652 F.2d 981 (10th Cir. 1981), 80-1330, Carlile v. South Routt School Dist. RE 3-J

Docket Nº:80-1330.
Citation:652 F.2d 981
Party Name:Nettie G. CARLILE, Plaintiff-Appellee, v. SOUTH ROUTT SCHOOL DISTRICT RE 3-J, in the County of Routt, State of Colorado, Defendant-Appellant.
Case Date:July 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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652 F.2d 981 (10th Cir. 1981)

Nettie G. CARLILE, Plaintiff-Appellee,


SOUTH ROUTT SCHOOL DISTRICT RE 3-J, in the County of Routt,

State of Colorado, Defendant-Appellant.

No. 80-1330.

United States Court of Appeals, Tenth Circuit

July 6, 1981

Argued May 13, 1981.

John H. Love, Boulder, Colo., for plaintiff-appellee.

William C. Wildberger, II, Denver, Colo. (Peter M. Eggleston, Durant D. Davidson and Karen W. Gangle, on the brief), of Cogswell & Wehrle, Denver, Colo., for defendant-appellant.

Leroy D. Clark, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Lutz Alexander

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Prager and W. Sherman Rogers, Equal Employment Opportunity Commission, Washington, D. C., filed an amicus curiae brief for the United States Equal Employment Opportunity Commission.

Before BARRETT and LOGAN, Circuit Judges, and KERR, District Judge. [*]

BARRETT, Circuit Judge.

South Routt School District, RE-3J, in the County of Routt, State of Colorado, (School District) brings this interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b) challenging an order denying its motion to dismiss a Title VII complaint filed by Nettie G. Carlile (Carlile). School District contends Carlile's complaint should have been dismissed by the Court for failure to file within ninety (90) days after receipt of the Department of Justice's Notice of Right to Sue as required by 42 U.S.C.A. § 2000e-5(f)(1).

Under § 2000e-5(f)(1), if a charge filed with the Commission is dismissed by the Commission, not acted upon by the Commission, or if the Commission has not entered into a conciliatory 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 ...

A review of the undisputed relevant facts will facilitate our review.

Carlile was employed as a teacher by School District for three consecutive school years, 1972-73, 1973-74, and 1974-75. On April 10, 1975, she received written notification that her contract would not be renewed for the 1975-76 school year. Carlile subsequently filed a discrimination charge with the Colorado Civil Rights Commission on June 2, 1975, alleging that School District had refused to renew her contract solely because of its desire to hire a male teacher who would also be able to coach basketball. A similar charge was filed with the Equal Employment Opportunity Commission on July 1, 1975.

On April 5, 1978, Carlile received a notice of right to sue letter from the Department of Justice, which stated in part: 1


The Civil Rights Division has completely reviewed the file referred to us by the Equal Employment Opportunity Commission (EEOC) in its investigation of your charge of discrimination, and it has been determined that we will not file suit in this particular matter against the respondent. This should not be taken to mean that the Department of Justice has made a judgment as to whether or not your charge is meritorious.

You are hereby notified that conciliation on your case was unsuccessful by the EEOC. You are further notified that you have the right to institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent. If you choose to commence a civil action, such suit must be filed in the appropriate United States District Court within 90 days of your receipt of this Notice.

(R., Vol. I, at p. 1).

At the time Carlile received the right to sue letter she was employed as a cook in Valentine, Nebraska, on a very limited income. During the latter part of May 1978, she moved to Tie Siding, Wyoming, where she was employed as a cook on a Wyoming ranch. As a ranch cook, Carlile worked long hours, six to six and one-half days a week.

In early June 1978, Carlile contacted the Clerk's office of the United States District Court in Denver, Colorado. Pursuant to this contact, Carlile forwarded a copy of her right to sue letter, after which the Clerk's

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office responded via a letter 2 of June 6, 1978 which stated:

We are in receipt of your letter forwarding a copy of your right to sue letter. Please be advised that it will be necessary for you to complete the enclosed Motion and Affidavit for submission to the court regarding appointment of an attorney for you. We would ask that you give this your immediate attention due to the time limits involved in getting your complaint filed with the Court.

As soon as the Motion and Affidavit are returned to this office the Court will consider the same and if approval is received for the appointment of an attorney, you will be notified as to who the attorney is. You will also be advised if the request is denied so that you may proceed to obtain your own attorney.

Again, may we remind you that a formal complaint must be filed within 90 days of the date of receipt of your right to sue letter.

(Appellee's brief at Appendix I-3).

On June 16, 1978, Carlile filed her motion to commence an action to proceed without payment of fees and costs, along with an affidavit in support of same. On the same date, the District Court entered an order granting Carlile's motion and appointing John Love, a Boulder, Colorado attorney, to represent her. The order also provided: "1. That this action shall be deemed commenced upon filing of the aforesaid Motion."

On Thursday, June 22, 1978, Love wrote Carlile confirming a meeting with her scheduled on July 12, 1978 at his office. Within his letter Love also addressed the timeliness of the action:

In connection with your query concerning commencement of the action by the Court in the June 16, 1978 order of appointment, I have noted that the statute provides authority for the Court to authorize the commencement of the action without payment of fees, costs, or security in such circumstances as the Court may deem just. Before I was appointed, I recall being advised by Mr. Ehrlich of the Clerk's office that the court would authorize the commencement of the action because of the delay in an appointment and I further indicated to him that I would be out of the state for the two week period ending July 9, 1978.

I understand under current practice that the language of the order tolls the statute of limitations for the commencement of the action. Today Mr. Ehrlich advised that he knows of no case where such an appointment has been questioned in this regard and that he doubted that the Judge would issue an order to show cause why the complaint had not been filed until 60 or 90 days after appointment.

(R., Vol. I, at p. 70).

Love apparently thereafter left Colorado on the weekend of June 24, 1978, and did not return until on or about Sunday, July 9, 1978. During his absence, the 90-day period following Carlile's receipt of the right to sue letter of April 5, 1978 lapsed on July 5, 1978. After Love's return to Colorado, he met with Carlile on July 12, 1978, and again on August 1, 1978, after which a complaint was filed on August 24, 1978, 141 days after Carlile's receipt of the 90-day notice letter.

On September 18, 1978, School District filed its answer contending, inter alia, that the District Court lacked subject matter jurisdiction under 42 U.S.C.A. § 2000e, et seq., in that Carlile's action was not commenced within 90 days of her receipt of the right to sue letter from the Department of Justice.

On November 13, 1979, the District Court entered an order denying School District's motion to dismiss, finding, inter alia :


5. During the period between Plaintiff's filing a Motion to Commence an Action Without Payment of Fees and Costs (and the appointment of counsel to

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represent Plaintiff pursuant to said Motion) and the time Plaintiff's Complaint was filed on August 24, 1978, Plaintiff was working as a cook at a ranch near the Colorado-Wyoming border, making communication between herself and her court-appointed counsel difficult.

6. Plaintiff's court-appointed counsel filed the complaint in this action on August 24, 1978, after having completed what he considered to be necessary investigation of Plaintiff's claims.

7. Plaintiff's court-appointed counsel felt that in view of his late appointment and the Court's order of June 16, 1978, stating that the action would be deemed commenced as of that date, that it would not be necessary for him to file a Complaint in this action by July 4, 1978, which would have otherwise been the expiration date of the 90 day period for the filing of a Complaint after receipt by Plaintiff of her Right to Sue Notice.

8. While previous cases decided by the United States Court of Appeals for the Tenth Circuit have strictly enforced the...

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