Hiduchenko v. MINNEAPOLIS MED. & DIAG. CENTER

• Decision Date: 14 September 1979
• Docket Number: Civ. 4-79-264.
• Citation: 475 F. Supp. 1175
• Parties: Katherine HIDUCHENKO, Plaintiff, v. MINNEAPOLIS MEDICAL AND DIAGNOSTIC CENTER, LTD., Stuart H. Borken, Benjie Goldfarb, Neil Hoffman, Elliot M. Latts, Burton S. Schwartz and Harold M. Wexler, Defendants.
• Court: U.S. District Court — District of Minnesota

475 F. Supp. 1175

Katherine HIDUCHENKO, Plaintiff, v. MINNEAPOLIS MEDICAL AND DIAGNOSTIC CENTER, LTD., Stuart H. Borken, Benjie Goldfarb, Neil Hoffman, Elliot M. Latts, Burton S. Schwartz and Harold M. Wexler, Defendants.

Civ. 4-79-264.

United States District Court, D. Minnesota, Fourth Division.

September 14, 1979.

COPYRIGHT MATERIAL OMITTED

Timothy R. Thornton, Rider, Bennett, Egan & Arundel, Minneapolis, Minn., for plaintiff.

Frederick E. Finch, Fredrikson, Byron, Colborn, Bisbee & Hansen, P. A., Minneapolis, Minn., for defendants.

MEMORANDUM AND ORDER

DEVITT, Chief Judge.

Defendants move to dismiss this employment discrimination case for failure by plaintiff to comply with the jurisdictional prerequisites of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (1976). Specifically, defendants argue that plaintiff failed to bring suit within 90 days of the issuance by the Equal Employment Opportunity Commission (EEOC) of a right-to-sue letter, as required by § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1). Defendants also assert that plaintiff neglected to exhaust her EEOC and state agency remedies before commencing this federal action, also required by § 706(f)(1). The motion to dismiss is denied, but this action is held in abeyance pending compliance by plaintiff with the exhaustion requirements of § 706(f)(1).

FACTS

This case has a rather complex procedural history that must be understood in order to resolve the present motion. Plaintiff, a female doctor of Ukranian descent, was hired by defendant Minneapolis Medical and Diagnostic Center in 1971. Her employment was terminated in 1978, allegedly because of her sex and national origin. Plaintiff filed timely charges with the EEOC and Minnesota Human Rights Department on October 2, 1978 and immediately requested a right-to-sue letter, which was issued by the EEOC on October 13, 1978. Plaintiff then commenced a federal court action in this district on October 23, 1978, which was assigned to Judge Alsop.

Judge Alsop dismissed plaintiff's Title VII claim on March 23, 1979, for lack of jurisdiction. Hiduchenko v. Minneapolis Medical & Diagnostic Center, Ltd., 467 F.Supp. 103 (D.Minn.1979). He found the court's jurisdiction to be defective for two reasons: first, plaintiff did not defer to the EEOC for 180 days prior to bringing suit, and second, she did not defer to the Minnesota Department of Human Rights for 60 days, both of which are required by § 706 of Title VII. Judge Alsop held these periods of reference to be jurisdictional and granted dismissal without prejudice, in effect ordering plaintiff to comply with the time requirements of § 706 and then return again to federal court.¹

Plaintiff did not appeal Judge Alsop's decision but rather attempted to comply with that decision. She pursued her administrative remedies until April 27, 1979, when she received a second right-to-sue letter from the EEOC. Shortly thereafter she commenced the present lawsuit.

DISCUSSION

The Ninety Day Requirement For Bringing Suit

Defendants' first argument is an exercise in cold logic, devoid of justice and calling for a harsh result. Under Title VII plaintiff was required to file this federal action within ninety days after receipt of the right-to-sue letter, and the Eighth Circuit has held that this time requirement is a jurisdictional prerequisite. See, e. g., Shea v. City of St. Paul, 601 F.2d 345 (8th Cir. 1979). Defendants in essence argue that the EEOC has no authority to issue two right-to-sue letters and that therefore the ninety day period for bringing this present action commenced at the time the first right-to-sue letter was received. If valid, defendants' argument would place plaintiff in an impossible position, for that ninety day period expired while the first lawsuit was pending before Judge Alsop—before plaintiff even knew she would be required to bring a second court action. The argument also contradicts express representations made by defendants' counsel to Judge Alsop as to plaintiff's right to bring a subsequent action in federal court.

