English v. Ware County Dept. of Family & Children

• Decision Date: 05 August 1982
• Docket Number: Civ. A. No. CV 580-53.
• Parties: Jimmie ENGLISH, Plaintiff, v. WARE COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES, DIVISION OF THE GEORGIA DEPARTMENT OF HUMAN RESOURCES, Defendant.
• Court: U.S. District Court — Southern District of Georgia

546 F. Supp. 689

Jimmie ENGLISH, Plaintiff, v. WARE COUNTY DEPARTMENT OF FAMILY & CHILDREN SERVICES, DIVISION OF THE GEORGIA DEPARTMENT OF HUMAN RESOURCES, Defendant.

Civ. A. No. CV 580-53.

United States District Court, S. D. Georgia, Waycross Division.

August 5, 1982.

Fletcher Farrington, Savannah, Ga., for plaintiff.

George P. Shingler, Asst. Atty. Gen., Atlanta, Ga., for defendant.

ORDER

ALAIMO, Chief Judge.

The question before the Court is whether a private Title VII action against a state governmental body must be dismissed if the right-to-sue notice is issued by the Equal Employment Opportunity Commission ("EEOC") and not the Attorney General's office. In 1979 and 1980, the plaintiff, Jimmie English, applied and was rejected for a job as a casework supervisor with the Georgia Department of Human Resources. Believing the rejection a result of discrimination, she filed timely complaints with the Georgia Office of Fair Employment Practices and the EEOC. On September 28, 1980, the EEOC issued a determination that it lacked reasonable cause to believe her charges were true, and attached a right-to-sue notice. The determination letter made no mention of any forthcoming notice from the Attorney General or the need for such notice prior to instituting a private action in federal court. Instead, it instructed:

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 private action in Federal District Court within 90 days of receipt of this letter and by taking the other procedural steps set out in the enclosed NOTICE OF RIGHT TO SUE.

A suit was subsequently filed in this Court on December 3, 1980.¹ The defendant now moves for dismissal, on the ground that the notice of right to sue must come from the Attorney General and, absent notice from this source, the Court is without jurisdiction to hear the case. The Court holds that notification by the United States Attorney General is a statutory prerequisite to institution of a Title VII action against a state governmental body, but it is not a jurisdictional prerequisite and may be waived as a matter of equity. The Court further holds that in the instant case the equities favor maintenance of the suit, because dismissal would be inconsistent with the substantive purposes of Title VII and would penalize the plaintiff for merely following a course of conduct prescribed by the federal agency charged with administering the Civil Rights Act.

Discussion

One need not look further than the plain language of Title VII itself to recognize that notice of a right to sue by the Attorney General is a condition precedent to a private Title VII suit against a state governmental entity. Under Title VII, an alleged victim of employment discrimination cannot bring a civil action until the administrative process has first run its course. See generally Great American Federal S. & L. Ass'n v. Novotny, 442 U.S. 366, 370-378, 99 S.Ct. 2345, 2347, 2352, 60 L.Ed.2d 957 (1979). When a state governmental body is the respondent in a Title VII charge, that process is concluded when either (a) the EEOC determines that a claimant's charge lacks merit, or (b) the EEOC is unable to arrive at a conciliation agreement regarding a charge it believes has merit, and the Attorney General declines to institute a suit on the basis of that charge. 42 U.S.C. § 2000e-5(f)(1). The act clearly states that it is the responsibility of the Attorney General to notify the claimant that the administrative process is at an end and that further relief may be sought by a timely suit in federal court. Specifically, § 706(f)(1) states, in pertinent part:

If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent ...

42 U.S.C. § 2000e-5(f)(1) (emphasis added).

This responsibility is consistent with a statutory scheme that delegates to the Attorney General the dominant role in the legal enforcement of Title VII claims against state and local governmental bodies. As aforementioned, it is the Attorney General, and not the EEOC, who has the right to file suits based on individual charges. 42 U.S.C. § 2000e-5(f)(1).² The act further provides that, if a private action is instituted by a charging party, the court may permit "the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene...." 42 U.S.C. § 2000e-5(f)(1). Finally, § 706(f)(2) of the act permits "the Attorney General in a case involving a government, governmental agency, or political subdivision" to bring an action for "temporary or preliminary relief...." 42 U.S.C. § 2000e-5(f)(2).

