Full Opinion (html_with_citations)

                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                ______________

                     No. 23-1829
                    ______________

                   CEPHIA HAYES,
                            Appellant

                           v.

 NEW JERSEY DEPARTMENT OF HUMAN SERVICES
              ________________

     On Appeal from the United States District Court
               for the District of New Jersey
             (D.C. Civil No. 1-20-cv-17075)
      District Judge: Honorable Karen M. Williams
                    ________________

               Argued on March 6, 2024

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

              (Opinion filed:July 19, 2024)
                  ________________

David M. Koller [ARGUED]
Jordan D. Santo
Koller Law
2043 Locust Street
Suite 1B
Philadelphia, PA 19103
       Counsel for Appellant

David Coppola
James M. Duttera [ARGUED]
Office of Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Counsel for Appellee
                        __________

                OPINION OF THE COURT
                      __________


FREEMAN, Circuit Judge.

       Cephia Hayes sued her employer for sexual harassment
and retaliation in violation of Title VII of the Civil Rights Act
of 1964. The District Court held that Hayes’s suit was time-
barred because she filed it more than 90 days after learning that
the Equal Employment Opportunity Commission (EEOC)
would not pursue her claim. To reach this conclusion, the
Court determined that Title VII’s 90-day clock started to run
when an EEOC staffer emailed Hayes’s lawyer and uploaded
a document to the agency’s online portal. Because neither
action provided notice sufficient to start the clock, we will
vacate and remand.




                               2
                               I

        Hayes has worked for the New Jersey Department of
Human Services (NJDHS) since 2004. She claims that,
starting in 2016, her supervisor sexually harassed her and
retaliated when she rebuffed him. In October 2019, she filed a
charge of discrimination with the EEOC and its state
counterpart.

       The EEOC opted not to pursue the case. On March 11,
2020, an EEOC investigator emailed Hayes’s lawyer and said
the agency’s “[r]eview of the available evidence does not
establish a violation of [Title VII].” App. 277. Accordingly,
the investigator explained that “[the EEOC] will issue you a
Dismissal and Notice of Rights [i.e., a right-to-sue letter],
which will enable you to file suit in U.S. District Court within
90 days of your receipt of that Notice if you wish to pursue this
matter further.” Id. (Hayes’s lawyer received and read the
email the day the investigator sent it.) The EEOC says it posted
Hayes’s right-to-sue letter to its online portal that same day,
and a copy of the letter lists March 11 as the date mailed.

        Several months later, on August 27, 2020, Hayes’s
lawyer’s office manager emailed the EEOC to request the
right-to-sue letter. An EEOC staffer responded that day with a
copy of the letter, which he said had been issued to Hayes and
her lawyer on March 11 via mail and the online portal. Hayes
says she did not receive the letter in the mail or otherwise see




                               3
the letter until August 27. Her lawyer (through his office
manager) says the same.1

        Hayes filed her lawsuit against NJDHS on November
24, 2020—more than eight months after the mailing date listed
on the EEOC’s letter but fewer than 90 days after Hayes and
her lawyer claim to have received it. She brought claims under
Title VII and state anti-discrimination law. At the close of
discovery, NJDHS moved for summary judgment, arguing that
Hayes’s Title VII claims were time-barred. The District Court
granted the motion. It held that the EEOC’s March 11 email
(or, in the alternative, its March 11 posting of the letter to the
portal) provided sufficient notice of the EEOC’s decision, and
that Hayes’s Title VII claims were therefore untimely.2 Hayes
timely appealed.

                               II

       The District Court had jurisdiction over the Title VII
claims under
28 U.S.C. § 1331
. We have appellate jurisdiction
under
28 U.S.C. § 1291
.

       We review a grant of summary judgment de novo, using
the same standard as the District Court. Doe v. County of
Centre,
242 F.3d 437
, 446 (3d Cir. 2001). Summary judgment
is appropriate only “if, when viewed in the light most favorable

1
 As Hayes points out, the mailing date on the EEOC’s letter—
March 11, 2020—coincides with the beginning of COVID-19
shutdowns in the United States.
2
  The District Court dismissed Hayes’s state-law claims
without prejudice for lack of subject matter jurisdiction. Hayes
does not challenge this decision on appeal.




                                4
to the [nonmoving party], there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.” Natale v. Camden Cnty. Corr. Facility,
318 F.3d 575, 580
 (3d Cir. 2003).

                               III

        Before a plaintiff may file a lawsuit under Title VII of
the Civil Rights Act of 1964, she must exhaust her
administrative remedies by filing a charge of discrimination
with the EEOC. 42 U.S.C. § 2000e-5(e)(1); EEOC v.
Associated Dry Goods Corp.,
449 U.S. 590, 595
 (1981). If the
EEOC declines to pursue a plaintiff’s charge, it
“shall . . . notify” the plaintiff. 42 U.S.C. § 2000e-5(f)(1).
Then, “within ninety days after the giving of such notice[,] a
civil action may be brought.” Id.

