Petition — Chrysler Corp. v. Lacy
Supreme Court brief1976
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Suprorse Court, U. & :
FILED ¥%
1976
ms,
JUN 1
RK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
No.@ on. 1 @ 4 l
CHRYSLER CORPORATION,
Petitioner,
.
MARY LACY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Eighth Circuit
WILLIAM G. GUERRI
EDWIN D. AKERS, JR.
CHARLES A. NEWMAN
THOMPSON & MITCHELL
One Mercantile Center
St. Louis, Missouri 63101
(314) 231-7676
Attorneys for Petitioner
Of Counsel
RALPH PAUL FICHTNER
Chrysler Corporation
Office of the General Attorney
P. 0. Box 1919
Detroit, Michigan 48231
(313) 956-5252
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
oe
ern ee
TABLE OF CONTENTS
Page
Se DD ov eau 064s OG keke de eke eubeben sau ee 1
eer Pe eee Teer Te Ter rT Teer 2
Question Presented for Review ...............2.005. 2
Statute and Regulation Involved .................... 2
EE ccc ev iesiuseedksseueeneveds 3
Reasons for Granting the Writ .................0055 5
I. The question of federal law presented is of national
importance and should be settled by this Court... 5
II. The Eighth Circuit decision is in conflict with the
decisions of other courts of appeal ............. 16
a PTT TTT TTT TT TTT CT er T rere Tree 21
Appendix A—Memorandum and Order of the District
GE, TEU BD, TD ow cccscccccsccenccneses A-1
Appendix B—Opinion of the Eighth Circuit Court of Ap-
NT, TR. GGG occ ccc cesscenccecccenessss A-2
Appendix C—Notice of Failure of Conciliation ....... A-34
Appendix D—Right to Sue Letter .................. A-36
Cases Cited
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 15
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)... 6
American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951) .... 6
Anderson v. Yungkau, 329 U.S. 482 (1947)
Archuleta v. Duffy’s, Inc., 471 F.2d 33 (10th Cir. 1973) . 5, 19
Barfield v. A.R.C. Security, Inc., 10 FEP Cases 789 (N.D.
Se a 11
Bomer v. Ribicoff, 304 F.2d 427 (oth Cir. 1962) ...... 19
Bottoms v. St. Vincent’s Hosp., 11 FEP Cases 392 (S.D.
SARE pera Pee ie ney Caen ne RY aN 1]
Bradshaw v. Zoological Society, 10 FEP Cases 1268 (S.D.
EE SiGe ee ee Gaui take cewweke cen enn 1]
Camack v. Hardee’s Food Systems, Inc., Civil No. C-75-
63-G (M.D. N.C., filed Mar. 4, 1976) .......... 7,10, 13
Caminetti v. United States, 242 U.S. 470 (1917) ........ 8
Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th
SE RNS GON Scour woe Basie wekc cust beaee bas 10
Clark v. Delta Refining Co., 11 FEP Cases 1372 (W.D.
I a ae oe 11
Clark v. Morgan’s Austintown Foods, 12 FEP Cases 708
(N.D. Ohio 1976), appeal docketed, No. 76-1482, 6th
Ds wile a646 henna eud bone aks aee 10
Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th
ee kceWibadanens used eunee cna cekuen ves 7,17
Craig v. Eastern Airlines, Inc., 10 FEP Cases 1307 (D.
i Sn Cinea kes ss 800045 dA AR TRE Ee eon 12
Cunningham v. Litton Indus., 413 F.2d 887 (9th Cir.
AR Oe ree err re ee Par 10
Delk v. Kellogg Co., Civil No. C-74-528 (W.D. Tenn.,
filed Sept. 29, 1975), appeal docketed, No. 76-1532, 6th
Ne ee ee 10
DeMatteis v. Eastman Kodak Co., 511 F.2d 306, modified
on rehearing in other respects, 520 F.2d 409 (2d Cir.
PE Nechheaweseseeneees ae Cidn bude bene an 5,7, 11, 16
Diaz v. Food Fair Stores, 11 FEP Cases 920 (D. Colo.
PPP TPeCIT ET TTT Cr Te TTT 12
Doman v. SKF Indus., Inc., 399 F. Supp. 716 (E.D. Pa.
POPES TT TTT ETP err ee 12
EEOC v. E. I. duPont de Nemours & Co., 516 F.2d 1297
le a rere rrr ee er re 19
EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir.),
cert. denied, 44 U.S.L.W. 3330 (U.S. Dec. 1, 1975) .. 8, 20
EEOC v. Louisville & Nashville R.R. Co., 505 F.2d 610
(Sth Cir. 1974), cert. denied, 44 U.S.L.W. 3201 (US.
eT TreTeTTICTILLOLiLeer eerie 6
EEOC v. Rollins, Inc., 8 FEP Cases 492 (N.D. Ga. 1974). 11
EEOC v. Westvaco Corp., 372 F. Supp. 985 (D. Md. 1974) = 8
Garner v. E. I. duPont de Nemours & Co., Civil No. 75-
526 (D.S.C., filed June 11, 1975), appeal docketed, No.
73-2066, Gio Cie... Mav. 4, FOFD once cvcsccccccces 8, 11
Genovese v. Shell Oil Co., 488 F.2d 84 (Sth Cir.
: ta ceuwkucaswidea esse ws vue etaeneeees 5, 10, 19
Goodman v. City Prods. Corp., 425 F.2d 702 (6th Cir.
EE os 04606 6 o0 086064 oko ckas os ee Eade 5
Green v. Ford Motor Co., 1 EPD {9977 (W.D. Okla.
i f. .6d eeu eu oudk Gen wk eee sees ekees ceeeee 19
Harris v. National Tea Co., 454 F.2d 307 (7th Cir. 1971) 5
Harris v. Sherwood Medical Indus., Inc., 386 F. Supp. 1149
(E.D. Mo. 1974), rev’d., 12 FEP Cases 471 (8th Cir.
PPE TCCTITT TT TTT eT eT eT TT 4
Henderson v. Eastex Packaging Co., Civil No. C-75-267
(W.D. Tenn., filed Jan. 1, 1975), appeal docketed, No.
76-1292, 6th Cir., April 19, 1976 .............-.. 10
Hinton v. CPC Int'l, Inc., 520 F.2d 1312 (8th Cir. 1975) 5
iv
Jack v. Sears, Roebuck & Co., 10 EPD § 10,304 (D.D.C.
WOUND 6 00 sun ekeunteens baue ane 12
James v. Newspaper Agency Corp., 12 FEP Cases 43 (D.
WE DOTS we ceesievsssscuinareee ee 11
Kavanaugh v. Noble, 332 U.S. 535 (1947) .......... 14, 19
Keeling v. St. Louis-San Francisco Ry., 11 FEP Cases 700
ek oR PTE ry pee Pr eee ll
Kelly v. Southern Prods. Co., 10 FEP Cases 1221 (N.D.
ee BED « RS as cdvcaccaseeeeee 11
Kington v. United States, 396 F.2d 9 (6th Cir. 1968), cert.
denied, 393 U.S. 960 (1968) .................... 19
Kirkwood v. Pidgeon Thomas Iron Co., 11 FEP Cases 699
ras We Gees widauccseessce uel 11
Maguire v. Trans World Airlines, Inc., 403 F. Supp. 734
Geen .. CUD ics davbciae re cviceneeecl eee 10
Martinez v. National Linen Serv., 2 EPD 4 10,132 (S.D.
Ce FD. oc andeveupueeesaeeeecer eee 14
McCrary v. Metropolitan Life Ins. Co., 408 F.Supp. 417
oe rr te eh 19
McDonnel! Douglas ‘orp. v."Green, 411 US 42 (1973) 6
McGuire v. Aluminum 0. of America, 11 FEP Cases 858
(S.D. Ind. 1975), appeal docketed, No. 76-1013, 7th
Se Sk Te Se ok cc ceee enue eee 11
i EEE ECO Ty Pe Se & Ee 11
Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th
yr er Fer i ERA ns, 19
Osborne v. Bank of the United States, 9 Wheat (22 U.S.)
We GED ob ekececen cece eee eee 7
Pope v. North Hills Passavent Hosp., 11 FEP Cases 590
“pau ee ce, M EE eT PE een S 11
RR ee ee
Pope v. Schlitz Brewing Co., Civil No. C-75-143 (W.D.
Tenn., filed Jan. 5, 1976), appeal docketed, No. 76-
>» ele SY errr rrr ree 10
Roberts v. H. W. Ivey Constr. Co., 408 F.Supp. 622 (N.D.
ie cee ebeeeebeseneces 11
Robinson v. Refrigerated Foods, Inc., 10 FEP Cases 1237
iE che de dhs oe beeesées oesercsecess 12
Rutherford v. American Bank of Commerce, 12 FEP Cases
SC PD occ sccccescevecosocesecses 12
Shepard v. D.A.P., Inc., 11 FEP Cases 1373 (S.D. Ohio
el weeks cues nes bese snoeeoes 12
Sheppard v. Schlitz Brewing Co., Civil No. C-75-144 (W.D.
Tenn., filed Jan. 5, 1976), appeal docketed, No. 76-
1288, 6th Cir., Mar. 10, 1976) ...........-----5e- 11
Stansell v. Sherwin-Williams Co., 404 F. Supp. 1008 (N.D.
Ga. 1975), 28 U.S.C. § 1292(b) certification accepted,
No. 76-8030, Sth Cir., April 27, 1975 ............ 11
Stebbins v. Nationwide Mut. Ins. Co., 469 F.2d 268 (4th
Cir. 1972), cert. denied, 410 U.S. 939 (1973) ........ 5
Swails v. Service Container Corp., 404 F. Supp. 835 (W.D.
ie a cans odo 0 0G 66k 004 5000080964 8,11
Taylor v. Lockheed Georgia Co., 11 FEP Cases 575 (N.D.
eck a raced ceeded coneseeaeecees 11
Taylor v. Pacific Intermountain Exp. Co., 394 F. Supp. 72
Ch CE vis ekes bed b ober oceesoeeeernes 11
Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (1975),
cert. denied, 44 U.S.L.W. 3394 (U.S. Jan. 12, 1976) .. 10
Turner v. Texas Instruments, Inc., 401 F. Supp. 1179 (N.D.
Tex. 1975), appeal docketed, No. 75-3829, Sth Cir., Oct.
ee ae ke cpa 6040 4668s bu cess cs oes 11
vi
Weaver v. Schlitz Brewing Co., Civil No. C-75-100 (W.D.
Tenn., filed Jan. 9, 1976), appeal docketed, No. 76-
oF fs fF ree 1]
Webster v. Liberty Cash Grocers, 12 FEP Cases 255 (W.D.
WE EE aa Gubecuu decades core toes 11
Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975) .... 17
Whitfield v. Certain-Teed Prod. Co., et al., 389 F. Supp.
274 (E.D. Mo. 1974) aff'd, 12 FEP Cases 471 (8th
Sb SOURED ce ccedcecrscccudbanedudseeueikeene 4
Whittom v. ITT Cannon Elec., 395 F. Supp. 492 (D. Ariz.
1975) appeal docketed, No. 75-2214, 9th Cir., May 21,
PE OPE ET PEE SEE ET ee rao ee 11
Williams v. Sheraton Corp. of America, 11 FEP Cases 897
(E.D. La. 1975) appeal docketed, No. 75-3822, 5th
Sic Ge Gh SUE Sec ncususcdueaschuaenuaceus il
Williams v. Southern Union Gas Co., 529 F.2d 483 (10th
Cir. 1976); petition for cert. filed, 44 U.S.L.W. 3610
(U.S. April 19, 1976) (No. 75-1511) .............. 11
Wilson v. Sharon Steel Corp., 399 F. Supp. 403 (W.D. Pa.
1975), appeal docketed, No. 75-2130, 3d Cir., Oct.
GED siPincesuvacdhunees + cheer eawesceen 11
Withers v. Schlitz Brewing Co., Civil No. C-75-200 (W.D.
Wa, GD EE. Fy GBGED oc ccc ccccccnctcctess 11
Wong v. Bon Marche, 508 F.2d 1249 (9th Cir.
PTO Pe ee EL emia ins ar 5,7, 13, 18
Statutes Cited
a se SD 60466.006000540400RRea eee 2
ae se EE ic aiS's Ske «ke Saas ae ae 7
Title VII of the Civil Rights Act of 1964, as amended, 42
ea be 0 ns cee Wicd vice cee oseuseen 2
or em «
vii
Section 706(b), 42 U.S.C. § 2000e-5(b) .......--.-- 13
Section 706(e), 42 U.S.C. § 2000e-5(e) .......--. 12
Section 706(f)(1), 42 U.S.C.
§ 2000e-S(f(1) .........2, 4,5, 7,8, 9, 13, 16, 17, 18
Section 706(f)(4), 42 U.S.C. § 2000e-5(f)(4) ...---- 13
Section 706(f)(5), 42 U.S.C. § 2000e-5(f)(5) ....-- 13
Section 706(g), 42 U.S.C. § 2000e-S(g) .....-.--. 15
Equal Employment Opportunity Act of 1972, P.L. 92-261,
DRE. BE oc cnvccndenenpnssdecasaensetoneess 13
Rule and Regulation Cited
Supreme Court Rule 19(1)(b) ... 6-6 eee eee eee 16
EEOC Procedural Regulation § 1601.25(a), 29 C.F.R.
6 PRPrrrTTTTy Ti eT TTT Tray 2, 8, 10
Miscellaneous Authorities Cited
H.R. Rep. 92-238, 92d Cong., 2d Sess. (1971) ......-. 9
117 Conc. Rec. 31960 (1971) ... 2... eee eee eens 9
1972 U.S. Cope Conc. & ADMIN. News 2147 ........ 9
1972 U.S. Cope Conc. & ADMIN. NEws 2179 ........ 9
1975 ANNUAL REPORT OF THE DIRECTOR ADMINISTRA-
TIVE OFFICER OF UNITED STATES COURTS ..........- 12
1 H. Woop, A TREATISE ON THE LIMITATION OF ACTIONS
AT LAW AND IN Equity § 4 (4thed. D. Moore 1916) .. 14
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
eee
CHRYSLER CORPORATION,
Petitioner,
v.
