United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2014 Decided July 24, 2015

No. 13-7181

MATTHEW MAGGIO,

APPELLANT

v.

WISCONSIN AVENUE PSYCHIATRIC CENTER, INC,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01255)

Arinderjit Dhali argued the cause and filed the briefs for

appellant.

Alan S. Block argued the cause for appellee. With him on

the brief was Andrew Butz.

Before: ROGERS, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH. 

Dissenting opinion filed by Circuit Judge ROGERS.
2

RANDOLPH, Senior Circuit Judge: The issue in this appeal

is whether, as District Judge Lamberth ruled, 42 U.S.C. § 2000e5(f)(1) barred Matthew Maggio’s civil action alleging 

discrimination because he brought it too late. 

The dates matter so we will give them. On May 11, 2012,

Maggio completed a “Charge of Discrimination” and had it

submitted to the Washington, D.C. office of the U.S. Equal

Employment Opportunity Commission (“EEOC”). His charge,

contained on the EEOC’s Form 5, alleged that in December

2011 Maggio’s employer fired him because he was male. On

Form 5, Maggio swore that his statements were true and listed

his address as “3032 Rodman Street, NW, Apt. 35, Washington,

DC 20008.” At the time he was not living at that address. A

month earlier he had moved to South Carolina.

On November 26, 2012, the EEOC mailed a right-to-sue

notice to Maggio at his Rodman Street address. Under 42

U.S.C. § 2000e-5(f)(1), if a complainant decides to sue his

employer, he must bring the action “within ninety days after the

giving” of the notice. See also Baldwin Cnty. Welcome Ctr. v.

Brown, 466 U.S. 147, 149-50 (1984) (per curiam). The EEOC’s

notice so informed Maggio and stated that if he did not bring a

civil action within ninety days his “right to sue based on this

charge will be lost.” According to Maggio, he never received

the notice, doubtless because he was then living in South

Carolina. (No evidence indicates that Maggio left a forwarding

address with the post office after he vacated his Rodman Street

apartment in April 2012.)

Although by law Maggio could bring an action if the EEOC

had not resolved his discrimination charge within 180 days of

his May 2012 filing, see 42 U.S.C. § 2000e-5(f)(1), it was not

until June 2013 that Maggio’s attorney bothered to call the

EEOC to inquire about his client’s case. At the attorney’s
3

request, the EEOC mailed him a copy of the November 2012

right-to-sue notice. On June 21, 2013, Maggio filed his

complaint against his former employer in D.C. Superior Court. 

The defendant removed the case to federal district court. 

Maggio’s lawsuit began far more than ninety days after the

EEOC mailed the right-to-sue notice to his Rodman Street

address. Maggio never informed the agency that he was living 1

in South Carolina. Thus, Maggio violated his duty to notify the

EEOC “of any change in address and . . . any prolonged absence

from that current address so that he or she can be located when

necessary during the Commission’s consideration of the

charge.” 29 C.F.R. § 1601.7(b). Maggio acknowledged this 2

duty when signing Form 5, in which he declared that he “will

When the EEOC mails a right-to-sue notice, the presumptive

1

day of receipt is three-to-five days after issuance and mailing. 

Baldwin, 466 U.S. at 148 n.1; Cook v. Providence Hosp., 820 F.2d

176, 179 n.3 (6th Cir. 1987). Maggio never argues that the ninety-day

limitations period did not begin until after he received actual notice. 

Other circuits have rejected such an argument, noting that “when

plaintiffs fail to receive notice through their own fault, the ‘actualnotice’ rule does not apply.” Day v. Lincoln Ins. Agency, Inc., 1 F.

App’x 521, 523 (7th Cir. 2001) (per curiam) (unpublished); see also

St. Louis v. Alverno Coll., 744 F.2d 1314, 1317 (7th Cir. 1984);

Hunter v. Stephenson Roofing Inc., 790 F.2d 472, 474-75 (6th Cir.

1986).

In order to avoid the conclusion that he supplied – under oath 2

– a false address on EEOC Form 5, Maggio’s brief statesthat when he

moved out of D.C. in April 2012 he had not yet decided to reside

permanently in South Carolina. But the form does not ask for a

permanent address; it asks for a “Street Address” and the “City, State

and ZIP Code,” and advises the complainant of his duty to inform the

EEOC if he changes his address. In any event, Maggio’s amended

complaint states that he was “residing” in South Carolina “from April

2, 2012 . . . to the present.”
4

advise the agencies if [he] change[d] [his] address or phone

number.” 

