracko was serving as DeTata’s agent.
  DeTata promptly moved for reconsideration and ex-
plained that she “misspoke [during the October 19
No. 10-1596                                           9

hearing] when she indicated a conversation with the
EEOC took place in ‘April’ 2009 because that conversa-
tion actually took place in ‘May’ 2009.” DeTata offered
her own affidavit, explaining that “for reasons that are
unclear to me, other than my nervousness before the
court and in responding to the court’s questions . . .
I inadvertently and repeatedly referred to a discussion
with the EEOC in ‘April’ 2009 when, in fact, as stated
in Mr. Irvin’s ‘Declaration,’ my conversation with the
EEOC regarding my file was in ‘May’ 2009.” During the
hearing on DeTata’s motion, the district court asked
DeTata to explain her shift in position. Noting that
DeTata had been proceeding pro se at the time of the
October 19 hearing, DeTata’s attorney explained that
she had not realized that she would need to be
prepared with evidence about the timeliness question.
In the end, the court denied DeTata’s request for recon-
sideration without prejudice and explained that if she
wanted the court to review the issue further she
could “move within seven days for a hearing and ac-
company that motion with a representation about her
willingness to pay the fees incurred as a result of her
apparent failure to read the court’s orders beginning
in October.” DeTata chose instead to file this appeal.


                           II
  At its broadest level, the issue before us is whether
the 90-day filing period specified by 42 U.S.C. § 2000e-
5(f)(1) begins to run only upon written notice of the
right to sue or if an oral communication with the EEOC
10                                              No. 10-1596

may ever suffice. Subsidiary points include whether the
law requires proof of receipt of the written notice;
what proof of receipt might be adequate; and what
would have to be covered in an oral communication, if
that is permissible. In addition to these questions, we
must also consider Rollprint’s argument that the
EEOC’s unsuccessful effort to send the right-to-sue letter
to Bracko sufficed to start the 90-day clock.
  Section 2000e-5(f)(1) requires the EEOC to notify a
complaining party when it dismisses a charge of dis-
crimination. At that point, according to the statute, “within
ninety days after the giving of such notice a civil action
may be brought against the respondent named in the
charge.” The statute does not specify what form the
notice must take or what information must be included.
But we have assumed that written notice is required
and have consistently held (as have our sister circuits)
that the 90-day period does not start running until the
claimant (or her agent) actually receives the right-to-sue
letter from the EEOC. See, e.g., Prince v. Stewart, 580 F.3d
571, 574 (7th Cir. 2009) (explaining that the limitations
period begins to run “when the claimant receives the
letter, not when it was sent”); Threadgill v. Moore, U.S.A.,
Inc., 269 F.3d 848, 849-50 (7th Cir. 2001) (noting that
actual receipt of right-to-sue notice by claimant or her
attorney starts 90-day period); Houston v. Sidley & Austin,
185 F.3d 837, 839 (7th Cir. 1999) (holding that when
EEOC sends right-to-sue letter by certified mail, 90-day
period begins to run when plaintiff actually receives
letter); Archie v. Chi. Truck Drivers, Helpers & Warehouse
Workers Union, 585 F.2d 210, 215 (7th Cir. 1978) (“It is
No. 10-1596                                                  11

clearly the rule that the ‘giving of . . . notice’ language in
42 U.S.C. § 2000e-5(f)(1) refers . . . at a minimum to the
date on which such notice is delivered to the address to
which it is mailed.”). See also Kerr v. McDonald’s Corp.,
427 F.3d 947, 952 (11th Cir. 2005) (90 days runs from
date of receipt of notice); Taylor v. Books A Million, Inc., 296
F.3d 376, 379 (5th Cir. 2002) (same). Neither side in the
present case has challenged this understanding of the
statute. The parties do not dispute that DeTata did not
receive her written notice until a few days after the
EEOC resent her materials on June 18. If her actual
receipt started the filing clock, then DeTata should
have had 90 days from that date to file her complaint,
and, by filing on August 18, her suit would have been
timely.
  We have never considered whether oral notice may
also be sufficient, but three of our sister circuits have
held that sometimes an oral communication may start
the limitations period. In Ball v. Abbott Advertising, Inc.,
864 F.2d 419 (6th Cir. 1988), the plaintiff did not receive
a right-to-sue letter, and so her lawyer called the EEOC
and learned that the letter had been sent a month earlier
but had been returned as undeliverable because the
plaintiff had neglected to update her address. Id. at 420.
Ball filed suit within 90 days of receiving the reissued
notice, but more than eight months after the attorney’s
telephone conversation with the EEOC (and more than
nine months after the original letter was sent). Id. In an
affidavit, Ball’s attorney conceded that sufficient notice
had been given during the call. This was enough to lead
the Sixth Circuit to hold that Ball’s suit was time-barred
12                                            No. 10-1596