MARY LACY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Eighth Circuit
Chrysler Corporation (“Chrysler”), petitioner herein, re-
spectfully prays that a writ of certiorari be issued to review the
judgment of the United States Court of Appeals for the Eighth
Circuit entered in this case on March 4, 1976.
OPINIONS BELOW
The opinion of the district court, filed on November 13, 1974,
is unofficially reported at 12 FEP Cases 471 and is reproduced
in Appendix A, infra. The majority and dissenting opinions of
the Eighth Circuit Court of Appeals, sitting en banc, reversing
the judgment of the district court, are unofficially reported at 12
FEP Cases 471 and are reproduced in Appendix B, infra.
JURISDICTION
The judgment of the United States Court of Appeals was filed
on March 4, 1976, and this petition for certiorari was filed
within ninety days of that date. The jurisdiction of this Court
is invoked under 28 U.S.C. § 1254(1).
QUESTION PRESENTED FOR REVIEW
Whether the ninety-day limitation period prescribed by Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-5(f), for the initiation of a civil action against a private
employer, begins to run upon the receipt by the charging party
of a notice from the Equal Employment Opportunity Commis-
sion that conciliation has failed.
STATUTE AND REGULATION INVOLVED
In pertinent part, § 706(f)(1) of Title VII provides:
If a charge filed with the Commission pursuant to subsec-
tion (b) of this section is dismissed by the Commission, or
if within one hundred and eighty days from the filing of
such charge . . . the Commission has not filed a civil
action under this section . . . or the Commission has not
entered into a conciliation agreement to which the person
aggrieved is a party, the Commission . . . shall so notify
the person aggrieved and within ninety days after the giving
of such notice a civil action may be brought against the
respondent named in the charge . . . [42 U.S.C. § 2000e-5
(f)(1) (Supp. II, 1972).]
EEOC Procedural Regulation 1601.25(a) (29 C.F.R.
§ 1601.25(a)] states:
2 et eer
=e
Procedure After Failure of Conciliation
§ 1601.25 Notice to respondent, person filing a charge on
behalf of the aggrieved person and aggrieved person.
(a) In any instance in which the Commission is unable
to obtain voluntary compliance as provided by Title VII,
as amended, it shall so notify the respondent, the person
filing a charge on behalf of the aggrieved person, the ag-
grieved person or persons, and any State or local agency to
which the charge has been previously deferred pursuant to
§ 1601.12 or § 1601.10. Notification to the aggrieved per-
son shall include:
(1) A copy of the charge.
(2) A copy of the Commission’s reasonable cause or
no reasonable cause determination as appropriate.
(3) Advice concerning his or her rights to proceed in
court under Section 706(f) (1) of Title VII.
STATEMENT OF THE CASE
On September 7, 1972, respondent, Mary Lacy (“Lacy”),
filed a charge of racial discrimination against Chrysler with
the Equal Employment Opportunity Commission (“EEOC”).
She alleged that her lay-off in May, 1971, was unlawful. The
EEOC, by letter dated July 17, 1973 [Appendix C, infra],
notified Lacy: “. . . that conciliation efforts in your case have
failed” [hereinafter “notice of failure of conciliation”). The
EEOC, by letter of even date, informed Chrysler that the Com-
mission had terminated its efforts to conciliate the Lacy case.
Thirteen months later, on August 13, 1974, the EEOC sent
Lacy a second letter [Appendix D, infra] captioned “Notice
of Right to Sue Within 90 Days” [hereinafter “right to sue
letter’’}.
way cm
Respondent filed suit in the United States District Court for
the Eastern District of Missouri on September 13, 1974, four-
teen months after receipt of the notice of failure of concilia-
tion. The complaint was jurisdictionally premised solely upon
the applicability of Title VII and alleged racial discrimination.
The district court sustained Chrysler's motion to dismiss for
lack of jurisdiction over the subject matter [Appendix A, infra].
Lacy then appealed to the Eighth Circuit which consolidated
this case with two others.' After initially arguing these con-
solidated cases to a panel of the Court of Appeals, reargument
and submission of the cases to the court en banc was ordered.
The Eighth Circuit, two judges dissenting, reversed the judg-
ment of the district court, reinstituted the action and held that
the right to sue letter, rather than the notice of failure of con-
ciliation, commenced the running of the limitation period of
$706(f)(1) of Title VII. Their rationale was that §706(f) (1)
requires the EEOC to notify a charging party only after the
Commission determines that it will not institute a civil action.”
' The companion cases were Harris v. Sherwood Medical Indus.,
Inc., 386 F. Supp. 1149 (E.D. Mo. 1974), rev’d, 12 FEP
Cases 471 (8th Cir. 1975) and Whitfield v. Certain-Teed Prod. Co.,
389 F. Supp. 274 (E.D. Mo. 1974 ‘ 2
Cir. 1975). ) aff'd, 12 FEP Cases 471 (8th
2 Id. at 10 [A-10].
REASONS FOR GRANTING THE WRIT
I
The question of federal law presented is of national im-
portance and should be settled by this Court.
The issue presented by this petition is of great importance
for it concerns the threshold question of the jurisdiction of
federal courts to hear and determine civil rights cases pursuant
to Title VII. The specific issue of the construction of the
“built-in” limitation period of §706(f)(1) has not been, but
should be, settled by this Court. The guidance of this Court
is necessary to resolve conclusively, for the benefit of employ-
ees, employers and the EEOC itself, what type of notification
is required to commence the running of the ninety-day limita-
tion period for the filing of an action under Title VII, and when
such notice must issue.
A. Compliance with the ninety-day limitation period is a
jurisdictional requisite.
It is beyond question, and has been determined conclusively
in eight circuits, that the institution of suit within ninety days
of the receipt of the notice prescribed by §706(f)(1) of Title
VII, is a jurisdictional prerequisite to the maintenance of suit
thereunder. E.g., De Matteis v. Eastman Kodak Co., 511
F.2d 306, modified on rehearing in other respects, 520 F.2d
409 (2d Cir. 1975); Wong v. Bon Marche, 508 F.2d 1249
(9th Cir. 1975); Hinton v. CPC Int'l, Inc., 520 F.2d 1312
(8th Cir. 1975); Genovese v. Shell Oil Co., 488 F.2d 84 (Sth
Cir. 1973); Archuleta v. Duffy's Inc., 471 F.2d 33 (10th Cir.
1973): Stebbins v. Nationwide Mut. Ins. Co., 469 F.2d 268
(4th Cir. 1972), cert. denied, 410 U.S. 939 (1973); Harris
v. National Tea Co., 454 F.2d 307 (7th Cir. 1971); Good-
man v. City Prods. Corp., 425 F.2d 702 (6th Cir. 1970).
pe oo
Further, this Court has recognized the need for compliance
with the limitation period specified in Title VII. In McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the Court
stated:
“Respondent satisfied the prerequisites to a federal ac-
tion . . . (ii) by receiving and acting upon the Com-
mission’s statutory notice of the right to sue, 42 USC
$§2000e-5(a) and 2000e-5(e).” Id. at 798.
Accord, Alexander v. Gardner-Denver Co., 415 U.S. 36, 47
(1974).
The ninety-day limitation is not akin to a traditional statute
of limitations but is rather a limitation upon the vesting of
federal court jurisdiction. It is of utmost importance that the
Court define the parameters of federal court jurisdiction in
Title VII actions. The maxim stated by this Court in American
Fire & Cas. Co. v. Finn, 341 U.S. 6, 17 (1951) is certainly
applicable to the issue raised by the case at bar: “The jurisdiction
of the federa! courts is carefully guarded against expansion by
judicial interpretation.” In this regard the Fifth Circuit analyzed
the limitation period at issue here in EEOC v. Louisville &
Nashville R.R. Co., 505 F.2d 610 (1974) cert. denied, 44
U.S.L.W. 3201 (U.S. Oct. 7, 1975) and recognized the deriva-
tive relationship between the limitation period of Title VII and
federal court jurisdiction:
“If a statute creating a new cause of action contains a time
limit, that limit is a restriction upon the right itself. Such
restrictions usually are construed more strictly than ordi-
nary statutes of limitation.” /d. at 613-14.
Accordingly, the jurisdiction of federal courts to hear Title VII
actions is derivative from the statute itself. If an action is filed
beyond the specified ninety-day period, the federal court is with-
out jurisdiction and the suit must be dismissed. As stated by
the Ninth Circuit, the “equities” involved are immaterial to
this threshold question:
pon
“We do not find anything either in the plain language of
the statute [Title VII] or in its legislative history which
would indicate that the time limitation may be forgiven
or extended if the complaintant acted diligently. The contra,
rather, is strongly indicated.” Wong v. Bon Marche, 508
F.2d 1249, 1250 (1975).
Federal courts, being courts of limited jurisdiction, are obli-
gated therefore to heed the specific congressional limitation upon
federal question jurisdiction specifically conferred by Title VII.
E.g., Cleveland v. Douglas Aircraft Co., 509 F.2d 1027, 1030
(9th Cir. 1975); see generally Osborne v. Bank of the United
States, 9 Wheat (22 U.S.) 738 (1824); 28 U.S.C. § 1331(a).
B. The limitation period commenced upon Lacy’s receipt of
the “Notice of Failure of Conciliation.”
Section 706(f)(1) of Title VII which is at issue, clearly and
unambiguously requires the EEOC to send a charging party,
who has accused a private employer of discrimination,* a notice
informing him or her of the occurrence of the first of three
separate and disjunctive contingencies: First, if the EEOC dis-
misses the charge; or secondly, if 180 days have elapsed since
the charge was filed and the EEOC has not commenced a civil
action; or thirdly, if the EEOC has not entered into a concilia-
tion agreement within 180 days from the date the charge was
filed. This disjunctive construction has been adopted by a
majority of courts which have passed upon this issue. De Mat-
teis v. Eastman Kodak Co., 511 F.2d 306, 310-11, modified on
rehearing in other respects, 520 F.2d 409 (2d Cir. 1975);4
Camack v. Hardee's Food Systems, Inc., Civil No. C-75-63-G
‘* The subsection also applies to charges and cases initiated by an
employee of a governmental body. In such cases, the Attorney Gen-
eral, rather than the EEOC, is to notify the charging party and may
initiate a civil action against the respondent.
4 See pp. 16-17, infra.
—
(M.D.N.C., filed Mar. 4, 1976); Swails v. Service Container
Corp., 404 F. Supp. 835, 838 (W.D. Okla. 1975); Garner v.
E. 1. du Pont de Nemours & Co., Civil No. 75-526 (D.S.C..
filed June 11, 1975), appeal docketed, No. 75-2166, 4th Cir.
Nov. 4, 1975; see E.E.0.C. v. Kimberly-Clark Corp., 511 F.2d
1352, 1356 (6th Cir.), cert. denied, 44 U.S.L.W. 3330 (US.,
Dec. 1, 1975).
The language of § 706(f)(1) is unambiguous and clear in its
mandate that a private suit must be initiated, if at all, within
ninety days after the receipt of a notice informing the aggrieved
person that conciliation or voluntary compliance has failed. The
statute is imperative in its direction to the EEOC that it “shall
so notify” the potential plaintiff.» Indeed, although resort to
legislative history is unnecessary because the interpretation
urged herein complies with the “plain meaning rule” stated by
this Court," nevertheless the legislative record supports this
interpretation.‘
* The mandatory imperative of the word “shall” is evident. E.g.,
Anderson v. Yungkau, 329 U.S. 482, 485 (1947). Further, the
mandatory interpretation of this portion of § 706(f)(1) is sup-
— by the EEOC’s own regulation [1601.25(a)] wherein it is
stated:
“In any instance in which the Commission is unable to ob-
tain voluntary compliance as provided by Title VII, as amended,
it shall so notify the respondent, the person filing a charge on
behalf of the aggrieved person, the aggrieved person or per-
sons ... .” [Emphasis added]
oo v. Westvaco Corp., 372 F. Supp. 985, 992-93 (D. Md.
).
* The “plain meaning rule” applicable herein was stated by the
vr oe Court in Caminetti v. United States, 242 US. 470, 485
( ):
_ “It is elementary that the meaning of a statute must in the first
instance, be sought in the language in which the act is framed,
and if that is plain . . . the sole function of the courts is to en-
force it according to its terms.”
_‘ The most relevant portion of the legislative history of the pro-
vision at issue is contained in the remarks of Representative Carl
D. Perkins, floor leader for H.R. 1746, the Equal Employment Op-
—~ von
In the instant case the EEOC, had not, within 180 days of
the filing of Lacy’s charge, commenced a civil action nor had
it entered into a conciliation agreement. Therefore, it was obli-
gated, at that time, to issue the notice mandated by § 706(f) (1)
informing Lacy that it had not commenced a civil suit and/or
that it had not entered into a conciliation agreement. The stat-
ute requires no more and no less. The first letter sent to Lacy
[Appendix C, infra], containing explicit information as to one of
the three operative events specified by § 706(f) (1), namely that
conciliation had failed, fulfilled the statute’s requirements and
thereby commenced the running of the “built-in” limitation
period.
portunity Act, and head of the Managers of the House. Congress-
man Perkins, with reference to the 180 day limitation, explained that
a private suit may be initiated only if the EEOC “dismisses a charge,
or if it has not issued a complaint (H.R. 1746 originally conferred
upon the EEOC the power to institute cease and desist proceedings]
or entered into a conciliation attempt within a specified period of
time.” 117 Conc. Rec. 31960 (1971).
