On Appeal from the United States District Court for the District of New Jersey.
Weis, Becker, Circuit Judges, and Oliver, District Judge*fn*
The principal question presented by this appeal is whether pleading the issuance of a right-to-sue letter is a jurisdictional prerequisite to maintaining an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. We hold that it is not, and that the district court erred as a matter of law in dismissing parts of appellant's complaint on jurisdictional grounds for failing to allege that such a letter had been issued. We also hold, alternatively, that the district court abused its discretion in not allowing the appellant leave to amend her complaint, under Fed. R. Civ. P. 15, to allege the issuance of the right-to-sue letter.
Appellant Vivian Gooding, a black female, was hired as a grade 27 secretary by defendant Warner-Lambert Company on March 28, 1977. In August 1978 appellant was promoted to grade 28 and became the secretary to Frank Chow, Associate Patent Counsel. At the time, the Patent Counsel for the company was Albert Graddis. His secretary Rose Armstrong, a white female, was a grade 29 employee.
Warner-Lambert merged with Parke-Davis Company in 1978, retaining the Warner-Lambert name. In October 1978 the patent departments of the two companies were consolidated, and Mr. Graddis became head of the consolidated department. The consolidation resulted in the creation of a new position, Patent Administrator, classified as a grade 29 position, and also resulted in a reorganization of secretarial assignments, which effectively eliminated Ms. Armstrong's position. Ms. Armstrong, who already was doing most of the work that the new Patent Administrator was expected to do, was given the job. The company did not follow its usual procedure of posting the availability of the position.
Appellant, believing that the decision to give the Patent Administrator position to a white female without posting it was racially discriminatory because it effectively excluded herself and another allegedly qualified black female from applying for the job, filed a complaint with the Equal Employment Opportunity Commission (EEOC) on February 9, 1979. In her complaint, appellant set forth the facts stated above.
Following the filing of her complaint, Ms. Gooding felt that she was subject to retaliatory action by Warner-Lambert personnel, particularly Mr. Graddis. On May 1, 1979, she added a handwritten amendment to her complaint, charging that Warner-Lambert was retaliating against her for filing her EEOC complaint by not allowing her to assign work to junior secretaries. On August 20, 1979, appellant filed a second complaint with the EEOC, which elaborated on the alleged retaliatory actions. She alleged that she had been verbally harassed, placed under surveillance by co-workers, denied optional overtime opportunities, and had been restricted in her use of certain facilities. On December 21, 1979, this second complaint was also amended to include two more instances of alleged retaliatory activity.
On November 27, 1979, the EEOC issued a "right to sue" letter on the first complaint, the discrimination-in-promotion complaint, determining that there was not probable cause to believe that the allegations made in the complaint were true.*fn1 Thereafter, on February 21, 1980, appellant filed this suit in the United States District Court for the District of New Jersey, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The complaint alleged issuance of the right-to-sue letter, and set out in detail the basis for her discrimination-in-promotion claim. The complaint also detailed the factual basis for appellant's second EEOC complaint, the retaliatory discrimination complaint, even though the EEOC had not yet issued a right-to-sue letter for that complaint. On July 30, 1980, the EEOC issued a right-to-sue letter on appellant's retaliatory discrimination charge without a determination of probable cause.*fn2
After discovery, Warner-Lambert moved for dismissal, under Fed. R. Civ. P. 12(b)(1), of that portion of appellant's complaint relating to the retaliatory discrimination claim. The motion alleged that the issuance of a right-to-sue letter is a jurisdictional prerequisite to filing a Title VII lawsuit, that Fed. R. Civ. P. 8 requires a plaintiff to specifically allege the jurisdictional basis of the lawsuit in the complaint, and that appellant's complaint did not specifically allege issuance of the second right-to-sue letter. Appellant responded that she had specifically alleged the facts underlying her retaliatory discrimination charge in the complaint, thereby making the absence of an allegation that the second right-to-sue letter had been issued irrelevant. She also argued that the district court should have granted her leave to amend her complaint, pursuant to Fed. R. Civ. P. 15, to allege the issuance of the second right-to-sue letter. Warner-Lambert opposed this argument on the ground that the statutory time limit for filing a Title VII suit is 90 days, 42 U.S.C. § 2000e-5(f)(1), that 90 days had elapsed since issuance of the second right-to-sue letter before leave to amend was requested, and that therefore appellant was time-barred from amending her complaint.
On January 4, 1983, the district court granted Warner-Lambert's 12(b)(1) motion as to the retaliatory discrimination claim, holding that pleading the issuance of a right-to-sue letter is a jurisdictional prerequisite to bringing a Title VII suit in federal court. The court denied plaintiff leave to amend her complaint to allege the issuance of the second right-to-sue letter, on the ground that the amendment was time-barred. It therefore ordered that the counts of the complaint alleging retaliatory discrimination be dismissed with prejudice.*fn3
The case was re-assigned to another district judge, and on July 7, 1983, Warner-Lambert moved for summary judgment, pursuant to Rule 56(b) on the remaining counts, which alleged discrimination in promotion. The court granted the motion on the ground that plaintiff had adduced no evidence to support her claim. Plaintiff appealed, challenging both the dismissal of her retaliatory ...