8 Fair Empl.prac.cas. 817, 8 Empl. Prac. Dec. P 9702joe Louis Plunkett, Plaintiff-appellant, v. Roadway Express, Inc., a Corporation, Defendant-appellee, 504 F.2d 417 (10th Cir. 1974)

Joe Louis Plunkett appeals from an order of the United States District Court for the Western District of Oklahoma dismissing his action against Roadway Express, Inc., brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et esq. Plunkett initially filed charges of employment discrimination against Roadway with the Equal Employment Opportunity Commission in 1972. At Plunkett's request and in accordance with Commission regulations, 29 C.F.R. 1601.25, the Commission on July 31, 1973, mailed him notice of his right to sue Roadway in federal district court. Plunkett received the notice by certified mail on August 3, 1973. He instituted this action on October 31, 1973, 92 days after the Commission sent notice and 89 days after he received it. The district court dismissed on the ground that the 90-day period in which a party must file suit under section 706(f) of Title VII, 42 U.S.C. 2000e-5(f) (1), runs from the date on which the Commission mails notice of the right to sue and that Plunkett's action was not therefore timely filed.¹  We severse.

Section 706(f) (1), as amended in 1972, provides:

If . . . 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 . . ..

Prior to the 1972 amendments of Title VII, section 706 provided:

If . . . the Commission has been unable to obtain voluntary compliance with this title, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge . . .. 78 Stat. 259 (1964).

The Supreme Court twice construed the unamended statute to require the thirty-day period to begin to run from the date on which the Commission's notice is received. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 39 L. Ed. 2d 147; McDonnell Douglas Corp. v. Green 411 U.S. 792, 798, 93 S. Ct. 1817, 36 L. Ed. 2d 668. See also Archuleta v. Duffy'a Inc., 10 Cir., 471 F.2d 33. The court below held that the 1972 amendment, besides lengthening to 90 days the period within which aggrieved persons may sue, also changed the date on which the period begins to the date of the Commission's mailing of notice.

The language of the 1972 amendment, however, in no way suggests or compels the conclusion that Congress intended to alter the time of commencement of the complaint-filing period as the Court construed it in Alexander and McDonnell Douglas. The language of the present statute to the effect that the period begins 'after the giving of . . . notice' does not clearly evidence Congress' intent to alter the effect of the superseded language of section 706; in this respect, notification and the giving of notice appear to be synonymous terms. The sole pertinent reference in the legislative history of the 1972 amendments confirms our conclusion.²  Moreover, we believe that measurement of the period from the date of the aggrieved person's receipt of notice serves the policy underlying the notice requirement better than measurement of the period from the Commission's mailing of notice.

The purpose of statutory notification, which is 'to provide a formal notification to the claimant that his administrative remedies with the Commission have been exhausted' . . . and to inform him that the . . . period has begun to run, has not been accomplished unless the claimant is actually aware of the suit letter. Franks v. Bowman Transportation Co., 5 Cir., 495 F.2d 398, 404, quoting Beverly v. Loan Star Lead Construction Corp., 5 Cir., 437 F.2d 1136.

Plunkett was unaware of the Commission's suit letter until he received it; he cannot be said to have impermissibly slept on his rights so long as he filed, as he did, within 90 days of his receipt of the letter. See Franks v. Bowman Transportation Co., supra, 495 F.2d at 404. A contrary result would unnecessarily penalize private litigants for mistakes in delivery and other delays in the mail. We therefore hold that the period for filing private suits under section 706 of Title VII runs from the aggrieved person's receipt of the Commission's letter of notice.

Reversed and remanded.