Additionally, H.R. REP. No. 92-238, 92d Cong., 2d Sess. (1971)
in its analysis of the Equal Employment Opportunity Act of 1972,
indicates the legislative intent that notice must issue upon the ex-
piration of 180 days:
“Section 715 provides that if the Commission finds no rea-
sonable cause, fails to make a finding of reasonable cause,
or takes no action in respect to a charge, or has not within 180
days issued a complaint nor entered into a conciliation or settle-
ment agreement which is acceptable to the person aggrieved,
it shall notify the person aggrieved. Within 60 days after such
notification the person aggrieved shall then have the right to
commence an action under the provisions of the Act against
the respondent in the proper United States district court.” 1972
U.S. Cope Conc. ADMIN. NEws at 2147.
Further, the Joint Explanatory Statement of Managers at the Con-
ference on H.R. 1746, 1972 U.S. Cope Conc. ADMIN. News 2179,
again reiterates this scheme: .
“They [aggrieved parties] may bring a private action if the
Commissioner or Attorney General has not brought suit within
180 days or the Commission has entered into a conciliation
agreement to which such aggrieved party is not a signatory.
Id. at 2182.
a von
Many courts, interpreting the predecessor provision to
§$ 706(f)(1), amended in 1972, have held that notification by
the EEOC that it “has been unable to obtain voluntary compli-
ance,” synonymous with a failure of conciliation, triggers the
suit limitation period. Genovese v. Shell Oil Co., 488 F.2d 84
(Sth Cir. 1973); Cunningham v. Litton Indus., 413 F.2d 887
(9th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d
357 (7th Cir. 1968); Maguire v. Trans World Airlines, Inc..,
403 F.Supp. 734 (S.D.N.Y. 1975).
It is clear that the Lacy majority opinion contradicts these
decisions for the institution of suit by the EEOC against an em-
ployer certainly is not contemplated by the phrase “voluntary
compliance” found in the EEOC’s own regulations. EEOC
Regulation § 1601.25(a) [29 C.F.R. § 1601.25(a)].
The vast number of district courts to pass upon the identical
issue presented by this petition have either specifically rejected
the Eighth Circuit's interpretation of this statutory provision
which was initially pronounced in Tuft v. McDonnell Douglas
Corp., 517 F.2d 1301 (1975), cert. denied, 44 U.S.L.W. 3394
(U.S. Jan. 12, 1976), or reached a result consistent with that
of the minority opinion in Lacy.”
‘ The Tuft case, decided on May 27, 1975, raised the same issue
presented in this case. However, Lacy, Harris and Whitfield were
pending in the Court of Appeals at the time of the Tuft decision.
Lacy and its companion cases had been orally argued en banc, and
were under submission at the time this Court denied certiorari in
Tuft.
“ Camack v. Hardee’s Food Systems, Inc., Civil No. C-75-63-G
(M.D.N.C., filed Mar. 4, 1976); Clark v. Morgan’s Austintown
Foods, 405 F. Supp. 1008 (N.D. Ohio 1976), appeal docketed, No.
76-1482, 6th Cir., April 23, 1976; Delk v. Kellogg Co., Civil No.
C-74-528 (W.D. Tenn., filed Sept. 29, 1975), appeal docketed,
No. 76-1532, 6th Cir., Mar. 29, 1976; Henderson v. Eastex Packag-
ing Co., Civil No. C-75-267 (W.D. Tenn., filed Jan. 1, 1975),
appeal docketed, No. 76-1292, 6th Cir., April 19, 1976; Pope v.
Schlitz Brewing Co., Civil No. C-75-143 (W.D. Tenn., filed Jan. 5,
1976), appeal docketed, No. 76-1287, 6th Cir., Mar. 10, 1976:
it is apparent that the question presented herein is of great
consequence to many Title VII litigants. The number of cases
Sheppard v. Schlitz Brewing Co., Civil No. C-75-144 (W.D. Tenn.,
filed hn 5, 1976), appeal docketed, No. 76-1288, 6th Cir., Mar.
10, 1976; Weaver v. Schlitz Brewing Co., Civil No. C-75-100 (W.D.
Tenn., filed Jan. 9, 1976), appeal docketed, No. 76-1280, 6th Cir.,
Mar. 9, 1976; Barfield v. A.R.C. Security, Inc., 10 FEP Cases 789
(N.D. Ga. 1975); Bottoms v. St. Vincent's Hosp., \\ FEP Cases 392
(S.D. Ind. 1975); Bradshaw v. Zoological Society, 10 FEP Cases
1268 (S.D. Cal. 1975); Clark v. Delta Refining Co., 11 FEP Cases
1372 (W.D. Tenn. 1975); Garner v. E.1. duPont de Nemours &
Co., Civil No. 75-526 (D.S.C., filed June 11, 1975), appeal dock-
eted, No. 75-2166, 4th Cir., Nov. 4, 1975; Keeling v. St. Louis-San
Francisco Ry., 11 FEP Cases 700 (W.D. Tenn. 1975), Kelly v.
Southern Prods. Co., 10 FEP Cases 1221 (N.D. Ga. 1975); Kirk-
wood v. Pidgeon Thomas Iron Co., 11 FEP Cases 699 (W.D. Tenn.
1975); McGuire v. Aluminum Co. of America, 11 FEP Cases 858
(S.D. Ind. 1975), appeal docketed, No. 76-1013, 7th Cir., Jan. 7,
1976; Mungen v. Choctaw, Inc., 492 F. Supp. 1349 (W.D. Tenn.
1975); Pope v. North Hills Passavext Hosp., 11 FEP Cases 590
(W.D. Pa. 1975); Swails v. Service Container Corp., 404 F. Supp.
835 (W.D. Okla. 1975); Taylor v. Lockheed Georgia Co., 11 FEP
Cases 575 (N.D. Ga. 1975); Turner v. Texas Instruments, Inc., 401
F. Supp. 1179 (N.D. Tex. 1975), appeal docketed, No. 75-3829, Sth
Cir., Oct. 28, 1975; Webster v. Liberty Cash Grocers, 12 FEP Cases
255 (W.D. Tenn. 1975); Whittom v. ITT Cannon Elec., 395 F.
Supp. 492 (D. Ariz. 1975), appeal docketed, No. 75-2214, 9th
Cir., May 21, 1975; Williams v. Sheraton Corp. of America, 11
FEP Cases 897 (E.D. La. 1975), appeal docketed, No. 75-3822,
Sth Cir., Oct. 15, 1975; Wilson v. Sharon Steel Corp., 399 F. Supp.
403 (W.D. Pa. 1975), appeal docketed, No. 75-2130, 3d Cir.,
Oct. 6, 1975; Withers v. Schlitz Brewing Co., Civil No. C-75-200
(W.D. Tenn., filed Sept. 29, 1975); see EEOC v. Rollins, Inc., 8
FEP Cases 492, 493 (N.D. Ga. 1974).
Some courts, while adopting the rationale of the Lacy minority,
have determined that it should be applied prospectively. De Matteis
v. Eastman Kodak Co., 511 F.2d 306 modified on rehearing in other
respects, 520 F.2d 409 (2d Cir. 1975); James v. Newspaper
Agency Corp., 12 FEP Cases 43 (D. Utah 1975); Stansell v. Sher-
win-Williams Co., 404 F. Supp. 1008 (N.D. Ga. 1975), 28 U.S.C.
§ 1292(b) certification accepted, No. 76-8030, Sth Cig, April 27,
1975: Roberts v. H.W. Ivey Constr. Co., 408 F. Supp. 622, (N.D.
Ga. 1975); Taylor v. Pacific Intermountain Exp. Co., 394 F. Supp.
72 (N.D. Ill. 1975).
Contra, Williams v. Southern Union Gas Co., 529 F.2d 483 (10th
Cir. 1976): petition for cert. filed, 44 U.S.L.W. 3610 (U.S. April
=
concerning this issue is substantial and its prompt resolution by
this Court comports with the notion of judicial economy.!°
C. Ramifications of the majority holding.
The decision of the majority of the members of the Eighth
Circuit as noted in the dissenting opinion, has broad and serious
ramifications. The dissenters correctly summarized its impact:
“The majority's interpretation contravenes the clear lan-
guage of § 706(f)(1), nullifies the manifest congressional
desire to expeditiously resolve employment discrimination
controversies and effects an impermissible prejudice against
employers or other respondents in Title VII cases.” /d.
at 22 [A-20].
A cursory review of the statutory scheme of Title VII indi-
cates that Congress has mandated that charges and cases there-
under be expedited. Title VII is replete with provisions which
require action within clearly established periods of time.'! In
19, 1976) (No. 75-1511); Rutherford v. American Bank of Com-
merce, 12 FEP Cases 1184 (D. N.M. 1976); Shepard v. D.A.P.,
Inc., 11 FEP Cases 1373 (S.D. Ohio 1975); Doman v. SKF Indus.,
Inc., 399 F. Supp. 716 (E.D. Pa. 1975); Jack v. Sears, Roebuck &
Co., 10 EPD £ 10,304 (D.D.C. 1975); Diaz v. Food Fair Stores,
11 FEP Cases 920 (D. Colo. 1975); Craig v. Eastern Airlines, Inc.,
10 FEP Cases 1307 (D. Conn. 1975); Robinson v. Refrigerated
Foods, Inc., 10 FEP Cases 1237 (D. Colo. 1975).
1° The number of Title VII actions commenced in federal dis-
trict courts is increasing rapidly. The totals for the last five fiscal
years are as follows: 1970—-344; 1971—757; 1972—1,015; 1973—
1,787; 1974—2,472; and 1975—-3,931. The percentage of increase
between 1970 and 1975 is 1042.73%. The percentage of increase
from 1974 to 1975 is 59.02%. 1975 ANNUAL REPORT OF THE Di-
RECTOR, ADMINISTRATIVE OFFICE OF UNITED STATES CourRTs,
Table 33 at p. xi-67.
'! A charge must be filed within 180 days after the alleged un-
lawful practice occurred [§ 706(e)]; notice of charge must be served
—=— —
fact, Congress recognized that the thirty-day limitation period
originally incorporated into Title VII for the filing of suit was
inadequate. Hence, Title VII was amended by the Equal
Employment Opportunity Act of 1972 to increase the period
from thirty to ninety days.'*
The practice of the EEOC in sending two letters has effec-
tively circumvented the express ninety-day limitation period of
Title VII. DeMatteis, supra at 310 n.6. As in this case, the
limitation period is placed in the hands of a plaintiff much to
his advantage. Additionally, as exemplified by the thirteen-
month delay between the two letters sent to Lacy, the Con-
gressionally-mandated theme of expediency in resolving Title
VII disputes, has been blatantly ignored and disregarded.
The effect of the EEOC’s two-letter procedure was well-stated
by the court in Camack v. Hardee's Food Systems, Inc., Civil
No. C-75-63-G (M.D.N.C., filed Mar. 4, 1976):
on the employer within 10 days of filing [§ 706(b)]; the EEOC is
to make its determination as to the merits of the charge within 120
days of its filing, if possible [§ 706(b)]; within 180 days of filing
of the charge the EEOC is to notify the charging party that it has
dismissed the charge or that it has not filed suit or not entered into
a conciliation agreement [§ 706(f)(1)]; the chief judge of the dis-
trict court where suit is filed is obligated to designate immediately a
judge to hear the case [§ 706(f)(4)]; the judge assigned the case is
mandated to hear the case “at the earliest practicable date” and to
expedite it in every way [§ 706(f)(5)].
12 P. L. 92-261, 86 Stat. 103.
This Amendment evidences concern by Congress that aggrieved
parties have ample opportunity to file their claims in federal court.
One court has determined that the present ninety-day period is cer-
tainly ample. Wong v. Bon Marche, 508 F.2d 1249, 1250 ( th Cir.
1975).
If, as the EEOC’s “notice of failure of conciliation” states [Ap-
pendix C, infra}, a plaintiff has a right to receive a second notice at
any time, there would be no need for the amendment increasing the
limitation period from thirty to ninety-days. Indeed, such a con-
struction leads to a result wherein there is no limitation whatsoever.
— a
“The result of the two-letter procedure, if it is indeed
a valid procedure at all, is immediately apparent. The
plaintiff becomes the sole master of the timeliness of his
civil action. So long as he is content with possessing only
the first notice, the ninety-day limitation is tolled. Unlike
others, this tolling provision is based, not on the inability
of the plaintiff to sue or upon some other outstanding
equitable consideration, but solely upon the whim of the
charg'ng party. The limitation begins to run against him
only when he decides it will run against him. In the mean-
time, the potential defendant stands helpless while this
Sword of Damocles hangs above him.” /d. at 7.
The policy behind limitation periods is well-founded in logic
and purpose. One commentator has summarized the purposes
as follows:
“Laws of limitation are certainly founded on correct
and salutary principles, although, in isolated cases, they
may be productive of great hardship; but if the parties will
not settle their business matters within reasonable periods
before human testimony is lost and human memory fails,
on the pain of losing the right to a remedy thereon, not
the law, but the party is responsible for the hardship en-
tailed.” 1 H. Woop, A TREATISE ON THE LIMITATION OF
ACTIONS AT LAW AND IN Equity, §4 at 9-10 (4th ed. D.
Moore 1916)
This reasoning is particularly applicable to Title VII suits be-
tween employees and employers. E.g., Martinez v. National
Linen Service, 2 EPD 10,132 at p. 515 (S.D. Tex. 1969);
see Kavanaugh v. Noble, 332 U.S. 535 (1947).
Although it is submitted that a showing of prejudice is im-
material to the resolution of this threshold jurisdictional issue,
Chrysler has been directly prejudiced by this inordinate thirteen-
month delay. Therefore, even considering the equities involved,
the Eighth Circuit's opinion constitutes a manifest injustice.
a= 15 —
If Ms. Lacy is hypothetically viewed as a successful plain-
tiff, then the opinion of this Court in Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975), mandates an award of back pay
in accordance with $706(g) of Title VII. Accordingly, dur-
ing this thirteen-month hiatus, Chrysler's liability increased by
approximately $17,000 in back pay and benefits.'* Addition-
ally, throughout this delay the ability of Chrysler to defend this
suit was seriously impaired because the presentation of a thor-
ough defense is dependent upon the availability of witnesses,
the sharpness of their memories and the existence of documents.