Maggio thinks “equitable tolling” should relieve him of the

consequence of his failure to comply with the ninety-day rule. 

Although he apparently does not realize it, his argument calls on

the court to engage in statutory interpretation of 42 U.S.C.

§ 2000e-5(f)(1). “Equitable tolling” is not some free floating

doctrine allowing the courts to override the will of Congress. 

What matters is congressional intent, as we explained in 3M Co.

(Minnesota Mining and Manufacturing) v. Browner, 17 F.3d

1453, 1461 (D.C. Cir. 1994). The critical question is whether

Congress meant to allow courts to toll the statutory limitations

period. The answer to that question depends on “whether a

particular basis for suspending the running of the statute of

limitations had received judicial recognition when the statute

became law.” Nat’l Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 961

(D.C. Cir. 2013); see Adam Bain & Ugo Colella, Interpreting 3

Federal Statutes of Limitations, 37 CREIGHTON L. REV. 493,

502-03 (2004). If by then the judiciary had generally recognized

it, a fair inference would be that Congress intended to permit the

tolling of the statutory limitation in similar circumstances. If

not, the courts cannot excuse a litigant’s filing after the statutory

deadline.

Maggio’s position is that he is entitled to “equitable tolling”

because he thought the EEOC would send its right-to-sue notice

American Meat Institute v. U.S. Department of Agriculture, 760 3

F.3d 18, 22-23 (D.C. Cir. 2014) (en banc), overruled only the

statement in footnote 18 of National Association of Manufacturers

describing the holding in Zauderer v. Office of Disciplinary Counsel

of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985). Zauderer

has nothing to do with this case. 
5

to his attorney, and the agency did not. Was that a generally 4

recognized basis for tolling a limitations period in 1964 when

Congress enacted this statute? Neither party to this case has

addressed the question. Although we very much doubt that any

such “equitable tolling” was widely recognized in 1964, we will

not undertake to research the issue on our own. We will not do

so because we agree with the many decisions of other courts of

appeals refusing to toll the running of the ninety days in

circumstances like Maggio’s. These decisions hold that when

a complainant fails to receive a right-to-sue notice because he

gave the EEOC an incorrect address or because he neglected to

inform the EEOC when he moved, the complainant is at fault

and he is not entitled to equitable tolling. See, e.g., Abraham v.

Woods Hole Oceanographic Inst., 553 F.3d 114, 120-21 (1st

Cir. 2009); Pearison v. Pinkerton’s Inc., 90 F. App’x 811, 813

(6th Cir. 2004) (per curiam) (unpublished); Day, 1 F. App’x at

Maggio’s EEOC Form 5 listed, beneath his own name, “c/o A.J. 4

Dhali, Esq” along with Mr. Dhali’s address. 

On May 11, 2012, Maggio also filed a claim of discrimination

with the District of Columbia Office of Human Rights. On the D.C.

agency’s form he again listed his address as Rodman Street in

Washington, although he was then living in South Carolina. Maggio

withdrew his D.C. claim in short order. 

Maggio’s brief and his reply brief assert that he orally requested

an individual in the D.C. Office to communicate only with his

attorney. Why this amounts to informing the EEOC of his request is

a red herring we need not pursue. Maggio never asserted this as fact

in the district court or supplied evidentiary support for it. Judge

Lamberth’s opinion thus stated correctly: “[A]t no time did Maggio

direct these agencies [the D.C. Office or the EEOC] to solely

communicate – or even dually communicate – with his counsel.” 

Maggio v. Wis. Ave. Psychiatric Ctr., Inc., 987 F. Supp. 2d 38, 42

(D.D.C. 2013). 
6

523; Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 385 (9th

Cir. 1997); Hill v. John Chezik Imps., 869 F.2d 1122, 1124 (8th

Cir. 1989); Hunter, 790 F.2d at 475; St. Louis v. Alverno Coll.,

744 F.2d at 1316-17; see also Dyson v. District of Columbia,

710 F.3d 415, 422 (D.C. Cir. 2013); Tolling of the Time Period

for Bringing Title VII Action, 13 A.L.R. Fed. 2d 633 (2006),

§ 23 (collecting cases). 

