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MARTORANO v. HERTZ CORP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


June 17, 1976

JOSEPHINE MARTORANO
v.
HERTZ CORPORATION

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, J.

 Presently before the Court is Hertz Corporation's ("Hertz") 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.1 Hertz contends that plaintiff failed to timely file this action within 90 days after she received notice from the Equal Employment Opportunity Commission ("EEOC") that it had failed to resolve her claim against Hertz through conciliation, as required by 42 U.S.C. § 2000e-5(f)(1) (Supp. II, 1972). *fn2" For the reasons stated below, the motion will be denied.

 Plaintiff was terminated from her employment by Hertz on May 22, 1972. On September 7, 1972, she filed a charge with the EEOC alleging that Hertz had discriminated against her on the basis of her sex. Unable to reach a voluntary settlement with Hertz, the EEOC, on March 6, 1975, sent plaintiff a letter which stated in pertinent part:

 

This is to advise you that our efforts to settle your case have been unsuccessful. The Respondent has failed to make a good faith effort to resolve the issue of back wages.

 

If you wish to pursue the matter further, you have the right to sue the Respondent in the United States District Court in Philadelphia. If you decide to sue, you must submit a written request to this office for a Notice of Right to Sue.

 In a letter to the EEOC dated March 11, 1975, plaintiff requested a notice of the right to sue. On March 17, 1975, the EEOC, pursuant to its regulations, *fn3" sent plaintiff a statutory notice of her right to sue in the appropriate federal district court within 90 days of her receipt of the same notice. *fn4" Plaintiff's judicial complaint was filed on June 17, 1975, within 90 days after receipt of the March 17 right-to-sue letter, but more than 90 days after receipt of the March 6 "failure to reach conciliation letter." The issue presented is which letter triggered the 90-day limitation period of 42 U.S.C. § 2000e-5(f)(1) (Supp. II, 1972). *fn5"

 This Court was recently faced with this same issue in Doman v. SKF Industries, Inc., 399 F. Supp. 716 (E.D.Pa. 1975). In Doman, we began our analysis by noting that "decisions by other courts addressing this issue have been few in number and diverse in their outcome." Id. at 717. For example, the Eighth Circuit in Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S. Ct. 782, 46 L. Ed. 2d 641 (1976), after a thorough analysis of the legislative history and relevant case law, held that it was the right-to-sue letter, and not the failure to reach conciliation letter, which triggered the 90-day period. Since Doman, the Eighth Circuit has followed the rationale of Tuft in Lacy v. Chrysler Corp., 533 F.2d 353, 12 Fair Empl. Prac. Cas. (BNA) 471 (8th Cir. March 4, 1976) (en banc), as have the Tenth Circuit in Williams v. Southern Union Gas Co., 529 F.2d 483 (10th Cir. 1976) and Judge Fullam of our District in Beamon v. W. B. Saunders Co., 413 F. Supp. 1167 (E.D.Pa., 1976). On the other hand, we pointed out that, notwithstanding the Tuft decision, a district court in Kelly v. Southern Products Co., 10 FEP Cases 1221 (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. Numerous district courts have held since Doman that the failure to reach conciliation letter and not the right-to-sue letter triggers the 90-day period. See, e.g., Wilson v. Sharon Steel Corp., 399 F. Supp. 403 (W.D.Pa. 1975).

 We next noted that, even if the failure to reach conciliation letter triggered the 90-day period, the Supreme Court had noted that a prerequisite to a federal court action under Title VII is receipt of and action upon the EEOC's statutory notice of the right to sue. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). However, we found that those cases were not determinative of the issue at hand since, in both cases, the plaintiff instituted suit in federal court within the applicable time period, after receiving a notice of failure of conciliation which also contained a notice of the right to sue.

 Finally, we found it unnecessary to decide which letter triggered the 90-day period since the purported failure to reach conciliation letter which was sent to Mr. Doman *fn6" did not satisfy the requirement of § 2000e-5(f)(1), i.e., a notice that the EEOC "has not entered into a conciliation agreement." The Court stated:

 

Even if this Court were to find that a notice of failure of conciliation triggers the 90-day period and that such notice need not contain a notice of the right to sue, . . . it cannot be said that the [failure to reach a settlement letter], was sufficient to meet the requirements of the Act. The Act provides that the EEOC shall notify the aggrieved party that the Commission has not entered into a conciliation agreement and not that it has not reached a settlement. In Alexander v. Gardner-Denver Co., supra 415 U.S. at 47, 94 S. Ct. at 1019, the Supreme Court stated:

 

"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.

 399 F. Supp. at 719 (original emphasis).

 As was the plaintiff in Doman, plaintiff in the instant case was informed that the EEOC was unable to settle the case and not that it had failed to enter into a conciliation agreement. *fn7" In fact, the March 6 letter specifically stated that suit could not be instituted until plaintiff requested, in writing, a notice of a right to sue. Therefore, this Court holds that the March 6 letter failed to comply with the requirement of § 2000e-5(f)(1), in that it did not contain a failure to reach conciliation notice, and that plaintiff acted diligently and promptly in filing this action within 90 days of her receipt of the March 17 right-to-sue letter.

 AND NOW, TO WIT, this 17th day of June, 1976, IT IS ORDERED that defendant's motion to dismiss those allegations in plaintiff's complaint pertaining to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., is hereby denied.

 LOUIS C. BECHTLE, J.


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