        Title VII’s 90-day clock is “strictly construed.” Burgh
v. Borough Council of Montrose,
251 F.3d 465, 470
 (3d Cir.
2001). While it “is not a jurisdictional predicate, in the absence
of a recognized equitable consideration, [we] cannot extend the
limitations period by even one day.” Mosel v. Hills Dep’t
Store, Inc.,
789 F.2d 251, 253
 (3d Cir. 1986) (per curiam)
(cleaned up).

       Under the statute, the 90-day clock begins “after the
giving of . . . notice” that the EEOC has dismissed the charge
of discrimination and that a suit may be brought. 42 U.S.C.
§ 2000e–5(f)(1). The EEOC usually gives that notice in the
form of a right-to-sue letter. Seitzinger v. Reading Hosp. &
Med. Ctr.,
165 F.3d 236
, 239 (3d Cir. 1999). When it does so,
the 90-day clock typically begins when the plaintiff (or her
lawyer) receives the letter. Id. at 238–39 & n.1.




                                5
        Though determining this start date is often
straightforward, two complications may arise. First, there may
be a dispute about when the plaintiff received the right-to-sue
letter in the mail. When that date is unknown, we presume that
the plaintiff received the letter three days after the agency sent
it. Id. at 239 (citing Fed. R. Civ. P. 6); see also Jenkins v. City
of San Antonio Fire Dep’t,
784 F.3d 263
, 266–67 & n.1 (5th
Cir. 2015) (adopting the three-day presumption); Payan v.
Aramark Mgmt. Servs. Ltd. P’ship,
495 F.3d 1119, 1125
 (9th
Cir. 2007) (same). A plaintiff can rebut the three-day
presumption by presenting evidence of delayed receipt. See
Seitzinger, 165 F.3d at 239; Ebbert v. DaimlerChrysler Corp.,
319 F.3d 103
, 108 n.5 (3d Cir. 2003); Payan,
495 F.3d at 1126
.

        Second, sometimes the EEOC communicates with the
plaintiff by means other than a mailed right-to-sue letter.
When that happens, questions arise about whether this other
communication suffices to start the 90-day clock. We have
held that a communication from the EEOC will start the clock
only if it is “equivalent” to a right-to-sue letter. Ebbert,
319 F.3d at 116
 (holding that equivalent oral notice can start the
clock).3 For a communication to be equivalent to a right-to-

3
  Ebbert built on a line of cases in which we treated the EEOC’s
right-to-sue letter as the lodestar of adequate notice. See
Figueroa v. Buccaneer Hotel Inc.,
188 F.3d 172, 176
 (3d Cir.
1999) (“Section 2000e-5(f)(1) requires that claims brought
under Title VII be filed within ninety days of the claimant’s
receipt of the EEOC right to sue letter.”); Seitzinger, 165 F.3d
at 238–39 (“[T]he date on which [the plaintiff or her lawyer]
received the EEOC’s right-to-sue letter . . . is . . . th[e] date
[from which] we determine whether [her] complaint was




                                6
sue letter, it must be “as comprehensive” as the letter and
“include[] an explanation of the start date” for the 90-day
clock.
Id.
 (cleaned up).4

        Both complications arose here. Hayes and her lawyer
claim that the right-to-sue letter never arrived in the mail and
that neither of them received it until the EEOC emailed a copy
to the lawyer’s office manager on August 27. The parties also
dispute whether the March 11 email from the EEOC
investigator to Hayes’s lawyer or the posting of the right-to-
sue letter to the EEOC’s online portal started the 90-day clock.

                                 A

       We begin where the District Court ended: with the
March 11 email to Hayes’s lawyer. The email stated that the
EEOC’s “[r]eview of the available evidence does not establish
a violation of [Title VII].” App. 277. It then explained that the
EEOC “will issue you a Dismissal and Notice of Rights, which

timely filed in federal court.”); Burgh,
251 F.3d at 470
 (“The
on-set of the 90–day period is generally considered to be the
date on which the complainant receives the right-to-sue
letter.”).
4
  Our equivalent-notice requirement aligns with the EEOC’s
implementing regulations, which provide that the agency’s
“determination shall inform the person claiming to be
aggrieved . . . of the right to sue in Federal district court within
90 days of receipt of the determination.”
29 C.F.R. § 1601.19
(a); see also
id.
 § 1601.28(e) (“The notice of right to
sue shall include . . . [a]uthorization to the aggrieved person to
bring a civil action under title VII . . . within 90 days from
receipt of such authorization[.]”).




                                 7
will enable you to file suit in U.S. District Court within 90 days
of your receipt of that Notice if you wish to pursue this matter
further.” Id. (emphases added).

        Under Ebbert, this email was not equivalent to the right-
to-sue letter and was therefore insufficient to start the 90-day
clock. In that case, we analyzed a phone call in which an
EEOC employee told the plaintiff that her charge of
discrimination would be dismissed. Ebbert,
319 F.3d at 107
.
We held that “oral notice can suffice to start the 90-day period”
but that it “must be equivalent to written notice.”
Id. at 116
.
The phone call at issue there was not equivalent to a right-to-
sue letter because “no evidence show[ed] that [the plaintiff]
was told or otherwise knew the 90 days would start running
from the date of the conversation,”
id. at 116
, rather than upon
“receipt of a letter . . . subsequently sent,”
id. at 106
. The
March 11 email here is deficient for the same reason: it never
said that the 90-day clock had started. Instead, it said that a
right-to-sue letter was forthcoming, and that the limitations
period would commence when the letter was subsequently
sent.