5

Neither Maggio nor his attorney asked the EEOC to send the 5

notice to the attorney. Maggio cites no case law in support of his

argument that agencies are required to communicate with counsel

absent an express request that they do so. Other courts have

“explicitly rejected the argument that the EEOC must send a copy of

the right to sue notice to a plaintiff’s attorney upon request,” and

Maggio does not press this argument before us. Hopkins v. United

Parcel Serv., 221 F.3d 1334, 2000 WL 923458 at *5 (6th Cir. 2000)

(unpublished); see also Threadgill v. Moore U.S.A., Inc., 269 F.3d

848, 850-51 (7th Cir. 2001); Ball v. Abbott Adver., Inc., 864 F.2d 419,

421(6th Cir. 1988).

The cases Maggio and our dissenting colleague mainly rely on –

Coleman v. Talbot County Detention Center, 242 F. App’x 72 (4th

Cir. 2007) (per curiam) (unpublished) and Ryczek v. Guest Services,

Inc., 877 F. Supp. 754 (D.D.C. 1995) – are not to the contrary. In

Coleman, plaintiff’s counsel “explicitly requested that copies of all

correspondence be forwarded to [counsel,]” and counsel both wrote

and telephoned the EEOC seeking the right to sue letter. Coleman,

242 F. App’x at 73. In Ryczek, the plaintiff provided a declaration

from an EEOC employee admitting that the right to sue letter was

mistakenly sent to a temporary address of the plaintiff and not to the

permanent one on file with the EEOC. Ryczek, 877 F. Supp. at

757-58. In contrast, neither Maggio nor his counsel ever informed the

EEOC that it should communicate with counsel directly. 
7

In the words of a maxim of equity, Maggio came into court

without “clean hands.”6

Affirmed.

 We have considered and rejected Maggio’s other arguments.

6
ROGERS, Circuit Judge, dissenting: Today the court holds

that whenever a complainant fails to update his address with the

Equal Employment Opportunity Commission (“EEOC”) and

therefore fails to receive a mailed right-to-sue notice, the

complainant is not entitled to equitable tolling regardless of

what other measures the complainant took to ensure receipt of

the notice. This is not the law. A complainant, like Matthew

Maggio, is entitled to equitable tolling if the record “shows (1)

that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)

(citation and internal quotation marks omitted); see Dyson v.

District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013). Here,

the record shows that during a time of personal upheaval, when

his permanent mailing address was uncertain, Maggio took

reasonable steps to direct the EEOC to send his right-to-sue

notice to his attorney. The EEOC failed to follow his

instructions. Neither this court’s precedent nor that cited by the

court today require more. Because Maggio exercised reasonable

diligence and circumstances beyond his control prevented his

timely filing of his complaint, he is entitled to receive the

benefit of equitable tolling, see Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982); Gordon v. Nat’l Youth Work

Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982), and, accordingly,

I respectfully dissent.

I.

Title VII encourages the informal resolution of employment

discrimination disputes by requiring complainants to file charges

first with the EEOC or the appropriate state or local agency

before proceeding to federal court. 42 U.S.C. §§ 2000e-5(e)(1),

(f)(1); see Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S.

355, 368 (1977); Martini v. Fed. Nat’l Mortg. Ass’n, 178 F.3d

1336, 1340, 1346–47 (D.C. Cir. 1999). The EEOC coordinates

with state and local agencies, like the D.C. Office of Human
2

Rights (“OHR”), to streamline the processing and investigation

of charges. See 42 U.S.C. § 2000e-8(b); 29 C.F.R.

§§ 1601.13(c), 1626.10; Schuler v. PricewaterhouseCoopers,

LLP, 514 F.3d 1365, 1372–74 (D.C. Cir. 2008). Pursuant to the

worksharing agreement between the EEOC and the OHR, they

“each designate the other as its agent for the purpose of

receiving and drafting charges.” Pl.’s Opp’n Def.’s Mot.