because she received “actual notice, through counsel.”
Id. at 421.
  The Third Circuit has also held that “oral notice can
suffice to start the 90-day period” if it is “equivalent
to written notice.” Ebbert v. DaimlerChrysler Corp., 319
F.3d 103, 116 (3d Cir. 2003). The court reasoned that
“[i]t simply would not make sense to force courts and
defendants to wait for a specific form of notice in situ-
ations where a plaintiff is fully aware of the deadline he
or she must meet to prosecute a lawsuit.” Id. Based on
the record in Ebbert, however, the court concluded that
the plaintiff’s conversation with an EEOC investigator
did not satisfy the statutory requirements for notice
because “no evidence show[ed] that Ebbert was told or
otherwise knew the 90 days would start running from
the date of the [phone] conversation.” Id. The court high-
lighted the fact that the defendant had not produced
evidence of what was said during Ebbert’s conversation
with the EEOC, even though it was the company’s burden
to prove that “oral notice was as comprehensive as the
written version.” Id. at 116-17. The court also explained
that its standard for oral notice was higher than the
“less complete” notice requirements established in Ball.
Id. at 116 n.16. It speculated that the lower standard in
Ball was based on the fact that oral notice had been
given to Ball’s attorney, who would have understood
the significance of the right-to-sue information and its
relation to the limitations period, and that Ball bore
some responsibility for the delayed receipt by not in-
forming the EEOC of her address change. Id.
No. 10-1596                                                13

   Most recently the Eleventh Circuit held that “a com-
plainant’s actual knowledge that investigation of her
claim has been terminated may be sufficient to cause the
time for filing to begin running within a reasonable
time after notice of the complainant’s requested right-to-
sue notice has been mailed.” Kerr, 427 F.3d at 948.
During phone conversations with an EEOC investigator
in late December 2002, the plaintiffs in Kerr learned
that their cases were about to be dismissed, and the
investigator asked whether they wanted the agency to
issue right-to-sue notices. Id. at 949. Both plaintiffs
orally requested the notices and followed up by
returning the written forms that the agency sent to
confirm their requests in early January 2003. Id. Neither
plaintiff received her letter, however, until mid-February,
and both filed suit in mid-May. Id. Based on the defen-
dant’s detailed evidence of the EEOC’s mailing pro-
cedures, the Eleventh Circuit determined that the
agency mailed the plaintiffs’ notices no later than Janu-
ary 9, 2003. Id. at 950-52. Applying its presumption
that notice is received within three days of mailing and
its rule that the plaintiff bears the burden of proving
timeliness, the Eleventh Circuit concluded that the suits
were untimely. Id. at 951-53. The court noted that “[t]he
date of actual receipt is material . . . only if there
was not adequate notice prior to actual receipt,” but it
concluded that because the plaintiffs regularly communi-
cated with the EEOC investigator, they had sufficient
notice of the dismissal of their claims and the issuance
of their right-to-sue letters in early January. Id. at 952-53.
Emphasizing that plaintiffs must assume some “mini-
14                                              No. 10-1596

