Key v. Lumberjack Meats, Inc.
| Decision Date | 26 May 1977 |
| Docket Number | Civ. A. No. 76-G-1275-S. |
| Citation | 434 F. Supp. 289 |
| Parties | James KEY, Individually and on behalf of all others similarly situated, Plaintiff, v. LUMBERJACK MEATS, INC., a corporation, and Amalgamated Meat Cutters & Butcher Workmen of North America, Local 442, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Robert L. Wiggins, Bryan, Wiggins & Quinn, Birmingham, Ala., for plaintiff.
George C. Longshore, Cooper, Mitch & Crawford, Birmingham, Ala., for Local 442.
Alton B. Parker, Jr., Spain, Gillon, Riley, Tate & Etheredge, Birmingham, Ala., for Lumberjack Meats, Inc.
This cause came on to be heard before the court upon the motions of defendants to dismiss the complaint heretofore filed. The court has considered the plaintiff's affidavit, the briefs filed, the pleadings, and the attachments thereto which consist of the determination of the Equal Employment Opportunity Commission (EEOC) dated August 24, 1973, and a certified letter from the EEOC to the plaintiff dated April 17, 1975.
The plaintiff originally filed a charge with the EEOC and the fact that said charge was timely filed is not in dispute. Subsequently, the EEOC issued a determination on August 24, 1973, containing a finding of "reasonable cause" for several charges and a finding of "no reasonable cause" with respect to the charge that the plaintiff had been discharged because of his race. The plaintiff did not file suit within 90 days from the receipt of the April 17, 1975, letter.1 On August 13, 1976, the plaintiff received from the EEOC a form letter title, "Notice of Right to Sue." This action was filed within 90 days from the receipt of the August 13, 1976, letter.
The issue before the court is the effect of the April 17, 1975, letter. If that letter complies with a statutory scheme and provides the notice required by both statutes and judicial decisions, then the case before the court was not filed within the statutory time, and therefore, this court lacks jurisdiction in the matter and the case must be dismissed.
There are two jurisdictional requirements applicable to a suit brought under Title VII of the Civil Rights Act of 1964, as amended. First, there must be a timely filing of a charge with the EEOC, which is not an issue here, and secondly, suit must be filed within 90 days after receiving the notice required under Section 706(f) of the Act. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971); Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir. 1977).
The purpose of notice under 706(f) is to notify a party of a termination of the EEOC's efforts on his behalf and that his administrative remedies have been exhausted. Beverly v. Lone Star Lead Construction Corp., supra; Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974); Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975); DeMatteis v. Eastman Kodak Company, 511 F.2d 306 (2nd Cir. 1975), mod., 520 F.2d 409 (2nd Cir. 1975); Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976). The applicable wording of the statute is as follows:
That statute does not refer to a "right to sue" letter but simply states that notice of the agency action must be provided. 42 U.S.C. § 2000e-5(f). The line of cases holding that notice of a failure of conciliation by the EEOC does not trigger the 90-day statute is not applicable here. In those cases, the courts have held that the mere notice of a failure of conciliation will not start the statute to run since the possibility existed that the EEOC would decide to file suit, and that the final agency action would not take place until the EEOC had decided not to file suit. Tuft v. McDonnell Douglas Corp., supra; Garner v. E. I. du Pont de Nemours and Co., 538 F.2d 611 (4th Cir. 1976); McGuire v. Aluminum Company of America, 542 F.2d 43 (7th Cir. 1976); Zambuto v. American Telephone and Telegraph Company, 544 F.2d 1333 (5th Cir. 1977). Here, however, there was no failure of conciliation and the EEOC specifically notified the plaintiff in the April 17, 1975, letter that they had been able to resolve all of the "cause" issues from their determination, but that they would be unable to further help the plaintiff with regard to his individual charge which received a finding of "no reasonable cause."
The Fifth Circuit has recently held that a two-letter procedure used by the EEOC which places the commencement of the 90-day period within the claimant's power by bifurcating the statutory notice is an invalid procedure and is counter to the plain meaning of the statute. Zambuto v. American Telephone and Telegraph Company, supra. The court in Zambuto, however, stated that its decision would apply prospectively only, to suits filed after April 11, 1977, since Mrs. Zambuto was misled by the invalid two-letter procedure. Plaintiff asserts that the facts in Zambuto are essentially the same as those in the case at bar and he would have this court overrule the defendants' motions because plaintiff filed before the effective date of Zambuto. Zambuto, however, is clearly distinguishable. First, Zambuto was not a "no cause" case. Secondly, the notice before this court was not "patently misleading as to the completion of agency action," Id. at page 1336, as the one with which the Zambuto court was confronted.
The letter sent to Mrs. Zambuto, as set out in the Fifth Circuit's opinion, read:
Conceding that the first paragraph of this letter could be read to mean that administrative remedies were exhausted without success, thus commencing the 90-day statute, the court decided that the second paragraph modified the first, containing an implied assurance that administrative proceedings would not, in fact, end until a Right to Sue letter had been mailed. The court said:
Because this paragraph declared that further administrative action was contemplated by the EEOC, it failed to furnish Mrs. Zambuto (or AT&T) with the form of notice required under 42 U.S.C. § 2000e-5(f)(1) to start the 90-day period for filing suit. Id. at 1335.
This court reads Zambuto as standing for the proposition that where a plaintiff is misled as to the finality of the EEOC's determination by the invalid two-letter procedure, he may timely file suit within 90 days of receiving...
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Hefner v. New Orleans Public Service, Inc.
...that the EEOC had decided not to sue. See id., 556 F.2d at 351; Zambuto, supra, 544 F.2d at 1335. Here, as in Key v. Lumberjack Meats, Inc., 434 F.Supp. 289 (N.D.Ala.1977), the plaintiff could not have reasonably been misled by the first letter into believing that the EEOC contemplated furt......