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BRISBANE v. PORT AUTH. OF NEW YORK & NEW JERSEY

June 15, 1976

Elizabeth Brisbane, Plaintiff
v.
The Port Authority of New York And New Jersey et al., Defendants


Owen, D.J.


The opinion of the court was delivered by: OWEN

OWEN, D.J.:

Underlying this motion to dismiss is a dispute between defendant, The Port Authority of New York and New Jersey, and the EEOC over an interpretation of certain procedural provisions of Title VII. Caught in the middle is the plaintiff in this action whose reliance upon the EEOC interpretation is the basis for defendant's motion to dismiss. The defendant argues that although she filed her action within ninety days of receipt of a right-to-sue letter from the Justice Department -- as she had been instructed to do by the EEOC -- her case should nonetheless be dismissed because she brought suit more than ninety days after receipt of the EEOC's no probable cause determination.

 Plaintiff Elizabeth Brisbane filed a complaint with the EEOC against her employer, the Port Authority, on May 8, 1974. On November 28, 1975, the EEOC sent her a letter entitled, "Determination," which, after reviewing the charges and stating the Agency's factual findings, concluded that "there is not reasonable cause to believe that Respondent engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964." The letter closed by informing her that:

 
This determination concludes the Commission's processing of the subject charge. Should the Charging Party wish to pursue this matter further, she may do so by filing a private action in Federal District Court within 90 days of her receipt of Notice of Right to Sue which will be issued by the Department of Justice, and by taking the other procedural steps set out in that NOTICE OF RIGHT TO SUE.

 Plaintiff thereafter received a letter from the Department of Justice, dated January 9, 1976, with the heading, "NOTICE OF RIGHT TO SUE WITHIN 90 DAYS." It informed her that she had the right to file a civil action "within 90 days of your receipt of this Notice," and requested her to send the Department a copy of her complaint should she bring suit. She filed suit in this Court on April 2, 1976 -- within 90 days of notice from the Justice Department, but more than 90 days after receipt from the EEOC of the no cause determination.

 Defendant contends that even though plaintiff complied with instructions from the EEOC and the Justice Department, her suit should be dismissed because these agencies have misconstrued the procedure mandated by Title VII as amended in 1972. More specifically, it argues that under the statutory scheme, the EEOC is only authorized to refer suits against governmental bodies to the Attorney General in cases where it has made a threshold determination of probable cause, and that consequently this case is governed by the rule of DeMatteis v. Eastman Kodak Co., 511 F.2d 306, modified on rehearing 520 F.2d 409 (2nd Cir. 1975), which held, in a case not involving a governmental agency, that notice by the Commission of dismissal of charges marks the beginning of the ninety day period in which the complainant has to file suit.

 In Title VII cases where the respondent is a government, governmental agency, or political subdivision and the Commission has been unable to secure a compromise agreement, the statute decrees that the Commission shall refer the case to the Attorney General who may bring a civil action. 42 U.S.C. § 2000e-5(f)(1). It is clear in such cases that the ninety day period does not start until there has been notification by the Attorney General. *fn1" What is in dispute is whether this procedure should extend to cases where the Commission does not make a threshold finding of probable cause, a prerequisite to the commencement of conciliation efforts. 42 U.S.C. § 2000e-5(b).

 The Commission relies on the language of Section (f)(1) which states inter alia :

 
[if] a charge filed with the Commission is dismissed by the Commission, or . .. the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision . .. the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought. . . . 42 U.S.C. § 2000e-5(f)(1).

 On its face, this language would seem to indicate that when the complaint is directed against a governmental body, the Attorney General is delegated to notify the complainant of his right to sue even when there has been no finding of probable cause. But the defendant argues that Section (f)(1), taken in its entirety, only covers those cases where a threshold determination of probable cause has been made, and thus the quoted language only refers to dismissals made after such an initial finding. Accordingly, defendant argues, this case is governed by Section 706(b) which provides that:

 
If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. 42 U.S.C. § 2000e-5(b).

 Defendant cannot, however, carry this argument all the way and contend that Section (f)(1) is irrelevant here because only that Section contains the ninety day limit to bring suit. Thus, defendant must argue that although Section (f)(1) time limits govern this case, the notification procedure prerequisite for bringing suit is contained in Section (b). Apart from the apparently conflicting language of Sections (b) and (f)(1) that has been quoted, the statute is silent on whether this was the Congressional intent and the legislative history is unilluminating. *fn2"

 In a brief filed amicus curiae the EEOC states that it has consistently interpreted Title VII as requiring it to forward to the Justice Department all complaints against governmental bodies, whether or not there is a determination of probable cause. And the correspondence sent to plaintiff by the EEOC and the Justice Department clearly indicates that both agencies read the statute as placing the responsibility on the latter to notify the complainant of the right to sue. The statutory interpretation of these agencies is entitled to great deference; Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965); Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); especially here where the statutory question is essentially one of the procedures by which they coordinate their activities.

 Defendant argues, however, that a decision in its favor is compelled by the Second Circuit's holding in DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (1975). Since the court in DeMatteis held that it was the receipt of the no cause finding rather than receipt of the right to sue letter which started the running of the ninety day period, defendant claims that the same result should be reached here. But DeMatteis involved the distinctly different situation of a Title VII suit against a private employer. Because the statute limits the Attorney General's involvement to complaints against governmental bodies, the basic question here of who should notify the complainant was entirely absent. The ...


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