Morris May, Plaintiff-appellant, v. Pro-guard, Inc., Defendant-appellee, 810 F.2d 202 (6th Cir. 1986)

Before MARTIN, JONES and MILBURN; Circuit Judges.

ORDER

The plaintiff moves to deny oral argument to the defendant on appeal from the district court's judgment dismissing the plaintiff's employment discrimination case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the appellant's brief, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

May is a prolific litigator who has filed yet another case concerning alleged religious discrimination in employment. The district court dismissed the case because it found that the complaint had not been filed within 90 days of the plaintiff's receipt of the right to sue letter issued by the EEOC. The district court held that the EEOC regulations did not authorize motions to reconsider EEOC decisions. The Court also held that the plaintiff's motion to reconsider was filed with the Kentucky Commission of Human Rights instead of with the EEOC, so it could not serve to extend the time for filing in the district court.

In the recent case of Donaldson v. Tennessee Valley Authority, 759 F.2d 535 (6th Cir. 1985), this Court held that the permissive nature of the EEOC regulations does not prevent a motion for reconsideration from extending the time for filing suit in the district court. Id. at 537. The Court further held that when a federal employee files a motion to reconsider within 30 days of receipt of an EEOC decision, the EEOC's final decision on that motion is the final action on the employee's complaint. The employee may file suit within 30 days of receipt of the notice of this final action. Id. at 538.

In the present case, the district court incorrectly held that the plaintiff's motion to reconsider was filed with the state agency. The address on the document shows that the motion to reconsider was mailed to the EEOC office in Louisville. Because this motion was timely filed with the EEOC, it is necessary to vacate the district court's decision and to remand the case for further consideration under Donaldson.

Because the defendant has not filed a timely brief, the motion to deny oral argument is granted. The judgment of the district court is vacated, and the case is remanded under Rule 9(d) (4), Rules of the Sixth Circuit, for further proceedings.