Petition — Mohasco Corp. v. Silver

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Text

Tek. enn anme,

Boerne Court, UR)

t FILBD

' OCT 15 1979

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

NO. @ 9 . 6 ] 8

MOHASCO CORPORATION,

Petitioner,

| vs.

RALPH H. SILVER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

THOMAS MEAD SANTORO,

FRANCIS J. HOLLOWAY,

107 Columbia Street,

Albany, New York 12210,

Counsel for Petitioner.

Of Counsel:

BOUCK, HOLLOWAY & KIERNAN,

107 Columbia Street,

Albany, New York 12210.

HOWARD S. HARRIS,

57 Lyon Street,

Amsterdam, New York 12010.

teey

INDEX

Page

Sh le tev ee hake eeecseeccncs 1

eS ee ee ee 1

EEO Oe ee ee eee ee ee 2

EOS FOOT re ee PEER EREEE EEE 2

ee oe aes ce ca cctecccccens 3

Reasons for Granting the Writ:

|. The “Filing” Issue.

A Clear Division of Opinion Exists

Between the Circuit Courts of

Appeal on the Issue of When a

Charge is ‘Filed’ With the EEOC........ 7

The Decision of the Second Circuit

Court of Appeals Is Contrary to the

Prior Decisions of This Court .......... 13

The Decision of the Second Circuit

Court of Appeals Is Contrary to the

Plain Language of Section 706(c)

Ee kn sec ec cess 17

ll. The “Blacklisting’” Issue.

Conclusion

The Decision of the Second Circuit

Court of Appeals Is Contrary to Prior

Decisions of Other Circuit Courts

EE 20

The Decision of the Second Circuit

Court of Appeals Is Contrary to Prior

Decisions of This Court. .......ccccee. 26

Appendix A:

Opinion of District Court,

abc s i tcoc eee ccees Sean Al

Opinion of Court of Appeals,

duly VG, WTO sw. 0 os Nee a ee ee ad A23

Determination of New York State

Division of Human Rights,

RS SE eae A45

Determination of New York State

Human Rights Appeal Board,

December 22, 1977.........0eee eee eees Add

Deterinination of Equal Employment

Opportunity Commission,

Mo a weadewsb0evens td wes A49

Appendix B:

Section 706(c) of Title VII of

the Civil Rights Act of 1964

as amended, 42 U.S.C. § 2000e-5(c)....... A51

Section 706(e) of Title VII of

the Civil Rights Act of 1964

as amended, 42 U.S.C. § 2000e-5(e)....... A51

TABLE OF AUTHORITIES,

Cases.

Anderson v. Methodist Evangelical Hospital, Inc.,

464 F.2d 723 (6th Cir. 1972).......... 7,8,11,14,16

Davis v. Valley Distributing Company,

G22 Fide Gar (OOl CH. VOTO) cc ccc ccc cece 11-12

Doski v. M. Goldseker, 539 F.2d 1326

OPE eS eet ec tk ee ab avere bees 11

EEOC v. Bailey Co., Inc., 563 F.2d 439

(6th Cir. 1977), cert. denied,

Soe es Ae CITE ob ok cw eens 21-22, 24-25

EEOC v. General Electric Co., 532 F.2d 359

A ME ee Aa on ee a vey tne eee eh 21

EEOC v. Greyhound Lines, 411 F. Supp. 97,

SO ey ee es aia woah ee RL Ne ites la'act ene 21

EEOC v. East Hills Ford Sales, Inc.,

445 F. Supp. 985 (W.D. Pa, 1978) ...........055 21

EEOC v. New York Times Broadcasting

Service, Inc., 364 F. Supp. 651

SL ETDS Sc has G UAAA Ns 443 3 bees 000 22

Egel/ston v. State University College at Geneseo,

oe Be er de Aer, ie ee 24

Electrical Workers v. Robbins & Myers, Inc.

AAs ET LOOK 5 halons acwnsd baed a kecs 15-16

Ferguson v. Mobil Oil Corp., 443 F. Supp. 1334

| x G3 Al. NA ee ees ee 23-24

Fix v. Swinerton and Walberg Co., 320 F. Supp. 58

Se I le eos ins ec haa wa Via 22

Jenkins v. Blue Cross Mutual Hospital Ins., Inc.,

538 F.2d 164 (7th Cir. 1976) (en banc),

cert. denied, 429 U.S. 986 (1976)............... 21

Love v. Pullman Company, 404 U.S. 522 (1972) . 10, 13-14

McCraz v. Standard Oil Co. (indiana),

PO CE ee Pee ee, MOE 6 vce Ci weiek cwten 22

Moore v. Sunbeam Corporation, 459 F.2d 811

CPU, TRE sk aise a cies 7, 9-10, 12, 14, 17, 19, 25

Occidental Life Insurance Co. v. EEOC,

432 U.S. 355 (1977)...... seeececeveces 20, 26-27

Olson v. Rembrandt Printing Co., 511 F.2d 1228

(8th Cir. 1975) fen banc) ......... 00000. 7-8, 10-11

Oscar Mayer & Co. v. Evans, —_—U.S. ——,

ey Deer ee So 5200 b cle beeen eee ees 16-17

Oubichon v. North American Rockwell Corp.,

ee | 21

Pantchenko v. C. B. Dolge Company, ‘

0 Fae Wee ts Is ooh oc wcccccscene 20

Richard v. McDonnell Douglas Corp.,

469 F.2d 1249 (8th Cir. 1972)....... 7-8, 11, 14, 16

Rutherford v. American Bank of Commerce,

GSS Fide THG2 ie Civ. TOF) ok cc ibe ccces 20

Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (5th Cir. 1970)............ 21-22, 24

Shehadeh v. Chesapeake and Potomac

Telephone Co., 595 F.2d 711

GE ign eS 20, 22-23

Tipler v. E. 1. duPont de Nemours & Co.,

ES Fae Wee Pee UE, PP Ol ccc. wavs ccuneedess 21

Vigil v. American Telephone and Telegraph Co.,

455 F.2d 1222 (10th Cir. 1972)........... 7-11, 16

Weise v. Syracuse University, 522 F.2d 397

ES a a re 12, 24

Wiltshire v. Standard Oil Co. of California,

447 F. Supp. 756 (N.D. Cal. 1978)..........505. 12

Statutes.

Age Discrimination in Employment Act:

Section 14(b), 29 U.S.C. § 633(b) ........... 16-17

Title VII of the Civil Rights Act of 1964

as amended, 42 U.S.C. § 2000e et seq.

Section 706(c), 42 U.S.C. § 2000e-5(c)....... passim

Section 706(e), 42 U.S.C. § 2000e-5(e)...... passim

Regulations.

Equal Employment Opportunity Commission

Procedural Regulations, 29 C.F.R. Part 1601

Section 1601. 12(b)(1)(iv) (1975) ........... 50 eee 4

Section 1601,12(m) (1977)........ beeees teeeees 3

Section 1601.13 (1972)"...... Coe Ct sae 4

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

NO.

MOHASCO CORPORATION,

Petitioner,

vs.

RALPH H. SILVER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Mohasco Corporation (hereinafter ‘’Mo-

hasco’’) respectfully prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Second Circuit entered in this case on

July 18, 1979.

OPINIONS BELOW.

The Opinion of the District Court for the Northern

District of New York of October 17, 1978, eonting

Mohasco’s Motion for Summary Judgment, is report

unofficially at 19 FEP Cases 677 and is reproduced in

Appendix A herein (App. A1 - A22). The Opinion of the

Court of Appeals of July 18, 1979, reversing the trial

court, is unofficially reported at 20 FEP Cases 464 and

20 CCH EPD 430, 137, and is reproduced in Appendix A

herein (App. A23 - A44).

JURISDICTION.

The opinion by a divided panel of the Court of

Appeals was entered on July 18, 1979 (App. A23 - A44).

ral rie is conferred on this Court by 28 U.S.C.

8 ‘

QUESTIONS PRESENTED.

(1) (a) Whether the Court of Appeals for the Second

Circuit erred in holding that in enacting Title VII

of the Civil Rights Act of 1964 as amended, 42

U.S.C. § 2000e, et seg. (hereinafter referred to as

“Title VII"), Congress intended the word ‘‘filed’’

to mean different things in Title VII §§ 706(c)}

and (e), 42 U.S.C. §§ 2000e-5(c) and (e) (here-

inafter referred to as ““§ 706(c)”’ and “§ 706(e)”’

respectively), so that a charge is ‘‘filed’”’ on receipt

by the Equal Employment Opportunity Commis-

sion (hereinafter referred to as ‘‘EEOC’’) for pur-

oses of calculating the § 706(e) limitations period,

ut ‘‘filed’’ only after the expiration of the period

of deferral to the State agency for § 706(c) pur-

poses;

(b) If the Second Circuit did not err in so holding,

whether it erred in further holding that the charging

party may take advantage of the extended 300-day

limitations period (granted by § 706(e) to a charg-

ing party who has “initially instituted’ state pro-

ceedings) in spite of the fact that the initial ‘’filing’”’

with the EEOC preceded the institution of pro-

ceedings before the State ena so that, in effect

the charging party “initially instituted” federal

rather than state proceedings.

(2) Whether the Second Circuit erred in holding the

Respondent's allegations of ee re dis-

crimination were within the scope of a reasonable

investigation and, therefore, the district

court could consider such claims, even though the

EEOC charge specifically related only to allegations

of discrimination during the period of the Respon-

dent's cate no notice was given to Mohasco

of such allegations, and the EEOC’s determination

of no reasonable cause made no reference to such

allegations.

STATUTES INVOLVED.

This case involves the interpretation and application

of the provisions of Title VII of the Civil Rights Act of

1964 as amended, 42 U.S.C. §2000e et seg., specifically

Title Vil § 706(c), 42 U.S.C. § 2000e-5(c) and Title VII

§ 706(e), 42 U.S.C. § 2000e-5(e). These statutory pro-

visions are reproduced in full in Appendix B (App. A511 -

A52).

STATEMENT OF THE CASE.

Respondent Ralph H. Silver (hereinafter ‘‘Silver’’)

was employed by Mohasco on July 15, 1974. His employ-

ment relationship with Mohasco was terminated on

August 29, 1975. Silver submitted a letter to the EEOC,

which is shown to have been received by the EEOC on

June 15, 1976, 291 days after Silver’s termination. This

letter alleged that Silver “’. . . was both hired and fired

because of [his] religion’, and specifically detailed an

alleged plan pursuant to which he claimed Mohasco had

created the position to which he was hired asa “’.. .

[‘minority slot’] to give token compliance with job anti-

discrimination legislation. . .”’.

Because the New York State Division of Human

Rights (hereinafter ‘‘Human Rights Division’’) is (and was

at that time) a “706 Agency” under the EEOC'’s regula-

tions, 29 C.F.R. § 1601.12(m) (1977), the EEOC for-

warded Silver’s letter to the Human Rights Division by

Notice of Deferral Transmittal dated June 15, 1976.

In apparent recognition of the unambiguous language of

§ 706(c) that ‘’. . . no charge may be filed under sub-

section (b) of this section by the person aggrieved before

the expiration of sixty days after proceedings have been

commenced under the State or local law... ”, the

EEOC’s Notice of Deferral included a statement that:

“This charge is being deferred to your agency

pursuant to Section 706(c) of Title VII of the

Civil Rights Act of 1964, as amended. The

Commission wil// automatically fi/e this charge

at the end of the deferral period, unless we are

notified before the expiration of that period that

your agency has terminated its proceedings.”’

(Emphasis added.)

The Human Rights Division, by letter to Silver

dated June 18, 1976, advised Silver of its receipt of his

letter to the EEOC, and stated that:

“You are invited to visit this or any other

regional office of the Division to file a com-

plaint.”’

and that:

“It is requested that you file a complaint

with this Division within 30 days.”

On August 12, 1976, 55 days later and 349 days

after the termination of his employment with Mohasco,

Silver filed a verified complaint with the Human Rights

Division alleging essentially the same claim of employ-

ment discrimination because of his religious faith as had

been raised in his letter to the EEOC.

Sixty-six days after the EEOC mailed its ‘‘Notice

of Deferral Transmittal’ to the Human Rights Division,

the EEOC, by Notice of Charge of Employment Dis-

crimination dated August 20, 1976, notified Mohasco

that Silver had filed a charge against Mohasco alleging

employment discrimination under Title Vil. See 29

C.F.R. § 1601.13 (1972) (respondent to be served by

EEOC with copy of charge within 10 days of filing)

and § 1601.12(b)(1)(iv) (1975) (60 day deferral period

to commence upon EEOC mailing of charge to 706

Agency). That Notice showed only that Silver’s charge

related to a discharge from employment, because of

Silver's religion, on August 29, 1975. By a form letter

of the same date over the signature of Edwin C. Casler,

the Regional Director, the EEOC notified Silver that

the EEOC had sent such Notice to Mohasco.

By letter dated August 3[1], 1976 to Mr. Casler

of the EEOC, Silver stated:

“In reply to your letter dated August 20th,

| am forwarding you a copy of my letter dated

August 31 addressed to Mr. Dorman Avery of

the State Division of Human Rights.”

In this August 31 letter to the Human Rights Divi-

sion, Silver stated, among other things:

“| believe that | was given a bad reference by

Mohasco. What exactly the reference was

ought to be investigated.”

The EEOC did not notify Mohasco of its receipt of

this letter, and did nothing to indicate Silver had a’nended

his original charge or had filed a new charge.

On February 9, 1977, the Human Rights Division

issued its determination, which is reproduced in full in

Appendix A herein (A45 - A46), that there was no prob-

able cause to believe Mohasco had engaged in the unlaw-

ful discriminatory practice complained of by Silver. This

determination states, in pertinent part:

“Complainant herein alleges that he was ter-

minated from employment because of his

creed. Respondent has officers and upper/

middle management personnel of complainant's

stated religious faith. It cannot be ascertained

that complainant’s employment was terminated

for reasons other than management's judgment

that his job performance was unsatisfactory.”

(A45)

This determination was upheld by Order of the New York

State Human Rights Appeal Board on December 22,

1977, which is reproduced in full in Appendix A herein

(A47 - A48).

On August 24, 1977, the EEOC, over Mohasco’s

jurisdictional objection that Silver had failed to file a

timely charge with the EEOC, issued its “‘no reasonable

cause” determination, which is reproduced in full in

Appendix A herein (A49 - A50). This determination

states, in pertinent part:

6 ’

“Substantial weight has been accorded the

findings of the New York State Division of

Human Rights, which are attached. Having

examined the New York State Division of

Human Rights’ findings and the record pre-

sented, | conclude that there is not reasonable

cause to believe the charge is true.”’

(A49)

On the same day, the EEOC mailed to Silver notifi-

cation of his rignt to commence a civil action within

ninety days of his receipt of such notice. Ninety-one days

later, on November 23, 1977, Silver commenced this

action by filing a complaint in the United States District

Court for the Northern District of New York, citing

Title VII as the sole basis for this action.

By Memorandum-Decision and Order dated October

17, 1978, the Honorable James T, Foley, of the United

States District Court for the Northern District of New

York, granted Mohasco’s motion for summary judgment

on the grounds that Silver failed to make a timely filing

of his charge with the EEOC, and that the court therefore

lacked subject matter jurisdiction with respect to Silver's

claims against Mohasco.

Judge Foley also concluded that because Silver's

charge sent to the EEOC and forwarded to the Human

Rights Division did not allege a continuing or post-employ-

ment violation of Title VII, allegations in Silver's com-

plaint of continuing and post-employment discrimination

should be dismissed for lack of subject matter jurisdiction.

On appeal, a divided Second Circuit, on July 18,

1979, reversed the decision of the district court and held

Silver's charge was timely filed with the EEOC. In this

tt Chief Judge Kaufman, writing for the majority,

ated: : |

Chief Judge Kaufman was joined in his opinion by Judge

Oakes, Judge Meskill filed a separate opinion dissenting ir

part and concurring in part.

“We are of the view, however, that an informed

reading of Title VII, consistent with its purpose,

requires us to conclude that a charge is ’ filed ’

for purposes of § 706(e) when received, and

‘filed’ as required by § 706(c) when the

state deferral period ends.”

(A29)

Further, the Second Circuit unanimously held that

on remand the district court could properly consider

Silver's allegations of “blacklisting’’ and post-employment

discrimination. (A35-A36; A37-A38, n.2).

REASONS FOR GRANTING THE WRIT.

1. The Filing’ Issue.

A. A Clear Division of Opinion Exists Between the

Circuit Courts of Appeal on the Issue of When

a Charge is ‘’ Filed’’ With the EEOC.

Four other circuits have considered the precise time-

liness question presented by this case. One Circuit has

rendered a decision diametrically opposed to the view |

expressed by the court below. Moore v. Sunbeam Corp.,

459 F.2d 811 (7th Cir. 1972) (Stevens, J.). Three circuits

have issued decisions that support the result rendered in

the decision below. See Vigil v. American Telephone &

. Telegraph Co,, 455 F.2d 1222 (10th Cir, 1972); Anderson

v. Methodist Evangelical Hospital, Inc., 464 F.2d 723

(6th Cir. 1972); and Richard v. McDonnell Douglas Corp.,

469 F.2d 1249 (8th Cir. 1972). However, the Eighth

Circuit, sitting en banc, has since rendered an opinion

sharply retreating from its position in Aichard, supra.

Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th

Cir. 1975). These five decisions cannot be reconciled.

The Tenth Circuit, in Vigi/, supra, 455 F.2d at 1224-

25 held that: (1) the submission of a complaint to the

EEOC during the deferral period provided by § 706(b)

[now § 706(c)] fulfilled the requirement of § 706(d)

[now § 706(e)] that a charge be ‘filed’ within 210

[now 300] days of the date of the unfair employment

practice complained of, even though the EEOC could not

proceed with its investigation until after the 706 Agency

had had the complaint for 60 days; and (2) in any event,

the submission “tolled’’ the running of the 210 day

limitations period,

The Sixth and Eighth Circuits, when confronted

with similar situations, followed Vigi/, but on/y with re-

_spect to Vigil’s holding that the submission of a charge

to the EEOC before deferral to the 706 Agency ‘‘tolled”’

the running of the 210 day filing period then prescribed

by § 706(d) [now § 706(e)]. Anderson, supra, 464

F.2d at 725 (6th Cir. 1972) ("Submission of the original

charge tolled the 210 day time limit.”); Richard, supra,

469 F.2d at 1251 (8th Cir. 1972) ("’... initial receipt

of the original charges by the EEOC serves to toll the

statute of \imitations.’’).

