Trujillo v. General Elec. Co., s. 79-1071

• Decision Date: 29 May 1980
• Docket Number: 79-1072,Nos. 79-1071,s. 79-1071
• Citation: 621 F.2d 1084
• Parties: 22 Fair Empl.Prac.Cas. 1575, 23 Empl. Prac. Dec. P 30,983 George M. TRUJILLO, Plaintiff-Appellant, Cross-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee, Cross-Appellant, Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1084

621 F.2d 1084

22 Fair Empl.Prac.Cas. 1575,

23 Empl. Prac. Dec. P 30,983

George M. TRUJILLO, Plaintiff-Appellant, Cross-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee, Cross-Appellant Equal Employment Opportunity Commission, Amicus Curiae.

Nos. 79-1071, 79-1072.

United States Court of Appeals Tenth Circuit.

Submitted March 14, 1980.

Decided May 29, 1980.

Ray M. Vargas, Albuquerque, N.M., for plaintiff-appellant, cross-appellee.

Robert M. St. John and Bruce Hall of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for defendant-appellee, cross-appellant.

Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, and Lutz Alexander Prager, Atty., Washington, D.C., for amicus curiae.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

McWILLIAMS, Circuit Judge.

George M. Trujillo brought an employment discrimination action against General Electric Company under the provisions of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866. 42 U.S.C. § 2000e-5 and 42 U.S.C. § 1981. General Electric filed a motion to dismiss the Title VII claim on the ground that Trujillo had failed to file that particular claim within 90 days from receipt of his right-to-sue notice, as required by 42 U.S.C. § 2000e-5(f) (1). The trial court denied the motion.

At trial, Trujillo called four witnesses. At the conclusion of the plaintiff's case, General Electric moved to dismiss under Fed.R.Civ.P. 41(b), contending that Trujillo had failed to make a prima facie case. The motion was denied, whereupon General Electric called three defense witnesses. Based on conflicting testimony, the trial judge found for General Electric and entered judgment in its favor. Specifically, the trial judge found that Trujillo's discharge from employment with General Electric resulted from his erratic and deteriorating work performance, and was not in anywise prompted by race discrimination. Trujillo appeals the judgment thus entered. General Electric cross-appeals the order of the trial court denying General Electric's motion to dismiss the Title VII claim. We shall consider the cross-appeal first.

Trujillo was initially employed by General Electric on February 1, 1971, as a technician in their Albuquerque, New Mexico plant. On January 29, 1976, Trujillo's employment with General Electric was terminated. On June 2, 1976, Trujillo filed a charge of employment discrimination because of national origin with the Albuquerque, New Mexico District Office of the EEOC. After investigation, the District Director issued Trujillo and General Electric a determination that there was no reasonable cause to believe that Trujillo's termination was due to race discrimination. Such determination was issued, together with the statutory Notice of Right-to-Sue, on December 2, 1976. On December 10, 1976, Trujillo wrote the District Director requesting reconsideration of the Director's determination of "no-cause." The Director replied by advising Trujillo, and General Electric, that Trujillo should submit any additional information by February 10, 1977, ". . . so that your case may be reviewed and reconsidered before the 90-day period runs out March 4, 1977."

In early January, 1977, Trujillo submitted his additional evidence. On January 24, 1977, the EEOC vacated its earlier determination of no-cause and issued a revised determination with a finding that there was reasonable cause to believe Trujillo's charge of employment discrimination. That particular order further stated: "Both parties are hereby notified that the Notice of Right-to-Sue issued on December 3, 1976, is revoked and is therefore null and void."

Thereafter, as required by 42 U.S.C. § 2000e-5(b), the District Director attempted to conciliate the parties, but without success. Accordingly, on August 11, 1977, the District Director issued a combination notice of failure of conciliation and a so-called "second" Notice of Right-to-Sue within 90 days. Trujillo filed the present action on October 20, 1977, well within 90 days from receipt of the second Notice of Right-to-Sue, but far beyond 90 days from receipt of the first Notice of Right-to-Sue.

General Electric's position is that Trujillo did not file his Title VII claim within 90 days after receipt of the first Notice of Right-to-Sue, and that therefore the Title VII claim was subject to a motion to dismiss for failure to comply with the 90-day limitation found in 42 U.S.C. § 2000e-5(f)(1). According to General Electric, the Director had no authority to rescind his first Notice of Right-to-Sue, nor was he authorized to subsequently issue the second Notice of Right-to-Sue. Such action was but a nullity, argues General Electric. We do not agree.

42 U.S.C. § 2000e-5(f)(1) provides, in part, as follows:

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 (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.

As above mentioned, on December 2, 1976, the District Director notified both Trujillo and General Electric that he had determined that there was no reasonable cause to believe that Trujillo's employment termination was due to race discrimination, and in connection therewith advised Trujillo that if he desired to file a private cause of action against General Electric he must do so within 90 days from the day he received such notice, "otherwise your right is lost." Thereafter, and well within 90 days from December 2, 1976, the District Director decided to reconsider his earlier determination of no-cause. A District Director has the right to reconsider such an order under 29 C.F.R. § 1601.19b(d) (1977) (now 29 C.F.R. § 1601.21(b)(1979)). Additional information was thereafter furnished the Director by Trujillo. Then on January 24, 1977, some 55 days after Trujillo had received...