McCray v. Corry Mfg. Co.

• Decision Date: 26 June 1995
• Docket Number: No. 95-3004,95-3004
• Citation: 61 F.3d 224
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 821, 66 Empl. Prac. Dec. P 43,697, 64 USLW 2122 Helen McCRAY, Appellant, v. CORRY MANUFACTURING COMPANY. . Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 224

61 F.3d 224

68 Fair Empl.Prac.Cas. (BNA) 821,

66 Empl. Prac. Dec. P 43,697, 64 USLW 2122

Helen McCRAY, Appellant, v. CORRY MANUFACTURING COMPANY.

No. 95-3004.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit LAR 34.1(a)

June 26, 1995.

Decided Aug. 9, 1995.

Sur Petition for Rehearing Sept. 7, 1995.

Neal A. Sanders, Butler, PA, for appellant.

Roger H. Taft, MacDonald, Illig, Jones & Britton, Erie, PA, for appellee.

Before: MANSMANN, GREENBERG and SAROKIN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Helen McCray filed this action against her former employer, Corry Manufacturing Company, under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (West 1985). McCray contends that her request for the EEOC to reconsider its Determination of "no reasonable cause" to believe that Corry Manufacturing discriminated against McCray, accompanied by a Notice of Right to Sue, tolled the ninety day period for filing suit until the EEOC subsequently denied her request for reconsideration. We hold that the district court did not err in concluding that the mere filing of a request for reconsideration does not toll the ninety day period for filing an ADEA civil action, especially here where the EEOC's denial of McCray's request for reconsideration informed her that the original ninety day period governed the time for filing a civil action. Accordingly, we will affirm the judgment of the district court.

I.

On October 29, 1992, McCray filed a charge of age discrimination with the EEOC against Corry Manufacturing. ¹ According to McCray, her supervisor harassed her by engaging in "hypervigilant supervision," interfering with McCray's incoming telephone calls, removing McCray's telephone line and by repeatedly issuing unwarranted warnings for misconduct. On January 9, 1992, McCray was advised that her position as a production control secretary was being eliminated but was offered another position. McCray declined the position and was laid off effective January 9, 1992.

After investigating McCray's claims, the EEOC issued its Determination on August 31, 1993, finding that there was no reasonable cause to believe that Corry discriminated against McCray on the basis of her age. McCray does not dispute that she received the Determination in due course.

The Determination contained the following information:

This determination concludes the processing of the subject charge. The Charging Party may pursue this matter by filing a private suit against the Respondent as set forth in the enclosed information sheet.

(A. 21). The "enclosed information sheet" entitled "Filing Suit In Federal District Court," often called a Notice of Right to Sue, informed McCray of the time period for bringing suit as follows:

This determination becomes effective upon receipt. Some or all of Charging Party's allegations of illegal employment discrimination have been dismissed. If Charging Party wishes to pursue this matter(s), Charging Party must file a private lawsuit against the respondent named in the charge in U.S. District Court under the applicable statute(s), as set forth below. The determination letter and this notice will be the only notice of the Charging Party's right to sue by the Commission.

....

PRIVATE SUIT RIGHTS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED (TITLE VII), THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 (ADEA), and THE AMERICAN WITH DISABILITIES ACT OF 1990 (ADA).

ADEA charges with a date of alleged violation of November 21, 1991 or later ...: Charging Party has 90 days from the effective date of this determination to file suit in court. Once this 90 day period is over, Charging Party's right to sue will be lost.

(A. 22) (emphasis in original). McCray concedes having received these instructions to file a civil action within ninety days of her receipt of the Determination and Notice of Right to Sue.

Less than thirty days later, by letter dated September 27, 1993, McCray requested that the EEOC reconsider its Determination. She provided additional facts regarding her employment with Corry Manufacturing from 1988 to 1992 and suggested that the EEOC visit the manufacturing facility rather than conduct telephone interviews. By letter dated October 7, 1993, the EEOC denied McCray's request for reconsideration. ² In that letter, the EEOC informed McCray that most of the facts set forth in her request for reconsideration could not be considered by the EEOC because they were time-barred by the 300 day statute of limitations for filing charges of discrimination. See 29 C.F.R. Sec. 1626.7 (1993) (timeliness of ADEA charge). More importantly, the EEOC informed McCray that:

If you wish to continue to pursue your allegations, you have the right to file a civil law suit in the appropriate U.S. District Court in accordance with the instructions which were included in your original letter of determination.

