Appeal by employee from judgment of United States District Court for the Western District of New York, Harold P. Burke, Judge, dismissing charges brought against employer, Eastman Kodak Co., of unlawful employment practices in violation of 42 U.S.C. § 2000e-2; 42 U.S.C. § 1983 and 42 U.S.C. § 1981. Judgment affirmed as to § 2000e-2 and § 1983 but reversed as to § 1981.
Kaufman, Chief Judge, Anderson and Feinberg, Circuit Judges.
ROBERT P. ANDERSON, Circuit Judge:
David DeMatteis, the appellant, filed a charge on or about February 26, 1972 with the Equal Employment Opportunity Commission (the Commission), in which he alleged that the Eastman Kodak Co. (Kodak), for which he, a white man, had worked more than thirty years, forced him into premature retirement solely because he had sold his house, located in a neighborhood inhabited primarily by white Kodak employees, to a black fellow-employee.*fn1 Kodak, it is claimed, thereby violated § 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.*fn2
The Commission informed DeMatteis in a letter dated May 8, 1973 that it had determined, after conducting an investigation, that there was not reasonable cause to believe that DeMatteis' charge against Kodak, alleging a violation of the Act, was true, that it had therefore "dismissed" his charge, and that he had the right ". . . as set out under Section 706 [of the Act]" to commence a civil suit on the Title VII claim in the United States District Court.*fn3
"If a charge filed with the Commission . . . 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 . . . by the person claiming to be aggrieved . . .." 42 U.S.C. § 2000 e-5(f)(1).
After he received the Commission's determination and notice of dismissal of his charge against Kodak and of his statutory right to file a civil action in the United States District Court, DeMatteis retained counsel. Although the 90-day limitation from May 8, 1973, the date of the determination and dismissal, had not run out, counsel did not then bring such an action, but decided that DeMatteis was required first to procure from the Commission a so-called "Notice of Right to Sue" as mentioned in 29 C.F.R. § 1601.25b and § 1601.25c which, among other things, provide:
"At any time after the expiration of one hundred and eighty (180) days from the date of the filing of a charge or upon dismissal of a charge at any stage of the proceedings, an aggrieved person may demand in writing that a notice issue pursuant to § 1601.25, and the Commission shall promptly issue a notice, and provide copies of the charge to all parties." § 1601.25b(c).
DeMatteis never applied for such a notice before he received the findings and determination of the Commission on May 8, 1973. Moreover, counsel may have failed to note that, in the over-all scheme of the regulations, § 1601.25 was designed to take effect "after failure of conciliation." There was no consideration given to conciliation in the present case, as that stage in the procedures was never reached.
At any rate in the middle of July, 1973, counsel asked the Commission for a notice of right to sue and promptly received the Commission's regular form letter which stated that the recipient had 90 days "from the receipt of this Notice" to commence a civil action in the United States District Court.*fn4 Counsel for DeMatteis assumed from the regulation and the wording of the notice of right to sue that the running of the statute of limitations, i.e. the 90 days within which he could bring the action on his Title VII claim, began on the day when he received the notice of right to sue. Counsel did not bring the suit until October 3, 1973 which was long after the 90-day period of limitation provided by the statute as commencing with the letter and notice of May 8, 1973 but well within the 90-day period which began July 26, 1973, as mentioned in the right to sue letter.
In his complaint, seeking a declaratory judgment and damages, DeMatteis alleged that Kodak's action, as outlined above, deprived him of rights secured by the Thirteenth and Fourteenth Amendments to the Constitution, and resulted in specific violations of (1) Title VII of the Civil Rights Act, (2) 42 U.S.C. § 1983, and (3) 42 U.S.C. § 1981.
The district court dismissed appellant's complaint in its entirety on the grounds that the Title VII claim was not timely because filed more than 90 days after receipt of the Commission's determination that reasonable cause did not exist; that the complaint did not allege facts constituting "State Action," requisite for a claim under 42 ...