The linchpin of defendants' position is that the EEOC cannot issue multiple right-to-sue letters for the same employment discrimination charge. Several cases appear at first blush to support this position. In Fannie v. Chamberlain Mfg. Corp., 445 F.Supp. 65 (W.D.Pa.1977), the court dismissed a Title VII count on grounds that a second right-to-sue letter was "legally inoperative." The EEOC in Fannie issued a right-to-sue letter in 1970, but suit was not brought at that time. A second letter was issued in 1975 and suit was commenced shortly thereafter. The court in dismissing stated that "the EEOC lacked authority in 1975 to reinstitute time barred charges. The issuance of duplicative notices by the EEOC cannot substitute for compliance with the Congressionally prescribed limitation period." Id. at 78.

While Fannie conceivably can be read broadly for the proposition that the EEOC cannot issue two right-to-sue letters, the case should be given a more narrow reading. The court in Fannie legitimately was concerned with the disruptive effect successive right-to-sue letters would have on the carefully considered time limitation periods enacted by Congress. This concern is relevant where, as in Fannie, suit is not brought within ninety days of the first letter and the effect of the second letter is to circumvent the timeliness requirements of Title VII. However, it has little relevance where, as in this case, plaintiff filed his federal court action too soon, not too late. As the Fourth Circuit observed in Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258 (4th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 976, 35 L.Ed.2d 275 (1973):

At the outset, it should be noted that the Act on which the employee predicates his action Title VII is remedial in character and should be generously construed to achieve its purposes. Moreover it is a general policy of law to find a way in which to prevent loss of valuable rights, not because something was done too late but rather because it was done too soon.

460 F.2d at 260. (citations omitted.) Thus, the premise upon which Fannie was decided —that a second letter cannot extend the time period when plaintiff allows the ninety day period to expire after the first letter— is not present here and Fannie therefore is not decisive.

A second case relied upon by defendants is Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th Cir. 1975) (per curiam). In Cleveland, plaintiff was issued a first right-to-sue letter and commenced suit in a timely fashion. The first letter had been issued and the first suit filed because of case law in the circuit at the time that appeared to require the plaintiff to institute the court action within a specified time after the alleged discriminatory act occurred. This case law was reversed after plaintiff's first action was filed and he decided, in light of that reversal and pursuant to advice from the EEOC, to dismiss his federal action without prejudice and pursue further his EEOC administrative remedies. Some time later the EEOC issued a second right-to-sue letter and plaintiff timely filed a second court action. The Ninth Circuit affirmed the dismissal of this second action, reasoning:

Appellant's first suit brought on April 9, 1968, was dismissed pursuant to Fed.R. Civ.P. 41(a) voluntary dismissal without prejudice and therefore can have no effect on the action here under consideration.

The issuance by the EEOC of a second right to sue letter likewise is without effect. The EEOC had no statutory authority to issue such a letter and therefore the 90-day period must be deemed to run from the issuance of the first letter. To accept the EEOC's action in issuing the second letter as proper would vitiate the congressionally mandated period of limitation in favor of a hodgepodge of ad hoc determinations by the EEOC.

Id. at 1030 (citations omitted).

The result reached in Cleveland appears unduly harsh, especially when the pro se plaintiff merely followed the advice of the EEOC and the case law in the Ninth Circuit was so confused at the time that the advice given by the EEOC could not be considered clearly wrong. Since plaintiff filed both suits within the required time period after the respective right-to-sue letters were issued, the result in Cleveland seems unnecessarily restrictive and exalts the concept of jurisdiction to an indefensible plateau.

Even if Cleveland was correctly decided, it is distinguishable in at least one significant respect from the present case. In Cleveland there was never a judicial determination that the first right-to-sue letter was invalidly issued and thus was a nullity. Consequently, the first letter presumably was valid, which adds some credence to the court's view that the second letter could not also have been valid. In the present case, however, Judge Alsop held that the first letter was improperly issued. Thus, unlike Cleveland, the first letter was a nullity. It does not seem to be an overly broad reading of Title VII, given its remedial purpose, to find that where a right-to-sue letter is held invalid as prematurely issued the EEOC can issue a second letter— the first valid one—when administrative remedies have been properly exhausted.² Compare, e. g. Ramirez v. National Distillers and Chemical Corp., 586 F.2d 1315 (9th Cir. 1978); Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975). Therefore, the court finds that this action was properly commenced within ninety days of the only valid right-to-sue letter issued with respect to plaintiff's charge.³

The 240 Day Requirement

Defendants' second argument in favor of dismissal is that, even assuming the second right-to-sue letter is valid, plaintiff did not defer to the administrative agencies for the requisite time. This argument in essence turns on whether the sixty day period for deferral to the state agency and...