However, an en banc Eighth Circuit, in O/son, supra,

511 F.2d at 1231-33 (8th Cir. 1975), has since sub-

stantially retreated from its decision in Richard, stating:

.. [I]t would not be in keeping with the in-

tent of Congress to allow one individual 300

days to file a charge because of the fortuitous

circumstance that the state where the claim

arose is a deferral state, when another indi-

vidual in a non-deferral state will have only

180 days in which to file. The purpose under-

lying the extended period in a deferral state is

to give the state agency an initial opportunity

to process the claim without jeopardizing the

federal right, notgto extend by 120 days the

time for assertion of this federal right.

“The extended filing period was not in-

tended as a bonus for complainants residing in

a deferral state but as a means of effecting an

accommodation between the federal riaht and

the requirement of pre-amendment § [706(b)]

of initial resort to an available state or local

agency.

“We are here concerned with amended

Title Vil. However, except for an enlargement

of time for filing a charge from 90 to 180 days

and concomitant extension of the deferral pro-

vision to 300 days, there were no substantive

changes made in § [706(d)] (renumbered

§ [706(e)]).

“Thus a charge of employment discrimi-

nation must be filed within 180 days whether or

not the complainant is in a deferral state. If in

a deferral state it must be filed with the state or

local agency within 180 days. The complainant

is then given the extended period for filing with

the EEOC to allow him to pursue his state claim

without waiving possible relief under the Federal

Act.”

(Footnote omitted.)

The Seventh Circuit, in an opinion written by then-

Judge Stevens, and closely tracked by the district court in

the instant case (although specifically rejected by the

majority in the Second Circuit decision below), has held

that a charge originally submitted to the EEOC and re-

ferred to a 706 Agency need not be resubmitted, but may

be held by the EEOC in “suspended animation’’ for the

duration of the deferral period to be automatically ‘’filed”’

with the EEOC after the expiration of that period. Moore,

supra, 459 F.2d at 826. The Moore court specifically

rejected the Vigi/ rationale. First, the Seventh Circuit

rejected Vigil’s holding that the EEOC could treat the

charge as ‘‘filed’’ when received for § 706(e) purposes,

but could defer processing the charge until the State 706

Agency had the opportunity to act required by § 70€(c).

Moore reasoned this holding in Vigi/ was inconsistent with

the language and structure of Title VII as a whole, the

legislative history, and the Supreme Court’s decision in

Love v. Pullman, 404 U.S. 522 (1972). Next, Moore re-

jected Vigil’s rationale that the submission of a charge to

the EEOC “tolled”’ the extended limitations period, hold-

ing: '

“In our view the statute provides a basic

limitations period of 90 [now 180] days, which

may be extended (or ‘tolled’) to a maximum of

210 [now 300] days. We do not think that

Congress intended a further extension (or a

second ‘tolling’) to achieve the same purpose

(time for state consideration) as the original en-

largement of the 90-day period to 210 days in

those states which have a Fair Employment

Practices Agency. If Congress had so intended,

we believe it would have included such a pro-

vision instead of the 210-day limitation. More-

over, the difficult questions of statutory con-

struction will seldom arise if the complainant’s

Original filing is within the basic 90-day period.

Although we may share the EEOC’s view that

less diligence should have been required, we

must respect the legislature’s choice of the

appropriate period of limitations, whether that

choice was made to effectuate the policies of

the Act or as an element of a compromise that

enabled it to pass.”’

(Moore, supra, 459 F.2d at 429-30.)

There are, thus, three separate views of the require-

ments of §§ 7O6(c) and (e) that have received specific

judicial sanction from Courts of Appeals. First, there is

the view espoused by the Eighth Circuit in O/son, that, to

be timely, a charge must be “’filed” either with the EEOC

or with a State or local 706 Agency within 180 days of

the alleged unlawful employment practice. Second, there

is the view adopted by the Seventh Circuit in Moore, the

district court below, and Judge Meskill in dissent from the

Second Circuit opinion below, that the requirements of

§ § 706(c) and (e) must be read literally, and that there is

but one ‘'filing’’ date. Section 706(e) provides that, in a

deferral state, a charge may not be ‘'filed’’ with the EEOC

until after the expiration of the mandatory deferral period,

while at the same time § 706(c) requires that the charge in

such a case must be ‘'filed” within 300 days of the alleged

unlawful discriminatory practice. Fina//ly, the Second Cir-

cuit (in the case below), and the Tenth (Vigi/, supra), Sixth

(Anderson, supra), and, at one time, Eighth (Richard,

supra) Circuits have held that if, in a deferral state, a

charge is received by the EEOC within 300 days of the

alleged unlawful employment practice, that charge is

timely irrespective of whether State or local 706 Agency

proceedings are instituted within that 300 day period.

This judicial confusion as to the proper interpretation

of §§ 706(c) and (e) is also reflected in many opinions

from Courts of Appeals considering related matters. For

example, in Doski v. M. Goldseker, 539 F.2d 1326 (4th

Cir. 1976), the Fourth Circuit considered a case involving a

plaintiff who first instituted timely state proceedings 281

days after the alleged unlawful discriminatory act. The

plaintiff in that case submitted a charge to the EEOC on

the same day, and 284 days after the alleged discrimi-

nation the EEOC was notifed the State 706 Agency had

terminated its proceedings. The court in Doski, in holding

the charge to have been timely filed, specifically declined

to follow O/son, saying:

"On its face [§ 706(e)] requires only that pro-

ceedings be ‘initially instituted’ with the State or

local agency. While it clearly states that unless

this procedure is followed charges must be filed

within 180 days with the EEOC, it does not on

its face require or in any way intimate that

charges with the State or local agency must be

initially instituted within 180 days.”

(Doski, supra, 539 F.2d at 1329-30. Emphasis

in original.)

~The Ninth Circuit, in Davis v. Valley Distributing

Company, 522 F.2d 827 (9th Cir. 1975), cert. denied,

429 U.S. 1090 (1977), in deciding whether the plaintiff's

submission to the EEOC was a timely ‘filing’, and with-

out citing Moore, said:

“We conclude, therefore, that the appli-

cable period for an initial filing with EEOC was

180 days ... and appellant’s complaint was

timely filed on the date when it was returned to

EEOC’s [sic] by the Arizona Commission and

formally ‘filed.’ ... ”

(Davis, supra, 522 F.2d at 832.)

Finally, it is interesting to note that the Second Cir-

cuit itself, in Weise v. Syracuse University, 522 F.2d 397,

411 (2d Cir. 1975) has stated, in dictum:

“If the alleged unlawful employment practice

occurs within a state or locality having a law

prohibiting such a practice, an aggrieved person

cannot file a charge with the EEOC until 60

days have elapsed after the commencement of

such state or local proceedings.... Resort to the

EEOC thereafter is conditioned on the filing of

charges not more than 300 days after the occur-

rence of the alleged unlawful practice or 30 days

after the termination of state or local proceed-

ings, whichever is earlier.”’

(Footnote and citation omitted.)

It is apparent that confusion concerning the proper

interpretation of §§ 706(c) and (e) is rampant, and no

clear trend in judicial thought is emerging. In fact, in con-

sidering a Title VII timeliness question similar to that

presented by this case, one judge recentiy concluded:

“The problem presented by this case has con-

fused and bedeviled the courts for a number of

years and promises to do so until either Congress

or the Supreme Court speaks.”

(Wiltshire v. Standard Oil Co. of California, 447

F. Supp. 756 (N.D. Cal. 1978).)

This case presents this Court with an opportunity to end

this confusion and to once and for all ‘’set the record

straight” as to the proper interpretation of §§ 706(c)

and (e).

B. The Decision of the Second Circuit Court of

Appeals Is Contrary to the Prior Decisions of

This Court.

The starting point for the analysis of the relevant

decisions of this Court is Love, supra. In Love, the plain-

tiff submitted a ‘letter of inquiry’’ complaining of alleged

discrimination to the EEOC prior to instituting State 706

Agency proceedings. The EEOC treated this letter as a

complaint, but pursuant to the prohibition contained in

§ 706(c) [then § 706(b)], the EEOC did not formally

file the charge at that time. Instead, the EEOC orally

notified the State 706 Agency that it had received a com-

plaint from the plaintiff. By letter to the EEOC, the State

706 Agency waived the opportunity to process the plain-

tiff’s charge. The EEOC then investigated the complaint

and issued a finding of reasonable cause, but was unable to

~~ obtain the defendant’s voluntary compliance. This Court

gave express approval to the procedure the EEOC followed

in that case, saying:

“We hold that the filing procedure fol-

lowed here fully complied with the intent of

the Act, and we thus reverse the. judgment of

the Court of Appeals. Nothing in the Act sug-

gests that the state proceedings may not be

initiated by the EEOC acting on ‘behalf of the

complainant rather than by the complainant

himself, nor is there any requirement that the

complaint to the state agency be made in writing

rather than by oral referral. Further, we cannot

agree with the respondent’s claim that the

EEOC may not properly hold a complaint in

‘suspended animation,’ automaticaily filing it —

upon termination of the state proceedings.”

(Love, supra, 404 U.S. 525-26. Emphasis added

and footnotes omitted.)

It is important to note Love did not hold the EEOC

could treat the plaintiff's charge as ‘‘filed’’ on receipt for

§ 706(e) purposes, but instead implicitly rejected such

treatment. The defendant in Love argued that the EEOC’s

holding the plaintiff's charge in abeyance pending State

agency proceedings was a nullity because the EEOC was

required to view charges as being filed with the EEOC

when they were received. in rejecting that contention,

this court held:

‘" . , the statutory prohibition of 706(b)

[now §706(c)] against filing charges that have

not been referred to a state or local authority

necessarily creates an exception to the regula-

tion requiring filing on receipt.”

(Love, supra, 404 U.S. at 526, note 5.)

This Court's rejection of the concept that a charge is

“‘filed’’ by the EEOC on receipt was expressly recognized

by Moore, supra, 459 F.2d at 824, Anderson, supra,

464 F.2d at 725, Richard, supra, 469 F.2d at 1251, and

the district court below (A16 - A17). Notwithstanding

these authorities, the Second Circuit below held:

“‘In our view, the clear import of Love is

that a charge held, like Silver’s, in ‘suspended

animation,’ is ‘filed’ under § 706(e) when the

EEOC first receives it, and not when the sixty-

day period ends. As the Love Court noted, to

construe the statute to require a second ‘filing’

after the state proceedings had concluded would

create an additional procedural obstacle without

advancing the purposes of the statute. 404 U.S.

at 526-27. We therefore hold that Silver's

charge was ‘filed’ under § 706(e) on June 15,

1976, 291 days after he was discharged and well

within the 300-day limit. In sum, we believe the

requirement in § 706(c) that no charge be

‘filed’ before the deferral period ends simply

means that the EEOC may not process a Title

Vil complaint until sixty days after it has been

deferred to a state agency.”

(A30 - A31; footnotes omitted. )

In a footnote, the court explained:

“Although there is language in Love that

can be construed as suggesting that a charge is

‘filed’ after the sixty-day period ends, see, e.g.,

404 U.S. at 526 & n.5; Moore, supra, 459 F.2d

at 824, this reading is contradicted both by the

passage cited in text and by the ‘clear import’

of the Court’s analysis. Vigil v. American Tele-

phone & Telegraph Co., 455 F.2d 1222, 1224

(10th Cir. 1972).”

(A31, n.13)

It appears that the Second Circuit below, which ignores

the clear and unambiguous wording of the statute, also

prefers the ‘clear import” of a Supreme Court decision to

the actual language of that decision.

Another decision of this Court important to the

resolution of this case is Electrical Workers v. Robbins

& Myers, Inc., 429 U.S. 229 (1976). In Electrical Workers,

a Title VII plaintiff contended that the limitations period

of § 706(d) [now § 706(e)] had been tolled by his initi-

ation of a grievance proceeding pursuant to a collective

bargaining agreement. In rejecting that contention, this

Court stated that:

ae . Congress has already spoken with

respect to what it considers acceptable delay

when it established a 90- [now 180-] day

limitations period, and gave no indication that

it considered a ‘slight’ delay followed by 90

days equally acceptable. /n defining Title VII's

jurisdictional prerequisites ‘with precision,’

[citations omitted], Congress did not leave to

courts the decision as to which delays might or

_ might not be ’slight’.””.

(Electrical Workers, supra, 429 U.S. at 240.

Emphasis added.)

In commenting upon the extended limitations period

of § 706(d) [now § 706(e)] where a claim of discrimi-

nation is commenced before a State or local agency, this

Court stated that :

“Where Congress has spoken with respect

to a claim much more closely related to the

Title Vil claim than is the contractual claim

pursued under the grievance procedure, and then

firmly limited the maximum possible extension

of the limitations period applicable thereto, we

think that all of petitioner’s arguments taken

together simply do not carry sufficient weight

to overcome the negative implications from the

language used by Congress [citation omitted] .”’

(Electrical Workers, supra, 429 U.S. at 240.

Emphasis added.)

Thus, this Court has severly limited the application

of the “‘tolling’ rationale, which was essential to the

Anderson and Richard decisions and which was one of.the

alternative bases for the Vigi/ decision, and has strongly

suggested that rationale is inapplicable to the facts pre-

sented in this case. However, the court below avoided

this issue by stating:

“We do not reach the -question, decided

affirmatively by [the Sixth, Eighth and Tenth]

circuits, whether initial receipt of the charge

by the EEOC ‘tolls’ the § 706(e) statute of

limitations. Rather, we interpret § 706(c) ina

manner consistent with the result reached in

Vigil, Anderson, and Richard. Moreover, we

note that the Tenth Circuit employed our

statutory construction as an alternative ground

in Vigil, supra, 455 F.2d at 1224.”

Finally of interest is Oscar Mayer & Co. v. Evans,

___. U.S. ___, 60 L.Ed.2d 609 (1979). Oscar Mayer dealt

with the timeliness of a charge filed under the Age Dis-

crimination in Employment Act of 1967 [ADEA”],

and held:

“ ., that § 14(b) [of the ADEA] mandates that

a grievant not bring a suit in federal court

under § 7(c) of the ADEA until he has first

resorted to appropriate state administrative

proceedings. We also hold, however, that the

grievant is not required to commence the

state proceedings within time limits specified

by state law.”

(Oscar Mayer, supra; __. U.S. at ___, 60 L. Ed.

2d at 614.)

The court below considered Oscar Mayer as supportive of

its conclusion Silver’s charge was timely filed with the

EEOC. And, while it is true that ADEA § 14(b) is pat-

terned after and is virtually in haec verba with Title VII

§ 706(c), the ADEA differs from Title VII in one impor-

tant way not considered by the court below: the ADEA

has no provision analagous to the one contained in Title

Vil § 706(e) that the extended 300 day filing period is

available on/y to an aggrieved person who has initially

instituted state proceedings. It is correct that Oscar

Mayer would support the position that the EEOC’s mail-

ing of a discrimination charge to a State 706 Agency

“commences” state proceedings for § 7O6(c) deferral

purposes (see Oscar Mayer, supra, U.S. at___, 60

L.Ed.2d at 618-19). However, assuming, arguendo, that

the Second Circuit was correct in holding that ‘filing’

means one thing in § 7O6(c) and another in § 706(e)

and that the charge was “‘filed’’ with the EEOC when

received for § 706(e) purposes, then Silver “‘initially in-

stituted” federal proceedings rather than state proceedings

and is entitled only to the 180-day filing period rather

than the 300-day period.

C. The Decision of the Second Circuit Court of

Appeals Is Contrary to the Plain Language of

Section 706(c) of Title VII.

The court below admittedly eschewed the literal

meaning of Section 706(c) in favor of what it viewed to

be the “fundamental policies embodied in Title VII’’.

(A28 - A29). As recognized by the Moore court and

Judge Meskill in dissent below, the meaning of these two

sections is clear and unambiguous. Judge Meskill dis-

senting from the decision below, explained it thus:

“Despite the much-emphasized complexity

of Title VII, there is no dispute over the literal

meaning of the two statutory provisions under

examination. Section 706(c), the deferral pro-

vision, provides that in a state that has created

an agency to hear employment discrimination

claims (a ‘deferral state’), no charge may be

filed with the EEOC until 60 days or 120 days

(depending on how long the state agency has

been in existence) after state proceedings have

been commenced, unless such state proceedings

have been earlier terminated. Section 706(e),

the limitations provision, provides that charges

must be filed with the EEOC within 180 days of

the alleged unlawful employment practice,

except that where an aggrieved party has ini-

tially instituted state proceedings, a charge

must be filed with the EEOC within 300 days

of the alleged unlawful practice. [Emphasis

added. ]

“The purposes behind these provisions are

every bit as clear as their literal meanings. In

Love v. Pullman Co., 404 U.S. 522, 526 (1972),

a unanimous Supreme Court explicitly stated

that the purpose of Title VII's deferral provision

is ‘to give state agencies a prior opportunity to

consider discrimination complaints’ while the

purpose of the limitations provision is ‘to

ensure expedition in the filing and handling of

those complaints.’ Not surprisingly, the scheme

enacted by Congress effectuates these two

different goals by imposing two different re-

quirements on those who seek to invoke the

remedial provisions of Title VII. Thus, a charge

must not be filed with the EEOC until! after the

expiration of the mandatory deferral period

(or termination of state proceedings), yet a

charge must be filed with the EEOC within

300 days of an alleged unlawful employment

practice. As a practical matter, a person who

complains to the EEOC within 180 days of an

alleged illegal employment practice can be sure

of neither tripping on the deferral threshold nor

bumping against the limitations ceiling. Regard-

less of whether the relevant state has created an

agency to which deferral is necessary, and re-

gardiess of how long any such agency has been

in existence, and regardless of how quickly any

such deferral agency terminates its proceedings,

the complaint will be timely.”

(A38 - A39)

The Moore court reached the same conclusion for the

same reason -- it is what the statute provides. Moore,

supra, 459 F.2d at 821-22.

