14 Fair Empl.prac.cas. 1772,14 Fair Empl.prac.cas. 507,13 Empl. Prac. Dec. P 11,477,13 Empl. Prac. Dec. P 7827,15 Empl. Prac. Dec. P 7827allen B. Wilson, Individually and on Behalf of All Otherpersons Similarly Situated, Appellant, v. Sharon Steel Corporation, a Corporation, et al, 549 F.2d 276 (3d Cir. 1977)

This is an appeal from a district court order dismissing plaintiff's claims that he had been discharged due to racial discrimination under (1) 42 U.S.C. § 2000e-5(f) (1), and (2) 42 U.S.C. § 1981, as time-barred. We vacate and remand for reconsideration in the light of this opinion.

Plaintiff claims to have been discriminated against by his former employer, the Sharon Steel Corporation, and by his union, the United Steelworkers (International, District 20, and Local 1193). He seeks injunctive relief from alleged present and possible future racial discrimination; reinstatement with seniority, back pay, and all benefits accrued from the date of his termination; punitive damages, a court ordered plan to remedy alleged disparities between treatment of Negro and Caucasian employees; costs; and attorney's fees.¹ 

On August 15, 1972, the plaintiff, Allen B. Wilson, was discharged from his employment as a relief foreman with the Sharon Steel Corporation (Sharon). He had previously been employed by the company for 22 years. The basis for his dismissal was alleged participation in the theft of a tow motor from Sharon. Availing himself of the arbitration procedures provided for by the applicable collective bargaining agreement, Wilson filed a grievance. A hearing was held on August 30, 1972, and the umpire denied the grievance in an Opinion and Award²  dated October 10, 1972.

On November 1, 1972, Wilson filed a written charge with the Equal Employment Opportunity Commission (EEOC), alleging that he had been discharged because of his race.³ 

On December 19, 1972, following a hearing before the Pennsylvania Unemployment Compensation Referee, Wilson was awarded unemployment compensation, an action equivalent to a finding that Wilson was not discharged for willful misconduct.

On August 22, 1973, the EEOC determined that there was probable cause to believe that Wilson had been discriminated against on the basis of his race by Sharon, and entered into conciliation proceedings. The EEOC found no reasonable cause to believe that the defendant unions had discriminated against Wilson. However, on October 15, 1973, Wilson received a letter from A. S. Higgins, Supervisor of Conciliations for the Pittsburgh District Office of the EEOC, which read as follows:

"This is to advise you that our efforts to conciliate your case against Sharon Steel and United Steel Workers Local 1193, were unsuccessful.

"Therefore, we are forwarding your case for review for possible litigation. You will be notified of the outcome of this review.

"If you have any questions, please feel free to call me at (412) 644-3444."

The district court relied in its opinion upon a form of EEOC Failure of Conciliation letter not actually sent to Wilson^3a and, therefore, not directly at issue in this case. The letter relied upon by the district court stated that:

"In order to proceed in this matter you must make a written request for Notice of Right to Sue from this office. You must file your action with the United States District Court within ninety (90) days of your receipt of the Notice of Right to Sue."

Wilson v. Sharon Steel Corp., 399 F. Supp. 403, 405 (W.D. Pa. 1975). As is apparent, neither this language nor a warning that a district court action must be filed within ninety days was part of the letter sent to, and received by, Wilson.

Wilson received a second letter⁴  from the EEOC on July 15, 1974, which indicated that the EEOC would not be litigating his case and that he had the right to sue within 90 days of its receipt.

This suit⁵  was commenced on October 11, 1974, 88 days after receipt of the "Notice of Right to Sue," 361 days after receipt of the letter indicating failure of EEOC conciliation efforts, and two years and 57 days after Sharon discharged Wilson.

The complaint set forth claims based upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and §§ 1343, 2201 and 2202 of Title 28 of the United States Code.

