                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-1995

McCray v Corry
Precedential or Non-Precedential:

Docket 95-3004




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                             No. 95-3004
                             ___________

            HELEN McCRAY,

                            Appellant

                            vs.

            CORRY MANUFACTURING COMPANY
                             ___________

            Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Civil No. 94-cv-00003E)
                             ___________

           Submitted Under Third Circuit LAR 34.1(a)
                         June 26, 1995
    Before: MANSMANN, GREENBERG and SAROKIN, Circuit Judges.

                      (Filed August 9, 1995)
                            ___________

Neal A. Sanders, Esquire
106 South Main Street
Suite 808, Eighth Floor
Butler, Pennsylvania 16001

  COUNSEL FOR APPELLANT

Roger H. Taft, Esquire
MacDonald, Illig, Jones & Britton
Suite 700, 100 State Street
Erie, Pennsylvania 16507

  COUNSEL FOR APPELLEE
                             ___________

                         OPINION OF THE COURT
                              __________


MANSMANN,   Circuit Judge.




                                  1
           Helen McCray filed this action against her former

employer, Corry Manufacturing Company, under the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (West

1985).    McCray contends that her request for the EEOC to

reconsider its Determination of "no reasonable cause" to believe

that Corry Manufacturing discriminated against McCray,

accompanied by a Notice of Right to Sue, tolled the ninety day

period for filing suit until the EEOC subsequently denied her

request for reconsideration.    We hold that the district court did

not err in concluding that the mere filing of a request for

reconsideration does not toll the ninety day period for filing an

ADEA civil action, especially here where the EEOC's denial of

McCray's request for reconsideration informed her that the

original ninety day period governed the time for filing a civil

action.    Accordingly, we will affirm the judgment of the district

court.



                                 I.

            On October 29, 1992, McCray filed a charge of age

discrimination with the EEOC against Corry Manufacturing.1

According to McCray, her supervisor harassed her by engaging in

"hypervigilant supervision," interfering with McCray's incoming

telephone calls, removing McCray's telephone line and by

repeatedly issuing unwarranted warnings for misconduct.      On


1
          McCray was born on November 23, 1934 and was employed
by Corry Manufacturing from December 15, 1971 until January 9,
1992.


                                 2
January 9, 1992, McCray was advised that her position as a

production control secretary was being eliminated but was offered

another position.     McCray declined the position and was laid off

effective January 9, 1992.

           After investigating McCray's claims, the EEOC issued

its Determination on August 31, 1993, finding that there was no

reasonable cause to believe that Corry discriminated against

McCray on the basis of her age.       McCray does not dispute that she

received the Determination in due course.

           The Determination contained the following information:
           This determination concludes the processing
           of the subject charge. The Charging Party
           may pursue this matter by filing a private
           suit against the Respondent as set forth in
           the enclosed information sheet.

(A. 21)    The "enclosed information sheet" entitled "Filing Suit

In Federal District Court," often called a Notice of Right to

Sue, informed McCray of the time period for bringing suit as

follows:
           This determination becomes effective upon
           receipt. Some or all of Charging Party's
           allegations of illegal employment
           discrimination have been dismissed. If
           Charging Party wishes to pursue this
           matter(s), Charging Party must file a private
           lawsuit against the respondent named in the
           charge in U.S. District Court under the
           applicable statute(s), as set forth below.
           The determination letter and this notice will
           be the only notice of the Charging Party's
           right to sue by the Commission.

            . . . .

            PRIVATE SUIT RIGHTS UNDER TITLE VII OF THE
            CIVIL RIGHTS ACT OF 1964, AS AMENDED (TITLE
            VII), THE AGE DISCRIMINATION IN EMPLOYMENT



                                  3
          ACT OF 1967 (ADEA), AND THE AMERICAN WITH
          DISABILITIES ACT OF 1990 (ADA).

          ADEA charges with a date of alleged violation
          of November 21, 1991 or later . . .: Charging
          Party has 90 days from the effective date of
          this determination to file suit in court.
          Once this 90 day period is over, Charging
          Party's right to sue will be lost.

(A. 22) (emphasis in original).       McCray concedes having received

these instructions to file a civil action within ninety days of

her receipt of the Determination and Notice of Right to Sue.

