United States District Court, Northern District of Illinois, E.D
February 25, 1981
HILDA ALLEN, PLAINTIFF,
SCHWAB REHABILITATION HOSPITAL, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
On July 31, 1980 Hilda Allen ("Allen") filed this action
under 42 U.S.C. § 1981 ("Section 1981") against her
employer, Schwab Rehabilitation Hospital ("Schwab"), alleging
that Schwab had engaged in various acts of discrimination
against Allen because she is black. On November 13, 1980 Allen
moved for leave to amend her complaint to include a second
count charging violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, 2000e-2(a) ("Title VII").
Schwab objects to the proposed amendment, claiming that Allen's
Notice of Right to Sue ("right to sue letter"), receipt of
which is a jurisdictional prerequisite to maintaining a Title
VII action in the District Court, was invalidly issued by the
Equal Employment Opportunity Commission ("EEOC"). For the
reasons stated in this memorandum opinion and order, Allen's
motion to amend her complaint is granted.
On March 6, 1980 Allen first filed some of her charges of
unlawful discrimination with the Illinois Fair Employment
Practices Commission ("FEPC") (since renamed the Human Rights
Commission). Specifically Allen claimed that (1) two days
earlier she had learned that Schwab would not promote her to
become its Director of Employee Relations (she was then Acting
Director) and (2) such failure to promote her was because she
Pursuant to its work sharing agreement with EEOC and because
Allen had specifically requested such action when she filed her
Charge of Discrimination,*fn1 FEPC forwarded Allen's charge to
EEOC for registration as a claim March 18, 1980. On May 7, 1980
a fact finding conference was conducted before an FEPC officer,
and the complaint was taken under advisement for a
determination on the merits.*fn2
Sometime in September 1980 Allen apparently requested
issuance by EEOC of a right to sue letter. EEOC did so
September 26, 1980. Allen then filed the present motion,
seeking to have her Title VII claims joined with the previously
filed Section 1981 charges.
Some Arcane Mysteries of Title VII Law
1. Filing Date of Allen's Charges with EEOC
It is axiomatic that a Title VII plaintiff must satisfy two
requirements to maintain a federal court action: timely filing
of employment discrimination charges with EEOC and receipt of
a right to sue letter. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d
668 (1973). Schwab argues that Allen failed to satisfy those
requirements in two respects:
1. Under 42 U.S.C. § 2000e-5(e) ("Section 5(e)"), Schwab
asserts that no aggrieved person who has instituted proceedings
in a state or local agency may file a charge with EEOC until
"three hundred days after the alleged unlawful employment
practice occurred, or . . . thirty days after receiving notice
that the State or local agency has terminated the proceedings
under State or local law, whichever is earlier. . . ." Here the
allegedly unlawful practice — the decision to hire
someone other than Allen as Director of Employee Relations
— took place only 14 days before charges were filed with
EEOC (by FEPC on Allen's behalf), and state proceedings had not
terminated on that date. Thus Schwab argues that Allen's
filing of EEOC charges failed to satisfy either of the
alternative requirements of Section 5(e).
2. Under 42 U.S.C. § 2000e-5(c) ("Section 5(c)"), where
a charge of discrimination cognizable under Title VII may also
be brought under state law in a state agency it cannot be filed
with EEOC "before the expiration of sixty days after
proceedings have been commenced under the State or local law,
unless such proceedings have been earlier terminated . . ."
Schwab contends that Allen's filing with EEOC was ineffective
because it took place only 12 days after institution of the
Schwab's first contention simply reads the statute backwards.
Plain English tells us that the two time periods listed in
Section 5(e) are those within which a charge must be
filed with EEOC rather than periods in which such filing is
Schwab's second contention poses more difficulties. Section
In the case of an alleged unlawful employment
practice occurring in a State . . . authorizing a
State or local authority to grant or seek relief
from such practice . . . no charge may be filed
[with EEOC] . . . before the expiration of sixty
days after proceedings have been commenced under
the State or local law, unless such proceedings
have been earlier terminated. . . .
It is uncontroverted that Allen's filing of an EEOC charge on
March 18, 1980 did not literally comport with Section 5(c),
because the state proceeding had been instituted only 12 days
earlier and was still ongoing. However, Allen argues that upon
expiration of the 60-day period that began March 6, 1980 (with
the state filing) EEOC assumed concurrent jurisdiction with
FEPC over her complaint. In other words, Allen urges that if a
charge is in fact lodged with EEOC before expiration of the
Section 5(c) period, it is automatically deemed
"filed" upon such expiration.