Furthermore, due to the difficulties inherent in defending a dis-
crimination suit, when the distinction between a violation of
law and a lawful practice is extremely subtle, these factors are
of great importance, particularly since the action Ms. Lacy
complained of occurred in May, 1971.
This prejudicial etfect upon employers was recognized in the
Lacy dissenting opinion wherein the judges stated:
“Rather than obligating the aggrieved party either to sue
immediately after the expiration of the 180-day period or
to forego such right, the majority allows him to await final
agency action and to permit the backpay award to ac-
cumulate to the prejudice of the employer and to the ben-
efit of the aggrieved party. The degree to which the ma-
jority permits prejudice is best exemplified by the present
Lacy case where the aggrieved party delayed filing suit
for approximately 420 days after receiving EEOC notifi-
cation that conciliation efforts had failed. I perceive this
to be an impermissible vesting of unrestrained authority
in the aggrieved party and it completely circumvents the
stringent time limitations embodied in Title VII.” /d. at
31 [A-28-29].
1% While § 706(g) limits an award of back pay to the two-year
period immediately preceding the filing of a charge, there is no
backpay limitation whatsoever subsequent to the filing of a charge.
It is apparent that once a charge is filed, the EEOC’s administrative
delay is monetarily beneficial to charging parties.
— we
II
The Eighth Circuit decision is in conflict with the decisions
of other courts of appeal.
This Court, pursuant to Supreme Court Rule 19(1)(b)
should issue its writ of certiorari because of the conflicts in prin-
ciple between the Eighth Circuit's Lacy and Tuft'* opinions
with those of other courts of appeals. Analogous cases, arising
in the Second, Ninth, Third and Sixth Circuits, have reached
a conclusion antithical to that of the Lacy majority.
The Second Circuit, in two opinions, has rejected the interpre-
tation of § 706(f)(1) adopted in Tuft, the predecessor to Lacy.
In De Matteis v. Eastman Kodak Co., 511 F.2d 306, modified
on rehearing in other respects, 520 F.2d 409 (1975), the court
was concerned with the § 706(f)(1) limitation period. The
factual posture of the case, while not identical to Lacy, is suffi-
ciently analogous to prevent its distinction. In De Matteis, the
court was concerned with the dismissal of a charge by the EEOC,
this being the first of the three disjunctive contingencies speci-
fied in § 706(f)(1). The court then analyzed the Statutory
subsection in issue here:
“There are described therein [§ 706(f)(1)] four sets of
circumstances which if any one of them occurs, mandate
a notification by the Commission . . . to the person
aggrieved. . . .” /d. at 310. [Emphasis added]
In an explanatory footnote, the De Matteis court addressed
itself to the happening of the other circumstances specified in
the provision:
“When any of the three sets of circumstances referred to in
sub-s.ction (f)(1) of 42 U.S.C. § 2000e-5, other than
dismissal under sub-section (b), has occurred after some
'4 See page 10 supra at n. 8.
— pas
efforts at conciliation have been made, the Commission
has the statutory duty under (f)(1), on its own initiative,
to inform the aggrieved party of the status «f his case in
the light of the provisions of that statutory subsection.”
[Emphasis original]. 511 F.2d at 310 n.6.
Although, on rehearing, that court determined to apply its deci-
sion prospectively only, it nevertheless affirmed the earlier
rationale. 520 F.2d at 410.
Furthermore, in another case subsequent to the first De
Matteis opinion, a different panel of the Second Circuit un-
equivocably interpreted this section of Title VII to require the
EEOC to send a notice upon the expiration of 180 days which
then triggers the running of the limitation. In Weise v. Syracuse
Univ. 522 F.2d 397 (2d Cir. 1975), the court stated:
“If the EEOC dismisses the charge, or if within 180 days
of the filing the Commission has neither effected concilia-
tion nor instituted a civil action, it is to notify the aggrieved
party, who has 90 days after the giving of such notice to
commence an individuai civil action.” Id. at 412. [Em-
phasis added).
It is certain, therefore, that the opinion of the Lacy majority
is in conflict with two opinions of the Second Circuit.
Similarly, the Lacy majority opinion is irreco..cilable in prin-
ciple with an opinion of the Ninth Circuit. In Cleveland v.
Douglas Aircraft Co., 509 F.2d 1027 (1975), the EEOC had
issued two right to sue letters to the plaintiff. Within thirty days
of his receipt of the first letter Cleveland filed his suit which was
then voluntarily dismissed by him.'* Similarly, within thirty
15 In Cleveland, the court was interpreting the predecessor to
$ 706(f)(1) which prior to the 1972 amendments to the Civil Rights
Act of 1964, specified a thirty-day limitation period. See note 12
supra.
_—
days of his receipt of the second letter he commenced a second
suit. The court of appeals affirmed the district court's dismissal
Stating:
“The issuance by the EEOC of a second right to sue
letter likewise is without effect. The EEOC had no statu-
tory authority to issue such a letter and therefore the
30-day period must be deemed to run from the issuance
of the first letter. See Harris v. Sherwood Medical In-
dustries, Inc., 386 F.Supp. 1149 (E.D.Mo. 1974). To
accept the EEOC’s action in issuing the second letter as
proper would vitiate the congressionally mandated period
of limitation in favor of a hodgepodge of ad hoc determina-
tions by the EEOC.
“Further, it cannot be presumed that the appellee has
not been prejudiced because of the delay. Over 7 years
have elapsed since the alleged act of discrimination. Cer-
tainly, memories have dimmed and one of appellee’s wit-
nesses has died.” /d. at 1030.
The court, in examining the notification requirement prescribed
in Title VII, reached a conclusion different from that of the
Lacy majority. The Ninth Circuit, unlike the Eighth, did not
interpret § 706(f)(1) to require that the EEOC decide not to
bring suit before it issues the required notice:
“The ‘right to sue’ letter should be issued only when the
EEOC has completed its investigation and has failed to
achieve voluntary compliance by the employer.” /d. at
1028.
The Cleveland court also rejected the “equitable” arguments
tendered by the plaintiff-appellant.'* The Ninth Circuit correctly
_ '® Although dismissal, the sanction for non-compliance with the
limitation period, is a seemingly harsh consequence, the federal courts
have not shown reluctance to dismiss Title VI' or other similar suits.
E.g., Wong v. Bon Marche, 508 F.2d 1249 (9th Cir. 1975) [com-
—_— vn
determined that reliance upon the misadvice or error of the
EEOC was not a valid defense and that it was beyond the court's
power to extend the limitation period. In support of this latter
conclusion the Ninth Circuit in Cleveland, supra at 1030, quoted
from this Court's opinion in Kavanagh v. Noble, 332 U.S. 535
(1947) pertaining to periods of limitation:
“Such periods are established to cut off rights, justifiable
or not, that might otherwise be asserted and they must be
strictly adhered to by the judiciary. * * * Remedies for
resulting inequities are to be provided by Congress, not the
courts.” /d. at 539 [Citation omitted].
The Third Circuit, in an opinion dealing with the applica-
bility of the limitations periods in § 706(f)(1) to civil suits
initiated by the EEOC rather than a private plaintiff, examined
the various limitations contained in the section. In EEOC v.
E. 1. du Pont de Nemours & Co., 516 F.2d 1297 (3d Cir.
1975) the court summarized the scheme of § 706(f)(1) as it
pertains to private suits:
“The 180-day proviso explicitly addresses private ac-
tions, operating as a front-end limitation on the right of
the aggrieved party to sue. During this period the party
must await either the effectuation of a conciliation agree-
ment or an action commenced by EEOC. /f, by the end of
this 180-day period, such activity has not taken place, the
aggrieved party may commence a private action. There is,
plaint filed on 91st day]; Archuleta v. Duffy's, Inc., 471 F.2d 33
(10th Cir. 1973) [service on wrong corporation]; Genovese v. Shell
Oil Co., 488 F.2d 84 (Sth Cir. 1973) [error of counsel]; McCrary
v. Metropolitan Life Ins. Co., 408 F. Supp. 417 (D. Mass., 1976)
{failure of EEOC to assist plaintiff in obtaining counsel]; Green v.
Ford Motor Co., 1 EPD ©9977 (W.D. Okla. 1969) [claim that
delay was due to illness]. See Olson v. Rembrandt Printing Co.,
511 F.2d 1228 (8th Cir. 1974) (en banc); Kington v. United
States, 396 F.2d 9 (6th Cir. 1968), cert. denied, 393 U.S. 960
(1968); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962).
— =e
however, an express, 90-day rear-end limitation to which
the party’s action is subject. Thus, at the completion of
this 90-day period, the aggrieved party’s right to file suit is
statutorily extinguished.” /d. at 1301 [Emphasis added]
In reiterating that the ninety-day limitation period commences
upon the failure of the EEOC to conciliate the charge or to
bring suit within 180 days of the filing of the charge, the court
wrote:
“[W]e read the language simply to allow the aggrieved party
to sue privately when the Commission has neither effected
a conciliation agreement nor commenced a civil action
within the 180 days. It gives the private party a choice:
he can bring his own private action or he can rely on the
representation of the Commission.” /d. at 1301 [Emphasis
added]
In EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir.
1975), cert. denied, 44 U.S.L.W. 3330 (U.S. Dec. 1, 1975),
the Sixth Circuit decided whether the 180-day limitation period
of § 706(f)(1) was applicable to the EEOC. Similar to the
Third Circuit in du Pont, supra, the Sixth Circuit detailed the
legislative history of the 1972 amendments to the Civil Rights
Act of 1964 and examined § 706(f)(1). The court concluded
that the EEOC must send the notice prescribed by § 706(f) (1)
when conciliation has failed:
“In a later sentence [of § 706(f)(1)] the EEOC is re-
quired to notify a charging party when an agreement has
not been reached 180 days after the charge’s filing, and the
private party is then authorized to sue.” /d. at 1356. [Em-
phasis added]
Four courts of appeal have determined that a private suit
must be initiated within ninety days of the failure of the EEOC
within 180 days of the filing of the charge to file an action or to
achieve conciliation. The opinion of the Eighth Circuit has er-
roneously engrafted a further condition to the triggering of the
ninety-day period: Not only must the EEOC have not filed suit
by the 180th day, it also must have determined that it will never
file suit upon that charge. Their holding is in sharp contrast
to the analyses of the Second, Ninth, Third and Sixth Circuits.
Accordingly, the opinion of the Lacy majority conflicts in
principle with that of other courts of appeal. It is appropriate
that this Court grant this petition for a writ of certiorari in
order to resolve the inter-circuit conflict which has resulted and
to prevent the continuance of inconsistent adjudications.
CONCLUSION
For the above reasons this Honorable Court should issue its
writ of certiorari to review the decision of the Court of Appeals
for the Eighth Circuit.
Respectfully submitted
WILLIAM G. GUERRI
EDWIN D. AKERS, JR.
CHARLES A. NEWMAN
THOMPSON & MITCHELL
One Mercantile Center, Suite 3400
St. Louis, Missouri 63101
(314) 231-7676
Attorneys for Petitioner,
Chrysler Corporation
Of Counsel
RALPH PAUL FICHTNER
Chrysler Corporation
Office of the General Attorney
P.O. Box 1919
Detroit, Michigan 48231
(313) 956-4468
APPENDIX
APPENDIX A
In the United States District Court for the
Eastern District of Missouri
Eastern Division
Mary Lacy, :
Plaintiff,
vs.
. No. 74-643 C (3)
Chrysler Corporation,
Defendant. ;
Memorandum and Order
This matter is before the Court upon defendant's motion to
dismiss this action. In light of the holding of the Eighth Circuit
in Huston v. General Motors Corporation, 477 F.2d 1003 (8th
Cir., 1973); and Harris v. Sherwood Medical Industries, Inc.,
74-147 C (A) (E.D. Mo., 1974), such a motion is proper.
It Is Hereby Ordered that defendant’s motion to dismiss be
and is Granted; and
it Is Further Ordered that this case be and is Dismissed.
Dated this 13th day of November, 1974.
/s/ H. KENNETH WANGELIN
United States District Judge
—
APPENDIX B
United States Court of Appeals
For the Eighth Circuit
No. 74-1949 }
Mary Lacy,
Appellant,
V.
Chrysler Corp.,
Appellee.
No. 74-1981
Yvonne Harris, Appeals from the
Appellant, | United States Dis-
v. trict Court for the
Eastern District of
Sherwood Medical Ind., Missouri
Appellee.
No. 75-1077
Jimmie Whitfield,
Appellant,
v.
Certain-Teed Prod., et al.,
Appellees. /
Submitted: November 12, 1975
Filed: March 4, 1976
Before Gibson, Chief Judge; Lay, Heaney, Bright, Ross,
Stephenson, Webster, and Henley, Circuit Judges, en banc.
Bright, Circuit Judge.
In these three consolidated appeals, appellants (plaintiffs in
the district court) urge that the trial courts erred in dismissing
—
their actions by ruling that the 90-day period to commence indi-
vidual civil actions against an employer under provisions of Title
VII of the Civil Rights Act of 1964, as amended,' 42 U.S.C.
§ 2000e et seq. (Supp. Il, 1972), begins to run from the date
that the Equal Employment Opportunity Commission (EEOC or
Commission) advises the employee-charging party by letter
that conciliation efforts with the employer have failed.
Although we previously decided this issue in Tuft v. McDon-
nell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. de-
nied, 44 U.S.L.W. 3394 (U.S. Jan. 12, 1976), we granted an
en banc hearing in this case to pass upon procedures of the
Commission in factual settings varying from those in Tuft.