(A. 25). Those instructions for filing a civil lawsuit were contained within the Notice of Right to Sue that McCray acknowledges she received. This subsequent letter was received less than forty days after the Notice of Right to Sue was issued.

Nonetheless, McCray did not file a Complaint in the United States District Court for the Western District of Pennsylvania until January 3, 1994, more than ninety days from the August 31, 1993 EEOC Determination and the Notice informing her to file suit within ninety days. Specifically, McCray filed her Complaint 125 days after the issuance of the August 31, 1993 Determination and more than ninety days from her receipt of the Determination. Corry Manufacturing moved for summary judgment on grounds that McCray failed to file her Complaint within ninety days of her receipt of the EEOC's August 31, 1993 Determination and Notice of Right to Sue.

By Memorandum Opinion and Order dated December 2, 1994, the district court granted Corry Manufacturing's motion for summary judgment, determining that McCray's claim was time-barred for her failure to file her Complaint within ninety days of her receipt of the EEOC Determination and Notice of Right to Sue. See 29 U.S.C.A. Sec. 626(e) (West Supp.1995). McCray appeals, asserting that her request for reconsideration tolled the ninety day period that commenced with her receipt of the EEOC's determination; rather, the ninety days commenced from the EEOC's notice of its termination of the reconsideration proceedings.

The district court had jurisdiction pursuant to 29 U.S.C.A. Sec. 626(c)(1)(2) (West 1985). Our jurisdiction is premised on 28 U.S.C.A. Sec. 1291 (West 1993). We exercise plenary review over this question of law. Turner v.

Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990).

II.

The Age Discrimination in Employment Act was amended effective November 21, 1991 to include a ninety day rather than a two year statute of limitations for the filing of civil actions in federal court and to require that the EEOC notify the claimant that proceedings on his or her charge of discrimination were dismissed or otherwise terminated. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1079. See also H.R. Conference Rep. No. 101-856, 101st Cong., 2nd Sess. (October 12, 1990) (comments regarding amendments to Age Discrimination in Employment Act). The ADEA provides:

If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title against the respondent named in the charge within 90 days after the date of the receipt of such notice.

29 U.S.C.A. Sec. 626(e) (West Supp.1995); see Sperling v. Hoffmann-LaRoche, Inc., 24 F.3d 463, 464 n. 1 (3d Cir.1994) (describing amendment to the ADEA statute of limitations).

It is undisputed that McCray received the EEOC's August 31, 1993 Determination and the Notice of Right to Sue in due course. As well, McCray admits that the initial Determination advised her that she must file a civil action within ninety days of her receipt of the Determination. The ninety day period for the filing of McCray's civil action therefore commenced on or about August 31, 1993 and ended on or about November 29, 1993. Thus, under the usual application of the statute, McCray's Complaint was untimely. We thus examine the effect, if any, on the ninety day statute of limitations of a claimant's request for reconsideration of the EEOC Determination when the request was made within the ninety day period following receipt of the Determination.

A.

McCray asserts that the ninety day period was tolled by her September 27, 1993 request for reconsideration to the EEOC. According to McCray, the final action of the EEOC for purposes of commencing the ninety day filing period would then be the EEOC's October 7, 1993 denial of her request for reconsideration--when the EEOC "otherwise terminated" its proceedings on McCray's charge. See 29 U.S.C.A. Sec. 626(e) (West Supp.1995).

The EEOC's October 7, 1993 denial of reconsideration, however, does not supplant the August 31, 1993 Determination as the final agency action merely because the EEOC discussed the merits of McCray's charge in concluding that McCray had "not provided any new evidence that would change [its] finding." As the Supreme Court stated:

It is irrelevant that the [EEOC]'s order refusing reconsideration discussed the merits of the ... claims at length. Where the [EEOC]'s formal disposition is to deny reconsideration, and where it makes no alteration in the underlying order, we will not undertake an inquiry into whether reconsideration "in fact" occurred. In a sense, of course, it always occurs, since one cannot intelligently rule upon a petition to reconsider without reflecting upon, among other things, whether clear error was shown. It would hardly be sensible to say that...