          Less than thirty days later, by letter dated September

27, 1993, McCray requested that the EEOC reconsider its

Determination.   She provided additional facts regarding her

employment with Corry Manufacturing from 1988 to 1992 and

suggested that the EEOC visit the manufacturing facility rather

than conduct telephone interviews.      By letter dated October 7,

1993, the EEOC denied McCray's request for reconsideration.2      In

that letter, the EEOC informed McCray that most of the facts set

forth in her request for reconsideration could not be considered


2
          On appeal, McCray also raises conduct of EEOC
representatives regarding the reconsideration of her claim that
arguably would permit her to invoke the theory of equitable
tolling to bring her civil action within the ninety day
limitations period. Specifically, she contends that the EEOC
encouraged her to request reconsideration, that in November of
1993 the EEOC told her they would come to the Corry Manufacturing
facility to pursue further action and that it was not until
November 24, 1993 that she was told by the EEOC that her case was
closed.

          McCray, however, did not raise these allegations in the
district court nor did she preserve them for appeal. Rather, she
raised the equitable tolling theory for the first time in her
Reply Brief before us. As such, we will grant Corry
Manufacturing's pending Motion to Strike Reply Brief For
Appellant in an order we will file separately.

                                  4
by the EEOC because they were time-barred by the 300 day statute

of limitations for filing charges of discrimination.    See 29

C.F.R. § 1626.7 (1993) (timeliness of ADEA charge).    More

importantly, the EEOC informed McCray that:
          If you wish to continue to pursue your
          allegations, you have the right to file a
          civil law suit in the appropriate U.S.
          District Court in accordance with the
          instructions which were included in your
          original letter of determination.

(A. 25).   Those instructions for filing a civil lawsuit were

contained within the Notice of Right to Sue that McCray

acknowledges she received.    This subsequent letter was received

less than forty days after the Notice of Right to Sue was issued.

           Nonetheless, McCray did not file a Complaint in the

United States District Court for the Western District of

Pennsylvania until January 3, 1994, more than ninety days from

the August 31, 1993 EEOC Determination and the Notice informing

her to file suit within ninety days.    Specifically, McCray filed

her Complaint 125 days after the issuance of the August 31, 1993

Determination and more than ninety days from her receipt of the

Determination.   Corry Manufacturing moved for summary judgment on

grounds that McCray failed to file her Complaint within ninety

days of her receipt of the EEOC's August 31, 1993 Determination

and Notice of Right to Sue.

           By Memorandum Opinion and Order dated December 2, 1994,

the district court granted Corry Manufacturing's motion for

summary judgment, determining that McCray's claim was time-barred

for her failure to file her Complaint within ninety days of her



                                 5
receipt of the EEOC Determination and Notice of Right to Sue. See

29 U.S.C.A. § 626(e) (West Supp. 1995).    McCray appeals,

asserting that her request for reconsideration tolled the ninety

day period that commenced with her receipt of the EEOC's

determination; rather, the ninety days commenced from the EEOC's

notice of its termination of the reconsideration proceedings.

          The district court had jurisdiction pursuant to 29

U.S.C.A. § 626(c)(1)(2) (West 1985).   Our jurisdiction is

premised on 28 U.S.C.A. § 1291 (West 1993).    We exercise plenary

review over this question of law.    Turner v. Schering-Plough

Corp., 901 F.2d 335, 340 (3d Cir. 1990).



                              II.

          The Age Discrimination in Employment Act was amended

effective November 21, 1991 to include a ninety day rather than a

two year statute of limitations for the filing of civil actions

in federal court and to require that the EEOC notify the claimant

that proceedings on his or her charge of discrimination were

dismissed or otherwise terminated.   See Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1079.    See also H.R. Conference
Rep. No. 101-856, 101st Cong., 2nd Sess. (October 12, 1990)

(comments regarding amendments to Age Discrimination in

Employment Act). The ADEA provides:
          If a charge filed with the Commission under
          this chapter is dismissed or the proceedings
          of the Commission are otherwise terminated by
          the Commission, the Commission shall notify
          the person aggrieved. A civil action may be
          brought under this section by a person
          defined in section 630(a) of this title


                               6
          against the respondent named in the charge
          within 90 days after the date of the receipt
          of such notice.


29 U.S.C.A. § 626(e) (West Supp. 1995); see Sperling v. Hoffman-
LaRoche, Inc., 24 F.3d 463, 464 n.1 (3d Cir. 1994) (describing

amendment to the ADEA statute of limitations).

           It is undisputed that McCray received the EEOC's August

31, 1993 Determination and the Notice of Right to Sue in due

course.   As well, McCray admits that the initial Determination

advised her that she must file a civil action within ninety days

of her receipt of the Determination.   The ninety day period for

the filing of McCray's civil action therefore commenced on or

about August 31, 1993 and ended on or about November 29, 1993.