We reverse the district court judgments in Lacy v. Chrysler
Corp., No. 74-1949, and Harris v. Sherwood Medical Indus-
tries, No. 74-1981, and reinstate the appellants’ actions. We
affirm the dismissal in Whitfield v. Certain-Teed Products, No.
75-1077.
We turn to the factual background and discuss each of these
actions.
! The pertinent language of this provision is included in § 706(f)
(1), which reads in part as follows:
If a charge filed with the Commission pursuant to subsection
(b) of this section is dismissed by the Commission, or if within
one hundred and eighty days from the filing of such charge or
the expiration of any period of reference under subsection (c)
or (d) [state or local agencies] of this section, whichever is
later, the Commission has not filed a civil action under this
section or the Attorney General has not filed a civil action in a
case involving a government, governmental agency, or political
subdivision, or the Commission has not entered into a concilia-
tion agreement to which the person aggrieved is a party, the
Commission, or the Attorney General in a case involving a
government, governmental agency, or political subdivision, shall
so notify the person aggrieved and within ninety days after the
giving of such notice a civil action may be brought against the
respondent named in the charge * * * {42 U. Sc § 2 -5(f)
(1) (Supp. II, 1972).]
—~ yon
I. Lacy v. Chrysler Corporation.
Mary Lacy, a black woman, filed a racial discrimination
charge against Chrysler Corporation with the EEOC on or about
September 7, 1972, asserting discriminatory treatment because
of certain layoff and recall provisions of Chrysler. On July 17,
1973, the St. Louis, Missouri, district office of the EEOC ad-
vised Ms. Lacy by letter “that conciliation efforts in your case
have failed.” The letter went on to state that
[a]nytime now you may request your letter of Right to
Sue. This is done by requesting, in writing, from the Dis-
trict Director, Mr. Eugene P. Keenan.
When you request your letter of Right to Sue, you have only
90 days to get a lawyer to file suit for you in Federal Dis-
trict Court. It is not wise to request your Right to Sue letter
until you have obtained a lawyer who has agreed to repre-
sent you.
Thereafter, on August 13, 1974, following a request from
Ms. Lacy, the district office issued a letter to Ms. Lacy, entitled
“Notice of Right to Sue within 90 days.” The full text of this
letter is reproduced in the margin.* The dates disclose that the
te
NOTICE OF RIGHT TO SUE
WITHIN 90 DAYS
In Case No. YSL3-297 before the Equal Employment Oppor-
tunity Commission, United States Government.
You Are Hereby Notified That:
Whereas, This Commission has not filed a civil action with
respect to your charge as provided by Section 706 (F) (1) of
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e et seq: and,
Whereas, this Commission has not entered into a conciliation
agreement to which you are a party;
Therefore, pursuant to 706 (F) of Title VII, you may, r, within
90 days of your receipt of this Notice, institute a civil action in
——_ Tv a
so-called “Right to Sue” letter was mailed approximately 13
months after the EEOC had notified Ms. Lacy of the failure
of conciliation with her employer. She filed her action against
Chrysler in the United States District Court for the Eastern Dis-
ict of Missouri on September 13, 1974, thirty days after receiv-
ing the Right to Sue letter, but some 14 months after she had
received the notice of failure of conciliation. The district court
ruled that the action had not been brought within the 90-day
period provided for in § 706(f)(1), referred to in note | supra,
and dismissed the case.
Il. Harris v. Sherwood Medical Industries.
Yvonne Costello Harris, a black former employee of Sher-
wood Medical Industries, filed a complaint with the EEOC that
Sherwood had discriminated against her with regard to super-
vision and promotion and had discharged her on the basis of
her race. On March 16, 1972, the EEOC referred her charge
to the Missouri Commission on Human Rights as required by
42 U.S.C. § 2000e-5(d). The state commission, without resolv-
ing the complaint, returned the plaintiff's file to the EEOC on
June 30, 1972. Thereafter, more than one year later on Sep-
tember 21, 1973, the EEOC’s district office in St. Louis wrote
Ms. Harris and advised her that conciliation efforts on her behaif
had failed. The text of the letter was the same as the initial
the United States District Court having jurisdiction over your
case.
Should you decide to commence judicial action, you must do
so within 90 days of the receipt of this letter or you will lose
your right to sue under Title VII.
If you are not represented by counsel and you are unable to
obtain counsel the Court may, in its discretion, appoint an at-
torney to represent you.
Should you have any questions concerning your legal rights or
have any difficulty filing your case in court, please call Ms.
Gretchen Huston of this office at 314-622-5571.
—_—
letter mailed to Mary Lacy, referred to above. Thereafter, on
February 4, 1974, the district director in St. Louis sent Ms.
Harris a formal Right to Sue letter with the text identical to the
Right to Sue letter mailed to Ms. Lacy and quoted in note 2
supra. She filed her Title VII action in the United States Dis-
trict Court for the Eastern District of Missouri against Sherwood
Medical Industries on March 1, 1974, more than 90 days after
receiving the letter from the EEOC office in St. Louis advising
that conciliation efforts in her case had failed but only 24 days
after receiving the formal Right to Sue letter. The district court
dismissed the action on defendant’s motion for summary judg-
ment on grounds that the suit had not been commenced within
the 90-day period prescribed by § 706(f)(1). Harris v. Sher-
wood Medical Industries, 386 F. Supp. 1149 (E.D. Mo. 1974).
This appeal followed.
III. Analysis of Lacy and Harris.
Thus, both Ms. Lacy and Ms. Harris brought Title VII ac-
tions within 90 days after receiving a formal notice of right to
sue from the EEOC Fut more than 90 days from the receipt of
notice that conciliation efforts had failed in each individual case.
The underlying facts in each case reflect a two-letter procedure
followed by the EEOC. In the first letter, the EEOC advised
the charging party only that conciliation had failed and that a
Right to Sue letter could be requested. The second letter for-
mally notified the complainant that (1) the Commission had not
filed a civil action with respect to the charge; (2) that the Com-
mission had not entered into a conciliation agreement respect-
ing the claim; and (3) that the complainant had a right to sue
in the United States District Court having jurisdiction over the
case within 90 days of the receipt of this notice.
In Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th
Cir. 1975), cert. denied, 44 U.S.L.W. 3394 (U.S. Jan. 12,
—_—*
1976), we considered the identical two-letter procedure followed
by the Commission and we held that the first letter advising the
complainant of the failure of conciliation efforts did not initiate
the running of the 90-day period. In that case we undertook an
extensive review of the 1972 amendments to the Act, noting in
particular that Congress by these amendments had now author-
ized the Commission to institute legal actions under Title VII.
We determined that the amended statute required notification to
the aggrieved party at the conclusion of the final step in the ad-
ministrative process, i.e., after the 1972 amendments, upon the
Commission’s determination not to file suit.
We reasoned as follows:
This section [§ 706(f)], read in its entirety, calls upon
the Commission, in cases of private employers, or the At-
torney General, in cases of governmental employers, to
“notify” the aggrieved party upon a determination not to
file suit.
In the absence of a demand from the complainant, the
notice from the Attorney General obviously must follow
his decision not to file suit. Since the Commission similarly
determines whether to institute a civil action against other
employers, it follows that it also must issue its notice upon
determining that it will not sue. Thus, absent a demand
from the aggrieved party, § 706 requires an official notifica-
tion to the complainant upon making the decision not to
file suit, this determination representing the final step of
administrative processing. * * *
This reading of the notification provisions of § 706(f)
comports with the expressed congressional desire to place
the primary burden of enforcement of Title VII cases on
the Commission rather than the private complainant. It
the statute required the issuance of notice at some inter-
mediate stage of the administrative process, an aggrieved
a
person would be required to either sue within 90 days or
lose his right to sue without knowing whether or not the
Commission would file suit on his behalf. Moreover, this
construction remains consistent with pre-1972 procedures
which generally geared the issuance of notice to exhaustion
of administrative remedies. Before the 1972 amendments
administrative procedures ended with the termination of
conciliation efforts while under the current statute these
administrative procedures end with a determination of
whether to file suit. [/d. at 1309 (footnote omitted ).]
We added:
Thus, the first Commission letter of February 13, 1974,
must be read literally, as informing Ms. Tuft that concili-
ation had failed and advising her that she might request the
formal statutory notice from the Commission as a pre-
requisite to filing her own suit. Since the Commission had
not then exhausted its administrative procedures under Title
VII, no basis exists, legally or equitably, for construing the
first letter as a statutory notice initiating the running of the
90-day limitation period. [Id. at 1309-10.]*
* We noted in Tuft that the Commission had advised us during
the appellate proceedings that at the time the first letter was sent
to Ms. Tuft, it had not determined whether to file suit. Documents
submitted by the Commission show that Ms. Tuft’s case had been
referred to the Commission ~y ay Center subsequent to the mail-
ing of the first letter and that the ‘ile was returned to the Commis-
sion’s office in St. Louis subsequent to the issuance of the second
letter. 517 F.2d at 1309 n.16.
Similarly, an amicus brief by the EEOC filed in the instant cases
discloses records indicating that the file in Lacy was referred to the
Commission Litigation Center after the first letter had been sent by
the St. Louis office of the EEOC to Ms. Lacy, and that while it had
been returned to the district office on November 12, 1973, the file
was again forwarded to the Litigation Center on September 14,
1974 (after the notice of right to sue had been issued).
In Harris, Commission records reflect that conciliation failed on
September 1, 1973, the case was referred to the appropriate litigation
center in October of 1973, and returned on February 11, 1974, after
—
The Tenth Circuit has recently followed the rationale of
Tuft in Williams v. Southern Union Gas Co., No. 75-1104
(10th Cir., Jan. 21, 1976).
In urging that the Tuft case ought not to control the Mary
Lacy appeal, the appellee in that case, Chrysler Corporation,
points to four distinctions which it terms significant between
the facts in Lacy and those surfacing in Tuft. They are as fol-
lows: (1) The delay was substantially greater between the issu-
ance of the first and second letters in Lacy than in Tuft. In
Tuft, the delay between the first and second letters amounted to
about four months tin Lacy the delay extended to 13 months;
(2) Chrysler has been directly prejudiced by the delay encoun-
tered in the two-letter system since its potential liability for back-
pay has been increased during this 13-month hiatus between the
two letters; (3) Since Mary Lacy was represented by counsel
as early as December 1973, she cannot show reliance on state-
ments of the EEOC in its letters to her as was the case with Ms.
Tuft; (4) Unlike Tuft, which involves sex discrimination, Ms.
Lacy has charged Chrysler with race discrimination. Thus,
even if her claim under Title VII should be dismissed, relief may
be available to her under other federal and state statutes.
In the Yvonne Harris case, appellee-Sherwood Medical In-
dustries attempts to distinguish the facts in this case from Tuft
by focusing on the preservation by Harris of other remedies for
race discrimination which were not available to Ms. Tuft.
We reject appellees’ proffered distinctions as a basis for reach-
ing a result contrary to the Tuft case. Our determination here
—_— —_
the right to sue letter had been issued on February 8, 1974. What
is crucial in determining that the first letter of the two-letter proce-
dure cannot be construed as a statutory notice affording the claimant
the right to sue is the fact that the Commission’s administrative pro-
cedures had then not run its full course.
4 Chrysler refers to Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975), and the discussion therein relating to backpay.
— A-10 —
and in Tuft rests upon construction of a statute. In Tuft, we
summarized the notice procedures triggering the 90-day statute
of limitations as follows:
1) Upon a dismissal of the charge by the Commission,
the statutory notice must issue promptly to the aggrieved
party and the respondent.
2) The complainant may demand the statutory notice
any time after 180 days have elapsed from the filing of the
complaint if the Commission has not dismissed his com-
plaint, achieved a conciliation agreement, or filed a civil
action.
3) Otherwise, the statutory notice must issue following
a determination by the Commission or, in appropriate
cases, the Attorney General, that a civil action will not be
filed. [517 F.2d at 1309 (citation omitted ).]
In neither Lacy nor Harris did the first letter, the notice of
failure of conciliation, inform the complainant that the Com-
mission had declined to sue. Thus, under the statute as con-
strued in Tuft, the first letter did not trigger the 90-day period.
The second letter, the formal right to sue letter, initiated the
running of the 90-day period.
The appellees also contend that Tuft is inconsistent with the
rationale of DeMatteis v. Eastman Kodak Co., 511 F.2d 306,
modified on other grounds, 520 F.2d 409 (2d Cir. 1975). In
DeMatteis, the Second Circuit was presented with a two-letter
situation. The first letter was issued under the provision of
§ 706(f)(1), which requires the Commission to notify the ag-
grieved party “if a charge filed with the Commission * * * is
dismissed by the Commission * * *.”° The first letter specifically
informed DeMatteis of his right to bring a civil action. De-
* See summary of notice procedures in Tuft, at p. 10 [A-10], item
1, supra.
ae
— A-ll —
Matteis’ attorney, thereafter, requested a second notice of right
to sue and brought an action within 90 days of receiving the
second right to sue letter, but not the first.
The Second Circuit specifically noted that “[t}here was no
consideration given to conciliation * * * as that state in the
procedures was never reached.” 511 F.2d at 308. Also, since
the Commission dismissed the complaint, the charge never
reached the stage of suit consideration. The court further noted
that the precise issue presented was
whether the limitations period began to run from the re-
ceipt of the notice on May 8, 1973 of the Commission's
determination that there was “not reasonable cause to be-
lieve that the charge was true” and the dismissal of the
charge, as the trial court held, or from the later receipt of
the notice of right to sue on July 26, 1973, as the appellant
claims. [/d. at 309.]
The DeMatteis court particularly observed the difference between
a dismissal of a charge by the Commission, the issue there pre-
sented, and the circumstances (as in Tuft, Harris, and Lacy) in
which the Commission had found there was reasonable cause
to believe that the charges were true. The DeMatteis court said:
The purpose of the notice of right to sue was definitely
to fix a time when the administrative remedies had ended
and when the 90-day statute of limitations for bringing a
suit in the federal court began to run. It applies only to
dismissals of charges or other terminations of the adminis-
trative proceedings which took place after the effort at con-
ciliation and only in cases in which the Commission had
found there was reasonable cause to believe that the charges
were true.
