June 27, 1972
JAMES A. MOORE, JR., PLAINTIFF-APPELLANT
SUNBEAM CORPORATION ET AL., DEFENDANTS-APPELLEES.
Corrected Order on Petition for Rehearing
The Order on Petition for Rehearing entered May 23, 1972, is hereby corrected to read as follows:
In support of a petition for rehearing, the Equal Employment Opportunity Commission has filed a brief amicus curiae calling our attention to Vigil v. American Tel. & Tel., 455 F.2d 1222 (10th Cir. Feb. 18, 1972), which affirmed the district court case cited in note 37 of our opinion. The Tenth Circuit held, in the alternative, (1) that the 210-day period was tolled by EEOC referral to a state agency or (2) that the EEOC could treat the charge as "filed" when received but could defer processing until the state agency had an opportunity to act*fn1 The latter theory is the theory on which the Commission based the regulation discussed and rejected at pages 18 through 20 of our opinion*fn2 The EEOC has not attempted to defend its regulation in its amicus brief. Instead, it relies on the "tolling" theory of the Vigil case, which, as we have noted, is inconsistent with its own regulation. Although we did not expressly consider the tolling argument, since it was not urged upon us by Moore, it is foreclosed by our analysis of the statute. In our view the statute provides a basic limitations period of 90 days, which may be extended (or "tolled") to a maximum of 210 days. We do not think that Congress intended a further extension (or a second "tolling") to achieve the same purpose (time for state consideration) as the original enlargement of the 90-day period to 210 days in those states which have a Fair Employment Practice Agency. If Congress had so intended, we believe it would have included such a provision instead of the 210-day limitation. Moreover, the difficult questions of statutory construction will seldom arise if the complainant's original filing is within the basic 90-day period. Although we may share the EEOC's view that less diligence should have been required, we must respect the legislature's choice of the appropriate period of limitations, whether that choice was made to effectuate the policies of the Act or as an element of a compromise that enabled it to pass.
The EEOC has also called our attention to a Conference Report on H.R. 1746, Equal Employment Opportunity Act of 1972, which was issued shortly before our opinion was released and was printed in the Congressional Record for March 2, 1972, pp. H1694-H1699 (Daily ed.), and to a section-by-section analysis of the bill presented to the House by Congressman Perkins, printed in the Congressional Record for March 8, 1972, pp. H1861-H1864 (Daily ed.). The Conference Report cites Love v. Pullman Co., 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616, which we have followed, but does not even mention Vigil The analysis presented by Congressman Perkins cites Vigil with approval. For reasons which are obvious, we do not believe that those 1972 references can be used to shed any light on the proper interpretation of the 1964 legislation, or can be used as evidence of what Congress might have done if Vigil had been decided differently.
We inadvertently stated that 60 days from October 19 was December 19, rather than December 18. Accordingly, our opinion is modified to permit the district court to consider any unlawful practice occurring after May 22, 1967, and prior to August 7, 1967. In all other respects, the petition for rehearing is denied, including the suggestion that the case be reheard en banc.