Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 3957 - Joseph Sam Perry, Judge.
Before Fairchild and Wood, Circuit Judges, and Reynolds, District Judge.*fn*
This is an appeal from the dismissal with prejudice of plaintiff-appellant Dan Archie's first amended complaint. For the reasons hereinafter stated, we affirm in part and reverse in part.
Archie is a black man who was employed as a dock worker by respondent ABC Trans National Transport ("ABC") to load freight onto trucks. He was discharged on January 31, 1975, for allegedly improperly tallying freight. Archie appealed to his union, Chicago Truck Drivers, Helpers and Warehouse Workers Union (the "Union"), which conferred with ABC. ABC agreed to re-employ Archie on condition that he sign a statement agreeing to accept re-employment "with the understanding that in the event of any recurrence of failure to properly check freight, for one year from date of signature, such recurrence will result in the irretrievable termination of my employment." (First Amended Complaint, Exh. 3) Archie returned to work on February 12, 1975, and on June 30, 1975, he was discharged for an error in loading freight.
Archie filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC referred the charge to the Illinois Fair Employment Practices Commission which conducted an investigation of the charge and reported its findings that there was no basis for the charge to the EEOC. The EEOC adopted the findings of the Illinois Commission. The EEOC served a ninety-day notice of right-to-sue on Archie, which notice he claims to have received on August 6, 1976. He then filed with the district court on October 27, 1976, a pro se document entitled "Complaint and Motion for Other Relief." The Court denied his petition for leave to proceed in forma pauperis but did appoint counsel to represent him. On motion, Archie was given leave to file an amended complaint, which he did on November 30, 1976.
In the amended complaint Archie asserted a cause of action under the equal employment opportunity provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against his employer and the Union; a cause of action based on breach of the duty of fair representation by the Union; and a cause of action against the EEOC and its acting director Roscoe Jones, arising out of the alleged failure of the EEOC to perform its statutory duty to investigate charges of discrimination filed with it. The Union and the employer moved to dismiss the Title VII aspects of the complaint and the EEOC and Jones moved to dismiss the complaint as to themselves. The district court dismissed the entire complaint with prejudice. Appellant's motion for reconsideration and for leave to file a second amended complaint was also denied.
Four issues are presented on this appeal:
1. With respect to the Title VII claims, whether appellant's complaint was timely filed within the meaning of 42 U.S.C. § 2000e-5(f)(1).
2. Whether appellant adequately stated a claim against the Union for breach of its duty of fair representation in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
3. Whether the appellant stated a claim under the Civil Rights Act of 1866, 42 U.S.C. § 1981.
4. Whether the appellant stated a claim against the EEOC and its acting director Roscoe Jones for breach of their alleged statutory duty to investigate appellant's claim of racial discrimination in employment.
We will deal with each question separately below.
Section 2000e-5(f)(1) of Title 42 U.S.C. provides in part:
" * * * If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, * * * the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved * * *. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. * * * "
Compliance by a complainant with the ninety-day period following the giving of notice for commencement of an action is a jurisdictional prerequisite to suit, and failure to comply with that time limitation will terminate the complainant's cause of action. Harris v. National Tea Company, 454 F.2d 307 (7th Cir. 1971); Choate v. Caterpillar Tractor Company, 402 F.2d 357 (7th Cir. 1968); Terry v. Bridgeport Grain Company, 519 F.2d 806 (7th Cir. 1975).
Archie filed his charge with the EEOC against ABC and the Union within 180 days of his discharge from employment by ABC as required by 42 U.S.C. § 2000e-5(f)(1). The EEOC issued its notice of right-to-sue as required by that statute on July 23, 1976, and the certified mail receipt shows that the notice was received by Dorothy Archie, who is appellant's wife, at appellant's home address on July 28, 1976. In an affidavit submitted in opposition to the motions of the defendant-employer and of the defendant-Union to dismiss the complaint, however, Archie asserts that he first became aware of the notice and received it from his wife on August 6, 1976. Thus, an issue is presented as to the date on which the ninety-day period for filing suit commenced to run within the meaning of 42 U.S.C. § 2000e-5(f)(1). If it commenced on the date that Archie's wife received the notice, then the complaint filed on October 27, 1976, was untimely because it was filed ninety-one days after receipt of the notice, see Melendez v. Singer-Friden Corp., 529 F.2d 321 (10th Cir. 1976) (dismissal proper where complaint filed ninety-one days after receipt of notice of right-to-sue), and the Title VII claims were properly dismissed. If, however, the time for filing suit commenced on the date on which Archie claims to have actually received the notice, then the complaint was timely filed and the dismissal was improper.
The district court did not consider the issue of date of receipt because it found that Archie's action was not commenced until his first amended complaint was filed on November 30, 1976. For the reasons given below, we disagree and find that the action was commenced on October 27, 1976. Therefore, we must now consider the issue of date of receipt of the notice.
