Stutz v. Depository Trust Co.

• Decision Date: 09 October 1980
• Docket Number: No. 78 Civ. 3026.,78 Civ. 3026.
• Citation: 497 F. Supp. 654
• Parties: Johanna STUTZ, Plaintiff, v. DEPOSITORY TRUST COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

497 F. Supp. 654

Johanna STUTZ, Plaintiff, v. DEPOSITORY TRUST COMPANY, Defendant.

No. 78 Civ. 3026.

United States District Court, S. D. New York.

October 9, 1980.

Johanna Stutz pro se.

Milbank, Tweed, Hadley & McCloy, New York City, for defendant; Andrew J. Connick, Eugene F. Farabaugh, New York City, of counsel.

LASKER, District Judge.

Johanna Stutz sues pro se under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. alleging that she was harassed by her employer and that she was terminated from employment in retaliation for filing a charge to that effect. The Depository Trust Company moves for partial summary judgment dismissing those allegations that complain of events occurring after September 30, 1977.¹

Stutz filed an original complaint with the New York State Division of Human Rights (DHR) on September 30, 1977, in which she alleged race, color and sex discrimination, and charged that she was "denied equal terms, conditions and privileges of Employment" and harassed by her manager because she is Caucasian. On that complaint form, Stutz checked the box to indicate that she charged a violation of Title VII and authorized the DHR to accept the complaint on behalf of the Equal Employment Opportunity Commission (EEOC).

On December 29, 1977, Stutz was discharged. On January 12, 1978, she filed a second complaint with the DHR alleging that her discharge was in retaliation for filing the first action. This time, Stutz did not check the box on the DHR form to allege a Title VII violation, and authorized DHR to accept the complaint on behalf of the EEOC.

On March 10, 1978, the DHR determined after its investigation that there was no probable cause to believe that Depository Trust engaged in any discriminatory practice, but that Stutz "had a series of personality conflicts with her supervisor and her co-workers." Determination After Investigation, March 10, 1978. On April 20, 1978 the EEOC issued a "Notice of Right to Sue" letter to Stutz based on the findings of the DHR.

On October 31, 1978, the DHR found that there was probable cause to believe that Depository Trust had retaliated against Stutz for filing the first complaint, and ordered that a hearing be held.

Depository Trust contends that there is no subject matter jurisdiction over the events occurring after the date of filing of the first complaint with the DHR because Stutz neither filed any charges with the EEOC, nor received a right to sue letter from the EEOC, relating to events occurring after that date. Since the 300-day time limit for filing charges with the EEOC has expired, Depository Trust argues that Stutz is barred from asserting her retaliation claim.

It appears that neither Stutz nor the DHR on her behalf filed her retaliation charge with the EEOC, since that agency has no record of receiving the charge. Letter of David S. Preminger of the EEOC, February 20, 1980. Moreover, the April 1978 right to sue letter was issued based on the DHR's findings of no probable cause on the discrimination claims filed in the first DHR complaint, according to the Determination of the EEOC District Director accompanying the right to sue notice. Since the finding of probable cause on the retaliation complaint was made in October 1978, the right to sue letter could not apply to the retaliation claim. The EEOC takes the position that Stutz nevertheless "may proceed even in the absence of a right to sue letter (merely a ministerial act on this point)." However, without a right to sue letter, there is no jurisdiction over the retaliation claim, § 706(f)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1), and, unless the time requirements of the statute may be tolled, Stutz is barred from proceeding.

However, there are a number of reasons why tolling is applicable in this case. Stutz, who was acting pro se, testified during her deposition that she was told by the DHR representative that it was not necessary to check the appropriate box on her retaliation complaint because she had already done so on her first complaint. Thus, if there was a failure to file timely with the EEOC,² since nothing of record shows her testimony not to be true, it was due not to Stutz's failure to prosecute vigorously her claim, but to the mistaken advice given by the DHR representative. Moreover, the failure to file in time with the EEOC cannot have prejudiced Depository Trust who had notice of Stutz's retaliation claim by virtue of the DHR complaint, which was filed less than one month after her discharge.

Several circuit courts have held that the time limits established in Title VII are subject to equitable tolling. Leake v. University of Cincinnati, 605 F.2d 255, 259 (6th Cir. 1979); Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1297-1302 (5th Cir. 1979); Hart v. J.T. Baker Chemical Corporation, 598 F.2d 829, 831-33 (3d Cir. 1979); Bethel v. Jefferson, 589 F.2d 631, 641 n.64 (D.C.Cir.1978). Cf. Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976), aff'd by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977) (ADEA time limits subject to equitable tolling). In its only rulings on the subject, the Court of Appeals of this Circuit expressly left the question open. Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978); Egelston v. State University College at Geneseo, 535 F.2d 752, 755 n.5. In Smith v. American President Lines, Ltd., supra, 571 F.2d at 108-09 (footnote omitted), the court interpreted the Supreme Court's decision in Electrical Workers v. Robbins & Meyers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) as leaving

"open the possibility that in certain situations tolling of the Title VII time limits might be acceptable. However, the decision in Electrical Workers strongly suggests

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