This vesting of authority implies that the Attorney General should have more than just the ministerial responsibility for bringing Title VII suits against state employers, but also the discretion to decide whether and when to bring them. Cf. Brisbane v. Port Authority of New York & New Jersey, 414 F.Supp. 604, 606 n.2 (S.D.N.Y. 1976). Requiring notification by the Attorney General that the Title VII administrative process has concluded and a private action may be brought insures that all complaints against governmental bodies are referred to the Justice Department, and prompts that department to decide whether to exercise its delegated discretion. Such reference is needed, even in cases in which the EEOC has made a no-cause determination, because even though such a determination triggers the right to file a private suit, intervention by the Justice Department may still be important to the resolution of the case. Notification in those instances insures at least a cursory review of the file, which is elemental in determining whether to intervene. The Court, therefore, concludes that both the spirit and letter of Title VII are served by a requirement that the Attorney General's office notify claimants of the cessation of the administrative process and their right to sue in federal court when a governmental body is the respondent. Accord Davis v. Georgia Dep't Human Resources, Civil Action No. 81-2199A (N.D. Ga. Feb. 12, 1982); Stinson v. Georgia Dep't Human Resources, Civil Action No. C80-1940A (N.D. Ga. July 7, 1981); see also Osiecki v. Housing & Redevelopment Auth., 481 F.Supp. 1229 (D.Minn. 1979); Brisbane v. Port Authority of New York & New Jersey, supra.³

However, it is now settled law in this Circuit that this requirement, while statutory, is not jurisdictional and is subject to equitable waiver or tolling. In Jackson v. Seaboard Coast Line Railroad, 678 F.2d 992 (11th Cir. 1982), the Eleventh Circuit explained that "although ... courts have not had occasion to address the nature of each of Title VII's preconditions, we discern no rational basis for treating those that have not been considered from those that implicitly or explicitly have been held not to be jurisdictional," and went on to hold "that the conditions precedent to a Title VII action are not jurisdictional prerequisites, which if not satisfied deprive federal district courts of subject matter jurisdiction." Id. at 1009, 1010. See also Zipes v. TWA, ___ U.S. ___, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (filing of timely charge of discrimination with the EEOC is requirement in nature of statute of limitation — not jurisdictional); Sessions v. Rusk State Hospital, 648 F.2d 1066 (5th Cir. 1981) (90-day limitation period for filing Title VII action not jurisdictional prerequisite and is subject to equitable tolling). The dispositive question, therefore, is whether in the instant case the circumstances require equitable waiver of the requirement of a notice of right to sue from the Attorney General.⁴

In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979), Judge Clark surveyed the cases that have permitted equitable suspension of Title VII time requirements and found suspension likely to occur in three situations: (1) during the pendency of an action involving the same parties and the same cause in state court, which has jurisdiction but is the wrong forum under state law; (2) when the defendant conceals facts that support the plaintiff's cause of action; and (3) when the EEOC misleads a complainant about the nature of his rights under Title VII. Id. at 1302-1303; see Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co., 512 F.Supp. 1101, 1104 (E.D. Tex. 1981). Although the issue here does not concern a time requirement, the circumstances of the case fall neatly into the third category, and to dismiss it would result in severe prejudice to the plaintiff.

The plaintiff merely followed the directives of the EEOC. That agency notified her of the termination of the administrative process and instructed her that further pursuit of her claims could only be accomplished by a federal court action within 90 days of receipt of the attached letter. No additional requirements for filing suit were indicated, and she was admonished that further recourse had to be undertaken promptly, if at all. Furthermore, even though the plaintiff is represented by an attorney, neither she nor her attorney could...