Cynthia A. Ebbert v. Daimlerchrysler Corporation on Appeal From the United States District Court for the…

PRECEDENTIAL
Filed February 4, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1503
CYNTHIA A. EBBERT,
Appellant
v.
DAIMLERCHRYSLER CORPORATION
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
(D.C. Civil Action No. 01-cv-0029)
District Judge: Honorable Gregory M. Sleet
Argued October 29, 2002
Before: NYGAARD, COWEN and MICHEL,*
Circuit Judges.
(Filed: February 4, 2003)
Gary W. Aber, Esq. (ARGUED)
Heiman, Aber, Goldlust & Baker
702 King Street, Suite 600
P.O. Box 600
Wilmington, DE 19899
Counsel for Appellant
________________________________________________________________
* Honorable Paul R. Michel, Circuit Judge, United States Court of
Appeals for the Federal Circuit, sitting by designation.
Gary M. Smith, Esq. (ARGUED)
Lewis, Rice & Fingersh
500 North Broadway
Suite 2000
St. Louis, MO 63102
Counsel for Appellee
Caren I. Friedman, Esq. (ARGUED)
Equal Employment Opportunity
Commission
1801 L Street, N.W.
Washington, DC 20507
Counsel for Amicus Appellant
OPINION OF THE COURT
MICHEL, Circuit Judge:

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Plaintiff Cynthia A. Ebbert brought an action against her
former employer, DaimlerChrysler Corp., alleging that
DaimlerChrysler failed to reasonably accommodate her
spinal cord injury in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. SS 12101 (2000) et seq.
("ADA"). The District Court granted summary judgment to
the defendant on the ground that Ebbert’s complaint was
untimely filed. Ebbert v. DaimlerChrysler Corp. , 192 F.
Supp. 2d 303 (D. Del. 2002). The District Court based its
decision on both the lapse of time and finding her ineligible
for equitable tolling. Id. at 309. Ebbert’s appeal focuses on
two District Court findings: (1) that she had actual notice of
the dismissal of her case by the Equal Employment
Opportunity Commission ("EEOC"); and (2) that the statute
of limitations period was started by oral notice before
October 16, 2000 even though she did not receive any of
the dismissal and notice letters sent to her by the EEOC
until that date. The District Court concluded that telephone
calls Ebbert had with EEOC staff gave her actual notice of
the requisite statute of limitations information by August
2000 and because she had actual notice, the 90-day
statute of limitations period for filing her ADA claim in
federal court had long since expired by January 16, 2001
when she did finally file. Ebbert contends that her pre-
2
October notice was factually deficient and, in any event,
that the District Court’s interpretation of sufficient notice is
erroneous as contrary to the EEOC’s regulations. Ebbert
and the EEOC, as amicus in this appeal,1 both argue that
this court must defer to the EEOC’s understanding of the
event that commences the limitations period, namely,
receipt of a letter of notice. Ebbert also maintains that she
was entitled to rely on the prior oral and written
instructions of the EEOC telling her to wait for the letter.
Thus, according to her, the limitations period could only
have started when the letter was received.
This appeal presents the question of what constitutes
sufficient notice under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. S 2000e-5(f)(1) (2000), to start
the 90-day limitations period. The District Court found that
there was no genuine issue of material fact that Ebbert had
actual notice not later than her August 2000 phone
discussions with EEOC staff. We hold, however, that on the
summary judgment record, DaimlerChrysler did not meet
its burden of proving the absence of a genuine dispute of
fact respecting proper notice. Missing from the defendant’s
evidence was any indication that Ebbert was told in the
phone conversation of August 2000 that the 90-day
limitations period was started by the phone call, as opposed
to receipt of a letter of notice subsequently sent. Thus, we
must conclude the District Court erroneously granted
summary judgment. The judgment of the District Court will
be reversed and the case remanded.
I. Facts and Procedural History

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Ebbert was employed by DaimlerChrysler at an assembly
plant as an apprentice pipefitter. On September 7, 1995,
Ebbert was injured in a motor vehicle accident. Her spinal
cord injury caused complete paralysis from the waist down.
She maintains that she requested an accommodation from
DaimlerChrysler so that she could continue working for the
company in some capacity and was refused.
_________________________________________________________________
1. The EEOC both submitted a brief in this case and presented oral
argument.
3
On April 28, 1997, Ebbert filed a charge of disability
discrimination with the EEOC. On February 24, 1998, she
informed the EEOC that she had moved and gave her new
mailing address. On March 17, 1999 she received, at her
new address, a letter from EEOC Supervisory Investigator,
Howard Gurmankin, informing her that the EEOC was
going to dismiss her case and that "the Dismissal and
Notice of Rights" which the EEOC would be sending to her
would "allow" her to file a private suit if she wished. Ebbert
telephoned in response and was told that the follow-up
letter was in the mail. A "right to sue" letter may have been
sent to Ebbert’s former address instead of her current
address but it is not clear.2 In any event, Ebbert denies ever
receiving the letter and there is no undisputed evidence
that she did. After waiting a month, Ebbert telephoned the
EEOC again and was told that the earlier letter had been
premature and the EEOC had decided to reopen her case.
Then after further investigation, the EEOC again decided to
dismiss her case. The case log shows that Investigator
Karin Porter told Ebbert on September 21, 1999 that the
charge would be dismissed.3 On November 4, 1999 the
EEOC issued Ebbert a second notice letter but mailed the
letter to her former address. Ebbert again denies having
received this second letter and there is again no direct or
undisputed proof that she did. On August 14, 2000 Ebbert
sent a letter to Porter requesting a status update and
shortly thereafter Porter informed her by telephone that her
case was closed and that the letter had been sent some
time ago. Ebbert recounted the phone conversation in her
letter to Porter of August 23, 2000. On October 16, 2000
the EEOC sent Ebbert a third notice, this time to the
correct address, and Ebbert instituted this lawsuit on
January 16, 2001.
Ebbert testified at her deposition that she was aware that
"after you receive [the notice letter], you’ve got 90 days" but
was not sure who told her that. The trial court said that
_________________________________________________________________
2. According to Gurmankin’s November 20, 2001 affidavit, there was no
copy of the letter in the EEOC files and the EEOC Case Log indicates
that that the letter was not sent (but without any explanation of how
that was determined).
3. Again, this is according to Gurmankin’s November 20, 2001 affidavit.

