The EEOC Dismissed My Case and I Don’t Have a Lawyer. What do I do?

If you've got a right-to-sue letter from the Equal Employment Opportunity Commission, you've got a time crunch and may need a lawyer quick. Don't delay in your search, because it can take a law firm a long time, and cost you a lot of money, to figure out whether you have a good case and whether to help you. So start looking for an attorney quickly. But even if you work quickly, you may not find an attorney in under 90 days. So it can be a good idea to plan to file your lawsuit on your own (pro se) right before the deadline. This will initiate the suit, make your allegations public, and subject you to the jurisdiction of the court. It will also give you more time to serve the lawsuit on your employer. You can use that time to finish your search for a lawyer. This strategy is not without its risks, however.

How much time do I have?

You must file a lawsuit in state or federal court within 90 days of your receipt of the notice of Right to Sue letter or your claim will be barred. If you need to file your claim in court to preserve it while looking for an attorney, I suggest going in to court to file no later than a week before the deadline, which will give you a comfortable cushion if you make a mistake and need to come back another day.

Caution. A Lawsuit is a Big Deal.

Before you file your suit, consider whether it is a good idea. When you file a lawsuit in Court, you make public allegations of illegality against someone else. That's a serious step, and one you shouldn't take lightly. And public allegations can sometimes be the source of journalist attention and public scrutiny. If you are filing your case on your own and planning to continue your search for an attorney, you should proceed carefully. Keep the Court updated on your mailing address and watch for any mailings and take note of any deadlines. There is no guarantee the other side won't learn about your public filings and enter an appearance. This could make the case start moving quickly, and you might still not have an attorney. And if you make false or otherwise improper allegations you can be held accountable and punished by the Court.

It will be important that you read the Rules of the Supreme Court of Virginia, if you are in Virginia state court, or the Federal Rules of Civil Procedure, if you file in federal court. You should also read the local rules of the court you file in.

It is also important to consider, if you continue to struggle to find counsel, whether your claims are likely to be successful. Sometimes, counsel cannot be found because the case should not be brought. Consider paying to speak with an attorney for a candid assessment of your case's strengths and weaknesses.

Which court should you file in?

If you are trying to keep your case alive and you have a notice of Right to Sue letter, deciding what Court to file in is mostly about your filing fee and your window of time to serve a summons on the defendant. State courts are courts of general jurisdiction, and you can initiate your EEO case there. State law in Virginia will give you one year to effect service of process on your employer. If you file in federal court, the Federal Rules of Civil Procedure give you 90 days to serve process (at the time I wrote this post). No matter where you file, your employer has the right to remove a federal case to the federal court in your district, and many employers will choose to do so. So choosing to file in state court will permit you one year to effect service, but it might not succeed in keeping your case in state court with a state court jury.

Prepare your complaint

You will need to file a document called a "Complaint" with the Court. If you are pro se, consider using the Federal Courts form located here as a starting point: You should follow the instruction on the form, and make sure you attach copies of your EEOC charge and Right to Sue letter to the complaint as Exhibits.

If you are filing your case in state court, you will need to modify the first page of the federal form to show the name of the state court you are filing in.

Calculate and pay a filing fee

You will need to pay a filing fee or apply to the court for a waiver of the filing fee. In the Federal Court the filing fee is $400 and in Virginia courts you use this calculator: Calculate this before you go in. Maybe it's worth a call to the clerk to see if you can get a deputy that will verify the number before you go in. Ask them what form of payment the Court accepts for a filing fee for a pro se plaintiff. Also ask them who to make any payment out to. If you believe you cannot afford the filing fee, ask the clerk how to file in forma pauperis.

Prepare your cover sheet

You will need to bring a Civil Cover Sheet with you to Court. Here's a link to Virginia's cover sheet for filing a civil action: Here's a link to the federal form, if you choose to file in federal court:

If You Need Time To Find An Attorney, Do Not Serve the Summons

If you go to Virginia state court, the Clerk may presume you want to have the sheriff serve your complaint on the employer. But if you are looking for an attorney, you might not want to get your case moving yet. I suggest you specify that you do not want the sheriff to serve a summons yet. Say you are still seeking counsel and will arrange for service of process at a later date.

Prepare a Cover Letter

I also recommend preparing a brief cover letter addressed to the Clerk of Court. Use a personal letterhead, if you have it. Put a subject line that says something like:  For Filing: Civil Complaint for Employment Discrimination on the basis of Gender (or whatever the nature of your claim is). It should include your name, address, date, and signature. Say something brief like:

Dear Clerk:

Attached to this letter, please find my original complaint against [my Employer] for employment discrimination in violation of [the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, etc]. I have also attached a cover sheet, Form CC-1416, and [Form of Payment] in the amount of $[Calculated Fee] addressed to [Designated Addressee].
At this time, I am not seeking service of process or the issuance of a summons. I will either seek Defendant's waiver of process pursuant to statute or request the issuance of a summons at a later date.

[Your Name]

How many copies should I take to court?

I suggest you take one original and at least two copies of each of (1) your signed complaint and (2)  your cover letter to the courthouse for filing. The original is for the Court, and the two copies are to be stamped by the clerk for you to keep: (1) one for your records and (2) one for service on the defendant, when that is appropriate. The cover sheet you probably don't need copies of.

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