E.E.O.C. v. E.I. duPont de Nemours & Co.

• Decision Date: 09 May 1975
• Docket Number: No. 74-1677,74-1677
• Citation: 516 F.2d 1297
• Parties: 10 Fair Empl.Prac.Cas. 916, 9 Empl. Prac. Dec. P 10,152 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. E. I. duPONT de NEMOURS AND COMPANY and Chestnut Run and Affiliated Facilities, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 1297

516 F.2d 1297

10 Fair Empl.Prac.Cas. 916, 9 Empl. Prac.

Dec. P 10,152

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. E. I. duPONT de NEMOURS AND COMPANY and Chestnut Run and Affiliated Facilities, Appellants.

No. 74-1677.

United States Court of Appeals Third Circuit.

Argued Feb. 12, 1975.

Decided May 9, 1975.

James M. Tunnell, Jr., David A. Drexler, Thomas Reed Hunt, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellant; John F. Lawless, Legal Dept., E. I. duPont de Nemours & Co., Wilmington, Del., of counsel.

William A. Carey, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg, Charles L. Reischel, Carol Lynn Green, EEOC, Washington, D. C., for appellee.

Before SEITZ, Chief Judge, and ALDISERT and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The sole question presented for decision is whether Section 706(f)(1) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-5(f)(1), contains an implied 180-day limitation period for civil actions commenced by the Equal Employment Opportunity Commission (EEOC). The district court denied duPont's motion for summary judgment challenging the timeliness of this action and certified the question under 28 U.S.C. § 1292(b). EEOC v. E. I. duPont de Nemours & Co., 373 F.Supp. 1321 (D.Del.1974). We permitted an appeal to be taken from this order and now affirm. We align ourselves with decisions of the Fourth, Fifth and Sixth Circuits, holding that no such 180-day limitation restricts EEOC. ¹

I.

In December, 1969 William Parker lodged a charge of racial discrimination with the EEOC against duPont. After deferral of the charge to and decision by the appropriate Delaware state agency, the EEOC, on March 29, 1970, filed Parker's charge against duPont. An investigation ensued, resulting in a determination that there was reasonable cause to believe that duPont engaged in racially discriminatory hiring practices and maintained racially segregated departments. ² Efforts to arrive at a conciliation agreement proved fruitless; and, on November 13, 1972, EEOC commenced this action.

In pertinent part Section 706(f)(1) provides:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference . . . 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 . . . 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 . . . 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 . . ., whichever is later, 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. . . . Upon timely application, the court may, in its discretion, permit the Commission . . . to intervene in such civil action upon certification that the case is of general public importance.

It is duPont's contention that this section requires the Commission to institute suit within 180 days after the charge is filed. Specifically, duPont urges the following construction of this section: During the first 30 days after the charge is filed, no one may institute suit; for the next 150 days only EEOC may sue; for the next 90 days only the aggrieved party may sue; after this 90-day period, all rights to sue are statutorily extinguished.

DuPont emphasizes that the date EEOC commenced this action is more than 180 days not only from the date of filing the Parker charge, but also from the effective date of the 1972 amendment. ³ Therefore, duPont contends, regardless of the date from which we measure the 180 days, EEOC's right to file suit is statutorily barred.

Based on an analysis of the statute itself, its legislative history and considerations of public policy, we reject this construction of Section 706(f) (1).

We start with the recognition that the statute is no model of legislative clarity. We are required to delve into statutory construction, and here we agree with Justice Frankfurter "that the troublesome phase of construction is the determination of the extent to which extraneous documentation and external circumstances may be allowed to infiltrate the text on the theory that they were part of it, written in ink discernible to the judicial eye." ⁴

II.

