Lynn v. Western Gillette, Inc.
| Decision Date | 21 November 1977 |
| Docket Number | Nos. 76-1256,75-2214,s. 76-1256 |
| Parties | 16 Fair Empl.Prac.Cas. 337, 15 Empl. Prac. Dec. P 7959 Patricia LYNN, Plaintiff-Appellant, v. WESTERN GILLETTE, INC., Defendant-Appellee. Cyntitha WHITTOM, Plaintiff-Appellant, v. ITT CANNON ELECTRIC, a Delaware Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ronald J. Logan (argued), Phoenix, Ariz., for Cyntitha Whittom.
William H. Emer (argued), Los Angeles, Cal., for ITT Cannon Elec.
James E. Brophy, III (argued), of Ryley, Carlock & Ralston, Phoenix, Ariz., for Western Gillette.
Richard L. Green (argued), Phoenix, Ariz., for Patricia Lynn.
Appeal from the United States District Court for the District of Arizona.
Before BROWNING, WRIGHT and KENNEDY, Circuit Judges.
These consolidated appeals address the question of when the ninety-day period for bringing a private civil action begins to run under section 706(f)(1) of Title VII of the Civil Rights Act of 1964 ("Act"), as amended, 42 U.S.C. § 2000e-5(f)(1) (Supp. V 1975). The issue is whether the period begins to run at the time the Equal Employment Opportunity Commission (hereinafter "EEOC" or "Commission") advises the charging party in writing that conciliation efforts with the employer have failed, or rather at the time the charging party receives a formal "Notice of Right to Sue" letter from the Commission.
On January 11, 1971, appellant Cyntitha Whittom filed a charge with the EEOC, alleging that ITT Cannon Electric had discriminated unlawfully by dismissing her from employment on the basis of sex. On April 25, 1973, the Commission sent a letter to Whittom informing her that conciliation efforts had failed. This letter, however, did not advise her of a right to file a private civil action under section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1) (Supp. V 1975), as required by the Commission's regulations then in effect. See 29 C.F.R. § 1601.25 (1972).
Twice in the period between April, 1973 and January, 1974, the employer requested the Commission to issue Whittom a Notice of Right to Sue, but the Commission failed to do so even though it had decided as early as May 31, 1973 that it would not itself bring charges against the employer. The Commission finally issued a Notice of Right to Sue letter to appellant on November 7, 1974. On February 14, 1975, eighty-eight days later, Whittom filed suit in the district court.
On defendant's motion to dismiss, the district court, relying on our decision in Cunningham v. Litton Industries, 413 F.2d 887 (9th Cir. 1969), held that the ninety-day limitation period provided by section 706(f)(1) commenced April 23, 1973, upon notice from the Commission that conciliation had failed. The court noted that a late filing might be excused when a complainant is unaware of his or her statutory rights, but found these considerations inapplicable in Whittom's case since she had consulted with an attorney nearly a year before filing suit. The district court therefore dismissed the action with prejudice. 395 F.Supp. 492 (D.Ariz.1975).
Appellant Patricia Lynn filed a charge with the EEOC on October 13, 1972 alleging that Western Gillette, Inc. discriminated against her on the basis of sex. On February 21, 1974, the EEOC advised Lynn that conciliation efforts had failed and would not be reopened unless she specifically so requested within ten days. As in Whittom's case, the Commission's letter made no mention of Lynn's right to seek redress in federal district court, as required by the Commission's regulations. As a result of the Commission's carelessness, Lynn had in fact been sent the letter which ordinarily was sent to the employer, and Western Gillette received the form letter which should have been sent to Lynn. Within a week, Lynn sought the advice of counsel. On July 17, 1975, after realizing that the letters of February 21, 1974 had been addressed to the wrong persons, the EEOC again notified Lynn that conciliation efforts had failed, but this time informed her in writing that she could request a Notice of Right to Sue and seek further remedies through court action. On July 29, 1975, the Commission finally issued Lynn a Notice of Right to Sue. At that time, the Commission had not yet determined whether or not it would bring a civil enforcement action on its own behalf against Western Gillette. On August 19, 1975, Lynn filed suit in the federal district court.
