MEMORANDUM AND ORDER
Presently before this Court is SKF Industries' ("SKF") motion to dismiss, for lack of subject matter jurisdiction, those allegations contained in plaintiff's complaint pertaining to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. SKF contends that plaintiff failed to timely file this action within ninety (90) days, as required by 42 U.S.C. § 2000e-5(f)(1),
after he received notice from the Equal Employment Opportunity Commission ("EEOC") that it had failed to resolve his claim against defendants through conciliation. For the reasons stated below, the motion will be denied.
Plaintiff filed charges against defendants with the EEOC, alleging acts of race and sex discrimination. Unable to reach a voluntary settlement with defendants, the EEOC on April 25, 1973, sent plaintiff a letter which stated in pertinent part:
This is to advise you that attempts to reach a settlement of the above-referenced cases were unsuccessful. We are, therefore, forwarding the case to our Regional Litigation Office for review for possible litigation. You will be notified of the outcome of this review.
On July 23, 1974, the EEOC, pursuant to its regulations,
sent plaintiff a statutory notice of his right to sue in the appropriate federal district court within 90 days of his receipt of the same notice.
Plaintiff's complaint was filed August 30, 1974, and served on SKF September 12, 1974, within 90 days after receipt of the July 23, 1974, letter, but more than 90 days after receipt of the April 25, 1973, letter. The issue presented is which letter triggered the 90-day limitation period of 42 U.S.C. § 2000e-5(f)(1).
Decisions by other courts addressing this issue have been few in number and diverse in their outcome. The Eighth Circuit in Tuft v. McDonnell Douglas Corporation, 517 F.2d 1301 (8th Cir. 1975), after a thorough analysis of legislative history and relevant case law, held that it was the right-to-sue letter ("second letter"), and not the failure to reach conciliation letter ("first letter"), which triggered the 90-day limitation. In so holding, the Court of Appeals reversed the lower court, which had found the first letter to be controlling, and impliedly reversed two other district court opinions, upon all three of which SKF heavily relies. Tuft v. McDonnell Douglas Corporation, 385 F. Supp. 184 (E.D.Mo. 1974); Harris v. Sherwood Medical Industries, Inc., 386 F. Supp. 1149 (E.D.Mo. 1974); Whitfield v. Certain-Teed Products Corporation, 389 F. Supp. 274 (E.D.Mo. 1974). Similarly, a district court held in Garneau v. Raytheon Company, 323 F. Supp. 391 (D.Mass. 1971), that the time limitation did not start to run until the aggrieved party received a notice of the right to sue.
Notwithstanding the Eighth Circuit's decision in Tuft v. McDonnell Douglas Corporation, supra, a district court in Kelly v. Southern Products Company, No. 19243 (N.D.Ga. June 16, 1975), held that a civil action instituted under Title VII is barred if it has not been brought within 90 days after the aggrieved party's receipt of the failure to reach conciliation letter. Cf. DeMatteis v. Eastman Kodak Company, 511 F.2d 306 (2d Cir. 1975). We note the above cases merely for the purpose of illuminating the problems raised by the EEOC's "two-letter" approach, as it is not necessary to decide which letter controls for reasons more fully set out below.
Assuming, arguendo, that the first letter should trigger the 90-day period, the Supreme Court has noted that a prerequisite to a federal action under Title VII is the receipt of the EEOC's statutory notice of the right to sue. 29 C.F.R. § 1601.25. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), the Court stated:
Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission's statutory notice of the right to sue, 42 U.S.C. §§ 2000e-5(a) and 2000e-5(e).