The majority of the court below, however, preferred

the ‘‘purpose” of Title VII to its language, saying:

“Confronted with [the provisions of

§§ 706 (c) and (e)], the able district court

judge read § 706(c) literally. He reasoned that

even when a charge is received by the EEOC well

within 300 days of the alleged discrimination, it

cannot be considered ‘filed’ with that office

until sixty days after referral to the state agency.

Thus, according to Judge Foley, Silver’s charge,

albeit received by the EEOC 291 days after his

discharge, was not ‘filed’ before August 14,

1976, 352 days subsequent to the termination

of his employment. Accordingly, Judge Foley

determined that Silver was barred by the 300-

day jurisdictional prerequisite of § 706(e).

“The district court decision would, there-

fore, require a Title V!I complainant to file his

charge with the state agency within 240 days of

discharge or forfeit the opportunity to bring

his complaint before the EEOC. We are of the

view, however, that an informed reading of

Title VII, consistent with its purpose, requires

us to conclude that a charge is ‘filed’ for pur-

poses of § 706(e) when received, and ‘filed’

as required by § 706(c) when the state deferral

period ends.”

(A28 - A29; footnote omitted.)

It is respectfully submitted that where Congress has

spoken in clear and unambiguous terms, and the legis-

lative history does not provide firm evidence the statute

cannot mean what it so clearly seems to say (cf. Occidental

Life Insurance Co. v. EEOC, 432 U.S. 355, 361 (1977)),

then it is not the place of the judiciary to substitute its

judgment for that of Congress as to what the words in

question mean, and that the Second Circuit below erred

in doing just that.

It is thus clear that the Second Circuit erred in hold-

ing that a charge is ‘filed’ for § 706(e) purposes upon

receipt by the EEOC, but ‘‘filed’ for § 706(c) purposes

upon the expiration of the deferral period. Further, the

Second Circuit also erred in holding Silver's charge to have

been timely filed even though State 706 Agency proceed-

ings were not “‘initially instituted’’, and the § 706(c)

deferral period did not end, until well after the extended

300 day limitations period provided for by § 706(e).

These holdings are contrary to the plain language of the

statute, as the Second Circuit itself conceded, and are not

wh by the legislative history or prior decisions of

this Court.

ll. The “Blacklisting” Issue.

A. The Decision of the Second Circuit Court of

Appeals is Contrary to Prior Decisions of Other

Circuit Courts of Appeals.

Although this Court has never specifically considered

whether Title Vil encompasses post-employment discrimi-

nation, the Circuit Courts of Appeals which have addressed

this issue all agree that the scope of Title VII is sufficiently

broad to provide a remedy for post-employment discrimi-

nation. See Pantchenko v. C. B. Dolge Company, 581

F.2d 1052 (2d Cir. 1978) (bad references by former em-

ployer cognizable as “employment discrimination’);

Shehadeh v. Chesapeake and Potomac Telephone Co.,

595 F.2d 711 (D.C. Cir. 1978) (untrue and damaging

references by former employer cognizable as ‘“‘employment

discrimination”); Rutherford v. American Bank of Com-

merce, 565 F.2d 1162 (10th Cir. 1977) (bad references

by former employer cognizable as ‘‘retaliation” for filing

charge with EEOC).

The Courts of Appeals are also generally in agreement

that the proper scope of a Title VII charge is limited to the

ecope of the EEOC investigation reasonably expected to

grow out of the charge of discrimination. See e.g., Tip/er

v. E. |. duPont de Nemours & Co., 443 F.2d 125 (6th

Cir. 1971); Oubichon v. North American Rockwell Corp.,

482 F.2d 569 (9th Cir. 1973); Jenkins v. Blue Cross

Mutual Hospital Ins., Inc., 538 F.2d 164 (7th Cir. 1976)

(en banc), cert. denied, 429 U.S. 986 (1976); Sanchez v.

Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).

This rule is regarded as serving two purposes: (1) it per-

mits the effective functioning of Title Vil where the per-

sons filing charges are not trained legal technicians; and (2)

subsequent civil litigation is more intimately related to the

EEOC investigation than to the words of the charge that

triggered the investigation. See EEOC v. Bailey Co., Inc.,

563 F.2d 439 (6th Cir. 1977), cert. denied, 435 U.S.

915 (1978). At least one Circuit, however, has attempted

to further Title VII's goal of voluntary compliance, and to

protect the rights of the party accused of discriminatory

conduct, by limiting the scope of subsequent judicial

proceedings to the scope of any discrimination contained

in the charge or developed in the course of a reasonable

EEOC investigation, provided such discrimination was

included in the EEOC’s reasonable cause determination

and was followed by compliance with Title VII’s con

ciliation procedures. EEOC v. General Electric Co., 532

F.2d 359, 366 (4th Cir. 1976). Accord EEOC v. Grey-

hound. Lines, 411 F. Supp. 97, 100-102 (W.D. Pa, 1976);

EEOC v. East Hills Ford Sales, Inc., 445 F. Supp. 985, 987

(W.D, Pa, 1978).

it should be noted that in this case there was no

independent EEOC investigation at all, and no reference in

the EEOC’s reasonable cause determination to Silver's

“blacklisting” allegations.

The Second Circuit below, reversing the lower court,

held that the district court had jurisdiction to consider

Silver’s claims of ‘blacklisting’ and bad references on the

basis they were within the scope of a reasonable EEOC

investigation. (A35 - A36; A37 - A38). This holding

appears to ignore the undisputed facts that the EEOC

never conducted any investigation of, nor attempted to

conciliate, any aspect of Silver’s charge. Mohasco never

received any notice that Silver had attempted to place

allegations of ‘‘blacklisting’’ before the EEOC, and the

EEOC’s determination that there was no reasonable cause

to believe Silver's charges to be true did not refer to black-

listing and, in fact, referred only to the Human Rights

Division's finding of no probable cause which in turn dealt

solely with Silver’s allegations of discriminatory discharge.

The Second Circuit's decision that Silver may main-

tain his action against Mohasco with respect to his allega-

tions of post-employment discrimination contrasts sharply

with several cases where a court has not permitted a

charging party to assert in his judicial complaint a dif-

ferent basis for alleged discriminatory conduct than that

asserted before the EEOC. See EEOC v. Bailey Co., Inc.,

supra, 563 F.2d at 448-450 (allegations of religious dis-

crimination not within scope of reasonable EEOC inves-

tigation of sex discrimination charge); EEOC v. New York

Times Broadcasting Service, Inc., 364 F. Supp. 651,

653-54 (W.D. Pa. 1973) (allegations of racial discrimina-

tion not within scope of reasonable EEOC investigation

into sex discrimination charge); Fix v. Swinerton and

Walberg Co., 320 F. Supp. 58, 59 (D. Colo. 1970) (allega-

tions of religious discrimination stricken where only

allegations of national origin were disclosed to EEOC);

McCraz v. Standard Oil Co. (indiana), 76 F.R.D. 490,

497-98 (N.D. Ill. 1977) (allegations of discrimination on

basis of sex, national origin or other unspecified and

forbidden criteria stricken as not within scope of reason-

able EEOC investigation of race discrimination charge).

But see Sanchez v. Standard Brands, supra (allegations of

national origin made in amended charge related back to

original charge of sex discrimination). In this case, Silver is

not merely asserting a new motivation as the basis for

allegedly unlawful discriminatory conduct, but is aserting a

wholly different type of discrimination than anything

Mohasco ever received notice of or the EEOC considered

in its no reasonable cause determination.

As the District of Columbia Circuit in Shehadeh,

supra, concluded, allegations of disparaging references are

new and independent acts of discrimination, distinct from

an allegation of discriminatory discharge. In Shehadeh,

supra, the District of Columbia Circuit considered a Title

Vil action alleging “‘blacklisting’’ where the aggrieved

party had filed several EEOC charges, four of them specifi-

cally stating the defendant had given her a bad reference.

In considering whether these bad references were merely

a “natural outgrowth” of the original termination, the

Court said:

“Appellant alleged that pejorative refer-

ences were distributed deliberately and for

invidious reasons. Her charges reflect a con-

viction that certain critically-situated personnel

at C&P of Maryland harbor an ongoing discrimi-

natory animus toward her. And the record,

though sparse at this juncture, evinces her

attempt to establish that such personnel com-

municated with prospective employers. If, as

appellant avers, untrue and damaging accounts

of her employment qualifications were purpose-

fully circulated in consequence of her gender or

her husband’s ancestry, they were new and

independent acts of discrimination, and the

‘natural outgrowth’ of her dismissal would have

been appreciably surpassed. Though the dis-

charge and the disparaging references assertedly

may have been prompted by the same discrimi-

natory state of mind, that would not reduce

the references to mere effects of the firing.”’

(Shehadeh, supra, 595 F.2d at 719-20. Empha-

sis in the original; footnotes omitted.)

The Second Circuit below also implicitly rejected,

without citation, Ferguson v. Mobil Oil Corp., 443 F.

Supp. 1334 (S.D. N.Y. 1978). There, the plaintiff alleged

in his Title VII civil action that, following his discharge

by Mobil, he was discharged from subsequent employment

and rejected by a potential employer as the result of

information supplied by Mobil. As in this case, the plain-

tiff alleged that such acts resulted in his continuing unem-

ployment. The district court granted the defendant's

motion to dismiss the plaintiff's blacklisting allegation on

the ground that it was not included in the charge the

plaintiff had filed with the EEOC.

“ . , It is clear that this Court can take cogni-

zance of averments of discrimination which are

‘like or reasonably related to the allegations of

the charge [submitted to the EEOC] and

growing out of such allegations,’ [citations

omitted]. However, the ‘blacklisting’ claim at

issue here cannot be so construed. This claim

was never the subject of any discussion or

investigation by the EEOC or the parties before

it, demonstrating no notice thereof to the de-

fendant and no reasonable relation to the charges

investigated... .”’

(Ferguson, supra, 443 F. Supp. at 1337.)

Furthermore, in rejecting the plaintiff's contention

that the blacklisting allegation ‘‘reasonably grew out of the

fact that he was a victim of disparate treatment by Mobil”

during his employment, the Southern District viewed the

plaintiff’s alleged discriminatory discharge from employ-

ment as fundamentally different from the alleged “‘black-

listing’”’:

“. . . The ‘blacklisting’ averment involves

only that period after said employment when

the employer/employee status, and its con-

comitant rights and duties, had expired and an

entirely different legal context had arisen.

Not only do the two periods involve distinct

factual theatres, but also distinct legal obliga-

a the earlier of which was before the

(Ferguson, supra, 443 F. Supp. at 1337-38.

Emphasis in the original.)

Traditionally, the courts have interpreted Title VII's

procedural mandates with extreme liberality. See e.g.,

Egelston v. State University College at Geneseo, 535 F.2d

752 (2d Cir. 1976); Weise v. Syracuse University, supra;

Sanchez v. Standard Brands, Inc., supra. Nonetheless,

these procedures do embody Congress’ judgment as to the

due process requirements appropriate for such administra-

tive proceedings. As stated by the Sixth Circuit in FEOC

v. Bailey Co., Inc., supra, 563 F.2d at 450, a case dealing

with the proper scope of the judicial complaint in an

EEOC-initiated lawsuit:

“Finally, we believe that our position in

the present case is supported by the concern

expressed in Congress that due process safe-

guards be built into the statutory scheme of

Title Vil. Remarks of Congressman Quie,

House Debate on H.R. 1746, 92d Cong., 1st

Sess., 117 Cong.Rec. 31962 (Sept. 15, 1971);

S.Rep.No. 92-415, 92nd Cong., Ist Sess. 25

(1971). Although neither the statutory language

nor the legislative history directly address the

question before us, it is clear that the require-

mentin § 703 of Title VII, 42 U.S.C. § 2000e2,

of timely notice to an employer of a charge

filed with the EEOC alleging employment dis-

crimination embodies due process guaranties.

New Orleans Public Service, Inc. v. Brown,

369 F.Supp. 702, 710 (E.D.La.1974). If an

EEOC investigation of an employer uncovers

possible unlawful discrimination of a kind not

raised by the charging party and not affecting

that party, then the employer should be given

notice if the EEOC intends to hold the employer

accountable before the EEOC and in court.

“We are unable to accept the EEOC’s ar-

gument that it was immaterial that appellee

received notice and opportunity to comment

at the time the EEOC issued its reasonable

cause determination and during conciliation

rather than before the issuance of the reasonable

cause determination. While a court might con-

clude that the Due Process Clause of the Fifth

Amendment was not violated by the procedure

followed by the EEOC in the present case, our

concern is with the legislative judgment of due

process incorporated into the specific statutory

scheme of Title VII. Evidence of that legislative

intent indicates a concern for fair treatment of

employers.”

Where, as here, a complainant has merely forwarded

a copy of a letter to the EEOC without any indication that

it is to be viewed as a new charge or an amendment to a

prior charge (cf. Moore, supra, 459 F.2d at 822), the

EEOC does not treat such letter as a new charge or as an

amendment to a previous charge, or otherwise give notice

of its existence to the respondent, and the EEOC does not

investigate, attempt to conciliate, or include in its no

reasonable cause determination the substance of such

letter, then permitting the complainant to pursue the

claims contained in such letter would violate traditional

notions of due process and fair play.

B. The Decision of the Second Circuit Court of

Appeals is Contrary to Prior Decisions of This

Court.

This Court has had occasion to address the notice

requirements of Title Vil § 706(b). In Occidental Life

Insurance Co. v. EEOC, supra, this Court considered what

time limitation, if any, is imposed on the EEOC’s power to

bring suit against a private employer. After holding the

only statute of limitations was directed to the period

preceding the filing of an initial charge, the court said:

“‘The absence of inflexible time limita-

tions on the bringing of lawsuits will not, as

the company asserts, deprive defendants in

Title VII civil actions of fundamental fairness

or subject them to the surprise and prejudice

than can result from the prosecution of stale

claims. Unlike the litigant in a private action

who may first learn of the cause against him

upon service of the complaint, the Title VII

defendant is alerted to the possibility of an

enforcement suit within 10 days after a charge

has been filed. This prompt notice serves, as

Congress intended, to give him an opportunity

to gather and preserve evidence in anticipation

of a court action.

“Moreover, during the pendency of EEOC

administrative proceedings, a potential defend-

ant is kept informed of the progress of the

action. Regulations promulgated by the EEOC

require that the charged party be promptly noti-

fied when a determination of reasonable cause

has been made, 29 CFR § 1601.19b(b)(1976),

and when the EEOC has terminated its efforts

to conciliate a dispute, §§ 1601.23, 1601.25.”

(Occidental Life, supra, 432 U.S. at 372-73,

footnote omitted.)

In this case, Mohasco never received notice of Silver's

blacklisting claims from the EEOC. The EEOC never noti-

fied Mohasco that Silver had filed a new charge or amended

his charge, and the ‘‘no reasonable cause’”’ determination

did not make any reference to allegations of post-employ-

ment discrimination. In fact, Mohasco did not learn that

Silver had mailed to the EEOC a copy of his August 31,

1976 letter to the Human Rights Division until Mohasco

obtained a copy of the EEOC’s file in December, 1977,

long after the Human Rights Division and EEOC pro-

ceedings were concluded, and after this action was com-

menced.

Further, Silver’s letter did not definitely allege black-

listing charges but merely suggested such practices might

have taken place and suggested that the Human Rights

Division investigate them. Apparently, the EEOC did not

consider its copy of that letter to be a charge and therefore

did not institute an investigation into, or notify Mohasco

of, the allegations contained in it.

Thus, it is submitted, the Second Circuit’s decision

that Silver can nonetheless litigate his claims of post-

employment discrimination raises substantial questions

which should be considered by this Court.

CONCLUSION

For all of the foregoing reasons, we respectfully

request that a writ of certiorari be issued to review the

judgment and decision of the United States Court of

Appeals for the Second Circuit in this case.

Respectfully submitted,

THOMAS MEAD SANTORO,

FRANCIS J. HOLLOWAY,

107 Columbia Street,

Albany, New York 12210,

Counsel! for Petitioner.

Of Counsel:

BOUCK, HOLLOWAY & KIERNAN,

107 Columbia Street,

Albany, New York 12210.

HOWARD S. HARRIS,

57 Lyon Street,

Amsterdam, New York 12010

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

RALPH H. SILVER,

Plaintiff,

-against- 77-CV-472

MOHASCO CORPORATION;

EDWARD CURREN;

RAYMOND GREENHILL;

FREDERICK WOLLER;

HERBERT BROWN;

AND JAMES CULLEN

Defendants.

JAMES T. FOLEY, D. J.

MEMORANDUMN-DECISION and ORDER

This is a private ‘complaint’ suit instituted pursuant

to the Civil Rights Act of 1964, Title VII, §§ 701 et seq.,

as amended by the Equal Employment Opportunity Act of

1972, 42 U.S.C. §§ 2000e ef seq., alleging employment

discrimination on the basis of religion. See 42 U.S.C.

§ 2000e-2. Plaintiff Ralph H. Siver was employed by de-

fendant Mohasco Corporation, a New York corporation with

offices in Amsterdam, New York, on July 15, 1974, in the

capacity of Senior Marketing Economist. It is alleged that

during his employment, plaintiff was mentally abused, de-

ceived, pressured, and coerced by defendant Mohasco Cor-

poration as well as by defendants Edward Curren, Raymond

Greenhill, Frederick Woller, Herbert Brown, and James

Cullen, individually and in their capacities as officials and

employees of Mohasco Corporation, in an attempt to force

plaintiff to resign because he was of the Jewish religion.

Plaintiff alleges that the individual defendants con-

spired with each other on behalf of defendant Mohasco

Corporation to organize and implement a purposeful plan

of discrimination and harassment, referred to as the ‘‘Woller

Plan”’ in plaintiff's complaint, to be directed against persons

of minority groups and religions. More specifically, plaintiff

alleges that these defendants conspired to employ members

of minority groups and religions as token employees in an

attempt to defraud and mislead governmental agencies, the

public, and the shareholders of defendant Mohasco Corpora-

tion by making it appear that Mohasco Corporation was an

equal opportunity employer. It is alleged that this plan

called for the hiring of token employees -- to be followed by

harassment to force their resignation. Thus, plaintiff asserts

that he was both hired and fired solely because of his

religious beliefs.