mum responsibility” for the “expeditious resolution” of
their claims, the court blamed plaintiffs for not fol-
lowing up when their letters did not arrive in January
and determined that equitable tolling did not apply. Id.
  But Ball and Kerr are unlike DeTata’s case. The
holdings in the former two cases reflect the fact that the
plaintiffs were somehow at fault for the delayed receipt
of their written notices. DeTata, in contrast (as far as
this record shows) never failed to update her mailing
address or to follow her case diligently. Instead, it was
the EEOC’s mishandling of DeTata’s case that caused
the delay, when it misaddressed her right-to-sue letter
and lost her file for over a month. As we have com-
mented before, a “plaintiff should not lose the right to
sue because of fortuitous circumstances or events
beyond [her] control which delay receipt of the EEOC’s
notice.” St. Louis v. Alverno Coll., 744 F.2d 1314, 1316 (7th
Cir. 1984).
  Even if we were to adopt the Ebbert court’s rule, under
which an oral communication may qualify as statutory
notice if equivalent to written notice, Rollpoint would
be no better off. The EEOC has identified four require-
ments for a proper notice of a complainant’s right to
sue: “(1) [a]uthorization to the aggrieved person to bring
a civil action under title VII . . . within 90 days from
receipt of such authorization; (2) [a]dvice concerning
the institution of such civil action by the person claiming
to be aggrieved, where appropriate; (3) [a] copy of the
charge; [and] (4) [t]he Commission’s decision, determina-
tion, or dismissal, as appropriate.” 29 C.F.R. § 1601.28(e).
No. 10-1596                                                15

There is no evidence in this case that the EEOC’s oral
communication to DeTata met any of the first three re-
quirements. Most importantly, there is nothing in the
record to suggest that the EEOC ever told DeTata when
her 90-day clock began to run.
   Notice is inadequate when the EEOC fails to inform a
claimant of the time within which suit must be filed.
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151
(1984). As an example of insufficient notice, the Court
in Baldwin referred to a case from the Ninth Circuit,
which held that notice was insufficient under § 2000e-
5(f)(1) when the EEOC failed to advise the plaintiff of
her right to sue and to explain the limitations period for
filing suit. Id. (discussing Gates v. Georgia-Pacific Corp.,
492 F.2d 292 (9th Cir. 1974)). Particularly because the
limitations period is so short, it makes sense that notice
must include an explanation of when the filing clock
begins to run. Because a failure to sue within 90 days is
an affirmative defense, cf. F ED. R. C IV. P. 8(c)(1) (next to
last bullet point), Rollprint had the burden of showing
that DeTata’s complaint was filed more than 90 days
after she received sufficient notice of her right to sue. See
Prince, 580 F.3d at 574; Houston, 185 F.3d at 838. That
means that the absence of evidence in the record about
what the EEOC told DeTata—and in particular the lack
of evidence that they discussed the 90-day period for
filing suit—cuts against Rollpoint.
  As an alternative basis for affirming, Rollprint also
argues that DeTata received notice of her right-to-sue
when the EEOC initially sent her letter to Bracko, who,
16                                             No. 10-1596

Rollprint asserts, was acting as DeTata’s legal representa-
tive. That characterization, however, is hotly contested,
and DeTata has some evidence supporting her position.
DeTata insists that she filed her EEOC charge pro se
and never retained Bracko as her attorney. While
actual receipt of the right-to-sue letter by a claimant’s
attorney can start the 90-day clock, Reschny v. Elk Grove
Plating Co., 414 F.3d 821, 823 (7th Cir. 2005), if the
claimant disputes that the attorney represented her at
the time the letter was received, then the district court
must hold an evidentiary hearing to decide the ques-
tion, Jones v. Madison Serv. Corp., 744 F.2d 1309, 1313-14
(7th Cir. 1984). Rollpoint thinks that Bracko’s letter to
Rollprint and Irvin’s declaration signal that Bracko
was actively involved in DeTata’s case in some capacity,
but they do not answer the question “what capacity.”
DeTata’s responses to the EEOC questionnaire minimize
Bracko’s role and suggest that he was not her attorney.
Finally, even if Bracko was acting as DeTata’s agent
for notice purposes, Rollprint overlooks the fact that
Bracko may never have received the right-to-sue letter.
He had notified the EEOC that he would be traveling
abroad, and the letter was returned as undeliverable, as
Irvin’s declaration explains. On the present record, we
cannot conclude that the letter the EEOC sent to Bracko
on March 2 constituted notice to DeTata.


                            III
  We V ACATE the district court’s judgment and R EMAND
for further proceedings consistent with this opinion. In
No. 10-1596                                        17

particular, it will be up to the parties on remand to
develop any further evidence that may be relevant to a
better understanding of Bracko’s role in the case.




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