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WILSON v. SHARON STEEL CORP.

August 15, 1975

Allen B. WILSON, Plaintiff,
v.
SHARON STEEL CORPORATION et al., Defendants



The opinion of the court was delivered by: MCCUNE

 McCUNE, District Judge.

 This suit was brought by plaintiff individually and on behalf of all others similarly situated seeking declaratory and injunctive relief and monetary damages "to redress the deprivation of rights against racial discrimination in employment secured to plaintiff by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1981 and 1983 which provide for relief from racial discrimination in employment." (Complaint, para. 1). Plaintiff premises jurisdiction over this action on 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C. §§ 1981 and 1983, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

 The action is presently before the court on defendant Sharon Steel Corporation's amended motion to dismiss the complaint in its entirety pursuant to Rule 12(b), Federal Rules of Civil Procedure. *fn1" Both plaintiff and Sharon have submitted briefs and the court has heard oral argument on the motion.

 Facts

 Plaintiff was discharged from his employment with Sharon Steel on August 15, 1972, as the result of his alleged participation in the theft of company property. Following the decision of an impartial arbitrator that he had been discharged for "just cause," *fn2" plaintiff lodged a charge of racial discrimination with the EEOC on November 1, 1972. *fn3" After deferral of the charges to the appropriate state agency as required by 42 U.S.C. § 2000-5(c), the EEOC, on August 27, 1973, issued its determination that there was reasonable cause to believe that Sharon had discriminated against plaintiff in discharging him. The Commission found that there was no probable cause to believe that the defendant unions had discriminated against plaintiff. *fn4"

 
"In order to proceed in this matter you must make a written request for Notice of Right to Sue from this office. You must file your action with the United States District Court within ninety (90) days of your receipt of the Notice of Right to Sue."

 Thereafter on July 15, 1974, the Commission sent plaintiff a "Notice of Right to Sue Within 90 Days." A copy of that letter is attached to the complaint and provides:

 
"Pursuant to Section 706F(1) of Title VII of the Civil Rights Act of 1964, as amended, and Section 1601.25 of Title 29, Chapter XIV of the Code of Federal Regulations, you are hereby notified that you may, within ninety (90) days of receipt of this communication, institute a court action in the appropriate Federal District Court."

 The letter was signed by Eugene V. Nelson, District Director of the EEOC. Plaintiff initiated this action on October 11, 1974, some 88 days after receipt of the notice of right to sue.

 With this background we now consider each of the issues presented by Sharon's motion to dismiss.

 Title VII

 Defendant contends that the Title VII aspects of the complaint must be dismissed for failure to comply with § 706(f)(1)'s 90 day limitations period for commencing actions under Title VII, 42 U.S.C. § 2000e-5(f)(1). That section provides in pertinent part:

 
"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 . . . the Commission has not filed a civil action . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought . . ."

 Defendant contends that the letter of October 15, 1973, notifying plaintiff of the Commission's failure to conciliate was the notice called for by the statute and that the ninety day limitations period began to run at that time.

 Plaintiff, on the other hand, argues that the ninety day limitations period did not start to run until his receipt of the Notice of Right to Sue letter on July 15, 1974. In support of his argument, plaintiff cites procedural regulations promulgated by the Commission in its effort to carry out its responsibilities in the administration and ...


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