The respondents ABC and the Union argue that if the notice of right-to-sue is left with a person of suitable age and discretion who resides at the plaintiff's residence, then the ninety-day period for commencement of a suit should begin to run from the date of receipt by that person. See Krieger v. Republic Van Lines of the Southwest, Inc., 435 F. Supp. 335 (S.D.Texas 1977) (notice received by plaintiff's mother and given by her to plaintiff three days later); Wong v. Bon Marche, 508 F.2d 1249 (9th Cir. 1975) (alleged diligence in acting to present a claim in federal court will not excuse failure to comply with ninety-day limitation). In Krieger, the Court stated at 337:
"A rule that the 90-day period does not commence until a date alleged by the plaintiff to be that of actual receipt would result in the anomaly of a jurisdictional filing deadline being subject to extension at will by any plaintiff willing to testify that he did not actually receive his suit letter until some time after the date indicated by the only objective evidence available, namely, the receipt for certified mail signed at the time of delivery. Such a construction of the statute is completely unwarranted. Rule 4(d)(1) of the Federal Rules of Civil Procedure provides guidance for this situation. If the suit letter is left with and signed for by a person of suitable age and discretion who resides at plaintiff's dwelling, then the 90-day period begins to run from the date of receipt by that person, unless plaintiff received actual notice at such a late date as to prejudice plaintiff in trying to timely file suit."
Rule 4(d)(1), however, provides expressly that a summons and complaint may be served on an individual (and the period for answering will thus begin to run) by leaving copies thereof with some person of suitable age and discretion at the individual's usual place of abode. Section 2000e-5(f)(1), 42 U.S.C., contains no such provision. Thus, we must determine, in the absence of an explicit congressional directive, what was meant by the phrase "the giving of * * * notice * * * " as used in that statute.
It is clearly the rule that the "giving of * * * notice" language in 42 U.S.C. § 2000e-5(f)(1) refers not to the date on which the EEOC mails notice of right-to-sue to the complainant, but rather at a minimum to the date on which such notice is delivered to the address to which it is mailed. Harris v. National Tea Company, 454 F.2d 307 (7th Cir. 1971). Appellant cites a number of cases which he claims further support an interpretation of the "giving of * * * notice" language as referring to the date of actual rather than constructive receipt. With the exception of Franks v. Bowman Transportation Company, 495 F.2d 398 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976), none of the cases are really on point.
In Harris, supra, the notice was received by the plaintiff herself, and thus the case does not involve the issue of whether or not constructive receipt would have provided sufficient notice. Similarly Plunkett v. Roadway Express, Inc., 504 F.2d 417 (10th Cir. 1974), and Marshall v. Electric Hose and Rubber Company, 65 F.R.D. 599 (D.Del.1974) decide only that the ninety-day period runs from the date of receipt and not from the date of mailing by the EEOC. In Goodman v. City Products Corporation, Ben Franklin Division, 425 F.2d 702 (6th Cir. 1970), the Court found at page 704 that "there is no allegation or showing in the record of circumstances justifying a tolling of the statute (of limitation) on recognized equitable principles," and therefore it did not decide what, if any, considerations might justify such a tolling. Only in Franks v. Bowman Transportation Company, supra, did the Court squarely hold that the doctrine of constructive receipt does not apply to the notification procedure in Title VII. We note, however, that in that case the right-to-sue letter was received by plaintiff's nine-year-old nephew who subsequently lost it, and therefore the case is distinguishable on its facts from this action.
The Supreme Court has stated in Kavanagh v. Noble, 332 U.S. 535, 539, 68 S. Ct. 235, 237, 92 L. Ed. 150 (1947), that statutory time limitations for filing suit
" * * * are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary. Rosenman v. United States, 323 U.S. 658, 661 (65 S. Ct. 536, 538, 89 L. Ed. 535). Remedies for resulting inequities are to be provided by Congress, not the courts."
Nevertheless, it is for the courts to interpret the provisions for limitation on suits which Congress has seen fit to impose. Defendants would have us find that the establishment of a date certain for commencement of the ninety-day period, as evidenced by the certified mail receipt indicating delivery of the notice to the plaintiff's place of residence, comports with the congressional intent to cut off claims under Title VII after passage of the ninety-day period. On the other hand, Congress saw fit in 1972 to extend the period for commencing suit under Title VII from thirty to ninety days. P.L. 92-261, § 14, 86 Stat. 113 (1972). While the legislative history of this portion of the 1972 amendment is not illuminating, see 118 Cong.Rec. 7166 et seq. (1972) and Senate Committee on Labor & Public Welfare, Legislative History of the Equal Employment Opportunity Act of 1972, 92d Cong., 2d Session, at 1847 (1972), it is logical to assume that the extension was a remedy for the "perceived inequities" of the shorter thirty-day limit. It indicates, in our opinion, the concern of Congress that a claimant under Title VII have a sufficient, albeit limited, period in which to commence an action. Were we to read the doctrine of constructive receipt into the language of 42 ...