There was never any need for such a signal in the case
before us. The parties on May 8, 1973 received definite
and precise notice that the administrative proceedings had
been completed and, in the express words of the regulation,
— A-12 —
that “the determination . . . [was] final when issued; [and]
therefore requests for reconsideration . . . [would] not be
granted.” (29 C.F.R.] § 1601.19b [/d. at 310 (emphasis
added ).]
This language comports with our decision in Tuft.
The appellees here focus on other language of DeMatteis
where the court said:
There are described therein [in § 706(f)(1)] four sets of
circumstances which, if any one of them occurs, mandate
a notification by the Commission (or by the Attorney
General, as the case may be) to the person aggrieved; and
he (or in certain situations others) may bring a civil action
on the charge against the respondent in the appropriate
United States District Court “within ninety days after the
giving of such notice” by the Commission. /d.
The court discussed in a footnote the three sets of circumstances
other than dismissal referred to in § 706(f)(1), stating:
When any of the three sets of circumstances referred to in
sub-section (f) (1) of 42 U.S.C. § 2000e-5, other than
dismissal under sub-section (b). has occurred after some
efforts at conciliation have been made, the Commission has
the statutory duty under (f)(1), on its own initiative, to
inform the aggrieved party of the status of his case in the
light of the provisions of that statutory sub-section. At this
point, under the regulation, § 1601.25c(d), however, the
aggrieved party is left formally to request the Commission
for a notice of right to sue—a procedure the operative
effect of which is to place in the hands of the aggrieved
party the approximate time when he wants the notice to be
issued and the 90-day period of the statute of limitations
to start running. [/d. at 310 n. 6 (emphasis in original).]
Although this language in DeMatteis, quoted above, may
Suggest an inference contrary to the Tuft holding, we deem the
RG
os MAE nn
holding and underlying rationale of DeMatteis to be consistent
with Tuft. The DeMatteis court did not undertake to analyze
the effect of the 1972 amendments to Title VII, discussed in
Tuft, or consider precisely when the Commission must issue a
notice of right to sue in the absence of a request from the charg-
ing party.
We also note that on rehearing the DeMatteis court applied
its holding prospectively so as to permit the appellant to bring
his Title VII action since he had relied upon incorrect advice
from the EEOC. DeMatteis v. Eastman Kodak Co., 520 F.2d
409 (2d Cir. 1975).*° The result reached in DeMatteis on re-
hearing is consistent with part IV of Tuft.
Accordingly, on the authority of Tuft, we reverse Lacy and
Harris.‘
® In Craig v. Eastern Airlines, 10 FEP cases 1307 (D. Conn.
1975), Judge Blumenfeld, a district judge in the Second Circuit,
followed the Tuft case, and considered the holding in DeMatteis as
consistent with Tuft. This opinion stated:
* * * the [DeMatteis] court recognized that different considera-
tions might be involved where the Commission determines that
there is reasonable cause to believe that a complainant's charges
are true * * *.
The court recognized the distinction between such cases where
administrative proceedings have not ended and where “it has
been difficult for the aggrieved party or the respondent to know
exactly when the proceedings by or before the Commission have
terminated,” DeMatteis v. Eastman Kodak Co., supra, 511 F.
2d at 310, * * * and the case before it, where the proceedings
had “terminated at the investigative stage.” * * * Under such
circumstances, it noted that the regulatory provision, 29 C.F.R.
$ 1601.25 (1974), of a Notice of Right to Sue serves the im-
portant function of “definitely . . . fix{ing] a time when the
administrative remedies [have] ended and when the 90-day
Statute of limitations for bringing a suit in the federal court
[begins] to run.” Id. This recognition, while not a specific en-
dorsement of the Commission’s procedure, is in harmony with
the conclusion reached by the Eighth Circuit in Tuft. (Emphasis
in original).
* Appellees also cite Cleveland v. Douglas Aircraft Co., 509 F.2d
1027 (9th Cir. 1975), as containing a rationale inconsistent with
— <<)
IV. Whitfield v. Certain-Teed Products.
Unlike Tuft, Lacy, or Harris, this case involved a three-letter
procedure. In 1972, Whitfield, a black, filed a charge against
his former employer alleging that he had been discharged be-
cause of his race. After the usual processing and unsuccessful
efforts at conciliation, on July 30, 1973, the EEOC wrote Whit-
field a letter, identical in terms to the first letter in Tuft, Harris,
and Lacy, informing him that conciliation had failed and that
he could request a right to sue letter at any time. Whitfield took
no action. Thereafter, more than a year later, on September 4,
1973, the EEOC wrote Whitfield a second letter specifically
advising him that the Commission had decided not to file suit
in his case. The text recited:
This office has referred your case to the Commission’s
Regional Litigation Center for consideration as one which
the Commission’s General Counsel would take into Court.
The Litigation Center has rejected your case for court
action.
Title VII of the Civil Rights Act of 1964, as amended,
provides that you may file a suit in Federal District Court
represented by a private lawyer. In order to file such a
suit, you must request in writing, a “Right to Sue” letter
from me as District Director.
It is always wise to secure your own lawyer before you
request a “Right to Sue” letter from the Director. Once
you receive that letter, you have only 90 days to file the
suit in Court.
Having the Commission reject your case for Court action
does not necessarily mean that it is a poor case. It may
the Tuft case. However, in Cleveland, which arose before the 1972
amendments, the EEOC sent two letters, both of which were clearly
right to sue letters. We find no inconsistency between Tuft and
Cleveland.
= he eee ee
— A-15 —
mean that there are two many cases being submitted to
the Commission for Court action and too few lawyers to
handle them.
The Commission has expended a considerable amount of
time and money investigating and otherwise handling your
case. You should certainly take the next step in getting
your case to court by calling our attorney, Ms. Gretchen
Huston at 622-4126. She will assist you in finding an
attorney, possibly at no cost to you. In some cases, at-
torneys will take your case on a contingent basis. In
others, all they ask is the filing fee. Do not let the thought
of attorney fees discourage you.
Whitfield did not bring a suit within 90 days of this second letter,
but eventually requested a formal right to sue notice which the
EEOC sent on November 2, 1973. Assuming delivery of the
letter on the next day, plaintiff waited an additional 89 days,
until January 31, 1974, before filing a class action lawsuit pur-
suant to Title VII and 42 U.S.C. § 1981, alleging discriminatory
employment practices by his employer and union.
The district court (Judge Regan) dismissed the suit on alterna-
tive grounds: 1) that the first letter advising Whitfield of the
failure of conciliation initiated the running of the 90-day period
to bring an action or 2) that the second letter advising Whitfield
that the Commission had rejected his case for court action con-
stituted the statutory notice which initiated the running of the
90-day period. Since the suit was brought some six months
following the first letter and 149 days after the second letter, the
court dismissed Whitfield’s Title VII claim.
The district court’s determination that the second letter in
this case constituted the statutory notice prescribed by § 706(f)
must be sustained. Upon receiving the second letter from the
EEOC, the September 4th letter, Whitfield knew that the
administrative procedures of the EEOC had terminated and
— A-16 —
that he could not hope to receive any further administrative
assistance from the EEOC.
In Tuft, we said that “the statutory notice must issue follow-
ing a determination by the Commission or, in appropriate cases,
the Attorney General, that a civil action will not be filed.” 517
F.2d at 1309. Thus, this second letter must be deemed a
notice which complies with the statute (§ 706(f)) and serves to
initiate the running of the 90-day period.
The appellant, however, citing part IV of the Tuft opinion
as well as under the rationale of the opinion on rehearing in
DeMatteis, contends that he should not be deprived of his right
to bring his Title VII suit since he relied on the misleading ad-
vice furnished him by the EEOC.
The equities here, however, are substantially different than in
Tuft. At oral argument, Whitfield’s counsel conceded that he
had been retained between the first and second letter and that
he waited approximately two months after Whitfield received
the second letter—the determination by the EEOC that it would
not file suit—before even requesting a formal right to sue letter.
Upon receiving the second letter, Whitfield knew that the EEOC’s
administrative procedures had terminated. On the basis of this
record, we believe Whitfield’s counsel with cooperation from the
EEOC consciously misused the administrative process to further
delay this litigation. Therefore, Whitfield cannot be deemed
an innocent party suffering prejudice through misleading in-
formation furnished him by the EEOC. A contrary determina-
tion would permit a knowledgeable and informed aggrieved
party to postpone indefinitely the issuance of a formal right to
sue letter and thus delay indefinitely the initiation of the 90-day
period prescribed by law. Moreover, in declining to reinstate
the Title VII aspects of this action, we note that Whitfield re-
tains his cause of action under § 1981, and will not sustain
prejudice in pursuing his cause of action. We affirm the district
court’s dismissal of the Title VII action in Whitfield.
—*~
V. Delays of the EEOC.
As an en banc court we think it appropriate to comment upon
EEOC procedures. The Commission’s procedures, as reflected
in these cases as well as Tuff, indicate that great delays have
occurred in the completion of administrative processing of
claims brought under Title VII by charging parties.“
In an amicus brief filed by the EEOC in these cases, the
Commission advises that it has adopted more specific procedures
to complete administrative processing of a case once it has
been determined that conciliation has failed.”
Upon failure of conciliation, the case file is referred to the
Regional Attorney for review. The Regional Attorney is under
some obligation to recommend referred cases to the Commission
for litigation or return them to the district director within 30
days.'”
* In the three cases now before us and Tuft, the time period be-
tween filing a complaint with the EEOC and an administrative de-
termination of failure of conciliation has been as follows: Tuft—
2% years; Lacy—10 months; Harris—over | year, Whitfield—162
months. The EEOC then takes additional time to determine whether
it will file suit.
” See §§ 66, 82, and 84, Vol. I, Procedures, EEOC Compliance
Manual, Revised Apr. 4, 1975.
\” The pertinent procedures are contained in § 82 of the EEOC
Compliance Manual:
82.3 Upon Failure of Conciliation—When the District Director
determines that conciliation efforts have failed (see Section 66)
the District Director shall refer the entire case file to the Re-
gional Attorney using the transmittal memorandum at Exhibit
82-A. For cases of particular interest, the District Director
shall also attach a memorandum describing the reasons for
wishing to have the case litigated and providing any other in-
formation which may assist the Regional Attorney in making
a determination. See Section 84 for litigation referral proce-
dures in cases involving state or local governments, government
agencies or political sub-divisions.
82.4 Copies of Other Pending Charges to Be Forwarded— At
the time a case is forwarded to the Regional Attorney for re-
—_.
The EEOC has abandoned its two-letter procedures reflected
in Tuft, Harris, and Lacy, and in other cases. Within 30 days
after the administrative procedures end the Commission issues
one combined notice of failure of conciliation, determination
not to file suit and right to sue letter. Hopefully, procedural
changes by the EEOC will avoid some of the legal problems
as exemplied in the cases now before us.
view, the District Director will forward a status report on and
copies of all other charges pending against the respondent in
that District Office. The purpose of this action is to assist the
Regional Attorney in framing the potential lawsuit as broadly
as possible.
82.5 Review by Regional Attorney—The Regional Attorney
will review all referred cases, and within 30 days from receipt
will either recommend them to the Commission for litigation or
return them to the District Director. If the Regional Attorney
cannot meet the 30 day review limit, the Regional Attorney
will inform the District Director of this fact.
(a) Case Recommended to Commission—The Regional
Attorney shall prepare the presentation memorandum and
forward it to the General Counsel for review. A copy of
the presentation memorandum will be sent to the appro-
priate Regional and District Directors at the time the case
is forwarded.
(b) Case Returned—The Regional Attorney will pre-
pare a memorandum outlining the reasons for not recom-
mending litigation and will transmit it to the District Di-
rector along with the case file. Copies of this memorandum
will be simultaneously transmitted to the Regional Direc-
tor and the Chief, Decisions Division, Headquarters. In
those instances where the Regional Attorney believes
future litigation against a particular respondent may be
appropniate, the Regional Attorney will inform the District
Director and specify the conditions under which he/she
is willing to recommend such litigation. The Regional
Attorney will also note those cases which are particularly
appropriate for referral to private counsel.
82.6 Appeals—lIf the Regional Attorney’s decision as to whether
to bring suit is not satisfactory to the District Director, the
District Director may request the Regional Attorney to recon-
sider. The Regional Attorney will review the request within
ten days. If the Regional Attorney's disposition is not satisfac-
tory, the District Director may refer the matter to the Regional
Agenda Committee. If the appeal cannot be resolved by the
ode —
— A-19 —
Nevertheless, these changes are not likely to materially re-
duce the delay in processing Title VII claims. We recognize that
the Commission has been understaffed and overburdened with
claims."
The obligation to adopt regulations which assure the prompt
disposition of Title VII claims administratively, within the capa-
bilities of the agency, is a necessity. We urge the Commission
to expedite the processing of complaims and to make every
effort to ensure that complainants receive prompt attention and
processing of their claims and that regulations strictly conform
to the statute so that no one can point to improper agency
procedures as causing a loss of rights to an aggrieved charging
party or producing prejudice to a defendant-employer.
GIBSON, Chief Judge, joined by HENLEY, Circuit Judge, con-
curs in Jimmie Whitfield v. Certain-Teed Prod., et al., No.
75-1077, and dissents in Mary Lacy v. Chrysler Corp., No.
Regional Agenda Committee, the Regional Director may for-
ward the appeal to the Director of Compliance for resolution
with the Associate General Counsel! for Litigation. If the ap-
peal is not resolved, the Director of Compliance may forward
the case to the Executive Director for discussion with the Gen-
eral Counsel.
