1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"McCray v Corry" (1995). 1995 Decisions. Paper 212.

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1 

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. 
2 

 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. 
3 

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 
4 

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. 
5 

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 
6 

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 
7 

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. HoffmanLaRoche, 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 
8 

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 
9 

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 
10 

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). 
11 

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, 
12 

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. 
13 

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. 
14 
15 

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 
16 

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 
17 

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.