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4
"[a]s best [sic] can be discerned from the record and the
parties’ briefs, this conversation [about the statute of
limitations] appears to have occurred at some point during
1999." Ebbert, 192 F. Supp. 2d at 305 n.2. The trial court
found that for purposes of summary judgment Ebbert had
not received any notice letter before October 16, 2000 but
concluded that Ebbert had other, actual notice before
October 16, 2000.
The trial court also addressed her claim to equitable
tolling. The trial court found that Ebbert was not diligent in
pursuing her claim and concluded that, if nothing else,
would prevent the court from allowing equitable tolling. The
determination that Ebbert was not diligent was based on
the finding that Ebbert "showed little concern for her case
between approximately October 10, 1999 and August
2000." Id. at 308. The court also concluded that precedent
showed it did not matter whether EEOC personnel misled
the appellant into thinking that she had 90 days upon
receipt of the notice letter, because a third party should not
be able to destroy a defendant’s immunity from untimely
litigation. Id. at 309.
Finally, the trial court also concluded that Ebbert’s
argument that the October 16, 2000 "right to sue" letter
"rescinded" the earlier letters had no merit because the
EEOC regulations require other, specific actions in order for
such letters to be revoked. As those actions were not taken
in this case, the District Court concluded it does not matter
that Gurmankin stated that the third letter rescinded the
previous letters.
II. Standard of Review
We exercise plenary review of the District Court’s decision
to grant summary judgment. See Gray v. York Newspapers,
Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). Summary
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the non-moving party, the moving party is entitled to
judgment as a matter of law. See F.R.C.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).
5
III. Discussion
If the employer in an ADA case asserts an affirmative
defense, like the expiration of the statute of limitations as
DaimlerChrysler did in this case, then the burden of proof
for that defense rests solely on the employer. See Williams
v. Runyon, 130 F.3d 568, 573 (3d. Cir. 1997) (holding that
the defendant has the burden of proof regarding its
affirmative defenses in Title VII actions). Proof of the
expiration of the statute of limitations clearly requires proof

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of the lawful start date for the limitations period. It is with
respect to this detail that we hold that DaimlerChrysler did
not meet its summary judgment burden and, therefore, the
trial court’s grant of summary judgment constituted
reversible error.
A.
For ADA discrimination claims like the one Ebbert has
brought, 42 U.S.C. S 2000e-5(f)(1)4 requires that upon
dismissal of a charge, the EEOC shall "notify the person
aggrieved and within ninety days after the giving of such
notice a civil action may be brought."5 Thus, the statute is
clear that a dismissal by the EEOC followed by notice to the
person aggrieved are the two events that together start the
statute of limitations period. These are, therefore, also the
two events that DaimlerChrysler had to prove occurred
more than ninety days before Ebbert filed her complaint.
No one disputes that the EEOC dismissed Ebbert’s case
in November of 1999. Notice to the complainant is, thus,
really what DaimlerChrysler needed to have proven more
specifically. Determining whether DaimlerChrysler met its
_________________________________________________________________
4. The ADA incorporates by reference Title VII’s"powers, remedies, and
procedures." 42 U.S.C. S 12117 (2000). The relevant parts of Title VII are
then codified at 42 U.S.C. S 2000e-5(f)(1).
5. Because F.R.C.P. 6(e) adds a rebuttable presumption of three days’
mailing time to be added to a prescribed period whenever a statutory
period begins on receipt or service of notice (as opposed to the mailing
of notice), the filing on January 16, 2001 would be timely under this
limitations period, if the October 16, 2000 letter of notification started
the limitations period.
6
burden of proof requires a clarification of the underlying
law regarding notification, namely defining "giving" notice
under the statute. The key question for this case is, thus,
what must notice entail: does notice under 42 U.S.C.
S 2000e-5(f)(1) need to be in writing, and what information
must it include. The statute offers no specific command
about form or content. We must, therefore, turn to other
sources to construe what "giving" notice means.
The EEOC, as amicus in this case, argues that its
regulation which "enumerates the contents of a notice of
right to sue, is entitled to deference" under Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). [Green Br. 17] Chevron deference is
appropriate for legislative regulations in which an agency
interprets a statute or fills in a gap for which Congress
delegated such authority to the agency. Chevron , 467 U.S.
at 843-44. It is not appropriate for agency regulations that
merely implement a statute for which no delegation of
authority was involved. Id. The EEOC contends that an
express delegation by Congress occurred in 42 U.S.C.