Plaintiff further alleges that despite the continuing har-

assment by the defendants he refused to resign. On August

29, 1975, plaintiff was discharged by defendant Mohasco

Corporation. Plaintiff asserts that his discharge was without

warning, in spite of his efforts to perform satisfactorily, and

on account of his religious beliefs. In addition, plaintiff

alleges that since his termination of employment with

defendant Mohasco Corporation the defendants have made

false, derogatory, and malicious accusations to prospective

employers of the plaintiff when asked for a reference,

thereby causing plaintiff to remain unemployed.

On June 15, 1976, the Equal Employment Opportu-

nity Commission (“EEOC”) received a letter written by the

plaintiff org a charge of discrimination. See 29 C.F.R.

§ 1601.11(b) (1977). This letter was forwarded to the

New York State Division of Human Rights, which on

February 9, 1977, found that there was no probable cause

to believe that Mohasco Corporation had engaged in an

unlawful discriminatory practice with respect to the plain-

tiff. Subsequent to its deferral to the Division of Human

Rights, the EEOC began roan plaintiff’s charge of

discrimination. On August 24, 19/77, the EEOC ended

its investigation with a finding that there was no reasonable

cause to believe that plaintiff had been discriminated

—- and issued a notice of right to sue. Thereafter, on

ovember 23, 1977, plaintiff commenced this lawsuit.

Plaintiff seeks an injunction against the continuing

unlawful employment practices of the defendants, com-

pensatory damages against all defendants, jointly and

severally, in the sum of $100,000.00, punitive damages

— defendant Mohasco Corporation in the sum of

$1,000,000.00 and each individual defendant in the sum

of $100,000.00, and such other and further relief as the

Court deems just and ee See, e.g., Curtis v. Loether,

415 U.S. 189, 196-97 (1974); Pearson v. Western Electric

Co., 542 F.2d 1150, 1151-52 (10th Cir. 1976).

It appears that plaintiff has also commenced an action

in the courts of the State of New York for money damages

in the millions against these same defendants. That action

is apparently based on allegations of fraud, intentional

infliction of emotional harm, libel, slander, invasion of

privacy, and violation of plaintiff's civil rights. (Affidavit

of Warner M. Bouck, Exhibit 1, filed January 27, 1978).

Now before this Court is a motion to dismiss, Fed.

FR. Civ. P. 12(b), on behalf of the individual defendants

Curren, Greenhill, Woller, Brown, and Cullen on the grounds

of lack of jurisdiction over the subject matter and failure

to state a claim upon which relief can be granted. Also

before the Court is a separate motion on behalf of defend-

ant Mohasco Corporation for summary judgment, Fed. R.

Civ. P. 56, on the ground, inter alia, that this Court lacks

jurisdiction over the subject matter because plaintiff failed

to make a timely filing of his grievance with the EEOC

as required under Title VII.

The basis of the individual defendants’ motion to

dismiss is plaintiff’s failure to name them as respondents in

his charge filed with the EEOC. It is axiomatic that a

jurisdictional prerequisite to the commencement of a

“complaint” suit under Title VII is the filing of a charge

with the EEOC. This requirement not only puts the re-

spondent named in the charge on notice of the alleged

violation, but also permits the EEOC to go forward with

attempts at conciliation or voluntary compliance before

the filing of a judicial complaint. Defendants Curren,

Greenhill, Woller, Brown, and Cullen contend that plain-

tiff’s failure to name them as respondents in the proceeding

before the EEOC deprives this Court of subject-matter

jurisdiction over any claim asserted against them in this

awsuit.

It is clearly evident that plaintiff's verified complaint

filed with the New York State Division of Human Rights

named only Mohasco Corporation as a respondent. (Memo-

randum in Support of Motion to Dismiss the Complaint

by Defendants Curren, Greenhill, Woller, Brown and Cullen,

Exhibit C, filed January 27 1978). Moreover plaintiff's

Title VIl charge that was filed with the EEOC based on

plaintiff’s letter received by the EEOC on June 15, 1976,

and correspondence relating thereto not only fail to men-

tion defendants Brown and Cullen at all but characterize

only Mohasco Corporation as a respondent. (/d., Exhibits

A, B, D, F(1) & F(2)).

Title VII clearly states that, in cases dealing with

private sector employers, if the EEOC dismisses a charge

or does not enter into a conciliation agreement with the

respondent or does not file a civil action on behalf of the

charging party within a certain time period, then the EEOC

shall notify the person aggrieved that

a civil action may be brought against the re-

spondent named in the charge ... by the per-

son claiming to be aggrieved...

within hin days of the giving of such notice. 42 U.S.C.

2000e-5(f)(1) (emphasis added). It is undisputed that the

individusl defendants named in this lawsuit were not sent

notices by the EEOC with regard to plaintiff's charge of

discrimination, see 42 U.S.C. § 2000e-5(b); 29 C.F.R.

§ 1601.13 (1977), and that plaintiff's right to sue letter

named only Mohasco Corporation as a respondent, see

42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.25 (1977).

Furthermore, the record of the proceedings before the

EEOC does not show that an investigation was conducted

or that a determination was made by the EEOC with

respect to the individual defendants named in this lawsuit.

It is important to note, however, that defendants

Curren, Woller, and Greenhill are referred to in plaintiff's

letter to the EEOC that alleged a violation of his Title

VII rights. Nonetheless, in my opinion, the scant references

to these rieggrege in plaintiff's letter can be read and

viewed only as asserting that they acted in their corporate

capacities on behalf of Mohasco Corporation and in pursuit

of corporate objectives. This position is further supported

by statements found in plaintiff’s letter to the EEOC such

as “Mohasco created the economist position to give token

compliance with job anti-discrimination legislation.’’ (Mem-

orandum in Support of Motion to Dismiss the Complaint

by Defendants Curren, Greenhill, Woller, Brown and Cullen,

Exhibit A, filed January 27, 1978) (emphasis added).

Furthermore, in my judgment, a substantial identity

does not exist between defendant Mohasco Corporation and

the five individuals named as additional defendants in this

civil action to warrant an exception to the general rule

that only those parties named in the charge before the

EEOC can be brought before a federal district court in a

private ‘“‘complaint’’ action. See, e.g., Chastang v. Flynn &

Emrich Co., 365 F. Supp. 957, 964 (D. Md. 1973), afd,

541 F.2d 1040 (4th Cir. 1976).

No determination or attempts at conciliation or

voluntary compliance could have been made with respect

to these individuals in plaintiff's a eg before the

EEOC solely because of plaintiff's failure to object to the

omission of these individuals as named respondents in his

charge filed with the EEOC. See Bryant v. Western Electric

Co., 572 F.2d 1087 (5th Cir. 1978)(per curiam). Thus, in

my judgment, plaintiff’s claim against defendants Curren,

Greenhill, Woller, Brown, and Cullen must be dismissed

because plaintiff did not name these individuals as re-

spondents in his EEOC charge and because plaintiff did

not pursue administrative relief with respect to these

individuals prior to the commencement of this civil action.

See. e.g., Love v. Pullman Co., 404 U.S. 522, 523 (1972):

Beverly v. Lone Star Lead Construction Corp., 437 F.2d

1136, 1139-40 (5th Cir. 1971); Travers v. Corning Glass

Works, 76 F.R.D. 431, 432-33 (S.D.N.Y. 1977).

It is clear to my mind that the tenor of plaintiff's

charge filed with the EEOC was directed solely against his

corporate employer. Evidently, this also was the view of

the EEOC. While recognizing the liberality with which a

court must view the procedural requirements of Title VII

in favor of a charging party, e.g., Smith v. American Presi-

dent Lines, Ltd., 571 F.2d 102, 105 (2d Cir. 1978); Ege/-

ston v. State University College, 535 F.2d 752, 754-55

(2d Cir. 1976); Weise v. Syracuse University, 522 F.2d

397, 411-12 (2d Cir. 1975), | do not believe that this

“‘liberality”’ should be carried to its extreme at the expense

of the rights of an individual alleged to have violated federal

antidiscrimination laws. Such a policy, under the circum-

stances of this case, would, in my judgment, circumvent

the statutory requirements of notice and opportunity to

engage in meaningful conciliation efforts. A _ plaintiff,

especially one such as the plaintiff in this lawsuit who has

had two years of law school training and who had benefit of

the advice of counsel at some point during the pendency

of his charge before the EEOC, should not be given a

blanket reprieve from failing to abide by important statu-

tory jurisdictional requirements.

Viewing plaintiff's complaint in a light most favorable

to his position, as | must at this stage of litigation, the

conclusion is still inescapable that plaintiff’s failure to

name defendants Curren, Greenhill, Woller, Brown, and

Cullen as respondents in his Title Vil charge filed with the

EEOC was not a mere technicality but a fatal flaw war-

ranting dismissal of his claim as against these individual de-

fendants in this lawsuit on the ground of lack of juris-

diction over the subject matter. See, e.g., Saba/a v. Western

Gillette, Inc., 516 F.2d 1251, 1254 (5th Cir. 1975), vacated

& remanded on other grounds, 431 U.S. 951 (1977); Bowe

v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.

1969); Stebbins v. Nationwide Mutual Insurance Co.,

382 F.2d 267, 268 (4th Cir. 1967)(per curiam), cert.

denied, 390 U.S. 910 (1968); Plummer v. Chicago Journey-

man Plumbers’ Local 130, 452 F. Supp. 1127, 1133-35

(N.D. tli. 1978); Travers v. Corning Glass Works, supra;

Harris v. Commonwealth of Pennsylvaniz, 419 F. Supp.

10, 13 (M.D. Pa. 1976); Scott v. University of Delaware,

385 F. Supp. 937, 941-42 (D. Del. 1974).

Defendant Mohasco Corporation moves for summary

judgment and dismissal of plaintiff's complaint on the

ground, among others, that this Court lacks jurisdiction over

the subject matter because plaintiff failed to make a timely

filing of his charge with the EEOC as required under Title

Vil. Thus, the procedural history of this case is, for present

purposes, of primary importance and must be detailed.

Plaintiff's first act, with regard to his claim of dis-

crimination, was the submission of a letter to the EEOC,

which was received on June 15, 1976, 292 days after his

discharge. In general, Title Vil provides that if an alleged

unlawful employment practice occurs in a state which has

an agency that can grant relief from such a practice, a

charging party is required to first file a complaint with such

agency and can file a charge with the EEOC only after the

passage of 60 days from the commencement of proceedings

in the state agency or termination of such proceedings,

whichever is earlier. Civil Rights Act of 1964, Title VII,

§ 706(c), as amended, 42 U.S.C. § 2000e-5(c). The New

York State Division of Human Rights is such a so-called

“706 agency” under regulations promulgated by the EEOC.

29 C.F.R. § 1601.12(m)(1977). Therefore, the EEOC

immediately forwarded plaintiff's letter to the New York

State Division of Human Rights together with a notice of

deferral that stated:

This charge is being deferred to your agency

pursuant to Section 706(c) [42 U.S.C. § 2000e-

5(c)] of Title VII of the Civil Rights Act of 1964,

as amended. The Commission will automatically

file this charge at the expiration of the deferral

period, unless we are notified before the expira-

tion of that period that your agency has termi-

nated its proceedings.

(Motion for Summary Judgment, Exhibit B, filed February

14, 1978).

By letter dated June 18, 1976, the Division of Human

Rights advised the plaintiff of its receipt of his letter to the

EEOC and requested that he file a complaint with them

within 30 days. On August 12, 1976, 55 days after trans-

mittal of this letter by the Division of Human Rights,

plaintiff filed a verified complaint with the Division of

Human Rights charging that he had been discharged on

August 29, 1975, by Mohasco Corporation on account of

his religion. (Motion for Summary Judgment, Exhibit D,

filed February 14, 1978). Thereafter, on August 20, 1976,

66 days after receiving plaintiff's letter charging an unlawful

employment practice, the EEOC notified the president of

Mohasee Corporation that plaintiff had filed a charge of

employment discrimination against the corporation. (/d.,

Exhibit F). See 29 C.F.R. §§ 1601.13 (respondent to be

served by EEOC with copy of charge within 10 days of

filing) and 1601.12(b)(1) (iv) (60-day period of deferral

commences upon EEOC mailing to ‘’706 agency’’) (1977).

It should be noted that the EEOC does not appear to have

requested plaintiff to provide it with a formal and verified

Title Vil charge as required by regulation, see 29 C.F.R.

§§ 1601.8, 1601.11 (1977), but rather apparently treated

plaintiff’s letter received by the EEOC on June 15, 1976, or

possibly plaintiff's verified complaint filed with the New

York State Division of Human Rights on August 12, 1976,

as constituting plaintiff’s charge before the EEOC. See

generally Georgia Power Co. v. EEOC, 412 F.2d 462, 466

(5th Cir. 1969).

Mohasco Corporation responded to the EEOC’s notice

by raising an objection to the assumption of jurisdiction by

the EEOC. Defendant Mohasco Corporation argued that

plaintiff failed to file a charge with the EEOC within any

applicable limitations period prescribed by Title VII.

Thereafter, on February 9, 1977, the New York

State Division of Human Rights issued its determination

that [i] t cannot be ascertained that complainant's employ-

ment was terminated for reasons other than management's

judgment that his job performance was unsatisfactory”

and found that there was no probable cause to believe

that Mohasco Corporation had engaged in the unlawful

discriminatory practice complained of by the plaintiff.

(Motion for Summary Judgment, Exhibit H, filed February

14, 1978). This determination was upheld by the New York

State Human Rights Appeal Board on December 22, 1977.

(/d., Exhibit 1).

The EEOC issued its determination and provided

plaintiff with a notice of right to sue on August 24, 1977.

The determination by the EEOC states:

Respondent [Mohasco Corporation] is an em-

ployer within the meaning of Title VII and the

timeliness, deferral and all other jurisdictional

requirements have been met. . . .[However,]

there is not reasonable cause to believe the

charge is true.

(Motion for Summary Judgment, Exhibit J, filed February

14, 1978). Plaintiff commenced the present lawsuit on

November 23, 1977, 91 days after transmittal of this

determination and notice of right to sue by the EEOC.

In providing for ‘‘complaint’” suits under Title VII,

Congress evinced a preference for administrative conciliation

over litigation. See, e.g., Alexander v. Gardner-Denver Co.,

415 U.S. 36, 44 (1974). Consequently, the EEOC can bring

a civil ‘‘complaint’”’ action against a private sector employer

only after the “informal methods of conference, con-

ciliation, and persuasion” have failed. 42 U.S.C. § 2000e-5

(b). See also 42 U.S.C. § 2000e-5(f)(1). Likewise, before

a private “complaint” action can be brought to vindicate an

alleged violation of Title VII rights, the EEOC, and in many

cases a ‘706 agency”’ as well, must have had an opportunity

to investigate and rule on the merits of the charging party’s

claim. Aside from complying with the appropriate deferral

period mandated by Title VII, if applicable, a person

claiming to be aggrieved cannot commence a private ‘‘com-

plaint’” action against a private sector employer until the

EEOC has dismissed the charge or if within the passage of

180 days from the filing of the charge or within the 60-day

deferral period, whichever is later, the EEOC has not

entered into a conciliation agreement or filed a civil action

with regard to the charge, after which time the EEOC is

required to notify the charging party that a private civil

action may now be commenced. 42 U.S.C. § 2000e-5

(f) (1).

In addition to following the above-mentioned pro-

cedures, a private litigant must also abide by the statutory

time requirements prescribed by Title VII for the filing of

an unlawful employment practice charge with the EEOC.

Pursuant to Title VII:

A charge . . . shall be filed within one

hundred and eighty [180] days after the al-

leged unlawful employment practice occurred

... except that in a case of an unlawful employ-

ment practice with respect to which the person

aggrieved has initially instituted proceedings

with a [706 agency] . . . such charge shall be

filed by or on behalf of the person aggrieved

within three hundred [300] days after the

alleged unlawful ermployment practice occurred,

or within thirty [30] days after receiving notice

that the State or local agency has terminated

the proceedings under the State or local law,

whichever is earlier. . ..

42 U.S.C. § 2000e-5(e). In Title VII, however, Congress

also provided that:

In the case of an alleged unlawful employ-

ment practice occuring in a State, or political

subdivision of a State, Theving a 706 agency]...

no charge may be filed. . .by the person aggrieved

before the expiration of sixty [60] days after

proceedings have been commenced under the

State or local law, unless such proceedings have

been earlier terminated. ...

42 U.S.C. § 2000e-5(c) (emphasis added).

it is undisputed that on June 15, 1976, the day on

which the EEOC received plaintiff's letter alleging a charge

of employment discrimination, plaintiff had not com-

menced a proceeding before the New York State Division

of Human Rights. Therefore, under § 2000e-5(c), which is

applicable under the circumstances of this case along

with § 2000e-5(e)’s extended time period for filing, it

A10

would appear to be clear that plaintiff's charge could not

have been immediately filed but must have been in “‘sus-

pended animation” status until 60 days after a proceeding

was commenced before the Division of Human Rights,

but see 29 C.F.R. § 1601.12(b)(1)(iv) (60-day deferral

period commences upon EEOC mailing to ‘706 agency’’)

(1977), at which time plaintiff’s charge would have been

automatically filed by the EEOC. See Love v, Pullman

Co., supra, 404 U.S. at 526. Although the EEOC appears

to have treated its deferral to the Division of Human Rights

as commencing proceedings before that “706 agency” in

accordance with § 2000e-5(c), see Motion for Summary

Judgment, Exhibit F, filed February 14, 1978; 29 C.F.R.

§ 1601.13 (respondent to be served by EEOC with copy of

charge within 10 days of filing) (1977), in my judgment,

plaintiff's proceeding before the New York State Division

of Human Rights was not commenced until August 12,

1976, when plaintiff filed a verified complaint with that

agency. Compare 42 U.S.C. § 2000e-5(c) and Love v.

Pullman Co., supra, 404 U.S. at 525 & n.4, with N.Y.

Executive Law § 297(1) (Human Rights Law) (McKinney

1972). See Motion for Summary Judgment, at 12-16 &

Exhibits C, D & E, filed February 14, 1978.