Dismiss, Ex. 2, Worksharing Agreement ¶ II.A. Charges

received by the OHR are “deemed received” by the EEOC. See

29 C.F.R. § 1626.10(c); cf. Schuler, 514 F.3d at 1372.

Because Maggio is appealing the dismissal of count I of his

amended complaint for lack of timeliness pursuant to Federal

Rule of Civil Procedure 12(b)(6), this court must “accept all

factual allegations in the complaint as true” and “consider the

complaint in its entirety, as well as other sources courts

ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the

complaint by reference, and matters of which a court may take

judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007); see, e.g., Gordon v. U.S. Capitol

Police, 778 F.3d 158, 163–64 (D.C. Cir. 2015). The court may

also consider documents that are undisputed by the parties. See

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997);

Hollis v. U.S. Dep’t of the Army, 856 F.2d 1541, 1544 (D.C. Cir.

1988).

Notwithstanding the worksharing agreement, the record

shows that information received by the OHR is not necessarily

passed on to the EEOC. Maggio submitted an intake

questionnaire to the OHR on April 8, 2012, on which he noted

that he was represented by an attorney. A copy of this

questionnaire, which both parties attached to their motions in the

district court, shows that Maggio supplied his attorney’s name,

address, and telephone number. Maggio listed his own address
3

as “3032 Rodman Street, NW, Apt. 24, Washington D.C.

20008.” Maggio and his attorney, A.J. Dhali, both attended the

intake meeting with the OHR on May 11, 2012, where Maggio

filled out EEOC Form 5, the form used to cross-file a charge

with the OHR and the EEOC. EEOC Form 5, unlike the OHR’s

intake questionnaire, does not provide space for a complainant

to indicate representation by an attorney. Maggio, however,

indicated such representation in the box for his name. There,

Maggio wrote his own name and immediately below, within the

same box, “c/o A.J. Dhali, Esq, 1629 K Street, NW, Suite 300,

Washington, DC 20006.” In the box for “Home Phone,”

Maggio put his attorney’s email address,

“ajdhali@dhalilaw.com,” and his attorney’s telephone number. 

Maggio put his Rodman Street address in the box for “Street

Address.”

Although listing his Rodman Street address on the OHR

intake questionnaire and EEOC Form 5, on or about April 1,

2012, Maggio temporarily had gone to South Carolina to care

for his mother, who was in the final stages of Alzheimer’s

Disease. In opposing the motion to dismiss his complaint,

Maggio explained that at that time he was “between residences”

and “continued to receive mail at the D.C. address, and also

continued to apply for jobs within the District,” having not yet

decided to relocate permanently to South Carolina. Pl.’s Opp’n

Def.’s Mot. Dismiss 11. Although his move became permanent

around September 2012 and he did not update his address with

the EEOC, Dhali remained his attorney and Dhali’s address

remained accurate.

Notwithstanding the “c/o” and Maggio’s attorney’s name,

title, and full address on EEOC Form 5, on November 26, 2012,

the EEOC mailed a right-to-sue notice only to Maggio’s

Rodman Street address. Maggio did not receive this notice, and

the EEOC did not mail the notice to his attorney. When his
4

attorney contacted the EEOC by telephone and fax on June 4,

2013, and again by telephone ten days later, the 90-day statute

of limitations to file suit had expired, see 42 U.S.C. § 2000e5(f)(1). On June 17, 2013, the EEOC’s D.C. field office emailed

Dhali requesting a letter of representation; Dhali emailed the

letter the same day, and the EEOC then emailed the right-to-sue

notice to Dhali. Maggio, through Dhali, filed suit on June 21,

2013.

II.

The Supreme Court and this court have repeatedly

recognized that “Congress expected that the administrative stage

of the Title VII process would be conducted by laymen — not

lawyers,” Bethel v. Jefferson, 589 F.2d 631, 643 (D.C. Cir.

1978); see EEOC v. Commercial Office Prods. Co., 486 U.S.

107, 124 (1988); Howard v. Pritzker, 775 F.3d 430, 443 (D.C.