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S 2000e-12(a) (2000) because the statute granted the EEOC
the "authority from time to time to issue, amend, or rescind
suitable procedural regulations to carry out the provisions"
of the statute. The EEOC asks this court to defer to the
EEOC’s reading of the regulations that the receipt of a letter
of notice is the only possible event that starts the 90-day
limitations period. This argument for deference is flawed.
1.
One flaw in the EEOC’s argument for Chevron deference
is that even if this court were to find a delegation of
interpretational authority to the EEOC, the regulations
themselves do not explicitly articulate the rule the EEOC
argues for in this appeal. If the regulations had said
explicitly that "giving" notice was not defined in the statute
and as a result the agency defined it as meaning the receipt
of written notice, then this court presumably would have to
defer (assuming there was a delegation of such authority by
Congress). However, nowhere do the regulations say that
the 90-day statute of limitations period is commenced only
by the complainant’s receipt of a written form of notice. The
7
most relevant regulation, 29 C.F.R. S 1601.19 (2002), the
one addressing "no cause" dismissals by the EEOC,
provides only that the EEOC "shall issue a letter," which
"shall inform the person claiming to be aggrieved or the
person on whose behalf a charge was filed of the right to
sue in Federal District Court within 90 days of receipt of
the letter of determination." 29 C.F.R. S 1601.19(a). Notably,
all of the language is directed to EEOC personnel, none to
the courts or complainants. In addition, the regulation in
no way precludes notification by other means. It may be
true that a common sense reading of the regulations
suggests that they presume a writing, but that is not the
same as their requiring a writing and excluding notification
by other means. Indeed, in its brief, the EEOC states in an
argument heading that the EEOC regulation "contemplates"
that notice of right to sue will be in writing. This seems to
be an accurate description. To say that a regulation
"contemplates" something is to say that it is consistent with
that something; it is not to say the regulation requires
something.
Beyond that, related regulations direct the EEOC to issue
written notices but again do not suggest that these are
anything more than instructions to EEOC personnel. 6
Therefore, no EEOC regulation offers explicit interpretation
of 42 U.S.C. S 2000e-5(f)(1) and no regulation includes any
binding or restrictive language that purports to constrain
courts in their construction of "giving" notice in 42 U.S.C.
S 2000e-5(f)(1).
_________________________________________________________________
6. 29 C.F.R. S 1601.18(e) explains only that for untimely-filed EEOC
complaints or other complaints filed that fail to state a claim under the
relevant statutes "[w]ritten notice of disposition . . . shall be issued." This

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suggests more an instruction for how EEOC staff should effect this
particular notice, than an instruction to the courts about the
requirement of this form of notice or the invalidity of any other kind of
notice. Similarly, 29 C.F.R. S 1601.28(e) applies to notices requested by
complainants and is no more explicit, even though it is more extensive.
See infra note 8. Although the EEOC correctly points out that 29 C.F.R.
S 1601.28(e) clearly implies that notice of right to sue will be in writing,
the regulation still does not announce any requirement and again reads
more like an instruction to EEOC personnel than an interpretation of a
statutory requirement.
8
The EEOC’s arguments about the regulations requiring a
writing are, thus, flawed because no such requirement is
found in the language of those regulations. The flaw,
however, is not dispositive of the question of deference
because we cannot say the EEOC’s interpretation of its own
regulations as implicitly requiring a writing is unreasonable.
This court, therefore, cannot merely decline to defer to the
regulations solely on the basis that they do not address the
issue at hand. This court must instead reach the next
question -- about the authority to create such regulations
-- in order to decide whether the regulations as construed
by the EEOC merit Chevron deference.
2.
The dispositive flaw in the EEOC’s argument for Chevron
deference is that the power to create such a rule binding on
courts is beyond the authority delegated to the EEOC.
First, the rule the EEOC advocates -- that only written
notice can start the limitations period -- is not a procedural
rule of the EEOC for carrying out its duties, as we conclude
42 U.S.C. S 2000e-12(a) requires. The statute says that it
gives the authority for "suitable procedural regulations to
carry out the provisions of the statute," but we infer that
Congress intended to refer only to the provisions of the
statute that apply to the administrative stage of
discrimination complaints. Therefore, the authority
delegated to the EEOC does not extend far enough to
authorize its rule.
Second, the EEOC attempts to control the circumstances
under which federal courts cannot dismiss complaints for
late filing. Such power cannot be within the scope of the
"procedural regulations," of 42 U.S.C. S 2000e-12(a). It is
not within the scope not because it is not procedure but
because it concerns court procedure, not administrative
procedure. The EEOC certainly has broad procedural
powers for the administrative stage of discrimination
complaints, but we cannot see that Congress intended its
authority to extend beyond the administrative stage into the
judicial proceedings.
Therefore, any implicit or explicit definition by 29 C.F.R.
9

