Dematteis v. Eastman Kodak Co.
| Decision Date | 30 July 1975 |
| Docket Number | No. 320,D,320 |
| Parties | 11 Fair Empl.Prac.Cas. 127, 10 Empl. Prac. Dec. P 10,336 David DeMATTEIS, Plaintiff-Appellant, v. EASTMAN KODAK COMPANY, Defendant-Appellee. ocket 74-1708. |
| Court | U.S. Court of Appeals — Second Circuit |
Before KAUFMAN, Chief Judge, and ANDERSON and FEINBERG, Circuit judges.
ON REHEARING:
On February 6, 1975 this court affirmed that portion of the judgment of the United States District Court for the Western District of New York which dismissed as time barred a claim of unlawful employment practice brought by appellant DeMatteis against the Eastman Kodak Company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, for the reason that the statutory 90-day limitation period began to run when the Equal Employment Opportunity Commission notified the parties that it had dismissed appellant's charge, and not, as appellant argued, when he later received a "Notice of Right to Sue," which was held to be jurisdictionally irrelevant under the facts of the present case. 1
On February 27, 1975 appellant filed a petition for rehearing of the case, in which he maintained that, contrary to the representations hitherto made to this court, he had not received, together with the "Notice of Determination" which disclosed that appellant's charge had been dismissed, a covering letter similar to the one the Commission sent to Kodak, which stated in essence that appellant had the right to proceed directly in the federal court, 2 but another, quite different letter stating that a notice of right to sue must first be obtained. 3 The Commission agrees that appellant had received the latter communication, and not the former. The defendant-appellee, Eastman Kodak Company, does not, however, concede the truth of these assertions and there remains an issue of fact to be determined by the district court.
Whereas it was proper under the facts as previously developed in this case to attribute the decision to apply for a notice of right to sue to counsel's misreading of the statute and applicable regulations, the Commission has now confessed error in that it had explicitly directed that such permission was required. If it is true, as DeMatteis now asserts, that he received the Commission regular form letter which stated that the recipient has 90 days "from the receipt of this notice" to commence a civil action in the United States District Court, 4 it is reasonable to conclude, as the Commission itself admits in its amicus brief filed on appellant's behalf, that appellant, in reliance on the Commission's erroneous instructions, filed suit within 90 days of his receipt of the notice of right to sue, which date, however, was more than 90 days after he had been notified of the Commission's dismissal of his charge. The appellant contends that his Title VII claim should not be barred because he was misled by the Commission into filing an untimely action.
Although we see no reason to change our decision that the statute of limitations begins to run on a Title VII claim, which the Commission has dismissed because it has determined after an investigation that there is not reasonable cause to believe that the allegation is true, when the Commission notified the parties of its action, "(w)e should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights." Griffin v. Illinois, 351 U.S....
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Clemes v. Del Norte County Unified School Dist., C-93-1912 MHP (ENE).
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