Cir. 2015); Rozen v. District of Columbia, 702 F.2d 1202,

1203–04 (D.C. Cir. 1983). Consequently, agencies must take

care not to “extinguish rights . . . simply by creating procedural

labyrinths,” Bethel, 589 F.2d at 643; see Love v. Pullman Co.,

404 U.S. 522, 527 (1972); Coles v. Penny, 531 F.2d 609, 614–15

(D.C. Cir. 1976). That Maggio was represented by an attorney

does not afford the court leave to abandon him to “a web of

procedural traps,” Bethel, 589 F.2d at 640 (citation and internal

quotation marks omitted); “[t]he fact that the particular

complainant might have had an attorney at one stage of the

process is of no relevance, for [Title VII] must be given a

construction rendering its mechanisms workable in the hands of

laymen generally,” id. at 642 n.67; see Schuler, 514 F.3d at

1376; see also Commercial Office Prods. Co., 486 U.S. at 124;

Bethel, 589 F.2d at 641 n.61.

This circuit is not alone in recognizing the EEOC’s

responsibility to guide complainants through the administrative
5

process. To that end, our sister circuits and other courts have

avoided penalizing plaintiffs who failed to notify the EEOC of

changes in address when they reasonably relied on the EEOC to

send correspondence to their attorneys. As the Fourth Circuit

acknowledged in Coleman v. Talbot County Detention Center,

242 F. App’x 72, 74 (4th Cir. 2007), “it is not at all

unreasonable for a layperson who has retained counsel to

assume that all further matters will be handled by her attorney.” 

Although the plaintiff had failed to apprise the EEOC of her

change of address, the Fourth Circuit nevertheless concluded

that “the primary fault is that of the EEOC for not — as both

counsel and Coleman reasonably expected — sending a copy of

the right-to-sue letter to counsel.” Id.; see also Stallworth v.

Wells Fargo Armored Servs. Corp., 936 F.2d 522, 525 (11th Cir.

1991); Pole v. Citibank, N.A., 556 F. Supp. 822, 823 (S.D.N.Y.

1983). Having taken the “reasonable step[]” of instructing the

EEOC to contact him in care of Dhali, see St. Louis v. Alverno

Coll., 744 F.2d 1314, 1317 (7th Cir. 1984), and failing to receive

his right-to-sue notice through “‘fortuitous circumstances’ or

‘events beyond his control,’” i.e., the EEOC’s disregard of his

written instruction, see Lewis v. Conners Steel Co., 673 F.2d

1240, 1243 (11th Cir. 1982) (citation omitted), Maggio is

entitled to equitable tolling.

A.

Maggio reasonably expected the EEOC to send

correspondence regarding his case to his attorney, Dhali,

because he directed the EEOC to do so on the charge form,

EEOC Form 5. The court’s conclusion that Maggio is not

entitled to equitable tolling hinges on the fact that Maggio

supplied an incorrect address for himself on EEOC Form 5. Op.

at 5–6. But Maggio may prove his diligence by showing that he

“had notified the EEOC that he had moved or had taken

reasonable steps to ensure that he would receive mail delivered”

to his previous residence. See St. Louis, 744 F.2d at 1317
6

(emphasis added) (citing Pole, 556 F. Supp. at 823); see also

Lewis, 673 F.2d at 1243. Maggio included his attorney’s name,

title (“Esq”), and address on EEOC Form 5 after the designation

“c/o,” as well as an email address that obviously belonged to

Dhali (“ajdhali@dhalilaw.com”) and Dhali’s telephone number. 

Use of the phrase “c/o,” which means “care of,” is commonly

used to designate mail that should be sent to a person through a

third party, see Webster’s Third New International Dictionary

338 (1993), and was thus sufficient to alert the EEOC that mail

on this matter was to be sent to Maggio through Dhali. 

Furthermore, the information that Maggio provided on EEOC

Form 5 made clear that Dhali was an attorney: Black’s Law

Dictionary defines “Esq.,” or “esquire,” as “[a] candidate for

knighthood,” “[a] member of the gentry whose rank was inferior

to that of a knight,” “[a] landed gentleman,” and “[a] title of

courtesy commonly appended after the name of a lawyer.” 

Black’s Law Dictionary 663 (10th ed. 2014). Lest there be some

doubt that Maggio was not referring to Dhali in his capacity as

landed gentry, Dhali’s email domain is listed on EEOC Form 5

as “dhalilaw.com.” The fact that Maggio supplied an email

address that belonged to Dhali, not himself, should have further

alerted the EEOC that Maggio expected the agency to

communicate with Dhali.