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S 1601.18, 29 C.F.R. S 1601.19, or 29 C.F.R. S 1601.28 of
"giving" notice as used in 42 U.S.C. S 2000e-5(f)(1) as
requiring receipt of a writing is beyond the power of the
EEOC, an administrative agency, to impose on the courts,
creatures of a separate and co-equal branch.7 At issue here
is the timeliness of a court filing, not of any filing with the
EEOC. Thus, the administrative discrimination complaints
are not implicated. Moreover, in 42 U.S.C. S 2000e-5(f)(1)
Congress created the right to sue. The EEOC does not grant
the right. If Congress wished to delegate to the EEOC
control over that right to sue, Congress surely would have
had to include such a provision in 42 U.S.C. S 2000e-5(f)(1).
The absence of any such provision, combined with the
affirmative grant of the right to sue in 42 U.S.C.S 2000e-
5(f)(1), which lends significance to the omission, show that
there was no such delegation by Congress. The delegation
made in 42 U.S.C. S 2000e-12(a) should, therefore, be
understood as limited, and as not including procedures
applicable in district courts.
Further indication that this is not a procedural rule that
falls within the domain of the agency is that no possible
decision by us in this case could control how the EEOC
administers itself or adjudicates charges filed with it. The
EEOC remains free to adopt any procedure it wants for the
management of dismissals, regardless of this court’s
decision about when the limitations period commences.
The EEOC points to no other statutes or other
manifestations of congressional intent to delegate authority
to the EEOC to promulgate regulations to constrain courts
in construing "giving" notice. The only additional suggestion
of a delegation of authority is in the EEOC regulations
themselves that suggest that the EEOC understood
Congress to have delegated the authority to promulgate
regulations affecting the limitations period and
_________________________________________________________________
7. Our holding in this case about the lack of delegated authority is
limited not only to just this one administrative agency, but also to just
these few of all EEOC regulations, and even then only to the specific
issue of defining the statutory term "giving" of notice as commencing the
limitations period. We do not purport to decide broader or more general
delegation questions.
10
complainants’ access to the courts8 but this understanding
alone cannot justify granting Chevron deference, especially
in the face of the background limit in scope that we have
inferred exists.
Third Circuit case law makes it quite clear that deference
to agency regulations is appropriate where Congress has
directed the agency to promulgate regulations with a
particular purpose. See, e.g., Helen L. v. DiDario, 46 F.3d
325, 331-32 (3d Cir. 1995) (holding that "[b]ecause Title II
was enacted with broad language and directed the

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Department of Justice to promulgate regulations . . . the
regulations which the Department promulgated are entitled
to substantial deference"). The converse is, however, also
true: where Congress has not delegated authority to an
_________________________________________________________________
8. 29 C.F.R. S 1601.28(e) (2002) applies to notices requested by
complainants and provides:
Content of notice of right to sue. The notice of right to sue shall
include:
(1) Authorization to the aggrieved person to bring a civil action
under title VII or the ADA pursuant to section 706(f)(1) of title VII or
section 107 of the ADA within 90 days from receipt of such
authorization;
(2) Advice concerning the institution of such civil action by the
person claiming to be aggrieved, where appropriate;
(3) A copy of the charge;
(4) The Commission’s decision, determination, or dismissal, as
appropriate.
(emphases added). The references to "authorization" do suggest that the
EEOC’s understanding was that it had the power to constrain access to
the courts. Unlike the EEOC’s interpretation of its own regulations, the
interpretation of statutes is the prerogative of the courts in the absence
of a congressional mandate specifying otherwise. See F.E.C. v. Democratic
Senatorial Campaign Comm., 454 U.S. 27, 32 (1982) (explaining that
"[t]he interpretation put on the statute by the agency charged with
administering it is entitled to deference, but the courts are the final
authorities on issues of statutory construction. They must reject
administrative constructions of the statute, whether reached by
adjudication or by rulemaking, that are inconsistent with the statutory
mandate or that frustrate the policy that Congress sought to implement"
(citations omitted)).
11
agency, no deference will be applied, especially where
agency regulations are construed to cover more than the
agency’s own function or tasks, as in this case. The fact
that notification by the EEOC commences the limitations
period is more of a judicial matter than one that implicitly
involves a grant of authority to the EEOC. See Hornsby v.
United States Postal Serv., 787 F.2d 87, 90 (3d Cir. 1986).9
Whether or not Congress delegated the authority to the
EEOC to create regulations defining "giving" notice is a
close question and we admit that our interpretation of the
scope of 42 U.S.C. S 2000e-12(a) is not based on any
explicit statements by Congress. We base our limited
interpretation on circumstantial evidence and our own
judgment, knowing that if we have misunderstood
Congress’ intentions, Congress has the power to explicitly
overrule our interjection. We rely on the logic that Congress
could not have meant to exclude this category of lawsuits

