Page v. U.S. Industries, Inc.

• Decision Date: 25 July 1977
• Docket Number: Nos. 76-3366,75-3822,s. 76-3366
• Citation: 556 F.2d 346
• Parties: 15 Fair Empl.Prac.Cas. 487, 14 Empl. Prac. Dec. P 7754 John D. PAGE and Don Thomas et al., Plaintiffs-Appellees, v. U. S. INDUSTRIES, INC., et al., Defendants-Appellants. Rebecca WILLIAMS, Plaintiff-Appellant, v. CLE CORPORATION, d/b/a Sheraton-Chateau Lemoyne, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 346

556 F.2d 346

15 Fair Empl.Prac.Cas. 487, 14 Empl. Prac.

Dec. P 7754

John D. PAGE and Don Thomas et al., Plaintiffs-Appellees, v. U. S. INDUSTRIES, INC., et al., Defendants-Appellants.

Rebecca WILLIAMS, Plaintiff-Appellant, v. CLE CORPORATION, d/b/a Sheraton-Chateau Lemoyne, Defendant-Appellee.

Nos. 76-3366, 75-3822.

United States Court of Appeals Fifth Circuit.

July 25, 1977.

Joseph W. Thomas, Okla Jones, II, New Orleans, La., for plaintiff-appellant in 75-3822.

Bernard Marcus, Amy R. Kennon, New Orleans, La., for defendant-appellee in 75-3822.

Samuel E. Hooper, Charles B. Gallagher, Houston, Tex., for defendants-appellants in 76-3366.

Carol Nelkin, Houston, Tex., for plaintiffs-appellees in 76-3366.

Appeal from the United States District Court for the Eastern District of Louisiana.

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

Before WISDOM, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

In this opinion we dispose of two cases which, although involving different facts and somewhat different issues, are both concerned with procedures employed by the Equal Employment Opportunity Commission (the EEOC) in informing complaining individuals of their right to seek judicial action. In each case the question is whether the plaintiff timely filed suit after initially referring his case to the EEOC. We hold that, by the law of this circuit, the district court should hear each plaintiff's Title VII action.

Congress has enacted a comprehensive scheme for the resolution of Title VII claims, involving both administrative and judicial action. Section 706(f)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) (1970), as amended, outlines the procedural scheme:

(f)(1) If within thirty days after a charge is filed with the Commission . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. . . . The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission . . . . 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 . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.

Initially the individual must rely on the EEOC either to conciliate his claim or to file a civil action on his behalf. Only after 180 days have passed from the filing of his administrative complaint may he seek a judicial remedy, and even then before he can sue he must receive notice that the EEOC has failed to conciliate his claim and has not sued. He has 90 days from this notice to bring suit.

The common problem in these two cases is what suffices to trigger the running of the 90-day period within which an individual must file suit. Doubtless the Congress contemplated that the EEOC would complete its investigation, attempt to conciliate, and reach the decision whether or not to sue within 180 days, and then notify the complainant immediately. Unfortunately, the avalanche of discrimination complaints to the EEOC has prevented it from completing administrative action on complaints within the 180-day period. See Zambuto v. American Telephone & Telegraph Co., 544 F.2d 1333, 1334 n.5 (5th Cir. 1977); EEOC v. Louisville & Nashville R. Co., 505 F.2d 610, 616-17 (5th Cir. 1974), cert. denied, 423 U.S. 824, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). These administrative delays have produced consequent delays in notifying claimants of the failure of the EEOC either to conciliate their claims or to file suit. Because section 706(f)(1) requires that an individual receive this notice before the 90-day period starts, questions of when the EEOC should send notice after completion of the 180-day period and what constitutes adequate notice have become important. We have recently condemned one EEOC practice designed to provide the statutory notice.

In Zambuto v. American Telephone & Telegraph Co., supra, we ruled that the EEOC improperly extended the period for filing suit when it gave notice that the administrative process was closed ¹ but then informed complainants that they could request the required statutory notice after which they must bring suit within 90 days. This procedure invalidly placed in a claimant's hands the power to postpone the commencement of the 90-day period after the administrative process had terminated. Congress designed the 90-day period to protect employers from stale claims, and the EEOC's practice deprived them of that protection. We went on to rule, however, that this "two-letter" procedure was "patently misleading" so that justice required that we make our ruling prospective only and allow Mrs. Zambuto to pursue her action. Against this background we turn to the individual cases before us.