Assuming arguendo, however, that plaintiff's pro-

ceeding under state law was commenced upon the EEOC’s

referral to the New York State Division of Human Rights

by letter of June 15, 1976, the 60-day deferral period

would have run on August 14, 1976, 52 days after the

applicable time period for filing a charge based on plaintiff's

discharge on August 29, 1975, had expired. 42 U.S.C.

§§ 2000e-5(c), 2000e-5(e). Therefore, the EEOC could

not have filed plaintiff's charge of discrimination until

after the statutory time period for the filing of such a

claim had passed.

At this point | feel | must point out what appear to

me to be anomalous procedural modes, of action within

§ 2000e-5(c) and § 2000e-5(e) of Title Vil. As noted

above, in view of the method that plaintiff utilized to bring

his claim before the EEOC, plaintiff's charge could not

have been deemed filed by the EEOC under § 2000e-5(c)

until August 14, 1976, at the earliest unless the Division

of Human Rights had terminated its proceedings in less

than 60 days. If, however, plaintiff on June 15, 1976,

went directly to the New York State Division of Human

All

Rights and instituted a proceeding before that agency and

thereafter, within the next 8 days, notified the EEOC of

his charge, then under § 2000e-5(e) his charge would have

been deemed filed on June 23, 1976, the 300th day after

his discharge, and would have been timely. This second

procedural route, however, was not followed by the plain-

tiff in this lawsuit.

Despite this anomaly | perceive of no sound reasons

for recognizing a toll of Title VII's time requirements in

this case. See Electrical Workers Local 790 v. Robbins &

Myers, Inc., 429 U.S. 229 (1976); Keyse v. California

Texas Oil Corp., 442 F. Supp. 1257, 1259 (S.D.N.Y. 1978).

Although the time requirement for the filing of a charge

with the EEOC functions as a statute of limitations, see

Occidental Life Insurance Co. v. EEOC, 432 U.S. 355,

371-72 (1977); but see Electrical Workers Local 790 v.

Robbins & Myers, Inc., supra, 429 U.S, at 240; Alexander

v. Gardner-Denver Co., supra, 415 U.S. at 47, and proce-

dural requirements in a private “‘complaint’’ action should

be viewed with liberality, e.g., Smith v. American President

Lines, Ltd., supra, 571 F.2d at 105, a toll under the circum-

stances of this case would only work to circumvent the

dictates of Title VII itself.

Plaintiff was in no way hindered from pressing his

charge of employment discrimination in any appropriate

forum, see, e.g. Alexander v. Gardner-Denver Co., supra,

415 U.S. at 47-49, and the record before the EEOC reveals

that plaintiff, who attended a law school for a period of

two years, was represented by counsel at some point during

proceedings before the EEOC and therefore, at least up

until that time, obviously had opportunities to acquire

knowledge of his rights and responsibilities under Title

Vil, see, eg., Smith v. American President Lines, Ltd.,

supra, 571 F.2d at 109-10.

In my judgment, plaintiff has not demonstrated that

the circumstances of this case would justify a toll. Com-

pare Electrical Workers Local 790 v. Robbins & Myers, Inc.,

supra, 429 U.S. at 236-40 and Smith v. American President

Lines, Ltd., supra, 571 F.2d at 108-11, with Dartt v. Shell

Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd by an

equally divided court, 434 U.S. 99 (1977) and Reeb v.

Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th

Cir. 1975). Furthermore, in my opinion, it would not be

Al2

appropriate to toll this time requirement in favor of a

plaintiff who waited 292 days from the date of the alleged

violation to notify the EEOC. See generally Olson v.

Rembrandt Printing Co., 511 F.2d 1228, 1231-33 & n.11

(8th Cir. 1975) (en banc).

Section 2000e-5(e) establishes a 180-day period of

limitations on the filing of a charge with the EEOC if such

charge arose in a state or political subdivision that does not

have a ‘’706 agency.”’ This period of limitations is extended

to 300 days if the alleged violation occurred in a state or

political subdivision that has a ‘706 agency.”” The addi-

tional 120 days are intended to compensate for the deferral

periods of Title VII and to allow a charging party addi-

tional time to pursue state-created remedies. See Moore

v. Sunbeam Corp., 459 F.2d 811, 825 n.35 (7th Cir. 1972)

(Stevens, J.). Under § 2000e-5(e), as previously noted, a

charging party could commence a proceeding before a “706

agency’’ 299 days after the alleged violation occurred and

file a charge with the EEOC on the very next day. None-

theless, under this same section, a charging party who, let

us say 100 days after the alleged violation occurred, com-

mences a proceeding before a “706 agency’ and who is

notified within 170 days that his proceeding has been

terminated by that ‘706 agency” will be required to file

his charge with the EEOC before the expiration of 300

days from the date the alleged violation occurred.

Similarly, under § 2000e-5(c), when a charging party

rotifies the EEOC of an alleged violation that occurred in

a state or political subdivision that has a ‘’706 agency”

prior to the commencement of a proceeding under state or

local law, the EEOC may not file that charge before the

expiration of 60 days after such a proceeding is commenced

unless it is earlier terminated. Therefore, a charging party

who has not first instituted a proceeding before a ‘706

agency’’ under circumstances as described above, must, un-

less the state or local proceeding is swiftly terminated,

notify the EEOC of the alleged violation at least 240 days

after the date of the alleged violation if he wishes his

charge to be timely.

Although at first glance these time periods may appear

unjust it must be remembered that such limitations are

legislative enactments not reviewable in this Court. Further-

more, it is readily observable, that, in general, the periods

eee a ae

A13

of limitation will be longer than 180 days for those indi-

viduals, like plaintiff, who have alleged a violation occurring

in a state or political subdivision that has a ““706 agency.”

Yet,

[t] here is no suggestion [in the legislative history

of Title VII] that complainants in some states

were to be allowed to proceed with less diligence

than those in other states.

Moore v. Sunbeam Corp., supra, 459 F.2d at 825 n.35.

Thus, to recognize a toll in favor of a plaintiff who waited

292 days after the alleged violation occurred to notify the

EEOC would. not, in my judgment, be in keeping with the

congressional purpose of ensuring ‘expedition in the

filing and handling’ of such cases. Love v. Pullman Co.,

supra, 404 U.S. at 526.

It has been held that the time period within which to

file a charge under Title VII does not begin to run untii the

facts that would support such a charge are or should be

apparent to a reasonably prudent individual. See Reeb v.

Economic Opportunity Atlanta, Inc., supra, 516 F.2d at

931. It should be emphasized, however, that plaintiff,

in his letter to the EEOC, stated that he ‘‘was suspicious. . .

right at the start’ of his employment with defendant

Mohasco Corporation that he might be the victim of dis-

crimination. Also, plaintiff’s complaint alleges that he was

the target of harassment and mental abuse from the first

day of his employment with defendant Mohasco Corpo-

ration. (Complaint, 4 37). Furthermore, olaintiff’s com-

plaint demonstrates that plaintiff was or should have

been aware of the essential elements of his claim of employ-

ment discrimination well within the time requirements for

filing of a charge, i.e., some eight months prior to his

sending a letter to the EEOC encompassing a charge of vio-

lation of Title VII. (See Complaint, 44 59, 60).

In addition, plaintiff's assertion in his complaint filed

on November 23, 1978, of a continuous pattern of identi-

fiable discriminatory conduct, which was not alleged in

his charge filed with the EEOC, does not, in my judgment,

work to save plaintiff's untimely charge of discriminatory

discharge. See, e.g., Smith v. American President Lines,

Ltd., supra, 571 F.2d at 105-106; Laffey v. Northwest

Airlines, Inc., 567 F.2d 429, 473-74 (D.C. Cir. 1976),

Al4

cert. denied, 434. U.S. 1086 (1978); Carter v. Delta Air

Lines, Inc., 441 F. Supp. 808, 811-12 (S.D.N.Y. 1977).

This ruling is further supported by Part II! of this memo-

randum-decision and order.

Plaintiff, however, requests this Court to rely on an

EEOC regulation and hold that his charge was timely filed.

Plaintiff cites 29 C.F.R. § 1601.12(b)(1)(v)(A) (1977)

which states:

In cases where the document is submitted

to the Commission more than 180 days from the

date of the alleged violation but within the

period of limitation of the particular 706 Agency,

the case shall be deferred pursuant to the proce-

dures set forth above: Provided, however, That

unless the Commission is earlier notified of the

termination of the State or local proceedings,

the Commission will consider the charge to be

filed with the Commission on the 300th day

following the alleged discrimination and will

commence processing the case. Where the State

or local agency terminates its proceedings prior

to the 300th day following the alleged act of

discrimination, without notification to the

Commission of such termination, the Commis-

sion will consider the charge to be filed with

the Commission on the date the person making

the charge was notified of the termination.

But see 29 C.F.R. § 1601.12(b)(1)(iii) (1977).

The period of limitation for filing a complaint with the

New York State Division of Human Rights is one year. N.Y.

Executive Law § 297(5) (McKinney Supp. 1977). There-

fore, if August 29, 1975, is taken as the date on which the

plaintiff's claim arose, then both the deferral by the EEOC

to the Division of Human Rights by letter dated June 15,

1976, and the filing of plaintiff's verified complaint with

the Division of Human Rights on August 12, 1976, were

timely. Furthermore, if 29 C.F.R. § 1601.12 (b)(1)(v)(A)

(1977) is accepted as controiling, then plaintiff's charge

must be deemed filed with the EEOC on June 23, 1976, the

300th day following the alleged violation of his Title VII

rights. Following this line of reasoning, plaintiff’s judicial

complaint, which was filed on November 23, 1977, or

A15

91 days after the EEOC’s transmittal of a notice of right to

sue to the plaintiff, would have been timely. See generally

Kirk v. Rockwell International Corp., 578 F.2d 814, 819

(9th Cir. 1978); Tavernaris v. Beaver Area School District,

454 F. Supp. 355 (W.D. Pa. 1978).

In my judgment, this regulation cannot be used to save

plaintiff’s private “complaint” suit. Initially, it should be

noted that the EEOC did not mail defendant Mohasco

Corporation notice of plaintiff’s charge within 10 days of

June 23, 1976, nor does it appear that the EEOC began

processing plaintiff's charge on June 23, 1976. In fact,

the EEOC’s notice of deferral to the ‘New York State

Division of Human Rights indicated that plaintiff's charge

would be filed at the expiration of the deferral period

unless the EEOC was notified ‘of an earlier termination

of proceedings by the Division of Human Rights. (Motion

for Summary Judgment, Exhibit B, filed February 14,

1978). Therefore, the record before the EEOC is con-

sistent only with the view that the EEOC deemed plain-

tiff’s charge to have been filed at the expiration of the 60-

day deferral period.

Although the EEOC accepted plaintiff's charge as

timely, there is nothing in the record to show the basis

for such a determination. Furthermore, it does not appear

that plaintiff relied on 29 C.F.R. § 1601.12(b)(1)(v)(A)

when he notified the EEOC of his charge of discrimination.

One thing is clear, however, and that is that this Court is

not bound to accept the EEOC’s determination in this re-

spect as binding. F.9., Weise v. Syracuse University, supra,

522 F.2d at 413; Carter v. Delta Air Lines, Inc., supra,

441 F. Supp. at 812.

Moreover, in my opinion, 29 C.F.R. § 1601.12(b)(1)

(v)(A) (1977) appears to be contrary to the plain language

of 42 U.S.C. § 2000e-5(c) which states that under circum-

stances as presented herein ‘‘no charge may be filed’ by

- the EEOC before expiration of 60 days after proceedings

have been commenced before a ‘’706 agency”’ unless such

proceedings have been earlier terminated.

It is interesting to note that this precise language of

§ 2000e-5(c) was the subject of discussion during congres-

sional debate concerning the 1972 amendments that became

the Equal Employment Opportunity Act of 1972. A

pronouncement of the managers at the conference on the

A16

bill to amend Title VII states:

The Senate amendment contained two

provisions allowing the Commission to defer to

state and local equal employment opportunity

agencies. It deleted the language of existing

law providing that no charge may be filed during

the 60-day period allowed for the deferral and

substituted a provision prohibiting the Commis-

sion from acting on such a charge until the

expiration of the 60-day period. The House

bill made no change in existing law. The Senate

receded with an amendment that would re-

state the existing law on the deferral of charges

to state agencies. The conferees left existing

law intact with the understanding that the deci-

sion in Love v. Pullman, [404 U.S. 522] (1972)

interpreting the existing law to allow the Com-

mission to receive a charge (but not act on it)

during such deferral period is controlling.

Joint Explanatory Statement of Managers at the Conference

on H.R. 1746 to Further Promote Equal Employment

Opportunities for America Workers, reprinted in U.S.

Cong. & Ad. News 2179, 2181 (1972).

It is not at all clear to me what the congressional

purpose was behind this passage. In my opinion, the

managers’ reference to Love can only be viewed as directed

toward a problem not encountered in this case. In Love v.

Pullman Co., supra, all the Supreme Court held was that

a charging party’s failure to first file with an existing ‘706

agency” is rot fatal to the subsequent prosecution of a

charge of discrimination and that the statutory require-

ment of deferral to a ‘706 agency’’ necessarily created an

exception to an EEOC regulation, 29 C.F.R. § 1601.11(b)

(1977), which provided that a charge is deemed filed upon

receipt by the EEOC. The Court merely approved of the

practice of the EEOC whereby it would hold a charge of

discrimination in ‘suspended animation” during the deferral

period and then formally or automatically file it upon

termination of the state or local proceedings. It is im-

portant to note that in Love the state proceeding was

terminated and plaintiff's charge of discrimination was

deemed filed by the EEOC at a time when the statutory

time period had not yet passed. The plaintiff in Love

Al7

had alleged a continuing violation of Title Vil and therefore

the issue before the Supreme Court concerned only whether

a second “filing’’ within the statutory time requirement

was mandated by Title VII. 1! should further note that |

find inapplicable the Supreme Court's equating of ‘‘holding

a charge in suspended animation” and “holding a charge in

abeyance” in the context of the issue before this Court.

Love v. Pullman Co., supra, 404 U.S. at 526-27 n.6. Com-

pare 42 U.S.C. § 2000e-5(c) (“no charge may be filed. . .

by the person aggrieved before the expiration of sixty

days after proceedings have been commenced under the

State or local law. . . .””) (emphasis added) with 42 U.S.C.

§ 2000e-5(d) (‘[i]m the case of any charge filed by a

member of the Commission. . .the Commission shall,

before taking any action with respect to such charge, notify

the appropriate [706 agency] .. . and, upon request,

afford them a reasonable time, but not less than sixty days

...to act.... ") (emphasis added). In my judgment, there

is a substantial difference between “‘holding a charge in

suspended animation prior to filing’ and “‘holding a charge

in abeyance prior to processing’’ when what is at issue and

is to be measured is the time period within which to file a

charge.

Although there is authority, based on an analysis of

Love, for the proposition that initial receipt by the EEOC

of a Title VII charge prior to initiation of a proceeding

before an existing “706 agency” tolls the time requirements

for the filing of a charge with the EEOC, see Richard v.

McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir. 1972);

Anderson v. Methodist Evangelical Hospital, Inc., 464

F.2d 723 (6th Cir. 1972); Vigil v. American Telephone &

Telegraph Co., 455 F.2d 1222 (10th Cir. 1972), it is not

binding on this Court and | do not find its reasoning per-

suasive. Rather, | concur in the analysis and reasoning of

Justice Stevens (then Circuit Judge) in Moore v. Sunbeam

Corp., supra, 459 F.2d at 822-26, in which the Court of

Appeals, Seventh Circuit, held that the filing date for

purposes of Title VII’s time requirements is the date of

expiration of the 60-day deferral period unless the ‘’706

agency”’ earlier terminates its proceedings. See a/so Doski v.

M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976); Olson v.

Rembrandt Printing Co., supra, 511 F.2d 1228 (8th Cir.

1975) (en banc). In addition, | believe that this reasoning

is further supported by the Supreme Court’s decision in

Electrical Workers Local 790 v. Robbins & Myers, Inc.,

supra, 429 U.S. at 236-40, wherein the Court refused to

Als

extend this limitations period beyond the limits already

established by Congress.

Therefore, while recognizing that the law in this area

seems unsettled and confused, it is my judgment that to

the extent 29 C.F.R. § 1601.12(b)(1)(v)(A) (1977) seems

contrary to the plain, although still complicated, language

of § 2000e-5(c) and § 2000e-5(e) of Title VII, | find this

reguiation to be unauthorized by the statute. If this regula-

tion is viewed as a legislative rule, in my opinion, it should

be considered invalid because it was not promulgated

pursuant to a statutory grant of power to make law, see

29 C.F.R. § 1601.12(a) (1977), authorizing the EEOC to

extend the time requirements of Title Vil. See generally

42 U.S.C. § 2000e-12(a); General Electric Co. v. Gilbert,

429 U.S. 125, 140-45 (1976); Nationa/ Nutritional Foods

Association v. Weinberger, 512 F.2d 688, 696 (2d Cir.),

cert. denied, 423 U.S. 827 (1975). In addition, if it is to

be viewed as an interpretative rule, this regulation is not

entitled to “great deference” with regard to the issue before

this Court, see Pacific Gas & Electric Co. v. Federal Power

Commission, 506 F.2d 33, 37 n.14 (D.C. Cir. 1974), and

because, in my judgment, it is in conflict with Title VII

itself, | find that this regulation does not have the force of

law and is ineffective in this situation. See Electrical

Workers Local 790 v. Robbins & Myers, Inc., supra, 429

U.S. at 240; Morton v. Ruiz, 415 U.S. 199, 237 (1974);

Moore v. Sunbeam Corp., supra, 459 F.2d at 824. More-

over, it does not appear in the record that the EEOC ever

relied on this regulation with respect to plaintiff's charge.

It is clear that Congress, in enacting Title VII, was concerned

with the expeditious filing and disposition of such cases.

