Complaint on or before February 2, 1975, instead of March 6, 1975. In any event, Joseph Horne Co. claims that even if the 90 day limitation period began to run on December 6, 1974, plaintiff's action is untimely since the period between December 6, 1974, and March 6, 1975, totals 91 days and therefore the action is still time barred.
Initially, it must be noted that defendant Joseph Horne Company's alternate ground for dismissing plaintiff's Complaint must be denied. The time period between December 6, 1974, and March 6, 1975, totals 90 days and therefore plaintiff's Complaint is timely. In computing the elapsed time the first day is omitted and the last counted. Allowing a day for travel through the mail, as we must since notice is not effective until receipt, the timeliness of the action cannot be disputed.
Failure to comply with the 90 day limitation period is cause for dismissal because it is a jurisdictional prerequisite under Title VII. Hinton v. CPC International Inc., 520 F.2d 1312 [8th Cir. 1975]. Such failure deprives a federal district court of subject matter jurisdiction. DeMatteis v. Eastman Kodak Co., 511 F.2d 306 [2d Cir. 1975] modified 520 F.2d 409 .
The present action was stayed pending decision in Wilson v. Sharon Steel Corp., 549 F.2d 276 [3d Cir. 1977], since it was believed that the decision on the issue of the 90 day limitation period set forth in § 706(f)(1) and the EEOC's use of the "two letter" procedure to advise charging parties of certain developments in their cases would also resolve issues presently pending in this action. However, because the district court in Wilson based its decision on a letter from the EEOC which the plaintiff never received, the district court's decision was vacated and remanded for consideration in light of the letter actually received. In remanding the Court of Appeals stated that it was not deciding the issue of when the 90 day period of limitation began running. On remand, the district court was instructed to consider the issues presented, not only in view of the letter actually received, but particularly in view of recent decisions not available to the district court at the time of its order.
The decisions referred to by the Court of Appeals in remanding Wilson agree that the 90 day limitation period contained in § 706(f)(1) of the Act begins to run from the date of notice of the EEOC's intention not to litigate the matter, and thus ending the administrative processing. In these cases, the notice of suit consideration by EEOC occurred in the second letter of the "two letter" procedure, and in all instances, captioned as the "Notice of Right to Sue" letter. The first letter in the process merely notified plaintiffs that efforts at conciliation had failed and that upon written request a notice of right to sue letter would issue, upon receipt of which the charging party had 90 days to commence suit in district court. None of the cases mentioned contained a notice by the EEOC of its intention not to bring suit, as found in the present case. In Wilson the district court on remand found the original letter ineffective to start the running of the 90 day period because it did not sufficiently inform the charging party of his right to sue. (Opinion November 11, 1977).
However, in Lacy v. Chrysler Corp., 533 F.2d 353 [8th Cir. 1976], a trilogy of appeals, one of the three cases, Whitfield v. Certain Teed Products, involved an EEOC letter-notice procedure similar to the present action. In Whitfield plaintiff received three letters instead of the usual two.
The first letter informed plaintiff of the failure to conciliate and the second specifically advised him that the EEOC had decided not to file suit. The third letter was the formal "notice of right to sue." In affirming the district court's dismissal of the complaint (finding that the second letter constituted notice of right to sue and termination of the administrative process, triggering the 90 day limitation period) the Court of Appeals stated that Whitfield knew that he could not hope to receive any further administrative assistance from the EEOC. In neither of the two other appeals in Lacy did the first letter inform the charging party that the Commission had declined to institute suit or proceed further with the case. Thus, these letters, in light of the statute requiring notice to the charging party as construed 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  did not trigger the start of the 90 day period.
The second letter in Whitfield did begin the limitation period since official notification to the complainant by the EEOC, as required by § 706, upon making the decision not to file suit, represents the final step in the administrating process. The purpose of this letter, as with the formal notice of right to sue letter, was to definitely fix a time when the administrative remedies had ended and when the 90 day limitation for bringing suit had begun. Lacy v. Chrysler Corp., supra; DeMatteis v. Eastman Kodak Co. supra.
As defendant Joseph Horne Company correctly points out in its brief, the same basic language of the notice received by Whitfield in his first and second letters, is contained in the November 14, 1974, letter received by the plaintiff in the instant matter. Therefore, in applying the principles set forth in Lacy as we are directed to do by the Court of Appeals in Wilson, it appears plaintiff was aware upon issuance of the letter that the administrative procedures of the EEOC were terminated since suit was considered and a determination not to litigate was made. Geronymo could no longer expect to receive assistance from that regulatory body. Taken alone, this would initiate the running of the 90 day limitation period.
However, the Lacy court realized that the language of the "notice" received by Whitfield in the second letter from the EEOC could be misleading because it stated that plaintiff had 90 days from the receipt of his right to sue letter to file suit in district court. Whitfield claimed that his reliance on this misleading information furnished by the EEOC deprived him of his rights under Title VII and therefore he fell into the exception language found in Tuft v. McDonnell-Douglas, supra.
In Tuft, where it was determined that the first letter received by the plaintiff from the EEOC did not initiate the running of the limitation period because it was only notice of failure to conciliate with no mention of suit consideration, the court held that the charging party must receive actual and effective notification of his right to sue. The language contained in the letter received by Ms. Tuft was similar to that found in the Whitfield notice and the notice in the present action with respect to the 90 day limitation period running only from receipt of the right to sue letter. The court found that Ms. Tuft did not receive effective notice to initiate the 90 day period and in any event she relied on the Commission's procedures. In absence of prejudice to the defendant, she should not be penalized for any errors or omission of the EEOC.
However, in Lacy, the court found that Whitfield did not justifiably rely on the EEOC's advice and the equities were substantially different than in Tuft. Whitfield had engaged counsel between receipt of the first and second letter; after receipt of the second letter Whitfield knew the EEOC procedures had ended; a request for notice of right to sue was not made until two months following receipt of the second letter; and, counsel in cooperation with the EEOC had misused the administrative process thereby delaying the litigation. Thus the court found Whitfield not to be an innocent party suffering prejudice through misleading information supplied by the EEOC.
"A contrary determination would permit a knowledgeable and informed aggrieved party to postpone indefinitely the issuance of a formal right to sue letter and thus delay indefinitely the initiation of the 90 day period prescribed by statute." Lacy v. Chrysler Corp. supra, at p. 361.