The court dismisses Maggio’s attempts to alert the EEOC

and the OHR to his representation by an attorney for the reason

that Maggio never explicitly directed either agency to

communicate with his attorney. Op. at 5 n.4, 6 n.5; see also

Maggio v. Wis. Ave. Psychiatric Ctr., Inc., 987 F. Supp. 2d 38,

42 (D.D.C. 2013). Not so. The meaning of “c/o” is “not

ambiguous.” Cf. In re NETtel Corp., Inc., 364 B.R. 433, 461

(Bankr. D.D.C. 2006) (citation and internal quotation marks

omitted). Nor, in the present context, is the title “Esq.,” and it

was not unreasonable for Maggio to expect correspondence

would be sent to Dhali after the EEOC was apprised of
7

Maggio’s representation. Significantly, the EEOC’s compliance

manual directs its employees to send a right-to-sue notice to

both the charging party and his attorney. 1 EEO Compliance

Manual § 6.5(b). No other meaning, and the court suggests

none, could reasonably have been ascribed by the EEOC to the

information on Maggio’s EEOC Form 5 other than that Dhali

was Maggio’s attorney and correspondence regarding Maggio’s

case should be directed to his attorney. The cases on which the

court relies for the suggestion that the EEOC is not required to

send a right-to-sue notice to a complainant’s attorney, see Op.

at 6 n.5, are inapposite. In each, the complainant or the

complainant’s attorney had received actual notice that the rightto-sue letter had been sent, and suit still was not timely filed. 

See Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850–51 (7th

Cir. 2001); Hopkins v. United Parcel Serv., 221 F.3d 1334, 2000

WL 923458, at *4–5 (6th Cir. 2000) (unpublished); Ball v.

Abbott Adver., Inc., 864 F.2d 419, 421 (6th Cir. 1988).

Furthermore, if Maggio’s EEOC Form 5 was ambiguous,

the fault lies with the EEOC, not Maggio. Maggio not only

alerted the OHR on its intake questionnaire that Dhali was his

attorney, he also included information on EEOC Form 5 itself

that was sufficient to alert the EEOC that he was represented by

an attorney and, in any event, that correspondence should be

directed to Dhali. The OHR, it turns out, does not automatically

share its intake questionnaires with the EEOC, and unlike the

OHR intake questionnaire, EEOC Form 5 does not contain a

space for a claimant to indicate representation by an attorney. 

Although Maggio failed to update his own address, there is no

equity in dismissing Maggio’s complaint as untimely when he

took reasonable steps to ensure that his attorney would receive

notice from the EEOC and any confusion easily could have been

avoided if EEOC Form 5 included space for complainants to

indicate representation by an attorney and to instruct the EEOC

to direct correspondence to the attorney. The court holds
8

Maggio to the EEOC Form 5 reference to the requirement to

update his address, see Op. 3, 5, but not the EEOC to what was

clear on the face of its own form.

B.

A further consideration weighing in Maggio’s favor that the

court ignores altogether is the agency relationship established by

the worksharing agreement. Maggio contends that knowledge

of his representation by an attorney should be imputed to the

EEOC through the EEOC’s agency relationship with the OHR. 

The worksharing agreement between the OHR and the EEOC

provides that they are each other’s agents “for the purpose of

receiving and drafting charges.” Worksharing Agreement

¶ II.A. “An agent has actual authority to take . . . acts necessary

or incidental to achieving the principal’s objectives.” 

RESTATEMENT (THIRD) OF AGENCY § 2.02 (2006). “[I]t is

natural to assume that the principal wishes, as an incidental

matter, that the agent take the steps necessary and that the agent

proceed in the usual and ordinary way” to accomplish the

principal’s objectives. Id. cmt. d. Furthermore, “notice of a fact

that an agent knows . . . is imputed to the principal if knowledge

of the fact is material to the agent’s duties to the principal.” Id.

§ 5.03; see In re Color Tile Inc., 475 F.3d 508, 513 (3d Cir.

2007); Martin Marietta Corp. v. Gould, Inc., 70 F.3d 768, 773

& n.4 (4th Cir. 1995); Bowen v. Mount Vernon Sav. Bank, 105

F.2d 796, 798–99 (D.C. Cir. 1939).

