Gallego v. Arthur G. McKee & Co.

Ninth Circuit

Gallego v. Arthur G. McKee & Co.

550 F.2d 456, 14 Fair Empl. Prac. Cas. (BNA) 1824, 1977 U.S. App. LEXIS 10366, 13 Empl. Prac. Dec. (CCH) 11,618

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 25, 1977

DocketNo. 76-2479

StatusPublished

Cited by5 cases

This text of 550 F.2d 456 (Gallego v. Arthur G. McKee & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gallego v. Arthur G. McKee & Co., 550 F.2d 456, 14 Fair Empl. Prac. Cas. (BNA) 1824, 1977 U.S. App. LEXIS 10366, 13 Empl. Prac. Dec. (CCH) 11,618 (9th Cir. 1977).

Pincite

Opinion

PER CURIAM:

In late June 1974, appellant Gallego filed a complaint with the Equal Employment Opportunity Commission charging that he had been discriminated against by being laid off from his job ahead of several cauca-sians with less seniority. The EEOC assumed jurisdiction over the charge on July 1, 1974. On August 9, 1974, the EEOC forwarded to the Civil Rights Division of the Arizona Department of Law a copy of the charges for their “information” and “pursuant to Section 1601.12(d)(2) of . Title 29.” After the issuance of a Right to Sue letter by the EEOC on December 10, 1975, appellant filed suit in federal district court. On May 10, 1976, the district court dismissed the suit on the ground that the state deferral requirements of 42 U.S.C. § 2000e-5(c) (1970) had not been complied with. Gallego appeals that dismissal.

We agree with the district court that the “letter of August 9, 1974, notifying the Arizona Civil Rights Division of Mr. Galle-go’s charge of discrimination was not a deferral, but merely a courtesy letter to advise the State Agency of the pending E.E.O.C. charge.” At the time the letter was sent, the EEOC did not believe that section 2000e-5(c) required deferral to the State of Arizona. The letter was not meant to be a deferral. It was sent “pursuant” to a statute having nothing to do with deferral of EEOC charges and manifested no deference to the state agency with respect to the charge.¹

The district court erred, however, in dismissing appellant’s action. As a matter of equity, where the EEOC has failed to follow section 2000e-5(c), the district court should retain jurisdiction for a period of time sufficient to allow the EEOC to notify the appropriate state agency and to allow that agency the statutory deferral period in which to act. If the state agency elects not to act, the district court should then proceed as the rights of the parties demand. See Motorola, Inc. v. EEOC, 460 F.2d 1245 (9 Cir. 1972).

[458]*458We reverse and remand to the district court for an order consistent with this opinion.

REVERSED AND REMANDED.

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PER CURIAM:

In late June 1974, appellant Gallego filed a complaint with the Equal Employment Opportunity Commission charging that he had been discriminated against by being laid off from his job ahead of several cauca-sians with less seniority. The EEOC assumed jurisdiction over the charge on July 1, 1974. On August 9, 1974, the EEOC forwarded to the Civil Rights Division of the Arizona Department of Law a copy of the charges for their “information” and “pursuant to Section 1601.12(d)(2) of . Title 29.” After the issuance of a Right to Sue letter by the EEOC on December 10, 1975, appellant filed suit in federal district court. On May 10, 1976, the district court dismissed the suit on the ground that the state deferral requirements of 42 U.S.C. § 2000e-5(c) (1970) had not been complied with. Gallego appeals that dismissal.

We agree with the district court that the “letter of August 9, 1974, notifying the Arizona Civil Rights Division of Mr. Galle-go’s charge of discrimination was not a deferral, but merely a courtesy letter to advise the State Agency of the pending E.E.O.C. charge.” At the time the letter was sent, the EEOC did not believe that section 2000e-5(c) required deferral to the State of Arizona. The letter was not meant to be a deferral. It was sent “pursuant” to a statute having nothing to do with deferral of EEOC charges and manifested no deference to the state agency with respect to the charge.¹

The district court erred, however, in dismissing appellant’s action. As a matter of equity, where the EEOC has failed to follow section 2000e-5(c), the district court should retain jurisdiction for a period of time sufficient to allow the EEOC to notify the appropriate state agency and to allow that agency the statutory deferral period in which to act. If the state agency elects not to act, the district court should then proceed as the rights of the parties demand. See Motorola, Inc. v. EEOC, 460 F.2d 1245 (9 Cir. 1972).

[458]*458We reverse and remand to the district court for an order consistent with this opinion.

REVERSED AND REMANDED.

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550 F.2d 456, 14 Fair Empl. Prac. Cas. (BNA) 1824, 1977 U.S. App. LEXIS 10366, 13 Empl. Prac. Dec. (CCH) 11,618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallego-v-arthur-g-mckee-co-ca9-1977.

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