Facially, Section 706(f)(1) is divided into two distinct parts. One governs actions brought by the EEOC; the other governs private actions brought by aggrieved parties. The parts must be read from the standpoint of that which is expressly stated and of that from which implications are drawn. The section contains no provision setting forth in ipsissimis verbis a time limit on EEOC's right to institute suit. The only express conditions precedent to suit by EEOC are (1) that more than 30 days must have elapsed from the date of filing the charge, or from the date of expiration of a period of reference, and (2) that a satisfactory conciliation agreement must not have been obtained.

The 180-day proviso explicitly addresses private actions, operating as a front-end limitation on the right of the aggrieved party to sue. During this period the party must await either the effectuation of a conciliation agreement or an action commenced by EEOC. If, by the end of this 180-day period, such activity has not taken place, the aggrieved party may commence a private action. ⁵ There is, however, an express, 90-day rear-end limitation to which the party's action is subject. Thus, at the completion of this 90-day period, the aggrieved party's right to file suit is statutorily extinguished.

Appellee argues that appellant essentially seeks to impose a 180-day statute of limitations on EEOC's right to sue and that we should not imply such a limitation absent a clear Congressional design. Appellant counters, characterizing the 180-day limitation not as a statute of limitations but as a condition engrafted upon a statutory right of action, which, when unsatisfied, bars the right as well as the remedy. Simon v. United States, 244 F.2d 703 (5th Cir. 1957).

Appellant's argument misapprehends the issue before us. The rule which requires strict application of time restrictions embodied in a newly-created right of action does "not come into play until the court finds a limitation in the statute." EEOC v. Louisville & Nashville R.R. Co., supra, 505 F.2d at 614. Here our task is not to decide how to apply such a provision, but to decide whether Congress imposed it.

Title VII implements the important Congressional policy against discriminatory employment practices. To this end, Congress created the EEOC, first giving it the role of conferee, conciliator and persuader, and later giving it the added role of court enforcer. When EEOC institutes a civil action, it does so not only in the interest of the charging party, but also in the public interest, as a federal agency charged with enforcing the Congressional policy against discriminatory employment practices. ⁶ Cf. Trbovich v. United Mine Workers, 404 U.S. 528, 538-39, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972). EEOC's role as an enforcer of the public interest also surfaces when a member of the Commission files a charge. Given this important Commission function, we do not believe that Congress would impose a 180-day limitation on Commission actions without clearly so stating in unambiguous language. See E. I. duPont de Nemours & Co. v. Davis, 264 U.S. 456, 462, 44 S.Ct. 364, 68 L.Ed. 788 (1924); United States v. De Queen & Eastern R.R. Co., 271 F.2d 597 (8th Cir. 1959).

Although Section 706(f)(1) manifests a Congressional schema whereby a party's private right of action is premised on the satisfaction of express time limitations, no such 180-day limitation is expressly imposed on Commission actions. The very absence of an explicit Commission limitation, in the face of an express private limitation, strongly suggests that Congress did not intend that EEOC actions be governed by the limitation period. Indeed, when Congress sought to impose specific time limitations in other portions of Section 706 it did so clearly: Charges are to be filed within 180 days of the alleged discriminatory occurrence; ⁷ an employer is to be notified of the charge within 10 days; ⁸ an investigation is to be completed within 120 days "so far as practicable"; ⁹ civil actions are to be expedited; ¹⁰ a master can be appointed if the case has not been scheduled for trial within 120 days after issue has been joined; ¹¹ and back pay liability is limited to two years prior to the filing of the charge. ¹² Thus, facial reading of the section as a whole supports the conclusion that Congress did not intend an implied 180-day limitation on Commission actions.

III.

Although the legislative history of the 180-day provision does not disclose a Congressional intent in chiaroscuro, let alone chiaro, what guideposts are visible do not necessarily point to duPont's construction. During the 1972 hearings the major Congressional conflict arose over whether the EEOC should be granted cease-and-desist power or court enforcement power. ¹³

Supporting their differing views of the Congressional psyche, the parties have largely pointed us to isolated remarks of individual Congressmen. Of more utility, we think, is the studied...