The Cleveland Newspaper Guild, Local 1 v. The Plain Dealer Publishing Co. ( 1988 )

MERRITT, Circuit Judge,

concurring.

I agree with the Court’s laches argument in this en banc case if no statute of limitations is applicable.

It seems to me, however, that the Court ignores the fact that there is a statute of limitations written into the statute in question. Subsection (f)(1), 42 U.S.C. § 2000e-5(f)(l), says: “If a charge is filed with the commission” and “if within one hundred and eighty days from the filing of such charge ... the commission has not filed a civil action under this section ... or the commission has not entered into a conciliation agreement to which the person aggrieved is a party, 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_” The statute goes on to provide for a stay of the civil action in federal court for further conciliation: “Upon request, the Court may, in its discretion, stay further proceedings for not more than sixty days pending ... further efforts of the Commission to obtain voluntary compliance.”

The mandatory language of this section requires the EEOC either to bring an action itself or enter into a conciliation agreement, failing which the commission “shall so notify” the charging party within 180 days. Here the commission failed to give any notice for two years. It seems to me that Congress plainly intended by enacting the ninety day filing requirement and the sixty day stay provision to require both the EEOC and the courts not to allow disputes under this section to fester and drag on indefinitely. I would therefore interpret this section to provide a 180 day EEOC conciliation period, at the end of which the employer can require the EEOC to send the contemplated notice. The court can then allow another period of “not more than sixty days” for conciliation; the judicial proceedings must then go forward. That is what the plain language of the statute contemplates, and that is the way it should be enforced.

The Second Circuit in DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir.1975), interpreted the 90 day requirement for filing a civil action as a statute of limitations for these disputes, and I agree. Under such an interpretation there is no need for the application of the “equitable” doctrine of laches because there is a “legal” statute of repose.

Here the EEOC did not give the required notice at the end of the 180 day period, and the employer did not insist on it. In such cases, the 90 day period is not triggered until the EEOC affirmatively notifies the charging party that it “has not entered into a conciliation agreement,” thereby extending the 180 day period until EEOC notice is given. That notice was plainly given on April 12, 1974, two years after the charge was filed. The notice further advised the charging parties that they could sue in federal court since the EEOC had not been able to process the case. The 90 day period began to run at that time, and it would have run long before this suit was brought.

We should not permit the EEOC to alter the clear language of the statute by regulation. The regulations set up a procedural regime which is inconsistent with the procedure contemplated by 42 U.S.C. § 2000e-5(f)(l). The regulations provide that an aggrieved party may request notice of right to sue and the EEOC shall issue such notice “at any time after the expiration” of 180 days from the date of filing of the charge. 29 C.F.R. § 1601.28(a)(1) (1987). The regulations further purport to authorize aggrieved persons to bring a civil action within 90 days from the receipt of the notice of right to sue. 29 C.F.R. § 1601.28(e)(1) (1987). The statute, however, clearly states that if within 180 days from the filing of the charge, the commission has not filed a civil action or entered into a conciliation agreement, the commission must notify the aggrieved person and “within ninety days after the giving of such notice a civil action may be brought....” 42 U.S.C. § 2000e-5(f)(l). This language clearly contemplates that the notice from the EEOC be timely and that the 90 day statute of limitations run from that notice. In this case, the Guild received the notice contemplated by the statute in 1974, thus triggering the 90 day statute of limitations.

It seems to me that this 90 day period should be used as the period of limitations in light of the words of the statute. In view of the conflicts in the circuits and the confusion with respect to the applicability of the 90 day statute of limitations, I would apply this rule prospectively as did the Second Circuit in the DeMatteis case, not retroactively. See DeMatteis v. Eastman Kodak Co., 520 F.2d 409 (2d Cir.1975) (on rehearing). Normal tolling doctrines, including equitable tolling, should apply. See Morgan v. Washington Mfg Co., 660 F.2d 710 (6th Cir.1981). I would emphasize that I agree with the court that there must be a laches period if the 90 day language of the statute is not applied.¹ Otherwise the dispute could drag on for fifty years or more. Immortality is divinely to be wished for lawyers but not for their lawsuits and their appeals.

1 . Subject to rebuttal, the laches period should presumptively be the same 90 day period as provided for in the statute. See Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362 (6th Cir.1985), cert. denied, 476 U.S. 1158, 106 S.Ct. 2277, 90 L.Ed.2d 719 (1986).