E.g., 42 U.S.C. § 2000e-5(f)(5). Yet, when the EEOC was

given enforcement powers under the Equal Employment

Opportunity Act of 1972 another important change was

enlargement of the time requirements for the filing of a

charge and commencement of a judicial action by a person

claiming to be aggrieved. Pub. L. 92-261, § 4, March 24,

1972, 86 Stat. 104-105.

if the EEOC, in fact, followed the procedures advo-

cated by the plaintiff, the EEOC would have deemed

plaintiff's charge filed on the 300th day following termina-

tion of his employment, /.e., June 23, 1976, thereby ad-

ministratively reducing the 60-day deferral period mandated

A19

by § 2000e-5(c) to a total of only 8 days. This would have

been 49 days before plaintiff actually filed his verified com-

plaint with the New York State Division of Human Rights --

such filing being clearly in confiict with the deferral policy

of Title Vil. This, in my judgment, the EEOC is not em-

powered to do. It is for Congress in its wisdom to further

extend these present time requirements legislatively and not

for administrative or judicial tribunals to so rule. See

Electrical Workers Local 790 v. Robbins & Myers, Inc.,

supra, 429 U.S. at 240; DeMatteis v. Eastman Kodak Co.,

511 F.2d 306, 311 (2d Cir.), modified on rehearing, 520

F.2d 409 (2d Cir. 1975); Keyse v. California Texas Oil

Corp., supra, 442 F. Supp. at 1259.

The defendants have raised several additional issues,

one of which | believe should be addressed. Defendants

contend that because plaintiff's charge filed with the New

York State Division of Human Rights and the EEOC did not

allege a continuing violation of Title VII, the allegations in

plaintiff's judicial complaint concerning acts of continuing

and post-employment discrimination should be dismissed.

The gravamen of plaintiff's letter received by the

EEOC on June 15, 1976, is very specific in nature, stating

that plaintiff was both hired and fired because of his reli-

gion, and in my judgment does not set forth a claim of a

continuous violation. Additionally, plaintiff's verified com-

plaint filed with the New York State Division of Human

Rights is unquestionably limited to a claim of discrimina-

tory discharge. Therefore, it is clear to me that the scope

of the ensuing EEOC investigation was necessarily iimited

to the period of plaintiff’s employment with defendant

Mohasco Corporation. See Hubbard v. Rubbermaid, Inc.,

436 F. Supp. 1184, 1190-93 (D. Md. 1977).

In my judgment, plaintiff's EEOC charge can be con-

strued to allege only an isolated set of discriminatory

circumstances directed at his own employment with de-

fendant Mohasco Corporation and not a continuing wrong.

Furthermore, plaintiff's allegations of continuing violations

and post-employment discrimination in this civil action are,

in my judgment, not similar or reasonably related to the acts

or omissions alleged in his charge filed with the EEOC and

are not such as one might reasonably expect to grow out of

A20

that charge. See, e.g., Ortega v. Construction & General

Laborers’ Union, 396 F. Supp. 976, 980 (D. Conn. 1975).

This does not mean, however, that, under any set of

circumstances, plaintiff's claim of post-employment dis-

crimination in connection with statements made to pro-

spective employers would not have been cognizable in this

Court under Title VII if the proper preliminary administra-

tive procedures had been followed. 42 U.S.C. § 2000e-

3; Pantchenko v. C. B. Dolge Co.,___ F.2d —_, Slip Op.

4461 (2d Cir. August 15, 1978); Dubnick v. Firestone Tire

& Rubber Co., 355 F. Supp. 138, 140-41 (E.D.N.Y. 1973).

Title VII's statutory scheme mandates that a person

alleged to be aggrieved not bypass the administrative ma-

chinery of the EEOC by seeking initial enforcement of

Title Vil rights in the courts. If a charging party does not

utilize the administrative remedies made available by Con-

gress, then such remedies might just as well not exist and

alleged violations would be first tested in courts of law

rather than through preliminary deferment to a specialized

agency and informal methods of conciliation.

Thus, in my judgment, no circumstances have been

shown that would warrant a finding of continuing and post-

employment discrimination growing out of plaintiff's charge

filed with the EEOC. See, e.g., Ferguson v. Mobil Oil Corp.,

443 F. Supp. 1334, 1337-40 (S.D.N.Y. 1978). Therefore,

ali allegations in plaintiff's judicial complaint not contained

in his EEOC charge should be dismissed. See, e.g., United

Air Lines, Inc. v. Evans, 431 U.S. 553 (1977); Smith v.

American President Lines, Ltd., supra, 571 F.2d 106-107

n.7; Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,

398-99 (10th Cir. 1976), cert. denied, 429 U.S. 1041 (1977);

East v. Romine, Inc., 518 F.2d 332, 336-37 (5th Cir. 1975);

Aungst v. J. C. Penny Co., Civil No. 77-1287 (W.D. Pa.

August 23, 1978); Edwards v. North American Rockwell

Corp., 291 F. Supp. 199, 203-205 (C.D. Cal. 1968).

Cases such as this are not easy ones and the review that

was necessary of the voluminous submissions, statutes, and

regulations most difficult. Nonetheless, courts are increas-

ingly being called upon to decide delicate issues in this

developing field of law. Thus, in situations such as this it

A21

can readily be seen that it is desirable for litigants to utilize

effective and feasible administrative remedies, in accordance

with proper procedural requirements, prior to entering the

courthouse. Individuals claiming discrimination in employ-

ment in violation of these new laws are entitled to have their

charges expeditiously and conclusively determined. “Yet,

at the same time it is important to remember that those on

the defense side who have been alleged to have violated the

mandates of our equal employment opportunity laws, a

most serious charge, also have rights that should not be

overlooked or minimized.

Accordingly, the motion to dismiss made by defen-

dants Curren, Greenhill, Woller, Brown, and Cullen is hereby

granted on the ground of lack of jurisdiction over the subject

matter because plaintiff failed to file a Title VII charge

with the EEOC naming these individuals as respondents.

Defendant Mohasco Corporation’s motion for summary

judgment is granted and judgment shall enter in its favor

dismissing the complaint against it as a matter of law on

the ground of lack of jurisdiction over the subject matter

because of the lack of a timely filing with the EEOC. There-

fore, the complaint is dismissed in its entirety.

It is so Ordered.

Dated: October 17, 1978

Albany, New York

s/ JAMES T. FOLEY

UNITED STATES DISTRICT JUDGE

A22

A23

UNITED STATES COURT OF APPEALS

For the SECOND CIRCUIT

No. 1112 — August Term, 1978.

(Argued June 7, 1979 Decided July 18, 1979.)

Docket No. 78-7595

RALPH H. SILVER,

Plaintiff-Appellant,

-~V.—

MOHASCO CORPORATION, EDWARD CURREN,

RAYMOND GREENHILL, FREDERICK WOLLER,

HERBERT BROWN and JAMES CULLEN,

Defendants-Appellees.

Before:

KAUFMAN, Chief Judge,

OAKES and MESKILL, Circuit Judges.

Q-- —-————.

A24

KAUFMAN, Chief Judge:

In this case, in which we are called upon to interpret

Title Vil of the Civil Rights Act of 1964, 42 U.S. C.

§ 2000e, Learned Hand’s admonition is particularly appro-

priate:

There is no surer guide in the interpretation of a

statute than its purpose when that is sufficiently

disclosed; nor any surer mark of over solicitude for

the letter than to winee at carrying out that purpose

because the words used do not formally quite match

with it.

We believe that the district court failed to attach sufficient

weight to the overriding purpose of the Act.

Title VII is a statute “rife with procedural requirements

which are sufficiently labyrinthine to baffle the most expe-

rienced lawyer,” Egelston v. State University College at

Geneseo, 535 F.2d 752, 754 (2d Cir. 1976), not to mention

a layman such as the appellant Ralph H. Silver. On August

29, 1975, Silver was discharged from his position as a senior

marketing economist with appellee Mohasco Corporation.

During his thirteen-month tenure, Silver, who is of the

Jewish faith, came to believe he was the target of harass-

ment by Mohasco executives because of his religious be-

liefs.2 Silver alleged Mohasco wished to induce him to

resign, and that he was discharged when he refused to do

so.

1 Federal Deposit Insurance Corp. v. Tremaine, 133 F.2d 827,

8:30 (2d Cir. 1943).

2 We, of course, express no view on the merits of Silver’s sub-

stantive allegations of ciscrimination.

A25

Sometime after his discharge, Silver concluded that

Mohasco’s treatment of him was part of a carefully con-

ceived plan under which Jews and other minorities were

hired, harassed, and fired in a systematic fasnion. This

scheme, Silver believed, was designed to erect a facade of

equal employment opportunity at Mohasco.

Thus, on June 15, 1976, some 291 days after his dis-

charge, Silver wrote to the Buffalo office of the Equal

Employment Opportunity Commission (EEOC). In his

letter, Silver alleged that he had been hired and subse-

quently discharged because of his religion, and detailed the

substance of his charge against Mohasco. Silver concluded

by characterizing it as a ‘‘rough, incomplete and hastily

drafted compiaint.”’

Upon receiving Silver’s communication, the EEOC set

into motion the complex procedural machine established

by Title Vil. The Commission immediately forwarded

the letter to the New York State Division of Human Rights

(NYSDHR). Under §706(c) of the statute, that agency

must be given sixty days to process a charge before the

EEOC may act.? Accordingly, the EEOC advised NYSDHR

3 See Title VII of the Civil Rights Act of 1964, § 706(c), 42

U.S.C. § 2000e-5(c) [hereinafter cited as § 706(c)]:

In the case of an alleged unlawful employment practice occur-

ring in a State, or political subdivision of a State, which has a

State or local law prohibiting the unlawful employment prac-

tice alleged and establishing or authorizing a State or local

authority to grant or seek relief from such practice or to in-

stitute criminal proceedings with respect thereto upon receiv-

ing notice thereof, no charge may be filed under subsection (b)

of this section by the person aggrieved before the expiration

of sixty days after proceedings have been commenced under

the State or local law, unless such proceedings have been earlier

terminated, provided that such sixty-day period shall be ex-

tended to one hundred and twenty days during the first year

after the effective date of such State or local law. If any re-

quirement for the commencement of such proceedings is im-

posed by a State or local authority other than a requirement

of the filing of a written and signed statement of the facts

upon which the proceeding is based, the proceeding shall be

deemed to have been commenced for the purpose of this sub-

A26

that it would automatically file the charge at the expiration

of the deferral period. The EEOC formally processed

Silver’s charge on August 20, 1976.*

On August 12, Silver complied with an NYSDHR request

that he file a formal complaint.> Nineteen days later, Silver

wrote to both NYSDHR and the EEOC, detailing his sus-

picions that Mohasco had been “‘blacklisting’’ him by

supplying unfavorable references to prospective employers.

On February 9, 1977, NYSDHR, without discussing the

allegations of blacklisting, announced its conclusion that

there was not probable cause to believe Silver had been

discharged because of his religion.

At this point the proceedings shifted back to the EEOC.

That agency, which had deferred any investigation of

Silver’s claim until NYSDHR issued its findings, adopted

them as its own on August 24, 1977. Finally, in com-

pliance with another procedural mandate of Title VII, the

EEOC issued a “right to sue” letter to Silver, enabling him

to pursue his charges in federal district court.© This he did

promptly by filing his complaint on November 23, 1977.

Mohasco responded by moving for summary judgment,

which Judge Foley granted.’

section at the time such statement is sent by registered mail

to the appropriate State or local authority.

NYSDHR is the state agency established under N. Y. Exec. Law

§293 (McKinney 1972) to consider employment discrimination

claims,

4 The EEOC calculated the sixty-day deferral period as begin-

ning on June 15, 1976, the day on which the Commission re-

ferred Silver’s letter to NYSDHR. Under this view, the deferral

period ended on August 14, 1976.

5 The district court concluded that Silver’s charge was first

“filed’’ with the state agency on this date. See Si/ver v. Mohasco

Corp., No. 77-CV-472, slip op. at 11 (N.D.N.Y. Oct. 17, 1978).

We address this contention in note 10 infra.

6 See Title Vil of the Civil Rights Act of 1964, §706(f)(1), 42

U.S.C. §2000e-5(f) (1).

7 Silver’s complaint named as defendants the Mohasco Corpora-

tion and several individual Mohasco exécutives. In its answer,

filed December 29, 1977, the corporation acknowledged Silver's

A27

Silver, the judge held, had failed to file his charge with

the EEOC within 300 days of his discharge, as required by

§ 706(e) of Title VII. ® Moreover, Judge Foley concluded

that he could not consider Silver’s allegations of black-

listing because they had not been investigated by either the

EEOC or NYSDHR. We are of the view that both rulings

were erroneous.

letter to the EEOC of June 15, 1976, but asserted, as an affirm-

ative defense, that the letter was not ‘“‘filed” as a matter of law

on that date. On January 27, 1978, the individual defendants

moved to dismiss under Fed.R.Civ.P. 12(b)(6) on the ground

they did not receive proper notice of any EEOC investigation.

Shortly thereafter, on February 14, the corporate defendant

moved for summary judgment under Fed.R.Civ.P. 56, alleging

that Silver's claim was time-barred under Title VII.

The district judge granted both motions in a single opinion

filed on October 17, 1978. As to the individual defendants, we

agree with Judge Foley that, because they were not notified of

any EEOC investigation of their individual conduct, these defen-

darts could not be included in Silver’s complaint. See Travers v.

Corning Glass Works, 76 F.R.D. 431 (S.D.N.Y. 1977) (Weinfeld,

J.).

8 A charge under this section shall be filed within one hundred

and eighty days after the alleged unlawful employment prac-

tice occurred and notice of the charge (including the date,

place and circumstances of the alleged unlawful employment

practice) shall be served upon the person against whom such

charge is made within ten days thereafter, except that in a

case of an unlawful employment practice with respect to

which the person aggrieved has initially instituted proceedings

with a State or local agency with authority to grant or seek

relief from such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof, such charge

shall be filed by or on behalf of the person aggrieved within

three hundred days after the alleged unlawful employment

practice occurred, or within thirty days after receiving notice

that the State or local agency has terminated the proceedings

under the State or local law, whichever is earlier, and a copy

of such charge shall be filed by the Commission with the State

or local agency.

42U.S.C. § 2000e-5(e) [hereinafter cited as § 706(e)].

A28

The resolution of this appeal hinges on determination of

the date when a charge is considered ‘‘filed’’ with the EEOC.

This superficially simple issue is complicated by the pleth-

ora of overlapping procedural requirements that pervade

Title Vil. Nonetheless, we believe that much of this com-

plexity is overcome by fidelity to the fundamental policies

embodied in Title VII. Indeed, our approach accords with

the relevant case law, the legislative history, and the con-

sidered judgment of the EEOC.

The crucial importance of ‘’filing’’ under Title VII

stems from the mandate of § 706(e) that, when a state

has created an agency to hear employment discrimination

claims, a charge must be “‘filed’’ with the EEOC within

300 days of the alleged discrimination.2 See /nternational

Union of Electrical, Radio & Machine Workers v. Robbins

& Myers, Inc., 429 U.S. 229, 240 (1976). Unfortunately,

this requirement becomes less than clear when considered

together with § 706(c), which states that “‘no charge

may be filed’ with the EEOC, until sixty days after state

agency proceedings have commenced.

Confronted with these two provisions, the able dis-

trict court judge read § 706(c) literally. He reasoned that

even when a charge is received by the EEOC well within

300 days of the alleged discrimination, it cannot be con-

sidered ‘’filed’’ with that office until sixty days after referral

to the state agency. Thus, according to Judge Foley,

Silver’s charge, albeit received by the EEOC 291 days after

his discharge, was not “‘filed’’ before August 14, 1976, 352

days subsequent to the termination of his employment. '°

9 If, however, a state has not created such an agency, a charge

must be filed with the EEOC within 180 days after the alleged

violation, /d.

10 Because the district court concluded that the state agency pro-

ceeding did not commence until August 12, see note 5 supra, it

determined that the sixty-day deferral period could not end be-

fore October 12. Si/ver v. Mohasco Corp., No. 77-CV-472, slip

op. at 11 (N.D.N.Y. Oct. 17, 1978). We believe, however, that

the state proceedings “‘commenced” under § 706(c) on June 15,

A29

Accordingly, Judge Foley determined that Silver was barred

by the 300-day jurisdictional prerequisite of § 706(e).

The district court decision would, therefore, require

a Title VII complainant to file his charge with the state

agency within 240 days of discharge or forfeit the oppor-

tunity to bring his complaint before the EEOC. We are of

the view, however, that an informed reading of Title VII,

consistent with its purpose, requires us to conclude that a

charge is ‘filed’ for purposes of § 706(e) when received,

and ‘‘filed’’ as required by § 706 (c) when the state deferral

period ends.

In interpreting the filing provisions of Title VII, our

lodestar must be the statute’s fundamental purpose. In

view of the strong federal policy in ensuring that employ-

ment discrimination is redressed, this court has consistently

eschewed rigid construction of Title VII’s procedural

mandates. See Ege/ston, supra, 535 F.2d at 753-55; accord,

Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir.

1975); Voutsis v. Union Carbide Corp., 452 F.2d 889, 892

(2d Cir. 1971), cert. denied, 406 U.S. 918 (1972). Accord-

ingly, we have resisted any temptation to require technical

precision of Title VII plaintiffs, who often proceed without

counsel. See Oscar Mayer & Co. v. Evans, 47 U.S.L.W.

4569, 4571 (U.S. May 21, 1979) (stressing the remedial

purposes of employment discrimination statutes).''

1976, when Silver’s letter was forwarded to NYSDHR by the

EEOC. That a state law may require a formal filing becomes ir-

relevant to a determination of when the state proceeding “‘com-

mences” for purposes of the federal statute. This conclusion is

compelled by the Supreme Court’s recent decision in Oscar Mayer

& Co. v. Evans, 47 U.S.L.W. 4569, 4572 (U.S. May 21, 1979), that

a state proceeding can be ‘“‘commenced” for purposes of § 14(b) of

the Age Discrimination in Employment Act, 29 U.S.C. § 633(b),

even after the state statute of limitations has run. Moreover, the

Court concluded that this construction of § 14(b) is consistent

with interpretation of the virtually identical language of § 706(c).

See 47 U.S.L.W. at 4571.

11. The Supreme Court in Oscar Mayer cited our decision in Vout-

sis, supra, with approval. See 47 U.S.L.W. at 4571, 4572.

A30

Thus, it is the Supreme Court’s decision in Love v.

