Appeal from the United States District Court for the Northern District of Illinois. No. 80 C 5659 -- Nicholas J. Bua, Judge.
Potter Stewart, Associate Justice,*fn* Pell and Robert A. Sprecher,*fn** Circuit Judges.
Appellant Apolonio A. Pastrana appeals from the district court's finding that his national origin discrimination charge was not timely under sections 706(c) and (e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5(c) and (e) (1976). The correctness of the district judge's determination turns on whether the extended 300-day time limitation provided by section 706(e), id. § 2000e-5(e), was available to Pastrana by virtue of his having "initially instituted proceedings with a state or local agency with authority to grant or seek relief," id., from the defendant's alleged national origin discrimination.
Appellant Apolonio Pastrana, a Filipino, applied for a job as In-Process Inspector with Federal Mogul Corporation (Federal Mogul or Company) on September 26, 1979. Following a Company physical examination, which disclosed that Pastrana was overweight, suffered from psoriasis and from a visual problem, his employment application was deferred. Pastrana subsequently presented notes from his personal physicians indicating that neither the psoriasis nor the visual problem would interfere with his employment.*fn1 Despite these releases, Federal Mogul declined to hire Pastrana on either October 22 or October 23, 1979.*fn2
On October 1, 1979, before Pastrana had presented his optometrist's statement to Federal Mogul, Pastrana filled out a Complainant Information Sheet (CIS) at the offices of the Illinois Fair Employment Practices Commission (Illinois FEPC). In response to a question asking Pastrana to check all categories applicable to his discrimination charge, he checked those specifying physical handicap, national origin, race, and color. The form Pastrana completed directed his attention to the fact that, "the law requires that a charge be filed within 180 days from the date of the alleged discrimination." (Emphasis in original) Pastrana signed the CIS but his signature was not notarized. The Illinois FEPC took no action at that time regarding Pastrana's complaint.
On October 24, 1979, Pastrana returned to the Illinois FEPC and was interviewed by an intake officer. Although Pastrana's CIS form was in his file, the intake officer drafted a formal charge alleging only physical handicap discrimination. Pastrana signed and swore to the charge before a notary public.
On April 14, 1980, the Illinois FEPC issued an Investigation Report concluding that there was a lack of substantial evidence that Pastrana was denied employment because of his physical condition. On April 24, the Illinois FEPC notified Pastrana that his physical handicap discrimination charge should be dismissed for lack of substantial evidence. That same day, Pastrana filed a Request for Reconsideration. In addition to requesting that his physical handicap discrimination charge be reconsidered and reviewed by the full Commission, Pastrana wrote at the bottom of the last handwritten page that he believed he was not hired because of his "national origin as a Philippine." The April 24, 1980, filing date of the Request for Reconsideration was more than 180 days after the alleged discrimination had occurred. The Illinois agency did not remand Pastrana's case for additional fact-finding relating to the national origin discrimination charge. The state agency denied the Request for Reconsideration without specifying its reasons.*fn3
On May 21, 1980, Pastrana filled out an EEOC Intake Questionnaire at the Chicago office of the Equal Employment Opportunity Commission (EEOC). He alleged that he had been discriminated against because of both his physical handicap and his national origin. On July 11, 1980, 288 days after the alleged discrimination occurred, the EEOC docketed Pastrana's charge of national origin discrimination. On that same day, the EEOC sent a Charge Transmittal form to the Illinois FEPC. This form gave the FEPC two options: (1) to process the charge and ask the EEOC to refrain from processing it until the FEPC reached a final disposition, or (2) to decide not to process the charge at all. The FEPC declined to process Pastrana's charge. This terminated state proceedings as to the national origin discrimination claim. On July 14, 1980, Pastrana signed a formal EEOC charge alleging national origin discrimination. Another Charge Transmittal form was sent to the Illinois FEPC and that agency again declined to process the charge.
On October 10, 1980, the EEOC issued its determination on the merits, stating that "examination of the evidence indicates that there is not reasonable cause to believe that this allegation is true." The EEOC advised Pastrana of his right to sue in federal court. On October 23, 1980, Pastrana filed his Title VII action pro se in the Northern District of Illinois.
On December 8, 1980, Federal Mogul moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that Pastrana had failed to comply with the 180-day time limitation prescribed by section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e) (1976). The district judge granted this motion on January 27, 1981. The order granted Pastrana leave to move for reinstatement if he could show that, as a consequence of his physical handicap discrimination claim filed with the Illinois FEPC, his national origin claim also received consideration by that entity. Pastrana subsequently presented the Request for Reconsideration forms and the two Charge Transmittal forms to the district court. On March 11, 1981, Judge Bua issued a brief minute order refusing to reinstate Pastrana's claim and dismissing it with prejudice.
Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e) ...