Applying the principles set forth in Whittom, supra, the court below held that the ninety-day statutory limitation period started to run on February 21, 1974, when Lynn was first informed of the failure of conciliation. Taking note that Lynn had sought the advice of counsel, the court ruled that the action was untimely. The suit was therefore dismissed.
The sections of Title VII which determine when a private civil action charging unlawful discrimination may be brought were amended in 1972. Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103 (1972),42 U.S.C. § 2000e et seq. (Supp. V 1975), Civil Rights Act of 1964, tit. VII, 78 Stat. 253 (1964). (All subsequent citations to Title VII in this opinion are to the 1964 Act as amended.) The amendments to section 706 of the Act were specifically made applicable "with respect to charges pending with the Commission on the date of enactment of this Act (March 24, 1972) and all charges filed thereafter." Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, § 14, 86 Stat. 113 (1972). Since Whittom's charge was pending when the amendments were enacted, and since Lynn's claim was filed after the enactment, both cases are governed by the statute as amended.
The multistep enforcement procedure established by section 706 of the amended Act reflects a "congressional desire to place the primary burden of enforcement of Title VII cases on the Commission rather than the private complainant." Lacy v. Chrysler Corp., 533 F.2d 353, 357 (8th Cir.) (en banc), cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976); see S. Rep. No. 92-415, 92d Cong., 1st Sess. 23 (1971). While prior to 1972, Title VII limited the function of the EEOC to that of attempting to achieve voluntary compliance by employers, the 1972 amendments granted the Commission the power to institute civil enforcement actions against employers on its own behalf. The statute as amended requires that a charge of unlawful discrimination be filed with the Commission by the aggrieved party within 180 days after the alleged unlawful employment practice. § 706(e), 42 U.S.C. § 2000e-5(e) (Supp. V 1975). After a charge is filed the Commission is responsible for making an investigation to determine whether there is reasonable cause to believe that the charge is true. § 706(b), 42 U.S.C. § 2000e-5(b) (Supp. V 1975). This is to be made promptly and, "so far as practicable," within 120 days from the filing of the charge. Id. If the EEOC determines that the charge is unfounded, the Commission is to dismiss it and notify both the aggrieved party and the respondent of this action. Id. If the Commission does find reasonable cause, it is to try to eliminate the alleged unlawful practice by "informal methods of conference, conciliation, and persuasion." Id. After thirty days from the filing of the charge, if an acceptable conciliation agreement has not been reached, the EEOC may bring a civil action against an employer to compel compliance with Title VII. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (Supp. V 1975); see Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, at 360, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977).
Title VII as amended also provides that after certain initial efforts at conciliation by the EEOC, a private right of action may arise. The Commission is statutorily required to notify the aggrieved party (1) if the Commission dismisses the charge pursuant to a finding of no reasonable cause, or (2) if within 180 days from the filing of the charge the Commission has not filed a civil action against the employer, or (3) if within 180 days from the filing of the charge the Commission has not entered into a conciliation agreement to which the aggrieved is a party. § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) (Supp. V 1975). The aggrieved party may then bring his private civil action "within ninety days after the giving of such notice . . . ." Id.
If the private right of action is to be effective, it is critical for the aggrieved party to know when the ninety-day period begins to run. The agency undertook to implement the statutory provisions for giving notice of this period by adopting regulations and by following a policy of sending a separate letter giving formal notice of the right to sue. We examine these procedures to determine whether or not they validate the filings made in these cases.
The EEOC regulations implementing Title VII provide that the notice to be sent an aggrieved party when Commission efforts at conciliation fail must include "(a)dvice concerning (the aggrieved person's) right to proceed in court . . . ." 29 C.F.R. § 1601.25 (1972). At all relevant times in these proceedings the Commission's policy was to use a two-tier system of letters to meet the requirements of this regulation. It would first advise the aggrieved party that he could request a Notice of Right to Sue letter and would have ninety days from the receipt of that letter to institute the civil action provided for by Title VII. A Right to Sue letter would not be issued by the Commission unless requested by the aggrieved party, even in cases where the EEOC had decided not to litigate the case. Brief of EEOC as Amicus Curiae at 8, Lynn v. Western Gillette, Inc. 1
The dispositive issue on this appeal is whether the statutory ninety-day period within which an aggrieved party must file his private civil action is...
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