Pullman Co., 404 U.S. 522 (1972), that best illuminates

the path we travel in arriving at our decision in this case. In

Love, the Supreme Court liberally construed the filing

provision of § 706(c) and decided that a charge submitted

initially in error to the EEOC may be kept in “‘suspended

animation” by the Commission and automatically referred

to the appropriate state agency. 404 U.S. at 526. After

the sixty-day deferral period ended, the Court concluded,

the EEOC may begin its own investigation. /d. Thus, the

Court spared the unwary litigant of the obligation of

“filing’’ a second EEOC charge sixty days after the first

one was sent to the state agency, the proper recipient.

In our view, the clear import of Love is that a charge

held, like Silver's, in ‘‘suspended animation,” is ‘‘filed’’

under § 706(e) when the EEOC first receives it, and not

when the sixty-day period ends.'2 As the Love Court

12 It has been argued that if ‘‘filing’’ in § 706(c) is not inter-

preted consistently with “filing” in § 706(e) a number of anom-

alies will arise. For example, we are told that if our construction

of § 706(c) is adopted, a complainant in a state that has created

an agency to process his charge has 300 days to file with the

EEOC even if he does not file with the state first, although a com-

plainant in a state without such an agency has only 180 days. See

§ 706(e); Moore v. Sunbeam Corp., 459 F.2d 8il, 825 n.35 (7th

Cir, 1972).

Equally ‘“‘anomalous procedural modes’’ however, arise under

the district court judge’s interpretation, as he himself recognized.

Silver v. Mohasco Corp., No. 77-CV-472, slip op. at 12 (N.D.N.Y.

Oct. 17, 1978). Specifically, if NYSDHR had completed its in-

vestigation of Silver’s charge within nine days, it would have been

deemed “‘filed’’ with the EEOC on the 300th day and § 706(e)

would Pave been satisfied. Because the state agency proceeding

exceeded nine days, however, Silver was denied access to a federal

forum. Thus, a complainant's fate would rest entirely with the

state agency, a result specifically at odds with § 706(c)’s mandate

that a state’s procedural requirements ‘‘cannot foreclose federal

relief.’" Oscar Mayer & Co., supra, 47 \J.S.L.W. at 4573. Where,

as here, both constructions lead to illogical treatment of similarly

situated complainants, we prefer the interpretation that best

vindicates the statutory purpose.

A31

noted, to construe the statute to require a second “‘filing”’

after the state proceedings had concluded would create an

additional procedural obstacle without advancing the

purposes of the statute. 404 U.S. at 526-27.'° We there-

fore hold that Silver’s charge was ‘‘filed” under § 706(e) on

June 15, 1976, 291 days after he was discharged and well

within the 300-day limit.'* In sum, we believe the require-

ment in § 706(c) that no charge be “‘filed’’ before the

deferral period ends simply means that the EEOC may

not process a Title Vil complaint until sixty days after it

has been referred to a state agency.

This interpretation not only serves the concern of Title

Vil for individual rights, but also comports with the over-

arching procedural scheme embodied in the statute. There

is little doubt that § 706(c) is designed solely to provide

state agencies with an opportunity, before the federal

agency intervenes, to resolve disputes between employer

and employee. Oscar Mayer & Co., supra, 47 U.S.L.W. at

4572; accord, Love, supra, 404 U.S. at 526; Voustis, supra,

452 F.2d at 892. Viewed in this light, it is clear that,

because the charge is referred to the local agency after it

is ‘‘filed’’ with the EEOC, appropriate respect is accorded

the states. Moreover, in no sense can Title V1! defendants

be said to suffer prejudice or surprise under our reading of

§ 706(c), for the interpretation we have adopted does not

countenance the filing of stale claims. See Occidental Life

13. Although there is language in Love that can be construed as

suggesting that a charge is “‘filed’’ after the sixty-day period ends,

see, e.g., 404 U.S. at 526 & n.5; Moore, supra, 459 F.2d at 824,

this reading is contradicted both by the passage cited in text and

by the “clear import’ of the Court’s analysis, Vigi/ v. American

Telephone & Telegraph Co., 455 F.2d 1222, 1224 (10th Cir.

1972).

14 We find no merit in appellee’s contention that if a charge is

“filed’’ with the EEOC and then forwarded to a state agency, it

is not “initially instituted” with the state as required by § 706(e).

Appellee asserts that in such a situation the complainant has only

180 days to file with the EEOC. Love clearly recognizes that the

EEOC may satisfy the deferral requirements of Title VII itself by

simply notifying the state agency that a charge has been received.

See 404 U.S. at 525-26.

A32

Insurance Co. v. EEOC, 432 U.S. 355, 372 (1977); accord,

Love, supra, 404 U.S. at 526. In the instant case appellee

had ample notice of the proceedings before the state agency,

EEOC, and the district court, which occurred in the sequence

envisioned by Title VII. In such a case, we are compelled

to reaffirm our conclusion in Voutsis, supra, 452 F.2d at

892 (footnote omitted):

To place an unnecessary stumbling block in the private

litigant’s path, particularly when the national enforce-

ment agency has carried out the federal mandate of

accommodation to state action, would be hypertech-

nical and overly legalistic, and would improperly shield

a discriminatory organization from the reach of civil

litigation.

The views of three of the four circuits that have con-

sidered the precise question before us are substantially in

accord with our own. See Vigil v. American Telephone &

Telegraph Co., 455 F.2d 1222 (10th Cir. 1972); Anderson

v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6th

Cir. 1972); Richard v. McDonnell Douglas Corp., 469 F.2d

1249 (8th Cir. 1972).15 Indeed, the Vigi/ court stated that

the statutory construction we adopt today follows inex-

orably from the decision of the Supreme Court in Love.

See 455 F.2d at 1224. |

Only the Seventh Circuit has held otherwise. In Moore v.

Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972), then-judge

Stevens relied on a literal reading of the statute to prevent

the EEOC from “‘filing’’ a charge until sixty days after its

“receipt.”'® In our view, the statute’s legislative history and

15 | We do not reach the question, decided affirmatively by all three

circuits, whether initial receipt of the charge by the EEOC “tolls”

the § 706(e) statute of limitations. Rather, we interpret § 706(c)

in a manner consistent with the result reached in Vigi/, Anderson,

and Richard. Moreover, we note that the Tenth Circuit employed

our statutory construction as an alternative ground in Vigil, supra,

455 F.2d at 1224.

16 We note that the Supreme Court eschewed a literal reading of

a nearly identical provision of the Age Discrimination in Employ-

ment Act, 29 U.S.C. § 633(b), in Oscar Mayer, supra, over a dis-

sent by Justice Stevens, 47 U.S.L.W. at 4574.

A33

clearly stated remedial function foreclose this result. We,

therefore, disagree with the statutory construction adopted

by the Seventh Circuit." ”

Cc.

We note also that the legislative history of Title VII is

not silent on the question before us. Indeed, before the

statute was amended in 1972,'® the Senate passed a bill

designed to make explicit the construction we are adopting

today. See S.2515, 92d Cong., 2d Sess., 118 Cong. Rec.

289, 290 (1972).12 The House-Senate Conference Com-

mittee, however, retained the pre-1972 language because

“[n]o change in these provisions was deemed necessary in

view of the recent Supreme Court decision of Love v. Pull-

man Co.,”’ 118 Cong. Rec. 7564 (1972). Moreover, the Con-

ference Committee explicitly endorsed the decision of the

Tenth Circuit in Vigi/ and stated that ‘‘in order to protect the

aggrieved person’s right to file with the EEOC within the

time periods specified . . . , a charge filed with a State or local

agency may also be filed with the EEOC during the 60-day

17. +The reliance of Judge Meskill and the Seventh Circuit on the

“compromise which made it possible to pass the Civil Rights Act,’’

459 F.2d at 820-21, is rendered inappropriate by the clear legis-

lative history of the 1972 Amendments to the statute. See Part

11.C & note 19 infra. Because the events in Moore transpired before

these Amendments took effect, the court refused to consider their

impact. See 459 F.2d at 829-30. We are not so precluded.

18 | See Pub.L. No, 92-261, 86 Stat. 103 (1972).

19 §. 2515 would have removed any reference to ‘‘filing” in §706(c)

and would have stated instead that ‘‘the Commission shall take no

action” before the expiration of the sixty-day deferral period.

The Senate asserted that

[t]he present statute is somewhat ambiguous respecting Com-

mission action on charges filed prior to resort to the State or

local agency. The new language c/arifies the present statute by

permitting the charge to be filed but prohibiting the Commis-

sion from taking action with respect thereto until the [defer-

ral] period has elapsed.

S.Rep.No. 92-415, 92d Cong., 1st Sess. 36 (1971) (emphasis added).

A34

deferral period.” /d. It appears clear, therefore, that Con-

gress accepted our interpretation of the statute as correct.

Finally, in cases arising under Title Vil, we must accord

“considerable deference’’ to the interpretations of the

EEOC, the agency charged with administration of the

statute. Egel/ston, supra, 535 F.2d at 755, n.4; accord,

Oscar Mayer & Co., supra, 47 U.S.L.W. at 4572. The

EEOC has consistently maintained that a charge is ‘‘filed”’

on the day it is received by the federal agency, without

regard to the intervening deferral period. See 29 C.F.R.

§ 1601.12(b)(1)(v)(A) (1977).2° In its current regulations,

the EEOC clearly states that

[t]he timeliness of a charge shall be measured for

purposes of satisfying the filing requirements of

section 706(e) of Title VII by the date on which

the charge is received by the Commission. ‘29 C.F.R.

§ 1601.13(a).

20 = The regulation read as follows:

In cases where the document is submitted to the Commission

more than 180 days from the date of the alleged violation but

within the period of limitation of the particular 706 Agency,

the case shall be deferred pursuant to the procedures set forth

above: Provided, however, That unless the Commission is

earlier notified of the termination of the State or local pro-

ceedings, the Commission will consider the charge to be filed

with the commission on the 300th day following the alleged

discrimination and will commence processing the case. Where

the State or local agency terminates its proceedings prior to

the 300th day following the alleged act of discrimination,

without notification to tne Commission of such termination,

the Commission will consider the charge to be filed with the

Commission on the date the person making the charge was

notified of the termination.

The EEOC has consistently followed this administrative policy

throughout the past ten years. It has filed a brief amicus curiae

in this case, maintaining the same position.

A35

We turn now to the second issue raised on this appeal -

whether the district court can properly consider Silver’s

allegations of “blacklisting.” Judge Foley determined

that the scope of the EEOC’s inquiry was of necessity lim-

ited to the period of Silver’s employment, and that he

therefore lacked power to adjudicate charges of post-employ-

ment blacklisting. We believe, however, that Title VII

claimants should not be held to the precision of a code

pleader.

Charges of post-employment blacklisting fall within

the broad remedial scope of Title VII. Pantchenko v. C.B.

Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978). And to

furnish a remedy against discrimination in employment,

no matter what specific form the invidious practice takes,

we have embraced the same flexible approach in interpreting

Title Vil complaints that we have adopted in construing

the statute’s filing requirements. See, e.g., Weise, supra,

522 F.2d at 413;*' Noble v. University of Rochester, 535

F.2d 756, 758 (2d Cir. 1976); Egel/ston, supra, 535 F.2d

at 754-55.

We look not merely to the four corners of the often

inarticulately framed charge, but take into account the

“scope of the EEOC investigation which can reasonably

be expected to grow out of the charge of discrimination.”

Smith v. American President Lines, 571 F.2d 102, 107

n.10 (2d Cir. 1978); accord, Tipler v. E.1. duPont deNemours

& Co., 443 F.2d 125, 131 (6th Cir. 1971). Accordingly,

we have previously construed Title VII charges to include

allegations of “continuing discrimination” that occur “even

after” the complaint is filed. Nob/e, supra, 535 F.2d at 758;

21 We confronted a similar problem in Weise in which a Title VII

complainant had been deprived of a judicial forum due to the

Commission’s miscomprehension of her complaint, and because

the district court did not take her attempts at corrective measures

into account. 522 F.2d at 413. Under such circumstances, Silver,

like the complainant in Weise, deserves a judicial resolution of his

‘charges.

A36

accord, Oubichon v. North American Rockwell Corp.,

482 F.2d 569, 571 (9th Cir. 1973); Ortega v. Construction

& General Laborers’ Union, 396 F. Supp. 976, 980 (D.

Conn. 1975).2?

Under the American President Lines standard, Silver’s

allegations of blacklisting cannot be said to have caught the

EEOC by surprise. Silver alleged the existence of a com-

prehensive “‘plan’’ directed at Jewish executives. Indeed,

the EEOC, although it did not investigate Silver’s black-

listing charges, now concedes they were ‘‘reasonably related”’

to the original charge. See Brief for the Equal Employment

Opportunity Commission as Amicus Curiae, at 15-17.

Moreover, on August 31, 1976, almost a full year before

the EEOC announced its findings and only eleven days

after the agency commenced processing Silver’s charge, he

supplemented his ‘rough, incomplete and hastily drafted”

complaint by notifying both the EEOC and the state agency

of alleged blacklisting. Silver fairly presented the black-

listing charge to the Commission and he may now pursue

his allegations in the district court.

Reversed and remanded.

22 Because of our conclusion in Part || supra, we find it unneces-

sary to determine whether Silver’s allegations of blacklisting

constituted a claim of “continuing violations” for purposes of

§ 706(e). See, e.g., Wetzel v. Liberty Mutual Insurance Co.,

508 F.2d 239, 246 (3d Cir.), cert. denied, 421 U.S. 1011 (1975).

A37

MESKILL, Circuit Judge, concurring in part and dissenting

in part:

When the rights of litigants depend on the interpretation

of legislation, whatever canon of statutory construction a

party may fire at the opponent an equally authoritative but

directly contrary shot wiil undoubtedly be fired in reply."

Caught as we are in the crossfire, it is understandable that

judges sometimes wonder about the ratio of light to sound

being generated by these attempts at persuasion. This, for

me, is one of those times for wondering. If | were convinced,

as the majority apparently is, that we must choose between

interpreting the disputed statute (1) in accord with its

language and contrary to its purpose, or (2) in accord with its

purpose and contrary to its language, | too, following the

learned canon that has been handed down to us, might have

avoided over-solicitude for the letter of the statute and

might have joined, without wincing, in carrying out its pur-

pose. But we are not in such a predicament here. The

majority has made a choice between two alternatives neither

of which is presented by this case. Because both parties

claim to have interpreted subsections 706(c) and 706(e)

of Title VII in accordance with the purposes of Congress, our

task is not to choose between effectuating or frustrating the

purposes of Congress, but rather to determine which of the

proferred interpretations in fact captures the purposes behind

the words. Believing that in this case the purposes of Con-

gress are furthered by a literal reading of these provisions, |

respectfully dissent from part I! of today’s decision.”

1 See generally K. Llewellyn, The Common Law Tradition: De-

ciding Appeals at 521-535 (1960).

2 | concur in the majority’s affirmance of Judge Foley’s order

dismissing appellant’s complaint as to the individual defendants.

See majority’s footnote 7, supra.

| also agree with part II! of the majority opinion which states

that the scope of the EEOC investigation which could reasonably

have been expected to grow out of Silver’s charge was sufficiently

broad to encompass his allegation of blacklisting. EEOC regula-

tions provide for the amendment of a charge to include additional

unlawful practices “related to or growing out of the subject matter

of the original charge.” See 29 C.F.R. $1601.12(b) (1978); see

also 29 C.F.R. § 1601.11(b) (1976). In August of 1976, two

months after first contacting the EEOC, Silver sent to the district

A38

Despite the much-emphasized complexity of Title VII,

there is no dispute over the literal meaning of the two

statutory provisions under examination. Section 706(c),

the deferral provision, provides that in a state that has

created an agency to hear employment discrimination

claims (a ‘‘deferral state’’), no charge may be filed with the

EEOC until 60 days or 120 days (depending on how long

the state agency has been in existence) after state pro-

ceedings have been commenced, unless such state pro-

ceedings have been earlier terminated. Section 706(e),

the limitations provision, provides that charges must be

filed with the EEOC within 180 days of the alleged un-

lawful employment practice, except that where an ag-

grieved party has initially instituted state proceedings, a

charge must be filed with the EEOC within 300 days of

the aileged unlawful practice.

The purposes behind these provisions are every bit as

clear as their literal meanings. In Love v. Pullman Co.,

404 U.S. 522, 526 (1972), a unanimous Supreme Court

explicitly stated that the purpose of Title VII's deferral

provision is “to give state agencies a prior opportunity

to consider discrimination complaints’ while the purpose

director a letter clearly charging Mohasco with circulating bad

references. | agree with the position taken by amicus EEOC on

appeal; whether viewed as an amendment to the earlier charge or

as a new charge, this letter was sufficient to notify the EEOC

that an investigation of blacklisting was called for. The EEOC’s

failure to investigate this aspect of Silver’s complaint should not

foreclose his access to a court hearing. To earn the right to sue,

a Title Vil complainant need only seek, in an appropriate manner,

administrative relief. Failure to obtain relief at the administrative

level is what prompts, rather than forecloses, the search for judi-

cial relief,

Therefore, | would remand the case to the district court for a

hearing on the blacklisting claims, which appear from the record

to have been promptly filed with the EEOC. In addition, | would

instruct the district court to reconsider, in light of our disposition

on the blacklisting issue, whether there has been any assertion of a

continuous pattern of discrimination that would work to save

Silver's charge of discriminatory discharge despite what | view as his

failure to make a timely filing with the EEOC as to the discharge

complaint. See Smith v. American President Lines, Ltd., 571

F.2d 102, 105-106 & nn. 5-6 (2d Cir. 1978).

A39

of the limitations provision is ‘‘to. ensure expedition in the

filing and handling of those complaints.” Not surprisingly,

the scheme enacted by Congress effectuates these two

different goals by imposing two different requirements on

those who seek to invoke the remedial provisions of Title

Vil. Thus, a charge must not be filed with the EEOC until

after the expiration of the mandatory deferral period (or

termination of state proceedings), yet a charge must be

filed with the EEOC within 300 days of an alleged unlawful

employment practice. As a practical matter, a person who

complains to the EEOC within 180 cays of an alleged

illegal employment practice can be sure of neither tripping

on the deferral threshold nor bumping against the limita-

tions ceiling. Regardless of whether the relevant state has

created an agency to which deferral is necessary, and re-

gardiess of how long any such agency has been in existence,

and regardless of how quickly any such deferral agency

terminates its proceedings, the complaint will be timely.

