JAMES M. CARTER, Circuit Judge.
This is an appeal from a judgment dismissing appellant's complaint brought under Sec. 706 of Title VII of the Civil Rights Act of 1964, (Public Law 88-352, Title VII, § 706, July 2, 1964); 78 Stat. 259; 42 U.S.C. § 2000e-5. The complaint alleged employment discrimination based upon sex. The court dismissed the action after finding the statute required that an action be filed within 180 days from the alleged act of discrimination and that the appellant's
The question presented is whether a civil suit brought under 42 U.S.C. § 2000e-5 must be filed within 180 days of the discriminatory act or be time barred.
Appellant, a woman, was hired by Litton, appellee, in 1961 as a "Publications Production Technical Coordinator." Thereafter she was advanced to the position of "Publications Quality Control Specialist." In May 1965 an opening occurred in the position of "Publications Quality Control Coordinator." A man was appointed to the position; that promotion is not in issue here. In April 1966 there was again an opening in the position of "Publications Quality Control Coordinator." Again a man, Muscarella, was appointed. Appellant complained to her superiors, asserting discrimination based upon sex; the appellee rescinded the appointment. However, Muscarella was given job training for the new position. The complaint alleges that on October 7, 1966, Muscarella was reappointed "Publications Quality Control Coordinator."
Within the 90 day period allowed by the statute, Sec. 706(d) of the Act, 42 U.S.C. § 2000e-5(d), appellant filed her charges with the Equal Employment Opportunity Commission (hereafter EEOC), alleging employment discrimination based upon sex.
On March 30, 1967, after an investigation the EEOC found reasonable cause to believe that appellee had violated the Civil Rights Act of 1964 and thereafter attempted without success to conciliate and achieve voluntary compliance by appellee.
On June 7, 1967, the EEOC formally notified appellant of its inability to obtain voluntary compliance by appellee and of her right to commence a civil action within 30 days under Sec. 706(e) of the Act, 42 U.S.C. § 2000e-5(e). On July 6, 1967, within the 30 days period, appellant filed her action in the district court.
The district court, on motion, dismissed the complaint without leave to amend for failure to state a claim for relief, basing its interpretation on time limitation provisions in the statute. The order of dismissal states that "The maximum time [for filing a complaint] is 180 days from the date of the claimed act of discrimination." It is clear from the district court's order that it computed the 180 days by adding the 90 days allowed to first file with the EEOC, Sec. 706(d) of the Act, 42 U.S.C. § 2000e-5(d), the 60 days maximum for the EEOC to act, Sec. 706(e) of the Act, 42 U.S.C. § 2000e-5(e) and the 30 days after notice from the EEOC to file a complaint in the district court, contained in the same subsection.
Although the statute leaves much to be desired in clarity and precision, the requirements that any charge be filed with the EEOC within 90 days of the act of discrimination, and that a civil action be filed within 30 days after receiving notice from the Commission, seem clear enough. §§ 706(d) and (e), 42 U.S.C. §§ 2000e-5(d) and (e). However, the
§ 706(e), 42 U.S.C. § 2000e-5(e). The district court interpreted this part of the statute as requiring the EEOC to complete its actions, if any, within 60 days of the filing of any charge; further, that at the end of this 60 day period, the 30 day period in which the person aggrieved must file his action begins to run. We do not agree with this interpretation.
Section 706, 42 U.S.C. § 2000e-5, should not be read as providing for any gross 180 day period after the alleged act of discrimination within which a civil action must be filed. Miller v. International Paper Co., 408 F.2d 283, 285-286 (5 Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7 Cir. 1968); Pullen v. Otis Elevator Co., 292 F.Supp. 715, 717 (N.D.Ga.1968). See, Stebbins v. State Farm Mutual Auto Ins. Co., 413 F.2d 1100 (D.C.Cir. May 20, 1969); Cox v. United States Gypsum Co., 409 F.2d 289 (7 Cir. April 9, 1969).
The 30 to 60 day period prescribed in the statute in which the EEOC is to act should be interpreted as directory and not mandatory in nature. Commission action and issuance of notice within 60 days is not a condition precedent to an aggrieved person's right to sue in a federal district court. Fore v. Southern Bell Telephone and Telegraph Co., 293 F.Supp. 587, 589 (W.D. N.C.1968); Harris v. Orkin Exterminating Co., 293 F.Supp. 104, 105 (N.D.Ga. 1968); Kendrick v. American Bakery Co., 69 L.R.R.M. 2012, 2014 (N.D.Ga. 1968); Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258, 261 (E.D.La. 1967), reversed on other grounds sub nom. Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5 Cir.1968); Dent v. St. Louis-San Francisco Ry. Co., 265 F.Supp. 56, 58 (N.D.Ala.1967); see, Sokolowski v. Swift & Co., 286 F.Supp. 775, 781 (D.Minn.1968). The clear intent of Congress in passing this statute was to prefer private and informal conciliation. To require the EEOC to investigate a charge, determine its merits, attempt conciliation and also determine any further efforts to be fruitless within a 60 day period would severely lessen the chances of private settlement in many cases.
We hold that the 30 day period within which suit may be filed in federal district court begins to run when the aggrieved party receives notice of failure to effect voluntary compliance from the EEOC, regardless of the period of time the Commission has taken to process the charge. Miller v. International Paper Co., 408 F.2d 283, 287 (5 Cir.1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7 Cir.1968); Antonopulos v. Aerojet-General Corp., 295 F.Supp. 1390, 1395-1396 (E.D.Cal.1968); Pullen v. Otis Elevator Co., 292 F.Supp. 715, 718 (N.D.Ga.1968); Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258, 261 (E.D.La.1967), reversed on other grounds sub nom., Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5 Cir.1968).
This interpretation and regulation 1601.25a of the Commission effect the intent of Congress. Regulation 1601.25a states:
The statutory scheme of Sec. 706 is thus fulfilled by allowing conciliation attempts to continue as long as they may appear fruitful, while at the same time giving either the aggrieved party or the respondent the right to precipitate the EEOC action of notification, which triggers the 30 day period for filing suit under Sec. 706(e), 42 U.S.C. § 2000e-5(e).
Section 706(b), 42 U.S.C. § 2000e-5(b), provides that if the State or political subdivision of a State in which the unlawful practice occurs, has a State or local law prohibiting the unlawful employment practice, and establishing a State or local authority to grant or seek relief from such practice, no charge may be filed under § 706(a), 42 U.S.C. § 2000e-5(a), before the expiration of 60 days after proceedings have been commenced under State or local law. Appellee contends that the California Fair Employment Practice Commission exists in the state of California, and that appellant did not pursue her remedy before that Commission. The short answer is that California Labor Code, Sec. 1420 does not include sex as a basis for discrimination. Sec. 1197.5 of the same Code refers to sex but only provides that no employer shall discriminate because of sex as to the rates paid. The contention is without merit.
The appellant filed her complaint within 30 days after receiving notice from the EEOC that conciliation efforts had been unsuccessful. The complaint was filed in time.
The judgment is reversed and the case remanded.
Honorable John F. Kilkenny, United States District Judge, District of Oregon, sitting by designation.