Thus, under the usual application of the statute, McCray's

Complaint was untimely.   We thus examine the effect, if any, on

the ninety day statute of limitations of a claimant's request for

reconsideration of the EEOC Determination when the request was

made within the ninety day period following receipt of the

Determination.



                                A.

           McCray asserts that the ninety day period was tolled by

her September 27, 1993 request for reconsideration to the EEOC.

According to McCray, the final action of the EEOC for purposes of

commencing the ninety day filing period would then be the EEOC's

October 7, 1993 denial of her request for reconsideration -- when




                                7
the EEOC "otherwise terminated" its proceedings on McCray's

charge.    See 29 U.S.C.A. § 626(e) (West Supp. 1995).

           The EEOC's October 7, 1993 denial of reconsideration,

however, does not supplant the August 31, 1993 Determination as

the final agency action merely because the EEOC discussed the

merits of McCray's charge in concluding that McCray had "not

provided any new evidence that would change [its] finding."     As

the Supreme Court stated:
               It is irrelevant that the [EEOC]'s order
          refusing reconsideration discussed the merits
          of the . . . claims at length. Where the
          [EEOC]'s formal disposition is to deny
          reconsideration, and where it makes no
          alteration in the underlying order, we will
          not undertake an inquiry into whether
          reconsideration "in fact" occurred. In a
          sense, of course, it always occurs, since one
          cannot intelligently rule upon a petition to
          reconsider without reflecting upon, among
          other things, whether clear error was shown.
          It would hardly be sensible to say that the
          [EEOC] can genuinely deny reconsideration
          only when it gives the matter no thought; nor
          to say that the character of its action (as
          grant or denial) depends upon whether it
          chooses to disclose its reasoning. Rather,
          it is the [EEOC]'s formal action, rather than
          its discussion, that is dispositive.


(Emphasis added.)    Interstate Commerce Commission v. Brotherhood
of Locomotive Engineers et al., 482 U.S. 270, 280-81 (1987)

(petitions for judicial review of Interstate Commerce Commission

orders).   To hold otherwise would permit claimants to manipulate

the ninety day filing period merely by requesting reconsideration

to extend the limitations period.    See generally Locomotive

Engineers, 482 U.S. at 281.    Such a result was not contemplated



                                 8
by Congress given the imposition of the ninety day statute of

limitations in the first instance nor is there any support in the

EEOC Regulations for tolling the ninety day filing period when

the only action is a claimant's request for reconsideration of

the EEOC's Determination.



                               B.

          We recognize the effect of the EEOC regulation

governing the impact of reconsideration on the statute of

limitations for filing Title VII and Americans with Disabilities

Act ("ADA") civil actions:
               (b) The Commission may on its own
          initiative reconsider a final determination
          of no reasonable cause and an issuing
          director may, on his or her own initiative
          reconsider his or her final determination of
          no reasonable cause. If the Commission or an
          issuing director decides to reconsider a
          final no cause determination, a notice of
          intent to reconsider shall promptly issue to
          all parties to the charge. If such notice of
          intent to reconsider is issued within 90 days
          of receipt of the final no cause
          determination, and the person claiming to be
          aggrieved or the person on whose behalf a
          charge was filed has not filed suit and did
          not request and receive a notice of right to
          sue pursuant to § 1601.28(a)(1) or (2), the
          notice of intent to reconsider shall vacate
          the letter of determination and shall revoke
          the charging party's right to bring suit
          within 90 days. If the 90 day suit period
          has expired, the charging party has filed
          suit, or the charging party had requested a
          notice of right to sue pursuant to
          §1601.28(a)(1) or (2), the notice of intent
          to reconsider shall vacate the letter of
          determination, but shall not revoke the
          charging party's right to sue in 90 days.
          After reconsideration, the Commission or


                               9
          issuing director shall issue a new
          determination. In those circumstances where
          the charging party's right to bring suit in
          90 days was revoked, the determination shall
          include notice that a new 90 day suit period
          shall begin upon the charging party's receipt
          of the determination. Where a member of the
          Commission has filed a Commissioner charge,
          he or she shall abstain from making a
          determination in that case.