The majority’s refusal to read the statute as written

interferes significantly with the congressional decision to

require prompt action on the part of Title VII plaintiffs.

The legislative history of the predecessor of § 706(e)

makes clear that the section contains two different limita-

tions periods not to reward persons in deferral states, but

rather to ensure that they are not penalized for having to

comply with the statute’s deferral requirements.

As originally enacted in 1964, Title VII required extraor-

dinary diligence on the part of complainants. The original

limitations provision (then labelled section 706(d)), like

present section 706(e), contained two different limitations

periods. The statute provided for a basic 90 day filing

period and a 210 day period --the latter to apply to cases

where state procedures were followed. Looking at the

legislative history of this original limitations section, in

Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972),

Justice (then Judge) Stevens concluded:

The legislative history as a whole indicates a basic

purpose to require the complainant to make his

initial filing within 90 days; the extension of the

period to 210 days in certain states was plainly in-

tended to permit him to “exhaust’’ the state proce-

dures. There is no suggestion that complainants in

some states were to be allowed to proceed with less

A40

diligence than those in other states. [Selections

from the legislative history] indicate that unless a

complainant pursues his state remedies with sufficient

diligence to permit the state, within 210 days, either

to complete its action or to have 60 days in which

to act without federal interference, he may not file

a timely charge with the EEOC.

459 F.2d at 825 n.35. Before passage of the 1964 legis-

lation, Senator Dirksen clearly explained the relationship

of the proposed deferral section and the proposed limita-

tions section:

“New subsection (d) [now labelled (e)] requires

that a charge must be filed with the Commission

within 90 days after the alleged unlawful employment

practice occurred, except that if the person aggrieved

follows State or local procedures in subsection (b)

[now labelled (c)], he may file the charge within

210 days after the alleged practice occurred or within

30 days after receiving notice that the State or local

proceedings have been terminated, whichever is earlier.

The additional 120 days is to allow him to pursue his

remedy by State or local proceedings.”

Id. quoting the EEOC’s Legislative History of Titles VII

and XI of Civil Rights Act of 1964 at 3018 (emphasis

added). The equally unambiguous remarks of Senator

Humphrey make clear that the 210 day limitations period

for deferral cases was intended to protect a complainant

against losing the right to file with the EEOC “simply

because the 90-day period for filing with the Federal

Commission has elapsed while he seeks to pursue State

remedies.”’ /d., quoting Legislative History, supra, at 3006.

When Title Vil was amended in 1972, both limitations

periods were lengthened. New section 706(e) specifies a

base period of 180 days and a period of 300 days applicable

to complainants subject to the statute’s deferral require-

ments. The differential between the two remained the

same: an aggrieved individual in a deferral state still has an

extra 120 days in which to file with the EEOC so that com-

pliance with the deferral requirements of the act can be

achieved. Thus the limitations section as amended still

ensures that no penalty is exacted from those in deferral

states. No more diligence is required of those complainants

A41

than is required of their counterparts in states lacking

deferral agencies.

Like the cases on which it relies, the majority opinion

overlooks the legislative history which clearly establishes

that the statute is to be applied as it reads. See Richard

v. McDonnell Douglas Corp., 469 F.2d 1249 (8th Cir.

1972); Anderson v. Methodist Evangelical Hospital, Inc.,

464 F.2d 723 (6th Cir. 1972); and Vigil v. American Tele-

phone and Telegraph Co., 455 F.2d 1222 (10th Cir. 1972).

The majority offers nothing to support the assumption,

necessarily implicit in today’s decision, that Congress

intended to give complainants in deferral states a 120 day

bonus and to excuse them from exercising roughly the same

degree of diligence required of persons in non-deferral

states. It should be noted that in 1975, the Eighth Circuit,

sitting en banc, concluded that an examination of the

legislative history excerpted above necessitated a rethinking

of Richard v. McDonnell Douglas Corp., supra, which had

attempted to interpret Title VII's filing requirements

without reference to this history.

[1] t would not be in keeping with the intent of Con-

gress to allow one individual 300 days to file a charge

because of the fortuitous circumstance that the state

where the claim arose is a deferral state, when @ other

individual in a non-deferral state will have oniy 180

days in which to file.

The purpose underlying the extended period in a

deferral state is to give the state agency an initial

opportunity to process the claim without jeopardizing

the federal right, not to extend by 120 days the time

for assertion of this federal right.

While we agree that ‘‘the statute leaves much to be

desired in clarity and precision,” .. . there is no doubt

as to what the extended filing period in [§ 706(e)]

was intended to accomplish. In the 1964 Act a com-

plainant was given 90 days in which to file a charge

of employment discrimination. However, due to the

proviso in then [§ 706(b)] that the charge must first

be made with a state or local agency if one exists, an

additional 120 days was given to file a charge with the

A42

EEOC to allow a complainant to pursue his state or

local remedies without prejudicing his federal right.

The extended filing period was not intended as a

bonus for complainants residing in a deferral state

but as a means of effecting an accommodation be-

tween the federal right and the requirement of pre-

amendment [§ 706(b)] of initial resort to an avail-

able state or local agency.

We are here concerned with amended Title VII.

However, except for an enlargement of time for

filing a charge from 90 to 180 days and concomitant

extension of the deferral provision to 300 days, there

were no substantive changes made in [§ 706(d)]

(renumbered [§ 706(e)] ).

Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1231-33

(8th Cir. 1975) (footnote and citation omitted).

The only legislative history on which the majority relies

is an excerpt from a report of the House-Senate Conference

Committee on the 1972 amendments, which endorsed the

decision of the Tenth Circuit in Vigi/. However, the fact

remains that in 1972 Congress chose to leave the design and

wording of the limitations subsection intact; the only

changes made were a renumbering of the section and the

lengthening of the two limitations periods contained there-

in. In my view, since the intent of the enacting Congress is

unambiguous and the amending Congress chose to retain

the original scheme, the evidence is insufficient to permit

the inference that the later Congress intended to accomplish

wholly new ends by leaving intact the scheme constructed

by an earlier Congress which had different purposes in

mind. See Oscar Mayer & Co. v. Evans, 47 U.S.L.W. 4569,

4571-72 (U.S. May 21, 1979).

Finding little support in the language of the statute or

in its legislative history, today’s decision apparently rests

on the widely accepted and reasonable principle that as a

remedial statute often invoked by laypersons, Title VII

should be interpreted flexibly so as to eliminate procedural

barriers that serve no purpose. However this principle

cannot be taken to authorize the judicial remodelling of all

provisions of a rernedial statute that place strict limitations

on the access road to the newly-created remedy. For

A43

example, in Love v. Pullman Co., supra, the Supreme Court

made three crucial observations in approving the EEOC

practice of (1) making referrals to state agencies on behalf

of complainants in deferral states and (2) delaying formal

filing of a charge until expiration of the deferral period or

termination of. state proceedings. First, the Court noted

that the EEOC practice interfered with neither the policy of

deferral to state procedures nor the goal of expedition in

the handling of claims. Second, the Court noted that no

legitimate interest of defendants was prejudiced. Finally,

the Court noted that nothing in Title VII suggests that

state proceedings may not be initiated by the EEOC acting

on behalf of a complainant or that the EEOC may not delay

the formal filing of a complaint until termination of state

proceedings. It was these determinations that led the

Court to conclude that requiring a second filing by a com-

plainant ‘‘would serve no purpose other than the creation of

an additional procedural technicality.’ 404 U.S. at 526

(footnote omitted).

The EEOC practice in the instant case does not meet

these tests. First, permitting a charge to be filed with the

EEOC at any time within 300 days regardless of whether

the extra time has been used as intended, is to sacrifice

the diligence Congress sought to require of Title VII com-

plainants. Although the majority assures us that the inter-

pretation adopted today “does not countenance the filing

of stale claims,”’ | respectfully suggest that when Congress

bestows new rights and remedies on some persons and

imposes new obligations and liabilities or others, its judg-

ment regarding how and when claims are to be asserted and

preserved ought not to be lightly disregarded. ‘Even

though a statute of limitations may ‘permit a rogue to

escape,’ the legislative commands must be respected.”

Moore v. Sunbeam Corp., supra, 459 F.2d at 826 n.37,

citing Toussie v. United States, 397 U.S. 112, 123-24

(1970). Second, to the extent that the repose granted by

Congress to potential defendants has been delayed, they

have been adversely affected by the EEOC practice. Finally,

the language of the statute indicates that the result reached

today was simply not intended by the authors of Title VII.

Deference to agency interpretation is appropriate only when

consistent with deference to the intent of Congress.

; Referring to the many “procedural requirements and

time limitations that must be met before a claim of dis-

A44

crimination can be brought to the attention of a federal

court,” and citing Love v. Pullman, supra, we have remarked:

The procedures thus mandated exist not for their

own sake, but rather in furtherance of substantive

purposes . . . .{T]he rigid insistence on meticulous

observance of technicalities unrelated to any sub-

stantive purpose is inappropriate.

Weise v. Syracuse University, 522 F.2d 397, 411, 412

(2d Cir. 1975) (citations omitted).2 It must be remem-

bered, however, that where, as here, a procedural require-

ment does further a substantive purpose, it is judicial

disregard of the statutory design that is inappropriate.

3 It is interesting to note that the Weise Court apparently as-

sumed, in dictum, that the deferral process was to be completed

within 300 days:

lf the alleged unlawful employment practice occurs within a

state or locality having a law prohibiting such a practice, an

aggrieved person cannot file a charge with the EEOC until 60

days have elapsed after the commencement of such state or

local proceedings .... Resort to the EEOC thereafter is condi-

tioned on the filing of charges not more than 300 days after

the occurrence of the alleged unlawful practice or 30 days

after the termination of state or local proceedings, whichever

is earlier,

Weise v. Syracuse University, 522 F.2d 397, 411 (2d Cir. 1975)

(footnote and citation omitted) (emphasis added).

A45

NEW YORK STATE: EXECUTIVE DEPARTMENT

DIVISION OF HUMAN RIGHTS

COMPLAINANT

RALPH H. SILVER

VS. Case Nos.

IV-E-C-1581-76E

MOHASCO CORPORATION E-C-43805-76E

RESPONDENTS

DETERMINATION AND ORDER

AFTER INVESTIGATION

On August 12, 1976, Ralph H. Silver, who is of the

Jewish faith, filed a verified complaint with the State

Division of Human Rights charging the above-named

respondent(s) with an unlawful discriminatory practice

relating to employment, because of his creed, in violation

of the Human Rights Law of the State of New York.

After investigation and following a review of related

information and evidence with named parties, the Division

of Human Rights has determined in the above-entitled

complaint that there is no probable cause to believe that

the respondent(s) engaged in or was (were) engaging in the

unlawful discriminatory practice complained of.

This determination is based on the following: Com-

plainant herein alleges that he was terminated from em-

ployment because of his creed. Respondent has officers

and upper/middle management personnel of complainant's

stated religious faith. It cannot be ascertained that com-

plainant’s employment was terminated for reasons other

than management’s judgment that his job performance

was unsatisfactory.

This complaint is therefore ordered dismissed, and

the file is closed.

A46

THE COMPLAINANT OR ANY PARTY TO THE

PROCEEDING BEFORE THE DIVISION MAY APPEAL

THIS ORDER TO THE STATE HUMAN RIGHTS AP-

PEAL BOARD, TWO WORLD TRADE CENTER, 82ND

FLOOR, NEW YORK, NEW YORK 10047, BY FILING

A NOTICE OF APPEAL WITHIN FIFTEEN (15) DAYS

AFTER THE DATE OF THE SERVICE OF THIS ORDER.

DATED: Feb. 9, 1977

STATE DIVISION OF HUMAN RIGHTS

By /s/ John W. Walker, Jr.

John W. Walker, Jr.

Regional Director

TO: Ralph H. Silver, Complainant

211 Cresent Village |

Clifton Park, New York 12065

Mohasco Corporation

Respondent

Richard H. Lange, Esq.

Attorney for Respondent

57 Lyon Street

Amsterdam, New York 12010

A47

STATE OF NEW YORK: EXECUTIVE DEPARTMENT

STATE HUMAN RIGHTS APPEAL BOARD

ORDER

RALPH H. SILVER,

COMPLAINANT- Case No. E-C-43805-76E

APPELLANT

APPEAL NO. 4035

VS.

MOHASCO CORPORATION,

RESPONDENT

The above-entitled appeal having been filed with

this Board on February 19, 1977 by Ralph H. Silver,

complainant-appellant and the record having been re-

quested on February 28, 1977 and submitted by the

State Division of Human Rights on March 22, 1977 and

the appeal having come on to be heard before Honorable

Irma Vidal Santaella on the 16th day of November, 1977

and Ralph H. Silver, complainant-appellant having ap-

peared in person and argued on his own behalf and re-

spondent having appeared by Robert H. Lange, Esq.,

General Counsel, who submitted a Statement and Memo-

randum of Law, and by Bouck, Holloway & Kiernan,

Esqs., Warner M. Bouck, Esq., who argued on behalf of

respondent, and the State Division of Human Rights

having appeared by Gladys M. Foster, Esq., Senior Attor-

ney, who submitted on the record, and

The Board having reviewed the record herein and

having considered the arguments of the parties, and

Statement and Memorandum of Law on behalf of the re-

spondent, and a majority of the Board having decided that

the Determination and Order of the State Division of

Human Rights dismissing the complaint of the complain-

ant-appellant was not arbitrary, capricious or an abuse of

discretion (Hon. T. Blum not participating), it is

A48

ORDERED that the Determination and Order of the

State Division of Human Rights made herein on February

9, 1977 be, and the same is hereby in all respects affirmed.

STATE HUMAN RIGHTS APPEAL BOARD

By _/s/ Irma Vidal Santaella

Irma Vidal Santaeiia, Chairman

Dated & Mailed: December 22, 1977

TO:

APPELLANT

Ralph H. Silver

211 Crescent Village

Clifton Park, N.Y. 12065

RESPONDENT

Mohasco Corporation

Richard H. Lange, Esq.

Attorney for Respondent

57 Lyon Street

Amsterdam, N.Y. 12010

Bouck, Holloway & Kiernan, Esqs.

107 Columbia Street

Albany, NY 12210

Attn: Warner M. Bouck, Esq.

DOHR

Commissioner Warner Kramarsky

State Division of Human Rights

2 World Trade Center

New York, N.Y. 10047

Ann T. Anderson, Esq., General Counsel

State Division of Human Rights

2 World Trade Center

New York, N.Y. 10047

A49

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

1 WEST GENESEE STREET

BUFFALO, NEW YORK 14202

(716) 842-5170

Charge No. 023760777

(TBU6-0777)

Ralph H. Silver

211 Crescent Village

Clifton Park, New York 12065

Charging Party

Mohasco Corporation

37 Lyon Street

Amsterdam, New York 12010

Respondent

DETERMINATION

Under the authority vested in me by Section 29 CFR

1601.19 (b)(d) of the Commission’s Procedural Regula-

tions (September 27, 1972), | issue, on behalf of the

Commission, the following determination as to the merits

of the subject charge.

Respondent is an employer within the meaning of Title

VII and the timeliness, deferral and all other jurisdictional

requirements have been met. Substantial weight has been

accorded the findings of the New York State Division of

Human Rights, which are attached. Having examined the

New York State Division of Human Rights’ findings and

the record presented, | conclude that there is not reason-

able cause to believe the charge is true.

A50

This determination concludes the Commission’s processing

of the subject charge. Should the Charging Party wish to

pursue this matter further, he may do so by filing a pri-

vate action in Federal District Court within ninety (90)

days of his receipt of this letter and by taking the other

procedural steps set out in the enclosed NOTICE OF

RIGHT TO SUE.

ON BEHALF OF THE COMMISSION:

8/24/77 s/ Edwin C. Casler

DATE Sn C. CASLER, DISTRICT DIRECTOR

Enclosures: (2)

706 Agency Findings

Notice of Right to Sue

AS1

APPENDIX B

Statutes Involved

Section 706(c) of Title VII of the Civil Rights Act of

1964 as amended by the Equal Employment Opportunity

Act of 1972, 42 U.S.C. § 2000e-5(c), reads as follows:

ment practice occurring in a State, or political sub-

division of a State, which has a State or local law

prohibiting the unlawful employment practice al-

leged and establishing or authorizing a State or local

authority to grant or seek relief from such practice

or to institute criminal proceedings with respect

thereto upon receiving notice thereof, no charge

may be filed under subsection (b) of this section by

the person aggrieved before the expiration of sixty

days after proceedings have been commenced under

the State or local law, unless such proceedings have

been earlier terminated, provided that such sixty-day

period shall be extended to one hundred and twenty

days during the first year after the effective date of

such State or local law. If any requirement for the

commencement of such proceedings is imposed by a

State or local authority other than a requirement of

the filing of a written and signed statement of the

facts upon which the proceeding is based, the pro-

ceeding shall be deemed to have been commenced for

the purposes of this subsection at the time such state-

ment is sent by registered mail to the appropriate State

or local authority.

Section 706(e) of Title VII of the Civil Rights Act of

1964 as amended by the Equal Employment Opportunity

Act of 1972, 42 U.S.C. § 2000e-5(e), reads as follows:

(e) A charge under this section shall be filed

within one hundred and eighty days after the alleged

unlawful employment practice occurred and notice

of the charge (including the date, place and circum-

stances of the alleged unlawful employment practice)

shall be served upon the person against whom such

charge is made within ten days thereafter, except

that in a case of an unlawful employment practice

A52

with respect to which the person aggrieved has ini-

tially instituted proceedings with a State or local

agency with authority to grant or seek relief from

such practice or to institute criminal proceedings with

respect thereto upon receiving notice thereof, such

charge shall be filed by or on behalf of the person

aggrieved within three hundred days after the alleged

unlawful employment practice occurred, or within

thirty days after receiving notice that the State or

local agency has terminated the proceedings under the

State or local law, whichever is earlier, and a copy of

such charge shall be filed by the Commission with the

State or local agency.

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.