I. Williams v. CLE Corporation

Rebecca Williams, a black female, was employed as a front-desk clerk at the Sheraton-Chateau Lemoyne Hotel in New Orleans, Louisiana, in mid-1973. The hotel management discharged her in October 1973, and she filed a timely complaint of racial discrimination with the EEOC. On January 27, 1975, the EEOC issued a determination that it had reasonable cause to believe the appellant's charge was true. After the defendant rebuffed its conciliation efforts, on March 25, 1975, the EEOC sent Ms. Williams the following letter:

This is to advise you that conciliation efforts . . . have failed to achieve voluntary compliance with Title VII of the Civil Rights Act of 1964, as amended. The Respondent Company has declined the invitation to resolve the issues in your case.

In accordance with Section 706(f)(1) of the Act, you have the right to file suit in Federal District Courts. Should you decide to exercise such right it must be done in writing. Please direct any communications to the Director, New Orleans District Office, EEOC.

Thank you for your cooperation and feel free to call me if you have any questions.

On May 6, 1975, the EEOC sent Ms. Williams another letter captioned "Conciliation Failure Notice of Right to Sue" that provided in pertinent part:

The Commission has determined that it will not bring a civil action against the respondent(s) and accordingly is issuing you this Notice of Right to Sue. The issuance of this Notice terminates the Commission's processing of your charge, except that the Commission may seek status as intervenor if you decide to sue on your own behalf as described below.

If you want to pursue your charge further, you have the right to sue the respondent named in this case in the United States District Court for the area where you live. IF YOU DECIDE TO SUE, YOU MUST DO SO WITHIN NINETY (90) DAYS FROM THE RECEIPT OF THIS NOTICE; OTHERWISE YOUR RIGHT IS LOST.

Ms. Williams filed her suit on July 31, 1975, 132 days after the March 25 letter but within 90 days of the May 6 letter. Plaintiff appended to her Title VII action a claim under 42 U.S.C. § 1981 alleging racial discrimination in employment. This claim came approximately 18 months after her discharge.

The trial court dismissed plaintiff's suit. It held that the EEOC's March 25 letter began the 90-day prescriptive period and that Ms. Williams' failure to bring suit within 90 days of that letter barred her Title VII claim. The trial court dismissed the section 1981 suit on the grounds that Louisiana requires suits for back pay to be brought within one year, with the result that plaintiff's suit was clearly filed too late.

A. The Title VII claim. The CLE Corporation argues, and the district court apparently agreed, that the March 25 letter gave sufficient notice of the EEOC's failure to conciliate her claim and its decision not to sue to start the running of the 90-day period. CLE asserts that the March 25 letter's statement that "in accordance with Section 706(f)(1) of the Act, you have the right to sue in Federal District Courts (sic)" provides sufficient notice. We disagree.

To begin the 90-day limitation period, the complainant must receive notice that the EEOC has completed its administrative efforts. See Zambuto, supra at 1335. The March 25 letter only related that conciliation efforts had failed; it did not inform her that the EEOC had decided not to sue. Perhaps she could have inferred this from the EEOC's reminder of her right to sue, but the reminder was ambiguous. She could easily have read it as saying that the EEOC still contemplated suit, but she might choose to institute her own action. It is true that, unlike Zambuto, the March 25 letter does not affirmatively mislead Ms. Williams as to when she may file suit, but neither does it convey sufficient notice of the termination of the administrative process. ² The 90-day period did not begin running from the date of Ms. Williams' receipt of the March 25 letter; only the May 6 letter provided adequate notice.

Even were we to conclude that the March 25 letter served as adequate notice, we could not ignore the misleading effect of the May 6 letter. In the May 6 letter the EEOC explicitly informed Ms. Williams that she had 90 days from the date of that letter to file suit. This action was no less "patently misleading," perhaps more so, ³ than the letters in Zambuto. Ms. Williams was entitled to rely on this seemingly...