Zambuto v. American Tel. & Tel. Co., 75-1930

Citation544 F.2d 1333
Decision Date10 January 1977
Docket NumberNo. 75-1930,75-1930
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Parties14 Fair Empl.Prac.Cas. 259, 13 Empl. Prac. Dec. P 11,385 Gloria ZAMBUTO, Plaintiff-Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a Foreign Corp., Defendant-Appellee.

Melvin A. Rubin, Robyn Greene, Miami, Fla., for plaintiff-appellant.

Joseph Z. Fleming, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before COLEMAN, CLARK and TJOFLAT, Circuit Judges.

CLARK, Circuit Judge:

In this Title VII 1 sex discrimination suit by Gloria Zambuto against her employer, American Telephone and Telegraph, (AT&T), the sole appellate issue is whether the suit was timely brought. More aptly, it requires that we decide the effect on these parties of an improper procedure adopted by the Equal Employment Opportunity Commission (EEOC).

The applicable statute, 42 U.S.C. § 2000e-5(f)(1)(1974), provides suit must be commenced by an aggrieved party within 90 days after the Commission gives notice that it has not been able to conciliate and that it will not sue. 2 By regulation the EEOC has added to these statutory requirements the three requirements set out in the margin. 3 Despite this guidance, EEOC officials have utilized a procedure, referred to as the "two-tier letter" approach, which fails to follow the statute or its own regulations. The first of two notice letters informs the aggrieved party that conciliation efforts have been ineffective and, if desired, the party may request a right-to-sue letter from the EEOC. The second letter, which is not sent until such a request is transmitted, contains formal notification of the right to sue as well as a statement that the EEOC will not itself bring suit. The effect of this informal EEOC notification procedure is to allow the aggrieved party to establish the time when the 90-day period for suit commences to run.

After complaints to her superiors were unsatisfactory, Mrs. Zambuto filed charges with the EEOC in 1970 and again in 1972. When EEOC was unable to procure a settlement of the grievances in a manner acceptable to each side, it sent Mrs. Zambuto the following letter on June 24, 1974:

This is to inform you that (the) above-referenced case has been administratively closed.

However, we are awaiting the request for issuance of a Right-to-Sue letter from either you or your attorney, as informed would be forthcoming. 4

A letter was sent by EEOC to Mrs. Zambuto on August 15, 1974, informing her that if she did not request a notice of right-to-sue letter within 5 days, her case would be administratively closed. This letter was never received. On October 2, 1974, Mrs. Zambuto's attorney requested a right-to-sue letter. The traditional "second" letter described above was mailed to Mrs. Zambuto on October 10, 1974, and her suit was commenced December 30, 1974. Thus, though the suit was filed within 90 days of the "second" letter, over 180 days had passed since the initial communication on June 24. The district court found that the "first" letter was sufficient to set the 90-day limitation period running and held the present action was barred.

Various precedents have been cited by each party. Mrs. Zambuto contends either that the practice of sending two letters is valid, referring to Garner v. E. I. duPont de Nemours, 538 F.2d 611 (4th Cir. 1976); Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976) (en banc), or in the alternative, that the shortcomings of the EEOC in establishing an inappropriate procedure should not be visited upon her. Taylor v. Pacific Intermountain Exp., 394 F.Supp. 72 (N.D.Ill.1975). Conversely, AT&T refers to DeMatteis v. Eastman Kodak, 511 F.2d 306 (2d Cir.), modified, 520 F.2d 409 (2d Cir. 1974), which held the two-tier procedure invalid. We note, however, that on rehearing the Second Circuit remanded the DeMatteis case to determine if DeMatteis had been misled by the EEOC's procedures, and directed that if he had been, then the invalidity of those actions should not redound to his detriment.

Section 2000e-5(f)(1) states that if the EEOC has not within 180 days 5 from the filing of the charge "filed a civil action . . . or the Commission has not entered into a conciliation agreement . . . , the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought" (emphasis supplied). This language has been read to require communication of both the failure of conciliation and the EEOC's decision not to sue in order to indicate clearly that the administrative process has been completed. E.g., Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 782, 46 L.Ed.2d 641 (1976). A notice which merely informs the aggrieved party that conciliation has failed, may not mean that no suit will be brought. Indeed, the Tuft Court noted that when the first letter had been sent to Tufts the EEOC in fact had not made a decision whether it would bring suit. 517 F.2d at 1309. A letter only announcing "no conciliation" would not fulfill the statute's requirement for notice of both inability to conciliate and a determination not to sue by EEOC.

The statutory plan is to keep claims fresh. When the aggrieved party knows EEOC has completed its efforts, the time for suit has come and the statute fixes its season as 90 days. This is a protection to the employer and is plainly there for its benefit alone. To the extent that EEOC has adopted a practice which places the commencement of this 90-day period within the claimant's power by bifurcating the statutory notice, it is an invalid procedure which is counter to the plain language of the statute and to the Congressional purpose undergirding it. 6 The EEOC has indicated its approach enables the aggrieved party to have adequate time within which to contact an attorney and make arrangements to commence an action. 7 It also appears plausible that the agency might believe a letter which clearly informs the aggrieved party of his right to bring a private action could act as a catalyst to stalled negotiations. 8 However, the relative merits of allowing a claimant more time to prepare for suit than the 90-day period would permit or of prodding negotiated settlements with a split notice is addressed to Congress, not the agency charged with administering the statute. Similarly, the fact that the impetus behind the EEOC's adoption of the two-tier procedure had nothing to do with denying the employer a statutorily conferred right cannot justify a departure from the plain Congressional plan which does in fact deny a benefit conferred.

The present case occurs in a context somewhat different from the standard two-letter approach utilized by the EEOC. The "first" letter dated June 24 did not just state that conciliation had failed. It informed the claimant that her "case ha(d) been administratively closed." This could well be read, without more, to mean that both agency conciliation and litigation possibilities were past. But we need not resolve this question, for there was more. The subsequent paragraph of the same letter stated that the EEOC was awaiting Mrs. Zambuto's ...

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  • Hefner v. New Orleans Public Service, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 1, 1979
    ...he would have ninety days from his receipt of the right to sue letter to file suit in federal court. 3 In Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977), we held this "two-tier" procedure to be invalid, but applied our ruling prospectively only so that parties ......
  • Dade v. Southwestern Bell Tel. Co.
    • United States
    • U.S. District Court — Southern District of Texas
    • May 30, 1996
    ...its efforts and is not going to bring civil suit on behalf of the claimant. Johnson, 892 F.Supp. at 839; Zambuto v. American Telephone and Telegraph Co., 544 F.2d 1333 (5th Cir.1977). In the instant case, the EEOC sent Dade a right-to-sue letter on August 31, 1993, which encompassed her fir......
  • Jackson v. Seaboard Coast Line R. Co.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 17, 1982
    ...556 F.2d 346, 350-51 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333 (5th Cir. 1977). Thus, both the Supreme Court and former Fifth Circuit have concluded that Title VII's time limitations are no......
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    • United States
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    ...(2nd Cir. 1974); Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614-615 (4th Cir. 1976); Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333, 1336 (5th Cir. 1977); Turner v. Texas Instruments, Inc., 556 F.2d 1349, 1351 (5th Cir. 1977). These decisions reflect an awareness ......
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