The opinion of the court was delivered by: WEBER
This action, seeking money damages and injunctive relief, is based on the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff claims that defendants unlawfully discriminated against him on the basis of his national origin. Presently before the Court are separate motions by each of the defendants seeking dismissal of the action for lack of subject matter jurisdiction.
On numerous occasions during plaintiff's layoff, plaintiff complained to defendant Local No. 6 that defendant Joseph Horne Company was discriminating against him and hiring those with less seniority. Plaintiff claims that despite his grievances, defendant Local No. 6 permitted Joseph Horne Company to continue its discriminatory practice by hiring individuals with less seniority than plaintiff. Plaintiff alleges that the local's actions were not in good faith but were also discriminatory in nature and motivated by animosity toward the plaintiff, resulting from a collusive understanding between the two defendants. Consequently, plaintiff claims that Local No. 6 breached its duty of fair representation owed to the plaintiff.
On September 1, 1972, plaintiff filed a written charge with the Equal Employment Opportunity Commission (EEOC) claiming that Joseph Horne Company wrongfully terminated his employment. On October 5, 1973, the EEOC found reasonable cause to believe that the charge was true and issued a letter of determination to that effect. On November 14, 1974, the EEOC district director wrote plaintiff advising him
". . . that after careful review, the Commission has decided not to initiate litigation against the Respondent named in your charge.
If you want to pursue your charge further you have the right to sue the Respondent named in your case in the United States District Court in which you live.
In order to proceed in this matter you must make a written request for a 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."
On December 4, 1974, counsel for plaintiff wrote the EEOC requesting a "Notice of Right to Sue" letter. On December 6, 1974, the EEOC issued such letter, the contents of which read, inter alia :
"Pursuant to Section 706F(1) of Title VII of the Civil Rights Act of 1964. . . ., you are hereby notified that you may, within ninety (90) days of the receipt of this communication, institute a civil action in the appropriate Federal District Court."
On March 6, 1975, the Complaint in this action was filed.
The substance of defendants' Motions to Dismiss is that this Court lacks subject matter jurisdiction since the Complaint is untimely, the 90 day limitation period under § 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1), beginning to run on November 14, 1974, when the EEOC first notified plaintiff that it had decided not to institute litigation.
Accordingly, defendants contend that plaintiff should have filed his 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. ...