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from the normally applicable legal doctrines without an
explicit statement to that effect (and indeed all of the
parties in this case and the trial court judge took for
granted that the courts had the power to apply the doctrine
of equitable tolling to the limitations period). The normally
applicable legal doctrines include determining when the
cause of action accrued and whether the running of the
limitations period should be equitably tolled. Thus, the
_________________________________________________________________
9. The court in Hornsby explained that it was "entirely to be expected
that in drafting the statute of limitations for bringing such a cause of
action Congress would key the commencement of the running of the time
bar to notice to prospective plaintiffs that the precondition for lawsuits
had been satisfied. It would have made little sense to commence the
running of a statute of limitations upon the happening of an event of
which the holder of the cause of action in question had no knowledge."
787 F.2d at 90. Thus, convenience is all the court in Hornsby saw as the
basis of coupling the start of the limitations period to the EEOC’s giving
of notice in 42 U.S.C. S 2000e-5(f)(1). See also Cook v. Providence Hosp.,
820 F.2d 176, 179 (6th Cir. 1987) (holding, in a case factually similar to
this one, that a discrimination lawsuit was time-barred whether or not
the plaintiff received an initial notice letter because she admitted that
she had "actual knowledge" of her "right to sue" one year before she did
file suit, thereby ignoring any EEOC regulation that purported to have
the authority to require actual receipt of a letter to start the limitations
period).
12
beginning of the limitations period, like the end, is to be
decided by courts. We are further persuaded to infer a
limitation in 42 U.S.C. S 2000e-12(a) by the fact that
questions of timeliness under 42 U.S.C. S 2000e-5(f)(1) only
arise on motions before courts. Judges deciding motions to
dismiss complaints as untimely filed are thus the sole
arbiters. To say that they do not have the authority to
decide timeliness, therefore, would be anomalous.
We have carefully considered all of the contrary
arguments presented to us, but none sway us. Ebbert
argues that "[t]his Court has routinely held that such
EEOC regulations are to be granted a ‘great deal of
deference’ " and cites several cases for this proposition, the
implication presumably being that the court must do so
again in this case. In making this argument, Ebbert ignores
the specific facts involved in each of the cases she cites that
actually distinguish them from the instant case and make
conclusions drawn from them inapplicable. First, Ebbert’s
citing to Matzak v. Frankford Candy and Chocolate
Company, 136 F.3d 933 (3d Cir. 1997), is inappropriate
because Matzak involved the question of whether the court
should defer to the EEOC’s interpretation of its own
regulations, not the EEOC’s interpretation of a statute, as
is at issue in this case. Moreover, Matzak actually dealt
with an appendix to EEOC regulations, to which this court
specifically held it would not give Chevron deference. Id. at
937.

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The second case Ebbert relies on, Deane v. Pocono
Medical Center, 142 F.3d 138, 143 n.4 (3d Cir. 1988) (en
banc), is equally distinguishable. The court in Deane held
that it would give Chevron deference to the EEOC
regulation, 29 C.F.R. S 1630.2 (2002), defining "regarded
as" being disabled because 42 U.S.C. S 12116 (2000)
delegated authority to the EEOC to implement Title I of the
ADA. Id. at 143 n.4. Unlike this case, in Deane there was
a specific delegation by Congress of authority to fill in
admitted gaps (or vague points) in the relevant statute
(presumably) because Congress wished to capitalize on the
agency’s expertise in such matters. Id. The full quotation
from Deane is: "[r]egulations such as these are entitled to
substantial deference." Id. (emphasis added). To ignore the
13
regulations actually involved and substitute others that are
fundamentally different is an unmerited extension of the
holding of Deane. Moreover, in this case, the proposed
delegations -- the interpretation of a statute and the
measurement of limitations periods -- are clearly ones in
which the courts have expertise, not the EEOC.
Third, Ebbert quotes Tice v. Central Area Transportation
Authority, 247 F.3d 506, 515 n.8 (3d Cir. 2001), and
correctly explains that it suggests that the court will defer
to EEOC authority for procedural purposes under the
enforcement provisions contained in 42 U.S.C. SS 12111-
12117 (2000). It is, however, a leap from this accurate
statement of law to the idea that the court must also defer
to the EEOC on matters of statutory interpretation found
outside 42 U.S.C. SS 12111-12117, namely, for the
definition of "giving" notice in 42 U.S.C.S 2000e-5(f)(1). The
latter statute is not administered by the EEOC under 42
U.S.C. S 12116 and it, moreover, governs the accrual of
causes of action for Article III courts, rather than relating to
the procedure of the EEOC in handling complaints
administratively so it is difficult to justify any extension of
the reasoning in Tice to deference in this case.
Similarly, the concurring opinion cited by both the EEOC
and Ebbert, EEOC v. Commercial Office Products Company,
486 U.S. 107, 125 (1998)(O’Connor, J., concurring), that
deference is "particularly appropriate" where a regulation
involves a "technical issue of agency procedure," is inapt
because a rule requiring receipt of a notice letter to start
the limitations period is not a "technical issue of agency
procedure." (emphasis added).
The EEOC also argues that the EEOC’s regulation is
entitled to deference because it "reflects a reasonable
interpretation of the statute." The fact that a regulation
may be reasonable is not, by itself, a basis for giving it
Chevron deference; rather, it is a reason to treat it, at most,
as persuasive authority. Indeed all of the EEOC arguments
about the negative practical effect for the agency and the
courts of adopting any rule besides the one the EEOC
espouses and the impracticality of defendants meeting the

