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DOMAN v. SKF INDUS.

July 29, 1975

HAROLD DOMAN
v.
SKF INDUSTRIES, INC. and UNITED STEELWORKERS OF AMERICA, AFL-CIO, Local 2898



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 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), *fn1" 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. *fn2"

 On July 23, 1974, the EEOC, pursuant to its regulations, *fn3" 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. *fn4" 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. *fn5" 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).

 Subsequently, the Court reiterated that the time limitation period begins to run upon receipt of a specific notice of the right to sue. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 1718, 44 L. Ed. 2d 295 (1975); and Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). Some circuit courts have indicated that a notice of failure of conciliation which also contains a notice of the right to sue will start to run the limitation period, Huston v. General Motors Corporation, 477 F.2d 1003, 1006 (8th Cir. 1973); Local 179, United Textile Workers of America, AFL-CIO v. Federal Paper Stock Company, 461 F.2d 849, 851 (8th Cir. 1972); and Goodman v. City Products Corporation, Ben Franklin Division, 425 F.2d 702, 703 (6th Cir. 1970), *fn6" while others have indicated that a notice of a failure of conciliation alone will satisfy the statutory requirement. Genovese v. Shell Oil Company, 488 F.2d 84, 85 (5th Cir. 1973); Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th Cir. 1969); and Choate v. Caterpillar Tractor Company, 402 F.2d 357, 359 (7th Cir. 1968). However, these decisions do not control the instant case because in each of the cases cited, including the three Supreme Court cases, the plaintiff instituted a federal court action within the applicable time period after receiving either a notice of failure of conciliation or a notice of failure of conciliation which also contained a notice of the right to sue. Thus, the question presented here, although alluded to in dicta was not formally addressed by those courts. *fn7"

 
Title VII does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements. It does, however, vest federal courts with plenary powers to enforce the statutory requirements; and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner . . . received and acted upon the Commission's statutory notice of the right to sue. 42 U.S.C. § 2000e-5(b), (e), and (f). (Citation omitted) (emphasis added).

 In order to comply with the precise prerequisite, it is necessary that the aggrieved party receive the prescribed statutory notice as defined in the Act, which at the very minimum is a notice of failure of conciliation.

 SKF asks this Court to construe 42 U.S.C. § 2000e-5(f)(1) in a very narrow fashion. Yet, in the same breath, SKF summarily concludes that the language of the April 25, 1973, letter clearly refers to the failure to accomplish conciliation as required by the Act. (See Memorandum of SKF in Support of Motion to Dismiss at 3, n.3.) *fn8" Faced with a similar situation, the Ninth Circuit in Gates v. Georgia-Pacific Corporation, 492 F.2d 292 (9th Cir. 1974), held that a first letter which informed the plaintiff that ...


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