The defendant, Maggio’s former employer, urges a narrow

reading of the worksharing agreement, maintaining that the

OHR is not the EEOC’s agent for the purpose of receiving

instructions about communicating with a complainant’s

attorney, even though Maggio provided his attorney’s name and

contact information on the OHR intake questionnaire he filed to

initiate the process of filing a charge. Such a reading is at odds

with our precedent, which recognizes that “[t]hese worksharing
9

agreements are meant to ease charges through the remedial

system, not to erect hurdles claimants must decipher and

overcome,” Schuler, 514 F.3d at 1374. Thus, “[t]he DC OHR’s

and EEOC’s procedural requirements are to be read broadly and

flexibly in the employee’s favor in light of their remedial

purposes and because they are designed for laypersons.” 

Esteños v. PAHO/WHO Fed. Credit Union, 952 A.2d 878,

885–86 (D.C. 2008). “These agreements are intended to

eliminate duplication of effort between the agencies and to

provide an efficient procedure for claimants to seek redress for

their grievances.” Laquaglia v. Rio Hotel & Casino, Inc., 186

F.3d 1172, 1177 (9th Cir. 1999); accord Nichols v. Muskingum

Coll., 318 F.3d 674, 679 (6th Cir. 2003). A “restrictive

interpretation” of the acts constituting receiving and drafting

charges “would not further these goals.” See Laquaglia, 186

F.3d at 1177.

The worksharing agreement’s agency provision is designed

to help complainants easily initiate Title VII’s administrative

process — i.e., file a charge — without having to worry about

approaching the correct office. See Esteños, 952 A.2d at 886. 

Collecting information about the complainant’s representation

by an attorney is a normal part of the intake process — notably,

both the OHR and the EEOC’s intake questionnaires ask for

information about representation by an attorney, see Pl.’s Opp’n

Def.’s Mot. Dismiss, Ex. 6, OHR Employment Intake

Questionnaire; EEOC, Intake Questionnaire 4 (2009),

http://www.eeoc.gov/form/upload/Uniform-IntakeQuestionnaire.pdf (last visited July 10, 2015). Collecting this

information is thus the usual way for an agency to “receive”

information relevant to a charge and is “material to the [OHR’s]

duties to the [EEOC].” See RESTATEMENT (THIRD) OF AGENCY

§ 5.03; see also id. § 5.02(1). Maggio’s notification to the OHR

that he was represented by an attorney therefore put the EEOC

on notice as to same. Id. §§ 5.02–5.03; see Martin Marietta
10

Corp., 70 F.3d at 773. Requiring complainants to separately

inform the OHR and the EEOC that they are represented by an

attorney, where neither intake questionnaire so requires, is

precisely the kind of bureaucratic technicality resulting in

duplication of effort that Title VII and the worksharing

agreements were designed to avoid. See Love, 404 U.S. at 527;

Laquaglia, 186 F.3d at 1177.

C.

The court’s suggestion otherwise notwithstanding, the

conclusion that Maggio is entitled to the benefit of equitable

tolling is consistent with our precedent. In Dyson, 710 F.3d at

421–22, see Op. at 6, the court held that the plaintiff was not

entitled to equitable tolling of the statute of limitations for filing

an administrative charge when she waited until the very end of

the limitations period to file an intake questionnaire with the

EEOC and disregarded specific instructions to follow up with

the EEOC until after the limitations period had expired. Maggio

exhibited no such dilatory behavior. Contrary to the court’s

suggestion, Op. at 2, Maggio did not act unreasonably in waiting

13 months to contact the EEOC about his right-to-sue notice. 

The Supreme Court has held that

[i]f a complainant is dissatisfied with the progress

the EEOC is making on his or her charge . . . he or

she may elect to circumvent the EEOC procedures

and seek relief through a private enforcement action

in a district court. The 180-day limitation provides

only that this private right of action does not arise

until 180 days after a charge has been filed. . . .

After waiting for that period, the complainant may

either file a private action within 90 days after

EEOC notification or continue to leave the ultimate

resolution of his charge to the efforts of the EEOC.
11

Occidental Life Ins., 432 U.S. at 361 (emphases added). The

EEOC’s regulations allow a complainant to receive a right-tosue notice upon request “at any time after the expiration of one

hundred eighty (180) days from the date of filing of the charge

with the Commission.” 29 C.F.R. § 1601.28(a)(1) (emphasis

added); see Martini, 178 F.3d at 1345. Case law confirms that

the EEOC regularly takes much longer than 180 days, or even

more than a year, to resolve charges. See, e.g., Robinson v. Ergo

Solutions, LLC, — F. Supp. 3d —, No. 14-379 (JDB), 2015 WL

1422138, at *6 (D.D.C. Mar. 30, 2015) (two years, four months:

charge filed in August 2011, right-to-sue notice issued in

December 2013); Olatunji v. District of Columbia, 958 F. Supp.