On August 15, 1975, Sharon moved to dismiss the entire complaint, the district court granted the motion.⁶ 

The district court held that the 90-day period of limitation under 42 U.S.C. § 2000e-5(f) (1)⁷  began to run from receipt of the first letter, rather than upon receipt of the "Notice of Right to Sue," as urged by Wilson; that the filing of charges with the EEOC did not toll the statute of limitations for the action under 42 U.S.C. § 1981; and that the Pennsylvania two-year personal injury statute of limitations governed the action under 42 U.S.C. § 1981. It ordered the suit dismissed as time-barred.

The essence of the claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f) (1), is the notice given to the claimant. The district court considered the question of whether notice that conciliation had failed, or notice that the EEOC had decided not to litigate the case, triggered the 90-day period for filing suit. However, as noted above at page 278, the October 15, 1973, EEOC letter which the district court relied upon as having been sent to Wilson was never sent to him. The EEOC used an entirely different letter. The threshold question, and one which has not been considered by the district court, is the nature of the notice plaintiff actually received.

The letter (see page 278 above) which was relied on in the district court's decision indicated unequivocally that Wilson had, and could exercise, the right to sue. That letter stated that Wilson need only request a "Notice of Right to Sue" from the EEOC.

In contrast, the letter Wilson actually received indicated only that conciliation had failed and that further EEOC review of his case was proceeding to determine whether the EEOC wanted to litigate it. Thus, the actual letter stated that Wilson would be "notified of the outcome of this review." It made no mention whatsoever of his right to bring suit on his own behalf at that time.

It would appear that the contents of the letter actually received form the keystone of any decision on this issue.⁸  Since the district court inadvertently based its decision upon a hypothetical letter rather than the communication which Wilson received and relied upon⁹  we do not decide the issue of when the 90-day period began to run, so that the district court may receive the views of counsel on the letter actually received in light of any amendments to the pleadings and the record which may be appropriate in view of the wording of the letter quoted at page 278 above.

We will vacate the district court order of August 15, 1975, dismissing the Title VII complaint, and remand this issue to the district court for reconsideration in view of the letter which Wilson actually received, and particularly in view of these recent decisions which were unavailable to the district court at the time its order was entered: Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976); Williams v. Southern Union Gas Company, 529 F.2d 483 (10th Cir. 1976); Coles v. Penny, 174 U.S.App.D.C. 277, 531 F.2d 609 (1976); Garner v. E. I. du Pont de Nemours & Company, 538 F.2d 611 (4th Cir. 1976); McGuire v. Aluminum Company of America, 542 F.2d 43 (7th Cir. 1976).

The plaintiff appeals the district court dismissal of his 42 U.S.C. § 1981 claim as time-barred. He urges that the district court should have applied the six-year Pennsylvania statute of limitations applicable to contractual causes of action,¹⁰  rather than the two-year Pennsylvania statute of limitations applicable to cases involving personal injuries.¹¹  The rationale he offers is § 1981's reference to enforcement of contracts,¹²  and violation of his contractual right to employment without regard to his race.

Since the Civil Rights Acts contain no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law. Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974).

In determining the applicable limitation period, we call the attention of the district court and counsel to the authorities cited in 22 Pennsylvania Law Encyclopedia, Limitation of Actions, §§ 31, 32, including Haefele v. Davis, 399 Pa. 504, 160 A.2d 711, 714 (1960), which were not cited in the briefs of counsel or in the district court opinion and which might be helpful in determining the applicable period of limitations when the facts and legal rights incident to plaintiff's claim are developed on remand. Also, we note that the plaintiff elected to file a Statement of Grievance protesting management action in suspending him and resulting in arbitration, as noted in the margin,¹³  which might have some effect on his claims for reinstatement and damages, etc., to which he might be entitled,¹⁴  under principles of res judicata and collateral estoppel.

For the foregoing reasons, that part of the August 15, 1975, district court order dismissing plaintiff's claims under "Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq." and 42 U.S.C. § 1981 will be vacated and the case will be remanded to the district court for reconsideration in accordance with Parts II and III of this opinion.¹⁵