Harris v. Sherwood Medical Industries, Inc., 74-147 C (A).

• Decision Date: 08 November 1974
• Docket Number: No. 74-147 C (A).,74-147 C (A).
• Citation: 386 F. Supp. 1149
• Parties: Yvonne Costello HARRIS, Plaintiff, v. SHERWOOD MEDICAL INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

386 F. Supp. 1149

Yvonne Costello HARRIS, Plaintiff, v. SHERWOOD MEDICAL INDUSTRIES, INC., Defendant.

No. 74-147 C (A).

United States District Court, E. D. Missouri, E. D.

November 8, 1974.

David A. Lang, Law Offices of Forriss D. Elliott, St. Louis, Mo., for plaintiff.

D. J. Sullivan and Jas. W. Herron, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for defendant.

MEMORANDUM OPINION

HARPER, District Judge.

This matter is before the Court on defendant's motion for summary judgment. Plaintiff brings this action pursuant to Section 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, to redress discriminatory employment practices allegedly committed by the defendant. Subsequent to the filing of the complaint, the plaintiff, with leave of Court, deleted each and every reference to 42 U.S.C. § 1981 wherever it may appear in the complaint.

Plaintiff, a former black employee of defendant, claims that defendant discriminated against her with regard to supervision and promotion, and that defendant discharged her on the basis of her race. In her complaint, plaintiff alleges that on March 16, 1972, the Equal Employment Opportunity Commission (EEOC) initially referred her charge against defendant to the Missouri Commission on Human Rights, as required by 42 U.S.C. § 2000e-5(d). The state commission was unable to complete action on her charge and returned plaintiff's file to the EEOC on June 30, 1972. Thereafter, the EEOC made a "reasonable cause" finding in favor of plaintiff and so notified her on February 8, 1973.

Plaintiff secured the following letter, dated February 4, 1974, from the District Director of EEOC:

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1015 LOCUST STREET — ROOM 917 ST. LOUIS, MISSOURI 63101 CERTIFIED MAIL RETURN RECEIPT REQUESTED Harris, Yvonne Costello vs Sherwood Medical Inds., Inc NOTICE OF RIGHT TO SUE WITHIN 90 DAYS

In Case No. YSL3-311 before the Equal Employment Opportunity Commission, United States Government.

YOU ARE HEREBY NOTIFIED THAT:

WHEREAS, This Commission has not filed a civil action with respect to your charge as provided by Section 706(F)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.: and,

WHEREAS, this Commission has not entered into a conciliation agreement to which you are a party;

THEREFORE, pursuant to 706(F) of Title VII, you may, within 90 days of your receipt of this Notice, institute a civil action in the United States District Court having jurisdiction over your case.

Should you decide to commence judicial action, you must do so within 90 days of the receipt of this letter or you will lose your right to sue under Title VII. If you are not represented by counsel and you are unable to obtain counsel the Court may, in its discretion, appoint an attorney to represent you.

Should you have any questions concerning your legal rights or have any difficulty filing your case in court, please call Ms. Gretchen Huston of this office at XXX-XXX-XXXX.

Date: February 4, 1974 /s/ Eugene P. Keenan Eugene P. Keenan District Director

The instant suit was filed March 1, 1974, twenty-four days after the date of the above letter. Plaintiff herein seeks declaratory and injunctive relief against defendant's allegedly unlawful practices, as well as back pay lost on account of such practices.

Defendant moves for summary judgment on the grounds that (1) Plaintiff did not commence the present action within the ninety-day period prescribed under 42 U.S.C. § 2000e-5(f)(1), and (2) the pleadings and other documents filed to date show that defendant has practiced no racial discrimination against plaintiff as a matter of law. In support of its motion, defendant has submitted a copy of the following letter:

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1015 LOCUST STREET — ROOM 917 ST. LOUIS, MISSOURI 63101 September 21, 1973 Ms. Yvonne Costello Harris 3517 Greer St. Louis, Mo. 63107 Re: Case No: YSL3-311 Yvonne Costello Harris v Sherwood Medical Industries

Dear Ms. Harris:

This is to inform you that conciliation efforts in your case have failed.

Anytime now, you may request your letter of Right to Sue. This is done by requesting, in writing, from the District Director, Mr. Eugene P. Keenan.

When you request your letter of Right to Sue, you have only 90 days to get a lawyer to file suit for you in Federal District Court. It is not wise to request your Right to Sue letter until you have obtained a lawyer who has agreed to represent you.