Allen relies on Love v. Pullman Co., 404 U.S. 522,
92 S.Ct. 616, 30 L.Ed.2d 679 (1972). There the plaintiff filed
discrimination charges with EEOC, which referred those charges
to the state agency. After the state agency terminated its own
proceedings and EEOC conducted an investigation, EEOC filed
charges on plaintiff's behalf in the District Court. Defendant
argued that charges had never been filed with EEOC because
plaintiff's filing did not comply with Section 5(c). But the
Supreme Court disagreed (404 U.S. at 526, 92 S.Ct. at 618-19):
[W]e cannot agree with the respondent's claim that
the EEOC may not properly hold a complaint in
"suspended animation," automatically filing it
upon termination of the state proceedings. . . .
To require a second "filing" by the aggrieved
party after termination of state proceedings would
serve no purpose other than the creation of an
additional procedural technicality.
Schwab suggests that Love is inapplicable because
the plaintiff there filed his charge with EEOC in the first
instance, while Allen first filed with a state agency. This
Court discerns nothing either in Love or in any other
authority stating or implying such a restriction. However a
somewhat stronger argument can be made that Love is
not directly applicable because the express language of that
decision approves the concept of suspended animation only when
the state proceeding has terminated and not, as Allen seeks to
use it here, when the Section 5(c) 60-day period has expired.
No Supreme Court opinion has dealt with that issue directly.
Nonetheless, in Mohasco Corp. v. Silver, 447 U.S. 807,
100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Court did apply the
concept of suspended animation where the Section 5(c) period
had expired by the running of the 60-day period rather than by
termination of a state proceeding. Plaintiff in
Mohasco was discharged August 29, 1975 and filed a
complaint with EEOC June 15, 1976, 291 days later. EEOC
the charge to a state agency on the same day, and the agency
dismissed the charge February 9, 1977. On August 24, 1977
plaintiff received EEOC's right to sue letter, stating that it
had determined that "there is not reasonable cause to believe
the charge is true" and that he was entitled to file a private
action in federal district court within 90 days.
Directly at issue in Mohasco was whether plaintiff's
filing of charges with EEOC satisfied the Section 5(e)
requirement that such filing take place within 300 days of the
alleged discrimination, and the Court held that it did not. But
in calculating when the charge had effectively been filed with
EEOC, the Court rejected the contention that it had never been
filed (because the June 15, 1976 filing failed to satisfy the
requirement of Section 5(c)) or that it had been filed at the
time the state agency terminated its proceedings (under the
principle of suspended animation). Instead, citing
Love, the Court concluded that "filing" took place 351
days after the date of the alleged discrimination: 291 days
between the "discrimination date" and plaintiff's attempted
EEOC filing (and EEOC's filing on her behalf with the state
agency) plus the 60-day Section 5(c) period (100 S.Ct.
at 2492). It termed that a "rather straightforward reading of
the statute" (id.).
This Court views the principle applied in Mohasco as
controlling in this case. "Suspended animation" extends to
instances in which, as here, the Section 5(c) 60-day period has
expired while the charge has remained lodged with EEOC. Allen's
charge must therefore be deemed to have been filed with EEOC
May 5, 1980, 60 days after she first filed charges with
2. EEOC's Issuance of a Right To Sue Letter
Section 5(f)(1), 42 U.S.C. § 2000e-5(f)(1), states:
If a charge filed with the [EEOC] . . . is
dismissed, or if within one hundred and eighty
days from the filing of such charge . . . [EEOC]
has not filed a civil action . . . the [EEOC]
. . . shall so notify the person aggrieved and
within ninety days . . . a civil action may be
brought . . . by the person claiming to be
aggrieved. . . .
Allen's charge was effectively filed with EEOC May 5, 1980.
EEOC's right to sue letter issued September 26, 1980 (144 days
later), before dismissal of Allen's charge. Such issuance was
premature, occurring as it did 36 days before expiration of the
Section 5(f) 180-day period.
Courts are in disagreement over the effect of premature
issuance of a right to sue letter. Both the Ninth and Second
Circuits have held that such premature issuance does not
preclude a complainant from filing suit in the District Court.