29 C.F.R. § 1601.19(b) (1993).   There is no counterpart

regulation governing reconsideration of claims under the ADEA.3

See 29 C.F.R. §§ 1626 et seq. (1993).   The EEOC amended section

1601.19(b) on March 7, 1991 to make the current Title VII

procedural regulations applicable to both charges under Title VII

and under the Americans with Disabilities Act of 1990, 42

U.S.C.A. 12101 et seq.   See 56 Fed. Reg. 9623 (March 7, 1991).4

However, there has not been any amendment to the ADEA regulations

3
          The dissent argues that it nevertheless is reasonable
for an ADEA claimant to rely on the EEOC's acceptance of the
claimant's request for reconsideration and processing of the
request in concluding that the 90-day limitations period begins
to run from the date of the denial of reconsideration.
(Dissenting op. at 2). There is no impact on the 90-day
limitations period, however, where the EEOC's "processing"
constitutes nothing more than a review of the request for
reconsideration in light of the evidence previously considered,
ultimately resulting in the denial of the request for
reconsideration. To interpret such "processing" as tolling the
limitations period essentially permits a claimant's filing a
request for reconsideration to start a new limitations period
running; a proposition that the dissent agrees should not prevail
in the absence of more than just the claimant's request. Id.
This is especially true here where the EEOC's "processing" took
only ten days from the date of McCray's request for
reconsideration, leaving her with more than 50 days in which to
file a civil action.
4
          These amendments were made pursuant to the statutory
mandate within the ADA that incorporated the powers, remedies and
procedures of Title VII set forth at 42 U.S.C.A. § 2000e-4 -
2000e-9. 56 Fed. Reg. 9623 (March 7, 1991).


                                 10
to provide for a reconsideration provision nor has section

1601.19 been amended to include charges under the ADEA despite

the amendments to the ADEA itself to conform the time limits for

filing a civil action to those for Title VII and the imposition

of the requirement that the EEOC issue notices of right to sue

for ADEA claims.   In the absence of an indication that section

1601.19(b) is applicable to ADEA claims, we are compelled to

decline to extend those reconsideration provisions to claims

under the ADEA.

          Even if we were to broaden the scope of section

1601.19(b) to include ADEA claims, it would be to no avail in

saving McCray's claim from summary judgment.   Section 1601.19(b)

revokes the charging party's right to bring suit only if the EEOC

issues a notice of its intent to reconsider within ninety days of

the claimant's receipt of a no cause determination, the claimant

has not filed suit yet and the claimant did not request and

receive a notice of right to sue pursuant to 29 C.F.R.

§§1601.28(a)(1) or (2).5   See 29 C.F.R. § 1601.19(b).   See also
5
          Section 1601.28(a)(1) and (2) provide:

               (a) Issuance of notice of right to sue
          upon request.

               (1) When a person claiming to be
          aggrieved requests, in writing, that a notice
          of right to sue be issued and the charge to
          which the request relates is filed against a
          respondent other than a government,
          governmental agency or political subdivision,
          the Commission shall promptly issue such
          notice as described in s 1601.28(e) to all
          parties, at any time after the expiration of
          one hundred eighty (180) days from the date
          of filing of the charge with the Commission,

                                11
Lute v. Singer Co., 678 F.2d 844, 846 (9th Cir. 1982) (construing

pre-regulation EEOC reconsideration of a Title VII complaint and

rescission of a previously issued right to sue notice).   Here,

although McCray requested reconsideration within the ninety day

filing period, the EEOC never issued a notice of intent to

reconsider that would revoke McCray's right to bring suit

pursuant to the Notice of Right to Sue issued on August 31, 1993.

More importantly, McCray was notified by the EEOC in its October

7, 1993 denial of her request for reconsideration that the August

31, 1993 Right to Sue Notice was controlling for the filing of a

civil action.   We find no basis, equitable6 or otherwise, to



          or in the case of a Commissioner charge 180
          days after the filing of the charge or 180
          days after the expiration of any period of
          reference under section 706(d) of Title VII
          as appropriate.

               (2) When a person claiming to be
          aggrieved requests, in writing, that a notice
          of right to sue be issued, and the charge to
          which the request relates is filed against a
          respondent other than a government,
          governmental agency or political subdivision,
          the Commission may issue such notice as
          described in s 1601.28(e) with copies to all
          parties, at any time prior to the expiration
          of 180 days from the date of filing the
          charge with the Commission; provided, that
          the District Director . . . has determined
          that it is probable that the Commission will
          be unable to complete its administrative
          processing of the charge within 180 days from
          the filing of the charge and has attached a
          written certificate to that effect.

29 C.F.R. § 1601.28 (1994).
6
          See supra n.1 at 4 discussing the inapplicability of
equitable tolling to save McCray's claim from dismissal.