There are a number of St. Louis area lawyers who have experience with cases under Title VII of the Civil Rights Act of 1964, as amended. You would be wise to talk with a number of lawyers to find out what their fees would be in your case. If you need assistance in obtaining a lawyer or if you have any questions about your legal rights, you may contact Ms. Gretchen Huston, District Office Attorney, at 622-4126.

If there are any questions, please do not hesitate to contact me.

Sincerely yours, Earnestine Thomas Equal Employment Conciliator ET/ab

Defendant contends that this letter, by informing plaintiff "that conciliation efforts in your case have failed", commenced the running of the ninety-day statutory period within which civil actions under Title VII must be filed, and, therefore, that the filing of suit 161 days later was in contravention of the statute. Plaintiff contends that the letter of September 21, 1973, should be considered merely as a forewarning to plaintiff that the statutory period would begin to run at some future time upon receipt of the formal "right to sue" letter. Plaintiff does not contend that she did not receive the letter of September 21st.

At the Court's request the parties have submitted additional material from EEOC to assist the Court in making its determination in this matter.

The Equal Employment Opportunity Commission asked leave to file a brief on the issue as amicus curiae. Leave was granted and a brief filed. The parties stipulated that the facts contained in an affidavit of Gretchen Huston, EEOC St. Louis District Counsel, are to be made a part of the record. That affidavit states as follows:

"Comes now Gretchen Huston, District Counsel, Equal Employment Opportunity Commission, and states as follows:

"1. Letters reading substantially as shown on the attached form¹ were mailed to all persons who had filed charges with the St. Louis District Office of the Equal Employment Opportunity Commission, in all of those cases in which the Commission found reasonable cause to believe Title VII, Civil Rights Act of 1964, had been violated in one or more particulars and in which invitation to conciliate had been extended, and no agreement had been reached.

"Based upon an examination of the records maintained in the District Office, and upon information and belief, in excess of 200 letters substantially similar to the attached form letter were mailed between the period June 27, 1973, and August 1, 1974.

"Based upon a review of records and reports, I have found 59 files in which `Notices of Right to Sue' have been issued, upon written request, which number represents substantially all of those `Notices' issued between August 1, 1973, and September 12, 1974, in cases in which the Commission found Reasonable Cause to believe that the individual complainant had been affected by a violation of Title VII, and the parties were invited to conciliate the issues. The following, in summary, represents the variations in dates between date of failure of conciliation and dates of issuance of the `Notice of Right to Sue'.

"a. In cases in which conciliation failed and no form letter substantially similar to that in question was sent (prior to about June 27, 1973), the average period between failure of conciliation and the issuance of `Notice of Right to Sue', upon written request was approximately 295 days. The interim periods range from approximately 122 days to 573 days.

"b. In cases in which conciliation failed during the period a letter substantially similar to the letter in question was sent, the interim period between failure of conciliation and issuance of `Notice of Right to Sue', upon written request, averages approximately 110 days. The interim periods range between 0 and 337 days. (Two cases indicate that `Notices' were requested and issued prior to mailing of letter.)

"3. The `Notices' reviewed above do not include those `Notices of Right to Sue' issued in cases in which the Commission found no reasonable cause, cases in which the Commission found reasonable cause on systemic issues not affecting the Charging Party, cases administratively closed, in cases in which `Notices of Right to Sue' were requested and issued prior to determination by the Commission, cases in which conciliation was sought under consent decrees, or cases within the litigation jurisdiction of the Justice Department. Where more than one charge was filed and `Notice' was requested on more than one charge, for purposes of this affidavit the most recent conciliation failure was used."

/s/ "Gretchen Huston, District Counsel."

It thus appears that on about June 27, 1973, the Commission instituted a procedure, whereby Title VII complainants may be mailed two letters from the Commission. The first letter notifies a charging party that conciliation efforts have failed. The second letter, captioned "Notice of Right to Sue", is not mailed until requested by the complaining party. Since the Commission adopted this two-letter system, charging parties in the St. Louis District have waited an average of 110 days to request the second letter styled "Notice of Right to Sue within 90 Days" following receipt of the notice that conciliation efforts have failed. As of September 12, 1974, this delay has been as great as 337 days.

Squarely presented to this Court, then, is the issue of whether notice from the EEOC to a charging party which states in part "this is...