Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 75-41-C Cale J. Holder, Judge.
Castle, Senior Circuit Judge, Swygert and Cummings, Circuit Judges.
This is an employment discrimination action brought by plaintiff-appellant under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The issue is whether the ninety day period for filing suit pursuant to 42 U.S.C. § 2000e-5(f)(1)*fn1 begins to run at the time notice is given to the aggrieved party by the Equal Employment Opportunity Commission (EEOC) that conciliation efforts have failed and that he may request a "right-to-sue" letter or at the time the "right-to-sue" letter is received. The district court held that the ninety day period began to run at the time of the notice of failure of conciliation. We reverse.
In 1969 the plaintiff-appellant Letcher McGuire filed an administrative complaint with the EEOC alleging that Aluminum Company of America, his employer, had racially discriminated against him by demoting him from his position as fire brickmason in violation of Title VII of the Civil Rights Act of 1964. The EEOC found reasonable cause to believe that the defendant violated Title VII and attempted conciliation of the plaintiff's claim. As a result of the conciliation efforts of the EEOC, the plaintiff was reinstated as a fire brickmason. The EEOC was unable, however, to secure payment of back wages for the interim period.
In a letter dated December 20, 1974, the EEOC advised the plaintiff that conciliation efforts with the defendant had failed. The letter further advised the plaintiff that he could request a "right-to-sue" letter from the EEOC and that upon receipt of such letter he would have ninety days in which to file suit in federal court. In a letter postmarked February 19, 1975, the plaintiff requested a "right-to-sue" letter which the EEOC issued on February 25. He then filed this action in federal district court on April 1, 1975 within the ninety day period specified in the "right-to-sue" letter.
The defendant filed a motion to dismiss for lack of subject matter jurisdiction contending that the ninety day limitation period of 42 U.S.C. § 2000e-5(f)(1) commences to run at the time of notice of failure to conciliate, in this case, December 20, 1975. Because the plaintiff filed his complaint over one hundred days after December 20, 1975, the defendant contends that his filing was untimely. The district court dismissed the plaintiff's complaint with prejudice. This appeal followed.
We hold that the ninety day limitation period commenced to run at the time the plaintiff received the letter notifying him of his right to sue. Our holding is supported by Tuft v. McDonnell Douglas, 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052, 46 L. Ed. 2d 641, 96 S. Ct. 782 (1976); Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976); Williams v. Southern Union Gas Co., 529 F.2d 483 (10th Cir. 1976); and Garner v. E.I. du Pont de Nemours & Company, 538 F.2d 611 (4th Cir., 1976). Cf. DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir. 1975), as modified, 163 U.S. App. D.C. 389, 502 F.2d 391.
The decision of the district court is reversed and the cause is remanded for further proceedings ...