Shea v. City of St. Paul

• Decision Date: 22 June 1979
• Docket Number: No. 78-1293,78-1293
• Citation: 601 F.2d 345
• Parties: 20 Fair Empl.Prac.Cas. 1708, 20 Empl. Prac. Dec. P 30,035 Mary SHEA, Appellant, v. CITY OF ST. PAUL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 345

601 F.2d 345

20 Fair Empl.Prac.Cas. 1708,

20 Empl. Prac. Dec. P 30,035

Mary SHEA, Appellant, v. CITY OF ST. PAUL, Appellee.

No. 78-1293.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1978.

Decided June 22, 1979.

Donald J. Heffernan of Connolly & Heffernan, St. Paul, Minn., for appellant.

Frank E. Villaume, III, Asst. City Atty., St. Paul, Minn., for appellee; Suzanne E. Flinsch, City Atty., St. Paul, Minn., on the brief.

Before LAY and HEANEY, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

Mary Shea appeals from dismissal of her Title VII sex discrimination complaint. The cause is not a class action. After Shea had presented her evidence, the defendant, City of St. Paul, moved for dismissal pursuant to Rule 41(b), F.R.Civ.P. The district court ¹ granted dismissal on two grounds: (1) the court was without jurisdiction because Shea had not filed her complaint within the 90-day jurisdictional period in Section 706(f)(1) of Title VII, ² 42 U.S.C. § 2000e-5; and (2) Shea had failed to establish discrimination on the basis of sex. The district court had earlier reserved ruling on a pretrial motion to dismiss for lack of subject matter jurisdiction and permitted plaintiff to present her evidence "(b)ecause of the equitable considerations that arose by reason of the plaintiff having relied on the erroneous legal advice tendered to her by EEOC." In view of its conclusions on the merits, the district court did not address itself to the relationship these equitable considerations assertedly bore to the court's jurisdiction.

We affirm the judgment of dismissal on the jurisdictional ground.

I.

Shea was hired as a secretary in the clerical division of the City's civil service system in 1963 at the top grade, level 26, and remained in that grade until she terminated her employment in 1976. During the relevant time period the clerical division of the City's employees was approximately 80% Female; the administrative and supervisory positions were approximately 90% Male. Clerical experience was evidently not a qualifying criterion for promotion into the ranks of administrators and supervisors, though it was possible to shift to another job classification other than clerical from which promotion might eventually be attained. The essence of Shea's complaint was that having attained the top of the clerical ladder her secretarial experience coupled with a college degree received in 1974 and good job performance, should have been considered as qualifications for promotion as an administrator or supervisor. Shea alleged that the City's failure to recognize these factors constituted discrimination. The sex basis of the alleged discrimination was derived principally from the respective disproportionate percentages of men and women in the clerical positions on the one hand and the administrative and supervisory positions on the other.

In March 1974 the City was notified that Shea had filed a sex discrimination charge with the EEOC. On January 22, 1975 the Commission issued a "Determination" finding there was "not reasonable cause to credit the Charging Party's allegations." See 42 U.S.C. § 2000e-5(b). A copy of the Determination was sent to Shea with a letter explaining that the "charge was dismissed on the date on which the Determination was signed." Both the letter and the Determination were dated January 22. The letter advised that Shea could request a so-called "Right-To-Sue Letter" from the Justice Department by forwarding a request through the EEOC. ³ The last paragraph of the enclosed Determination, however, specifically advised Shea that if she desired to file a private action in district court, she might do so "within 90 days of the receipt of Notice of Right to Sue which will be issued by the Department of Justice . . . ."

On March 24, 1975 Shea requested the EEOC to reopen its investigation. This the EEOC declined to do, and by letter from the District Director dated April 1, 1975 Shea was so notified. The April 1 letter again advised Shea of her right to request a right-to-sue letter in substantially the same terms contained in the January 22 letter.