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burden of proof under any other rule are merely persuasive
14
arguments. They are not grounds for this court’s deferring
to the EEOC.
Finally, the EEOC also proposes a comparison between
this case and Allen v. United States, 542 F.2d 176, 180 (3d
Cir. 1976)(holding that the Civil Service Commission’s
failure to notify the complainants of their right to file a civil
action and the time limit for doing so rendered the
Commission’s opinion a non-final action). Beyond stating
that a comparison to the Allen case is "useful," the EEOC
offers no additional insight into how it believes Allen bears
on this case. Indeed, aside from some superficial factual
similarities, Allen is not very relevant because its holding
focuses exclusively on what constitutes a "final action." Id.
at 179-80. In this case, it is not contested that the EEOC
dismissed Ebbert’s complaint and that the EEOC’s decision
was duly finalized. The issue here is whether the EEOC had
any authority to constrain a definition at the heart of the
second prerequisite to starting the limitations period -- the
definition of "giving" notice -- to exclude certain forms of
notice from starting the limitations period. We do not
dispute the fact that the EEOC may have great authority to
set policy within its own sphere; that authority is, however,
not implicated in this case.10 The conclusion in Allen, that
"the [Civil Service] Commission’s regulations defining the
content of its final action are valid," is, therefore, not
_________________________________________________________________
10. The EEOC also quotes the Allen opinion for saying "it makes eminent
good sense to recognize that the power of starting[the limitations period]
running is in the hands of the [Civil Service] Commission, and that its
regulations provide an unequivocal means for excising that power." 542
F.2d at 180. Putting aside the fact that there was a different statute
involved in Allen which may have delegated greater or different authority
to the Civil Service Commission than the ones affecting the EEOC in this
case, it is important to note that the quotation from Allen cited directly
above gives the Civil Service Commission the power to start the running
of the limitations period but says nothing about giving it the power to
interpret when the limitations period starts running. Our holding in this
case distinguishes between these powers. The EEOC is the agent whose
actions may start the limitations period but it is the courts that must be
the interpreters of those actions because that preserves the ability of the
agency to administer its own procedures and the courts to create their
own jurisprudence.
15
inconsistent with the court’s holding that Chevron
deference is unmerited in this case. Id. at 180.
Since we hold that Congress did not delegate
interpretational authority to the EEOC to dictate whether
courts are time-barred from hearing certain cases, there is
no basis for applying Chevron deference.

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B.
Instead of Chevron deference, therefore, this court will
afford only Skidmore deference to the EEOC regulations
and other articulations of policy. Under Skidmore v. Swift,
323 U.S. 134, 140 (1944),11 the degree of deference to an
agency’s position depends on "the thoroughness evident in
its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control." Skidmore deference can, therefore,
actually be quite limited, indeed, almost non-deferential. Id.
With respect to the EEOC regulations, this court need
afford very little deference because none of the regulations
contain reasoning or any hallmark of deliberation that
could be persuasive to a court. As explained ante at 7-8,
not only does 29 C.F.R. S 1601.19(a) provide no explanation
of the rationale underlying the instructions that the EEOC
"shall issue a letter" and that it "shall inform" the
complainant, but it also only "contemplates" that notice of
right to sue will be in writing; it does not require it.
Related regulations, 29 C.F.R. S 1601.18 (2002) and 29
C.F.R. S 1601.28,12 are no more explained or persuasive
and, therefore, warrant no more deference than 29 C.F.R.
_________________________________________________________________
11. Skidmore, 323 U.S. at 140, held that though not binding, courts
must give nonlegislative rules some deference, with the weight given to
rulings, interpretations and opinions of an agency depending upon the
quality of the agency’s consideration and reasoning as ascertained by
analyzing a number of factors.
12. 29 C.F.R. S 1601.18(e) explains only that for untimely filed EEOC
complaints or other complaints filed that fail to state a claim under the
relevant statutes "[w]ritten notice of disposition . . . shall be issued." 29
C.F.R. S 1601.28(e) similarly contains only practical instructions. See
supra note 8. Neither regulation offers any justification.
16
S 1601.19. Neither regulation provides commentary to
suggest that it was intended to control access to the courts.
In fact, the only explanation of purpose in the EEOC’s
regulations is in 29 C.F.R. S 1601.1 (2002) and it describes
the "regulations set forth in this part" as containing the
"procedures established by the Equal Employment
Opportunity Commission for carrying out its responsibilities
in the administration and enforcement of title VII."
(emphasis added). As the subsequent subsections ofS 1601
must be construed in light of this "purpose" statement,
there is no reason to defer to any reading (or misreading) of
the regulations that purports to constrain matters beyond
the procedures of the EEOC itself.
We also decline to defer to the explanation of the agency’s
position in its Compliance Manual.13 As an internal
document, it is automatically at the lower end of the