Conciliation Failure—Notice of Right to Sue EEOC Form
161A, will not be issued by the District Director until a final
determination that the Commission will not bring a civil action
against the respondent has been made.
82.7 Parties May Be Informed of Referral at Discretion of Dis-
trict Director—District Directors may advise aggrieved persons
and other parties at interest that their case has been referred to
the General Counsel for litigation review and may indicate
when a decision on further Commission action might be antici-
pated.
‘1 At oral argument, counsel for the EEOC said that about 100,-
(00 charges are filed with the Commission yearly. Congress should
provide the EEOC with sufficient manpower to promptly service its
claims. However, some delay as indicated in these cases is charge-
able to the EEOC’s indefinite procedures for terminating agency
action and notifying claimants of their right to sue in federal court.
— A-20 —
74-1949, and Yvonne Harris v. Sherwood Medical Ind.,
No. 74-1981.
I respectfully dissent from the majority's disposition of the
Lacy and Harris cases, which, in my opinion, has perpetuated
an error initially promulgated in Tuft v. McDonnell Douglas
Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 44 U.S.L.W.
3394 (U.S. Jan. 12, 1976). The majority’s interpretation con-
travenes the clear language of § 706(f)(1), nullifies the mani-
fest congressional desire to expeditiously resolve employment
discrimination controversies and effects an impermissible preju-
dice against employers or other respondents in Title VII cases.
Section 706(f)(1) of Title VII of the Civil Rights Act of
1964, reprinted ante, p. 2 note 1 [A-3], establishes four separate
and disjunctive contingencies. If (1) a charge is dismissed by the
EEOC, or (2) the EEOC has not commenced a civil action
within 180 days of the filing of the charge,’ or (3) the Attorney
General has not instituted litigation within 180 days of the
filing of the charge in the case of governmental entities, or (4)
the EEOC has not entered into a conciliation agreement to which
the aggrieved person is a party within 180 days of the filing of
the charge, the EEOC (or the Attorney General as the case
may be) has the affirmative obligation to notify the aggrieved
person “and within ninety days after the giving of such notice a
civil action may be brought against the respondent named in
the charge * * *.” 42 U.S.C. § 2000e-5(f)(1). (Supp. III,
1973).
There is no ambiguity in this statutory language. It clearly
provides that when an aggrieved person is notified, inter alia,
that the EEOC has failed to conciliate the charge within the
' The 180-day period does not always commence with the filing
of the charge. A different time for commencement occurs if state
agencies have become involved in the dispute pursuant to 42 U.S.C.
§ 2000e-5(c), (d) (Supp. HI, 1973).
— A-21 —
180-day period, the person must institute a suit within 90 days
of notification as a jurisdictional requisite. The majority dis-
regards the clear meaning of this statute and effectively excises
that portion of § 706(f)(1) which requires notification upon
the failure to enter into a conciliation agreement. The justifica-
tion for such excision is to promote what is believed to be the
congressional intent—no notification is necessary until the
EEOC has completely exhausted the lengthy administrative proc-
ess and decided not to file suit. This approach is unwarranted
and effgcts a judicial ameudment to the statute. To do so under
the guise of discerning the congressional intent is, I believe, not
only impermissible in light of the constitutional principle of
separation of powers and of generally accepted rules of statutory
interpretation, but the result reached is erroneous.
The judiciary’s hermeneutical function is not so uninhibited
as to permit a disregard of clear statutory language to advance
what is perceived to be the unarticulated concern of Congress.
It is elementary that the meaning of a statute must, in
the first instance, be sought in the language in which the
act is framed, and if that is plain, and if the law is within
the constitutional authority of the law-making body which
passed it, the sole function of the courts is to enforce it
according to its terms. * * * Where the language is plain
and admits of no more than one meaning the duty of inter-
pretation does not arise and the rules which are to aid
doubtful meanings need no discussion.
Caminetti v. United States, 242 U.S. 470, 485 (1917). (Cita-
tions omitted. )
If a court feels compelled to resort to extrinsic material for
the purpose of gleaning the intent of the legislature, al! efforts
should be made to construe this material in a manner that will
give effect to the clear wording of the statute. My review of the
statute and its legislative history convinces me that the majority
— A-22 —
has misinterpreted the congressional intent, failed to give proper
weight to the statutory language and rewritten the statute.
The 180-day period contained in § 706(f)(1) is construed
to be a mere time limitation upon the aggrieved person's right
to demand the statutory notice required as a prerequisite to a
private suit. However, § 706(f)(1), by its language, imposes
no obligation on the aggrieved person to do anything until
notice is actually received from the EEOC. The onus of tender-
ing unsolicited notification to the aggrieved person is properly
placed with the EEOC. The statute provides that the EEOC
“shall so notify the person aggrieved” if the charge is dismissed
or, within 180 days, a civil suit has not been filed or a concilia-
tion agreement has not been negotiated. There is nothing in the
Statute to support the majority’s interpretation that the EEOC’s
duty to notify is dependent upon receiving a request from the
aggrieved party. Cf. DeMatteis v. Eastman Kodak Co., 511
F.2d 306, 310-11 & n. 6 (2d Cir. 1975); F.E.0.C. v. Kimberly-
Clark Corp., 511 F.2d 1352, 1356 (6th Cir.), cert. denied, 44
U.S.L.W. 3330 (U.S. Dec. 1, 1975).
The basic premise of the majority's holding is that the
EEOC’s mandatory and unilateral notification requirement is
invoked only when the EEOC has decided not to file suit. With
the exception that the EEOC must notify the aggrieved party
upon the dismissal of the charge, the language of § 706(f) (1)
belies the premise that the EEOC is required to issue notifica-
tion only at the conclusion of the administrative process. The
statute does not say that the EEOC must notify the aggrieved
party only if the EEOC has decided not to file suit within 180
days of filing the charge. The language provides that notification
must be given if the EEOC, or the Attorney General as the
case may be, has not actually filed suit within that 180-day
period. In this same regard, the statute provides that notice
must ensue upon the failure to enter into a proper conciliation
agreement within the 180-day period. Section 706(f)(1) is
not concerned with what decisions have yet to be made by the
nL ee eh Se AN Pc
—_—~ oe
EEOC in the lengthy administrative process. It is concerned
only with what has or has not actually occurred during the
relevant 180-day period.
It is clear that Congress expressed the hope that the offices
of the EEOC and the Attorney General would dispose of many
of the charges, either through conciliation or litigation, and that
recourse to private litigation would not be the general rule. 118
Cong. Rec. 7168 (1972). In furtherance of this policy Con-
gress in 1972 extended the investigatory and conciliatory period
immediately preceding an aggrieved person’s right to pursue
private litigation remedies. Prior to 1972 the EEOC was en-
titled to only 30 days (or 60 days in some instances) in which
voluntary compliance must be achieved. If conciliation had
failed in this short period, the aggrieved party was permitted to
institute a private lawsuit upon notification. 42 U.S.C. § 2000e-
5(e) (1970). In order to effectuate the additional adjudicatory
responsibilities vested in the EEOC and Attorney General by the
1972 amendments, Congress extended this 30-day period to 180
days.? Within this six-month period the EEOC was given an
exclusive and uninolested right to review the merits of a charge,
investigate, conciliate and assess whether court action should
be pursued by the EEOC.* There seems to be no reason why the
2 Congress was acutely aware that the short 30-day period was
creating ~f backlog of charges and rendering it difficult for the EEOC
to. process the charges and to perform its conciliatory functions.
H.R. Rep. No. 92-238, 92d Cong., Ist Sess. 3-5, 12 (1971); 1972
U.S. Code Cong. & Admin. News 2137, 2139-43 (1972). Extend-
ing this period to 180 days would permit the EEOC to more fully
investigate and to make a more informed determination as to how
to proceed with a charge. Even if a charge could not be fully proc-
essed in the six-month period, as many could not, it was hoped that
the aggrieved party would forego his private remedies and place his
primary reliance for resolution upon the conciliation and adjudicatory
authority of the EEOC. See E.E.0.C. v. Cleveland Mills Co., 502
F.2d 153, 157 (4th Cir. 1974), cert. denied, 420 U.S. 946 (1975).
* The EEOC is precluded from commencing litigation during the
30 day period immediately after the charge is filed. 42 USC.
§$ 2000e-5(f) (Supp. III, 1973).
=i
EEOC cannot simultaneously conciliate and investigate a charge
upon its filing. During this period it was hoped that the charge
would be dismissed, a civil action would be filed or conciliation
would be successful.
The 180-day period serves its apparent purpose when it
limits the time before which a private action may not be
filed and thus avoids potential interference with the Com-
mission in the performance of its primary duties of con-
ciliation and enforcement.
E.E.0.C. v. Cleveland Mills Co., 502 F.2d 153, 156 (4th Cir.
1974), cert. denied, 402 U.S. 946 (1975).
If none of these § 706(f)(1) contingencies has occurred in the
180-day period, the aggrieved party is entitled to notification
from the EEOC. Congress clearly stated that this § 706(f) (1)
notification requirement and the ensuing right of private litiga-
tion are:
designed to make sure that the person aggrieved does not
have to endure lengthy delays if the Commission or Attor-
ney General does not act with due diligence and speed.
Accordingly, the provisions * * * allow the person ag-
grieved to elect to pursue his or her own remedy under
this title in the courts where there is agency inaction, dal-
liance or dismissal of the charge, or unsatisfactory resolu-
tion.
118 Cong. Rec. 7168 (1972). (Emphasis added. )
This language indicates that notification may be required before
final agency action; in fact, it may be required when the agency
effectively has done nothing (“agency inaction”) within 180
days. The EEOC notification permits the aggrieved party to
“elect” whether to pursue his private action or seek final resolu-
tion through the EEOC.
~~
eee
ee
—_—<
The aggrieved party is not necessarily foreclosed from judicial
resolution of his claim merely because he elects not to pursue
his private litigation option. Courts have construed § 706(f) (1)
to permit the EEOC to litigate a matter after the expiration of the
180-day period. Tuft v. McDonnell Douglas Corp., supra at
1307; E.E.0.C. v. Kimberly-Clark Corp., supra at 1356.
The Conference Committee's allusions to the “individual's
election” to pursue his or her own remedy [under § 706
(f)(1)] if there are long delays in the administrative proc-
ess and to the necessity “that all avenues be left open for
quick and effective relief’ support an inference that the
individual’s right has matured. The allusions indicate that
individual standing to sue is designed to let the individual
choose between pursuing his own remedy and relying on
the representation of the Commission.
E.E.0.C. v. Cleveland Mills Co., supra at 157. (Emphasis
added. )
This interpretation of § 706(f)(1) comports generally with
the clear statutory language and the congressional intent. The
dramatic increase in charges filed and the internal procedures
of the EEOC have made it difficult for the EEOC to expeditiously
dispose of the numerous charges. These difficulties may not
have been anticipated by Congress. Despite the burden that the
above interpretation may impose upon the EEOC, I do not
believe that an unambiguous statute should be judicially modified
to permit it to fit the exigencies of an administrative agency’s
failure to expeditiously process complaints.
The judicial interpretations of § 706(f)(1) have been almost
unanimously contrary to that of the majority. In DeMatteis v.
Eastman Kodak Co., 511 F.2d 306, 310-11 (2d Cir. 1975), the
court stated:
The statute * * * provides for but one 90-day limitation
for the bringing of actions and that is in sub-section (f) (1).
—&3§—
There are described therein four sets of circumstances
which, if any one of them occurs, mandate a notification
by the Commission (or by the Attorney General, as the
case may be) to the person aggrieved; and he (or in cer-
tain situations others) may bring a civil action on the
charge against the respondent * * * “within ninety days
after the giving of such notice” by the Commission.
The DeMatteis court alsc indicated that EEOC notification is
required even absent a request from the aggrieved person.
When any of the three sets of circumstances referred to
in sub-section (f)(1) of 42 U.S.C. § 2000e-5, other than
dismissal under sub-section (b), has occurred after some
efforts at conciliation have been made, the Commission
has the statutory duty under (f)(1), on its own initiative,
to inform the aggrieved party of the status of his case in
the light of the provisions of that statutory sub-section.
511 F.2d at 310 n. 6. (Emphasis in original.)
In E.E.0.C. v. Kimberly-Clark Corp., supra at 1356, the court
noted:
In a later sentence [in § 706(f)(1)] the EEOC is required
to notify a charging party when an agreement has not
been reached 180 days after the charge’s filing, and the
private party is then authorized to sue.
In addition to the three District Court opinions under considera-
tion in the present appeal, federal district courts have con-
sistently construed § 706(f)(1) to reach a result contrary to that
reached by the majority here. Keeling v. St. Louis-San Francisco
Ry., 10 E.P.D. © 10,567 (W.D.Tenn. 1975); Bottoms v. St.
Vincents Hospital, Inc., 11 F.E.P. 392 (S.D.Ind. 1975); Brad-
shaw v. Zoological Society, 10 F.E.P. 1268 (S.D.Cal. 1975);
Barfield v. A.R.C. Security, Inc., 9 E.P.D. § 10,136 (N.D.Ga.
1975); Garner v. E. 1. duPont de Nemours & Co., Civ. No.
a ee ee en nee
— A-27 —
75-526 (D.S.C. June 11, 1975). Many courts have acknowl-
edged the Tuft decision and proceeded to disregard its interpre-
tation. Williams v. Sheraton Corp., 11 F.E.P. 897 (E.D.La.
1975); Turner v. Texas Instruments, Inc., 11 F.E.P. 748 (N.D.
Tex. 1975); Wilson v. Sharon Steel Corp., 11 F.E.P. 145 (W.D.
Pa. 1975); Mungen v. Choctaw, Inc., 10 F.E.P. 1345 (W.D.
Tenn. 1975); Kelly v. Southern Products, Civ. No. 19243 (N.D.