Bryant v. California Brewers Ass'n, 585 F.2d 421, 425
(9th Cir. 1978), vacated on other grounds,
444 U.S. 158, 100 S.Ct. 1672, 64 L.Ed.2d 253 (1980); Weise v.
Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975). To
the same effect, EEOC has adopted a regulation (
29 C.F.R. § 1601.28(a)(2), the "Regulation") permitting issuance of a right
to sue letter before expiration of the 180-day period,
"[p]rovided, that the District Director . . . has
determined that it is probable that [EEOC] will be unable to
complete its administrative processing of the charge" within
the 180-day period.
Some other Courts have concluded that an improperly issued
right to sue letter precludes the District Court from assuming
jurisdiction over a Title VII claim. See, e.g., Hiduchenko
v. Minneapolis Medical and Diagnostic Center, 467 F. Supp. 103,
107 (D.Minn. 1979); Grimes v. Pitney Bowes, Inc.,
480 F. Supp. 1381, 1383-86 (N.D.Ga. 1979) (holding that the
Regulation conflicts with Section 5(f)). See
generally, Schlei and Grossman, Employment
Discrimination Law 916 (1976).
No decision by the Seventh Circuit has addressed the issue,
and it is unnecessary for this Court to choose between the two
lines of authority to decide the present motion. By issuing the
right to sue letter to Allen, EEOC violated the Regulation,
which authorizes a pre-180-day issuance only upon the
District Director's determination of probable inability to
process the charge within the 180 day period. Allen's right to
sue letter was issued on the erroneous basis that "[m]ore than
180 days have expired since the filing of this charge." EEOC
having failed to comply with its own Regulation, the right to
sue letter must be viewed as invalid at the time it was
Now the remaining 36 days of the 180 day period have expired.
This Court will not require Allen to engage in the pointless
formality of obtaining a second right to sue letter. Under
Section 5(f) it is clear that Allen is entitled to a right to
sue letter without delay: EEOC's letter must be issued
when the period of "one hundred and eighty days from the filing
of such charge" has expired. Nothing in the statute or case law
suggests that period can be tolled, and such tolling would be
especially inappropriate where an EEOC mistake (prematurely
issuing the right to sue letter) was the cause of the problem.
Accordingly, Allen's right to sue letter will be considered to
have been effectively issued on November 1, 1980 (another type
of "suspended animation"), 180 days after Allen is deemed to
have filed her charges with EEOC.
3. EEOC's Failure to Attempt Conciliation
Schwab next contends that EEOC took no action on Allen's
complaint other than issuing the right to sue letter. It
reasons from that contention that Title VII's fundamental
policy that substantive consideration of a
discrimination claim is deferred to EEOC (before consideration
by a court) would be circumvented if this Court now assumed
jurisdiction over Allen's Title VII claim.
That contention is directly contrary to law. EEOC's action or
inaction cannot affect the grievant's substantive rights under
Title VII. See, e.g., Miller v. International Paper
Co., 408 F.2d 283, 290 (5th Cir. 1969).
4. Allen's Pending Request for Review of FEPC Decision
As already stated, FEPC dismissed Allen's charge November 14,
1980. On December 17, 1980 Allen filed a "Request for Review"
of that decision, as she was entitled to do under Illinois law.
Section 5(f) states:
Upon request, the court may, in its discretion,
stay further proceedings for not more than sixty
days pending the termination of State or local
proceedings described in subsections (c) or (d)
[state administrative proceedings such as the FEPC
proceeding]. . . .
Schwab's vigorous objections to federal jurisdiction over
Allen's Title VII claim while state proceedings are ongoing may
be viewed as a "request" to stay federal proceedings. More than
60 days have elapsed since Allen's Request for Review, and this
Court sees no constructive purpose to be served by such a stay.
Schwab's "request" is denied.
This excursion through some of the wildernesses of Title VII
has resembled nothing so much as a voyage to Lilliput
(including the dispute between the Big-Endians and the
Little-Endians).*fn5 As already indicated, its conclusion is
fortunately simpler to chart:
1. Allen's motion to amend the complaint is granted.
2. Schwab is ordered to answer the complaint as amended on or
before March 6, 1981.
3. This case is set for a further status report.