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Skidmore scale of deference. An internal agency manual is
not subject to the kind of deliberateness or thoroughness
that gives rise to significant deference. See Skidmore, 323
U.S. at 140. Moreover, as a "compliance manual," by
definition it is an instruction to agency personnel. It, thus,
reflects how the EEOC wishes its employees to act in light
of the statute, not necessarily what the statute itself
requires of complainants. So although the EEOC, as
amicus, now argues that the 90-day period does not start
until a notice letter is received by a complainant and this
view is reflected in the EEOC Compliance Manual, it is not
binding on us. The EEOC’s opinion of what is required to
implement the statute is entitled to respect from this court,
but we simply cannot defer to the opinion insofar as it
would dictate the interpretation of statutory time bars by
Article III courts.
_________________________________________________________________
13. In the EEOC’s Compliance Manual there is an explicit requirement
that complainants receive a written form of notice in order to start the
90-day period. 1 EEOC Compl. Man. (BNA) 4:0003 S 4.5(a)(2) (December
5, 2000) (explaining that a letter must be sent to the charging party by
certified mail and that "[w]hen all issues affecting the charging party are
no cause, the date the [letter of determination] is received begins the
Title VII/ADA/ADEA 90 day litigation period.").
17
C.
Thus, while affording due respect to the EEOC’s position
and agreeing that ordinarily14"giving" notice should be
construed to mean that a dismissal letter from the EEOC
could be deemed to have been received15 at the correct
address, we must make our own analysis about the
meaning of the statute. Because the statute does not say
that notice must be in writing, we hold that oral notice can
suffice to start the 90-day period. Oral notice must be
equivalent to written notice. See, e.g. , Ball v. Abbot
Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (holding
that a discrimination lawsuit was barred by the statute of
limitations because the plaintiff ’s lawyer was told on the
_________________________________________________________________
14. It is still true as the EEOC quotes in its brief that "[t]he on-set of the
90-day period is generally considered to be the date on which the
complainant receives the right-to-sue letter." Burgh v. Borough Council of
Montrose, 251 F.3d 465, 470 (3d Cir. 2001) (emphasis added). It is,
however, misleading to suggest that Burgh makes receiving a "right-to-
sue letter" a prerequisite to a Title VII suit. The statement in Burgh, that
a "complainant may not bring a Title VII suit without having first
received a right-to-sue letter" must be read in the context of the
assumption that a "right-to-sue letter" will follow an exhaustion of
agency remedies; notice of the latter being the actual prerequisite to a
Title VII lawsuit. Id. This distinction is made clear by the citation in
Burgh, id., to Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir.
1999), and Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997), both
of which refer only to exhaustion of remedies.
15. We refer to the case where a letter can be"deemed" received, not one

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where the letter need be actually received by the complainant because
we should leave undisturbed all of the precedent in other circuits
holding that a notice letter correctly delivered to a complainant’s
residence or postal box constitutes notice even though the complainant
may not have seen the notice him or herself at the time of delivery. See
Zillyette v. Capital One Financial Corp., 179 F.3d 1337, 1340-41 (11th
Cir. 1999) (giving a survey of cases in different jurisdictions accepting
various forms of constructive receipt as causing the start of the 90-day
period). Cf. Hornsby, 787 F.2d at 91, 91 nn.4-7 (also surveying cases in
different jurisdictions permitting constructive receipt but distinguishing
the case at hand; holding that a postal form notifying the plaintiff that
a letter addressed to him could be picked up at the Post Office but not
identifying the sender, did not, by itself, constitute notice of an EEOC
final action even if other circumstances short of actual receipt of the
written notice would have sufficed).
18
telephone that a "right to sue" letter had been issued and
"courts are not required to proceed as if no such notice had
been given")16. It simply would not make sense to force
courts and defendants to wait for a specific form of notice
in situations where a plaintiff is fully aware of the deadline
he or she must meet to prosecute a lawsuit. The opposite
rule would mean, in the extreme case that the limitations
period would not begin to run for years, or even ever, if the
EEOC never corrected its addressing. Permitting oral notice
to start the limitations period strikes a fairer balance
between a defendant’s interest in a quick resolution of
charges and clear finality for charges that will not become
lawsuits, and a plaintiff ’s interest in having adequate
opportunity to bring suit and a clear understanding of
when and where to do so.
In this case, oral notice was just as complete as written
notice in all respects except one. There is no proof that
Ebbert knew when the 90-day statute of limitations period
would start as a result of her phone conversations with the
EEOC. More specifically, no evidence shows that Ebbert
_________________________________________________________________
16. While the notice deemed to be sufficient to start the limitations
period in Ball may have been less complete than the one held as
required by this court (see post at 16), factual differences between the
two cases may account for the Sixth Circuit’s not requiring as complete
a form of notice (or perhaps not finding it necessary to mention the
contents of the notice in detail in its opinion). In Ball it was the
plaintiff ’s lawyer who was told by the EEOC about its previously mailed
letter. The lawyer was perhaps assumed by the court to have had
knowledge of the contents of a typical "right to sue" letter, or thought to
understand the need to inquire about the start date for the limitations
period. The court may have assumed that he had implicit notice of when
the limitations period would start or sufficient warning that he should
have inquired about it. In addition, unlike in this case, the plaintiff in
Ball did not inform the EEOC about her change of address. The fact that
she did not receive the letter that would have given her complete notice
was, therefore, her own fault. She, perhaps, waived her right to complete
notice. Whatever, the precise differences, this court is persuaded like the
court in Ball that oral notice can be sufficient, but will diverge from Ball