Shortly thereafter, on April 18, 1975, Shea requested a right-to-sue letter from the Justice Department through the EEOC. A letter denominated "Notice of Right To Sue Within 90 Days" was sent to Shea on June 23, 1975 from the Justice Department. The letter told Shea that should she wish to commence a lawsuit, "such suit must be filed . . . within 90 days of your receipt of this Notice."

Shea filed her complaint in district court on September 17, 1975, within 90 days of receipt of the "Notice of Right to Sue" letter, but more than 90 days after receipt of both the January 22 letter and Determination notifying her of the dismissal of her charge, and the April 1 letter denying review.

II.

In order for a district court to have jurisdiction over a private Title VII action a civil rights plaintiff must first pursue his or her administrative remedies in accordance with Section 706 of the Act. 42 U.S.C. § 2000e-5. These are (1) the timely filing of an unlawful employment practice charge; and (2) filing suit within 90 days of notification of the right to sue from the EEOC or Attorney General as the case may be. Alexander v. Gardner Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Hinton v. CPC International, Inc., 520 F.2d 1312, 1314-15 (8th Cir. 1975).

One of the events requiring notification of the right to sue is dismissal of a complainant's charge by the EEOC upon a finding of no reasonable cause. Section 706(b) states in relevant part:

If the Commission determines after . . . investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action.

42 U.S.C. § 2000e-5(b). Section 706(f)(1) reiterates this notification requirement and provides that the complainant may bring a private civil action within 90 days after receipt of such notice:

If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . .

42 U.S.C. § 2000e-5(f)(1).

In Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), Cert. denied, 423 U.S. 1052, 96 S.Ct. 782, 46 L.Ed.2d 641 (1976) this Court dealt with the question of when under the above-quoted portion of Section 706(f)(1) the EEOC was required to issue notice triggering the running of the 90-day period after 180 days had passed from the filing of the charge without dismissal of the charge, successful conciliation, or filing of a civil action by the EEOC. We held that under such circumstances there was no requirement to issue statutory notice except on demand from the complainant, and that therefore an EEOC letter simply noting the failure of conciliation efforts and advising that a statutory notice might be requested did not trigger the 90-day period in the absence of a statement that administrative action was at an end. Id. at 1308-10. In so holding, the Tuft panel carefully summarized the events that mandate statutory notice under section 706:

1) Upon a dismissal of the charge by the Commission, the statutory notice must issue promptly to the aggrieved party and the respondent.

2) The complainant may demand the statutory notice any time after 180 days have elapsed from the filing of the complaint if the Commission has not dismissed his complaint, achieved a conciliation agreement, or filed a civil action.

3) Otherwise, the statutory notice must issue following a determination by the Commission or, in appropriate cases, the Attorney General, that a civil action will not be filed. (Citation omitted.)

Id. at 1309. See Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1286-87 (9th Cir. 1977); Zambuto v. American Telephone and Telegraph Co., 544 F.2d 1333, 1334-35 (5th Cir. 1977); McGuire v. Aluminum Company of America, 542 F.2d 43, 45 (7th Cir. 1976); Garner v. E. I. DuPont deNemours & Co., 538 F.2d 611, 614-15 (4th Cir. 1976); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 309-11 (2d Cir.), Modified on rehearing, 520 F.2d 409 (1975). With respect to dismissals under the first category, we also noted that Congress had been "more specific" in Section 706(b) in that statutory notice was to "promptly" follow dismissal. 517 F.2d at 1309 & n. 15.

In Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir.), Cert. denied,429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976), this Court revisited Tuft en banc in three consolidated appeals. The summary of notice procedures above was specifically reiterated and was considered dispositive in each of three appeals. Two of the appeals presented factual situations and produced results similar to the holding in Tuft. 533 F.2d at 355-59. The third appeal, however, Whitfield v. Certain-Teed Products, 533 F.2d 353, presented a situation functionally similar to the present case. Appellant Whitfield had been advised in an EEOC letter that the administrative process was at an end and that the Commission...