benefits by producing forged and altered copies of his employment
Carr Park's motion does not deal with the merits. Instead, it
addresses the procedural history of the case: Mr. Tesfaye filed
his complaint with the EEOC on April 20, 1999. He received a
letter and a "Dismissal and Notice of Rights" from the EEOC's
Washington Field Office sixty-nine days later, on June 28, 1999.
These documents indicated that the Director of the Washington
Field Office had dismissed Mr. Tesfaye's claim and informed him
that he had 90 days to file his case in court. It is unclear from
either document what investigation, if any, the EEOC performed.
The letter concluded that "[d]iscrimination based on race or
national origin does not appear to be in evidence." But it also
stated that "the Commission will not be able to prove that you
were discharged because of your race and national origin," and
that "[i]t is highly unlikely that further investigation would
reveal a violation of [Title VII]." On September 27, 1999, just
before the 90 day deadline, Mr. Tesfaye filed this lawsuit.
In Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336
(1999), the D.C. Circuit dismissed an employee's Title VII suit
because it was filed sooner than 180 days after plaintiff
complained to the EEOC. Id. at 1338-39. The focus of the
court's opinion was on the intent of Congress. After analyzing
sections 2000e-5(b) and (f), and examining legislative history,
the court concluded that "Congress clearly intend[ed] to prohibit
private suits within 180 days after a charge is filed as long as
the EEOC has not dismissed the charge." Id. at 1342 (emphasis
added). The language of the opinion that states the court's
holding, however, is not limited to cases in which the EEOC has
not dismissed a charge. It states that "Title VII complainants
must wait 180 days after filing charges with the EEOC before they
may sue in federal court." Id. at 1347.
The Title VII complainant in this case did not wait 180 days
after filing his charge with the EEOC before he sued in federal
court. Had he done so, he was at considerable risk of dismissal
for filing too late. See 42 U.S.C. § 2000e-5(f)(1) (requiring
that private suit to enforce a claim under Title VII must be
filed within 90 days of receipt of the right to sue letter). The
timing of the complaint and of the EEOC's right to sue letter do
not offend the rationale of the Martini decision, which
acknowledges that "[t]he statute . . . authorizes a complainant
to sue within 180 days if the EEOC dismisses the charge," id.
at 1344 (emphasis added).*fn1 Nor is the plaintiff's pre-180 day
filing at odds with Martini's public policy rationale:
Martini was concerned that early authorization of private suits
"undermines [the EEOC's] statutory duty to investigate every
charge filed," see id. at 1347, but here the EEOC apparently
investigated the plaintiff's claim and simply concluded before
180 days had passed that it lacked merit.
The flat language of Martini's holding arguably makes the
rule of the case broader than its rationale, however,*fn2 and it
just possible that the right to sue letter issued to plaintiff
(10 days after Martini was announced) was drafted to skirt the
Martini ruling as closely as possible, or even to set up a test
of Martini's limits.
I find that the plain language of section 2000e-5(b) permitted
the issuance of a valid right to sue letter before the expiration
of 180 days after the complaint was filed because the EEOC
dismissed Mr. Tesfaye's complaint in its June 28, 1999 letter.
The defendant's motion to dismiss will accordingly be denied.
An appropriate order accompanies this memorandum.
ORDER AND CERTIFICATION OF INTERLOCUTORY APPEAL
For the reasons set forth in the accompanying memorandum, it is
this 31st day of January 2000,
ORDERED that defendant's motion to dismiss [# 3] is denied.
The court is of the opinion that this order involves a
"controlling question as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of litigation."
28 U.S.C. § 1292(b).