2d 27, 29 (D.D.C. 2013) (one year, four months: charge filed in

February 2009, right-to-sue notice issued in June 2010); Thomas

v. Wash. Metro. Area Transit Auth., 907 F. Supp. 2d 144, 147

(D.D.C. 2012) (one year, three months: charge filed in May

2010, right-to-sue notice issued in August 2011).

As this court has recognized, “Congress well understood

that the EEOC’s limited resources preclude it from investigating

every charge within 180 days but nevertheless ‘hoped that

recourse to the private lawsuit will be the exception and not the

rule.’” Martini, 178 F.3d at 1346 (citation omitted) (quoting

118 CONG.REC.7168 (1972)); see also Occidental Life Ins., 432

U.S. at 362–66. To that end, courts have rejected the application

of state statutes of limitations and the doctrine of laches to Title

VII complaints filed in federal court after lengthy administrative

proceedings. See Kannikal v. Attorney Gen. U.S., 776 F.3d 146,

150 (3d Cir. 2015); Howard, 775 F.3d at 441–42. Congress’s

intent that Title VII claims be resolved through the

administrative process “whenever possible,” Occidental Life

Ins., 432 U.S. at 368, would likewise be frustrated by requiring

complainants to request a right-to-sue notice at the earliest

possible opportunity or risk losing the benefit of equitable

tolling down the road. And given the wide variance in the
12

amount of time the EEOC requires to resolve claims, Maggio’s

decision (through his attorney) not to contact the EEOC until

June 2013 does not, under the circumstances, show a lack of

diligence.

The court purports to be following the rule of our sister

circuits, see Op. at 5–6 & n.5, but those courts have not held that

a complainant’s failure to update his address with the EEOC is

an absolute bar to equitable tolling when he has made other

appropriate arrangements to receive mail. See Coleman, 242 F.

App’x at 74; Stallworth, 936 F.2d at 525; cf. St. Louis, 744 F.2d

at 1317. In Day v. Lincoln Ins. Agency, 1 F. App’x 521, 523

(7th Cir. 2001), the Seventh Circuit held that the plaintiff was

not entitled to equitable tolling when he did not apprise the

EEOC of his new address after his order to the post office to

forward his mail had expired, but the court acknowledged that

the plaintiff’s instruction to the post office “at least arguabl[y]

. . . created the equivalent of an accurate address for him, as long

as that instruction was in effect.” Similarly to Day, the other

cases cited by the court involve complainants who both moved

without alerting the EEOC to their new addresses and without

making appropriate arrangements to receive mail sent to their

old addresses: Abraham v. Woods Hole Oceanographic Institute,

553 F.3d 114, 120 (1st Cir. 2009); Pearison v. Pinkerton’s Inc.,

90 F. App’x 811, 813 (6th Cir. 2004); Nelmida v. Shelly

Eurocars, Inc, 112 F.3d 380, 385 (9th Cir. 1997); Hunter v.

Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986); St.

Louis, 744 F.2d at 1317. Or the cases involve complainants who

received actual notice of their right to sue in time to file within

the statute of limitations and failed to do so: Threadgill, 269

F.3d at 850–51; Hopkins, 2000 WL 923458, at *4–5; Nelmida,

112 F.3d at 385; Hill v. John Chezik Imports, 869 F.2d 1122,

1124 (8th Cir. 1989); Ball, 864 F.2d at 421; Hunter, 790 F.2d at

473. Maggio’s efforts to have the EEOC send correspondence

to him in care of his attorney, Dhali, and his diligent pursuit of
13

his rights once he received actual notice distinguish his case

from those relied on by the court.

Accordingly, because Maggio exercised reasonable

diligence in alerting the EEOC that it should send

correspondence to his attorney, and through no fault of his own

the EEOC did not do so, he is entitled to equitable tolling of the

90-day statute of limitations to file suit, and I respectfully

dissent.