       That Hayes was represented by counsel does not alter
this conclusion. In Ebbert, we observed in a footnote that the
Sixth Circuit did not require equivalent notice in an earlier
case.
Id.
 at 116 n.16 (discussing Ball v. Abbott Advert., Inc.,
864 F.2d 419, 421
 (6th Cir. 1988)). We noted that several
factual differences could account for the divergent holdings.
For instance, the EEOC communicated with Ebbert herself in
our case, while the agency spoke with the plaintiff’s lawyer in
the Sixth Circuit’s case.
Id.
 Relying on that footnote, the
District Court here held that Ebbert’s equivalent-notice
requirement applies only when a plaintiff is pro se.




                                8
       We read Ebbert differently. Its footnote did not limit
the equivalent-notice requirement. It merely explained why we
diverged from our sister circuit: “The specific facts in this case
demonstrate to this court that the further requirement of
completeness is essential.”
Id.
 To eliminate all doubt, we now
clarify that Ebbert’s equivalent-notice requirement applies to
pro se and counseled plaintiffs alike. Here, the March 11 email
to Hayes’s lawyer did not satisfy the equivalent-notice
requirement, so it did not start the 90-day clock.

                                B

        The same day that the EEOC investigator emailed
Hayes’s lawyer, the agency uploaded the right-to-sue letter to
its online portal. We have not yet addressed whether such an
action suffices to start the 90-day clock. Under the
circumstances here—where the upload was not accompanied
by a direct communication to the plaintiff or her lawyer—we
hold that it does not.

       The statute commands that the EEOC “shall . . . notify
the person aggrieved” and ties the 90-day period to “the giving
of such notice.” 42 U.S.C. § 2000e-5(f)(1). Although we do
not demand that notice take a “specific form,” Ebbert,
319 F.3d at 116
, we do require some affirmative act of communication
from the EEOC to the plaintiff or her lawyer. See, e.g.,
Seitzinger, 165 F.3d at 239 (letter); Ebbert,
319 F.3d at 116
(phone call). This requirement helps “strike[] a fair[] balance
between a defendant’s interest in a quick resolution of
charges . . . and a plaintiff’s interest in having adequate
opportunity to bring suit and a clear understanding of when and
where to do so.” Ebbert,
319 F.3d at 116
; see also DeTata v.
Rollprint Packaging Prods. Inc.,
632 F.3d 962, 970
 (7th Cir.




                                9
2011) (analyzing the notice requirement in light of the short
length of the 90-day filing period).

        Here, no evidence suggests that Hayes or her lawyer
received any notification that the right-to-sue letter had been
posted to the portal. See Lax v. Mayorkas,
20 F.4th 1178
,
1182–83 (7th Cir. 2021) (holding that the 90-day period began
when the plaintiff received and read an email stating that the
right-to-sue letter was available). Nor did the EEOC
investigator who emailed Hayes’s lawyer on March 11 instruct
him to check the portal for the letter. Hayes and her lawyer
therefore received no communication informing them that the
right-to-sue letter had been issued and that the filing period had
begun. Under these circumstances, the posting of the right-to-
sue letter to the EEOC’s online portal did not start the 90-day
clock.

                                C

        Because the email and the portal upload did not begin
the filing period, we now turn to the mailed right-to-sue letter.
The letter lists a mailing date of March 11, so we presume that
Hayes received it three days later. Seitzinger, 165 F.3d at 239.
But in a sworn declaration, Hayes said she never received the
right-to-sue letter by mail and first saw it after her lawyer
obtained it from the EEOC on August 27. Her lawyer’s office
manager also submitted a sworn statement that the law office
never received the letter by mail, despite having scanned and
documented all incoming correspondence.

       Hayes has introduced enough evidence to rebut the
three-day presumption and defeat summary judgment. The
declarations from Hayes and the office manager support a
finding “that receipt was delayed beyond the presumed




                               10
period.” Payan,
495 F.3d at 1126
. They create a dispute of
material fact sufficient to defeat summary judgment on
timeliness. See Ebbert,
319 F.3d at 117
 (holding that a
plaintiff’s deposition testimony denying receipt of the right-to-
sue letter was enough to defeat summary judgment); Witt v.
Roadway Express,
136 F.3d 1424, 1430
 (10th Cir. 1998)
(“[E]vidence denying receipt creates a credibility issue that
must be resolved by the trier of fact.”). The letter’s issuance
during the period when COVID-19 shutdowns began in the
United States also supports Hayes’s theory that it was either
misdelivered or never mailed. A jury therefore must resolve
when Hayes or her lawyer first received the right-to-sue letter.

                        *      *       *

       For the reasons set forth above, we will vacate the
District Court’s order and remand for further proceedings.




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