Sharon LUTE, Plaintiff-Appellant, v. the SINGER COMPANY, Kearfott Division, a New Jersey Corporation, Defendant-Appellee

The district court dismissed appellant Sharon Lute’s Title VII civil suit for lack of subject matter jurisdiction. The district court also awarded attorney’s fees, travel expenses, and costs to appellee Singer Co. as the prevailing party. See 42 U.S.C. *845 § 2000e-5(k) (1976). Lute appeals. We note jurisdiction under 28 U.S.C. § 1291 (1976) and reverse.

FACTS

In October 1976, Lute filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the California Fair Employment Practices Commission (FEPC) against her employer, Singer Co. The EEOC deferred to an FEPC investigation of the complaint; that investigation led to a finding of no discrimination. After review of the FEPC investigation and findings, the EEOC issued to Lute a no-reasonable-cause determination and a Notice of Right to Sue, dated May 5, 1978. See 29 C.F.R. §§ 1601.19 -.28 (1980). 1

In June 1978, Lute, pursuant to 29 C.F.R. § 1601.21 (b) (1980), asked the EEOC to reconsider its determination and reopen the case. Appellant’s reconsideration request cited a pending investigation of Singer by the Office of Federal Contract Compliance (OFCC). Appellant claimed that the OFCC…

dissenting.

I cannot concur in the majority opinion because I believe that the outcome here is controlled by our previous decision in Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th Cir. 1975).

In Cleveland the EEOC issued a Notice of Right to Sue Letter prior to completion of its administrative investigation. After this court’s decision in Cunningham v. Litton Industries, 413 F.2d 887, 890 (9th Cir. 1969), the Commission informed appellant that he should ignore the first letter, and it issued a subsequent Notice of Right to Sue Letter after completing its investigation. In discussing the effect of the second letter, the court unequivocally stated:

Accordingly, the court affirmed the dismissal of the plaintiff’s action since he failed to sue within 30 (now 90) days of his receipt of the first letter.

The outcome of that case did not hinge, as the majority suggests, on whether the second letter was issued pursuant to an authorized reconsideration of the Commission’s reasonable cause determination. Instead, the court expressed its general concern that the EEOC should not be permitted to preempt a “congressionally mandated period of limitation in favor of a hodgepodge of ad…

678 F.2d 844 28 Fair Empl.Prac.Cas. 1700 , 29 Empl. Prac. Dec. P 32,846 Sharon LUTE, Plaintiff-Appellant, v. The SINGER COMPANY, Kearfott Division, a New Jersey Corporation, Defendant-Appellee. No. 80-6047. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 13, 1982. Decided June 4, 1982. Elizabeth Schulman, Schulman & Schulman, San Diego, Cal., for plaintiff-appellant. Peggy L. Braden, Stamford, Conn., for defendant-appellee. Appeal from the United States District Court For the Southern District of California. Before FLETCHER, POOLE, and CANBY, Circuit Judges. FLETCHER, Circuit Judge: 1 The district court dismissed appellant Sharon Lute's Title VII civil suit for lack of subject matter jurisdiction. The district court also awarded attorney's fees, travel expenses, and costs to appellee Singer Co. as the prevailing party. See 42 U.S.C. § 2000e-5(k) (1976). Lute appeals. We note jurisdiction under 28 U.S.C. § 1291 (1976) and reverse. FACTS 2 In October 1976, Lute filed a sex discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the California Fair Employment Practices Commission (FEPC) against her employer, Singer…