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to the extent that Ball did not require as complete a form of knowledge.
The specific facts in this case demonstrate to this court that the further
requirement of completeness is essential. Here the recipient of oral notice
is a layperson, not an attorney.
19
was told or otherwise knew the 90 days would start
running from the date of the conversation. DaimlerChrysler
had the burden of proving the oral notice was as
comprehensive as the written version and, in particular,
that it included an explanation of the "start date."
DaimlerChrysler’s evidence of notice, however, was factually
incomplete because Porter was never deposed and there
was no other evidence of what she told Ebbert on the
phone. All we know about Porter’s August 2000
conversation with Ebbert is derived from Ebbert’s August
23, 2000 letter to Porter.17 No evidence shows that Ebbert
knew that the limitations period began as of the August
2000 phone call. Therefore, since the exchange of letters
entered into evidence and the testimony offered omit one of
the necessary elements of notice, we hold DaimlerChrysler
failed to establish that it is entitled to judgment. We must
reverse the trial court’s grant of summary judgment.
D.
DaimlerChrysler additionally argues that we should
conclude that one of the notice letters sent before October
16, 2000 was received by Ebbert, even if misaddressed,
because of Ebbert’s use of mail forwarding through the post
office and her frequent contact with an occupant of her
former address. [Red Br. 27] Since Ebbert’s receipt of those
letters was a disputed fact in light of Ebbert’s deposition
testimony, the District Court properly construed the
evidence as creating genuine issues of material fact
respecting receipt of the letters by Ebbert. It is
inappropriate that DaimlerChrysler argues with this, as
genuinely disputed facts cannot be the basis of summary
judgment.
_________________________________________________________________
17. In reference to her phone conversation with Porter, Ebbert’s August
23, 2000 letter to Porter says only: "I was disappointed and surprised
when you called in reply to my letter of Aug 14th and told me that my
case had been closed and the Letter of Right to Sue had been sent out
quite some time ago." and "[y]ou said over the phone that the papers
from your office had gone to my old address and accused me of not
informing the EEOC of my change of address." There was no further
explanation of what Porter told her.
20
E.
DaimlerChrysler also contends that the October 2000
notice letter issued by the EEOC is invalid and cannot
rescind earlier letters because it was not issued after a

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formal reconsideration. In so arguing, DaimlerChrysler
conflates the two functions of the letter. It is true that a
notice letter is not a valid dismissal of a complaint if an
earlier notice letter has been issued and there has been no
revocation of the earlier letter by a formal reconsideration of
the complaint; however, that does not mean that a
subsequent letter is not valid for notice purposes even
without a revocation. The October 2000 letter does not
supercede the earlier letters; it merely provides notice.18 As
a notice-giving document it is valid.
F.
Finally, we address the District Court’s denial of Ebbert’s
request for tolling of the 90-day limitations period. On
appeal, DaimlerChrysler maintains that Ebbert should have
asked for a notice letter after her September 1999 phone
conversation with Porter in which Porter told her that her
case would be dismissed. DaimlerChrysler further asserts
that Ebbert neither asked for a letter in that phone
conversation, nor followed the September phone
conversation with other solicitations for a letter, nor made
any inquiry until August of the following year. Thus, Ebbert
was not diligent. Additional proof of Ebbert’s nondiligence,
DaimlerChrysler argues, also lies in the delay between
Ebbert’s August 2000 phone conversation with Porter that
alerted Ebbert to the fact that her complaint had been
dismissed the previous November, and Ebbert’s filing suit.
Ebbert counters these arguments by saying that she was
entitled to tolling because she was unrepresented and
"following the EEOC’s direction, advice, and instructions."
_________________________________________________________________
18. Because the function of a letter in October 2000 was only notice-
giving it might have been more appropriate for the EEOC to send Ebbert
another copy of the November 1999 letter (and more consistent with the
EEOC’s own policy); however, since the only difference between the
letters is the date printed on them, this is an inconsequential matter.
21
She cites precedent for the idea that inadequate notice may
constitute grounds for tolling and factually distinguishes
her case from those that the District Court cited in refusing
tolling. Ebbert also contends that, in particular, any period
of inactivity should be viewed in the context of her overall
history of "continual and consistent contact with the
EEOC" and as subsequent to the denial of her request for
meetings with EEOC staff in person. Ebbert does not assert
any legal error, only that the Court’s description of the
factual situation was "incomplete and inaccurate." Her
other statements -- for example, that the District Court’s
finding of non-diligence was "overly harsh"-- are also more
attempts to persuade this court that the opposite ruling on
equitable tolling would have been a better choice, than
arguments of reversible error.
We exercise plenary review over "the District Court’s

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choice and interpretation of applicable tolling principles
and its conclusion that the facts prevents a tolling of the
statute of limitation." Sheet Metal Workers Local 19 v. 2300
Group, Inc., 949 F.2d 1274, 1278 (3d Cir. 1991) (citing
Vernau v. Vic’s Mkt., Inc., 896 F.2d 43, 45 (3d Cir. 1990)).
Because the record shows that the District Court’s
conclusion had sufficient evidentiary support, we conclude
that the trial court judge did not err in denying equitable
tolling. Moreover, summary judgment was appropriately
granted on this issue because the District Court’s decision
is based on a correct analysis of the law and on undisputed
facts.
Therefore, if, on remand, the District Court concludes the
defendant has proven complete oral notice, and therefore,
the start date for the 90-day period is August 2000 or some
other time before October 16, 2000, the District Court need
not reanalyze equitable tolling or allow the parties to re-
argue it. If, however, evidence introduced by the parties on
notice also relates to tolling, the District Court, of course,
remains free to reconsider equitable tolling.
G.
We need not reach any of the arguments concerning the
merits of Ebbert’s ADA claim since the trial court did not.
22
In fact, the record was not sufficiently developed to permit
that court’s making any determination on the merits. On
remand, discovery of course remains governed by the sound
discretion of the District Court. Despite plaintiff ’s request,
we make no ruling respecting discovery.
IV. Conclusion
For the foregoing reasons, we reverse the summary
judgment of the District Court that plaintiff ’s claim is time-
barred and remand the case for further proceedings
consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
23

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