                                12
disturb the district court's judgment that McCray's Complaint was

untimely.

                                III.

            Accordingly, because we hold that merely requesting

reconsideration of an EEOC Determination does not toll the ninety

day statute of limitations controlling the filing of a civil

action, we will affirm the judgment of the district court.




                                 13
14
Helen McCray v. Corry Manufacturing Company, No. 95-3004.


SAROKIN, Circuit Judge, dissenting.
          Because I believe that plaintiff timely filed an age discrimination suit

federal court, I respectfully dissent. Plaintiff in this case has diligently pursue

claims against her employer.    She timely filed her age discrimination charge with t

applicable agency, the EEOC.    When the EEOC dismissed the charges 10 months later,

plaintiff wrote a letter requesting that the EEOC reconsider its decision.     The EEO

accepted plaintiff's request for reconsideration, considered whether she had presen
evidence of age discrimination, and finally denied the request.   The entire

reconsideration stage occurred within plaintiff's initial 90-day limitations period

filing suit in federal court.   Importantly, plaintiff was not represented by counse

any of the proceedings before the agency.

          Plaintiff concluded that a new limitations period for filing claims in fe

court began running from the date of the letter denying the request for reconsidera

Although the ADEA and its accompanying regulations do not expressly provide for

reconsideration of the EEOC's decisions, plaintiff reasonably relied on the actions

EEOC in accepting and finally denying her request for reconsideration.   The equitie

this case favor allowing plaintiff the benefit of a new limitations period which be

running as soon as the agency denied the request for reconsideration.

          Importantly, I agree with the majority and do not suggest that an ADEA

claimant's filing of a request for reconsideration without more starts a new limita

period running.   Because the current ADEA regulations do not provide for reconsider

a claimant cannot unilaterally extend the period for instituting suit, merely by fi

request for reconsideration.    However, if the EEOC accepts the ADEA claimant's requ

processes it, then it is reasonable for the claimant to rely upon the action taken




                                              15
concluding that the 90-day limitations period begins running from the date of the d

of reconsideration, and that she is not required to start suit earlier.

          The following statutory argument provides additional support for the conc

that the EEOC's reconsideration of plaintiff's claim extended the time for filing s

federal court.   Section 626(e) of the ADEA provides that the person aggrieved shall

notified if the charge is dismissed or if "the proceedings of the Commission are ot

terminated by the Commission."   29 U.S.C.A. § 626(e) (West Supp. 1995).    This secti

further provides that: "A civil action may be brought . . . within 90 days after th

of the receipt of such notice." Id.   By denying plaintiff's request for reconsidera

the instant case, the EEOC has "otherwise terminated" the proceedings.     Therefore,

on the express language of the statute, the 90-day limitations period began running

plaintiff's receipt of the letter denying the request for reconsideration.

          General administrative law and the rules governing the review of federal

decisions provide further support for the conclusion that the deadline for filing a

action should be extended until after the agency finishes processing a request for

reconsideration.   To illustrate, the Supreme Court in Civil Aeronautics Board v. De

Lines, Inc., 367 U.S. 316 (1961), referred to the general principle that an order f

administrative agency is not ready for judicial review until the agency disposes of

outstanding petitions for reconsideration. Id. at 326.   Similarly, the rules govern
review of federal court decisions provide that a timely request for reconsideration

automatically extends the time for filing a notice of appeal or a petition for writ

certiorari.   See Fed. R. App. P. 4(a)(4) (appeal from district court judgment); Uni

States v. Dieter, 429 U.S. 6, 8 (1976) (Supreme Court review).

          Furthermore, I believe that the district court erroneously relied on a si

sentence in the EEOC's letter denying plaintiff's request for reconsideration.     See
McCray v. Corry Manufacturing Company, No. 94-3, slip op. at 6 (Dec. 2, 1994 W.D. P

The sentence states that plaintiff must file a civil action "in accordance with the


                                             16
instructions which were included in [her] original letter of determination."   App.

This sentence is not determinative of the question whether the limitations period b

anew after the EEOC has processed the request for reconsideration.   This sentence c

reasonably be interpreted as merely referring the reader back to the original lette

determination which states that the applicable limitations period is 90 days and in

the reader regarding the filing of a private lawsuit.

          For the foregoing reasons, I believe that plaintiff's complaint was timel

filed, and, therefore, I would reverse the district court's entry of summary judgme

favor of defendant.




                                            17