Ga. June 14, 1975).* The court in Taylor v. Pacific Inter-
mountain Express Co., 9 E.P.D. € 10,170 (N.D.IIl. 1975),
concluded that the failure of conciliation letter commenced the
statutory 90-day period. However, the court held that its de-
cision would not be applied to the plaintiff in that case because
of equitable considerations. Two other cases which invalidated
the EEOC’s two-letter procedure were permitted to have
prospective effect only. Stansell v. Sherwin Williams Co., 10
E.P.D. € 10,592 (N.D.Ga. 1975); Roberts v. H. W. Ivey Con-
struction Co., 10 E.P.D. € 10,588 (N.D.Ga. 1975). In my
opinion, these numerous courts have properly construed §
706(f) (1).
The majority's interpretation imposes inherent hardships upon
employers or other individuals charged with violating Title
VII. The aggrieved party is vested with sole responsibility, in
the absence of EEOC litigation, to determine when private
legal action should be instituted during the lengthy course of
administrative action. Due to the tremendous backlog of dis-
crimination cases, it is not inconceivable that final EEOC action
may not be forthcoming for years after the filing of the charge.
The employer, totally unaware as to when, if ever, a private
suit will be brought, may be severely disadvantaged when private
litigation is pursued since he may encounter difficulty in prop-
4 A limited number of courts have adopted the majority’s interpre-
tation. Williams v. Southern Union Gas Co., Nos. 75-1104, 75-1105
(10th Cir. Jan. 21, 1976); Diaz v. Food Fair Stores, 11 F.E.P. 920
(D.Col. 1975); Craig v. Eastern Airlines, 10 F.E.P. 1307 (D.Conn.
1975).
erly preparing a case and marshalling relevant evidence con-
cerning an incident occurring months or years prior to the suit.
The aggrieved party, on the other hand, is in total control of
when to file a private suit and may use the passage of time to
his advantage.
A further prejudicial aspect is that the aggrieved party may
have a pecuniary interest in delaying the private litigation for
a lengthy period of time. Since many Title VII cases encompass
alleged discriminatory practices in hiring, discharge or promo-
tion, an aggrieved party generally makes a request for a back
pay award. The Supreme Court of the United States has re-
cently liberalized the granting of back pay awards in Title VII
actions and has implied that a denial of back pay is to be the
exception, not the rule.
Given a finding of unlawful discrimination, back pay should
be denied only for reasons which, if applied generally, would
not frustrate the central statutory purposes of eradicating
discrimination throughout the economy and making per-
sons whole for injuries suffered through past discrimination.
Albermarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).
(Citation omitted. )
Rather than obligating the aggrieved party either to sue imme-
diately after the expiration of the 180-day period or to forego
such right, the majority allows him to await final agency action
and to permit the backpay award to accumulate to the prejudice
of the employer and to the benefit of the aggrieved party.° The
degree to which the majority permits prejudice is best exemplified
by the present Lacy case where the aggrieved party delayed filing
* The only statutory limitation on the awarding of back pay is
contained in 42 U.S.C. § 2000e-5(g) (Supp. III, 1973), which pro-
vides that back pay will not accrue for a period more than two years
prior to filing the charge with the EEOC. Under Tuft it may con-
tinue in the future with no definite limit, dependent only on the whim
of the EEOC and the aggrieved party.
ee ie
et ae nd EERE «ee ee
os tit te i
— A-29 —
suit for approximately 420 days after receiving EEOC notifica-
tion that conciliation efforts had failed. I perceive this to be an
impermissible vesting of unrestrained authority in the aggrieved
party and it completely circumvents the stringent time limitations
embodied in Title VII.
Based upon my conviction that the majority's disposition of
Lacy and Harris causes undue prejudice, I would affirm the
District Courts’ disposition of them.
While I concur in the majority's disposition of Whitfield, I
do so for substantially different reasons. When Whitfield re-
ceived notification from the EEOC that conciliation efforts in
his case had failed, the 90-day period commenced. Whitfield’s
failure to file suit in this period deprived the District Court of
jurisdiction in the matter.
I disagree with the majority's rationale in Whitfield since it
purports to reaffirm the alternate holding in Tuft and then pro-
ceeds to engraft an exception to it. In part IV of Tuft, 517 F.2d
at 1310, the court interpreted § 706(f)(1) to require actual
notification of right to sue and permitted an aggrieved party to
disregard a jurisdictional requisite because of reliance on er-
roneous EEOC advice.
Initially, that section is totally devoid of any language requir-
ing the EEOC to notify the aggrieved party that he has an
actual right to sue. That section merely obligates the EEOC
to notify the aggrieved party that his charge has been dismissed,
no civil action has been filed or no conciliation agreement has
® Based upon this conclusion it would be unnecessary to deter-
mine whether the earlier letter apprising Whitfield that his case had
been rejected for EEOC litigation triggered the 90-day period. While
it apparently did not reflect a complete “dismissal” of the charge
by the EEOC, it may have been sufficient EEOC notification that
the EEOC “has not filed a civil action” pursuant to § 706(f)(1),
thus triggering the 90-day period.
—_—s
been negotiated. While it may be advisable to explain to the
aggrieved party that the notification commences the 90-day
period, the statute mandates no such requirement. The Tuft
principle was extrapolated from cases discussing whether the
statutory time period commences upon mailing or whether actual
receipt of EEOC notification is required. E.G., Plunkett v. Road-
way Express, Inc., 504 F.2d 417, 418 (10th Cir., 1974);
Franks v. Bowman Transportation Co., 495 F.2d 398, 404 (Sth
Cir.), cert denied, 419 U.S. 1050 (1974). However, these
cases were inapposite to the issue raised here and in Tuft. There
was no question that the aggrieved party actually received noti-
fication from the EEOC. The question presented was what
must be contained in the notification letter. Although I believe
that § 706(f)(1) may be construed to require actual receipt of
the letter by the aggrieved party apprising him that one of the
§ 706(f)(1) contingencies has occurred, there is nothing in
the statute requiring the notification letter to inform the ag-
grieved party of his actual right to sue.
Tuft also held that an aggrieved party is permitted to sue
after the expiration of the 90-day period if he reasonably relied
upon the EEOC’s erroneous advice. This approach, in my opin-
ion, fails to account for the fundamental distinction between a
failure to comply with mere administrative rules and noncom-
pliance with jurisdictional requirements. It is clear that an
aggrieved party is not necessarily deprived of his day in court
merely because there has been a failure to adhere to a non-
jurisdictional administrative rule of the EEOC. E.E.0O.C. v.
Kimberly-Clark Corp., 511 F.2d 1352, 1360-61 (6th Cir.),
cert. denied, 44 U.S.L.W. 3330 (U.S. Dec. 1, 1975); Choate
v. Caterpillar Tractor Co., 402 F.2d 357, 359-60 (7th Cir.
1968). This general precept does not permit a waiver of juris-
dictional requirements merely because the EEOC has misadvised
the aggrieved person.
Instituting suit within 90 days of receiving proper § 706(f)
(1) notice from the EEOC is a jurisdictional requirement.
ae
ee a ee ee ke ee!
22 ~~ tales Oenne oon —
~~ As as eaon mee erate Oe ome
— A-31 —
DeMatteis v. Eastman Kodak Co., supra at 309. “The juris-
diction of the federal courts is carefully guarded against ex-
pansion by judicial interpretation or by prior action or consent
of the parties.” American Fire & Casualty Co. v. Finn, 341 U.S.
6, 17-18 (1951). Courts may not waive jurisdictional defects
merely because the EEOC, in conferring the proper statutory
notification, gave erroneous advice to the aggrieved party or fol-
lowed an improper procedure. DeMatteis v. Eastman Kodak Co.,
supra at 311; Cleveland v. Douglas Aircraft Co., 509 F.2d 1027,
1030 (9th Cir. 1975). Consequently, the erroneous EEOC
advice given to the aggrieved persons in Tuft and the present
cases regarding their right to sue would not permit the courts
to waive a jurisdictional defect. I do not believe that juris-
dictional requisites are so flexible that a court is permitted to
disregard them merely because of an administrative agency's
misinterpretation of a statute and erroneous advice. Such an
approach in this case would leave jurisdiction to the discretion
and convenience of the EEOC and explicitly sanction “a hodge-
podge of ad hoc determinations by the EEOC.” Cleveland v.
Douglas Aircraft Co., supra at 1030.
There is one clearly delineated area in which erroneous ad-
ministrative agency advice and the equities of a particular case
may permit a party to litigate despite noncompliance with juris-
dictional prerequisites. If a court concludes that an individual
has relied to his detriment on an interpretation of a statute
which has subsequently been judicially overruled or substantially
redefined, the court may weigh the equities of the situation and
allow the new decision to have prospective effect only. Chevron
Oil Co. v. Huson, 404 U.S. 97, 106-07 (1971). This principle
was invoked by the Second Circuit in DeMatteis v. Eastman
Kodak Co., supra. In its original decision in DeMatteis the
court recognized that the 90-day statutory period for private suits
commenced with notification that the charge had been dismissed;
the EEOC requirement that the aggrieved party must request
and receive a right to sue letter before the period commences
— A-32 —
was not sanctioned by the statute. DeMatteis v. Eastman Kodak
Co., supra. The court refused to adopt the position that reliance
upon the EEOC’s erroneous advice should permit the statutory
period to commence only upon receipt of the right to sue letter,
as urged by the EEOC. This would have effected an administra-
tive modification of the jurisdictional requirements contained in
the statute. Subsequently, the court realized that there had been
substantial reliance on the procedure impermissibly adopted
by the EEOC and invalidated in the original opinion. The court
therefore ruled that its previous ruling invalidating the EEOC
procedure would be applied prospectively only. DeMatteis v.
Eastman Kodak Co., 520 F.2d 409 (2d Cir. 1975).
Contrary to the majority’s assertion in the present case,
ante, p. 13-14, [A-13], I do not believe that the respective ap-
proaches taken or results reached in the Tuft and DeMatteis
cases are even remotely related. If Tuft had invalidated the EEOC
two-letter procedure as being contrary to the clear statutory lan-
guage and had concluded that its ruling was to be applied only
prospectively, it would have mirrored the approach taken in
DeMatteis and I would fully subscribe to it and its application to
the present cases. However, Tuft upheld every aspect of the
EEOC procedure; thus, there was no issue of prospectivity or
retroactivity. If the alternate holding in Tuft is that the EEOC
regulations are invalid and the decision is to be applied only
prospectively, I view that holding to be wholly inconsistent with
the initial holding in that case and to create uncertainty as to
the exact interpretation of § 706(f}(1). The majority’s disposi-
tion of the Lacy and Harris cases, however, fully dispels any
implication that Tuft invalidated the EEOC procedures in any
respect.
I am compelled to disagree with any reaffirmation of the
viability of the alternate holding in Tuft. The majority in Whit-
field has ruled that the Tuft holding is to be invoked only when
the aggrieved party has not been represented by counsel during
A te a ti LF
— A-33 —
certain relevant EEOC processes or otherwise is unable to con-
vince the court that the “equities” favor him. Ante, p. 17-18,
[A-16]. This approach, to the extent that it emphasizes the
fortuity of legal representation, may induce more inequities
than it resolves.
Since I disagree with the Tuft decision and am convinced that
it has improperly interpreted § 706(f)(1), I cannot concur in its
application to the present cases. I would affirm the decisions of
the District Courts in Lacy and Harris and would affirm that in
Whitfield on the grounds stated herein.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
—_.
APPENDIX C
Equal Employment Opportunity Commission
1015 Locust Street-—Room 917
St. Louis, Missouri 63101
July 17, 1973
Ms. Mary Lacy
7820 Trenton
St. Louis, Mo. 63130
Re: Case No: YSL3-297
Mary Lacy v. St. Louis
Parts Department
Dear Ms. Lacy:
This is to inform you that conciliation efforts in your case
have failed.
Anytime now, you may request your letter of Right to Sue.
This is done by requesting, in writing, from the District Director,
Mr. Eugene P. Keenan.
When you request your letter of Right to Sue, you have only
90 days to get a lawyer to file suit for you in Federal District
Court. It is not wise to request your Right to Sue letter until
you have obtained a lawyer who has agreed to represent you.
There are a number of St. Louis area lawyers who have ex-
perience with cases under Title VII of the Civil Rights Act of
1964, as amended. You would be wise to talk with a number
of lawyers to find out what their fees would be in your case.
If you need assistance in obtaining a lawyer or if you have any
ee
— A-35 —
questions about your legal rights, you may contact Ms. Gretchen
Huston, District Office Attorney, at 622-4126.
If there are any questions, please do not hesitate to contact me.
Sincerely yours,
Earnestine Thomas
Equal Employment Conciliator
ECT /ab
— A-36 —
APPENDIX D
Equal Employment Opportunity Commission
1015 Locust Street
St. Louis, Missouri 63101
314-622-5571
Certified Mail Return
Receipt Requested
Mary Lacy
vs
Chrysler Corporation
Notice of Right to Sue Within 90 Days
In Case No. YSL3-297 before the Equal Employment Op-
portunity Commission, United States Government.
You Are Hereby Notified That:
Whereas, This Commission has not filed a civil action with
respect to your charge as provided by Section 706 (F) (1) of
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e et seq.: and,
Whereas, this Commission has not entered into a conciliation
agreement to which you are a party;
Therefore, pursuant to 706 (F) of Title VII, you may, within
90 days of your receipt of this Notice, institute a civil action in
the United States District Court having jurisdiction over your
case.
ap eseatt: <6 Sea
— A-37 —
Should you decide to commence judicial action, you must do so
within 90 days of the receipt of this letter or you will lose your
right to sue under Title VII.
If you are not represented by counsel and you are unable to
obtain counsel the Court may, in its discretion, appoint an at-
torney to represent you.
Should you have any questions concerning your legal! rights or
have any difficulty filing your case in court, please call Ms.
Gretchen Huston of this office at 314-622-5571.
Date: August 13, 1974
Eugene P. Keenan
District Director
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.